JILT 1998 (2) - Rosanne McInnes

Bordertown and the Globalisation of Justice

Using Computers in an Australian Magistrates Court

Rosanne McInnes
Magistrate
[email protected]

Abstract
1.	Introduction
2.	The Needs of Court Users
	2.1	Bordertown
	2.2	The Information Age
	2.3	Information: The New Commodity
	2.4	Disputes Arising Out of Trade in Information
	2.5	Courts and the Information Age
	2.6	The Telephone
3.	The Notebook Computer and its Software
	3.1	Magistrates of the Electronic Generation
	3.2	New Tools: Decision Support
	3.3	Electronic Magistrates
	3.4	The Magistrate's Information Technology Requirements
	3.5	Tasks:
		3.5.1	Automating Benchnotes
		3.5.2	Printing 'Written' Judgments
		3.5.3	Collaboration
		3.5.4	Education and E-conferences
	3.6	Choosing Tools
	3.7	Understanding Limits
	3.8	In the Beginning
	3.9	Big Changes
	3.10	Why bother?
	3.11	Hardware
	3.12	Integrity
	3.13	Related Questions
	3.14	Hyperlinking
	3.15	Sight
	3.16	Graphics
	3.17	Sound
	3.18	Video
	3.19	Streaming
	3.20	Voice Control/Voice Activated Software
	3.21	Artificial Life Software
	3.22	The Author's Toolkit
	3.23	In a perfect world...
4.	Conclusion
	References

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Abstract

This paper deals with the use of computers by magistrates working in high volume courts.

In Part 1 the author examines new demands being placed on magistrates courts as communities enter the Information Age. In Part 2 the author looks at using personal computers inside and outside the court room while working as a magistrate in South Australia, and discusses key factors to consider when using computers as tools.

This is a Commentary published on 30 June 1998.

Citation: McInnes R, 'Bordertown and the Globalisation of Justice: Using Computers in an Australian Magistrates Court', Commentary 1998 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/itpract/98_2mcin/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1998_2/mcinnes/>.

1. Introduction

South Australian magistrates courts hear the bulk of civil and criminal cases which come before the courts convened in this Australian state. The South Australian magistrates courts are high volume courts. The magistrates sit as triers of fact and law, exercising State jurisdiction and, in limited circumstances, Federal jurisdiction. They apply statute law and common law, in a federal system where crimes, torts, and contracts are matters for State courts.

The state is the driest state in the driest continent in the world. Communities are separated by great distances. Magistrates based in the State capital, Adelaide, regularly hold circuit court courts throughout the State, travelling hundreds of miles to do so. In some of the smaller towns, including Bordertown, whenever the magistrates attend on circuit they open empty buildings in order to create a court. Their cars are their principal tools of trade. They travel many hours away from law libraries and computer technicians. Some courts are so remote that magistrates travel by air when they are travelling to and from these courts. Circuit courts are held in aboriginal communities as well as in regional cities and larger country towns.

As she travels to these courts, taking a notebook computer and a modem with her, the author wears four hats: magistrate, system designer, system administrator, and occupational safety monitor. She is the committee. If the committee gets the decision wrong, she has to deal with the outcome. 'System administrator' is another way of saying sometimes she has to use a screwdriver to fix the 'notebook' while she is on the road.

She uses the notebook computer as pen and paper, as dictaphone, as calculator, as law library. She uses it for research, for communications, for storing information, for drawing pictures, for listening to sounds, for looking at video footage, for presentations, for analysing evidence, for writing judgements, for monitoring her own work performance inside the court room. She uses it to transcend time and distance and information storage limitations.

2. The Needs of Court Users

2.1 Bordertown

About 2000 people live in Bordertown. Bordertown is a rural transport hub in the South East of South Australia, situated about halfway between the State capital, Adelaide, and Melbourne, the capital of the neighbouring State, Victoria. Raw materials and processed primary industry products are brought to Bordertown from a wide area, for transport to one of the State capitals, whether by air, by rail or by road. The community itself revolves around the school, the hospital and the sheep and cattle saleyards. These are the places where the people who live in Bordertown exchange information between themselves.

The magistrates visit Bordertown for one day, every two months. They open an empty building in order to hear the cases being brought to court. When they come to the town they cannot help but hear the voice of the community itself, distilled from the information exchanges at the school, the hospital, the saleyards. The magistrate hears the voice of the community at the petrol station, the motel, the bank, the post office, the cafe. Sometimes the magistrate sees the local newspaper and hears the local radio station.

Bordertown is the first town on the run in the South East circuit in South Australia. There are monthly criminal court circuits to Naracoorte and Millicent. For the most part, the circuit court sits in the regional city of Mount Gambier, about a hundred miles south of Bordertown.

Before this article was written, managing editor of the Mount Gambier newspaper the Border Watch , Mr. Alan Hill, gave the author free access to the newspaper archives holding copies of the newspaper published after the first edition came out in 1861. The librarian at the Mount Gambier Library granted access to unsorted boxes of old court documents held in storage at the library, at the request of Mr. Greg Thomas, the Registrar of the Mount Gambier Court. The author has drawn extensively on the information from these sources when writing this article. Scanned copies of some of the resources accessed are now on the Internet.

Bordertown and the towns like it are wonderful tests to apply to everything courts do. The mass of detail that shrouds the operations of a central court is stripped away. It is easier to see what a court is, what a court does, why courts are there and what courts need to do in order to serve local communities. Normally overlooked, because of lack of numbers, these are the courts that really tell us what we do and whether we are doing it well.

At the courts like Bordertown, we magistrates can identify the situations where new technology can extend our horizons, can be used as a tool to overcome the limits that have confined us. More importantly, we can also see the limitations of the new tools.

Virtual courts can come to individual people in Bordertown, but virtual courts cannot communicate the voice of the community to the magistrates.

In general, the news from Bordertown is not good news for magistrates.

The crimes that come before the court are usually local crimes when a local offender could not, or did not, hide the offence. From outside the community, there are crimes against the road safety laws, coming in from a notorious stretch of highway where tired drivers become careless drivers and road death statistics. In contrast to the urban courts, it is rare for a case to come before the court where the commission of the crime is blatant. In areas like Bordertown, the offender's first step is to try to hide the crime, rather than try to hide his own identity. There are so few civil cases at Bordertown that no civil court sits there now.

Where no court is open, there is no lawyer either. Law firms set up near courts. They are rarely found adjacent to empty court buildings.

It has not always been this way. Civil disputes arise out of torts and transactions. It is not true that fewer transactions happen in Bordertown. What has changed is the nature of the transactions engaged in by people in Bordertown. Bordertown does not have many local transactions any more. What were once local transactions are now transactions with the agent for the Adelaide or the Melbourne office; the Adelaide or the Melbourne customer.

To find out which State to sue in, Bordertown people have to make a two hour round trip just to see the closest lawyer. Advice about international transactions is likely to come from a lawyer much further afield.

Very recently, the rate of flow of information across distance has changed. The Internet has now reached Bordertown.

What if there is a dispute about a swag sold to a person living overseas? Where did the sale take place? Which country, which court, has jurisdiction? Where does the swagmaker go? Even if the swagmaker drives to Naracoorte, the lawyers there probably cannot help him. From the swagmaker's perspective, there is no court for him to go to. He has a trading route, but no arm of government secures it for him.

The circuit courts first went to the South East because it was cheaper to transport a few people a long way and many people a relatively short distance. Case flow was not managed by seeing which litigants were interested enough to embark on a long arduous trip to Adelaide or Melbourne. Opening the first Supreme Court Circuit in the regional city of Mount Gambier in 1862, Mr. Justice Gwynne said to the people of the area:-

'They were all no doubt acquainted by report, if not by actual experience, with the expense, great loss of time and individual hardship sustained by many in prosecuting their claims, by having to travel some 300 or 400 miles to Adelaide in order to obtain redress for their grievances; indeed he was satisfied, in his own mind, that many individuals had submitted to injustice and great wrongs, rather than undertake a tedious and expensive journey; he was sure they would at once perceive the establishment of Circuit Courts to be a great boon, and give great credit to the Executive for attending to their wants, thus securing a prompt and comparatively inexpensive mode of obtaining redress for any and every grievance.'
( Border Watch newspaper, February 7th, 1862, accessed and reproduced by permission of the managing editor, Mr. Alan Hill.)

Each year thereafter, the courts proudly announced in papers such as the Border Watch the profits they had made in each of the circuit areas.

In addition to the Supreme Court circuit courts, resident magistrates were appointed, to deal with lesser grievances. The archives of the Border Watch newspaper reveal that when Mr. Riddle's pigs got into Mr. Ding's garden, in the town of Naracoorte in May of 1874, the courts had a remedy. Mr. Ding got his judgment within the month, and it was not for the highly inflated amount he originally sought.

When the author was last in Naracoorte, the next circuit town , an hour south of Bordertown, no civil court had been held there for months. There were six small claims listed for trial. The disputes were not days old but years old. A good deal of time and acrimony had been spent trying to resolve these disputes before anyone went to the time and expense of driving to a court registry to pay the fees and issue a summons. The cases filed with the Naracoorte registry come in from anywhere within a very large catchment area. The nearest civil court registries are one hour to the south, five hours to the north, and three hours to the north-west.

