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ARTICLE #57 -THE ADMISSIBILITY OF AUDIO AND VIDEO RECORDINGS INTO EVIDENCE

Martin George & Company > DAILY LEGAL LESSONS  > ARTICLE #57 -THE ADMISSIBILITY OF AUDIO AND VIDEO RECORDINGS INTO EVIDENCE

ARTICLE #57 -THE ADMISSIBILITY OF AUDIO AND VIDEO RECORDINGS INTO EVIDENCE

THE ADMISSIBILITY OF AUDIO AND VIDEO RECORDINGS INTO EVIDENCE IN LEGAL PROCEEDINGS IN TRINIDAD AND TOBAGO

Martin George
Attorney at Law
Trinidad and Tobago

Attorney-at-law
Martin Anthony George & Co.
Attorneys-at-law

(Research Assistance provided by
Darrell Bartholomew, Attorney at Law)

MAGCO DAILY LEGAL LESSONS

DISCLAIMER: Please note this does NOT constitute LEGAL ADVICE or LEGAL CONSULTATION, which you should get from your own Attorneys and this is being shared with the general public for the purposes of information and discussion ONLY.

INTRODUCTION

Audio and video recordings are recordings made by electronic devices and stored in electronic format for playback at a later stage. Audio and video recordings may also be edited, truncated and shared, making them an invaluable tool in the area of modern communications. Such is the sophistication of modern technology that we are able to record audio and video on any number of devices such as a cell phone, tablet, laptop and digital camera, of which the average person has at least one.

On a daily basis, we all interact with audio and video recordings in a variety of ways. Persons regularly utilise popular features such as recording voice notes and videos on WhatsApp for transmission to friends, family and colleagues, recording audio and video on iMessage for transmission in a similar way to WhatsApp, and also using Instagram and Snapchat to post stories and snaps to social media accounts. Other popular applications such as Facebook, TikTok and Twitter also have audio and video recording capabilities, and users are able to ‘go live’ on Facebook or TikTok, as well as having the ability to pre-record audio and video content, which can then be posted to their profiles. In the area of media and communications, movies, televisions shows, live sports and press conferences, are just a handful of the examples of audio and video recordings being transmitted to viewing audiences. In professional settings, presentations, training sessions and virtual meetings, TED- Talks, video-conferencing and even Court proceedings also take advantage of audio and video recording technology, relying heavily on content which can be recorded once and then played over and over again to multiple audiences over a period of time.

Of course, in law, one of the questions which arises with respect to audio and video recordings, is whether they can be used as evidence in legal proceedings and intricately interwoven in this question would be the issue of the authenticity, accuracy of the audio or video recording and arguments may be raised as to whether they have been tampered with or doctored or spliced. So for example, is the prosecution able to use audio and video recordings as evidence in criminal proceedings to assist in their attempts to convict an accused, and can a Claimant or a Defendant in civil proceedings use audio and video recordings to either prove their claim or defend against a claim, as the case may be. As an additional consideration, there is also the question of whether there is any element of a requirement for the person being recorded to have knowledge of same, and to have given their permission to being recorded, before such an audio or video recording may be used as evidence.      

LAW

The Evidence Act Chapter 7:02, which was amended by the Evidence Amendment Act 2021, speaks to audio and video recordings being used as evidence, particularly with respect to recording audio-visual statements from witnesses in criminal proceedings, identifying suspects, oral admissions made by suspects, and the giving of evidence via video link. Audio recordings and video recordings are both defined in the Act. Section 12 of the Act defines an audio recording as “an audio recording on a non-rewritable recording medium identifying the persons speaking” while the definition of a video recording is “any recording on any medium from which a moving image may by any means be produced or transmitted, whether or not accompanied by a sound track”.

One of the more relevant sections in the context of this article and the admissibility of audio and video recordings of the type set out above is Section 12 AG of the Act which provides as follows:

12AG. A video recording recorded by means of a closed circuit television camera shall be admissible as evidence.

