State v Nasilokia [2024] FJHC 408; HAC81.2023 (10 June 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 81 OF 2023

STATE

V

KOLINIO NASILOKIA

Counsel : Ms. S. Prakash for Prosecution
Accused in Person

Dates of Ruling : 10 June 2024

RULING
- EVIDENCE via SKYPE - VULNERABLE WITNESS

1. The Accused is charged with four counts of Rape contrary to the Crimes Act. Before trial, the State on 4 June 2024 made an application supported by an affidavit of Detective Constable Tevita Rika (DC Rika), seeking permission/ directions to take evidence via Skype from the complainant, Alesi Kurisaru who is allegedly residing at 2389 McBride Ln, Santa Rosa, California in the United States of America (USA). The affidavit of DC Rika was supplemented by another affidavit filed on 5 June 2024. The State’s application is based on Section 131(2)(b) of the Criminal Procedure Act (CPA).
   
2. The Accused who is unrepresented is objecting to the application. The hand-written objection filed by the Accused is illegible, but from what I could gather from his handwriting, the following appears to be his grounds:
   
   1. That the right recognised in Section 14 (2) (a) of the Constitution dealing with the “Right of the Accused Person” (right to be presumed innocent) would be violated if the State’s application is allowed.
      
   2. That the State is misleading the unrepresented Accused by bringing up the issue when there were only six days left for the trial, and the Accused was not given adequate time to prepare his defence.
      
   100. That when receiving evidence via Skype, it is impossible for the Court to properly observe the demeanour and the reaction of a witness. In a case where the prosecution is heavily dependent on the credibility of the complainant, the Court is denied the opportunity to test her sincerity or insincerity if her evidence is taken via Skype.
        
   4. That the taking of her evidence via Skype will be unfair to the Accused.
      
   5. That the Court is not in a position to verify if she was coached to give evidence and whether the questions could be sent with the answers.
      
   6. There exists a motive for the State to send the Accused’s identity via the website for questioning and comments. It would be prejudicial to the Accused.
      
   7. That the Accused will be denied a fair trial. The Court has to ensure that every legal right is accorded to the Accused.
      
   8. That if the taking of evidence via Skype is allowed, the Accused will not be able to cross-examine the witness.
      
3. In reply to the affidavits filed by DC Rika, the Accused appears to have challenged the admissibility of the affidavits that they did not contain information given from the personal knowledge of the deponent. In other words, the Accused appears to say that the contents of the affidavits are hearsay.
   
4. In paragraph 2 of each affidavit, DC Rika states: ‘I am familiar with matters pertaining to these proceedings and depose this affidavit from my personal knowledge and as a result of information obtained in my official capacity unless otherwise stated, and the contents of which are true to the best of my knowledge, information and belief’’
   
5. DC Rika is a police officer who was involved in the investigation of the complaint made by the complainant. He no doubt in the due execution of his official duties had access to the witness statements, documents and other evidentiary material collated during the investigation. He has attached certified copies of certain documents to his affidavit to support his statements. Although he has no personal knowledge of certain matters, what DC Rika states in his affidavit in my opinion does not become mere hearsay if it forms part of information which he knows of in the conduct of his official duties and is not intended to prove the truthfulness of the contents of the evidentiary material he collected.
   
6. TR-1 (travel history of the complainant) issued by the Department of Immigration confirms that the complainant left Fiji’s jurisdiction for San Francisco on 28 September 2019 and never returned. TR-1 attached to the second affidavit shows that the complainant on 20 September 2021 lodged an application from her address in Santa Rosa, California, USA with the U.S. Citizenship & Immigration SVC seeking Asylum and Withholding of Removal. TR-2 shows that she has been issued a Social Security Card from the US government. I am satisfied that the affidavit of DC Rika could be admitted for this inquiry.
   
7. Two sections of the Criminal Procedure Act deal with the procedure concerning evidence to be recorded from a remote location in a criminal proceeding. Section 295 of the CPA [under Part XX – Protecting Vulnerable Witnesses (i.e. sections 295 and 296)] governs the procedure to record oral evidence from vulnerable witnesses like women and children of alleged sexual assaults. Section 131(2) of the CPA is of general application and not confined to vulnerable witnesses^[1].
   

