INTRODUCTION
Technological developments in
the field of information and communication technology (ICT) have brought a
turning point in the history of human civilization. It has brought about
numerous changes and innovations in all fields of human activity. It has
resulted in enhanced efficiency, productivity and quality of output in every
walk of life. There is an immediate need for exposing the judiciary to the
numerous benefits of utilising ICT in judicial administration, to enable the
Judiciary fulfil its constitutional role of justice delivery to all without
fear, favour or discrimination.
VIDEO CONFERENCING
According
to Riley A. Williams in “Videoconferencing: Not a Foreign Language to International Courts”:
“Videoconferencing is
the holding of a conference among people at remote locations by means of
transmitted audio and video signals. Through these conferences, individuals
meet one another in a real-time virtual manner as if they were in the same room
without the hassle and expense of traveling.
While slight limitations remain depending on the quality of the
equipment employed by courts, the general facial and physical expressions
communicated by witnesses are rarely inhibited by the use of such technology.”
Video
Conferencing (VC) enables any person who has an interest in court proceedings
to be involved in a hearing from a remote location. In its simplest form, a
witness at a remote location may give his/her evidence via a video link to the
court with one screen and one camera in the courtroom.
The
technology needed to establish a video link is relatively simple. A screen and
a camera with a microphone are required at each location. Any form of screen
can be used. Also using the popular video chatting application; Skype, a
witness in remote location can testify in a trial. All that may be required at
the his end would be an Internet enabled smartphone or laptop computer and in
the courtroom an Internet enabled laptop computer and perhaps a projector to
project the visuals and a sound system to amplify the audio to the hearing of
all in the court room.
VC
remains a viable method to obtain testimony as a witness’s presence at trial
may be hindered by geographical impediments, fears associated with testifying
in person, or even lack of security at the trial site. Through
videoconferencing, unavailable witnesses can be transmitted into courtrooms,
thus eradicating the limitations on testimonies of encumbered individuals as
well as individuals located worldwide.
LEGAL
AND POLICY FRAMEWORK FOR USE OF VIDEO CONFERENCING IN TAKING WITNESS TESTIMONY
The primary legal framework for
the use of VC in taking witness testimony is section 125 of the Evidence Act,
2011 which provides that all facts, except the contents of documents, may be
proved by oral evidence. Oral evidence
simply put is the verbal assertion or written statement on oath of a witness
offered as proof of a fact or facts in issue at a trial. Therefore, by the
above provision it is submitted that a witness who testifies through video
conferencing is doing so orally and that would suffice as there is no
requirement in the Evidence Act that a witness must be physically present in
court to give evidence provided the court can observe his demeanour while
testifying through VC.
Also section 234(3) of the
Administration of Criminal Justice Act, 2015 provides that where in any
proceedings the court determines it is necessary to protect the identity of the
victim or a witness the court may receive evidence by video link.
Although under the National
Industrial Court (NIC) Rules, 2017 there is no express provision for use of
video conferencing in taking witness testimony, Order 3 of the Rules state that
the Court may direct a departure from these Rules where the interest of justice
so requires.
Furthermore, Order 6(2)(a) and
(b) provides that in any proceeding pending before NIC, the Court may as a
specialized Court regulate its procedure and proceedings as it thinks fit in
the interest of justice and fair play and in appropriate circumstances, depart
from the Evidence Act
as provided in section 12 (2) (b) of the National Industrial Court Act,
2006 in the interest of justice, fairness, equity and fair-play.
Order 6(3) stipulates that in
any proceeding before the NIC, the Court shall apply fair and flexible
procedure and shall not allow mere technicalities to becloud doing justice to
the parties based on the law, equity and fairness while also considering the
facts of any matter before it.
By Order 9(1) where a matter
arises for which no provisions or adequate provisions are made in NIC Rules,
the Court may adopt and apply any procedure as will in its view do substantial
justice to any of the parties concerned in the matter. Under this particular
provision, even though video conferencing may not have been provided by the
rules of the NIC, the Court may nevertheless allow use of video conferencing
where doing so may do substantial justice to any of the parties.
Again, Order 9(2) further
provides that the NIC Rules are to be applied by the Court as it considers fit
and the Court may depart from the rules of evidence in the interest of justice
as provided in Section 12(2)(b) of the National Industrial Court Act, 2006.
In view of the above
provisions, it is submitted that a witness in a trial or proceeding at the NIC,
may be allowed to offer his testimony through video conferencing in the
interest of justice, fairness, equity and fair-play. The NIC in such a
circumstance will not be beclouded by technicalities but will only consider
whether using video conferencing may do justice to the parties in the case
before it.