This means that the surveillance system that one has installed at their home or their place of business, if it captures the commission of a criminal offence, the video recorded by that camera system can be used as evidence to prosecute the perpetrators of the crime. A video recording made by such a system is also able to be used in civil proceedings.

Section 15I of the Act caters for the scenario where a witness in criminal proceedings has given a statement with respect to the commission of an offence and a video recording of their statement was made. The relevant parts of Section 15I of the Act state:

15I. (1) This section applies where –

  • a person is called as a witness in proceedings for an indictable offence or for the summary trial of an indictable offence;
  • the witness claims or has at any time claimed to have witnessed whether visually or in any other way–
  • events alleged by the prosecution to include conduct constituting the offence or part of the offence; or
  • events closely connected with the offence;
  • the witness has previously given a statement of the events in question, whether in response to questions asked or otherwise;
  • the statement was given at a time when those events were fresh in the witness’s memory or would have been assuming the truth of the claim mentioned in paragraph (b);
  • a video recording was made of the statement;
  • the witness is a child and the video recording was made in the presence of an adult chosen by the witness;
  • the Court has made a direction that the video recording should be admitted as evidence in chief of the witness and the direction has not been rescinded; and
  • the video recording is played in proceedings in accordance with the direction.” 

Section 12X (1) (c) of the Act provides guidance to investigating officers and states that they should make an audio or video recording of any oral admissions made by suspects, it is inconclusive whether or not this is normally done in practice at Police Stations throughout T&T.

In addition to these Legislative interventions, the Common Law provides an avenue for the admissibility of video recordings into evidence in criminal proceedings. The English case of Taylor v Chief Constable of Cheshire (1986) I WLR 1479 is instructive, and it was held by the Court in that matter that evidence as to the contents of a film or video recording was not inadmissible because of the hearsay principle, but was direct evidence of what was seen to be happening in a particular place at a particular time. It therefore follows that video recordings, inclusive of those recorded on a cell phone or similar device, may be admitted in evidence in criminal proceedings as long as the authenticity of the recording is established, and the origin and means of its recording are sufficiently identified. In addition to this, the video recording must be relevant to the live issues of the proceedings. As with most evidence, the judge has the discretion to exclude audio or video recordings from evidence if it would be prejudicial or unfair to admit it, and other relevant exclusionary rules may also apply. Notably, copies of video recordings are also admissible into evidence in circumstances where the original video recording is not available, as long as the authenticity of the copy can be established. Lastly, even where the video recording is no longer available, an individual who viewed the video recording can give evidence of what they saw on it.

For completeness, the Interception of Communications Act Chapter 15:08 contains provisions regarding the admissibility of communications into evidence in criminal proceedings, and for the purpose of this Act communications “includes anything comprising speech, music, sounds, visual images or data of any description or signals between persons …”. Sections 8 and 11 of the Act provide that a warrant may be issued by a judge for the interception of such communications as are described in the warrant, and for the intercepted communications to be disclosed to specified persons. Section 17 (2) of the Act states that:

17. (2) Subject to subsections (3) and (4), the contents of a communication that is obtained by interception permitted by warrant issued pursuant to section 8 or 11 shall be admissible as evidence in criminal proceedings.

With respect to civil proceedings, Section 35 of the Act defines a document as including “any disc, tape, sound track or other device in which sounds or other data, not being visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom”.

In terms of hearsay evidence, which refers to statements made out of court being offered in evidence as to the truth of the contents of the statement, Section 36 of the Act provides that:

36. (1) In any civil proceedings a statement other than one made by a person while giving oral evidence in those proceedings is admissible as evidence of any fact stated therein to the extent that it is so admissible by virtue of any provision of this Part or by virtue of any provision of this Part or by virtue of any other statutory provision or by agreement of the parties, but not otherwise.

In relation to the admissibility of documents as evidence in civil proceedings, Section 37 of the Act sets out that:

37. (1) In any civil proceedings a statement made, whether orally or in a document or otherwise, by any person, whether called as a witness in those proceedings or not, shall, subject to this section and to the Rules of Court, be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.

