5. Remote Vulnerable Witnesses, Complainants and Victims
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- 2026
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Abstract
Introduction
So far, this book has surveyed relevant literature, legislation and caselaw to provide theoretically derived (Chapter ‘Digital Criminology, Vulnerability Theories and Digital Vulnerability’) and legally derived understandings of vulnerability and the range of special measures available for vulnerable individuals (Chapter ‘What Is Vulnerability in Criminal Justice?’). But what happens in practice and courts? Chapters ‘Remote Vulnerable Witnesses, Complainants and Victims’, ‘Remote Vulnerable Defendants’ and ‘Future Visions of Digitalised Criminal Justice’ draw on 175 interview and survey responses from judicial officers, lawyers and affiliated criminal justice professionals to reveal professionally derived understandings of vulnerability, and the use of remote communication technologies, now and into the future.
In this chapter, the empirical dataset is thematically analysed to highlight the rationales and advantages of using pre-recorded evidence from police interviews as well as remote communication technologies, including CCTV and AVL, for vulnerable witnesses, complainants and victims (hereinafter, ‘vulnerable witnesses’) for giving their best evidence. In this chapter, the dataset shows real benefits for such vulnerable witnesses in being remote from the intimidatory and re-traumatising courtroom, and accused person. In this context, digital communication technologies can be conceptualised as techniques of mitigation, supporting resilience (as explained in Chapter ‘Digital Criminology, Vulnerability Theories and Digital Vulnerability’), ameliorating vulnerability and enabling best evidence. However, interview and survey respondents also identified complexities and some disadvantages that challenge the wholesale use of pre-recordings and remote witness facilities.
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What Is Vulnerability?
While Chapter ‘What Is Vulnerability in Criminal Justice?’ demonstrated strict legislative definitions of vulnerability, survey and interview data reveal broader understandings of vulnerability in practice. Survey respondents expressed concern that some people do not fall within narrowly defined provisions and may be ineligible to make use of special measures. As we saw in literature reviewed in Chapter ‘What Is Vulnerability in Criminal Justice?’ (e.g. Owusu-Bempah, 2020), almost everyone that enters the criminal justice system, on either side, falls ‘into a category of vulnerability. Not the defined legislation definition, but most people would be [vulnerable]’ (P11). According to P11, vulnerabilities stem from mental and physical disabilities, or learning/coping inabilities, as well as the court’s ‘very foreign, sterile environment that’s incredibly formal’. Many interviewees focused on the innate vulnerabilities of children, and vulnerabilities arising from the nature of the offending, including sexual matters, family violence and fatalities (WAS1). Vulnerabilities arise because ‘a lot of kids have had a difficult start … difficult home life’, often having been in state care, so: ‘we see a lot of additional layers of vulnerability and challenge and poverty’ (P18). WAS2 explained that if someone is a victim/survivor of family violence or sexual assault, they would be automatically considered vulnerable, noting there may be compounding layers of vulnerability arising from cognitive impairment, mental illness, substance abuse and communication needs, rendering them ‘more vulnerable’. The speech, language and communication needs of individuals were highlighted by a witness intermediary as leading to vulnerability. Such communication needs might arise from a developmental language disorder, autism, foetal alcohol syndrome, intellectual disability, mental health difficulties, stroke, neurological or neurodegenerative conditions, or motor neurone disease (Wi1). P16 suggested that Aboriginal and Torres Strait Islander peoples dealing with the justice system present ‘probably the biggest, one of the greatest areas of vulnerability. Partly because of the lack of interpreters’. DCJ1 summed up their experience of vulnerability:
in terms of greatest degree of complexity, it would be five-year-old child, English as a second or third language, raised on a remote island in the Torres Strait. Interpreter in Torres Strait Creole.
How Is Vulnerability Identified?
Survey respondents detailed how the assessment of vulnerability is framed by the legislative definitions meaning that certain individuals are automatically treated as vulnerable. This is the case for sexual assault complainants who, after being flagged, work closely with the witness assistance staff who are ‘well trained in identifying particular vulnerabilities’ (P9). The survey responses highlighted the significant role of these witness assistance services, in addition to police officers and intermediaries, in identifying vulnerability. For instance, a Witness Assistance Officer explained the process:
I conduct a social work assessment upon commencement of the prosecution process—looking at their family circumstances, housing/financial circumstances, mental health, the impact of the crime, disability/health issues, concerns about court, and their formal and informal support network.
Survey respondents referred to psychosocial assessments, cognitive capacity testing, the importance of pre-trial conferencing as well as self-identification. Some surveyed lawyers commented that they drew on their professional experience in assessing an individual’s ability to understand, interact, communicate, explain and repeat information. P13 stated that vulnerabilities often become apparent when screening the brief for the nature of the crime, indications of cognitive impairment, or if the witness is a First Nations person. Witness intermediaries focus on assessing witnesses’ ‘ability to participate in the legal processes’ (Wi1) and then make recommendations for the ground rules hearing based on that assessment process (see Jacobson & Cooper, 2020).
