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Report No. 185

Sections 59 and 60:

These two sections are in Chapter IV and deal with 'Oral Evidence'.

Section 59

Section 59 refers to 'Proof of fact by oral evidence'. It reads as follows:

"59. All facts, except the contents of documents, may be proved by oral evidence."

In other words, what the section implies is that so far as the contents of documents are concerned, no oral evidence is at all admissible. This part of the section does imply a mandatory rule so far as contents of documents are concerned. This has to be reconciled with other sections of the Act like Section 65(3) and Section 91 and 92.

Video Conferencing and Oral Evidence

In recent times, evidence by 'video conferencing' and 'video record' is being experimented in several countries. It is, therefore, felt that this aspect be considered in some detail.

Section 59 states that all facts, except the contents of documents or electronic records, may be proved by oral evidence. Section 135 refers to 'Order of production and examination of witnesses'. Section 136 to 138 deal with mode of examination. Order X Rule 2 of the Code of Civil Procedure, 1908 deals with 'oral examination' of party or companion of party. A reading of all these provisions shows that what is contemplated is the examination of a witness who is physically present in the Court hall. It is obvious that in 1872 and 1908 when the above statutes were respectively enacted, technology had not advanced as much as it is now and those laws could not obviously have provided for admissibility of such evidence.

We may add that in some States, such as Andhra Pradesh, certain provisions of the Code of Criminal Procedure appear to have been amended to enable Magistrates to speak to prisoners in jail through videoconferencing at the stage of remand and grant of bails etc.

Apart from such limited resort to video-conferencing, the above technology has not so far been installed in our trial Court systems. A newspaper cutting of Hindustan Times dated 10.11.2001 shows that a trial Court in Bombay, in a criminal matter, permitted examination of a US based physician through video conference. The issue there was that Dr. P.B. Desai of Sloan Kettering Hospital, Bombay allegedly conducted surgery upon Mrs. Leela Sanghi, wife of Mr. P.C. Sanghi, contrary to the advice of the US based doctor. The patient died after surgery. The High Court of Bombay quashed the Order of the trial Court. The Supreme Court directed notice to issue on the special leave petition filed there against on 9.11.2001.

We are also aware that in some arbitration matters, evidence is taken by way of video-conferencing, by consent of parties.

We shall next refer to certain developments in other countries on the question of admissibility of video-conference evidence.

In Singapore, where we have the same Evidence Act as the Indian Evidence Act, 1872, the legislature has recently introduced Section 62A in respect of "Evidence through live-video or live-television links" to apply to proceedings other than criminal proceedings. Section 62A contains nine subclauses. Under the above section, the Court has to grant leave after being satisfied on various counts. We shall extract Section 62A.

"62A. Evidence through live video or live television links.- (1) Notwithstanding any other provision of this Act, a person may, with leave of the court, give evidence through a live video or live television link in any proceedings, other than proceedings in a criminal matter, if-

(a) the witness is below the age of 16 years;

(b) it is expressly agreed between the parties to the proceedings that evidence may be so given;

(c) the witness is outside Singapore; or

(d) the court is satisfied that it is expedient in the interests of justice to do so.

(2) In considering whether to grant leave for a witness outside Singapore to give evidence by live video or live television link under this section, the court shall have regard to all the circumstances of the case including the following:

(a) the reasons for the witness being unable to give evidence in Singapore;

(b) the administrative and technical facilities and arrangements made at the place where the witness is to give his evidence; and

(c) whether any party to the proceedings would be unfairly prejudiced.

(3) The court may, in granting leave under subsection (1), make an order on all or any of the following matters:

(a) the persons who may be present at the place where the witness is giving evidence;

(b) that a person be excluded from the place while the witness is giving evidence;

(c) the persons in the courtroom who must be able to be heard, or seen and heard, by the witness and by the persons with the witness;

(d) the persons in the courtroom who must not be able to be heard, or seen and heard, by the witness and by the persons with the witness;

(e) the persons in the courtroom who must be able to see and hear the witness and the persons with the witness;

(f) the stages in the proceedings during which a specified part of the order is to have effect;

(g) the method of operation of the live video or live television link system including compliance with such minimum technical standards as may be determined by the Chief Justice; and

(h) any other order the court considers necessary in the interests of justice.

(4) The court may revoke, suspend or vary an order made under this section i.-

(a) the live video or live television link system stops working and it would cause unreasonable delay to wait until a working system becomes available;

(b) it is necessary for the court to do so to comply with its duty to ensure that the proceedings are conducted fairly to the parties thereto;

(c) it is necessary for the court to do so, so that the witness can identify a person or a thing or so that the witness can participate in or view a demonstration or an experiment;

(d) it is necessary for the court to do so because part of the proceedings is being heard outside a courtroom; or

(e) there has been a material change in the circumstances after the court has made an order.

(5) The court shall not make an order under this section, or include a particular provision in such an order, if to do so would be inconsistent with the court's duty to ensure that the proceedings are conducted fairly to the parties to the proceedings.

(6) An order made under this section shall not cease to have effect merely because the person in respect of whom it was made attains the age of 16 years before the proceedings in which it was made are finally determined.

(7) Evidence given by a witness, whether in Singapore or elsewhere, through a live video or live television link by virtue of this section shall be deemed for the purposes of sections 193, 194, 195, 196, 205 and 209 of the Penal Code (Cap. 224) as having been given in the proceedings in which it is given.

