State v Seniloli [2004] FJHC 37; HAC0028Z.2003S (5 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0028 OF 2003S

STATE

v.

RATU JOPE SENILOLI
RATU RAKUITA VAKALALABURE
VILIAME VOLAVOLA
ISIRELI LEWENIQILA
PECELI RINAKAMA
VILIAME SAVU

Hearing: 28th June 2004
Ruling: 5th July 2004

Counsel: Mr. M. Tedeschi, Mr. G. Allan, Ms A. Prasad for State;
Mr. M. Raza for 1st Accused;
Mr. A.K. Singh for 2nd Accused;
Mr. S. Naqase for 3rd & 6th Accused;
Mr. D. Sharma for 4th Accused;
Mr. A. Seru for 5th Accused.

RULING

All defence counsel including the 2nd accused, who is now represented by Mr. A.K. Singh, initially objected to the tendering in evidence by the prosecution of the following pieces of evidence:

1. Video recording of a press conference at Parliament 19th May 2000;
   
2. Video recording of a swearing-in ceremony in the Parliamentary complex on 20th May 2000;
   
3. Video recording of swearing-in ceremony (Part B) at the Parliamentary Complex on 20th May 2000;
   
4. Transcripts of all the above;
   
5. Video recording of an address to the nation by the President of Fiji of 20th May 2000;
   

However, counsel for the 1st and 4th accused later withdrew those objections raising matters instead which are relevant to weight, and which can be the subject of cross-examination of the eye-witnesses including the cameraman. The remaining counsel object to the admissibility of all these pieces of evidence on the grounds of:

1. relevance (or lack thereof);
2. prejudicial effect;

100. lack of authenticity.
     

The court, in the absence of the assessors viewed all the footage disputed and read all the transcripts in question. The prosecution called no witnesses, saying that the matter could be decided on the basis of legal submissions. All counsel were given time to respond. They have all made written submissions.

The prosecution’s position is that all the recordings are admissible as real evidence, that the recordings are highly relevant, being either recordings of the actual alleged offending, or of acts showing voluntary involvement in the offending, and that the former President’s address confirmed where the lawful authority of the State lay on the 20th of May 2000.

The recordings

The disputed recordings were shown to the court in the presence of all accused and counsel. The recording of the press conference shows, with George Speight and Timoci Silatolu, the 2nd accused addressing the media in terms which might suggest whole-hearted support for the armed takeover of Parliament. I say “might” because this is of course subject to cross-examination, further evidence and ultimately a matter for the assessors to consider. The recordings of the swearing-in ceremony show the oaths taken by the 1st, 2nd, 3rd, 4th, 5th and 6th accused at that ceremony. The camera has focussed on the 1st accused as the person witnessing the oath, Josefa Nata as the person officiating and each of the other accused taking turns to take purported oaths to take on various Cabinet positions. In the second part of the recordings, the actual words spoken by the 5th accused are partly silenced and the voice of the covering journalist is also silenced. In the recording of the President’s address, the President is seen delivering a written address on video, followed by a question and answer session with a journalist.

There is nothing remarkable about the use of video recordings in court. In R v. Kajala & Nobel (1982) 75 Cr. App. R. 149 the defendant was charged with using threatening behaviour during what was known as the Southall riots in London in 1981. The riots were videoed by BBC television and played on national television. A prosecution witness recognised the defendant on television and identified him in court. The prosecution tendered the video cassette recording which the court was satisfied was an authentic copy of the original. A copy of the original was played in court because the BBC had a policy of retaining the original. The justices at first instance ruled that the copied tape was admissible because it was an accurate copy of the original, and because there was a good reason for the unavailability of the original. Further they held that although the cameraman taking the shots would have been the best witness to tender the evidence, they were satisfied as to the authenticity and accuracy of the tape and held that it was admissible. The defendant was convicted.

On appeal, the Divisional Court held that the copied tape was rightly admitted. At page 152 of the report, the Court said (per Ackner L.J and Woolf J):

”The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available in one’s hands, one must produce it; that one cannot give second any evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. Garton v. Hunter (1969) 451, per Lord Denning M.R. at 453e; see also Archbold, Criminal Pleading, Evidence and Practice (40th ed) para. 1001. In our judgment, the old rule is limited and confined to written documents in the strict sense of the term, and has no relevance to tapes and films.”

The appeal was dismissed. That statement continues to represent the law in England on the admissibility of video recordings in the common law. (See also Taylor v. Chief Constable of Cheshire (1986) 1 WLR 1479). Video recordings of confessions are of course dealt with by the Police and Criminal Evidence Act 1984 and there are different rules in relation to the admissibility of taped confessions. The Youth Justice and Criminal Evidence Act 1999 provides for the admissibility of evidence of witnesses recorded on video-tape to be played in court. However, the common law continues to govern the admissibility of video or audio-recordings of events which are relevant to the trial.