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A survey respondent suggested that vulnerable individuals are not always identified, flagged or supported properly. This is not the fault of the technologies, which can pick up ‘even the most subtle markers’, but ‘rather a lack of awareness… meaning vulnerability markers are missed’. According to survey responses, there are barriers to assessing vulnerabilities including time pressures, police sometimes lacking training in identifying vulnerability, and the ‘ad hoc’ use of witness intermediaries and justice advocacy services. There are barriers in legal teams’ understanding and resources. Some vulnerabilities are not obvious, for instance, difficulties in ‘reading and writing often fall through gaps’, and some individuals ‘may not want to highlight vulnerabilities’. Whether an individual is to be treated as vulnerable is, according to one respondent, ‘subject to the views of the judiciary. These views are not always consistent,’ suggesting a level of unpredictability.
How Are Vulnerable Witnesses Supported?
Most survey responses related to vulnerable witnesses and highlighted the many beneficial supports: pre-recorded interviews, remote witness suites, AVL/CCTV, victim/survivor and witness assistance services, and intermediaries. As discussed in preceding chapters, these measures are supported by considerable scholarship (e.g. Cashmore & Shackel, 2018; Fairclough, 2023). Survey respondents highlighted diverse individual needs for support, for instance:
It clearly depends on the vulnerability. As a prosecutor, I specifically make time and room to discuss a person’s vulnerability with them and any measure they would like or consider receiving to assist the individual. I then often rely on legislative entitlements to those adjustments, or seek the consent of defendant representatives where there is no legislative provision. Generally speaking, most practitioners engage in positive dialogue and in good faith about vulnerabilities of witnesses etc. without much adversarialism—most people want to get the best from a witness.
Interview responses recognised the ‘heightened need’ for additional supports at the problematic time of court activity (WAS2). Courts have benefited from being less traumatic due to greater attention being paid to the communication needs of witnesses (DCJ1), the use of remote witness suites and the presence of support people (survey respondent). Beneficial supports identified by survey respondents include court companions, structured breaks in proceedings, processes of familiarising the witness with the court facilities, trauma-informed specific court planning, assistance dogs, hearing loops, interpreters, comfort strategies (e.g. fidget toys and drawing materials), coloured post-it notes and signs to communicate distress, adjustment of questioning style, clear language, visual aide-memoires, and liaison with support services, psychoeducation and crisis counselling. Despite all the supports, P15 felt that nothing ‘makes this process easy’ for vulnerable witnesses because the criminal justice system is just so hard when they have to re-live ‘horrific events’. But P7 was optimistic that ‘all these strengthening factors’ support witnesses to get ‘some meaning out of this system’.
Witness Intermediaries
In conjunction with remote modes, interviewees were supportive of witness intermediaries, stating they’re ‘very, very helpful’ (M4), ‘amazing’ and ‘everyone should have a witness intermediary’ to reduce stress (P12). Wi1 emphasised the intermediary’s role as ‘making communication between an individual with communication needs and the police or the courts as effective as possible, so that the witness … is able to give as accurate, complete and reliable evidence as they’re able to do’. Such trauma-informed approaches support individuals’ coping mechanisms and abilities to coherently testify (Judicial Commission, 2022; Kendall, 2024).
Judicial perspectives showed how intermediaries are useful in framing questions that a witness can be fairly expected to respond to and proposing creative solutions ‘which the court wouldn’t have thought of’ such as using picture cards, improving the quality and reliability of the witness’ evidence (SCJ5). SCJ6 had encountered very good witness intermediaries who assisted parties and counsel to structure questions appropriately and who were circumspect in interrupting proceedings.
On the other hand, SCJ1 argued that the use of witness intermediaries is ‘all bunk … a nonsense, woke idea’ because the prosecution and police ‘should be trained to question child witnesses, vulnerable people, properly themselves. We shouldn’t need some intervening person’. SCJ1 described witness intermediaries as ‘introducing an extra complication’ that insulates the vulnerable witness from ‘really deep scrutiny’. DCJ2 was cynical about intermediaries, suggesting that they ‘provide props’, a comment made in reference to an interview with a remote child, presented on a bed with a dog and fluffy toys. Defence lawyer, DL22, suggested that witness intermediaries prepare almost identical, ‘cookie cutter’ reports and intrude unhelpfully into cross-examination.
What Is the Interplay Between Vulnerability and AVL?
Getting to the crux of this study, participants were asked about the interplay between vulnerability and remote modes (hereinafter referred to as AVL). For remote vulnerable witnesses, the thematic analysis points to circumstances where AVL promotes resilience, that is, the capacity to withstand or overcome the adversity of criminal process, and provides a technique in mitigating digital vulnerability. However, there are also some complexities and limitations revealed by the dataset.
Victim Conferencing
Regarding establishing trust and rapport with remote vulnerable witnesses during victim conferencing and victim proofing meetings, interviewed prosecutors discussed the challenges when there is no physical or emotional proximity. P2 stated that AVL:
just made it so much harder for me to connect with [a remote complainant] to be able to reassure her … there came a point at which I realised she was actually crying and I hadn’t been able to gauge that. So that was a failure.
P3 shared that they prefer ‘that one-on-one, that face-to-face conversation’ with their vulnerable witnesses for rapport building. There are difficulties in establishing rapport during sensitive victim proofing meetings by AVL with people who do not speak English as their first language or where there is a ‘cultural disconnect’ (P16). Some child victims cannot engage well with the AVL (P18). WAS4 thought that proofing for children ‘needs to preferably be done with everyone in one shared space’ because ‘it’s really difficult to build a rapport over the screen’.