Section 295 & 296 of the CPA

8. In the present case, although the Prosecution did not cite Section 295 of the CPA in its application, it appears to contend that the witness/complainant Alesi Kurisaru is vulnerable. Therefore, I intend to deal with both sections in deciding whether the objection raised by the Accused has any merit.
   
9. Under the heading ‘PROTECTING VULNERABLE WITNESSES’, Section 295 in Part XX of the CPA provides as follows:
   

(1) Before the commencement of any trial, a prosecutor may apply to a judge or magistrate for directions as to the procedures by which the evidence of a vulnerable complainant or witness is to be given at the trial.

(2) The judge or magistrate shall hear and determine an application made under sub-section (1) in chambers, and shall give each party an opportunity to be heard in respect of the application.

(3) The judge or magistrate may call for and receive any reports from any persons whom the judge or magistrate considers to be qualified to advise on the effect on the complainant or the vulnerable witness of giving evidence in person in the ordinary way or in any particular mode provided for in section 296.

(4) In considering what directions (if any) to give under section 296 the judge or magistrate shall have regard to the need to minimise stress on the complainant or the vulnerable witness, while at the same time ensuring a fair trial for the accused.

(5) A judge or magistrate may hear and consider an application by either party made during the course of any trial for an order prescribing the procedures by which the evidence of a vulnerable complainant or witness is to be given in the trial.

10. To apply Section 295, and to give directions under Section 296 regarding the special modes in which the evidence is to be given at the trial, the Court ought to be satisfied that the complainant is a ‘vulnerable witness’. The CPA does not define the notion of a ‘vulnerable complainant/ witness’.
    
11. Section 271 (evidence of vulnerable persons: special provision) of the Criminal Procedure (Scotland) Act 1995 provides helpful guidance in defining the notion of ‘vulnerable witnesses’. The Section provides:
    

(1). For the purposes of this Act, a person who is giving or is to give evidence at, or for the purposes of, a trial is a vulnerable witness if—

(a) the person is under the age of 16 on the date of commencement of the proceedings in which the trial is being or to be held (such a vulnerable witness being referred to in this Act as a “child witness”), or

(b) where the person is not a child witness, there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of—

(i). mental disorder (within the meaning of section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)), or

(ii). fear or distress in connection with giving evidence at the trial.

(2). In determining whether a person is a vulnerable witness by virtue of subsection (1) (b) above, the court shall take into account—

(a). the nature and circumstances of the alleged offence to which the proceedings relate,

(b). the nature of the evidence which the person is likely to give,

(c). the relationship (if any) between the person and the accused,

(d). the person’s age and maturity,

(e). any behaviour towards the person on the part of—

(i). the accused,

(ii). members of the family or associates of the accused,

(iii). any other person who is likely to be an accused or a witness in the proceedings, and

(f) such other matters, including—

(i). the social and cultural background and ethnic origins of the person,

(ii). the person’s sexual orientation,

(iii). the domestic and employment circumstances of the person,

(iv). any religious beliefs or political opinions of the person, and

(v). any physical disability or other physical impairment which the person has, as appear to the court to be relevant. (Emphasis added)

12. By age, a child witness is vulnerable. In our law, a child means an individual who has not reached the age of 18 years^[2]. The complainant is 46 years of age and therefore she is not a child witness. There is no evidence that she has a mental disorder. By being a woman, she is not entitled to be treated as a vulnerable witness. For the complainant to be qualified as a vulnerable witness, the Court must be satisfied that there is a significant risk that the quality of the evidence to be given by her will be diminished because of fear or distress in connection with giving evidence at the trial.
    
13. To form an opinion in this regard, the Court is at liberty to call for and receive reports from any persons whom the court considers to be qualified to advise on the effect on the complainant of giving evidence in person in the ordinary way or in any particular mode provided for in Section 296^[3]. The complainant is currently abroad and calling for such reports is practically impossible. The affidavits filed by DC Rika are the only evidence available to the Court in his regard.
    
