TECHNOLOGY

SYSTEM UPGRADE REQUIRED

UNDERPAID jurors should be relieved of the burden of resolving increasingly complex evidence in criminal trials with the help of special assessors or a panel of judges, says a senior NSW Supreme Court judge.

Justice Peter McClellan, the chief judge of the court's common law division, also said the extraordinary and accelerating developments in knowledge, particularly in medical science, meant that in the next decade courts would have to consider an increase in the use of specialist referees to analyse and report on either part or all of a civil dispute.

And despite the extra cost, it might also be necessary in some matters to consider whether judges should sit with expert assessors to advise and assist.

Presenting his view of the Australian justice system in 2020 to a National Judicial College of Australia conference at the weekend, Justice McClellan outlined key areas for reform. These included embracing the use of telephone, video and the internet to help streamline processes and reduce costs and modifying the civil process to encourage the leading experts in a particular field, many of whom now refuse to testify because their opinion can be torn down by a skilful barrister.

With time our jury system would evolve in response to contemporary issues, Justice McClellan said, with the "potential need for constitutional change". The return several years ago to using jurors in defamation trials, in which they decide all but the amount of damages, was "a mistake". Not only could they increase the length of a defamation case by three times that of a hearing before a judge alone but the legal costs could potentially be more than the capped damages for non-economic loss of $280,500, which brought its own injustice, the judge said. Errors that were obvious from the written reasons of a judge could be corrected by a higher court, unlike the "substantially impenetrable" decision of a jury that gave a series of answers on imputations and defences.

Urgent attention was needed to improve the form and relevance of evidence in criminal trials, Justice McClellan said. This was partly due to electronic surveillance and other types of sophisticated investigation that add to trial lengths. Jurors lost track of issues and of what weight to give sections of evidence, he said, referring to the case in which a District Court jury was discharged this year after members were found playing Sudoku after listening to long periods of silence on hours of surveillance audiotape.

Last year the NSW Law Reform Commission rejected the notion of using special juries of scientific, accounting and financial specialists to help resolve complex evidence. But Justice McClellan suggested that assessors could be incorporated into the judicial process as "the intricacies of taxation law or the workings of derivative markets" would prove difficult for tertiary-educated jurors as well as many judges without the necessary background.

"The demand for truth of outcome, resistance to the inconvenience and personal cost of jury service, together with the increasing complexity of some trials may ultimately make demands for modification of the existing adversary jury trial irresistible," he said.

- Jennifer Cooke

LAWYER'S LAG IN THE TECH WORLD

Technology was late to come to the world of lawyers and solicitors, long known for quill pens and steno pads, but now that it has arrived, it is spreading briskly. Modern-day law firms, especially megafirms with offices around the world, rely heavily on a vast array of specialized software that helps them run nearly every aspect of their operations. From docketing cases to tracking hours to managing litigation to calculating bills, most legal practices depend on technological solutions.

A primary driver of this evolution is the need for law firms to keep pace with the technology used by their corporate clients.The explosion of electronic discovery has also forced law firms to become more tech-savvy. Technology has become critical to most industries, of course. But the legal profession resisted the age of technology much longer than many others.

During electronic discovery, countless documents, files, phone records, and electronic correspondence are mined in civil litigation. Software can be used to comb through e-mail systems and identify key information, sparing lawyers or legal assistants the task of reading through hundreds or even thousands of e-mails in search of important data. Litigators tend to be at the cutting edge of technological advances because they rely on high-tech software to manage their cases and impress juries during trials. It has been my experience that smaller practitioners particularly those over 40 often to the detrement of their clients - refuse to move into the technological age with many saying they're fine the way they are, and they really want to leave it to the next generation to change. This can often be a costly decision as demonstrated in the following story!

Derek Taylor

HEARTBREAKING BUG

SYDNEY is in the grip of an infidelity epidemic, with more than 1000 people a month wanting to monitor their partner's every word and move. At least, that's what private investigators would have you believe.

According to one, Luke Athens, suspicious spouses are spending thousands of dollars to have tracking boxes fitted under cars, their partner's deleted text messages read and gifts delivered with cameras and listening devices hidden inside. He said yesterday he cannot keep up with demand. "I don't know what is going on out there, but business is absolutely booming."

His company, Heartbreakers, carries out sweeps for listening devices on Sydney homes every week and says one in five come up positive. He says people are buying bugs on eBay for as little as $120 and hiding them behind powerpoint covers or in light fittings. It is not illegal to buy or own bugs but it is illegal to use them without the consent of the person being bugged. "Anyone can do it - and they are," Mr Athens said. "It's not paranoia, because if I am finding bugs in [one in] every five houses I check, it speaks for itself. People out there are cheating and their partners want to know about it."

But the days of a private investigator sitting outside snapping photos are long gone. "We can carry out surveillance without ever going near you," Mr Athens said. Laser beams bounced off a window from up to five kilometres away will pick up most conversations, while satellite tracking boxes magnetically attached to a car can pinpoint the position of a vehicle for up to two weeks. Simple software can transform any mobile phone into a listening device and messages, deleted weeks ago, can be retrieved within minutes.

"But we're not Cheaters," he said, in reference to the American television show in which women throw handbags and punches at their philandering partners. Mr Athens offers clients free counselling, either alone or with their partner.

"We don't confront partners. It's degrading and messy. Most people just want confirmation of what they already know." Warren Mallard, the managing director of Lyonswood Investigations, said infidelity cases had been increasing since the development of the contraceptive pill, which allowed women to "do what men have been getting away with for years" and had surged again since sexually transmitted diseases became more prevalent.

Source: SMH (Kate Benson)
Photo: Brendan Esposito (SMH)

THE BIG INTERNET LAND GRAB

AUSTRALIAN internet entrepreneurs are earning millions of dollars each year by spotting the true value of what's in a name.

The so-called "Domainers" search out generic or popular names that have not been turned into websites and then register them for as little as $7.60 - names such as bedroomfurniture.com.

"Domain parking" is estimated to be worth more than $1 billion worldwide and Australia's market is growing.

The Australian Domain Name Administrator (auDA), the governing body for all domains ending in "dot au", will lift a ban on the sale of dot au domains in June, opening an expected thriving market in their sale. AuDA chief Chris Disspain said the ban was being lifted because "it made no sense".

Domainers can cram the websites with advertisements, then leave them idle and sit back as they earn a few cents per click - big bucks when you have a portfolio of thousands.

Their owners say they supply people with a service, providing information on topics they're interested in, including furniture and publishing.

Parking and domain trader Dark Blue Sea, a public company based in Brisbane, has a portfolio of 550,000 domains through its subsidiary, Fabulous, believed to be the second biggest holding in the world. Last financial year it reported a profit of more than $3.5 million through advertising revenue and domain sales.

Dan Warner, chief strategy officer, values the company's portfolio at a staggering $500 million.

The company recently sold bedroomfurniture.com for about $280,000. It bought the site for about $40,000 several years ago.

Mr Warner said other domains the company holds such as Manufacture.com, Doctorate.com and Publishing.net are good examples of names bound to draw a lot of traffic.

"Domain names can be great assets as they cost very little to hold, and if you do nothing more than buy them and stick them in a drawer for a few years they can sell for large returns," Mr Warner said.

Source: The Sun-Herald (Reid Sexton)