Pre-recorded Police Interviews
While legislation enables pre-recorded evidence hearings for certain vulnerable witnesses,1 many participants raised issues regarding pre-recorded police interviews. Pre-recorded evidence can assist in contemporaneously capturing a complainant’s experience, supporting recall and minimising their need to repeat the evidence, however, there are limitations where the complainant is difficult to engage with, the police interviewer is less experienced, or when technical issues arise (P17). Following my caselaw analysis (Chapter ‘What Is Vulnerability in Criminal Justice?’), my dataset reveals issues when the complainant cannot be well seen, or it cannot be determined who is speaking. P17 explained that in police interview rooms, the camera might be poorly placed, providing blurry images and bad audio. P15 had experienced a pre-recorded police interview being in such ‘a really darkened room’, it was inadmissible. P17 felt that police need greater training in interviewing vulnerable witnesses if pre-recorded interviews are to be used as evidence-in-chief. P17 had a pre-recorded interview ruled inadmissible because some prerequisite questions weren’t asked of a child to confirm that they knew the difference between the truth and a lie. DCJ2 had seen pre-recorded interviews with ‘all manner of technical problems, … staging problems, … leading questions, prompting undue elevation of the heroic status of the police officer in the eyes of the child which can be quite intimidating’. Moreover, as discussed in Chapter ‘What Is Vulnerability in Criminal Justice?’, there are conflicting reports regarding the impacts of pre-recorded evidence on conviction rates (Holt, 2025).
AVL as a Remote Safe Space
SCJ1 observed that ‘it’s intolerable … for … someone who’s suffered at the hands of someone else to be in the same room as them and all the risks of re-traumatization’. Going to court is ‘scary’ and ‘anxiety-inducing’ (VS1). Survey responses show how AVL is a ‘form of protection’ against being re-traumatised by being in a shared courtroom with the accused. It provides an environment that is ‘safe, less formal’, private, calm, comfortable, supportive and convenient, according to survey respondents. One respondent argued that there should be a focus on how AVL promotes greater participation by creating safety for vulnerable witnesses: ‘witnesses who feel comfortable and safe understand questions better, require fewer breaks, and can be more articulate in their responses, which ultimately assists the court’. With such technologies, ‘the witness is more likely to be within their “window of tolerance” (i.e. not in a heightened emotional state) and better able to understand questions and answer them articulately and truthfully’. These perceptions accord with interview data. For instance, a witness intermediary observed:
[we] are doing everything that we can to reduce distress and further traumatizing somebody in that environment, which is a complex, hierarchical traditional environment that is confusing for adults … it’s a no brainer that it’s a better system (Wi3).
SCJ2 agreed that AVL ‘must facilitate to a much greater extent a vulnerable witness, like a child, being able to speak about things that they would really struggle with if they were sitting in the courtroom in front of trial juries and a Judge’. AVL can ameliorate vulnerability and support resilience according to P12 who said that ‘once complainants understand that they’re not going to be in the same courtroom as an accused and they’re not going to have to see them … you just see the relief on their face’; their relief is palpable. P18 added:
it’s great for victims to give evidence via CCTV, particularly children. I mean, who wants to be in the same room after … for example, a biological dad has sexually abused you?
Without remote modes, many vulnerable witnesses would simply not be able or willing to participate in the process. SCJ5 queried whether it’s better to have a young complainant’s evidence in the courtroom or by AVL: ‘In the courtroom, you have them in 3D, but you also have all of the anxiety and stress surrounding that 3D person’.
WAS3 advocated for AVL as a means for vulnerable witnesses to give their best evidence because they ‘need a sense of not only physical safety, but emotional safety … we’re talking about people who have … lots of vulnerabilities’. Survey respondents argued that more vulnerable people ought to be able to give their testimony remotely and automatic rights to AVL should be expanded, for example, victims of assault or kidnapping can be severely traumatised by being in the same space as the accused. The ‘intimidating atmosphere of the court and the need to confront the accused’ can be detrimental and P16 spoke of how giving evidence by AVL, with a court companion, was beneficial for a victim of trespass and assault. Even though this individual was not within ‘one of the typical categories or statutory closed categories of vulnerable people … it’s clearly evident … that they benefit from having that distance from the court and … accused’ (P16).
Confronting the Accused
Conversely, WAS3 discussed how some vulnerable witnesses opt to give their testimony in court on the basis that: ‘I need to stand up for myself, and I need to be there physically in court to do that in front of him’. During the reading of victim impact statements, ‘you’d be surprised at the number of people who want to eyeball the perpetrator’ and tell them directly how they have ‘fucked up their lives’ (DCJ2) and the ‘harm that has befallen them’ (VS1). CCJ1 explained ‘some witnesses want to be in the presence of the person who harmed them’ to get closure. M1 said that it’s paternalistic to assume that a vulnerable witness doesn’t wish to be present in court, while VS1shared that victims should be allowed to make that informed choice if they wish to be in court. It is a very personal decision regarding what will work best for vulnerable witnesses. Even though the legal outcome is out of their control, WAS3 suggested that:
what is within their control is … that once they finished giving their evidence, they can walk away feeling proud of themselves … Some people actually have the view that they need to do it in-person because … it would be weird on the screen … for them, it’s important to be seen in-person in court; other people will do it because they actually want to face the accused person and be able to tell their story in front of the accused. … there’s always a level of a little hope … very often complainants will say, “I want to see … how he reacts to what I say,” or, “I just want him to admit to it.”’
