“ The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will admit.” [i]
This article will examine the need to update the rules of evidence in Sierra Leone ’s courts, specifically the hearsay rule and exceptions thereto, to bring it into line with the practicalities of an electronic age. It will explain the terms, consider the law as it currently stands, discuss the problems those rules are currently raising and make suggestions for change. The Terms and the Law as it Stands
In criminal proceedings, the facts in a case comprise the facts which the prosecution bear the burden of proving in order to establish the guilt of the accused and the facts which the accused can present convincingly in his defence. The party which bears the burden of proof must prove those facts up to a certain level (known as the ‘standard of proof’). In civil trials, that level is ‘on the balance of probabilities’, that is, if one side can convince the court that they are probably right, that there is more than a 50% chance that they are right, then that side will win the case. In criminal trials, the standard of proof is higher.
The Prosecution must prove ‘beyond a reasonable doubt’ that the Accused is guilty. Whenever there is plea of not guilty, everything is in issue and the prosecution has to prove the whole of their case, including the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent. Any fact which is formally admitted must be proved.
Aside from the need to prove guilt beyond reasonable doubt, however, the Prosecution must also show the court that any evidence it wants to adduce before the court is acceptable according to rules of court (this is known as satisfying the ‘evidential burden’). Rules of court on the admission of evidence are there to protect parties (and particularly the Accused) from an unfair trial, by ensuring that any evidence that is brought to the court is reliable and that the court should give weight to it when considering guilt or innocence. The cardinal rule of evidence is that, subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible, and all which is irrelevant or insufficiently relevant to the facts in issue should be excluded.
However, another important rule, with which we are concerned here, is the hearsay rule. The hearsay rule says that evidence can only be admitted to the court if the court is able to verify the truth of that evidence itself by cross examining the author of the evidence in court. By asking critical questions and forming an impression of the witness, the court should be able to assess whether the author or witness is telling the truth or not. The idea is essentially to stop rumours or second-hand information from being tendered as fact, both to prevent distortion of the facts and to prevent a lie from being taken as fact. Ideally then, any evidence should come by word of mouth from a witness testifying in court. However, in an electronic age this is not always possible. There are also many exceptions to the hearsay rule.
Evidence from a computer or mechanical or other device may or may not be hearsay, and may be hearsay and yet fall under one of the exclusionary rules. To the extent to which a computer is used merely to perform functions of sophisticated calculation which could have been done manually, no question of hearsay but an item of real evidence, the proof and relevance of which depends on the evidence of those using the device. However, where a computer is used to record information which is supplied by a person, the hearsay rule will come into play if it is sought to use a printout from the computer to prove that what the person said was true. Once classified as hearsay, the admissibility would depend, not on its authenticity, but simply upon whether it falls within the exception to the rule.
When the admissibility of a particular item of evidence is in dispute, the burden of admission lies on the party seeking to admit that evidence. When this burden is borne by the prosecution, they must prove the admission ‘beyond reasonable doubt’ while the defence must only prove the admission of any evidence they want to adduce ‘on a balance of probabilities’. In addition, if the inclusion of evidence would be prejudicial to the fairness of the trial, the judge has discretion to exclude it.
In Sierra Leone , the issue of admitting electronic evidence as real evidence has come under serious contention by both the prosecution and defence viz-a-viz the hearsay rule. The crucial distinction is between computer printouts containing information implanted by human hand, and printouts containing records produced without human intervention. The former falls under the hearsay rule while the latter is not hearsay.
In other jurisdictions, such as in England and Wales , where the hearsay rule originated, many exceptions to the hearsay rules have developed over the years through case law and in statute on a piecemeal basis. One such exception is that a document made in the course of business can be admitted, as long as it was not made specifically for the purpose of the criminal proceedings. [ii] If it was made specifically for the criminal proceedings, the document can be admitted, but only if the maker is unavailable to give evidence in court, or it is not reasonably practicable to secure their attendance at court.
Rules of procedure and evidence have not been developed recently in Sierra Leone to keep up to date with modern electronic and business realities, and so no similar exception exists in Sierra Leone . As such, business documents, containing records produced with human input, are not admissible in the courts in Sierra Leone .
A Case Before the Courts
Exactly this issue has arisen in a current matter before Adrian Fischer in Freetown’s Magistrate Court No.1(a) involving one Hindowa Saidu, a former Celtel S/L employee as the Accused, who was charged to court for allegedly threatening via SMS to kill the Human Resource Director of same. The main legal tussle, which has almost grounded the trial for over six months since it was first heard, is the admissibility of a printout information from a Celtel electronic device to be admitted as real evidence against the Accused. The prosecution’s argument is that the evidence, a computer printout document, should be admitted as real evidence since the device was not ‘interfered’ with but only commanded to perform a function which did not specifically relate to the Accused.
The defence on the other hand is objecting to that piece of evidence on the grounds that it is hearsay and should not be admitted as real evidence since an individual ‘interfered’ with the device by inserting figures in order to obtain the printed information; thus documentary records stored on computer are hearsay. According to the defence, weight should not be given to a document where the person who programmed the electronic device is not subject to cross-examination in front of the court by counsel for the defence. This holds real weight, as the rules of procedure have not been updated to encompass such situations. As such, if the evidence in the document is false, and yet it is accepted as fact, the defendant will be unfairly prejudiced against and will have his right to a fair trial abused.
Although there is no authority to suggest that a criminal court has any power to admit as matter of discretion evidence which is inadmissible under an exclusionary rule of law, it is, however, well established that a trial judge, as part of his inherent power and overriding duty in every case to ensure that the accused receives a fair trial, always has a discretion to refuse to admit prosecution evidence if, in his opinion, its prejudicial effect outweighs its true probative value. He also has a general discretion to exclude otherwise admissible prosecution evidence which has been obtained by improper or unfair means.
As the current rules stand, the only alternative for the court, in order to ensure a fair trial, is that the programmer of the Celtel device be identified and cross-examined in court. Only that person can describe the function and operation of the device and the data upon which the document was produced. At the same time however, this affects other rights of the Accused. Such a procedure would seriously delay his trial, contravening the right to trial without undue delay. Unfortunately, because the defence counsel in this case is offering pro bono services, there is in practice a strong likelihood that he will withdraw representation if the matter does not make progress. Thus the Accused is under pressure to concede to the prosecution’s application for submission of the evidence, even though it is to his own detriment. This is yet another example of the failure of the current legal system to uphold the rights of the Accused by failing to provide free legal representation to the defence. The Accused should not be made to suffer because of the inadequacies in our legal system.
If the presiding Magistrate, however, gives verdict in favour of the prosecution by admitting the evidence, it would probably have been the first time for such evidence to be admitted in our legal system. Equally, the power of discretion would not have been in the interest of the Accused.
The Need for Legislative Reform
This matter definitely brings to light the urgent need for the rules of procedure and evidence of Sierra Leone to be reviewed and updated. Such significant matters are not for Judges to decide case by case, but should be decided by Parliament in legislation. It is essential to introduce reform of the laws in order to correspond with today’s more complex litigations in Sierra Leone . The current body of criminal laws and rules in Sierra Leone no longer meets the needs of present-day Sierra Leone society. The country is much more sophisticated than it was two centuries ago when a large body of English legislation was enacted into the Laws of Sierra Leone.
Accordingly the SLCMP calls on the government to order the drafting of legislation to amend the criminal rules of procedure and evidence in an effort to protect human rights and bring the law up to date with modern realities.
[ i] See Lord Hardwicke, Omychund v Barker (1745)
[ii] See the UK Statute, Criminal Justice Act 1988, section 24