BASSETERRE, St. Kitts, October 6th, 2011 (CUOPM) – Law makers in St. Kitts and Nevis have replaced its 135-year old Evidence Act that originated out of the United Kingdom, like most of our pre-independence legislation.
The St. Kitts and Nevis National Assembly presided over by the Speaker, the Hon. Curtis Martin voted unanimously Tuesday to replace the Evidence Act Cap. 25, which originally was Act No. 3 of 1876, with the Evidence Act, 2011.
“Over time the Act has been amended several times, however, it would be understandable that as time and society have evolved that several crucial areas of the law of evidence are not directly or specifically provided for under the current legislation.
To make provision for these matters would require an extensive amendment of the Act and we therefore believe it would be a more prudent exercise to replace the Act in its entirety,” said Attorney General and Minister of Justice and Legal Affairs, the Hon. Patrice Nisbett.
He told lawmakers that the Evidence Bill was drafted after extensive informal consultation process between the Attorney General’s Chambers, the St. Kitts and Nevis Bar Association, the Royal St. Christopher and Nevis Police Force, the Judiciary in the Federation and other stakeholders which began early in 2009.
“This consultation process was very important because of the highly technical nature of this legislation,” said the Attorney General, who expressed gratitude to those who participated in the process and submitted comments and recommendations which came out of that consultation process and would like to express our gratitude to all those who participated in the process after the Bill was introduced and given its first reading in October 2010.
Mr. Nisbett, the Federation’s fourth Attorney General since Independence said the reforms to the Evidence Act were overdue as most of the proposed provisions in the Evidence Bill were based on deficiencies in the current system and various contemporary approaches to the treatment of evidence legislation regionally and internationally.
“Several jurisdictions have from time to time recognised the need for greater equity or a more balanced evidential process and we have examined the various approaches to determine the best way forward for the Federation,” said the Attorney General, who disclosed that some of the criminals are attempting to derail the trial process by whatever means necessary.
“In a recent murder case a defendant who had had the audacity to assassinate a police officer in the Federation went on to orchestrate the murder of a witness in that case. That defendant has been found guilty of both murders. Mr. Speaker, in another recent high profile case an eye-witness to the murder of the child of a high ranking police officer was himself murdered a few days before the date for the preliminary inquiry.
There have been many cases where eye-witnesses have retracted their statements made at the preliminary inquiry. This includes cases where eye-witnesses who initially gave detailed statements on a particular murder at the preliminary inquiry those same witnesses subsequently indicated that they had heard nothing, seen nothing or knew nothing about the same murder.
These recalcitrant and reluctant witnesses have even included family members of the murder victim. Mr. Speaker, what do you believe would be the cause of such a radical change of mind in such cases? I submit that the main rationale for this kind of about-face is nothing less than fear,” said Attorney General Nisbett.
Such imperatives he said have inspired proposed controversial provisions of the Bill, which would apply to all proceedings in a court of St. Kitts and Nevis.
“Part III of the Bill provides for competence and compellability of witnesses to give evidence. The competence of a witness speaks to whether that witness may legally give evidence in a court. A witness may not legally be able to give evidence for several reasons, including, that the witness may be a child who is so young that he or she cannot understand the questions that are asked, or give answers that can be understood.
Mr. Speaker, “Compellability” deals with the question of whether, as a matter of law, a witness can be obliged to give evidence when he or she does not wish to do so.The general rule is that competent witnesses are also compellable, but there are some circumstances in which competent witnesses cannot be forced to give evidence against their will, including, the wife or husband of a person charged cannot be mandated to give evidence against his or her spouse,” said Mr. Nisbett.
He said that Part IV of the Bill provides for witness anonymity and attempts to balance the basic tenets of natural justice that a defendant must have an opportunity to face his accuser, with the responsibility that weighs heavily on the State to ensure the protection of all witnesses.
“The provisions of the Bill therefore seek to empower the court to grant witness anonymity orders, in extreme circumstances. The Bill envisages that this power would only be exercised in very exceptional circumstances and where it would be consistent with the right of a defendant to a fair trial,” the Attorney General told lawmakers.