No matter how ‘vulnerable’ or ‘resilient’ a witness might be, they can be astute in knowing what they want (P7). VS1 said that many survivors of sexual assault want to have their experience validated and acknowledged, and spoke about a complainant who ‘gave all her evidence in court for the purpose of wanting to give her case the best chance of being believed and getting the outcome that she wanted’. However, the verdict was not guilty. While giving evidence in-person instead of remotely is no guarantee of a guilty verdict in sexual assault cases, being present in the courtroom enables the complainant to gauge the ‘mood shifts’ of the jury (VS1). WAS2 discussed how some prosecutors try to encourage vulnerable witnesses to give their evidence in court in-person, but the advice that WAS2 gives to victim/survivors is to think about where they will give their best evidence, where they will be less distracted by the accused or jury, and therefore able to speak coherently. WAS3 shared that it’s important for vulnerable witnesses to be in a location where stress hormones are not clouding their thinking as they have ‘one shot to do the best job that they can as a witness, and they should do it where they feel safest’.
AVL: Technical and Spatial Considerations
Not only does AVL provide a physically and emotionally safe space, it enables measures aimed at blocking images and sounds of the accused person. However, according to a survey respondent, even if the vulnerable witness is remote from the courtroom, there are challenges in blocking the screen image of the defendant requiring ‘placing post-it notes on the complainant’s screen to cover the square where the defendant appears’.
There are spatial considerations when vulnerable witnesses are allowed to give their testimony from a remote witness suite within the courthouse but must still enter/exit the courthouse and wait in a communal area where the accused and/or their supporters might be present. Circulation routes can overlap and be intimidating. However, one respondent commented that there is sometimes resistance to allowing vulnerable complainants to appear from locations remote from the courthouse ‘despite genuine fears of intimidation, re-traumatisation, or even basic accessibility needs’. There is scope for remote witness facilities that are separate from the courthouse. Private videoconferencing service provider, VJ1, spoke of their provision of ‘nondescript’, anonymised rooms in undisclosed sites outside the court complex. This ensures the protection of vulnerable witnesses and gives them confidence that no one can identify their location. On the other hand, giving evidence from home can cause issues ‘as the traumatic material “intrudes” in their home environments’ and it can be isolating to give evidence at home without support during or after giving evidence.
Digital Exclusion
Remote vulnerable witnesses require technological literacy, internet stability and access to suitable devices (Kretowicz & Powell, 2024) if they appear from home. However, it is a privileged perspective to assume that people can access appropriate technology and there is an issue concerning equality of access. Even for court-controlled facilities, P14 expressed concern that, rather than remote appearance ‘being a trauma-reducing experience, it could be an alienating experience’, for people who are less familiar with technologies.
Access to justice is not necessarily guaranteed by online procedures, and a survey respondent relayed an example of digital exclusion of a victim’s family:
Indigenous next-of-kin in a murder trial were unable to observe trial proceedings due to not having access to a computer, and not being able to afford to … make the … journey to the city-based courtroom.
Another respondent mentioned the need to sometimes pay for internet connections for vulnerable witnesses to give evidence from home or to arrange for evidence to be given from a police station. However, this can be problematic for complainants with ‘a cultural distrust of police’, rendering them more vulnerable. One survey respondent provided the following:
I have had appearances via AVL regularly objected to because the only option was from the person’s mobile phone and the court deemed this unsuitable and only police stations and court houses were suitable. This then meant vulnerable people were … accessing traumatic and difficult locations.
The issue of ‘police trauma’ arose in interviews too and P11 stated:
Often, witnesses and complainants in criminal matters are also accused people or have been accused people and don’t have a great relationship with police … there’s … trauma that’s raised when you’re sending them off to a police station.
DCJ2 added: ‘I won’t let a witness give evidence from a police station either because that legitimates them as being potentially more bona fide and it demonstrates the court can’t bring people before it unless the police facilitate it’. On the other hand, P16 suggested that witnesses in remote communities are generally comfortable in using police AVL facilities: ‘because they’re such small communities … they have a pretty close relationship with the police most of the time’.
Court Authority, Cross-Examination and AVL
According to survey respondents, there are possibilities of informality, interruptions and inappropriate conduct, and concerns regarding whether the gravitas of the situation is still conveyed via AVL. These issues have been examined in other literature (e.g. Rowden & Wallace, 2018). For instance, SCJ4 spoke of a witness appearing from an Indonesian island while smoking a ‘reefer’. P11 noted that the court lacks overall control regarding ‘what’s happening on the other side of the screen’ when a witness appears from a non-court site. There can be problems in ensuring there is no one else in the room with a remote witness who could influence or taint their evidence (P4). It is, therefore, preferable to have vulnerable witnesses appear by AVL from controlled environments: a police station or a courthouse, with secure links and a sheriff (SCJ6, M6), where ‘you know that they are not getting coached’ (M5). The issue of remote witness management was also raised by M4 who said the absence of the ‘authority of the court’ leads to ‘a greater propensity … for people to prevaricate … avoid answering questions’. By contrast, ‘the aura of a courtroom … deliberately … puts parties into an element of awe at the authority of the court’ (M4), and compels them to observe the gravity of the situation (DCJ2). M4 stated that it’s good for witnesses to be ‘a little bit uncomfortable [in the physical witness box], because then they tend to be more honest’. M3 advised that ‘if you take a traditionalist approach, witnesses ought be in court, within arm’s length, where you can … see the dynamics that play out when being examined-in-chief and … cross-examined’. Nevertheless, M3 said that most remote individuals understand that they are appearing from ‘an extension of the courtroom’ and are respectful.
