IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No.36 of 2001
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BETWEEN:
BENUEL TARI
Plaintiff
AND:
THE MINISTER OF H
Defendant
RULING ON TAKING OF EVIDENpan>
BY VIDEO LINK/TELEPHONE LINK
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The plaintiff in this case
wishes to Dr. Mark Horsley an orthopaedic surgeon. He practices in
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 forplaintiff and defendant are content for
his evidence to be taken by video link. It woIt 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 deith “Evidence
Generally”. Rule 1 states that fhat 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 b the trial of an action, orn, 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 recn of evidence cannot have bave been in contemplation when
the
current rules were drafted.
The case of B. v. Dentists Disciplinribunal
[1994] 1NZLR p. 95 has been cited. I need 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 shouldery loath to construe the
statutory provisions relatielating 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
prings according to law. If t 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 [C22] 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 Cous power to admit
evidence by video or telephone link. Indeed, this Court should positpositively
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.
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An argument against the reception of evidence from
verseas is the question of sanction for perjury. This was dwas 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.
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What matters should a Court take into account when
exercising its discretion? I find the following should be taken into account
:-
1. &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; &nbp;
ubl p interesterest in the prcondu a trial, in particular
the establishment of the truth of a matter by clearclear and and
open means.
2. ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;&
The question oion of fairness to the parties and the balancing of their
competing interests. ass="rmal" style="text-align: justify; tndent.0pt; margin-left: eft: 72.0p72.0pt; mat; margin-rgin-top: top: 1; margin-bottom:
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3. &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;&nssp;
Apan>Any compelling or overriding reason why the witness should appear in
person before the Court.
4. ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;&
The importancetance of the evidence to the case.
5.5. ;&nbssp; &nsp; &nbs; &nbbp;&nnbp;&
span>Whether ther or notr not the reason for sg theng ofence
link is genuine and
reasonable (e.g. how inconvenient ient is it s it to atto attend,tend, what
is the cost, particularly in relation to the sums
in issue).
6. &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;
s What isat is the quality of the link likely to be. n>
7. &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;&
Whan>Whether or not an essential limb of the case can be determined before
the need for a link (if lity isested and the oversetness
adds quantumantum)
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8. &&nsp;;&nspp;&nssp; &nbp;
This list i 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) &bsp; &nbbp;&nnbsp; &nbbsp;
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the name of the witness and the place where he/she lives or works and
will be giving evidence;
(b) nbsp; &nbbp;&nnbp;& &nbbsp;
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the issues addressed by the witness’s evidence;
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(c) &bsp; ; &nbbp;&nnbsp;&nsp; &nbp; &nbssp; &
sp; the reas reason why a link is sought and why the witness cannot or should
not be required to attend;
(d) p; &nbp;&nbp; p; &nnsp;&&nsp;
the typeiof link proposed and the specific facility to be used;
(e) &nbs; p;&nssp; p;
anan>any other matter that will assist the Court in the exercise of its
discretion.
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If the application is opposed then notification can be
iven and affidavits in opposition filed and served. span>
If the Court allows the application then clear directions
must be given he practical taking of the the evidence by the link.
The
parties must assist the Court in this. Those directions should address:-
1. &nbssp; &nbssp; &nbp; &nbs;
s party is to a to arrange and pay for the (thil alm s be arty ing” itnescerned).
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<
2.&nb"> &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; Wpen and where the the hearing will take place, both for the Court and
the witness.
>
3. nbsp; p;&nbbp; &nbp; &nbssp; &nbssp;
Than>The stage in the trial at which the evidence by link is taken.
&bsp; ;&nbssp;&nbp; &nsp; ;&nbpp; &nnsp;&&nsp; &nbp;
Enguril documeocuments and exhibits relevant to the witness’s
evidence are availabl the and itness. They shbe cl
ntified
and numberembered. And. Any issy issues of relevance or admissibility shoy should buld be
e
resolved before hand.
5.& &nbp; &nbssp; &nbssp;
The witnewitness should sit at a plain desk or table or stand at a lectern
with only the required documents and exhibits before
him/her.
6. &nsp; &nbbsp; &nbbsp; &nbp;
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The facisity should show a reasonable part of the room but retain
sufft proy to itnesto al cleaw to assess
him/her as
a witness.
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7.&nnbsp; &nbs; &nbbp;&nnbp;&&nbp;; &nsp; ;
sp There should ould be no one else in the room save for any technical
personnel to help with the link.
8.; &nsp; &nbbsp; &nbbsp;
p;
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. &nbbsp; &bsp;&nbp; &nbss;&nbbsp;&&nsp; &nsp; &nbbp;&n The Jude Judge/Magistrate and counsel should be instructed in the use of
the equipment beforehand and the Court have ol ofe
facears on
screens. Thangements for the room where here the Cthe Court ourt is siis sitting should be
prescribed.
&n;"> & &nsp; &nbssp;
The hearing ofng of such evidence should be in normal court hours, unless
there are exceptional circumstanc/span
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11. &bsp; ; &nbbp;&nnbsp;&nsp; &nbp; &nbssp;
Tpan>The Jude Judge/Magistrate may terminate the taking of the evidence if
he/she considers:-
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(a) &nnbsp;; nbsp;nbsp;&nbp; &nnbsp;;&nspp;&nsp; &nsp;
ual qy of the the link is unacceptable; or
(b) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
to continuld culd cause unfairness to a party.
&GB"> nbsp;
>
12. &nnsp;&&nsp;;&nspp;
s Consideration should be given to the presence of a fax machine at
each end with a telephone link.
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Again this list is not intended to be exhaustive. Some of
these points ref a video link only. span>
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 10th day of July
2002.
R. J. TRY
Judge.
