Virtual hearings were not unheard of pre-2020. The family courts for years experimented with allowing counsel to appear virtually for pre-trial conferences subject to certain conditions being satisfied. Likewise the State Courts, although the response was lukewarm. Teething issues with technology for the conduct of virtual hearings were never really properly ironed out; or perhaps the inertia was because the lawyers preferred the camaraderie of bantering in person.

The Supreme Court has never had an established practice of allowing counsel to appear virtually. Physical hearings were the norm. Applications for witnesses outside Singapore to give evidence at trial by video-link had to fall within set parameters, and would be scrutinised by both opposing counsel and the Court. By and large the preference of the Courts was, and probably still is, for witnesses to be physically present to allay fears of witness-coaching and so that judges can observe witness demeanour.

Covid-19 changed some, but not all of this. Now, almost all hearings which involve only counsel (and no witnesses) are conducted virtually. These include pre-trial conferences and proceedings in chambers, whether contested or otherwise. A side effect of this has been a massive reduction in paper usage, since most judicial officers have also stopped accepting hard copy bundles from counsel. This has not made hearings less effective, though, as the screen sharing function on Zoom brings all parties onto literally the same page when necessary and expedient.

Trials, and in particular criminal trials, remain the exception to the new normal. These are still conducted physically. A key change perhaps is that the bar for applications for a witness to give evidence by video-link has been somewhat lowered (in a loose practical sense of the word), especially where that witness can provide a cogent reason for why he or she is unable to travel physically.

The Court of Appeal has also embraced virtual hearings. For some, being questioned from the comfort of one’s own office can never equal the intensity of riposting with the eminent Justices of Appeal in the gran-deur of the Court of Appeal. For others, it is a welcome relief.

It took a pandemic to move the courtroom online. This is a strong tell-tale that is was inertia, and not technological deficiencies, that was holding us back. The question, then, is where next will technology take us, if we let it?

 

Chooi
 

For more information please contact Chooi Jing Yen at E: jingyen@thuraisingam.com.

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