If Mr. Riddle's great great grandson has pigs, and they get out, Mr. Ding's great great grandson is still going to do something about it, but he is not going to involve the Adelaide magistrate. Hopefully the other neighbours feel compelled to take any action because of the squealing, and Mr. Ding's great great grandson will not retaliate.

If the dispute is taken to officialdom, it is likely to be added to the workload of the local member of Parliament, who is already increasingly called upon to resolve the disputes which arise between an expanded bureaucracy and individuals in the community. The local member of Parliament and the local magistrate no longer sit together as a court, as they did when John Anderson was tried for stealing a shilling from the till of the Mt. Gambier Farmer's Inn, on May 26, 1866. (Border Watch newspaper court report, May 30th 1866). Of the two, it is the magistrate's role in dispute resolution which is the role which has been defined and confined during the passage of the ensuing one hundred and thirty years, by Acts such as the Magistrates Act and the Summary Procedures Act

Bordertown, Naracoorte, Mt. Gambier and the other country towns show the wood that cannot be seen for the trees in the city courts. The courts are not expanding, they are contracting. The power to enforce an order made within a State boundary is not enough to persuade the people of Bordertown that the courts are there for them to 'obtaining redress for any and every grievance'. The need is there, but the court mechanism is not.

2.2 The Information Age

Bordertown people grew up in a different world, as different as Europe and Asia.

It was a world where it was easy enough to get a basic education. It was difficult to break through the cultural and financial barriers that stood between every child and higher education. The services of highly educated people were in short supply, whether they were doctors or lawyers or accountants. There was not much trade in intangible services, and not many to be had. Any trade in intangibles was mainly local trade. When information was packaged, it was packaged in books and newspapers, tangible forms with all the limitations of tangible commodities.

Trade was trade in tangible commodities. Quantity in tangible goods is limited. It is limited by the amount which can be produced, the amount which can be stored, and the distance across which it can be transported. As they are transported, goods move in one direction for a substantial period of time. They cross one political boundary at a time.

The trading routes were secured by courts which were all part of a single court system with the Privy council at the apex. Courts thrived as the ability to beat distance stepped up the volume of trade in tangible goods. 'Wogs' began at Calais, and anywhere else where the court's writ did not run. Any other official forms of dispute resolution withered.

When the magistrates first began to go to Bordertown, most of the civil disputes were local disputes. They arose out of local transactions. Most trade was local trade in tangible products, even if the produce was being exported. The world has changed, but in places like Bordertown, towns which grew up at transport hubs for tangible products, the memory of the old world is a more than a living memory. It shapes the expectations of the people living there.

Now Bordertown has a new spoke in the transport hub, a spoke linking it to the world where both tangible and intangible products are traded. In Bordertown, people are learning to use new technology which they will use to trade in both tangible and intangible products. They have been using spreadsheets for more than a decade. Now they are moving beyond the spreadsheet. The Internet has reached this town.

If they come to court, they will want to bring their technology into the courtroom with them. They will not want to bring their grievances to an illiterate. If, indeed, there is a court where they can 'obtain redress for each and every grievance'.

For the swagmaker and the others who will join him as the rate of flow of information increases, there is no court for him to go to, even if he makes a 'long and arduous journey'. On the new trade routes, there is no single court system travelling with the products all along the trade routes. No court is an apex. There is no modern ' Pax Mongolica '.

These are new limitations, fetters on the Australian judges and magistrates which did not manacle the judges and magistrates who preceded them on the road to Bordertown.

The power of modern judges and magistrates is not only confined to Australian shores, but for the most part is also confined to individual Australian states. It is only after a dispute is resolved that the judgment can be registered in an interstate court. Within one nation, most judges and magistrates work in one or another of seven different countries.

Bordertown shows us a working unit stripped clean of the dross of a sophisticated economy, and it shows us what courts are not doing. Courts are not expanding as they were when Judge Gwynne took advantage of the technology of his time and travelled to Mt. Gambier in 1862. Judge Gwynne sailed in by ship, through the waters of one of the most dangerous coasts in the world. He overcame distance, the greatest barrier of his day.

In towns like Bordertown, the courthouse is not marked on the free town maps at the local information centres. There is not even a street sign to show the way.

2.3 Information: The New Commodity

In the Information Age, the biggest changes are trading changes.

Information about tangible product is no longer confined. Seven days a week, twenty four hours a day, the producer can tell the world about the product. Seven days a week, twenty four hours a day, the buyer can tell the world he needs the product. Information itself has become an intangible commodity. It is constantly traded. In this new trade, the dollar cost of transport is a measure based in time instead of a measure determined by distance.

Unlike goods, information does not move only in one direction for a considerable time when it is transported. When Judge Gwynne went to Mount Gambier in 1862, when the magistrate goes to Bordertown, information flows from the community to the court.

We cannot hold a virtual court in Bordertown until we find a way for the community to tell the magistrate what the community wants the magistrate to say on its behalf. The magistrate can be trained to appear in Bordertown by camera, but can Bordertown be trained to get its message to the magistrate?

In this new age, courts themselves will probably be dealing in the new commodity, information, both as consumers and as vendors.

At the conference where this paper was first presented, there was also a paper from a new potential customer for court information. During Mr John Lloyd's presentation, Directions in the Commercial World , the conference learnt how Dunn and Bradstreet, merchantile agents, are selecting packaging and transporting information. Amongst other things, information is made available to customers by merchantile agents for the customers to use in the assessment of the credit risk inherent in dealing with particular individuals. Are the merchantile agents buying from courts information which the agents store, package, and transport? Will they seek to buy such information? How should courts respond to such requests?

The new trade in information, the intangible commodity, is quite different to the older trade, trade in tangible commodities. Trade in tangible commodities is trade in a specified quantity of single units. The information resource is an infinite resource, not a finite resource. What is sold is not the single information item originally produced. The quantity of single units of information is never specified.

In the Information Age, what is sold is a package of data selected from the all of the data that has been produced. What is sold is a time saving, a saving of the time it would take to acquire the same information using old methods, if it could be obtained at all. From the purchaser's perspective, more information useful in decision making can be obtained for the same expenditure of time. The purchaser can make more informed decisions within the same time, by using data obtained with the assistance of information technology, just as more acres could be ploughed and harvested in the same time when farmers began using tractors instead of draughthorses.

Information is sorted and stored and transported using information technology, just as fifty years ago apricots were loaded on to trucks and driven to market along rough tracks through gorges in mountains, just as eighty years ago bags of wheat were loaded on drays tied to the backs of bullocks, to be hauled away through the dust and the flies.

2.4 Disputes Arising Out of Trade in Information

Does the information 'belong' to the person it comes from? Does it 'belong' to the owner of the data base, who 'adds adds' by storing many single pieces of information, each coming from a different person? Does it 'belong' to the person who takes selected extracts from the whole of the information and packages it in a way which was useful to yet another person? Or does it 'belong' to the person who ultimately uses the information extracted from multiple sources?

Is the argument about 'privacy rights' really an argument about whose 'rights' take priority within the context of a limitless resource?

Do we protect the information in a cartoon, or the packaging? As cartoonist Chris Kania works at holding a mirror up to human nature, supplying information about ourselves and our world, is he in the business of selling a saving of time spent observing human behaviour or is he in the business of selling the saving of the time it would take to draw a different cartoon containing the same message about human behaviour?

The answers are not easy, but someone is going to have to find them. And someone is going to have to try to implement them. If government does not find ways to deal with competing interests, it is heading backwards down the road, the road back to Njal's Saga , where an entire family burned in flames ignited by what began as a trivial dispute between two individuals.

Restoring certainty to trade along the trade routes, restoring confidence that traders and their families will be protected from tricksters and brigands, has been a function of government and the courts. It will not be easy to do this along the information trade routes. As tangible goods moved across physical distances, they moved under the umbrella of a common law court system and across government boundaries defined in geographic terms. Information is an intangible commodity constantly travelling backwards and forwards, simultaneously crossing many geographic boundaries, not just one boundary, and always travelling outside the umbrella of a single common law court system.

2.5 Courts and the Information Age

The virtual court can come to Bordertown, but it cannot bring Bordertown to the magistrate. Unless the magistrate goes to Bordertown, the magistrate will never know of Bordertown's needs.

One of the things that Bordertown is telling the magistrate is that when sitting alone the South Australian magistrate cannot deal with the needs of Bordertown. Local and intra-state transactions have diminished, but these are the only transactions the State magistrate can deal with. Bordertown needs a magistrate who can deal with disputes arising out of interstate and international transactions. Bordertown has joined the global economy, but Bordertown has no global court to go to.

It is time for courts to move beyond geographic boundaries and beyond the system of single decision makers which has developed over the last hundred years if courts are to remain the arm of government which deals with trade disputes. If courts do not meet the new needs, they will continue to diminish and become almost irrelevant to communities like the Bordertown community.

Information technology could be used to bring multiple jurisdiction virtual courts to Bordertown and the towns and cities Bordertown deals with, simultaneously.

Virtual courts exercising multiple jurisdictions could be presided over by judicial officers with exclusive jurisdiction, but without common government there is no way for these courts to derive jurisdiction, and government has physical boundaries. Creating an Australian Magistrates Court, if it is constitutionally possible, might deal with the problems that occur when a dispute arises as a result of an interstate transaction, or an interstate tort, or an interstate crime. It will not deal with similar problems arising in an international context. Bordertown has already joined the global economy.