In 2012, the then Chief Justice
of the Nigeria, Justice Dahiru Musdapher, launched the Nigerian Judiciary
Information Technology Policy (JITPO) at
the National Judicial Council Complex in Abuja. He stated that that
implementing the policy will assist the judiciary to meet the changing needs of
the nation’s judicial officers, court employers, key stakeholders and the
general public as according to him the policy will provide the needed
foundation for the implementation of any Information Technology (IT) project in
the judiciary.
Justice Musdapher charged the
Nigerian Judiciary to embrace IT as a means of improving access to courts and
increase transparency of the court process by providing information about court
cases, court procedures, facilities and most importantly expedite the judicial
process.
The JITPO has not only endorsed the use of Video Conferencing,
but has clearly laid down guidelines for its application to the Nigerian
Courts. It provides as follows:
“The
use of video-conferencing technology is greatly encouraged in the Judiciary.
Video-conferencing can be used to connect people in different physical
locations especially for critical meetings and discussions. Video conferencing
systems can also be used to enable testifying witnesses appear in court without
having to travel to the courtroom. Expert witnesses, prisoners, and various
other witnesses can provide the same testimonies from remote locations. From
the prison, prisoners will see and hear everything that takes place in the
courtroom and will be able to answer questions posed to them by the judges and
lawyers…Videoconferencing in the court system offers significant cost savings
and improved security by reducing the need for high-security prisoner transport.
The entire courtroom experience will be made shorter, safer and more
cost-effective.”
In ESSO WEST AFRICA INC. v. T. OYEGBOLA (1969) NMLR 198, the Supreme
Court pronounced that: “The law cannot be
and is not ignorant of the modern business methods and must not shut its eyes
to the mysteries of computer”.
The Court of Appeal, relied on
the concept of judicial notice in admitting a computerized document in OGOLO v.
IMB (NIG) LTD. (1995) 9 NWLR (Pt 419) 324. The court held that it had become a
notorious fact that commercial and banking operations in Nigeria had changed in
keeping with the computer age such that the court could take judicial notice of
them under section 74 of the old Evidence Act.
In OKEREKE v. UMAHI & ORS
(2016) LPELR-40035(SC) NWEZE, J.S.C. at P. 36, Paras. A-B, held on the
definition of "CARD READER": thus:
"According
to Wikipedia, the Free Encyclopaedia, the INEC card reader is a
portable electronic voter
authentication device. Designed, specifically, for
the accreditation process
for the authentication of eligible voters before voting, the machine
was configured to read only the PVCS of a particular polling unit and can only
work on Election Day, Wikipedia,
the Free Encyclopaedia, (last
accessed on January
30, 2016)".
Furthermore, in MRS.BETTY DAREGO v. A. G. LEVENTIS (NIGERIA) LTD & 3 ORS, LER[2015]CA/L/481/2011, the
Court of Appeal PER Y.B. NIMPAR, J.C.A held on the meaning of the word
"PREPONDERATE" thus:
“Preponderate
according to www.dictionary.com is a verb and its, original meaning is
“to weigh more than” and its source is the Latin word ‘praeponderare’ meaning
“out weight”, “to exceed in force or power”. Preponderance would therefore mean
greater weight, a sense of greater importance.”
In the above cases, it
can be seen that the court used a dictionary available on the web: dictionary.com and
Wikipedia.com to define the word "preponderate" and “card reader”
respectively. Before now the justices would have most likely resorted to the
traditional lawyers’ dictionary; the Black’s Law Dictionary, but in this
instance they did not. It is therefore good to note that our Lordships are
utilizing the web to research and cite same as sources of information in their
judgments. This is a welcome development. It means that our courts are not
oblivious of technological advancements or ICT and how they can be used to aid
the administration of justice.
It is therefore not surprising that the JITPO
enjoins the judiciary not to “turn a blind eye to the mysteries of the computer”
which necessarily includes the use of video conferencing for taking witness
testimony, but to embrace ICT as means of improving access to courts,
increasing transparency of the court process by providing information about
court cases, court procedures, facilities and most importantly expediting the
judicial process. The use of video conferencing no doubts contributes to the
expediting of the judicial process by saving costs and delays as witnesses can
testify from any location without necessarily being physically present in the
court room.
In view of the foregoing, it is submitted that a
court of law in Nigeria is allowed to make use of video conferencing for taking
witness testimony where the interest of justice would be served. The courts are
not to rely on technicalities or the lack of a specific provision for video
conferencing in our substantive or procedural laws to reject the use of video
conferencing.
EXAMPLES
FROM FOREIGN JURISDICTIONS
UNITED
STATES
In the United States certain district
courts are allowed to use videoconferencing for prisoner civil-rights-pretrial proceedings.
The US Courts of Appeals for the Second, Tenth and District of Columbia,
Circuits use videoconferencing for oral arguments.