The authority of the court may be further diminished during cross-examination if remote witnesses switch off the link or ‘storm off’ (DCJ2; DL25; P9). Both M6 and SCJ5 spoke about remote witnesses appearing from private locations who, when pressured during cross-examination, decided they’d had enough, turned off the computer screen, and left. From a defence perspective, remote vulnerable witnesses have more scope to leave the AVL if ‘questions get dicey’, perhaps take unnecessary breaks, raising questions as to whether they need the breaks to collect themselves, or just to gain more time to formulate answers to difficult questions (DL22). This makes assessing credibility difficult and disrupts the flow of cross-examination (DL22). Additionally, when a vulnerable witness is not in the courtroom, the ‘fallout’ from cross-examination cannot readily be perceived (DL22). While it is triggering for complainants when defence lawyers suggest they’re lying (WAS4), a survey respondent observed that it is ‘incredibly difficult to cross-examine witnesses and on many occasions the support worker needs to be directed to stop instructing the witness. The presumption of innocence is being slowly eroded’. Similarly, DL39 shared: ‘any defence lawyer will say [AVL] makes cross-examination much harder’, and harder to get at the truth, because AVL ‘emasculates … the violent power’ of criminal courtrooms (DL4). For example, if a client instructs their lawyer that the witness is not telling the truth, the lawyer wants to have that ‘opportunity to really put to them this didn’t happen, this isn’t correct’ (DL39). AVL diminishes the efficacy of the cross-examination ‘artform’, whereas, in-person, DL39 suggested that it’s easier to gauge a witness’ responses, demeanour and body language. In terms of ‘the truth’, DL39 felt that being in a room full of people makes witnesses more honest, while it’s easier to ‘lie if you’re alone in a room’. On that basis, DL39 said remote modes can be detrimental to the accused’s case. The combination of AVL and intermediaries ‘really hamper’ the cross-examination of vulnerable witnesses. Yet, defence lawyers acknowledged that AVL is an ‘incredibly important’ safeguard (DL22), especially for young sexual assault victims, taking ‘the sting out of the inherent intimidation’ (DL33). There is increasing recognition that ‘zealous advocacy’ and ‘cross-examination as an engine of truth’ can be secondary abuse (Lee et al., 2025).
The Human Elements in Court
Human Connection
According to survey respondents, AVLs can alleviate stress for vulnerable witnesses but simultaneously lead such individuals to feel disconnected, to feel ‘not present’ or ‘out of sight, out of mind’, and they cannot be easily shown documents. One survey respondent commented ‘I often see little concession and or value placed on how difficult it is for many people to give evidence … with this level of disconnect’.
DCJ1 raised the points that they ‘don’t get the whole picture’ of the remote witness or ‘their respective size relative to other people,’ for instance, ‘if it’s a child witness, you don’t get the same sense of physical smallness that you would if they’re being brought in in-person’. Remote witnesses can seem ‘so far away and so small’ and not adequately perceivable: ‘at distance, you can’t see their face … sometimes you can see that they’re emotional, but … you will completely lose attachment’ (SCJ3). DCJ1 suggested that technology creates a disconnecting and disassociating barrier in perceiving evidence from remote witnesses. The actual lighting can be problematic in just perceiving the witness. For instance, P2 said that they once had to use ‘community corrections AVL. The lighting there was appalling so we ended up getting the fire brigade to bring in their spotlight, the big lights they have for night-time work, and we … angled them so that the jury could see the face of the victim properly’.
P10, too, suggested that whether best evidence is provided by AVL is an issue on which ‘reasonable minds differ’. SCJ4 expressed concerns that, when pre-recorded evidence is replayed to a jury, if ‘it’s like seeing somebody on TV, whether it actually does have the same impact on … a group of human beings being the jury’. SCJ6 also stated that remote witness testimony is ‘not as confronting or as powerful as when it is expressed in the courtroom … there’s … depersonalisation … it’s like you are watching something … on a monitor that isn’t quite happening’. SCJ5 compared a first trial, in which a child complainant gave evidence via AVL, versus a second trial, in which the child was cross-examined in-person. Half an hour into the in-person cross-examination, the child suddenly said that none of the incidents had occurred and the accused was immediately acquitted. SCJ5 said:
I’m not sure whether or not the accurate evidence was the one given by AVL, or … the one given in-person … I suspect her accurate evidence was probably the evidence given [originally] in the AVL room rather than in the courtroom, but it’s impossible to tell. It’s certainly a lot more intimidating giving evidence in a courtroom compared with an AVL room, so that the additional pressure, the passing of time might have made a difference as her memory … I don’t know but it’s a fairly stark illustration of a case where under AVL she gave a consistent account from beginning to end, and then in the courtroom, the account changed.
