R v Satini [2020] TOSC 62; CR 227 of 2019 (26 August 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 227 of 2019 REX -v- HARRIS ISBELL SATINI

Prosecution’s application for remote video link evidence

RULING

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Ms T. Kafa for the Crown Defendant in person
Date of hearing: Date of ruling:	26 August 2020 26 August 2020

Introduction

1. The Defendant is charged with two counts of possession of illicit drugs, to which he has pleaded not guilty.
2. The trial of the matter is listed to commence on 7 September 2020, on an estimate of five days.
3. On 14 February 2020, I directed, among other things, that any application for evidence to be given by video link was to be made, on notice, no later than 7 August 2020.
4. On 6 August 2020, the Prosecution filed an application for the evidence of Dr Robyn Faith, an analyst from the Institute of Environmental Science and Research Ltd (“ESR analyst”) in New Zealand, to be given at the trial remotely via video link.
5. I directed the Acting Registrar to inform Crown Law to contact the Defendant and ascertain whether he consented to the application.
6. On 14 August 2020, Ms Aleamotu'a, the Crown Prosecutor in charge of this matter, emailed the Acting Registrar and advised that she had spoken to the Defendant who informed her, relevantly, that he does not consent to the ESR analyst giving evidence by video link and that he intends to call his wife as a witness although she is ‘stuck’ in the United States of America.
7. This application is an important one which is likely to have ramifications for the conduct of criminal trials here in Tonga for the duration of the current coronavirus pandemic (at least while national borders remain generally closed) and possibly beyond. The current relevant legislative framework does not expressly provide for remote evidence by video link in any proceeding.

Defendant’s submissions

8. The Defendant opposes the application on the grounds that:
   • (a) he considers that clause 11 of the Constitution requires witnesses to be brought before the court;
   • (b) his case is a serious one;
   • (c) being able to see the witnesses facial expressions would "help his case"; and
   • (d) he wants to be able to ask the analyst about the difference in the amount of the alleged illicit drugs described in his “summons” compared to that stated in her report or certificate.
9. The Defendant confirmed that he intended to call his wife to give evidence at his trial. She is a teacher working and living in the United States. He agreed that she could give her evidence by video link.

Crown’s submissions

10. The Crown submitted, in summary, that:
    • (a) the application is necessary because of the current border restrictions which will prevent the ESR analyst from travelling to Tonga to give evidence in person during the listed trial period;
    • (b) section 5 of the Supreme Court Act empowers the Court to allow evidence to be given by video link;
    • (c) the Defendant has not given any good reason to refuse the application;
    • (d) the Crown does not object to having to cross examine the Defendant's wife by video link;
    • (e) the ESR analyst is an expert, and therefore her demeanour during evidence is unlikely to be of any significant issue; and
    • (f) the technical capabilities are available and there are no other reasons to refuse the application.

Consideration

11. Since at least March 2020, most of the world has been, and remains in, the grips of the coronavirus pandemic. While Tonga has yet to record a confirmed case, its Government’s response has been one of vigilance and precaution. That response, like many other countries, has included closing the national borders. Although in recent weeks, dedicated flights have begun repatriating small numbers of selected citizens, it is not presently known when the borders will reopen generally and without quarantine requirements.
12. In a further response to the pandemic, the Supreme Court has conducted some aspects of court proceedings by the use of video link over the internet, including the last Court of Appeal session, appearances by foreign lawyers and the taking of evidence from witnesses overseas in civil cases. To date, the use of that technology to assist in the timely and continued conduct of court proceedings has been the subject of consent by all parties involved.
13. By contrast, the present application presents, probably for the first time in Tonga, a case where the proposed giving of evidence by video link is opposed. It is also a criminal matter.
14. The application, and the Defendant’s opposition to it, call for consideration of the legal bases upon which any application for evidence by video link is to be assessed in light of the current state and content of relevant Tongan legislation.
15. To the best of my research, neither the Evidence Act nor any other legislation in Tonga expressly addresses this issue. Over the past decade or more, other jurisdictions in the region have enacted amendments to their respective evidence legislation and civil and criminal procedural rules to accommodate evidence by video link. ^[1]
16. However, that is not to say that Tongan law is completely silent on the matter.

Supreme Court Act

17. Section 5 of the Supreme Court Act provides, relevantly:

(1) The powers of the Supreme Court within the Kingdom shall include, mutatis mutandis, all the powers for the time being vested in or capable of being exercised by the High Court of Justice in England and Wales.
(2) The powers of the Supreme Court referred to in this section include, subject to any other applicable law to the contrary, all powers that the court considers necessary or desirable ... to ensure that all reasonably obtainable evidence is available to the court.

