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State v Hurtado - Written Reasons for Allowing Defence to Present Evidence through Skype of Witnesses Present Overseas [2015] FJHC 1029; HAC073.2014S (24 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 073 OF 2014S

STATE

vs

AIDAN ALEC HURTADO

Counsels : Mr. M. Delaney and Ms. S. Navia for State
Ms. S. Vaniqi for Accused
Hearing : 5 November, 2015
Ruling : 5 November, 2015
Written Reasons: 24 December, 2015

WRITTEN REASONS FOR ALLOWING DEFENCE TO PRESENT EVIDENCE THROUGH SKYPE OF WITNESSES PRESENT OVERSEAS

1. In Suva High Court Criminal Case No. HAC 073 of 2014S, the applicant was facing the following charge:
   

Statement of Offence

UNLAWFUL IMPORTATION OF ILLICIT DRUGS: Contrary to Section 4 of the Illicit Drugs Control Act 2004.

Particulars of Offence

AIDAN ALEC HURTADO between the 7th to 10th of February 2014 imported into the Republic of Fiji at Nadi in the Western Division, 20.5042 kilograms of illicit drugs namely cocaine without lawful authority.

2. During the police investigation, the police obtained a caution interview statement from the accused on 18, 19 and 20 February 2014. The police allegedly asked the accused 364 questions, and he allegedly gave them 364 answers. In the caution interview statements, the accused allegedly confessed to the crime. On 2, 3, 4 and 5 November 2015, he challenged the admissibility of his caution interview statements in a voir dire. On 5 November 2015, the prosecution had closed its case after calling five witnesses. The accused had already given his evidence.
   
3. In exercising his right to call his witnesses in the voir dire, the accused intended to call his parents, who were residing overseas. Both parents were separated. The father lived in Columbia, while the mother lived in the United States of America, that is, California. The defence advised the court that they wanted to use "skype" to bring the parents' evidence to court. The prosecution objected to "skype" been used to transmit the parents' evidence to court.
   
4. The prosecution referred the court to the Mutual Assistance in Criminal Matters Act 1997. They referred the court to Section 35 of the above Act, which they said governed the use of evidence from foreign overseas witnesses in criminal proceeding. Section 35 abovementioned empowered a defendant to apply to the court for a direction to the Attorney General to make a request to a foreign country for the taking of evidence for the defendant, if the interest of justice so requires. This process, if it was to be activated, would result in the vacation of the trial. In any event, it should have been dealt with under the pre-trial conference process.
   
5. The defence objected to the prosecution's above submission. They called in aid the 2013 Constitution. They referred the court to Section 14(2)(l), which reads as follows:
   

(2) Every person charged with an offence has the right –

"...(l) to call witnesses and present evidence, and to challenge evidence presented against him or her..."

6. The defence also referred the court to Section 131 of the Criminal Procedure Decree 2009, which reads as follows:
   

Mode of Taking and Recording Evidence in Trials

Evidence to be taken in presence of accused

"...131(1) Subject to any other provision of this Decree, all evidence taken in any trial under this Decree 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..."

7. The defence submitted that an interpretation that puts into effect their intention must be adopted, and they referred the court to Section 3(1) and 3(2) of the 2013 Constitution, which reads as follows:

Principles of constitutional interpretation

"...3(1) Any person interpreting or applying this Constitution must promote the spirit, purpose and objects of this Constitution as a whole, and the values that underlie a democratic society based on human dignity, equality and freedom.

3(2) If a law appears to be inconsistent with a provision of this Constitution, the court must adopt a reasonable interpretation of that law that is consistent with the provisions of this Constitution over an interpretation that is inconsistent with this Constitution..."

8. The defence submitted that Section 14(2)(l) of the 2013 Constitution and Section 131(2)(a) and (b) of the Criminal Procedure Decree 2009 should be read together, and the court, by virtue of Section 3(1) and 3(2) of the 2013 Constitution, must adopt an interpretation that advances the intent of Section 14(2)(l) of the 2013 Constitution, and not Section 35 of the Mutual Assistance in Criminal Matters Act 1997. As a result, the defence submitted, they should be allowed to transmit the accused's parent's evidence to the courtroom through skype.

9. I have carefully listened to and considered both parties' arguments and submissions. I accept the defence's arguments and hold that by virtue of Section 14(2)(l) of the 2013 Constitution and Section 131(2)(a) and (b) of the Criminal Procedure Decree 2009, the defence are entitled to transmit the parent's evidence from overseas to the courtroom through skype. I rule so accordingly on 5 November 2015, and the above are my reasons.

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused : Vaniqi Lawyers, Suva.