Multiple jurisdiction virtual courts could also come to Bordertown with multiple judicial officers presiding together in them, each competent to hear similar matters arising exclusively within their own jurisdiction. If the presiding officers can reach a common outcome, it will not matter that the parties not, if the same order can be enforced in both jurisdictions. Such courts would derive jurisdiction from Co-operating governments.

Some hurdles for such multiple jurisdiction virtual courts would be psychological hurdles. Judicial officers are not used to using information technology. Judicial officers are not used to working together as they direct themselves on matters of law, find facts and apply law to those facts. Common law judicial officers are not known for their speedy support of innovation. They work in an adversary system where competition is the norm, rather a system which maintains control by encouraging Co-operation. Common law judicial officers and civil law judicial officers would need to work together before a virtual court convened, developing procedural and evidentiary rules enabling each judicial officer to perform their functions in very different jurisdictions.

Nonetheless, the global economy has brought into existence the need for the multiple jurisdiction class action. There is only one defendant. There are many plaintiffs scattered far and wide around the world and issuing proceedings in many jurisdictions. The same facts will be tried over and over and over, at enormous expense to the single defendant and in itself reducing the amount of money available for payment of damages if and when damages are awarded to individual plaintiffs.

Is there no better way to deal with the breast implant litigation currently in progress? What about the woman in Bordertown who has silicon leaking through her body? To do nothing is the easy answer, but for courts the consequences of the easy answer may be fatal.

2.6 The Telephone

In the past, South Australian courts have failed to identify the situations where information technology has created new tools, and have not examined the advantages and disadvantages inherent in using these tools. The telephone exchange opened in Mount Gambier in 1900, but the court was not connected to it until 1907, by which time the author's great-great-grandfather had been terrorising the district for five years, hurtling around the mud tracks of the area in the first motor car, sometimes at a speed of 20 miles an hour.

A possible tool is useless if it does nothing to overcome a limitation, or if it overcomes the particular limitation only by creating a greater obstruction.

Take an ordinary telephone. It overcomes distance at the expense of the ability to see the unspoken communication. It saves time. During the decades courts have gone to Bordertown since the telephone was invented, how much use have magistrates made of it? How much use could they have made of it? Could they have made more use of it? Do they really need to see the faces of the people seeking an adjournments which are within caseflow management guidelines? Could these adjournments be done by telephone, or by fax? Can the magistrates automate steps they are not taking?

Conversely, what confidence would magistrates and litigants have in decisions made in trials held using ordinary telephones? Is the limitation inherent in the telephone itself, or is the limitation due to how far the telephone can be adapted for use as a tool in the circumstances in which the magistrates are working? Is the limitation inherent in the tool or inherent in the user?

When the author goes to Bordertown, she takes a laptop computer and a modem. It is much easier than trying to pack a law library into a circuit box. The empty building at Bordertown is connected to the telephone exchange.

3. The Notebook Computer and its Software

This section examines the possibilities offered to magistrates by a relatively new and widespread form of information technology: the personal computer, the hardware which can be attached to it, and the software which can be loaded on it.

3.1 Magistrates of the Electronic Generation

The next generation of magistrates, maybe even this generation, will cut and paste image and audio clips when they 'write' their judgments. The electronic generation of court users will not be satisfied with a mere piece of paper when they lose their litigation.

They will not be satisfied that they have been allowed to present their case until they have had a chance to use familiar electronic aids as they present it. They will want confirmation that the facts inferred from the primary facts are correct if the facts are found without regard to electronic aids. They will use electronic aids, such as virtual reality software, as they examine validity of the conclusions reached by magistrates hearing trials at first instance. They will bring electronic tools with them when they appeal against decisions made by magistrates, even if they have not brought them to the hearing at first instance.

The electronic generation of magistrates will not normally ask support staff to insert into their judgments a quote from the transcript of the evidence or a transcription of a section of an Act of Parliament. Instead, they will probably use phrases like 'insert, at 5.75 minutes, day 1 session 2 passage 10.51 minute to 12.08 minute segment'; or, ' insert, at 2.07 minutes, paragraph 76, <http://www.austlii.edu.au/do/disp.pl/au/legis/sa/consol_act/clca1935262/s23.html?query=criminal%20and%20law%20and%20consolidation>

The magistrates of the electronic generation may not even have to ask someone to do these insertions for them. They may do it themselves, using voice control, or using monitors tracking the movements of their eyes. It is much easier to cut and paste long URLs than to orally dictate the same URL.

3.2 New Tools: Decision Support

Computer software cannot say 'that witness is a liar'. It can help a magistrate to make a decision as to whether a particular witness's testimony can be relied upon. The kind of software varies with the nature of the evidence. A tool generally used to do a task can also be used to examine whether the task has been carried out to a professional standard in a particular instance. In addition to analysing and storing and processing information, computers and computer software can assist magistrates in other ways.

Neural net/artificial life software can be used diagnose that a particular sentence is within the right range, having regard to the circumstances of the offender, the circumstances of the offence and the effect of these on each of the sentencing purposes, but it can neither explain the outcome nor provide a watertight diagnosis when the particular case is one outside the usual pattern.

In criminal sentencing and in assessing damages, unlike other cases, courts are required to gaze into crystal balls and predict the future. This is much harder than finding the facts of the past, in order to determine whether or not to interfere with the present status quo. The latter task is the task that magistrates are carrying out during the bulk of their working time. Magistrates spend most of their time hearing trials and determining whether there should be a finding of guilt in criminal cases, or a finding of liability in civil cases.

Courts have not even begun to take advantage of artificial software when they are required to reach outcomes which incorporate their predictions about the future, or when there are appeals against these kinds of decisions, to appellate judges who sometimes need to make or assess predictions about the future, in order to determine the appeal. If any court is using neural nets to find out to ascertain whether a penalty is proportionate (see R. v. Veen (No.2) (1988) 164 CLR 465 ), it has not been widely publicised. Courts have using databases to identify particular criminal penalties which are disparate in the sense in which this term was used by the then Mr. Justice Brennan in the High Court of Australia decision R. v. Lowe (1984) 154 CLR 606.

Data used in artificial life software, and possibly the software itself, will need to be specific to the court system, to reflect real differences between jurisdictions. Once the crime is diagnosed and the symptoms (the circumstances of the offence and the offender) are examined, the remedies available for treatment have to be considered, with a view to achieving certain purposes at the end of the course of treatment, the particular sentence. The sentencing purposes detailed by the High Court of Australia in Veen (No.2) are not the same as the sentencing purposes discussed by the Supreme Court of Canada in R. v M., C.A . Denunciation, the symbolic expression of a community's disapproval, is one of the purposes achieved by criminal sentencing in Canada, whereas the same concept plays no part in the purposes achieved by Australian criminal sentences.

Artificial life software cannot identify the basic sentencing principles. It can help identify what is fair in the particular case and what will be just having regard to the cases that have gone before and the cases that will follow, but it cannot strike that balance, and it cannot explain the outcome.

3.3 Electronic Magistrates

At first instance, there is a role for the electronic magistrate, of the type already enforcing traffic laws. The South Australian penalty enforcement system is an electronic magistrate relieving appointed magistrates from the need to carry out repetitive and unnecessary work.

There is another role for people who are judges and magistrates when the magistrate is electronic, a role with its roots in the doctrines of natural justice: the role of reviewing and controlling what the electronic magistrate is doing in the particular case. The electronic magistrate can outline the case against an individual to the individual. The electronic magistrate cannot know whether it is outlining the case to the right person, for to the electronic magistrate human identity has no meaning. The electronic magistrate cannot provide the solution when the individual wishes to challenge the case against them.

Other people in the community have reason to fear the electronic magistrate, but judges and magistrates have no reason to be frightened by the electronic magistrate if the electronic magistrate is confined to the tasks it is good at.

An electronic magistrate can be created for use as a 'sifter' in the cases so factually complex that they are beyond the capacity of one person to absorb. An electronic magistrate can find and explain the strengths and weaknesses inherent, in each case, so both parties can assess the risks associated with litigation before they are forced into entrenched positions. Once the case of each is explained to the other, it may became clear that the real disputes are disputes the parties can resolve between themselves without going to a 'real' judge and drowning him in years of litigation and filling buildings with exhibit documents.

Judges and magistrates know what it is hard for them to do, and they know what they do well. Judges and magistrates need to say what these things are, in terms that IT people can grasp. Judges and magistrates need to learn enough about IT to be able to find ways of using IT to do the things judges and magistrates cannot do well, to free themselves to do what they do well.

3.4 The Magistrate's Information Technology Requirements

The author is a lawyer by training, and every day she runs an Australian magistrate's court. She is not a judge. Her daily work as a magistrate is very different to the daily work a judge does, despite the superficial similarities. Both impose solutions. The solutions usually destroy any remaining trace of a relationship between the litigants, but it is necessary to lance the boil, to release some of the pus which has built up during an unhappy relationship, whether the relationship is domestic or commercial.

Magistrates deal with large numbers of cases at high speed, freeing judges to concentrate on the other cases, such as murder trials, the cases that demand more than the quick fix that is all that magistrates have time to apply before the next case is called on.

The technology the magistrate needs is quite different to the technology a judge needs. Working the raceway gate in a beef cattle yard is ideal training for a magistrate, for it involves sorting out the problems presented by large warm blooded creatures that can easily become dangerous if they are not handled carefully and quickly.