Clearly, several judicial officers had questions whether remote or pre-recorded testimony magnifies or diminishes the weight attached to it by juries, and there were questions whether remote evidence is accurate. While I did not interview jurors, the perceived impacts indicate judicial reservations and the impacts on them when acting in judge alone matters.
Emotion and Empathy
The one-dimensionality and the rupture to live, spontaneous courtroom interactions can impact the expression of emotion and empathy in court and during legal consultations (Bandes & Feigenson, 2020; Flower, 2025; McKay & Macintosh, 2024). One defence lawyer suggested that the introduction of AVL plus intermediaries for vulnerable witnesses means ‘added layers of signalling to the jury that this is a vulnerable person. It is absolutely detrimental to our [defence] case, because any person who sees a vulnerable witness is going to be more empathetic towards them’ (DL22). This perceived forensic disadvantage to the defence case is challenged by the following responses that suggest the remote appearance of a vulnerable witness may, instead, produce a forensic disadvantage for the prosecution case (M1).
Engagement with vulnerable witnesses in the courtroom is ‘more compelling’ (P18) as their emotional state can be sensed (M1), and the jury members are seeing ‘literally the tears … hearing their voice while they’re in the same room’ (P18). Regarding in-person vulnerable witness testimony:
there’s a lot of emotive weight that comes with their evidence … it can be quite a persuasive aspect of their evidence, not just what they say, but how they say. And to hear the little things, voice, little trembles in the voice, or the deep breaths … that might be lost over an AVL link. (DL33)
Conversely, the remote mode diminishes the emotional potency of vulnerable witness testimony: it’s ‘less confronting or powerful’ when testimony is akin to watching television (SCJ6). This is so pronounced that defence lawyers may consider that remote witness appearance is ‘prejudicial to the prosecution’s case and therefore beneficial to their case’ (SCJ3). For instance, SCJ2 suggested that remote or pre-recorded evidence from a child complainant in sexual offence matters is a ‘little bit less confronting’ as the technological mode takes ‘all the emotion out of it’, that is, AVL or pre-records are a ‘buffer to the impact’ of distressing testimony. DL26 suggested that remote witness testimony can feel ‘sterile’ and DL33 stated:
In terms of what might be lost for the vulnerable witnesses, the most common kind of vulnerable witness is a child who is the victim of a sexual offence … sometimes the emotion that is inherent … isn’t totally translated [by AVL]. And from a defence perspective, sometimes the evidence can come across even about very horrific things, a little bit emotionally flat. And I wonder to the extent to which either jurors or whoever the trier of fact might be, put any weight in that.
DL4 said they liked pre-records because the jury are ‘less likely to be impressed by somebody on a screen than up close and personal, face-to-face’, suggesting a disadvantage to the prosecution case. Despite the ongoing assumption that AVL enables vulnerable witnesses to give their best evidence, SCJ1 was sceptical and stated that when they were a prosecutor:
this is going to sound terrible—that you knew you were on a winner when your witness cried … you were going to get a much more sympathetic jury … You get less of that happening of course when they’re on the screen. So there’s a jaded cynicism about the idea … but in terms of persuasion, something can sometimes be lost by them not being in court and not being as obviously upset.
While DCJ1 appreciated why all children cannot be physically present in court for beneficial reasons, simultaneously:
one of the disadvantages is—and I think a lot of judges hold this view—it’s actually much harder for a jury to empathise with a witness if their evidence is presented on a video screen. It’s easier for a jury to disconnect from the evidence they’re hearing if the person is not physically present before them. So, the advantages to the vulnerable witnesses in being physically remote in a separate room appearing on the screen, are to some extent offset by some disadvantages.
A survey respondent agreed regarding the impact of remote evidence on juries:
I think AVL is being far too widely used. It dilutes the impact of the evidence. When juries watch video recordings, they appear to pay less attention and become tired more quickly.
DCJ2 said that ‘a witness who is not there in three dimensions is a less potent witness’ because criminal trials are about ‘real people, real stories … It’s not a TV show’. One survey respondent argued that while AVLs might expedite procedures:
I am unsure at what cost for the defendant. Sometimes for the victim. Technologies can sanitise a person’s evidence because it removes the jury from having to see them in-person and ask for breaks when they are struggling. I’m unsure as to whether it might actually result in more acquittals because the evidence is sanitised through technology. But then maybe the complainant may not have been able to give their evidence if the technology was not available.
On the other hand, P14 felt that remote evidence from vulnerable witnesses was well received now by jurors because ‘it’s standard procedure’ and the ‘mystique and problem around witnesses appearing by video link’ has dissipated. Remote witnesses still ‘break down and cry’ (M2) and their ‘emotional charge’ surges through the courtroom (P9). A survey respondent stated that AVL ‘assists in allowing the vulnerable witness to speak about their horrific experiences in a safer environment’.
A final issue regarding emotion relates to Victim Impact Statements (VIS). WAS4 said it’s unacceptable when an offender remains in custody and appears by AVL during a sentencing hearing because this forces the victim to read their VIS to a screen without the opportunity to directly convey the emotional impact. SCJ1 spoke about the need to have the offender in court for sentencing for serious offences where ‘there’s a real-life identifiable victim’ and the victim’s family want to be ‘present … angry … hateful … towards the accused’. Importantly, justice must ‘appear to be done from the point of view of the victims’ (SCJ1). However, victims and supporters can benefit by watching proceedings remotely: ‘participate in the hearing without feeling vulnerable about coming into the room with the offender’ (CCJ1).