    14. According to those affidavits, the alleged rape incident has left the complainant traumatised by the way the crime was committed. The perpetrator has used a remote controller and a screwdriver to penetrate the complainant’s vagina. She was fearful for her safety being in Fiji after the incident and as a result, she moved to the USA and sought asylum there. Documents annexed to the affidavits (TR1, TR2) support the averments in the affidavits.
        
    15. The complainant left Fiji’s jurisdiction and sought refuge in the US out of fear for her safety. It is common knowledge that leaving the asylum seeker out of the jurisdiction where the asylum is sought pending an asylum application disqualifies the applicant from being a refugee. Therefore, it is practically impossible for the prosecution to secure the physical presence of the complainant in Court.
    16. The Court should take into account the fear or distress in connection with giving evidence at the trial, the nature and circumstances of the alleged offence to which the proceedings relate and the nature of the evidence which she is likely to give in determining whether an adult person is a vulnerable witness. The rape of the complainant is alleged to have occurred under horrifying circumstances. Given the foundation based on photo identification, her evidence is likely to implicate the Accused in the trial.
        
    17. I am satisfied that the complainant is a vulnerable witness associated with a significant risk that the quality of the evidence to be given by her will be diminished because of fear or distress in connection with giving evidence at the trial. Therefore, the complainant should not be compelled to give evidence in person in the ordinary way. She is a fit candidate to be considered for a particular mode provided for in Section 296 of the CPA.
        
    18. In considering what directions (if any) to give under Section 296 the Court must have regard to the need to minimise stress on the complainant or the vulnerable witness while at the same time ensuring a fair trial for the accused^[4]. A trial cannot be fair if it is fair only to the Accused. It must be fair on both sides. The Accused is entitled to a fair trial and there is an obvious conflict between the interests of protecting a vulnerable complainant and of ensuring such a fair trial. Therefore, the Court is required to balance two sets of competing interests, namely, the complainant’s right to access justice which is associated with the interests of justice on one hand and the right to a fair trial for the Accused on the other hand. The question is whether one of these interests should prevail or whether there must be a balance so that fairness to each must be accommodated and if so whether it could be achieved by the proposed mode of taking evidence.
        
19. To deal with a case justly, the Court should ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings (access to justice), and that parties and witnesses can give their best evidence. A vulnerability of a party or witness may impede participation and also diminish the quality of evidence. If the victims of crime are denied unhindered access to the courts and if they feel threatened, intimidated or ashamed to come forward to complain, participate and give evidence in court proceedings, the people will lose confidence in the judicial system and the administration of justice. The victims will be afraid to come to court and as a result, the perpetrators who ought to be punished will escape. The court should take all proportionate measures to address these issues in every case^[5].
    
20. Ascertainment of the truth is the ultimate goal of any judicial system whereby the offenders are punished, and the innocents are set free. The complainant in a rape case is the most crucial witness without whose participation the proof of the charge is next to impossible. If the victim out of fear or distress flees home and her home country, thus preventing her from participating in the trial, the notion of fair trial could be at stake. A balance must be struck between the requirement of taking evidence via Skype and its potential prejudice to the Accused.
    
21. Section 296 of the CPA provides for directions that a court could give in respect of the modes in which evidence may be given by a vulnerable witness^[6]. This provision enables a level playing field to ensure a fair trial when the complainant is found to be vulnerable. The State’s application concerns one such mode- taking the evidence via Skype. Section 296 (1)(b) provides as follows:
    

where the judge or magistrate is satisfied that the necessary facilities and equipment are available, a direction that the complainant or vulnerable witness shall give his or her evidence outside the courtroom but within a Court precinct, or from some other suitable location, the evidence being transmitted to the courtroom by means of closed circuit television or such similar quality secure audio visual electronic means;

22. Section 296 (1)(e)(i) further provides:

Where the Judge or magistrate is satisfied that the necessary facilities and equipment are available, a direction that-

(i) the complainant or vulnerable witness gives his or her evidence at a location outside the Court precincts;....