The magistrate needs information technology that deals with the needs of a person who needs a limited amount of information provided as possible with as little preparation as possible, which stores that information and which can trace multiple pieces of information and multiple people. The information technology has to be able to handle large volumes of unrelated information, and it has to enable the magistrate to do more cases in the same amount of time, without loss of standards.

In IT terms, a magistrates court is a router, switching information packets from many sources, and always at high speed.

In contrast, a judge usually deals with multiple pieces of information which are all under one umbrella held up by the same litigants, or appellants. The judge has many pieces of information to contend with, but there are clear connections between them. He rarely needs to identify associative connections as the trial proceeds, for most of them can be predicted before the trial begins. He needs quality information, and he needs the associative selection paths clearly marked out. Often, most of his needs can be met by using a database together with a thin client. The combination of Lotus Notes and an Internet browser has worked well for many Australian judges.

Both judges and magistrates are conservative in the Machiavellian sense: they are not going to depart from that which has been done before unless something has happened which makes them feel compelled to do so. But when judges and magistrates are talk to information technology advisers, they are talking to people from an industry which is essentially innovative, an industry where nothing is impossible.

When judges and magistrates describe giving judgments as a process whereby we identify the facts, resolve facts in dispute, and apply the law, this means nothing to a person from an IT background. This is a description of a form we follow in order to meet the purely human needs of the person who has lost a case, the need to know that he was not brushed aside, that we did hear what he said, and the need to know our reasons for disagreeing with him. It does not help an information technology adviser design software that will help judges and magistrates write judgments.

Even when the judge or magistrate and the information technology adviser use the term 'proof', they are not talking about the same thing. The IT adviser comes from a scientific background, where proof is internal consistency consistent with all known external factors. The judge and the magistrate are talking of proof in a very different context. They are assigning priority to one of two internally consistent hypotheses competing against each other.

One alternative is to point the mouse and browser and connect to the World Wide Web site of the Online Ombuds Office ; then to say to our colleagues in IT 'look at what Professor Katsh and his colleagues have explained, and look at their diagrams. We deal with disputes. This is how we resolve the disputes that come before us. We follow a similar process. Here is the flow chart for it'. (Dispute resolution flow chart)

Judges and magistrates need to learn new ways of explaining the problems we face, and to develop new means to deal with them.

The myriad of files a magistrate creates in a month of different matters can be sorted out fairly efficiently by setting up folders or directories. But the information technology adviser need to know the magistrates need these folders, and knows how to set them up.

The needs in the case of the Estate Mortgage litigation in Victoria were quite different: multiple parties, multiple pieces of evidence. The information technology adviser did grasp what was needed, and design a system that met the needs of the people using it, many of whom were not familiar with computers and some of whom were outside the country. MSAccess, in combination with Netscape, was used to meet the specific needs of the court, counsel, solicitors, and litigants.

The difficulty for the information technology adviser is that judges and magistrates have not come to grips with dealing with multi-jurisdiction litigation. The judges and magistrates have no system the information technology adviser can automate. For the purposes of most litigation in Australian magistrates courts, every State is a different country. There will still be no cross vesting in these courts, even if cross-vesting survives the constitutional challenges at Supreme and Federal Court level.

One problem we have not yet seen confronted by information technology is multi-jurisdiction litigation. If proceedings are also instituted in Australia, the United States, Canada and England, is it really reasonable to expect the single common party, usually the defendant, to build or integrate separate information technology systems for defending the case in each and every jurisdiction?

Perhaps judges and magistrates could use virtual courts to sit together at once, by video linkup, to resolve disputes which are interstate or transnational. It is the power to enforce which confines the powers of the judge and the magistrate within a set of physically defined political boundaries.

Information technology advisers are probably able to devise better solutions, but they need to grasp the nature of the problem, and to understand that there is no solution ready for automation. Judges and magistrates will need to explain the problem to them.

3.5 Tasks:

3.5.1 Automating Benchnotes

For the ordinary case in a magistrates court, a freeware wordprocessor and a shareware spreadsheet can be used to create the benchnotes which will be used to deliver a decision, whether the decision is oral or written. The same benchnotes are stored in a different way. Material synthesised from the evidence (e.g. notes about specific issues, or arithmetic calculations) can also be stored on the hard disk of the computer. Directions on the relevant law which have been drafted for use in earlier cases, can be stored in a computer, as template text files: It is for the prosecution to prove every element of the offence, and to prove each element beyond reasonable doubt , etc. Entire statutes and the text of cases can be downloaded and stored on the personal computer, whether for ongoing reference or for use in making a decision in a particular case.

Extracts from the notes are 'cut and pasted' into the window where the judgment is being written, using a mouse, either while the trial is in progress or when the evidence is finished. The material in the fifth window is then edited, and the other windows are closed. The judgment is ready for delivery.

While the 'cut and paste' is in progress, the raw material is being extracted and stored in the judgment window. The extraction and storage process is no different to the process undertaken by judges and magistrates who are not using computers. The same basic structure is used for trials, sentencing, and interlocutory applications. The material will normally be extracted and stored in the following order, although individual judges and magistrates may not always use exactly the same order:-

Parties
Nature of litigation
Onus and burden of proof
Undisputed background facts
Observations re witnesses and demeanour
Outline of disputed facts
Finding re disputed facts; primarily based upon internal consistency of testimony and external consistency with other evidence and supplemented by witness demeanour
Outline of relevant law
Application of relevant law
Final Order
Intimations re ancillary orders, eg costs, or sentence, if appropriate

The material in the judgment window can be in note form if it is going to be used to deliver oral reasons immediately after final addresses are given by counsel. It can be edited for spelling and grammar mistakes and expanded into sentences if the judgment is to be published in written form.

Once a magistrate is used to using a word processor, it is much quicker to prepare reasons by using a keyboard than by using a dictaphone or by searching bench books for raw data and then making handwritten notes. The 'find' facility in a word processor locates the passage being sought more quickly than it can be located by thumbing through a bench book, and the notes are far more legible.

At an Australian Institute of Judicial Administration magistrates workshop in 1997, it was demonstrated during a group judgment writing exercise that the group using a personal computer to prepare a structured judgment from a set of hypothetical facts was able to prepare a hypothetical judgment as quickly, and as coherently, as other groups could do while using pen and paper.

Getting used to using a word processor instead of a bench book took the author almost a year to master, from the day she first looked at a WordPerfect5 menu bar and wondered what on earth 'File' meant. She had to realise particular topics are identified and sorted into a particular order and prepare files on the same bases, instead of unconsciously carrying out a process by rote. She had to discover the windows facility, wonder whether the same thing had to be typed over and over in many different cases, develop indices for the stored files.

Not even automation is easy. But once automation is mastered, it becomes possible to see if the same task can be performed more efficiently, using different software.

If the computer the magistrate uses in court is not connected to the court's internal computer network, the network is protected from accidental introduction of viruses, and the magistrate is protected from allegations of accessing information which might prejudice a trial, such as records of previous criminal court appearances and the penalties imposed. When this approach is used, as it was in South Australia, the magistrate can experiment with different forms of software and hardware, and come to grips with the advantages and disadvantages of using particular tools in particular circumstances.

3.5.2 Printing 'Written' Judgments

Documents can be printed into many ways. They are not always printed on paper and popped into the post. Printing and posting costs money. It is less work for me, and less expensive for the court support service, when judgments are stored and published electronically.

Reasons can be delivered before the nominated day if the reasons are ready. Counsel who receive copies of reserved judgments in advance of the formal making of the final orders do not need adjournments to prepare their arguments about the ancillary orders, such as costs and interest.

Since 1994, when she added a modem to the hardware she was using, the author has been printing advance copies of judgments on counsel's fax machines, direct from the word processor, using the modem and a phone line. When one fax machine ran out of paper while she was trying to print a judgment on it, late at night in November 1996, the judgment was then sent out by email instead, as counsel's chambers had an Internet email address. By telephone next day, chambers clerks were requested to check the chambers email. The judgment was delivered to counsel in time to avoid an adjournment for argument about the appropriate ancillary orders. Counsel came to court prepared for the argument about the appropriate ancillary orders.

When she reserves a decision in order to deliver written reasons, the author usually leaves the choice of printing methods to counsel. They can elect whether they want to receive their copy of the reserved reasons in court on the day, in the post, by fax, or by email. Most request the written reasons for decision be sent by fax, but an increasing number are asking for email copies delivered direct to their desktop computers rather than shared fax machines. There are no requests for copies by post or for judgment on the day.

3.5.3 Collaboration

Judges and magistrates are sometimes implementing legislation which embodies similar policies, but in different jurisdictions. They no longer have to travel vast distances in order to confer with each other about the similar problems they confront as each is sitting in his or her particular jurisdiction.

The following quote is an example of email collaboration. It is a small part of the advice the author (a South Australian magistrate seconded into a Youth Court in order to implement new legislation setting up a family conference system) received from Judge David Harvey of the New Zealand District Court, by email, in 1994:-

'Our Children and Young Persons and Their Families Act 1989 contains two major foci - one is towards the 'welfarist' model which deals with the care and protection of children... The other is towards the Youth Justice model which is directed towards criminal behaviour of young people between 14 and 17.