The conjoined effect of Sections 35 to 37 of the Act is that video recordings such as those taken by cell phones are admissible into evidence in civil proceedings subject to the law on hearsay evidence, and in scenarios where a video recording is not hearsay evidence, it is generally admissible into evidence. A party to a civil matter who wishes to include a video recording as part of their evidence, must disclose the video recording to the other parties to the proceedings, typically by allowing them to view it or by sending them a copy as part of the process of pre-Trial Disclosure, otherwise they may not be able to rely on it at trial.

The text Halsbury’s Laws of England (volume 27, 2015) on audio and video recordings at paragraph 562 states:

An audio recording is admissible in evidence provided that the accuracy of the recording can be proved, the recorded voices can be properly identified, and the evidence is relevant and otherwise admissible (R. Masqud Ali, R v Ashiq Hussain [1996] 1 QB 668, 49 Cr App Rep 230, CCA).”    

Therefore, the current state of the law in Trinidad and Tobago suggests that an audio recording such as a WhatsApp voice note, or any other audio recording made on a cell phone or similar device, may be admitted in evidence in civil proceedings if it could be authenticated, and if there was additional information as to who made the audio recording, when they made it and how it was made.

Generally, in the United Kingdom, audio and video recordings are admissible in evidence in both criminal and civil proceedings, subject to the statutory and common law safeguards, and the discretion of the judges. However, with respect to entrapment, there is established law in that regard. Entrapment is stated to occur when an agent of the State, such as a law enforcement officer, lures or causes someone to commit or admit to an offence in order that they may be prosecuted and this is always done without the knowledge of the person who is the subject of the “Entrapment”. In criminal proceedings in the UK, entrapment by itself is not a ground upon which an accused person is entitled to an acquittal however the Court has the power to stay such a prosecution against a person who has been entrapped in circumstances where the State has lured and induced and caused the person to commit a crime.  

In the United States, audio and video recordings may also be admitted in evidence in criminal and civil proceedings. One only needs to think about the recent the encounter between George Floyd and Minneapolis Police Officer, Derek Chauvin, which was recorded in a chilling nine (9) minute video by a nearby observer, and showed  Mr. Chauvin kneeling on the neck and back of Mr. Floyd while Mr. Floyd gasped for air and repeatedly uttered the words “I can’t breathe”. After the death of Mr. Floyd, this video recording formed part of the prosecution’s case in relation to the criminal charges brought against Mr. Chauvin by the State of Minnesota, and he was subsequently convicted of second-degree unintentional murder, third degree murder and second-degree manslaughter.

When it comes to entrapment, unlike the UK, in the US, this provides a complete defence to a criminal charge, as long as it can be shown that the government agent(s) induced the accused person to commit the crime, and that the accused person was not predisposed to engaging in such criminal conduct. Consider however, the case of Mark Myrie (Buju Banton), who not only had hit songs boasting about running drugs (Driver), but appeared to also be actively involved in doing same in a spectacular case of Life imitating Art. He was contacted by undercover Federal Agents about a possible shipment of illegal drugs and when he showed up on the scene he was subsequently arrested and charged and convicted and made to serve time in Florida. Mr. Myrie connected with a man named Alex Johnson, who turned out to be a career informant of the Drug Enforcement Agency (DEA) and other Federal law enforcement agencies in the US. During their relationship, arrangements were apparently made for cocaine to be bought and sold, and though it was conceded by the prosecution that Mr. Myrie never put money into any of the cocaine deals with formed the subject of the criminal proceedings or in fact made any money therefrom, he was convicted and served time in prison. Heavily relied upon by the prosecution in those proceedings were secret video recordings of Mr. Myrie and others in a warehouse appearing to sample cocaine and discuss the specifics of making deals to buy and sell cocaine. Of course, Mr. Myrie’s legal team argued that he had been entrapped by State agents, but in response the prosecution contended that there had been no entrapment and that the government had simply provided a favourable opportunity to Mr. Myrie to commit a crime he was already willing to commit. The entrapment argument was not accepted by the Court in these proceedings as being the basis for the commission of the crimes complained of and it therefore provided no “Get out of Jail free” card for Buju Banton.