(8) Where a witness gives evidence in accordance with this section, he shall, for the purposes of this Act, be deemed to be giving evidence in the presence of the court.

(9) The Rules Committee constituted under the Supreme Court of Judicature Act (Cap. 322) may make such rules as appear to it to be necessary or expedient for the purpose of giving effect to this section and for prescribing anything which may be prescribed under this section."

In New Zealand, Section 19 introduced by the Evidence Amendment Act, 1994, likewise refers to the Court granting leave for receiving evidence by video link and telephone conference from Australia. Section 20 deals with powers of New Zealand Court in Australia, enabling the New Zealand Court to exercise in Australia all its powers which it is permitted to exercise in Australia under Australian-law. Section 21 refers to evidence and submissions by video-link. Section 22 refers to evidence and admissions by telephone. Section 23 deals with rights of Australian Counsel.

Section 24 likewise enables Australian Courts to take evidence and receive submissions by video-link or telephonic conference in New Zealand. Section 26 refers to orders of Australian Courts. Section 27 refers to 'place where evidence given part of Australian Court'. Section 28 refers to 'privileges, protections and immunities of Judges, Counsel and witnesses in Australian proceedings'. Section 29 refers to power of Australian Courts to administer oaths in New Zealand. Section 30 to contempt of Australian Court by a person in New Zealand. Section 31 deals with assistance to Australian Courts.

Section 32 of the UK Criminal Justice Act, 1988 also refers to evidence by television-link. The British Law Commission, in its 245th Report felt that evidence by television link is better than hearsay.

In a case decided in Florida State, on March 9, 1997 by the District Court of Appeal, Third District, video-conference evidence was allowed: (David Harrell v. The State of Florida). (This judgment was affirmed by Supreme Court of Florida on 23.4.98). (see 689. So. 2d. 400: 65. USLW 2679, 22 Fla L Weekly D 582). In that case, the defendant was accused of charges arising from robbery and assault on foreign tourists from Argentina.

The video conference pertained to these foreign tourists in Argentina.

The District Court of Appeal in Florida held that admission of the evidence of tourists' live satellite testimony did not violate defendant's constitutional right of confrontation of a witness. The live satellite testimony of foreign witnesses was given in court in presence of Judge, Jury, the defendant (accused), counsel, clerk and court reporter, after oath was administered, and was therefore held reliable, and did not qualify as hearsay. Oath administered by court clerk in US to the witnesses who were in Buenos Aires, Argentina, was held binding, and assured of reliability.

It was also held that the live satellite testimony from foreign witnesses, who were unable to return to US for trial, satisfied face-to-face element of confrontation clause, where the defendant and witnesses were able to interact, defence counsel had opportunity to contemporaneously crossexamine the witness, and defendant, judge and trier of fact observed the demeanour of witnesses while they testified. The testimony by satellite video conference was held admissible as it satisfied the 'confrontation clause' since it contained the essential component of face-to-face confrontation, namely, testimony under oath, cross-examination and opportunity to observe witness demeanour while testifying.

The trial court, without precedent, applied the new testimonial procedure as the procedure furthered an important public policy interest. Use of satellite testimony, in criminal trial, it was held, furthered important policies of promoting efficient use of limited resources and deterring violence against foreign tourists by making it easier for them to testify, and thus the new procedure could justifiably be employed, consistent with the 'confrontation clause', despite lack of precedent.

It was further observed by the District Court of Appeal that any errors caused by minor problems arising during satellite testimony of foreign witnesses, when one witness glanced to the right of the cameras and when audio portion of transmission was delayed briefly, were harmless, as the judge ordered that the camera be pulled back for wider view after the witness glanced to right, and the jurors were able to determine his credibility and demeanour of the witness testifying. Even during brief period when transmission was not perfectly synchronized, witness corroborated testimony of each other and police officers and finger print evidence of the defendant at scene of crime.

To safeguard defendant's constitutional rights during the satellite testimony, protocols would be adopted, which included allowing only court official, court reporter, and necessary technical staff in room where witness is testifying; providing two-way audio and visual transmission in colour, placing video screen on witness stand, and keeping cameras focused on defendant and the witness, questioning attorney and presiding judge; and scrambling transmission. The defendant was convicted.

The trial Judge, Gersten J observed:

"The admission of material witnesses' testimony by satellite explores a panoply of issues not contemplated by our Founding Fathers. For example, with current technology, we could conduct satellite trials in a virtual courtroom, while the jury deliberates in a secure cyber chatroom. Unfortunately, the Constitution does not address this specific issue, but its timeless language, having survived the Industrial Revolution and other technological revolutions, must apply to all judicial proceedings. Our Courts, however, must integrate procedural rules with the techno-evolutionary reality beyond the insulated stonewalls of the courthouse. We wholeheartedly embrace the concept of satellite testimony, because it enhances the efficiency of the Courts."

The Judge referred to Section 90.801(1)(c) of Fla. Stat (1995) as to exclusion of hearsay and Article VI of the US Constitution as to 'confrontation' and there does not appear to be any other new amendment in the law of evidence. He only referred to the protocol taken from In re San Juan Dupont Plaza Hotel Fire Litigation: 129 F.R.D 424 (D.P.R. 1989) which read as follows:



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