Nonverbal Communication
Survey respondents commented on nonverbal communication, suggesting that AVL has some negative impacts including ‘body language cues may not be visible to tell when a witness is becoming distressed or agitated’, meaning that vital support for that remote vulnerable witness might be missed. Wi1 stated that technologies can generate additional barriers to communication due to the lack of visual cues, added stress and complexities in understanding who is speaking during remote hearings and audio issues. As an example, Wi1 spoke of a very vulnerable complainant who was happy to be remote from the accused person, but a layer of ‘technology glitches and breakdowns just made communication generally a lot harder’. This intermediary suggested that, had the complainant been in the physical courtroom, it would have been easier to monitor the language, ensure ‘she understood what was being asked of her, and [that] she had … every opportunity to give her responses to the best of her abilities’.
Remote communication technologies do not always assist vulnerable witnesses. DL22 spoke about a vulnerable prosecution witness who had a competence issue:
He was effectively non-verbal and was in a remote witness room and so basically gave his evidence via gestures. The prosecution made an application for him to use a program where words were pre-programmed in … We resisted that, because they’re not his words, so we don’t know if he’s been led to conclusions because he may not have used the word ‘choke’ and he may not use the word, ‘shove’. He may use a different word … Eventually the magistrate agreed … that he wasn’t competent and so his evidence was rejected … [and] AVL wasn’t going to solve it.
The dataset also reveals insights into judicial officers assessing the evidence of remote witnesses. Demeanour and other cues are ‘more obvious in the courtroom’ (DCJ1), while credibility assessments are ‘handicapped’ by witnesses being remote from court (M1). However, SCJ1 and SCJ2 considered that demeanour assessments are over-rated so the imposition of AVL does not specifically challenge that process. According to SCJ1, what is more important is the content, ‘the substance of what they’re saying. Does it have the ring of truth? Is it consistent … is it inherently believable?’. SCJ2 emphasised that it is what witnesses say, ‘how that fits with other objective pieces of the puzzle’, that is crucial. M3 explained that ‘a judicial officer would [not] ever base an ultimate determination on demeanour only, but sometimes these types of discrete aspects of one’s evidence can be lost via AVL, because it is a very one-dimensional manner through which to give evidence’. These observations echo concerns expressed in scholarship regarding the loss or mediation of nonverbal communication by AVL (e.g. Denault et al., 2025).
Participation over Vast Distances
AVL is beneficial for vulnerable witnesses in providing convenience and in reducing vast distances, an issue of great significance in Australia. SCJ4 said:
The issues of distance and provision of services is very big in very remote areas … I mean, Elcho Island. One of the hardest places for service delivery in the world, not just in Australia. So [AVL’s] great when it works.
P16 spoke about how AVL can facilitate the participation of remote victims’ families in Aboriginal sentencing when there was a ‘logistical nightmare’ with families from Alice Springs and Anangu Pitjantjatjara Yankunytjatjara (APY) Lands needing to get to Adelaide. When working in Tamworth NSW, P19 was struck by how witnesses come from interstate as well as from towns hours away such as Boggabri, Moree and Mungindi. Then there are often witnesses appearing from overseas because they’ve left Australia before giving evidence (SCJ4).
Participation and Interpreters
There is a critical need to facilitate interpreter services for remote individuals (Ran, 2023). Many interviewees commented on the issue of remote interpreting, especially for Aboriginal and Torres Strait Islander peoples for whom the language of the court—English—might be their second or third language. Apparently, much interpreting occurs by telephone without any visuals or the opportunity to meet beforehand to understand the exact needs: ‘Do they need word-for-word interpreting? Do they need just every sentence? Is it going to be … just a summation at the end? They don’t have that that sort of the benefit of meeting with the person beforehand to be able to gauge that’ (P16). SCJ4 mentioned that they ‘work with interpreters a lot because we have so many Indigenous languages’, but also many overseas languages.
Remote interpreting by telephone is particularly challenging and sometimes the witness has ‘concerns about how the interpreter is interpreting … [or] it’s [clear] that maybe they have a different dialect’ (P18). P2 explained the complexities of remote victim conferencing and some of the reasons that a vulnerable witness might not want an interpreter for cases concerning sexual assault:
Interpreters can be a bit of a vexed issue … Because often the victim actually doesn’t want to have another person listening to their private business and because there’s quite close relationships with interpreters and the general Aboriginal community that they’re interpreting for, even though the interpreters have signed up to and being trained in their confidentiality, people still have suspicion around it.
M5 categorised the use of multiple technologies for interpreters as going ‘double remote’. For vulnerable witnesses, P3 explained that interpreters would usually sit beside them in the vulnerable witness space, but there are still problems around interpreting legal terms and conveying all information to the witness. Magistrate M4 said:
Of course, having interpreters just complicates everything by an exponential factor, because everything has to be done more slowly and takes twice as long … Having an interpreter online, particularly if they’re not with the party in the same room … that just aggravates the difficulty … where possible, where you’ve got an interpreter, having the interpreter present with the person online, in the same room is better, but ideally, they should all be present in court.