Also in the US, former President Donald Trump is now the subject of a Federal indictment in relation to his mishandling of classified documents and information. Part of these proceedings against Mr. Trump involves an audio recording made at a meeting in 2021 where he and his aides were present, and Mr. Trump is alleged to have shown classified information in relation to a plan by the US to attack Iran to a writer, a publisher, and two of his staff members, all of whom did not have the relevant security clearance to receive such information. Further to that, the proceedings against Mr. Trump have now taken a very interesting turn, as the Federal indictment against him has been amended to include additional charges in which he is alleged to have tried to keep security camera footage from being reviewed by investigators.

THE JUDICIAL APPROACH TO THE ADMISSIBILITY OF SECRET AUDIO AND VIDEO RECORDINGS INTO EVIDENCE

It is important to note that the law in Trinidad and Tobago does not seem to take into account any consideration of whether an audio or video recording which is sought to be admitted in evidence in either criminal or civil proceedings, was recorded in circumstances where the person being recorded was unaware that they were being recorded and/or they did not consent to same. However, upon an examination of several reported cases which involved secret recordings being relied on as evidence, our Courts have commented on such, and it appears that this type of conduct is frowned upon with disapproval.

In the Industrial Court case of Complaint No. GSD-IRO 31 of 2015 Steel Workers’ Union of Trinidad and Tobago v Arcelormittal Point Lisas Limited, the Union secretly recorded the contents of a meeting between themselves and the Defendant company which took place on 7 December 2015. In their arguments before the Industrial Court, the Defendant company asked the Court to condemn the conduct of the Union, and interestingly enough, in response, the Union conceded on that point and indicated to the Court their intention to not undertake any such action in future. It is crucial to note that in spite of the condemning of the action of secretly taping the meeting, the Union did not seek to have the recording submitted into evidence and instead the notes taken by the Defendant company were admitted in evidence. As such, this secret recording had no effect on this set of proceedings. Perhaps, the Union thought that the Court would not want to admit such a recording in evidence given that it was done without the knowledge and consent of the Defendant company, and so they decided to abandon any attempt to rely on the secret recording in those proceedings.

In CV 2007-03062 Kadir et al v Commissioner of Prisons, CV 2007-02063 Nur v Commissioner of Prisons, the Applicants challenged their detention by the Commissioner of Prisons via applications for writs of habeas corpus. In June 2007, the Applicants were charged in the US with being involved in a plot to blow up fuel tanks and pipelines and John F. Kennedy International Airport in New York, and were due to be extradited to the US to face those charges there. A crucial part of the evidence against the Applicants took the form of evidence given by an informant as well as secret recordings of conversations between the Applicants and other persons. The Applicants, in challenging their extradition to the US argued, inter alia, that the use of these secret recordings and the evidence of the informant constituted evidence which had been obtained in breach of their fundamental rights, and that they had been entrapped into committing the offences complained of. Though the Court declined the opportunity to consider the question of entrapment, the Court opined that entrapment was not a defence available to an accused in Trinidad and Tobago, but could instead be raised as an abuse of process, which, if proved, would stay the relevant proceedings against an accused. Up to the time of these proceedings in Trinidad and Tobago, the secret audio and video recordings had not yet been disclosed to the Applicants, so the question of admissibility into evidence was not dealt with. However, in declaring that the applications were without merit, the Court dismissed same, appearing to not be moved by the various arguments of the Applicants, inclusive of the argument that they were entrapped and that the secret recordings breached their fundamental rights. The question of how to treat with the secret audio and video recordings was left to the US Courts, and in the proceedings in the US, those recordings were admitted in evidence, with the Applicants subsequently being convicted of a variety terrorism charges.