The Youth Justice model focuses upon responsibility - of the young person for his/her offending and of the family, for their young person.

The Family Group Conference (FGC) is an essential part of this, and underpins the policies and principles that are set out in the Act and which guide us in case of doubt.

Many cases of offending never get to Court. They are the subject of a pre-trial FGC conducted by the Police, the family and the Youth Justice Co-Ordinator and are diverted -a resolution is reached and is enforced by the family. The aim is to keep young people away from Court.

Where cases do come to Court, the matter may be denied, in which case a hearing of the evidence takes place, or it is not denied. In all cases where there is a 'not denied' or liability is established, the matter is referred to a FGC for consideration by the participants. The victim may be present and must be consulted where not present so that his/her/their views may be ascertained. In 90% of the cases the FGC will arise at a suitable resolution which is implemented by the Court.

We are required, where possible, to implement the recommendations of the FGC. There have to be very good reasons for going beyond those recommendations.

Thus ALL cases go to an FGC at some stage.

If you want to look at the issue of detention of young people against the background of the principles of the Act, see my paper on 'Secure Detention of Young People in Residence in New Zealand', Australian Institute of Criminology Conference Proceedings No.25 - National Conference on Juvenile Detention

The fundamental goal of the process is to empower families to find solutions for dealing with their young, to have them and their young take responsibility. Families know their children better than I do. They are more qualified to make an appropriate recommendation.

Recidivism on the part of those who have gone through Youth Justice is falling. The system...has received a considerable amount of support from the Police, who see the long-term advantages.'

3.5.4 Education and E-conferences

The possibilities were discussed by the author in a paper entitled 'New Directions for AAWJ Members' prepared for the Australian Association of Women Judges, which was published in Newsletter No. 3, July 1997. It is reproduced here, in full:-

'When the Association was formed, the women who joined did not contemplate that they would be able to hold meetings. There are too few members. They are too widely separated. A newsletter and maybe some informal get togethers, piggybacked on other conferences, were all that we could hope for.

Physical meetings may be impractical. But new developments in communications technology mean that meetings are not out of the question.

Every one of us works in a court which has networked computers passing information from one site to another. Communication via a keyboard remains a core use of 'networked networks'.

But there is already relatively inexpensive technology which means that people separated by thousands of miles can speak to each other for the cost of a local telephone call, using ordinary telephone lines. With a little extra hardware they can see each other at the same time, or they can orally discuss written work which is visible on the screens of the people speaking together.

Not only meetings, but also national and international conferences are both possible and practicable; so are continuing collaborative research projects.

It was not necessary to be in Beijing to know what was happening at the UN womens' conference. It was probably harder to know what was actually happening if you were there. Australian women, via Beijing and a large computer in Melbourne were at the forefront of the electronic field, broadcasting to the world what was happening as it happened. Some of the major papers, delivered orally, were on-line, for anyone to read, within hours.

When the next international conference of women judges happens, we could all be there, whenever we could spare the time away from ordinary tasks.

We would need at least one person on site with a modem, a personal computer and the software and hardware to transmit sound and pictures. At the bottom of the range, the SoundBlaster camera is no bigger than a hair dryer.

We would need another computer sorting out the sound and pictures coming in, and the permission of the organisers to relay any documents or presentations which were the subject of copyright.

Those of us at home could hear, watch and read, whenever we got the chance to switch on the computer and the modem.

Better yet, we could organise our own international and national conferences, and transmit them to other judges and magistrates around the world. We could set up our own electronic publication site for publishing the papers about women and the law that are 'too specialist' for ordinary commercial publishers to touch, as LawNet is doing, or we could use one of the existing electronic publication sites.

We could set up judicial further education programmes which people could undertake in privacy. I would prefer to study any gender awareness course, about men, in privacy. Male judges and magistrates may feel the same way about gender awareness courses for them.

Instead of having nowhere to go, now there are too many roads to go down. We shall have to choose between them. If we don't start looking at our choices, we will wither away as technology changes our everyday world. That would be a great pity. The reasons for having an Association like this have not, and will not, go away.

Association members are no longer limited by distance. We are only limited by our own ability to acquire new skills and set new goals.'

3.6 Choosing Tools

IT tools are no different to precedents: they are servants, not masters.

New information technology usually falls into one of three categories:-

new technology; or
the same technology used in a different way; or
the same technology used for a new purpose.

To introduce new technology into the magistrate's working day is to introduce change. Making information technology changes is an investment. Sometimes money is invested, sometimes time is invested. The returns maybe in time, or in standards, or both. It is still necessary to distinguish between good investments and bad investments.

The author experiments with different hardware and many kinds of software, but ultimately adopts few of them as a permanent companions on the road to Bordertown. A simple test is applied before new hardware or software is adopted:-

Will adoption mean that she can do the same work at the same standard, but in less time?; and
Will adoption mean that she can work of a higher standard within the same time?

If the answer to both questions is 'no', then there is no point in changing, no point in adopting the hardware or the software as a companion on the road to Bordertown. There will be no return on the investment, whether the investment is an investment of time spent mastering the hardware or the software, or the investment is an investment of money spent acquiring the hardware or software.

If the answer to one of the questions is 'Yes', then it is necessary to ask another question:-

Will the returns justify the investment?

Often the answer is 'no'.

3.7 Understanding Limits

There are key design concepts to look at, separate and apart from the strengths and weaknesses of the particular tools.

In the law of negligence, we have never attempted to define all of the possible ways in which one person can behave negligently towards another person, for the possibilities are infinite. Instead, we look at the boundaries: who are the parties and do they have a proximate relationship? If so, what is the nature and scope of that proximate relationship? Did the defendant's acts come within the nature and scope of the proximate relationship? Did the defendant's acts cause the harm the plaintiff suffered? Is the harm suffered by the plaintiff harm which amounts to a loss?

By looking at the boundaries, we can identify whether or not we ought to interfere with an existing status quo. So too with information technology. The possibilities are infinite.

The best IT system is the one which is easy for the user to learn to use and which the user wants to learn because the user can see at the outset that in the long run he or she will be able to reach the same point in less time, and a net time saving will be achieved in the medium and longer term.

Magistrates need to understand the limiting factors which apply in relation to new forms of information technology, so that we can ask of ourselves: What are the natures of the decisions I am making, all day, every day? Are there other ways of making these decisions? Can I use IT to do make them? If I do, should I automate the methods I am already using? Should I repeat them, or innovate, or re-engineer?

The information technology adviser needs to know and understand the user's limits. The user needs to know and understand the information technology limits. Anything less will produce an unhappy user, one who is disappointed that the technology does not do the things the user hoped for.

3.8 In the Beginning

When the author began using new information technology in the form of a personal computer loaded with word processing and spreadsheet software, she was automating. She used a computer instead of pen and paper, to make the same notes she had always made, to do the same arithmetic she had always done.

Until 1993, when she was in court she used the same technology as the magistrates before her had used for more than a 100 years. She could read the court reports in the Port Adelaide shipping gazettes of the 1880s and know that in the 1980s she sat in the same court rooms, hearing the same sorts of charges, the same kinds of allegations, the same earnest submissions. Even some of the surnames were the same. The 'drunk' charges had gone, but the drunks remained.

Files looked exactly as they had looked in the Mount Gambier magistrates courts of the 1890s. The magistrate of the 1920s used a similar benchbook. Scanned images of examples are online (http://members.iinet.net.au/~rosmci/magistra3.htm).

In the library, she could reach for the same books as the magistrate could reach for in 1880. As she sat in the same courtroom and chambers a hundred years after the shipping gazettes went to print, she made her notes in a bench book, using a pen. She used the same information technology as did the magistrates who wnet before her. A telephone had been installed, but it had no real place in her daily work.

She cannot tell you what sort of information technology will be used by the magistrates at Port Adelaide when statutory senility advances on her in the 2020s. But it will not be pen and paper, and the telephone will not be a trendy accessory sitting on the edge of the chambers desk.

3.9 Big Changes

By 1998, a computer already sits on the corner of the author's desk, dwarfing the telephone and connecting me to an intranet and the Internet. In court, she uses a laptop instead of a bench book. She no longer reaches for the book of statutes, or the scissors and sticky tape for the eternal amendments to the statutes.

From the Internet, over the phone, she downloads Acts replete with amendments, usually from the Australian Legal Information Institute .

When she need case law, she is no longer restricted to the superior court decisions handed down in Adelaide, South Australia. She can read how judges in even higher courts dealt with the same issues: in Canada, in Washington, in Canberra, in London.

Instead of following through the indices from the general to the particular . . . criminal law, property offences, unlawful possession . . . she follows keywords from the particular to the general, following them through electronic law libraries. The danger is that she will be diverted. If she asks a search engine about 'law' and 'cambridge university', gems such as 'the answers to frequently asked questions about Sumerian mythology' turn up in the reference list generated by a general search engine.

Inside the courtroom, instead of a bench book full of illegible scrawl, half done indices of part heard cases, and intricate doodling, she has a hard disk full of legible fonts, and files indexed in at least 4 ways.

3.10 Why bother?

Because the age of leisure has gone. Time bears down on every front. It takes time to sticky tape those statutory amendments, time to search those common law indices, time to index those notes from aging part heard trials. There are more productive ways to spend the same time.