In MARYLAND v. CRAIG 497 US 836
(1990) the US Supreme Court accepted child witness testimony via one-way video.
In HARRELL v. STATE, 709 So. 2d 1364 (Fla. 1988), the Florida Supreme Court
sustained a robbery conviction based largely on the two-way video testimony of
complainants testifying from Argentina. Rule 3.190(J) of the Florida Rules of Criminal
Procedure provides the circumstances under which and procedure by which a party
can take a deposition to perpetuate testimony for those witnesses that are unavailable.
Thus, in all future criminal cases where one of the parties makes a motion to
present testimony via videoconferencing, it is incumbent upon the party
bringing the motion to:
(a)
verify or support by the affidavits of credible
persons that a prospective witness resides beyond the territorial jurisdiction
of the court or may be unable to attend or be prevented from attending a trial
or hearing; and
(b)
establish that the witness’s testimony is
material and necessary to prevent a failure of justice.
If all the above requirements
are met the court is allowed to make use of videoconferencing to take witness
testimony.
UNITED
KINGDOM
In the UK, the Access to
Justice Act, 1999 allows VC to be used for civil hearings, e.g. case management
conferences, ancillary relief hearings, overseas or remote witnesses or in any
civil cases in which the court directs the use of video and the parties
involved consent to its use.
Furthermore in the UK, Section 51 of the Criminal Justice Act 2003 enables the court to allow
witnesses (other than the defendant) in the United Kingdom to give evidence by
live link if the court is satisfied that giving evidence in this way is in the
interests of the efficient or effective administration of justice.
Section 51 was piloted in 5 Crown Court centres and was restricted
to serious sexual offences. The Criminal Justice Act 2003 (Commencement No. 24
and Transitional Provisions) Order 2010 extended live links to all witnesses in
all cases for all criminal offences in all courts and came into force on 26
April 2010. The witness does not have to be a special 'category' of witness
(for instance vulnerable or intimidated as defined by the Youth Justice and
Criminal Evidence Act 1999 [YJCEA]).
"Live link" is defined in section 56(2) and will usually mean
a closed circuit television link, but could apply to any secure technology with
the same effect such as video conferencing facilities or the internet.
The benefits of the effective use of section 51 live links include a
reduction in waiting times for professional and expert witnesses and reducing
delay in the listing of some cases.
A
court may only authorise the use of a live link if it is in the interests of
the effective or efficient administration of justice for the witness to give
evidence by way of a live link - for example, a witness may be able to give
evidence from a court in a different part of the United Kingdom rather than
have to travel to the trial court (subsection (4)[a]).
Section
51(6) sets out the matters that the court must consider when deciding whether
to authorise the use of a live link (subsection (6)). These are:
(i)the
availability of the witness;
(ii) the
need for the witness to attend in person;
(iii) the
importance of the witness's evidence to the proceedings;
(iv) the
views of the witness;
(v) the
suitability of the facilities at the place where the witness would give
evidence through a live link;
(vi) whether
a direction might tend to inhibit any party to the proceedings from effectively
testing the witness's evidence.
Section
52 provides that where a direction for a live link has been given that witness
must give all their evidence through a live link. This makes it clear that any
cross-examination of the witness is also to be given by live link, although the
court can rescind a direction if it seems to be in the interests of justice to
do so.
Section 54 allows the judge to give directions to the jury, if
necessary, to ensure that they give the same weight to evidence given through a
live link as they would had the evidence been given by the witness in person in
court.
CANADA
In the Canadian case of CHANDRA
v. CBC, 2015 ONSC 5385 (CanLII), a few days before the commencement of trial,
the defendants requested that five of their witnesses four of which lived in
the UK and one in the United States, be permitted to testify via
video-conference at the trial. The plaintiffs opposed the request but the court
overruled them and noted that Rule 1.08(1) of the Rules of Civil Procedure
permits trial evidence by telephone or video conference. If the parties both do
not consent to a witness giving evidence by telephone or video-conference then
it is open to the court on motion or on its own initiative to make an order
directing a telephone or video conference on such terms as are just.
The court further noted that
the factors to be considered in exercising this discretion are set out in Rule
1.08(5) and are as follows:
(a) The general principle that
evidence and argument should be presented orally in open court;
(b) The importance of the
evidence to the determination of the issues in the case;
(c) The effect of the telephone
or video conference on the court's ability to make findings, including
determinations about the credibility of witnesses;
(d) The importance in the
circumstances of the case of observing the demeanour of a witness;
(e) Whether a party, witness or
lawyer for a party is unable to attend because of infirmity, illness or any
other reason;
(f) The balance of convenience
between the party wishing the telephone or video conference and the party or
parties opposing; and
(g) Any other relevant matter.