In Trade Dispute 394 of 1997 Oilfield Workers’ Trade Union v Caribbean Packaging Industries Limited, a departmental manager of the Defendant company secretly created an audio recording of two sessions of inquiry (meetings) in relation to the conduct of one of the company’s employees, by hiding an audio recording device in his pocket. During the course of the proceedings, a typed up transcript of the secret audio recordings of these meetings was produced, and the Defendant company sought to have this transcript admitted in evidence. Though the Court initially overruled the Union’s objection to the admission in evidence of the transcript, the Court performed a U-turn and declared that upon further reflection, a decision was made to disregard the transcript altogether. The Court even went as far as denouncing the action of the department manager, stating that it was done in bad taste and was misguided.

Based on the above cases, one may form the opinion that the Courts in Trinidad and Tobago have so far been slow to allow any sort of secret audio and video recording to be admitted in evidence in proceedings. So, if two or more persons are having a conversation in person or via telephone, and one of the participants makes an audio or video recording of same without the knowledge and consent of the person(s) being recorded, they may face some difficulty in relying on those recordings in Court proceedings in Trinidad and Tobago. This is in contrast to the common practice in our local Courts where screenshots of Whatsapp conversations and email threads, which are now so heavily relied upon as having significant evidential value, are regularly admitted in Court proceedings. It is arguable that the knowledge and consent of the parties to such methods of communication may be presumed given that it is print communication and end users of such technologies are well aware that each participant is able to accurately store and reproduce copies of such communications.     

RECENT EXAMPLES OF AUDIO AND VIDEO RECORDINGS MADE WITHOUT THE KNOWLEDGE AND CONSENT OF THE PERSON BEING RECORDED

Last week, the Chief Secretary of the Tobago House of Assembly, Mr. Farley Chavez Augustine, revealed at a specially convened sitting of the Assembly that he recently met with a man named Akil Abdullah, and that Mr. Abdullah had admitted to him that he had been offered money in a plot to destroy Mr. Augustine and other THA officials. Video recordings of the meetings with Mr. Abdullah, who apparently met with the Chief Secretary on more than one occasion, were played in the Assembly during one of its sittings, and Mr. Abdullah was reportedly recorded on video stating that he was offered the sum of Two Hundred and Seventy Thousand Dollars ($270,000.00) for his role in the nefarious scheme. In what some may see as a surprise, the Chief Secretary actually admitted to the world, that he had secretly recorded Mr. Abdullah in these meetings and conversations, without his knowledge and consent.    

Earlier this year, there was the AUDIOGATE scandal, with an audio recording circulating in the traditional media and on social media, which suggested that the said Chief Secretary and other THA officials were engaged in a conspiracy to recruit and pay persons to undertake a propaganda campaign in favour of the Tobago People’s Party and for the THA Officials to finance same with the use of public funds. Based on the reports in the media, the shoe was now on the other foot, as this audio recording was allegedly made without the knowledge and consent of the Chief Secretary and the other persons (allegedly THA officials) present during that discussion and the contents of this particular audio recording are currently the subject of a police investigation. The Chief Secretary, quite interestingly, later removed one strong layer of Defence by publicly admitting that the recording was genuine and that he was a party to said discussion,but still, in the event of any criminal or civil proceedings being instituted on the basis of this Audiogate evidence, there may still be arguments made as to the admissibility into evidence of this particular audio recordings and we can only await the further decisions of the Trinidad and Tobago Police Service in this regard.    The reality in Trinidad & Tobago is that, while we have Case law, Common Law and Legislation to guide us, the practical application of the Law is still evolving, as it relates to the admissibility of audio and video recordings into evidence in criminal or civil proceedings in T&T.

© 2023 MARTIN ANTHONY GEORGE & CO

MAGCO DAILY LEGAL LESSONS

THE ADMISSIBILITY OF AUDIO AND VIDEO RECORDINGS INTO EVIDENCE IN LEGAL PROCEEDINGS IN TRINIDAD AND TOBAGO

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