In Australia, video recordings are treated as real evidence subject to the ordinary rules of admission or exclusion. A tape or recording should be admitted by playing it in court rather than hearing oral testimony about the contents, or admitting only a transcript of the contents. (Butera v. DPP (Vic) [1987] HCA 58; (1988) 76 ALR 45). A copy of the tape is admissible provided the provenance of the original tape, the accuracy of the copying process and the authenticity of the copy are proved by the party tendering it. Because the accuracy of any record is usually a matter for weight, and therefore a question for assessors, any inquiry as to provenance and authenticity should be limited. Further, it was said in R v. Maqsud Ali (1966) 1 QB 688 that a tape recording was admissible provided the evidence was relevant, it was otherwise admissible and the accuracy of the recording can be proved. However the first question is whether the material depicted would be admissible even if it had not been taped.

If there is a challenge to the accuracy of the tape the court must satisfy itself of its provenance and authenticity. This may require the hearing of some evidence on voir dire, but such investigations must be rare (R v. Maqsud Ali (supra)) because accuracy and weight are usually questions for the jury or assessors.

Such an inquiry was conducted by Shaw J in R v. Robson; Harris (1972) 2 ALL ER 699. He heard evidence of the history and condition of certain tapes but said that he only needed to be satisfied that a prima facie case of originality had been made out. To do more, would have been to trespass on the function of the jury (R v. Robson at p.701).

Further when a tape is played, a transcript can also be tendered, but only as a means of assisting in the perception and understanding of the contents of the tapes.

In R v. Chen [1993] VicRp 64; (1993) 2 VR 139, it was held that there need not be evidence of lack of tampering or interference, or editing. The test is (per Marks, Southwell and Harper JJ) whether there is sufficient material before the court to allow the court, to conclude that “the recorded sounds reproduced those originally made by the persons identified by the evidence. There must be evidence, which a tribunal of fact is entitled to accept, that the recording is of a conversation which occurred and which would be admissible if proved by oral testimony. Admissibility does not depend on the party tendering the tapes having removed absolutely any chance that they are inaccurate.” (Cross on Evidence (Aus. Ed) Para 1310).

In Butera v. DPP (supra) the defendants were charged with conspiring to traffic in heroin. A tape recording of a conversation among the alleged co-conspirators was admitted in evidence. The conversation was in Punjabi, Thai or Malay and English. Some parts were indistinct and a written transcript with translations was also tendered. On appeal against the admission of the transcripts, the High Court of Australia held (per Mason CJ, Brennan and Deane JJ) that a recording should be played over to the court, the transcript being admissible only to aid in understanding what conversation was recorded. The transcript was not a substitute for the tape and the jury should be so warned. The appeal was dismissed.

Gaudron J.A. in her dissenting judgment, reviewed the approaches of different courts to the question of the admissibility of transcripts in addition to tape recordings. She referred to the decision of the Court of Criminal Appeal in R v. Maqsud Ali (supra) which admitted both tape and transcript and in particular to the following passage of the judgment:

“Having a transcript of a tape recording is, on any view, a most obvious convenience and a great aid to the jury, otherwise a recording would have to be played over and over again. Provided that a jury is guided by what they hear themselves, and upon that they base their ultimate decision, we see no objection to a copy of a transcript, properly proved, being put before them.”

In R v. Menzies [1982] NZCA 19; (1982) 1 NZLR 40, the New Zealand Court of Appeal held that where a tape recording is reasonably short and clearly audible there is no need to admit the transcript as well as the tape. However where a tape is inaudible or unintelligible, a person who has listened to the tape repeatedly, can produce a transcript of the contents of the tape. In R v. Rampling (1987) Crim. L.R. 823, the English Court of Appeal said that any police officer present when the tape was transcribed can prove it in evidence and the audio-typist does not have to be called, the police officer should be able to give evidence about the identity of voices if relevant (this is not relevant to video recordings) and the police officer can produce both tape and transcript.

These are the principles applicable to the admissibility of the recordings. These principles co-exist of course with the residual discretion of the court to exclude any evidence the prejudicial effect of which outweighs the probative value.

1. Press Conference

The main ground of objection to this video recording is that it is highly prejudicial and has been selectively chosen. It does not appear to be in dispute that the event shown on tape actually occurred nor is it in dispute that the 2nd accused is shown on it. In other words, the accuracy of the tape is not in dispute. What is complained of is the prejudicial effect of the event depicted.

The probative value of this recording is that it shows the nature of the armed takeover of Parliament, the intentions of those who are shown on tape, and the involvement of the 2nd accused who addressed the journalists in the following terms:

“I am indeed pleased with the change of Government this morning. We have been called to take part in this interim administration as from today. Our people, the indigenous Fijians, have been for some time expressed dissatisfaction that the Indo-Fijians are ruling our nation and controlling our resources, et cetera. As I have just been appointed the new Minister for Home Affairs, it is now my role to ensure that there is stability in our nation and I would urge you all to co-operate with us in this regard. We have the support of the Military and the Army who would ensure that law and order is maintained at all times.