23. The social medium called Skype comes under the purview of Section 296(1)(b) whereby the evidence could be transmitted audio-visually to the courtroom from a remote location by electronic means. After its introduction in 2003, Skype became a widely accepted mode of taking evidence in court proceedings. In Fiji, it is not uncommon for the courts to use this technology in court hearings^[7].
    
24. The phrase ‘from some other suitable location’ in section 296(1)(b) is not defined. Therefore, it can be argued that other suitable location includes even a foreign country. The necessary facilities and equipment are available to this Court to operate this mode which has been used and tested on numerous occasions in the past.
    
    25. In his objection, the Accused raised several issues with the taking of evidence via Skype which appear to be based on the concerns raised by the Court of Appeal in Lotawa v State^[8] where the Court at [6] observed as follows:
        

Skype is a relatively new medium used extensively in social media and for personal contact between parties in place of telephones. It is noted that it has been used in Courts for the taking of evidence in Canada, Sri Lanka, Australia and in Fiji and as such it has been a very useful medium for the admission of evidence in 2 obvious circumstances. First, for the protection of a "vulnerable" witness, provided for in sections 295 and 296 of the Criminal Procedure Decree 2009 and secondly for the good administration of justice, to hear a witness from abroad pursuant to section 131(2) of that Decree. Evidence by "skype" although convenient and immediate, suffers of course from the vagaries of any other electronic medium in that it can crash, perform erratically or be deceptive as to colour, sound and light. The quality of its transmission will depend on the quality of the equipment being used at each station and in particular the cameras both at transmission and reception. It is impossible when receiving evidence by "skype" to properly observe the demeanour and reactions of a witness: in a case heavily dependent on credibility, the witness' words are often no match for his or her reaction to questions or for his or her display of sincerity or insincerity in giving evidence. It is therefore a much inferior method of receiving evidence, inferior to live viva voce evidence and for these reasons alone, although allowed by s.131(2) and section 295, it should be used only rarely for vulnerable witnesses and hardly ever for convenience reasons. In any event as Gamalath JA says care must be taken by the presiding Judge to comply with the procedure set out in s.295 and state judicially why he is allowing evidence to be adduced by that medium.

26. The Court of Appeal identified certain infirmities that electronic medium evidence by "Skype" could suffer such as (i) it can crash, (ii) perform erratically or be deceptive as to colour, sound and light (iii) it is impossible to properly observe the demeanour and reactions of a witness etc. The Court categorised Skype as a ‘much inferior method’ of receiving evidence, inferior to live viva voce evidence.
    
27. No doubt, the quality of transmission and that of audio-visuals will depend on the quality of the equipment being used in particular the cameras both at transmission and reception. From the past experiences, it can be said that the equipment used by this Court to take evidence via Skype were of good quality in terms of audio and video transmission. If the Court at the trial stage finds that the quality of transmission is defective or inferior, it can turn it down.
    
28. In the circumstances of this case, the infirmities in the mode of taking evidence via Skype in my opinion do not significantly affect the right to a fair trial of the Accused. The taking of the evidence of the complainant is so significant that its admission is not outweighed by the danger of prejudice to the Accused.
    
29. I agree that Skype is an inferior method of receiving evidence in terms of the court’s ability to properly observe the demeanour and reactions of a witness. However, I have found in the past that the facial expressions of the witness could more closely be observed when the camera is directly focused on the witness. The demeanour is an important tool used to test the credibility and sincerity of a witness. However, demeanour is not the only tool used for that purpose. Therefore, no significant prejudice will be caused to the Accused.
    
30. The other concern raised by the Accused is that his right to cross-examine the complainant would be curtailed if the complainant were allowed to give evidence via Skype. I do not see any logic for this concern. This mode of taking evidence will not limit the opportunities for cross-examination. The Accused has the right to confront the complainant and challenge the evidence presented against him^[9]. The Accused will be given the opportunity to cross-examine, observe the demeanour of the complainant and challenge her evidence.
    
