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Computerisation of Law Resources |
LAW VIA THE INTERNET CONFERENCE, VANUATU, 17th-19th November 2005
Gayle Davies.
PUBLIC INFORMATION OR PUBLIC PROTECTION – FROM INTRANET TO INTERNET?
THE CONVERSION OF NSW COURT OF CRIMINAL APPEAL JUDGMENTS TO ELECTRONIC FORMAT
Abstract: This paper describes the project carried out by the Library of the Office of the Director of Public Prosecutions (NSW), by which its collection of over 9,000 Court of Criminal Appeal judgments dating from the 1940s, was converted from paper to electronic format, including the recent conversion of the document images to searchable text. The paper provides details of the costs and benefits of the project, and examples of the ways in which full-text searching increases the usefulness of the database. Concludes by emphasising the requirement for editorial intervention before the database can be made publicly available on the Internet, due to the prohibitions on publication of names under the Children (Criminal Proceedings) Act 1987, s.11 and s. 578A of the Crimes Act.
The Office of the Director of Public Prosecutions (NSW) (ODPP) was established by the Director of Public Prosecutions Act 1986 (the DPP Act) and commenced operation on 13 July 1987.
The ODPP conducts matters involving offences under the laws of New South Wales in every jurisdiction in the State and in the High Court. In brief, the ODPP conducts/acts in the following criminal matters:
| • | Trials for indictable offences in the District Court and the Supreme Court. |
| • | Committal proceedings for indictable offences in the Local Court. |
| • | Summary hearings in the Local Court in relation to a limited class of matters |
| • | Appeals in the District Court in relation to summary matters. |
| • | Appeals in the Court of Criminal Appeal and the High Court. |
| • | Appeals in the Supreme Court and the Court of Appeal. |
Court of Criminal Appeal, the appeal process, and ODPP’s involvement.
The NSW Court of Criminal Appeal was established by the Criminal Appeal Act 1912. The Court of Criminal Appeal is usually constituted of three judges, but for certain types of matters, for example, when sentence appeals do not involve a dispute on any issue of legal principle, it can be limited to one or two judges. For other types of matters, it can be expanded to five. (see for example, the Guideline judgment in R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209). The majority view prevails.
The Judges hearing any particular case are selected by the Chief Justice, from the President of the Court of Appeal, the Judges of Appeal, the Chief Judge and other nominated Judges of the Common Law Division. The number of judges on the bench is relevant when indexing, or when searching for judgments – for example, a research question is often broached as “I remember a judgment of X which said that........”. In the case of Castiglione (see below), the judgments were written separately by each judge, and had become detached from each other, and were filed as two separate judgments – one with the judgments of Clancy and Walsh, the other with the judgment of Sugerman. The library’s index link was linked to only the first judgment, even though Sugerman is included in the Coram field. They have now been put back together in the version below.
The Act provides for a number of different kinds of Appeals to the Court of Criminal Appeal, including appeals from criminal cases dealt with by the Land and Environment Court, the Court of Coal Mines Regulation in its summary jurisdiction, and from sentences imposed by the Drug Court of NSW.
There are a number of grounds for appeal including a challenge to a conviction involving a question of law. The Court of Criminal Appeal may also grant leave to appeal in matters involving questions of fact or mixed questions of fact and law. It may also grant leave to appeal in cases where the severity or adequacy of the sentence is challenged.
To appeal to the High Court from the Court of Criminal Appeal, a special permission must be granted by the High Court.
The Office of the Director of Public Prosecutions, representing the Crown, is involved in the following kinds of Appeals :
| • | Appeals by a convicted person, against conviction or sentence or both. |
| • | Appeals by the Crown against manifestly inadequate sentences |
| • | Appeals against reduced sentences for assistance to the authorities |
| • | Appeals against the quashing of an indictment |
| • | Interlocutory appeals |
| • | Appeals on questions of law |
| • | Inquiries into a conviction |
Reporting of Court of Criminal Appeal judgments, and use of unreported judgments:
The Court of Criminal Appeal Practice Note SC CCA 1 (dated 14th October 2005) requires that:
3.1 where reliance is to be placed on an authority which is unreported, the party citing that authority shall attach a copy of the unreported judgment to the list of authorities. An authority published on Caselaw (see Lawlink below) with a case neutral citation is not considered by the Court to be a reported judgment.