[emphasis added]

Interpretation Act

18. Other applicable laws include the Interpretation Act. Section 34 thereof requires, relevantly, that every Act be read and construed subject to the Constitution.

Constitution, cl 11

19. Clause 11 of the Constitution provides the procedure on indictment and includes, relevantly, that at a person’s trial:

“...the witnesses against him/her shall be brought face to face with him (except according to law) and he shall hear their evidence and shall be allowed to question them and to bring forward any witness of his own and to make his own statement regarding the charge preferred against him. ...”

The Court has power

20. It is often said that extraordinary times call for extraordinary measures.^[2] While the current pandemic may certainly be regarded as an extraordinary and challenging time, in my view, and for the reasons which follow, in this day and age, the use of video link evidence should be regarded neither as an extraordinary measure nor contrary to the laws of Tonga.
21. Firstly, I consider that s.5 of the Supreme Court Act provides a sufficient legislative basis for allowing video link evidence. Subsection (1) links this Court’s prescribed powers to those of the High Court of England and Wales. In civil proceedings, where the Tongan Supreme Court Rules are silent, Order 2 permits adoption of the English Civil Procedure Rules. Where there is no appropriate provision there, the procedure to be followed shall be that prescribed by the Judge, guided by the UK rules. Rule 32.3 of the UK Civil Procedure Rules provides that the court may allow a witness to give evidence through video link or other means. Unlike England, Tonga does not yet have its own criminal procedure rules. In England, rule 18 of the Criminal Procedure Rules 2020, in conjunction with section 32 of the Criminal Justice Act 1988, provides for a "live link direction".
22. Secondly, s.5 provides a “legal exception” as contemplated within the aforementioned part of clause 11 of the Constitution. Subsection (2), which empowers the Court to ensure that all reasonably obtainable evidence is made available, is a broad and facilitative provision. I am not aware of, nor was I referred to, any comparable provision in corresponding legislation in the UK or the Pacific region. Given the technological advances in audio visual communications through the internet, I consider that where the necessary equipment and connections are available and reliable, video link evidence is reasonably obtainable evidence.
23. Thirdly, evidence by video link will not offend the requirement in clause 11 of the Constitution for witnesses in criminal trials on indictment to be brought "face-to-face” with the Accused. Without the benefit of any submissions on the genesis of this part of the Constitution, I suspect that the purpose of the requirement includes preventing the mediaeval practice of charges being brought by a town officer based only on the hearsay of unidentified townsfolk.
24. It should be noted that the terms of clause 11 do not include any superadded requirement of, for example, having to bring witnesses ‘physically’ face-to-face with an Accused or even that they be ‘in court’. Video link evidence achieves the practical requirements of clause 11 by enabling a Defendant to see, hear and question any witness giving evidence by that medium against him/her.
25. However, that does not mean, yet, that video link evidence is to be used as a matter of course or mere convenience. In the present case, it is a matter of necessity.