31. The Accused is also concerned that the complainant may be coached or influenced by somebody in the process of her giving evidence. The fear of the complainant being influenced by somebody while giving evidence can be eliminated by asking her to show the room from where she is giving evidence. Once the camera is focused on the complainant’s face, it will not be possible for her to read a note or get instructions from anybody.
    
32. The next issue arises in the event a dock identification is requested by the Prosecution. The Court of Appeal in Lotawa v State^[10] considered the prejudice caused to the accused when dock identification was allowed via Skype without a proper foundation for identification. The witness was foreign victim of rape who had returned to her country before the trial commenced in Fiji. The use of Skype to receive oral evidence from overseas was allowed by the trial judge under Section 295 of the CPA. The witness giving evidence from Australia by "Skype" was asked by the prosecutor to make a dock identification of the accused in Court. The receiving camera immediately swung to the dock and she identified the accused who sat there.
    
33. The Court of Appeal disapproved of the trial judge’s approach in permitting a dock identification via Skype when there was no proper foundation for the identification of the accused. The Court observed that “dock identification in itself is unreliable and when that identification is through Skype, the unreliability and uncertainty of the identification is compounded”.
    
34. DC Rika in his affidavit informs that the complainant had identified the perpetrator in a photo identification procedure conducted by police. Therefore, there is a proper foundation for a dock identification in the present case where a clear distinction could be made from the facts in Lotawa, in the event a dock identification is requested. Further, a special arrangement could be made to avoid the prejudicial effect of a typical dock identification in a case where the witness has been allowed to give evidence via Skype from a remote location. Without focusing the camera on the dock and the accused, the witness could be told to observe a line-up of 8-10 people of similar characteristics arranged by Court and identify the perpetrator if he was there.
    
35. The Accused further raised the issue with late disclosure of prosecution’s intention to adduce evidence via Skype and the photos that it intended to adduce at the trial. The photos were disclosed on 4 June 2024 after the Accused objected to the taking of the evidence of the complainant via Skype. These stuffs should have been disclosed well in advance of the trial, preferably at the PTC stage. The Accused has the right to be given adequate time and facilities to prepare a defence^[11] and to be informed in advance of the evidence on which the prosecution intends to rely, and to have reasonable access to that evidence^[12]. However, late disclosure would not affect the Accused’s rights as he has six days before the trial commences on 10 June 2024. Despite they being disclosed late, the Accused has ample time to prepare his defence and challenge the credibility of the version of events of the Prosecution’s case.
    

Section 131(2) of the CPA

36. Section 131 is of general application to all witnesses while Section 295 is applicable to a special class of witnesses i.e. vulnerable witnesses^[13] The State’s application is based on Section 131 of the CPA which provides as follows:

131 (1) Subject to any other provision of this Act, all evidence taken in any trial under this Act shall be taken—

(a) in the presence of the accused; or

(b) when his or her personal attendance has been dispensed with, in the presence of his or her lawyer (if any).

(2) Nothing in this section shall prevent a judge or magistrate from authorising that appropriate arrangements be made for —

(a) taking of evidence from a remote location; or

(b) the use of any other procedure or means by which evidence may be taken during, or for the purposes of the trial —

where issues of safety or the interests of justice require the use of such means (Emphasis added)

37. This section also does not specify what a remote location is. Therefore, the remote location could be a foreign country^[14]. The Court is authorised to make appropriate arrangements for taking of evidence from a remote location, which is the USA. The Court of Appeal in Hurtado^[15] held that the phrase ‘any other procedure or means’ in 131(2)(b) can include the use of Skype or similar technology to receive oral evidence from witnesses during the trial.
    
38. The issue is whether safety or the interests of justice require using Skype in this case. Out of fear for her safety, the complainant left Fiji’s jurisdiction after the alleged rape incident. The safety of the witness is at stake in this case. As I concluded in the foregoing discussion, the interests of justice require the use of Skype to receive oral evidence from the overseas witness.
    
