Corroborated versus uncorroborated victim testimony
The use of out of court statements may be easier in civil law jurisdictions which more easily admits written statements than do common law jurisdictions. The question arises if
this solution would be acceptable to a common law court, and if so, under what circumstances.
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In one such case, Jochen K. Austria,
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involving 17 Romanian victims, though no victim testimony was adduced, defendants were convicted of traficking in persons, document fraud
and defamation. Here, even though the victims were not available for trial, they had made statements during the investigation. The court admitted the protocols of the victims’ state-
ments as evidence, ruled that there is no reason to expect that the victims would have changed their testimonies, and relied on those statements for the conviction. The appeal on conviction
was dismissed.
Two cases from the Philippines, which is a civil law jurisdiction as regards criminal law, provide further examples of convictions in the absence of victim testimony. The irst is Lito
Manalo Anunsencio Philippines,
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where the conviction was of recruiting and transport- ing a minor for sexual exploitation. The minor escaped from the NGO shelter and was
unavailable for testimony. However, the court convicted the defendant on the basis of other testimonies,
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out of court statements,
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and documentary evidence.
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Another example is
Martin Philippines,
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where the victims were unable to testify in court. The court con- victed the defendant of traficking in persons by maintaining or hiring a person to engage in
prostitution or pornography on the basis of oral testimonies of law enforcement oficers who conducted the raid on the suspected brothel, documentary evidence and real evidence.
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In Omoruyi Nigeria
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the defendant was convicted of an attempt to organize foreign travel which promotes prostitution and an attempt to place the victims in servitude as pledge
for a debt. The victims were not called upon to testify in this case but an array of other evidence was considered by the court. The prosecution relied heavily on evidence provided
by a so-called native doctor and on the testimony of a police oficer who investigated the case. Other evidence supporting the conviction included the defendant’s statements which
were confessional in nature, in that he admitted organizing foreign travel. The defence raised the claim that failure to call the victims to testify was a fatal law in the prosecution’s defence.
The court did not accept this claim. It held:
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Please see section 2.4 below.
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Case 130s3902, Supreme Court of Austria, 29 May 2002, Austria. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. AUT003.
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People v. Lito Manalo Anunsencio Philippines, Crim. Case No. 06-242304, 22 December 2009, Regional Trial Court, National Capital Judicial Region, Manila, the Philippines. The case is available in the UNODC Human
Traficking Case Law Database UNODC Case No. PHL020.
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This included testimony of the victim’s mother that she had been missing; of the coastguard who arrested the perpetrator; of an NGO worker who provided aftercare to the victim and noticed she seemed afraid and confused;
and of a porter who identiied the victim when she boarded the ship.
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The statements were from the victim, the coastguard and the victim’s mother.
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This included certiication from the ship that the victim was on board on the day of the rescue and a birth certiicate of the victim proving that she was a minor.
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People of the Philippines v. Valentino C. Martin and others, Crim. Case No. CBU-91076, Regional Trial Court, 7th Judicial Region, Branch 7, Cebu City, 3 July 2013, the Philippines. The case is available in the UNODC Human
Traficking Case Law Database UNODC Case No. PHL067.
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See sections 2.7 on “Documentary evidence” and 2.8 on “Real evidence” for a detailed description of the speciic kinds of evidence submitted.
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Attorney General of the Federation v. Constance Omoruyi, Case No. B31C2004, High Court of Justice Edo State of Nigeria, Benin Judicial Division, 22 September 2006, Nigeria. The case is available in the UNODC
Human Traficking Case Law Database UNODC Case No. NGA002. For detailed facts, see the in-depth analysis in section 5.5 of the Case Digest.
“I ind and I hold that the victims of the offences charged are not the only witnesses by which prosecution can prove the that the [sic] victim of a crime is the only person who can give material
evidence against [a defendant]. What if it’s a situation where the victim dies, will that be the end of the case? The answer is no.”
Attorney General of the Federation v. Constance Omoruyi, Case No. B31C2004, High Court of Justice Edo State of Nigeria, Benin Judicial Division, 22 September 2006, Nigeria.
In some cases, while some victims testify, some fail to do so. Does this inevitably lead to an exoneration? The answer is no, but this depends on the circumstances of the individual case.
On the one hand, the absence of testimony from one or more victims in cases with multiple victims can present an impediment to conviction because the court may ind that the prosecution
failed in its duty to present the full picture or failed to produce the evidence because of its inherent weakness. However, depending on the circumstances of the individual case, a conviction
can still be attained, even when one or several victims does not testify in court. This is, for example, illustrated by the case Anware Okwuede Nigeria.
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In this case the defendant was found guilty of procurement for prostitution, organizing foreign travel which promotes
prostitution and deceitful inducement, even though one of the victims did not testify in court because she had died before the beginning of the trial. The court admitted the victim’s previous
statement to investigators in evidence and relied on it along with testimonial evidence from another victim. In addition, the defendant confessed to all the elements of the crime. This
provided suficient grounds to support the conviction of the defendant. Nigeria has a mixed legal system of common law, Islamic law and customary law.
Tools to assist courts in the absence of victim testimony: lessons learned
1. Examine the reason for failure to produce testimony Is the victim still alive? Has the victim disappeared? Is otherwise unavailable?
2. Examine if there is other evidence available and, if so, how much and how persuasive. 3. Check if there is a way to submit the victim’s statements instead of testimony naturally this
will tend to be easier in civil law jurisdictions.