Discretionary considerations

26. Outside the pandemic conditions, relevant considerations, besides the tyranny of distance, on the exercise of the court’s discretion whether to allow video link evidence include:
    • (a) the cost and time of transporting overseas witnesses to Tonga;
    • (b) whether those imposts are proportionate to what is at stake in the proceeding;
    • (c) the importance of the evidence expected to be given to the determination of the real issues in the proceeding;
    • (d) the extent to which the evidence is expected to be contentious;
    • (e) whether issues of credit are likely to weigh in the assessment of the evidence;
    • (f) whether the use of video link technology may adversely impact effective cross examination;
    • (g) maintaining the integrity of the evidence; and
    • (h) whether, and if so, the extent to which, the opposing party may, or is likely to, be otherwise prejudiced by allowing evidence to be given by video link.
27. Ultimately, the issue calls for a balance to be struck between the Constitutional right of every person in the Kingdom to a fair trial and the Supreme Court’s legislative mandate to ensure all reasonably obtainable evidence is presented before it.
28. Recently, in Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153,^[3] Stewart J had to consider an application to permit eight witnesses to give evidence by video link from China who were otherwise unable to travel to Australia because of the Covid-19 travel restrictions. Section 47A(1) of the Federal Court of Australia Act 1976 (Cth) provides that the court may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means. Section 47C(1) of that Act provides that the court must not exercise that power unless the court is satisfied, essentially, that the courtroom or other place where the court is sitting is equipped with facilities that enable all eligible persons present in that courtroom or place to see and hear the remote witness and that the place at which the remote witness is located is equipped with facilities that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the court is sitting.
29. His Honour agreed with other Federal Court Justices that in deciding whether or not to allow video link evidence:
    • (a) the overriding consideration must remain what is considered by the Court to be in the best interests in the administration of justice, including the need to ensure that justice is done as between the parties;
    • (b) the exercise of the discretion must be guided by the facts and circumstances of the individual case in which permission is sought;^[4] and
    • (c) the process of deliberation required in order to exercise the discretion properly is accurately described as a balancing exercise^[5].
30. One of the issues before Stewart J was whether it was lawful for the witnesses to give remote evidence having regard to Article 263 of the Civil Procedure Law of the People’s Republic of China (1991). No such issue arises in the present case concerning a Crown witness in New Zealand and potentially a Defence witness in the USA.
31. His Honour also considered that the circumstances of the pandemic were (and remain) such that if the application was not allowed, there would be no feasible alternative in the foreseeable future. As in the present case, it is simply unknown when circumstances may change so as to allow travel to Tonga by witnesses resident in New Zealand, the United States or elsewhere. It may well be that such travel is unlikely until there is a widely available vaccine against the virus. At this stage, and as promising as the reports on the development of a vaccine may be, no one knows when that will be.
32. As Stewart J observed, the result is that if the trial is put off on the basis that the overseas witnesses cannot give evidence by video link, it is simply unknown when they may be able to give evidence in person and the trial may be indefinitely delayed. His Honour noted the aphorism that justice delayed is justice denied and added that ‘justice indefinitely delayed is justice definitely denied’.^[6]
33. Of course, if leave is refused now, a fresh application could be made at some time in the future if it still looked like no trial would be able to be held in the then foreseeable future. But that approach would not really solve anything; it would merely defer the problem for future consideration.
34. The next issue considered in Auken was that the Chinese witnesses were critical to the case. Without them, or at least most of them, it could not proceed. Here, there can be little doubt that if the Defendant maintains his right pursuant to s.36 of the Illicit Drugs Control Act to require the ESR analyst to give evidence, that evidence is critical to the Crown case. It is not yet known whether the evidence expected to be given by the Defendant’s wife might be regarded as critical to the defence case.
35. The third main issue considered in Auken concerned the practicalities and efficacy of cross-examination by video link. That issue took on greater importance in that case where there were allegations of fraud such that the cross-examination was likely to go to credit, interpretation would be required and the cross-examination would involve many documents.
36. In that regard, His Honour observed:

“47. There was a time when cross-examination by AVL was regarded as being significantly less effective than cross-examination in person with the consequence that where questions of fraud and credit were at issue leave to give evidence by AVL would be difficult to come by. Dicta of Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; 181 FCR 152 are typically cited. Factors weighing against leave being granted were identified to include (at [78] ) “the [troubling] prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom” and the benefits of “the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel”. Those benefits were identified as (1) enhancing the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of their obligations, (2) affording the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party, and (3) providing the court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by witnesses, both to questions and to the overall situation presented by the necessity to give evidence in court.”

37. However, it was also noted^[7] that times had changed significantly over the 10 years since the countervailing concerns expressed by Buchanan J. The technology has improved markedly, and judges and counsel have become (or are becoming) more accustomed to cross-examination by video link. The experience of conducting remote (but no less real) hearings includes a judge being able to see the witness on the video screen a short distance away such that the perception gained of the witness’s facial expressions can be much greater than it is in court. With a screen of sufficient size, such as the Tonga Supreme Court now possesses, cross-examiners will have a similar benefit. Like Stewart J, my previous experience of hearings or parts thereof being conducted by video link suggests that ‘well-prepared cross-examination can be as, or just about as, effective in a virtual setting’.
38. Although rarely encountered, any tendency by any participants to regard the occasion of a remotely conducted trial, or part of it, with less solemnity and formality than it deserves, is not only undesirable but could also undermine effective cross-examination. However, that may be quickly corrected by a judge reminding the relevant participants of the solemnity and formality of the occasion and re-establishing the appropriate atmosphere.
39. The final issue considered by Stewart J in Auken, was whether there was any potential risk to the integrity of the evidence by, for example, the witness being prompted in their answers by someone in their presence but off screen. His Honour addressed those concerns by directing that the remote witness be alone in the room in which that person’s evidence is given (save for a technical support person), and out of earshot of any other witness; that the evidence of the witness not be broadcast or made available to any other witness before the latter witness has completed their evidence; and for the lawyer for the applicant to take all necessary steps to ensure those conditions were adhered to at all times.
40. Similar arrangements were made for the provision of documents to be before the witnesses or to be shown to the them during their evidence by screen sharing features within the relevant software.