39. The phrase 'the interests of justice' is not defined in the CPA or any other legislation. It is a phrase that the courts have not attempted to define and its application depends on the context of the legislation (Re Chapman & Jansen (1990) FLC 92-139, per Nicholson CJ). In the context of a criminal statute, Malcolm CJ referred to the phrase in Mickelberg v The Queen (No 3) (1992) 8 WAR 236 and said at p 252^[16]:
    

The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest and in due administration of justice.

40. The ultimate goal of a criminal justice system is to punish the guilty persons and acquit the innocents. The ascertainment of the truth in a trial which is fair to all parties would be in the interests of justice. The interests of justice are not confined to the interests of the accused. It encompasses the interests of the complainant and the State which represents the public.
    
41. In Hurtado, the concern for obtaining evidence via Skype from overseas witnesses was expressed by the Court of Appeal in the following terms:

....The only matter that the learned trial judge considered when he authorized the use of Skype was the respondent's constitutional right to call witnesses. But the right to call witnesses was not an issue. The issue was the mode of calling witnesses. The interests of justice required the learned trial judge to ensure the trial was fair to both the defence and the prosecution and that there was accountability over the witnesses called by the parties. Witnesses who give evidence from overseas via Skype escape any form of accountability because the domestic courts lack jurisdiction to hold them responsible for perjury or contempt if they lie on oath. So there is a risk that an overseas witness may not give truthful evidence via Skype because of lack of any form of accountability. The learned trial judge did not consider any of these matters when he authorized the respondent to lead evidence from his overseas witnesses on a contested issue of language difficulty via Skype. (Emphasis added)

42. The proposed overseas witness in the present case is a Fiji citizen. The USA and Fiji are parties to an agreement for mutual assistance in criminal matters. The domestic courts have the power and jurisdiction to hold the witness responsible for perjury or contempt if she lied on oath. He can be warned of possible prosecution upon his return to Fiji or the possibility of her being extradited to face charges in Fiji.
    
43. The identity of the proposed witness has been made known to the Defence in advance. The Prosecution is relying on the statement this witness had already given to police which was disclosed to the Defence. In that statement, she had given a vivid description of the perpetrator whom she had later identified through a photo. She is an important witness for the Prosecution’s case. Her evidence will help this Court to resolve a serious crime if her evidence could be trusted. She will give evidence under oath and be cross-examined by the Defence. The Court can devise a method to avoid inherent weaknesses associated with a dock identification. All the facilities and equipment are available to this Court to take his evidence from overseas.
    
44. I do not see any prejudice being caused to the Defence in allowing the application of the State. The interests of justice will be served if the application is allowed.
    
45. The application to use Skype as mode of taking evidence of the complainant from overseas is allowed. I direct that the evidence of the complainant could be adduced via Skype under Sections 295, 296 and 131(2) of the Criminal Procedure Act.
    

Aruna Aluthge
Judge

10 June 2024
At Lautoka

Solicitors:
Office of the Director of Public Prosecutions for State
The Accused in Person

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^[1] Khan v State [2022] FJCA 24; AAU004.2017 (3 March 2022)
^[2] Section 163(1) of the Constitution
^[3] Section 295(3) of the Crimes Act
^[4] Section 295(4) of the Crimes Act
^[5] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01/practice-direction-1a-participation-of-vulnerable-parties-or-witnesses
^[6] Section 296 (1) (a, b, c, d and-e)
^[7] The State v Hurtado AAU 00148 of 2015 (30 September 2016)
^[8] [2014] FJCA 186; AAU0091.2011 (5 December 2014)
^[9] Section 14 (2) (l) of the Constitution
^[10] Crim App. No AAU 0091 of 2011 (5 December 2014)
^[11] Section 14(2) (c) of the Constitution
^[12] Section 14(2) (e) of the Constitution
^[13] Khan v State [2002] FJCA 24; AAU004.2017 (3 March 2022)
^[14] Lotawa Crim App. No AAU 0091 of 2011 (5 December 2014) per Madigan J
^[15] The State v Hurtado AAU 00148 of 2015 (30 September 2016)
^[16] See: Hurtado (supra)