The
court also held that:
"While the general principle
that trial evidence should ordinarily be presented orally is clearly and
unequivocally articulated by rule 1.08(5)(a) it is appropriate, particularly in
light of the culture shift advocated by the Supreme Court of Canada, to take a
21st century view of the use of video conferencing (and similar
technologies)....The use of video or similar technologies does not now
represent a significant deviation from the general principle favouring oral
evidence in court. Such evidence is given orally, under oath or affirmation,
and is observable "live" as it would be with the witness present in
the courtroom. Questions are asked and answers are given in the usual way. The
witness can be closely observed and most if not all of the visual and verbal cues
that could be seen if the individual was physically present can be observed on
the screen. The evidence is received by the court and heard and understood by
counsel and any members of the public who may be present in the courtroom at
the time…a court should be reluctant to deprive itself and the
parties of the opportunity to receive the testimony of a non-party witness
through video conferencing."
SOUTH
AFRICA
In South Africa section 158 of
the Criminal Procedure Act 1977 (Act No. 51 of 1977, as Amended up to Criminal
Law (Forensic Procedures) Amendment Act, 2010), provides that criminal
proceedings take place in the presence of the accused. An exception is provided
for in section 158(2)(a) namely:
“(2)(a)
A court may, subject to section 153, on its own initiative or on application by
the public prosecutor, order that a witness or an accused, if the witness or
accused consents thereto, may give evidence by means of closed circuit
television or similar electronic media.
(b)
A court may make a similar order on the application of an accused or a witness.
(3)
A court may make an order contemplated in subsection (2) only if facilities
therefore are readily available or obtainable and if it appears to the court
that to do so would –
(a)
prevent unreasonable delay;
(b)
save costs;
(c)
be convenient;
(d)
be in the interest of the security of the State or of public safety or in the
interests of justice or the public; or
(e)
prevent the likelihood that prejudice or harm might result to any person if he
or she testifies or is present at such proceedings.
(4)
The court may, in order to ensure a fair and just trial, make the giving of
evidence in terms of subsection (2) subject to such conditions as it may deem
necessary: Provided that the prosecutor and the accused have the right, by
means of that procedure, to question a witness and to observe the reaction of
that witness.
(5)
The court shall provide reasons for refusing any application by the public
prosecutor for the giving of evidence by a child complainant below the age of
14 years by means of closed circuit television or similar electronic media,
immediately upon refusal and such reasons shall be entered into the record of
the proceedings.”
INDIA
In the India the courts are
allowed to make use of videoconferencing facilities to receive evidence
and submissions from
witnesses or persons
involved in court proceedings in
circumstances where it
would be expensive,
inconvenient or otherwise
not desirable for a person
to attend a court in
person. An over-riding factor is
that the use
of video-conferencing in any particular
case must be consistent
with furthering the
interests of justice
and should cause
minimal disadvantage to the parties. However, it is for the Court to
decide whether evidence should be recorded by video-conferencing.
According to the VideoConferencing Guidelines Issued by the High Court of Delhi:
“Wherever possible,
proceedings by way of video
conference shall be conducted
at Judicial proceedings
and the same courtesies
and protocols will
be observed. All, relevant
statutory provisions applicable to judicial proceedings including the
provisions of the Information Technology Act, 2000 and the Indian Evidence Act,
1872 shall apply to the recording of evidence by video conference. Video
conferencing facilities can be used in
all matters including remands, bail applications
and in civil
and criminal trials
where a witness
is located intrastate, interstate,
or overseas. However, these guidelines will not apply to
proceedings under section 164 of Criminal Procedure Code.
The guidelines further provides
that: “a court may either suo moto or on application of a party or a witness,
direct by a reasoned order that any person shall appear bef9re it or give
evidence or make submissions to the
Court through video conference.”
CONCLUSION
ICTs play a key role in
managing case load, publishing information for court users, managing knowledge
within the court, supporting the preparation and conduct of litigation and presenting
evidence and preparing and publishing judgments.
It is proposed that the various
rules of courts of the various courts in Nigeria and the criminal procedure
laws of the various states should be amended to specifically provide for
videoconferencing and the use of technology in assisting remote witness
testimony. Doing so would provide a uniform set of guidelines or rules to be
adopted by the courts in making use of video conferencing whenever the need
arises.
POSER
Section 212 provides that on
the application of either party, or of its own motion, the court may order witnesses
on both sides to be kept out of court; but this provision does not extend to
the parties themselves or to their respective legal advisers, although intended
to be called as witnesses.
So assuming two witnesses are
to testify from a remote location through VC, how can the court determine that
the other witness is not hiding out of view of the video camera and watching
and listening to the other witness as he testifies? By section 212 above, a
witness in a case except where is a party to the case, is not allowed to be in
court while a witness is testifying.