Parts V and VI of the Bill provide for the manner of giving evidence and admission and proof of certain statements in documents, respectively.
There is currently no specific provision in the law for the handling of vulnerable witnesses except for limited “in-camera” trials. The thinking now is that because of a number of considerations, including, the possible severe trauma of a face-to-face confrontation between certain victims and the alleged perpetrator of a crime, that a greater degree of flexibility in the giving of testimony should be accommodated.
“It is proposed in the Bill that a vulnerable witness may be allowed, in exceptional cases, to testify while being screened off from the defendant or to testify from a place outside of the court room (whether within or outside of St. Kitts and Nevis) by means of technology (eg. TV links) which would allow the witness to participate in the proceedings. The Bill provides for restrictions on the exercise of this power to ensure that a defendant’s right to a fair trial is not prejudiced,” said Mr. Nisbett.
The Bill provides for the admissibility of computer generated business records to reflect the technological advancements in the society. There are applicable conditions for accepting such documents but this, nevertheless represents a much-needed advancement in the legislation.
Parts VII and VIII of the Bill provide for relevance of evidence and exceptions to the relevance rule, respectively. The provisions of the Bill, under this Part, propose to substantially abrogate the common law hearsay rule. The changes proposed include the admissibility of an out of court statement of a witness who is fearful, no longer available, who has disappeared or is deceased. Oral opinion evidence, among other things, would also be admissible once it complies with the relevant requirements under the Bill.
“Mr. Speaker, as you may recall the main justification for the traditional exclusion of hearsay evidence is that since the evidence is presented to the Court on a second hand basis by someone other than the original witness, there is no opportunity for the defence to test the reliability of the evidence by cross examining the original witness as to what was actually seen or heard.
However, Mr. Speaker, a major criticism of the hearsay rule is that it is too strict and inflexible and very often it seems to result in the exclusion of evidence which by ordinary every day experience, would be regarded as reliable and accurate. Also, the numerous exceptions to the rule are usually difficult to determine with certainty,” said Attorney General Nisbett.
He pointed to a widespread belief amongst litigants, witnesses and the society that far too often those who seem to be very guilty are acquitted because of technicalities and impractical evidential requirements and that justice therefore seems to work in favor of the least deserving characters.
“What this has led to is a loss of confidence in the courts in particular and a lack of faith in the justice system in general,” said the Attorney General.
He pointed out that Part VIII, Clause 84 (1) provides for the procedure for conducting confessions and permits the introduction of additional elements to the traditional conditions under which a confession is made by an accused person in criminal proceedings. These additional elements include the requirement that a confession may only be made in circumstances where such confession and the questions leading up to it may be recorded audio-visually or through the use of audio equipment as the case may be.
“Additionally, the accused person may have a legal practitioner present during the making of the confession. This is in keeping with the tenets of natural justice to ensure that the accused person is provided with conditions that are not prejudicial and in fact that are as fair as the circumstances may allow,” submitted the Attorney General.
He highlighted Clause 88 of Part VIII which makes provision for evidence of silence.
“Clause 88 provides that even if a witness refuses to answer a question that is put to him or her, that that fact on its own would not be sufficient to support an unfavourable inference against that witness simply because he or she chose not to reply to a question.
An “inference unfavourable to the party” means that the court would be entitled to impute some level of guilt or guilty knowledge on the part of the accused person or to find that the person had something to hide by choosing not to respond. Again this provision is intended to put the witness in such a case on a level playing field and to respect the right of a person to answer or not to answer a particular question,” the Attorney General explained.
“Clause 89 seeks to provide for the balanced application of the rule of law and fairness. The clause basically provides that if, as part of criminal proceedings, the prosecution seeks to introduce evidence of a confession that was obtained under questionable circumstances, so much so, that the admission of that confession would be unfair to the accused, then the court will have a discretion to refuse to admit that evidence or to refuse to admit that evidence to prove a particular fact.”
The new law also provides for identification evidence. The law as it now stands does not provide explicit directions in terms of summing-up directions to the jury where identification of an accused is in issue. The Bill seeks to specifically provide for the application of the criteria in the Turnbull case in this matter.