After a year of using a computer, the author found it reduced, by hours, the time it took her to get a judgment from being a mental concept to being a typed statement of reasons for decision in the hands of the parties. It reduced the time spent searching for notes about particular passages of evidence. It reduced the amount of time spent making arithmetic calculations. For the first time in her life, she was getting the same total whenever she added up the same column of numbers.

For news of new tools that may be useful, it is worth keeping an eye on the CNet website , a huge repository of useful information containing articles which are not filled with the jargon of the computing trade.

3.11 Hardware

The question of hardware needs to be addressed from the outset. Hardware limits define the outer perimeters of what can be done. Software which requires 16M of working memory, RAM, will not run on a machine which has 8M.

To change hardware half way through designing a system is extraordinarily expensive. If halfway through development the user decides that they are not happy about the system and what it is going to do, and the changes cannot be made without changing the hardware, then the result is exactly the same as occurs when a person building a house completely changes their mind about the bathroom layout just after the first fix plumbing has been completed. Changing horses in mid stream is a very expensive business, and one very likely to result in becoming embroiled a very ugly dispute.

Some hardware is better than other hardware for reasons connected to yet other hardware. This is an area where good IT advice is critical. Understanding the advice is equally important.

Hardware has to be able to cope with extra hardware being added on if the need arises. Windows95 swept the world not just because of the marketing but also because it is 'plug and play'. It overcame hardware limitations. New hardware items could now be added relatively easily. It was no longer necessary to do battle with the existing hardware system when trying to add new hardware such as a flatbed scanner.

Hardware which cannot cope with frequent moves between different court rooms in different cities and towns and rough country roads is unsuited to the requirements of magistrates who wish to introduce computers into court rooms in the course of their daily work. 'Notebooks' cost more than 'desktops', but they return much better value for every dollar invested in them.

3.12 Integrity

In the context of IT tools, integrity means that the whole system works. It is integrated. If it were a family, a social worker would describe it as a functional unit.

An integrated system can be built. It will not necessarily do what the user wants it to do, nor is it necessarily a system which is easy to use. Most of the integrated systems used in courts are built from the top down. They are devised by high level partnerships, for use by users working at a lower level in the court hierarchy. At least some users will be users working by rote, users who have no idea what purpose the integrated system is meant to achieve.

Systems can also be built from the bottom up, grown like pot plants, as with the author's system, or the systems used by the New Zealand District Court judges in New Zealand who take notebook computers with them from court to court.

When they do this, judges and magistrates need to know the limitations of their hardware and their software. They need to be able to answer the question 'Is there any software that I can adapt so that I can do this job more quickly without lowering the quality of my work?'

If they intend to ask and answer this question while they are inside a working court room, before they enter the court room they need to ensure that they know everything they will need to know if they going to be doing this 'on the fly'. Read a book about the program, a book written in plain English, is usually much easier than wading through the jargon of the manual or the 'Help' file.

If it is possible to adapt an integrated system to the user's needs, this is far less work than trying to build an integrated system from scratch. A system designed to cater for a wide range of users is more flexible than any purpose built program can ever be. The more specifically software is fitted to a particular use, the less flexible it becomes. There is less chance of being able to either change hardware or add new functions to the existing software.

There is software magistrates have not even begun to look, software which is already integrated. There is no reason why magistrates should not be using MSProject or program of that kind when they are planning, particularly when they are developing automated systems or preparing for public relations activities. Had the author used this software before accepting the AIJA invitation to be one of their presenters at their Courts and Technology Conference, it is unlikely she would have accepted the AIJA invitation. She would have realised, as she detailed the individual tasks to be performed, just how much work she was letting myself in for, long before the realisation in fact dawned on her.

3.13 Related Questions

Another question for judges and magistrates designing their own systems is this:- 'Is there any software I can use to produce a more just outcome for the people whose lives are affected by the decisions I make?'

Any software means a matter can be dealt with on the spot, at the time, instead of the matter being adjourning, is software which lessens agony for litigants. Once litigants know what the outcome of the case is, they can begin to cope. Not knowing is harder to bear than losing a trial or receiving a sentence of imprisonment which is longer than the sentence was expected to be.

Just as 'integrity' raises new issues when judges and magistrates enter cyberspace, so does 'equity'.

There are few treatises on judicial ethics to help judges and magistrates think through the issues they confronting as they set about introducing IT into working court rooms. These issues are outside the scope of this paper, other than to say that the principles of natural justice work just as well when they are working in cyberspace.

3.14 Hyperlinking

The personal computer has become one of the most widely used forms of information technology, but as yet it has been widely used inside working court rooms. A personal computer is of limited use unless it is loaded with software which serves the user's purpose.

Software that has become commonplace in and around courts and law firms includes word processing software, spreadsheets, and databases. This kind of software is most useful when used to store information or as an aid to linear forms of thinking. The book of precedents is easily automated, using the database and the word processor. The spreadsheet is ideal for costing, for storing details of the work that has been done and adding up the bill sent out to the client when the file is closed.

The personal computer swept the world when Visicalc spreadsheets were devised for Apple computers. In the ensuing excitement, the focus remained a focus on software for linear thinking.

Legal thinking has never been linear thinking. Legal thinking is concerned with identifying repeated patterns, both in the facts and in the law to be applied to the facts. Information is selected from many sources, the pattern of relevant facts is identified, the pattern of relevant statutes and cases is identified, and the pattern of law is applied to the pattern of fact in order to reach a single outcome. The final process may be a discrete algorithm, but the earlier processes are not.

At the outset, when Turing's ideas of a calculator working in bytes were being transformed into early computers by Von Neumann and other great thinkers of the 1940s, they envisaged two ways of using computers. The first was the process of storing and processing information in the ways that personal computer users have become familiar with as the have used the software of the last decade.

The second kind of computer they envisaged was a computer recognising links between different pieces of information, in the midst of multiple pieces of information. In a famous article published in the Atlantic Monthly in July 1945, ' As We May Think ', Vannevar Bush identified the problem presented by ever increasing volumes of information:-

'There is a growing mountain of research. But there is increased evidence that we are being bogged down today as specialization extends. The investigator is staggered by the findings and conclusions of thousands of other workers - conclusions which he cannot find time to grasp, much less to remember, as they appear. Yet specialization becomes increasingly necessary for progress, and the effort to bridge between disciplines is correspondingly superficial.

Professionally our methods of transmitting and reviewing the results of research are generations old and by now are totally inadequate for their purpose. If the aggregate time spent in writing scholarly works and in reading them could be evaluated, the ratio between these amounts of time might well be startling. Those who conscientiously attempt to keep abreast of current thought, even in restricted fields, by close and continuous reading might well shy away from an examination calculated to show how much of the previous month's efforts could be produced on call.'

He saw machines as aids to the elimination of time consuming repetitive thought processes:-

'Much needs to occur, however, between the collection of data and observations, the extraction of parallel material from the existing record, and the final insertion of new material into the general body of the common record. For mature thought there is no mechanical substitute. But creative thought and essentially repetitive thought are very different things. For the latter there are, and may be, powerful mechanical aids.

Adding a column of figures is a repetitive thought process, and it was long ago properly relegated to the machine. True, the machine is sometimes controlled by the keyboard, and thought of a sort enters in reading the figures and poking the corresponding keys, but even this is avoidable.'

He also saw machines as aids to selecting information by tracing associations, and he had in mind lawyers as well as scientists:-

'The real heart of the matter of selection, however, goes deeper than a lag in the adoption of mechanisms by libraries, or a lack of development of devices for their use. Our ineptitude in getting at the record is largely caused by the artificiality of systems of indexing. When data of any sort are placed in storage, they are filed alphabetically or numerically, and information is found (when it is) by tracing it down from subclass to subclass. It can be in only one place, unless duplicates are used; one has to have rules as to which path will locate it, and the rules are cumbersome. Having found one item, moreover, one has to emerge from the system and re-enter on a new path.

The human mind does not work that way. It operates by association. With one item in its grasp, it snaps instantly to the next that is suggested by the association of thoughts, in accordance with some intricate web of trails carried by the cells of the brain. It has other characteristics, of course; trails that are not frequently followed are prone to fade, items are not fully permanent, memory is transitory. Yet the speed of action, the intricacy of trails, the detail of mental pictures, is awe-inspiring beyond all else in nature.

Man cannot hope fully to duplicate this mental process artificially, but he certainly ought to be able to learn from it. In minor ways he may even improve, for his records have relative permanency. The first idea, however, to be drawn from the analogy concerns selection. Selection by association, rather than by indexing, may yet be mechanized. One cannot hope thus to equal the speed and flexibility with which the mind follows an associative trail, but it should be possible to beat the mind decisively in regard to the permanence and clarity of the items resurrected from storage.'

It took time, but the concept of hyper linking has been developed, and it is available to every judge and magistrate in the world. It is the tool they have been waiting for.

The familiar word processor can replace pen and bench book, notes made as an aid for the memory, a crutch for the majority who do not have 'tape recorder memories'. The spreadsheet can aid the calculations. The database can replace the library catalogue. None of them 'mechanize associative trails'.

Hyperlinking creates associative trails. Hyperlinking is not restricted to links within text. It lies beneath the World Wide Web and three dimensional graphic imaging. Hyperlinking software offers to courts and lawyers new tools. These tools are just as valuable for lawyers, judges and magistrates as spreadsheets and databases have been for accountants.