There is a heavy reliance on unreported cases in the criminal jurisdiction, because only about 10% of all CCA judgments are reported – either in the NSW LR’s, and the A Crim R’s or both. The NSW Law Reports carry reports of all jurisdictions of the Supreme Court of New South Wales, and the Australian Criminal Reports carry reports from all Australian States and Territories as well as the High Court. The New South Wales Law Reports series commenced in 1971. The series preceding the NSWLR’s were the State Reports of NSW which ran from 1900 to 1970. The Australian Criminal Reports series commenced in 1979.
The ODPP’s Research Unit makes all decisions from the Court of Criminal Appeal available on its Intranet on the day they are handed down. This has only been possible since the early 1990s, when the Supreme Court began to make its judgments available in electronic format (as Word documents). Earlier selected unreported judgments have been retrospectively converted to Word format. Note that the Austlii collection of NSW Supreme Court decisions begins in 1995. This contains Court of Criminal Appeal decisions. The separate collection of Court of Criminal Appeal decisions dates from 1999. Court of Criminal Appeal decisions from 1999 are also available on Lawlink in CaseLaw NSW. http://www.lawlink.nsw.gov.au/lawlink/caselaw/ll_caselaw.nsf/pages/cl_index
The database of CCA judgments was inherited from the office of the Clerk of the Peace, when the new Office of the DPP was established in 1987. The collection has been built up with judgments received since then, as well as with selected judgments and reported decisions from other jurisdictions.
In 1997, the ODPP had no internal email, and no Intranet. It did have the Research Unit’s large internal database going back to 1900, of judgments received from the Judicial Commission of NSW as Word documents from 1989 onwards, selected judgments retrospectively converted to Word, and the NSW Law Reports and State Reports of NSW, which had been obtained in text format from CLIRS (the first project for the conversion of law reports to electronic format).
The paper copies of unreported CCA Judgments occupied 16 filing cabinets taking up an entire semi-secure room in the ODPP Library. They were retrievable by a computerised index which was available only to the Library staff, on one stand-alone PC. These judgments were the ones used as authorities in Court, and they were “NOT FOR LOAN”, so they were always photocopied, faxed, etc.
The Library Index was by Judge (s), Name (s) of accused; Court; Year; Reporting details, and Notes – sometimes, but not always, keywords were included. The Judgments Index made very creative use of the database software available at the time – for example, it allowed large fields, so that all the judges’ names could be fitted into one field, separated by a comma, rather than having separate fields for each Judge’s name. But, in cases where there were multiple accused tried together (such as the Milperra massacre case- see below), separate index entries were created for each accused – e.g. Annakin and others.
Victims’ names were not indexed.
The index had taken approximately two years of library staff time to compile, as indexing was done in addition to all the other aspects of maintaining a library service in a rapidly expanding office (as well as serving the Head Office, the ODPP library serves ten Regional offices of the Office of the DPP throughout NSW).
The Index was converted to make it accessible to all staff, via the Library Management System on the newly established ODPP Intranet in 1998.
Judgments Index – searching:
Search page showing searchable fields (Name, Judge, Year/Exact date)
Judgments Index search Judge and Year - results.doc
Search by Judge and Exact date
In 2001, the Head Office of the ODPP underwent a physical re-fit of its building. The room housing the filing cabinets containing the CCA judgments collection was required to provide offices for staff.
The physical documents themselves were becoming increasingly frail, due to frequent handling, photocopying, faxing etc. It was decided to convert them to electronic format, and to send the original paper versions to the NSW State Records Office.
Quotations were then obtained for scanning them as .pdf files – which meant they would be scanned as images, but not converted into searchable text.
The Australian Securities and Investment Commission Information Processing Centre in Victoria was selected, on the recommendation of Court librarians in other jurisdictions, who had carried out similar scanning projects.
ASIC carried out the scanning and compiled an index based on the Library’s index at a total cost: $21,727.75.
Example of scanned .pdf version - R v Castiglione (original image – not searchable).
In 2002 the Judgments Archive was made available to the Judicial Commission of NSW, because there was insufficient space on the ODPP server. This meant that the database was available to all subscribers to JIRS – the Judicial Information Research System, but they were not searchable by subject or key-word.
In 2003, a large amount of server space was made available to the ODPP Library, and the .pdf versions of the judgments were installed, and linked to the Library’s Judgments Index.
In the meantime, the New South Wales Council of Law Reporting had begun to make the NSW Law Reports available in searchable .pdf format via CD-ROM (in the back of the bound volume), from Volume 58, 2000, and the Library had been copying the reported criminal cases from the CD-ROM to the Library’s Judgments folder on the server.