Efficiency and Technological Issues
Most survey respondents believed that AVLs expedite criminal proceedings. Vulnerable witnesses can be more readily involved and there are fewer ‘no shows’, especially from regional and remote areas. Put simply, without remote modes, some complainants would not be able to give their evidence in open court:
Remote access technologies can expedite criminal proceedings because the vulnerable witness is in a safer, less stressful space than the courthouse and therefore is more emotionally regulated and requires fewer breaks during evidence. (Survey respondent)
There are major travel and accommodation cost efficiencies, too, that AVL alleviates according to P3: ‘hundreds of thousands of dollars’ are saved in minimising witness travel. DL33 noted that AVLs are convenient and ‘relatively cheap, compared to potentially having to fly witnesses, who would otherwise have to travel great distances to come to court and give their evidence’.
However, there are downsides to AVL: technological failures can cause delays (Smith et al., 2021) and heighten witness anxiety (Kretowicz & Powell, 2024). According to survey respondents, there are faulty links sent by the court, cutting off a victim straight after their VIS, limited or lack of access to suitable technologies and, finally, ‘everything that could go wrong, does go wrong’. Some respondents felt that technological faults and ‘significant delays are an issue and have serious negative effects on the witnesses, whether they are vulnerable or not’. Others stated that technological faults can heighten stress, anxiety, fatigue, hesitation, confusion, distress and frustration for vulnerable individuals. Faults can impact participation, the flow of proceedings, fluent communication, connection and comprehension, as well as lead to a distrust of court process. Particularly in regional areas, ‘unreliable connectivity’ makes ‘the court experience clunky and disjointed’. The internet and facilities in places like Kangaroo Island can be ‘trying’ (P17). P14 observed that there needs to be greater attention given to services outages and ‘sometimes it’s not easy to tell whether it’s the technology itself or the people who are operating’ it that causes problems.
Delays in proceedings are sometimes caused by operator error and pre-recorded evidence (Kretowicz & Powell, 2024), including court officers who press the wrong buttons and then panic (SCJ1). Delays are also caused by ‘logistical problems with exhibits’ and access to documents, although one survey respondent said that can be easily overcome if lawyers prepare adequately. Undoubtedly, ‘doing something in real-time with a witness, while they’re in court, is easier’ (SCJ1). DL17 pointed to occasional problems with pre-recorded evidence: ‘there can be issues with voices being delayed … and we have to stop the recording, start again, kind of reset it. We definitely have had technological problems with those pre-recorded things’. In addition, sometimes support people may disrupt proceedings according to a survey respondent:
A challenge can be that the support person may create a distraction which either breaks the concentration of the witness, or worse, makes them seem as though they don’t care about the proceedings (I have had a support person make a complainant laugh during [proceedings]).
AVL might cut costs, ‘but … it’s exhausting at the end of the day’ (SCJ4), referencing the cognitive overload—or ‘Zoom fatigue’—of excessive screen time (Feigenson, 2022, p. 464).
Conclusion
This chapter reveals broad understandings of vulnerability amongst judicial officers, lawyers and criminal justice professionals. Children are considered the most vulnerable and, while some of these vulnerabilities are automatically flagged by the legislation, there are suggestions that more training on the ‘markers of vulnerability’ would be beneficial to avoid the ‘ad hoc’ treatment of vulnerable witnesses. Significant supports are made available to those designated as vulnerable witnesses, and the general consensus is that the use of pre-records, CCTV and AVL enable people to attend the proceedings remotely and give their best evidence (Jackson et al., 2024; Kretowicz & Powell, 2024). Such special measures ought to be celebrated (Fairclough, 2022). The minimisation of stress and re-traumatisation provided by physically and emotionally safe remote spaces means that the ‘sting’ is taken out of the intimidatory and formal process. Vulnerable witnesses can be within their ‘window of tolerance’ and better able to coherently and truthfully respond to questions, leading to fewer breaks and more efficient proceedings. There are benefits in terms of convenience and in straddling vast distances, and the general conclusion is that the remote modes provide techniques of mitigation.
Participants’ responses simultaneously temper enthusiasm for the technology. Concerns were expressed about the lack of the court’s authority (Rowden & Wallace, 2018) when witnesses appear from inappropriate and unsupervised sites, particularly during cross-examination, when ‘questions get dicey’ and the remote witness may be tempted to just switch off the link or prevaricate. Some expressed concern that the ‘artform’ of cross-examination is hampered by videolinks. While some argued that remote appearance disadvantages the defence case by the amplified ‘layers of signalling’ of vulnerability, more participants raised questions regarding perceived forensic disadvantages to the prosecution case. There is the perceived diminution of the emotional impact, or sting, of pre-recorded or remote evidence-in-chief such that even ‘horrific things’ come across as ‘sanitised’, ‘sterile’ and ‘emotionally flat’. However, it is unresolved whether conviction rates are impacted (Baksi, 2025; Holt, 2025; Thomas, 2023). There are additional barriers to communication for vulnerable witnesses when the technology malfunctions and complications when interpreters are also remote. Overall, there are trade-offs, and, as one judge suggested, the advantages of being remote might be offset by the disadvantages.
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