Some cases have lots of facts, or lots of exhibits, or lots of documents. It is not easy to fit them into the 'in and out' routine of the magistrates court, so often they become part heard, with months passing in between the different days of the hearing. In one case in the Australian Capital Territory, Dau v Emanuele , the trial was held 'on and off' over a period of at least six years.

If there are 50 charges, 37 witnesses and three times as many exhibits, word processors and spreadsheets help but it is a messy business. The whole point of using software is to avoid messes. It makes more sense to have one record of the whole linked to many different angles, for there to be dynamic and object oriented access to the information as well as access to the whole of the raw data.

For associative indexing of text, or text and images, two kinds of hyper-linking software are readily available.

Firstly, there is the WYSWYG html editor, such as MSFrontPage . Multiple pages are stored within a single electronic document, with hyperlinks within pages and between pages. The difficulty is that building indices is a painful process.

Nonetheless, software like this is ideally suited to keeping linked trails during trials where there are multiple related facts or multiple charges, if the magistrate has learnt to use it. During a trial, the bench notes or the transcript of the evidence or both can be linked to the exhibits list, the witness list, and any other categories of information which the magistrate sees they need, including pages containing draft findings of fact and law.

Such documents may be difficult to search for specific information, unless an overall index is prepared as the pages are being built. Selecting a selection of associations can become difficult, for the software is designed for the authors of World Wide Web pages.

Where there are multiple unrelated pieces of information, it is much easier to use a hyperlinking word processor such as Trellix . Within the document, there can be a new page for a new day, the whole of the document can easily be mapped, and the whole document can be searched for key words. It has never been easier to keep track of the many files handled per day in a general criminal magistrates court handling pleas, remands and adjournments.

3.15 Sight

Imaging software can be used to store copies of exhibits, to resolve contested evidence, to record events occurring inside the court room and to allow people who are physically elsewhere to view or participate in court proceedings.

Siting of cameras inside courtrooms in itself raises many new issues outside the scope of this article. The natural reaction of people inside the court room is to interact with an image on a screen, not the camera which takes the picture being projected. Videotaped police interviews are already showing courts more than the triers of fact will see at trial. Whole body shots show the silent signals sent by body language. Unconscious movements are captured on the tape, as well as the words and the telling pauses . . . head on the side, staring deep into the interviewer's eyes, wondering just how much the interviewing officer actually knows. Equally, the helplessness of the victim of the scam, the person who unwittingly bought the stolen goods, comes through in a way which written transcript cannot capture.

The camera is soon forgotten by the people in the room. But the camera, whether in a virtual court or a police video room creates a special focus, just as the physical layout of the court room creates a special focus.

Inside the court room, more is created than the special focus which helps the trier of fact to get to the heart of the evidence. A witness 'comfort zone' exists, the witness box. Hands and feet are hidden away behind the wooden walls. Is face to face really the best way of assessing demeanour, or would it be better if 'comfort zones' were created with cameras, instead of wood?

The nature of criminal trials has not changed in the hundred years since Mr. Justice Stephen described them as a form of warfare in a 'controlled battlefield'. Often civil trials are even more fiercely contested.

Will cameras be able to meet the needs of the 'controlled battlefield'?

Much of what follows next is reasonably current information which will be swept into oblivion by new developments.

3.16 Graphics

Still images can be drawn or scanned into a vector based graphics program such as Adobe Illustrator or CorelDraw (eg: .gif; .cdr; .eps files). Still images can be created, dot by dot, pixel by pixel, in a photoediting package such as Adobe Photoshop or PaintshopPro (eg: .tif; .jpg; .psd files).

Image scanners and digital cameras are usually set up to transmit files in 'photodrawing mode', where the image is recorded in a pixel by pixel format.

As well as scanning an image, there is optical character recognition. OCR tries to reproduce the content of text rather than record an image which happens to contain text.

Big new developments are occurring in three dimensional graphics. VRML editors build three dimensional images, where the same information can be examined from many different angles.

3.17 Sound

Sound files usually come in one two forms: digital sound recordings, and specific instructions to produce particular sounds. An audio CD-rom can be recorded in a digital file while it plays in the CD-rom drive. Sound can be digitally recorded by using a microphone. Digital sound recordings store records of sounds, in a digital format such as .wav or .au . With longer recordings, digital sound files are not easy to compress down to manageable sizes.

Alternatively, computer sound cards can be instructed to produce specific sounds in a particular sequence. When a midi file (.mid ) is played, the computer is following a set of instructions contained in a relatively small file. A midi author has to prepare each and every instruction. Midi files do not reproduce human speech very well, for the sounds are too complex for the author to produce instructions for the computer. As technology develops, this is likely to change.

3.18 Video

Personal computer video is still in its infancy, but it has arrived. The limitations are related to the capacity of the hardware rather than inherent in the software.

Video Screen Capture software captures changes as they pass across the face of a computer screen. It does not record sound. It is designed to record information rather than to communicate information. Sound can be glued around it, for example by using the html tags which create web pages, but sound cannot be attached to a particular image. Images only come from the screen of the computer, although a capture card can expand the range of material which can be displayed on the screen.

Animated compressed images are often referred to as 'animated gifs'. Software is used to create highly compressed images fixed in layers. It does not record sound. It is designed to communicate small amounts of information in a form which appears to be mobile, using the same principles as were used by the authors of cartoons like the original 'Felix the Cat'. Sound can be glued around the images, for example by using an html editor to create a link between the image and the sound, but sound cannot be integrated into a particular image. Only 'still' images can be used, whether they are vector based or whether they are created dot by dot, pixel by pixel, in a photo-drawing program. Still images can be drawn in a vector based graphics program such as Adobe Illustrator or CorelDraw (eg: .gif; .cdr; .eps files). Still images can be created, dot by dot, pixel by pixel, in a photo-editing package such as Adobe Photoshop or PaintshopPro (eg: .tif; .jpg; .psd files). Image scanners usually transmit in 'photo-drawing mode', where the image is recorded in a pixel by pixel format.

'Animated gifs' are likely to appear in court rooms because they are an easy and useful way to illustrate oral evidence. However, there are limits to the amount of information which can be packed into a single 'animated .gif'.

Video editing and production software is part of a new generation of very competitively priced software. Sound is attached to images before the computer file is created, and a digital video produced. It is not as flexible as hyper-linking, but it does have the advantage that the sound and vision files which are merged cannot easily be separated.

Either still images or previously recorded moving images, the frames, are strung one after the other. More than one sound can be added, either throughout the progression or by attaching the sound to a particular image. Special effects can be created at points between individual frames. Files are produced and recorded in forms suited to storage and playback on the same computer or network (e.g. .avi files), or they can be produced and recorded in a compressed form designed for easy communication (eg .mov; .mpeg ).

Like 'animated gifs', digital video is likely to first enter the court room in company with parties seeking to supplement or clarify the oral evidence which is given.

In the years ahead, judges and magistrates will still need support staff. Support staff will producing audio and video as well as text. Audio and video production is time-consuming. Clerical staff can perform these production tasks more cheaply and more efficiently than judges and magistrates, just as they are better at recording shorthand and typing transcripts. It makes no sense to pay a decision making wage and then put the decision maker to work on rote clerical tasks, even if the rote tasks involve working in a new medium.

3.19 Streaming

'Streaming' is a transport mechanism for moving large video or sound files from one computer to another. It is probably the first step along the road to integrating television and the Internet, and it is an area where the new developments are breaking quickly. Instead of having to wait for the whole of a video or audio file to download, the viewer is able to watch the video, or listen to the sound, while the download is in progress.

Video or sound files are processed through software which encodes intructions for setting the file to play before the recipient downloads the whole of the file. On the Internet, basic encoders and players are distributed for free by large commercial software vendors who also sell much more sophisticated encoding products. The players are designed to run as part of major software browsers.

3.20 Voice Control/Voice Activated Software

The author is learning to build sounds for, and to use, voice control software. This software is now relatively inexpensive and it has the capacity to replace the dictaphone, the keyboard and the mouse, but it will only be of use when working outside the court room. It is not yet sophisticated enough to cope with multiple voices inside the court room. Making bench notes orally is not practical. The magistrate orally making notes would disrupt the flow of evidence during trials.

Voice software is sophisticated enough to use when putting data into programs such as word processors and spreadsheets, or for switching between software programs, and for switching between windows within programs. Putting sound data directly into another program avoids huge sound files accumulating on a hard disk with a limited capacity.

3.21 Artificial Life Software

Sound recognition software normally uses 'neural nets' to recognise patterns. This is a fast developing area, where Artificial Life and Artificial Intelligence research is being applied to create new software. Its potential in decision support software is discussed in another section.

'Artificial Life' is not just about computer viruses. It also deals with the emergence of complex adaptive systems, and the conditions these systems need in order to keep evolving without falling apart in chaos or fossilising and dying. It is at least arguable that legal systems as well as economies are complex adaptive systems where the actions of individual agents (at multiple levels) creates systems that seem to have lives of their own. When it comes to looking at the systems they work with, courts and lawyers are a long way behind the physicists, the economists, the biologists and the archaeologists.