Early this year, Optimus-Prime, the vendor of the FIRST Library Management System, announced that they had developed a full-text search facility for electronic documents.
The ODPP Library implemented the facility, but found that, although it searched the NSW Law Reports perfectly, no results were coming from the unreported CCA judgments archive, because they had been scanned as images, not text. They needed to be converted to searchable format.
This is easy to do for individual documents, using the Paper Capture Plug-in to Adobe Version 5, or up-grading to Adobe 6 or 7 scanning software, but it would have been a lengthy task to convert over 9,000 documents. A method for bulk processing was required. ASIC were again asked to quote – but their conversion would have used Omnipage Professional, which would have converted the scanned image to Word format.
The advice of the ODPP’s Information Management and Technology Manager was sought to see whether there might be an in-house capability for bulk processing.
It happened that Itec, the ODPP’s IT consultants, had developed a "Paper Capture" architecture for use with the ODPP CASES system. This allows documents to be scanned directly to matters, email mailboxes or the IDMS (Electronic Document Management) using routing slips inserted into the document stack.
This works in conjunction with the "send" capability built in to the photocopiers throughout the ODPP and Adobe Paper Capture software, to perform the conversions.
Itec modified this program to process the large volume of files from the library which would normally have been arriving from the various photocopiers (scanners) around the organisation.
Advantages of searchable PDF particularly for legal documents.
Turns hard copy documents into a searchable resource without losing the historic "Image".
Provides the combined benefits of a true "image" of the original document (including signatures and hand written annotations) with the searching and cut/paste benefits of an OCRed version of the document.
Overcomes the problems of errors associated with a pure OCR copy of the document.
The Images in the ODPP’s CCA Judgments database provide a record of technological change in Courts – from typing and carbon paper copies with Judges’ annotations and changes, to electric typewriters, to PCs and the Internet.
R v Castiglione – searchable version
Note that the ODPP makes both the non-searchable image and the searchable version of each judgment available, because the searchable version sometimes distorts the text. The image (read-only) version is still used for production in Court. This means that double the amount of space is required on the server to house both versions. Note also: the files cannot be housed in sub-folders, they must be spread out within one folder only, for indexing. The two versions are housed in separate folders, because documents with the same file name cannot be housed in the same folder. The total space on the server now occupied by the ODPP Library’s electronic documents collection is 2.5 gigabytes.
Uses of the CCA judgments database – full-text searching facility:
Legal research:
As approx. 90% of the contents are not reported – may bring to light significant judgments which perhaps should have been reported, but were not thought to be significant at the time. For example, of the 10% which are reported, very few deal with Sentencing law. See McHugh J’s comments in R v Markarian (2005) 215 ALR 213; 79 ALJR 1048; [2005] HCA 25 “What Jordan CJ said in R v Geddes [1936] NSWStRp 35; (1936) 36 SR (NSW) 554 at 555-556 about the reality of the sentencing process has never been bettered and probably has never been equalled. With the passage of time, it is no longer cited as frequently as it once was. But the whole judgment repays careful study. I make no apology for setting out the crucial passage, lengthy though it is.....”
Can be used like a citator – by searching on case-names
Can be searched on key-words, facts, legal words and phrases.
Can be searched on legal concepts
Scientific evidence – forensics – identification – what was done before DNA? The earliest judgments where DNA occurs are from the early 1990s. For example,
R v Wayne Green 26/3/1993, (unreported) Gleeson, CJ, Cripps, JA and Abadee J, there is a lengthy discussion by Cripps JA, of the use of DNA evidence, the process by which it is obtained – agreed to by Gleeson and Abadee.
Criminological research:
Content analysis, for example: of judicial attitudes; community attitudes – for example, towards the death penalty Example 1: search results for exact phrase “death penalty”
Example 2: search results for exact phrase “sentence of death”
Work of the Court of Criminal Appeal – increases in case load – compare number of judgments in the decade of 1940s (72) with the number of judgments for the decade of the 1980s (5880).
Comparing the courts’ response with the media portrayal of well-known crimes or offenders
Sentencing trends
Particular types of offence – were there “waves” at certain times?
Can be searched on place-names e.g Milperra – Example: search results for Milperra massacre:
Milperra massacre judgments: Click here and here
Drugs – popularity of different drugs at different times, appearances of new drugs and drug crimes; note: search on both chemical names and, “street” names eg check out first occurrence of “ecstasy”
Interesting unintended results – for example, a search on “severity appeals” included in its results, an appeal for a reduction in the non-parole period of her sentence, by a woman convicted of rape. Click here to read the facts of the case: R v Eades
Public education – what judges take into account in sentencing decisions - why they- increase or decrease sentences , why they acquit some appellants, or why they uphold convictions (see also McHugh J’s comments in Markarian, above).
