High Court Authorizes Taking Of Evidence By Video Conference.
October 3, 2011
Livingstone Maina Ngare v Republic eKLR
High Court of Kenya at Nairobi, Criminal Revision No. 88 of 2011 The Hon. Mr. Justice Fred A. Ochieng
July 28, 2011
By M.M. Murungi
The High Court has allowed the taking of evidence in a criminal trial by video conference. In a case in which two witnesses resident in the USA expressed their reluctance to travel to Kenya to give evidence because they feared for their safety, the High Court has ruled that the magistrate’s court was wrong in declining an application by the prosecution to have the evidence given by video conference. The Court has cleared the way for the evidence of the two witnesses to be given and received through videoconferencing terminals placed at the Kenyan embassy in the USA and the Nairobi Law Courts.
In October 2010, Kenya’s Judiciary had commissioned video conferencing terminals installed at the Nairobi and Mombasa Law Courts (see separate story here http://michaelmurungi.blogspot.com/2010/10/version1.html ) and the Court of Appeal had heard a number of procedural applications argued by lawyers appearing by video link. However, the participation of the advocates and their parties was consent-based to guard against the possibility of parties challenging the legality of the use of videoconferencing as a way of receiving evidence.
In this case, Livingstone Ngare (the respondent) was on trial in the Nairobi Chief Magistrate’s court on a charge of obtaining an advantage without lawful consideration (one can call it obtaining an unjust enrichment) contrary to section 65(1) of the Prevention of Corruption Act. The prosecution had called eleven out of thirteen witnesses. The last two witnesses, who were resident in the United States of America and who the prosecution described as being extremely crucial to the case, feared for their safety and did not want to enter Kenya. They had allegedly received threats of violence on account of the testimony that they were about to give.
Following a request by the prosecution that the court should relocate the trial to the USA for the purpose of receiving the evidence of the two witnesses, the Chief Justice of Kenya published a notice in Kenya’s official gazette designating Kenya’s embassy in Washington D.C. as a court for the purposes of the evidence of the two witnesses. However, because the respondent raised strong objections to this, the arrangement was abandoned.
The prosecution then made an application for the evidence of the witnesses to be received by way of video-link (through a video conferencing terminal located at the Kenyan Embassy in Washington and the other at the Nairobi Law Courts). The trial magistrate rejected the application on the ground that there was no legislation providing for the taking of evidence by video-link. The magistrate observed that the application of video conferencing technology in the courts of other countries was supported by specific legislation on the taking of video evidence.
The State moved to the High Court asking it to review and reverse the magistrate’s decision.
In opposing the application, the respondent proffered several objections to the taking of evidence by video-link or video conference. He argued that it was against the law for a court to:
- Sit outside its territorial jurisdiction;
- Abdicate its duty to control its processes and to give the supervision of a remote witness to another person;
- Issue orders in respect of a procedure which has no lawful application; and
- Deny an accused person his right to a fair trial by abdicating its control over witnesses and its immediate ability to punish for perjury.
In dismissing the respondent’s arguments and allowing the prosecution’s application, Justice Fred Ochieng made the following findings:
- The High Court has the power to review a decision of a subordinate court if it was satisfied that any finding, sentence or order recorded or passed; or the regularity of any proceedings of that court did not meet the required standards of correctness, legality or propriety.
- Even in the absence of legislation, a trial court was obligated to make orders dispensing with technicalities of procedure if it would result in substantive justice.
- Since the video terminal through which the testimony of the two witnesses was to be received was located in Nairobi-Kenya, the respondent was wrong in arguing that the court would be sitting outside the territorial jurisdiction of Kenya.
- In Republic v Kipsigei Cosmas Sigei & another, in which the High Court of Kenya considered the admissibility of evidence contained in a video recording, Justice GBM Kariuki had stated that the absence of specific legislation on video evidence did not outlaw the admission of such evidence, and the High Court had ‘a duty to adopt a common sense approach [and] …inherent power to do justice in accordance with the law…[The Court] must respond to and keep pace with advancements in science and technology and societal changes’.
- In R. v Misic  2 LRC 1, the New Zealand Court of Appeal, while considering the question whether a computer programme existing in electronic form or the hard disk on which it was recorded were a ‘document’ for the purpose of the law of evidence, observed that a piece of papyrus, a page of parchment, a copper plate or a tablet of clay on which information was recorded were all documents. The document exists because there is a material record of information. The existence of information, rather than the medium on which it was made, was the definitive feature.
- In the English case of R v Maqsud Ali  1 QB 688, in which a tape record of a conversation was admitted in evidence even though the only witness who had overheard it was not conversant with the language and could not make out what was said, the English Court of Criminal Appeal had held that a tape recording is admissible in evidence provided the accuracy of the recording can be proved, the voices recorded properly identified and that the evidence is relevant and otherwise admissible. The Court nevertheless stated that such evidence ‘should always be regarded with some caution’ and each case would depend on its own circumstances such that no exhaustive set of rules may be laid down by which the admissibility of such evidence may be judged.
- In R v Davis (2008) UKHL 36, the United Kingdom House of Lords observed that even though face-to-face confrontation with trial witnesses was important, such confrontation was not necessarily an indispensable element of the constitutional right of an accused person to face his accusers. It may be dispensed with where it is necessary for public policy and where the reliability of the testimony is otherwise assured.
- In that case, the House of Lords further observed that the use of one-way closed-circuit television procedure, where it was necessary to further an important state interest, ‘did not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause’.
- In India, in what is arguably one of the leading judicial opinions in the Commonwealth on the use of video conferencing in giving and receiving evidence, the Supreme Court considered the case of The State of Maharashtra v Praful  INSC 207, in which a witness who was willing to give evidence had stated that he was not ready to travel to India for that purpose. The High Court had ruled that it was mandatory for the witness to be in the actual physical presence of the court building. The Supreme Court observed that in video conferencing, both parties are in the presence of each other and that as long as the accused or his lawyer/attorney was present when the evidence was recorded by video conferencing, that amounted to recording the evidence in the ‘presence’ of the accused and such a procedure of taking evidence was in accordance with the law.
- In this case, the Supreme Court addressed itself to practical aspects of setting up the video conference and how to deal with certain concerns about the procedure that may be typically raised by parties opposed to it.
- In the case at hand, the High Court of Kenya ruled that it would allow the taking of evidence from the two witnesses by video conference. A judicial officer would be present in Washington at the witnesses’ video terminal to administer the oath and to ensure that the witnesses were present and that they were not coached, harassed or otherwise interfered with. At the other video terminal in Nairobi would be the trial court and its officers, the accused person, his lawyer and the prosecutor or state attorney. The accused would have every opportunity to cross-examine the witnesses as they were practically in his presence.
- The Judge observed that if the prosecution was forced to close its case without taking the evidence of the two witnesses by video conferencing, a procedure that would not prejudice the respondent, this would imperil the public interest in having all the evidence laid before the court in order for it to arrive at a just decision.
- The decision of the trial magistrate to exclude video conferencing as the medium of receiving the testimony of the two witnesses was ruled to be improper and an order was made for the evidence to be given at the expense of the prosecution.