Tari v Minister of Health [2002] VUSC 42; Civil Case 036 of 2001 (10 July 2002)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.36 of 2001

BETWEEN:

BENUEL TARI

Plaintiff

AND:

THE MINISTER OF HEALTH

Defendant

RULING ON TAKING OF EVIDENCE

BY VIDEO LINK/TELEPHONE LINK

The plaintiff in this case wishes to call Dr. Mark Horsley an orthopaedic surgeon. He practices in Newton, near Sydney in Australia. Dr. Horsley has provided two reports and it is accepted his evidence is relevant and admissible. Dr. Horsley can come to Vanuatu. However, the plaintiff asserts that the cost is prohibitive and out of proportion to the sums in dispute and it would be extremely difficult for Dr. Horsley to leave his practice for two or probably three days to give an hour or so of evidence.

Counsel for the plaintiff and defendant are content for his evidence to be taken by video link. It would appear such a facility will be available in Vanuatu in the next few months. The Court has been asked to rule whether, as a matter of law, such evidence can be received and if so what are the procedures and considerations for doing so.

Order 39 of the Supreme Court Rules deals with “Evidence Generally”. Rule 1 states that facts “shall be proved by the examination of the witnesses orally and in open Court”. Rule 2 deals with proof by affidavit and when the deponent must be present in Court to give oral testimony.

Rule 3 (1) states:-

“Without prejudice to Rule 2 of this Order, the Court may, at or before the trial of an action, order or direct that evidence of any particular fact shall be given at the trial in such manner as may be specified by the order or direction”.

Sub-rule 2 gives some examples, although it is clear video link reception of evidence cannot have been in contemplation when the current rules were drafted.

The case of B. v. Dentists Disciplinary Tribunal [1994] 1NZLR p. 95 has been cited. I need not set out in detail the considerations and principles discussed in that case. It dealt with similar circumstances. The Court saw no reason to preclude evidence by video link.

In Henderson v. SBS Realisations Ltd. (Court of Appeal, England, 13 April 1992) noted at (1992) 108 LQR 561 Lord Justice Balcombe stated:-

“…this Court should be very loath to construe the statutory provisions relating to jurisdiction or so to exercise its powers under the rules as to preclude the use of technological improvements which the law ought to be minded to accept wherever possible”.

I cannot find any provision in the Constitution, any statute or any rule which precludes the use of a video or telephone link. Article 49 (1) of the Constitution gives the Supreme Court “unlimited jurisdiction to hear and determine any civil or criminal proceedings …”.

Article 47 (1) states:-

“…The function of the judiciary is to resolve proceedings according to law. If there is no rule of law applicable to a matter before it, a court shall determine the matter according to substantial justice and wherever possible in conformity with custom”.

Section 29 (1) of the Courts Act [CAP. 122] states:-

“Subject to the Constitution, any written law and the limits of its jurisdiction a Court shall have such inherent powers as shall be necessary for it to carry out its functions”.

I am satisfied that this Court has power to admit evidence by video or telephone link. Indeed, this Court should positively embrace new technology if it enhances justice or improves the efficient and economical disposal of cases. There must however be safeguards to ensure fairness between the parties and maintain the public interest in the proper conduct of trials. In my judgment the admission of evidence by such means should be a matter of discretion for the Court. The Court, however, should initially look to oral evidence with the witness present in person in Court.

An argument against the reception of evidence from overseas is the question of sanction for perjury. This was discussed in B. v. Dentists Disciplinary Tribunal. This is not, in my judgment, a consideration which should stand in the way of the reception of overseas evidence. However, it is one of the factors to be taken into account when the Court exercises its discretion whether or not to allow such evidence.

What matters should a Court take into account when exercising its discretion? I find the following should be taken into account :-

1. The public interest in the proper conduct of a trial, in particular the establishment of the truth of a matter by clear and open means.

2. The question of fairness to the parties and the balancing of their competing interests.

3. Any compelling or overriding reason why the witness should appear in person before the Court.

4. The importance of the evidence to the case.

5. Whether or not the reason for seeking the giving of evidence by a link is genuine and reasonable (e.g. how inconvenient is it to attend, what is the cost, particularly in relation to the sums in issue).

6. What is the quality of the link likely to be.

7. Whether or not an essential limb of the case can be determined before the need for a link (e.g. if liability is contested and the overseas witness addresses quantum)

8. Whether the link to be used will render the giving of evidence or cross-examination difficult (e.g. the detailed use of plans, diagrams, x-rays, especially if the link is voice only).

This list is not intended to be exhaustive.

Parties should bear in mind the expense and convenience of an overseas expert witness attending trial if the same expertise is available from a witness within the jurisdiction.

What procedure should be followed when seeking to use a video or telephone link? I see no reason for any special procedure. Application should be made with one or more supporting affidavits stating:-

(a) the name of the witness and the place where he/she lives or works and will be giving evidence;

(b) the issues addressed by the witness’s evidence;

(c) the reason why a link is sought and why the witness cannot or should not be required to attend;

(d) the type of link proposed and the specific facility to be used;

(e) any other matter that will assist the Court in the exercise of its discretion.

If the application is opposed then notification can be given and affidavits in opposition filed and served.

If the Court allows the application then clear directions must be given for the practical taking of the evidence by the link. The parties must assist the Court in this. Those directions should address:-

1. Which party is to arrange and pay for the link (this will almost always be the party “calling” the witness concerned).

2. When and where the hearing will take place, both for the Court and the witness.

3. The stage in the trial at which the evidence by link is taken.

4. Ensuring all documents and exhibits relevant to the witness’s evidence are available for the Court and the witness. They should be clearly identified and numbered. Any issues of relevance or admissibility should be resolved before hand.

5. The witness should sit at a plain desk or table or stand at a lectern with only the required documents and exhibits before him/her.

6. The facility should show a reasonable part of the room but retain sufficient proximity to the witness as to allow a clear view to assess him/her as a witness.

7. There should be no one else in the room save for any technical personnel to help with the link.

8. The question of the oath and how it is to be taken should be predetermined and the appropriate book and words of oath be available.

9. The Judge/Magistrate and counsel should be instructed in the use of the equipment beforehand and the Court have control of whose face appears on screens. The arrangements for the room where the Court is sitting should be prescribed.

10. The hearing of such evidence should be in normal court hours, unless there are exceptional circumstances.

11. The Judge/Magistrate may terminate the taking of the evidence if he/she considers:-

(a) the quality of the link is unacceptable; or

(b) to continue would cause unfairness to a party.

12. Consideration should be given to the presence of a fax machine at each end with a telephone link.

Again this list is not intended to be exhaustive. Some of these points refer to a video link only.

In this particular case I will allow the taking of the evidence by video link. Both parties agree. The costs of attendance would be high and the inconvenience to Dr. Horsley substantial. The plaintiff must file an affidavit verifying the facts he put forward in support of the application and also a draft order addressing the points raised at 1 – 12 above. If no video link is possible in the near future, I will hear the parties on the question of a telephone link.

Dated at Port Vila, this 10^th day of July 2002.

R. J. COVENTRY

Judge.