Social history research – for Sydney and NSW in the second half of the twentieth century. Much can be discerned about a city’s history from its criminal history – see ABC Hindsight Program.
Sydney social history – significance:
http://www.abc.net.au/rn/history/hindsight/stories/s1333087.htm
3 April 2005
The Thallium Enthusiasms
Summary:
A strange crime wave hit Sydney in the early 1950s, when a rash of poisonings spread through the city and suburbs. Most cases were domestic in nature and involved the use of thallium, a toxic substance that is odourless, colourless and tasteless, and which formed the basis for a rat bait commonly used in homes at this time. A number of the more notorious incidents were perpetrated by women, including the case of Mrs Caroline Grills, a grandmother, who was alleged to have poisoned seven family members and friends, and who became known as 'Aunt Thally'.
'...the crime of murder is a terrible one, and when the killing is by means of an insidious poison, secretly administered within the family circle to an unsuspecting victim, which destroys him mentally and physically, while permitting him to linger on for months in wretched agony then the crime is a horrible one...'
Over a twelve-month period, from the middle of 1952, six women in Sydney were charged with poisoning family members. The press coverage of these cases was unprecedented, and the poisonings, along with a series of related petty crimes at the time, captured and held the public imagination. Set against the backdrop of the Cold War, this program explores the social and historical context for the 'thallium enthusiasms', and asks why women were so frequently at the centre of these crimes.
Example: Search results on “thallium”
Mrs Grills case – Original image Searchable image
Conclusion:
The conversion to searchable format has enabled the database of Court of Criminal Appeal judgments to be viewed, and their value re-assessed, in a variety of ways, but it has also brought to light an important issue, which needs to be considered before they can be made publicly available on Austlii. Because the judgments cover the years before the Children (Criminal Proceedings) Act 1987 came into force, with its prohibitions (s.11) on the publication of the names of child witnesses and child offenders, it is now possible to find, just by random searching, instances where children have been named.
Similarly, in decisions made before s. 578A of the Crimes Act, which was also inserted in 1987, adult victims of sexual assault are sometimes named.
The searchable format judgments have been made available to the Judicial Commission of NSW, which may consider seeking advice from the Crown Solicitor as to the impact of the various legislative provisions which place restrictions on publication, before proceeding further.
Whether or not the legislation is deemed to apply retrospectively to Court records, victims and witnesses are still entitled to privacy and protection, even if the offence occurred over 30 years ago. Before making the judgments database available to the public on Austlii, the judgments will require extensive editing, to blank out victims’ names, and any other identifying features, such as addresses, siblings’ names, parents’ names, witnesses etc.
Thus, the conversion of the judgments to searchable format has not yet rendered them publishable on the Internet, but it has certainly facilitated what would otherwise have been a laborious editorial process.
--------------------------------------------------------------------------------
Acknowledgments:
Thanks to Hop Nguyen, Manager of the ODPP’s Information Management and Technology Branch for his immediate, knowledgeable, and generous response to my request for assistance with the bulk conversion process, and to Julie Wilson of the IM & T Branch, for her care and skill in overseeing the process.
Thanks to Carolyn Griffiths, Acting Manager, ODPP Court of Criminal Appeal Unit, for assistance with explaining the ODPP’s role in relation to the CCA.
Thanks to Naz Bruni, the ODPP’s High Court Research Lawyer, for reading the draft of this paper, and for his “remarks on sentencing”.
Thanks to Helen Cunningham, the ODPP’s Principal Research Lawyer, for proof-reading the draft and for her encouraging comments.
Contacts:
Conversion of paper documents to .pdf images:
ASIC – Australian Securities and Investment Commission Information Processing Centre, 14-22 Grey Street, Traralgon Victoria 3841
Enquiries: (03) 5177 3988
Our contact: Tony Smith
Indexing and full-text searching:
Library Management System is FIRST by Optimus-Prime, Melbourne. Has full-text search capability for electronic documents. http://www.optimus-prime.com
ODPP’s IT consultants:
iTec Software Pty Ltd
3 East Avenue, Cammeray, Sydney NSW 2062, Australia
Phone: +61 2 9460 3221 Fax: +61 2 9777 0124 Email: sales@iTec-Software.com
Ian Steventon Email: Ian@iTec-Software.com
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