As the world is combating the COVID-19 outbreak, Malaysia is not exempted from the virus. The public and courts alike has had to learn to adopt and adapt to this new environment and “live” with COVID-19.
The Malaysian Judiciary formulated comprehensive Standard Operating Procedures (hereinafter referred to as “SOP”) which allows the administration to run and thus ensuring accessibility to justice. Most courts are back to business where strict SOP and guidelines are in place such as social distancing and remote hearing. Before this pandemic, the court buildings are almost always crowded with court staff and the public. That being said, to minimise the risk of exposure to COVID-19, social distancing and remote hearings are necessary.
The Judge or Registrar, may on his own motion, order the hearing of the instant matter to be conducted remotely. All parties are required to adhere to court etiquette and attire strictly regardless of whether the hearing is being conducted remotely or physically. Such as, the manner of the parties to address the Court, parties need to give full attention during the proceedings and counsels present are all required to dress in court attire even though the hearing is conducted in the counsel’s office. Generally, there is not too big a difference between conducting a trial remotely or physically. However, there are some notable pros and cons of a trial via Zoom.
Reduce the spread of COVID-19
This new norm will significantly minimise the risk of spreading COVID-19. Parties will stay at their respective location such as an office or house. Parties will not require going to the court building.
All parties will stay in their respective offices when the trial is going. The environment and feeling will be different when the parties are in a courtroom. The witness will be less intimidated and anxious; he or she may feel much more comfortable than giving evidence in the courtroom.
The strength and internet speed may be one of the most worrying things when conducting a trial remotely. We often experience slow internet speed in Malaysia and this will affect the efficiency and quality of the trial particularly when the witness is giving evidence.
One of the main purposes of cross-examination is to observe the witness’s demeanour and body language. The demeanour and body language of a witness plays an important role as it may indicate a lack of confidence in the answer. A trial via Zoom may lose this purpose as the Judge and counsel will find it hard to observe the witness via Zoom.
There is a risk that the witness does not hear the question properly or the witness does not hear a portion of the testimony before he or she answers. The witness may choose not to ask for clarification before they answered.
The Judge may find it hard to control a witness when a trial via zoom as compared to a trial in an open court.
The counsel will need extra time to share the screen in order to view the relevant documents. Extra time needed if the parties experience slow internet speed. Parties may find it uncomfortable in looking at the laptop screen for a few hours and they may request for an “eye-ball rest”.
There is a Remote Hearing Protocol, Practice and Procedures which sets out the protocol to conduct the remote hearing during the restrictions on movement.
There are “safeguards” being proposed when there is a trial via zoom, such as:
1. The witness shall attend and give evidence from a location agreed by the parties;
2. An independent supervising solicitor will supervise when the witness is giving evidence;
3. There will be an audio-visual recording of the entire hearing; and
4. Multiples cameras may be requested to be placed in a room when the witness is giving evidence.
The purposes of these safeguards are to ensure the followings:
1. The Court and the parties have full sight of the witness during the remote hearing;
2. To ensure that the witness is not being coached when the witness is giving evidence;
3. To ensure that it will not prejudice the fair trial of the instant matter;
4. To ensure that the witness does not possess any communications devices from a third party;
Malaysia is facing the COVID-19 outbreak and this shall not halt allow the administration and accessibility to justice. Conducting a trial via zoom or remotely is becoming the new norm in Malaysia for the purpose to minimise the risk of spreading the COVID-19. The legal industry shall continue the adoption of modern technology. However, more safeguards should be formulated to ensure that there should be no prejudice to the fair trial.
Jeff Ho Chan Chon