While courts now have broad discretion to allow evidence and submissions by way of phone, videolink or other forms of communication, the line is developing in NSW that witnesses required for cross-examination must attend court in person, absent good reason.

The courts are proving reluctant to allow evidence by videolink where the evidence is central to a case and where cross-examination involves documentary examination or a challenge to credibility.

In a recent case in the Land and Environment Court, a witness who had moved interstate to Victoria applied to have their evidence heard by videolink from the local court in Bendigo. In support of the application was that travelling to Sydney for the hearing would take eight to ten hours, and incur significant cost, compared to a two-hour trip at minimal cost to give evidence in Bendigo. The court rejected the application on the basis that the witness’s credibility was to be challenged and cross-examination would involve documents.

In another court, while the judge said courts should strongly encourage cost-effective and reliable technology even if it delivers a product not as good as evidence given in person, he noted there would be exceptional cases where there were good grounds for proceeding with the tried and true, and rejected allowing two UK residents who refused to travel to Sydney, to give evidence via videolink from London. He found the case was an exceptional one where the cross-examiner and the court would be at a real disadvantage in dealing with the credibility of the witnesses, the witnesses’ evidence was centrally important and the cross-examination likely to be long and complex, since it was taking the witnesses through a minimum of 18 volumes of documents.