Government yesterday took a giant step towards ensuring that witness-tampering and the changing of testimony by witnesses do not frustrate criminal prosecutions.

Attorney General John Jeremie piloted the Evidence Amendment Bill, which among other things would ensure that the threats and intimidation of witnesses, which have led so often to the collapse of cases, would no longer interfere with and hinder the prosecution and conviction of criminals.

Significantly, the bill would allow to be accepted as ’evidence-in-chief’ audio and video recordings of voluntary statements of all prosecution and defence witnesses, including statements from the accused which may amount to a confession. Where witnesses claim amnesia or that they were forced to give a confession, the judge can allow the video evidence to be admitted ’in the interest of justice’.

The bill would also allow bad character evidence (evidence of previous convictions to be admitted). And, in instances where people change their testimony, the bill would provide for their previous inconsistent statements, made by them to be admissible in court.

Giving strong support to the measure was Independent Senator Dana Seetahal, who said the bill was absolutely necessary for effective prosecution. She supported the Attorney General’s contention that the bill did not require a special majority because it breached none of the entrenched rights of Section 4 and Section 5 of the Constitution.

Speaking in the Senate, Jeremie noted that there has been a marked increase in the number of criminal trials which have been aborted or discontinued where witnesses have refused to give evidence or recanted on previously given evidence or statement.

’Often, witnesses who have previously given statements to the police and given evidence at the preliminary enquiry absent themselves at the trial or having appeared recant their original version of evidence or feign lapse of memory... This immediately brings into question the veracity of the witness and the reliability of the evidence. Without oral evidence of these key witnesses, the prosecution is often forced to discontinue... This frustrates the criminal justice system and the Government is of the view that it cannot be allowed to continue,’ he said.

Jeremie also noted that the prosecution frequently encountered witnesses who were fearful because they have received direct or indirect threats that they or their family members would be killed or seriously harmed if they testify or they are fearful because they know the accused and his associates and know they have the capability to eliminate witness.

He added that many were reluctant to enter a witness protection programme because of the restriction of their freedom and the length of time they are inconvenienced. The bill would allow their statements made in documentary form to be admissible.

’We have had several cases collapse. I myself cannot speak but I am sure that we are all citizens of this country. And we know what trials we are speaking of...,’ he said.

Seetahal said there had been too many instances where people have given ’solid’ testimony and have changed their story. ’And that is why the newspapers can report so many murders and no convictions,’ she said.

She said once there is an interval of several months, witnesses can be intimidated.

’We need this bill to save the criminal justice system,’ she said. She added that because of technology, people who threaten witnesses are difficult to find and difficult to bring before the court and witnesses are likely to change their mind all too frequently. So what we need to have is the putting before the jury both sets of evidence-the original statement and the ’I forgot’ or ’it did not happen’ statement,’ she said. ’I have been involved in so many cases where that happened,’ Seetahal said.

Seetahal, like Jeremie pointed out that the bill had safeguards. She said there is the residual discretion of the judge to admit evidence or not admit the previous inconsistent statement if he/she thinks it is not right. She said the giving of audio and video did not prevent or exclude cross-examination. However, Seetahal did not agree with the use of audio evidence alone.

On the admission of ’bad character’ evidence, she endorsed Jeremie’s statement that the seven gateways to determining whether such evidence is admissible provided appropriate safeguards. These include: if it is important explanatory evidence, has substantial probative value, if it is giving a false impression of the accused or if the accused has attacked someone’s else character.