Back to your question, we will intend to have liaison directly with the Commander and the Commissioner of Police and assure our citizens, protection of their lives and their properties. That will be our priority as from now. We have the support and we have direct liaison with all of them, as has been indicated by Mr. Speight and I will take it on me as the new Home Affairs Minister of Home Affairs to pursue that line and establish communications directly with the security forces and I intend to speak to them within a matter of minutes.”

The recording is clearly of probative value particularly because in cross-examination the 2nd accused has suggested to one witness that he (the 2nd accused) was under some sort of restraint or pressure on the 19th and 20th of May 2000. The tape has direct relevance to the trial issues, in particular because of the line of cross-examination taken by the 2nd accused, but also because it is evidence relating to the events which led to the “ceremony” on the 20th of May.

I see no prejudicial effect. The 2nd accused’s real complaint appears to be that it is unnecessary to lead evidence of a video when there is other evidence of the conference. However, there is nothing to prevent the prosecution or the defence from leading evidence from several sources as to the same event. Whether 2 identification witnesses are called, or 4, is a matter for the party calling the evidence. Weight is a matter for the assessors.

The prosecution may lead evidence of the video recording. However, at the trial proper the recordings must be properly tendered either by the maker of the original tape or by an employee of the Fiji TV Ltd. with oral evidence as to the manner in which the recording was made for court purposes. He or she can then be cross-examined about other persons present in the room, or as to the presence of armed guards in the room. These questions will be relevant to weight.

2. The Swearing-in Ceremony

The probative value of the recordings of the swearing in ceremony is obvious. Indeed, because none of the accused persons disputes the holding of the ceremony I see no prejudicial effect at all. Mr. Seru submitted that the camera focussed only on a few people and not on the armed personnel around the group. However, such evidence can easily be elicited from witnesses who were present and I consider, that there is no prejudice resulting from the inclusion of both these tapes. However the prosecution must ensure that the voice of the journalist covering the ceremony is removed from the tape, leaving only the events themselves. Again the cameraman and/or the person producing the tape must give evidence tendering the tapes, especially as counsel for the defence have questions about the editing process. For instance Mr. Raza suggests that part of the original tape of the 20th of May does not appear on the copy shown in court. This can be dealt with in cross-examination of the cameraman.

Transcripts

There were portions of the tapes which were inaudible and it will clearly assist the assessors to be able to see the prepared transcripts. However there must be evidence led as to the way in which they were prepared. In particular the court reporter will check the accuracy of the English translations of the Fijian passages in those transcripts wherever possible. The address by the former President is audible and there is no need for a transcript in respect of that recording.

The President’s Address

The probative value of this recording is that the address which was apparently delivered on the 20th of May 2000 showed that the President was exercising executive authority over the nation and was trying to contain the situation. It is particularly relevant because of the nature of the cross-examination conducted particularly on behalf of the 1st, 3rd, 4th and 5th accused in relation to the crisis situation facing the country. Indeed, insofar as the address confirms the law and order crisis facing the country, it appears to assist the defence of the 1st accused and possibly that of the 3rd and 5th accused.

It has no prejudicial effect at all and is clearly admissible provided it is properly tendered in evidence by a witness from Fiji TV Ltd. who can vouch for its accuracy. The question and answer session after the address however has limited relevance and is excluded. Counsel for the 2nd accused complains that he cannot cross-examine the former President because the address is taped. Yet the probative value of the tape is not to lead evidence about the President’s own beliefs and perceptions, but to lead evidence that he held executive authority and was taking steps to deal with the situation facing the country. The address does not offend the rule against hearsay and is not subject to any other exclusionary rule. It is relevant and probative.

Summary

The video recordings shown, provided they are tendered either by their makers, or by a person who can give evidence as to accuracy, are admissible as real evidence. The transcripts are admissible provided they are tendered by their makers. There is no need for a transcript for the President’s address.

The video-recordings have a high probative value and little if any prejudicial effect. They may be led in evidence.

One last matter. Mr. Naqase for the 3rd and 5th accused submits that more tapes should be shown, depicting the crisis situation then occurring on the 19th and 20th of May 2000. Of course it will be open to the defence to lead evidence of other video tapes as long as they are relevant to the charges and subject to the exclusionary rules. To that end, the prosecution must disclose all other unused tapes they have on the situation in Parliament, and in Suva on the 19th and 20th of May 2000. It is then a matter for the defence as to whether they wish to lead such evidence. Alternatively, prosecution witnesses may be cross-examined on the crisis situation.

Nazhat Shameem
JUDGE

At Suva
5th July 2004