If you read nothing else about computers, it is worth coming to grips with the some of the basic concepts of 'Artificial Life' and 'Artificial Intelligence' research. The bibliography contains references to two directories listing relevant URLs. Concepts such as complex adaptive systems, emergent phenomena and non-linear dynamic systems offer intriguing possibilities of new insights into the trial process, the sentencing range and the legal system as a whole, at every level where individual agents are experiencing positive and negative feedback when reacting to the circumstances in which they find themselves.

3.22 The Author's Toolkit

Apart from the notebook computer itself, the three new pieces of hardware the author has added to her tool kit are the mobile phone, the modem and the CDRom drive. She sometimes use a digital camera, but so far there has been no need to use it at work. She is experimenting with adding a sound microphone. She has not added a flatbed scanner to the notebook, because it may not hold up to the rigours of country roads., but she does use a flatbed scanner with a desktop computer when she is at home, both for optical character recognition and for image scanning.

Software has been added to the tool kit. The author started with a word processor, and then a spreadsheet. She still use a word processor and a spreadsheet, but they are not the options of first resort. MSOffice95, containing Word and Excel, is the software the South Australian 'whole of government' agreement means that she is required to be able to use. The other programs in the Office suite are not particularly useful to her.

A program that looked useful in the early days was Lotus Improv, a dynamic spreadsheet, but like the desktop database programs, it would not hold enough information to be of use to her. What was interesting was that it could be used to build twelve hyper-links between pieces of data. Lotus Notes is one of its descendants. It has retains some of the inflexibility of its spreadsheet ancestor. Its real value is that there is now far more room for each item stored in it, and there is capacity for 'keyword search'.

When the author was seconded to administer a Youth Court, in addition to arithmetic, the spreadsheet enabled her to easily monitor changes in rates of offending and manage caseflow management, simply by entering and manipulating details from cause lists and outcome notes made on them. In building work cases, or other cases where there is reference to lists of numbers, she makes bench notes in a spreadsheet, not a word processor.

Next came a graphics program, CorelDraw3, for working with bitmap and vector images, as scanning was on the horizon. An upgrade has never been needed.

When scanning arrived, it became clear that a photographic imaging program would also be needed. Adobe Photoshop 4 proved to be ideal. She is now learning video production, using VideoWave. (VRML, three dimensional virtual reality imaging, will be next after that).

After graphics, the choice was either learning programming, which looked to be a one way street in inflexibility, or coming to grips with communications technology, no easy task in 1994, the days of Telix, Zmodem, initialisation strings and other nasties. By 1994, she had reached the Internet, only to find she had to learn enough about Unix to be able to get around using a Unix shell, then the only type of account readily available in Adelaide, South Australia.

The first html editor that she acquired was the original HotDog. It was an excellent piece of software to use as an educational aid. It was absolutely no use in court. It was not WYSIWYG.

Meanwhile back on the Internet the browser revolution had begun. The World Wide Web was coming in, and The Australian Legal Information Institute began to build an enormous electronic law library better than any other library the author could access with ease. When MSFrontPage was released, a web authoring tool, it was the first html editor which made using an html editor in court a viable option. She uses this software (in preference to a wordprocessor) when hearing trials, as it makes it easier to keep track of associated pieces of evidence.

In general criminal courts, hearing applications for bail and adjournments and remands, and finalising guilty pleas, the answer has proved to be a Word compatible word processor called Trellix, which has sophisticated mapping and frame facilities. It is likely that as Trellix develops, it will become her ideal word processing tool.

She is currently building a dictionary in Kurzweil Voice, an inexpensive commercial voice control and dictating package. The bulk of her investment is an investment of her time. The real cost will be the time it takes to build a dictionary, at home, at night. It is not worthwhile for her to wait for new developments, for when this happens she will need to upgrade the hardware that she uses before I can use the new software. Sound software is resource hungry.

Sound software is still relatively primitive, but it will enable her to dictate straight into the word processor and the spreadsheet, and switch between them, using software which has a 30,000 word vocabulary, speaking at a rate of 100 words a minute, using a microphone.

3.23 In a perfect world...

The author is still waiting for an ideal program suite, one she can use for making bench notes and storing exhibits and reading transcript and analysing evidence and writing judgments, both now and in ten years time.

In this system, there will be a simple wordprocessor, and a simple spreadsheet which does not contain hundreds of financial functions.

All the hardware will work, separately and together, and it will never run out of RAM. All the programs will be integrated in the desktop suite and the desktop suite will be integrated with a completely automated court diary and case management system operated by the court system. Every exhibit will be scanned in, using the scanner. There will be a video capture card. The line to the Internet will always be open.

In the desktop suite, there will be an oral dictaphone, and the voice control software will be easy to add to the suite, without spending hours building 'sound banks'.

The desktop suite will have a WYSWYG word processor based hyperlinking program to use in court, whatever the case, and it will also be a web browser. This super hyper-linker will have the flexibility of an html editor based on the concepts of the word processor rather than the concepts of the spreadsheet, but it will have a site search engine included, perhaps one borrowed from the databases, that will work in both the word processor and in the browser. The author will be able to find, quickly, the tiny but vital scrap of evidence she did not realise she would need to hyper-link.

These programs will mesh seamlessly with the WYSWYG VRML editor used to analyse evidence, and with the vector-based and photo-drawing editors, and the video-production software where the reasons for decision will be produced. The author will be able to work on any document, and with anyone else anywhere in the world, be they witness or peer or party, using the video conferencing software and the digital videocamera. If she is really lucky, someone will develop user friendly decision support software which will integrate into the suite.

Everything in the desktop suite will fit with the project management software integrating the handling of her unrelated projects (reserved judgments; partheard trials; presentations), all of which have to be fitted into the working days on top of the new work coming in each day.

There will be no spaghetti jungle of cords. The system will work when the computer is beyond the limits of electricity grids and telephone lines. It will run, whether it is being operated via the keyboard or via voice control software. It will be a video conference centre as well as a study, where documents can be accessed and 'documents' can be created.

This study-cum-conference centre will bring court to people in new ways, ways they can afford to access because the costs created by time have been decimated; responses within hours and days instead of months and years. It will resolve the disputes people need resolved if they are to have the confidence to trade. It will be the court which provides protection for the traders and their families, in their lives and in their transactions, locally, nationally, internationally.

But sometimes the study-cum-conference centre will need to be at Bordertown, to hear the voice of the Bordertown community. In the courts of the virtual world, judges and magistrates may lose their ears. If they lose their ears, they lose their way.

4. Conclusion

The question is not whether IT can assist judges and magistrates to deal with the changes in the world around them.

The real question is whether judges, magistrates and court administrators are up to the task of using IT to cope in a changing world. Or whether, as the electronic generation grows up, paper based judges and magistrates working in the public court system will diminish into an oblivion of illiteracy, put out to grass by private alternatives.

Large private large firms have not backed away from the challenges inherent in confronting a world changed by information technology. An arbitration is, after all, a private court. There is no reason why people cannot use private courts to resolve small disputes as well as large ones.

References

Acts

Magistrates Act

Summary Procedures Act

Cases

R. v. Veen (No.2) (1988) 164 CLR 465

R. v. Lowe (1984) 154 CLR 606

R. v M., C.A (Supreme Court of Canada)

Dau v. Emanuele Full Federal Court of Australia No. ACTG25 of 1995, FED No.995/95

Texts

The Story of Burnt Njal ( As We May Think ', Atlantic Monthly July 1945

Conferences

Australian Institute of Judicial Administration Technology for Justice Conference, Melbourne, Australia, March 1998 <http://www.austlii.edu.au/conferences/techjust/>

Mr John Lloyd, Dun and Bradstreet, 'Directions in the Commercial World', Australian Institute of Judicial Administration Technology for Justice Conference, Melbourne, Australia, March 1998 <http://www.austlii.edu.au/conferences/techjust/papers.htm>

Scanned documents

Archives of the Border Watch newspaper, offices of the Border Watch newspaper, 81 Commercial Street East, Mount Gambier, South Australia 5290.

Mt. Gambier magistrates court documents archived at Mt. Gambier Library. <http://www.wantree.com.au/~rosmci/magistra3.htm>

'The Criminal Law of England', Mr. Justice Stephen, Macmillan & Co., London 1883, Volume I, page 432. <http://users.wantree.com.au/~rosmci//stephen2.htm>

Links to Uniform Resource Locators (URLs)

South East Online's Tourism Guide to the South East of South Australia <http://www.seol.net.au/tse/guide.htm>

Kaniamania < http://www.kaniamania.com/>

Online Ombuds Office <http://www-legal.sbs.umass.edu/center/ombuds/>

Dispute resolution flow chart <http://128.119.199.27/process/>

CNet < http://cnet.com/>

Australian Legal Information Institute < http://www.austlii.edu.au >

MSFrontPage < http://www.microsoft.com/>

Trellix < http://www.trellix.com >

Links to Uniform Resource Locators (URLs): Artificial Life

AI on the Web < http://www.cs.berkeley.edu/~russell/ai.html >

LogicAL <http://uu-gna.mit.edu:8001/~napoli/LAMBDA/logical.html>

Last revised: Wed 23 Feb 2005

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You are here: BAILII >> Databases >> United Kingdom Journals >> Bordertown and the Globalisation of Justice Using Computers in an Australian Magistrates Court (R McInnes) [1998] JILT 35 (1998) URL: http://www.bailii.org/uk/other/journals/JILT/1998/mcinnes_2.html Cite as: [1998] JILT 35

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