Result

41. I respectfully agree with the principles, approach and relevant considerations canvassed by Stewart J in Auken and the decisions referred to therein. I see no reason not to adopt the same in Tonga for guiding the proper exercise of discretion provided by s.5 of the Supreme Court Act in respect of the instant application and others like it which may follow in the future.
42. To accede to the Defendant’s objection here, while the current pandemic conditions prevail, will result in the trial of the matter being deferred for an indefinite period of time. That prospect, and resulting delays, in my view, pose an intolerable threat to the administration of justice in this case.
43. The technology and necessary equipment are available in the Supreme Court and have, to date, proven reliable and more than satisfactory in terms of the quality of vision and audio presented during previous video link sessions.
44. I am not persuaded that any of the Defendant’s grounds of objection will occasion any prejudice to him or the fair conduct of his trial. The ESR Analyst is a professional law enforcement witness. There is unlikely to be any issue of credit in respect of the witness’ technical evidence. I am not satisfied that video link evidence will, or even might, create any forensic disadvantage to the Defendant during the conduct of his trial.
45. I also take into consideration that the Crown does not oppose having to cross-examine the Defendant’s wife by video link should he still wish to call her to give evidence from the USA at trial.
46. I am satisfied that appropriate arrangements can be put in place to ensure the integrity of the evidence.
47. For those reasons, the Crown’s application to adduce the evidence of the ESR analyst in New Zealand by video link is granted.
48. After hearing further from the parties, I make the following directions for the conduct of all remote evidence by video link to be given during the trial:
    • (a) each party is to ensure that their respective video link witness has adequate audio visual equipment with appropriate software and a reliable internet connection with sufficient bandwidth to enable video communications to operate without undue interruptions or delays;
    • (b) each witness is to be alone in the room in which they give their evidence and out of earshot of any other person who may be associated with the case (save for any technical support person who is not a witness in the case), for the duration of their evidence;
    • (c) where a video link witness elects to take an oath at the commencement of their evidence, he or she is to have, or have provided to them, a copy of the Bible upon which to take their oath;
    • (d) the evidence of any other witness given prior to the commencement of any video link witness is not to be communicated in any way to the video link witness before he or she commences his or her evidence;
    • (e) the parties are to confer in relation to any documents which are to be put to a video link witness, and, if agreed, copies of such documents are to be provided to the video link witness (by email, if available) prior to commencement of that witness’s evidence;
    • (f) if either party does not consent to a document being provided to a video link witness prior to the commencement of that witness’s evidence, then, subject to any objections as to admissibility, to be heard and determined at the commencement of the trial, the document shall be shown to the video link witness during their evidence by email or through screen sharing features available within the software to be used;
    • (g) the video link conferencing sessions for each witness will be conducted using ‘Zoom’;
    • (h) the parties are to provide each other and the Court with the email and telephone contact details for their respective video link witnesses no later than 2 September 2020;
    • (i) the parties are to confer and endeavour to agree in relation to the day and time during the trial when each of the video link witnesses is to be called so that arrangements with those witnesses can be put in place in advance and to avoid any unnecessary delays during the course of the trial;
    • (j) the parties are to liaise with the Acting registrar of the Supreme Court to arrange test calls with their respective video link witnesses prior to the scheduled time/s for those witness’s evidence; and
    • (k) each party is responsible for ensuring the above directions are followed in respect of their respective video link witness at all times up to the conclusion of each such witness’ evidence.
49. Each party has liberty to apply on 24 hours written notice should any of the above directions require further consideration or amendment.
50. Otherwise, the trial of the proceeding, to commence on 7 September 2020, on an estimate of five days, is confirmed.
    

NUKU’ALOFA	M.H. Whitten QC
26 August 2020	LORD CHIEF JUSTICE

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^[1] For example, ss 47A to 47G of the Australian Federal Court Act, Part IIA of the Victorian Evidence (Miscellaneous Provisions) Act 1958 and the corresponding amendments in Order 41A to that State's Supreme Court Rules.
^[2] Benet Wilson's famous quote in the wake of the 2005 Hurricane Katrina in the U.S.

^[3] 11 August 2020
^[4] Flick J in Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544 at [11].
^[5] Jackson J in Australian Securities and Investments Commission v Wilson [2020] FCA 873 at [36].
^[6] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551 per McHugh J.
^[7] [48]