R. v Turnbull and Others WLR [1976] 3 WLR 445, sets out certain principles or standards that should be applied where identification evidence is in issue and the Bill therefore seeks to provide guidelines on how the jury should be directed in relation to disputed eye-witness identification evidence. The Bill provides that, when directing the jury, the trial judge should warn the jury of the special need for caution before convicting the accused.
“In addition he or she should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can nevertheless be a convincing one and that a number of such witnesses can all be mistaken. The judge should also direct the jury to examine closely the circumstances in which the identification by each witness was made,” said the Attorney General.
“Mr. Speaker, Part IX provides for rules of privilege, Part X provides for exclusion of evidence on grounds of policy in the public interest and Part XI provides for general provisions relating to Parts IX and X. Under Part X, the court may direct that evidence shall not be adduced where the public interest in admitting evidence that relates to matters of national security is outweighed by the public interest in preserving secrecy or confidentiality in relation to that evidence.
Mr. Speaker, Part XII provides for exclusion of evidence in exercise of judicial discretion. Generally, the Bill empowers the Court to refuse to admit any evidence where the probative value of the evidence is outweighed by the danger of unfair prejudice or confusion resulting from such evidence being admitted,” said Attorney General Nisbett.
He said that Part XIII provides for proof of evidence in which proof shall not be required about matters of law or matters of common knowledge, among other things.
“Part XIV provides for the standard of proof of evidence in civil and criminal proceedings. The Bill provides that in civil proceedings a court shall find the case of a party proved if the court is satisfied that the case has been proven on the balance of probabilities.
“The balance of probabilities” is a legal standard applied in many jurisdictions for deciding the outcome of civil cases and requires that a dispute be decided in favour of the party whose claims are more likely to be true,” said Attorney General Nisbett.
He said Part XIV also provides that in criminal proceedings a court shall not find the case of the prosecution to be proven unless it is satisfied that it has been proven beyond reasonable doubt.
“Beyond a reasonable doubt” is a legal standard for deciding the outcome of a criminal charge, requiring evidence that is sufficient to eliminate any doubts that a reasonable person might entertain about whether a claim is more likely to be true than not,” said the Attorney General.
Part XV provides for warning the jury with regard to certain specific matters. One of the duties of the judge is to provide guidance to the jury as regards the application of the law. This includes cautioning the jury in cases where the evidence is unreliable.
“In other words, the jury is to be warned about hearsay evidence, identification evidence, evidence the reliability of which may be affected by self interest or other factors, an unsigned statement of a defendant, among other types of unreliable evidence.
When warning the jury, such a warning must contain information that the evidence may be unreliable, for what reason the evidence is unreliable and of the need for the jury to exercise caution in determining whether to accept the evidence and the weight that should be given to the evidence,” said the Attorney General, who was appointed to the position in February 2010.
Part XVI provides for electronic evidence and the provisions in that Part were taken from the OECS Electronic Evidence Model Bill and the HIPCAR Electronic Evidence Model Bill.
The term HIPCAR refers to the Harmonization of Information and Communications Technology Policies and Legislation Across the Caribbean Project. This Part of the Bill was reviewed by HIPCAR Consultants during a HIPCAR Consultation on various pieces of Information Technology legislation of the Federation and all their recommendations for modification to this Part have been taken on board.
Part XVII provides for DNA evidence. Notwithstanding the provisions in this Act on DNA evidence it is intended that a comprehensive piece of legislation on DNA and DNA testing will soon be prepared to add to the provisions in this Part.
Part XVIII provides for miscellaneous matters including a provision empowering the Minister to make Rules and Regulations and a provision empowering the Minister to amend the Schedules to this Act by an Order. Section 166 provides that a defendant must give notice of the particulars of an alibi within the prescribed period or he must seek the leave of the court to adduce evidence in support of an alibi.
“It cannot be overemphasized the positive effects on and the benefits that will ensure to our legal system by having an evidence Act that is contemporary, legally sound and has practical application for the culture within which it operates,” said Attorney General.
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