AVL – changes to the law and problems encountered by the Criminal Bar

On 1 March 2017, section 8 of the Courts (Remote Participation) Act 2010 (CRPA or the Act) was amended.

There is now a presumption in favour of audio-visual link (AVL) for criminal procedural matters when defendants are in custody.

The legislation

The purpose of the CRPA was to promote the use of AVL in civil and criminal proceedings.

Previously, defendants were required to be physically present at court, unless their absence was excused or the Court determined that it was appropriate to proceed in their absence.

The shift towards AVL was made in the hopes of reducing costs and increasing efficiency, access to justice and safety.

Prior to the amendment, a judge or registrar was required by section 8 of the Act to determine whether a defendant should appear via AVL in a criminal procedural matter having regard to factors outlined in sections 5 and 6. The phrase “criminal procedural matters” is defined as “any matter in a criminal proceeding, in respect of which no evidence is to be called.” Thus, there was originally a discretion to permit the use of AVL.

As a result of the amendment, there is now a presumption in favour of AVL for all criminal procedural matters, where AVL is available and the defendant is in custody (section 8(1)). The only exception is where a judge or registrar determines that it is contrary to the interests of justice.

It is now also possible to use AVL in sentencing matters, provided that it is not contrary to the interests of justice.

As a result, there has been a significant increase in the use of AVL both within and outside the courtroom. Outside the courtroom, this involves the use of instruction suites located at some District Courts to obtain client instructions in advance of a court matter.

It is noted that the amendment is only in respect of criminal procedural matters and not criminal substantive matters. “Criminal substantive matters” is defined as “any matter, in a criminal proceeding, in respect of which evidence is to be called”. Thus, a defendant must still be physically present at his or her trial.

Issues with AVL

While practitioners have largely been supportive of the recent AVL changes, problems have been encountered due to the increased usage of AVL. This is true both when AVL is used within the courtroom and when AVL instruction suites are utilised.

Issues recently experienced by counsel and brought to the attention of the ADLS Criminal Law Committee include the following.

Problems during court hearings:

  • Given that there are limited time slots reserved for AVL court appearances, when a previous AVL matter runs over time, the next defendant scheduled to appear via AVL will have to be postponed until later that day or (in rare cases) overnight. This creates delay and uncertainty for defendants.
  • Defendants are frequently not in the correct booth at the prison when their matter is called in court at the scheduled AVL appearance time. At times, Corrections has to be contacted by the court while the court is sitting so that the whereabouts of the defendant can be ascertained. This causes delays in the court process.
  • At other times, a defendant who is due to appear via AVL is transported to court for his or her appearance without notification to counsel of the change. This can cause both delays and confusion when the matter is called at court.

Problems taking instructions via AVL:

  • A defendant is frequently not in the correct booth at the prison at the scheduled time, leaving counsel with little time to take instructions once the defendant is brought to the booth. This then impinges upon a defendant’s right to consult and instruct a lawyer.
  • There are issues with booking an “urgent” instruction suite appointment, as instruction suites are frequently booked out days in advance. This creates particular difficulties where a matter has been urgently assigned at short notice by Legal Aid, and there are limited opportunities for counsel to take instructions prior to the matter being called via AVL in court.
  • The lack of instruction suites can prove challenging for counsel. In satellite courts such as, such as Papakura District Court, where AVL is used in court, there are no instruction suite facilities. Lawyers from that court must travel to the Manukau District Court and use the instruction suite located there. This can cause pressure on the AVL instruction suite facilities at Manukau, as there is only one instruction suite for an extremely busy District Court.

The introduction of a presumption in favour of AVL has resulted in a significant increase in the number of AVL appearances. The purposes for which the CRPA was enacted are commendable, however, due to difficulties encountered when using AVL within and outside the courtroom, these purposes are not currently being realised.

The ADLS Criminal Law Committee has recently corresponded with both Corrections and the District Court around the concerns raised by lawyers.

The Committee would welcome further feedback from practitioners on their recent experiences with AVL and in particular areas where improvements could be made. It is hoped once the current problems are addressed the full benefits of AVL will be realised by all those involved in the court process.

The Committee also encourages practitioners to do their part and let Corrections know, at the earliest opportunity, if the AVL booking is no longer required. Practitioners should call Corrections Operation Support (0800 990 017) so that the AVL booking can be released to others.

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