Documentary evidence Kinds of evidence

In Rivera United States, 148 concerning sexual exploitation of women with irregular status in the United States, an immigration oficer submitted evidence he had obtained, including a letter one of the defendants had sent to the prosecutor which indicated that the defendant knew of other businesses which harboured aliens and engaged in prostitution, thus proving that he knew of the illegal immigration status of the victims. This was mentioned by the court in its description of the evidence presented to it. All three defendants involved in this case were convicted of multiple charges, including sex traficking and forced labour. In Case No. 8959-2012 Egypt, 149 documentary evidence of 95 unoficial marriage contracts Orfy contracts 150 provided crucial support to the testimony of victims. The contracts proved that the young girls were led astray to think they were to be married to men from Gulf States, whereas, in reality, they were to provide prostitution services to them. Other documentary evidence included receipts between defendants and lists of names of victims and information about them. In Ernst F. Germany, 151 there was varied documentary evidence to support a conviction of human traficking for prostitution and other crimes. This included text messages to clients and letters to a teacher who tried to help the victim. In Kamal Jeet Singh v. State India, 152 the defendant operated a widespread national organized crime network that engaged in the recruitment and transport of women for the purpose of engaging in commercial sexual exploitation. The defendant’s network supplied girls to hotels and private residences in various cities in India. Documentary evidence was submitted to prove organized prostitution, including mobile phone call records, documents from hotels and a bank, and a large number of air tickets, as well as inancial documents see subsection on inancial records. The defendant was found guilty of prostitution, traficking in persons and organized crime. In two cases from Germany, which yielded convictions of traficking, Western Union transcripts showed where the money was channelled and helped to prove the element of exploitation of the victims. 153 In a case of traficking for sexual exploitation, Martin Philippines, 154 notebooks or journals written by the 34 victims were submitted. These recorded the dates they were taken out of the brothel for prostitution purposes, the nationality of the customers, the places to which the victims went, cash advances and other personal matters. Though the victims themselves did not testify, the court admitted this evidence as “entries in the course of business”, which is a recognized common law exception to the rule against hearsay and may be submitted 148 Previously cited. 149 See Index of all cases. For detailed facts, see the in-depth analysis in section 5.8 of the Case Digest. 150 See previous footnote explaining the nature of Orfy marriage contracts in section 2.3 on “Testimonial evidence of persons other than victimspolice or law enforcement as sources of testimonial evidence”. 151 See Index of all cases. 152 Kamal Jeet Singh v. State, Criminal Appeal No. 282007 and Crl. M.A. Nos. 336 and 3382007, the High Court of Delhi, 29 January 2008, India. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. IND017. 153 High District Court of Berlin Landgericht Berlin 504 KLs 1213 of 20 December 2013; Case against Sophia Ogiemwanye and others, High District Court of Berlin Landgericht Berlin, 501 KLs 112 68 Js 63309, 14 Decem- ber 2012, Germany. 154 See Index of all cases. even if the persons who made the entries do not testify. The court convicted the defendant of traficking in persons by maintaining or hiring a person to engage in prostitution or pornography. In R. v. Beckford and Stone Canada, 155 two individuals were charged with various offences including human traficking, sexual assault with a weapon, living on the avails of prostitution and unlawful coninement. In 2012, 156 defence counsel applied for disclosure of certain records in the hands of third parties relating to the victim including medical records and police occurrence reports, claiming that they were relevant to the victim’s credibility and reliability. In Canada, 157 the disclosure of records in the hands of third parties for which there is a reasonable expectation of privacy is governed by a statutory scheme which balances the privacy rights of a victim or witness against the fair trial rights of a defendant. Pursuant to the statutory scheme, the court ordered the documents produced and, after reviewing and redacting parts of the police occurrence reports, ordered their release to the defendant. The court further held that additional redactions to two speciic addresses of the alleged victim in the occurrence reports could be made by the prosecution, prior to disclosure, if it was determined that releasing the information would pose a security risk for the victim. Financial records Financial records are a particularly important form of documentary evidence in cases of traficking and allied crimes. In Wei Tang Australia, 158 a landmark slavery case from Australia concerning the enslave- ment of ive Thai women under debt-bondage conditions in a brothel, business records of the defendants showed a disparity between the payments to the victims compared to that of other women in prostitution in the brothel. The records appeared in a different part of the ledger and included a different percentage of the fees. This served to support the prosecution’s case that the victims had not “merely” been prostitutes, but rather had been held under conditions of slavery. In R. v. Orr Canada, 159 concerning the alleged traficking of a Filipino nanny for the purpose of domestic servitude, bank records were presented by the defence to contradict the alleged victim’s statements that the remittances to the Philippines made by the defendant totalled less than 1,000. The records indicated that four remittances were made and exceeded 1,800. In its sentencing decision, the court noted that it could not ind beyond a reasonable doubt that the alleged victim was treated as a “virtual slave”. The court of appeals has since ordered a retrial. 155 R. v. Beckford, [2013] O.J. No. 371, Ontario Superior Court of Justice, 28 January 2013, Canada, [2012] ONSC 7365 application for disclosure. 156 See 2012 ONSC 7365; 276 C.R.R. 2d 26. 157 See sections 278.1–278.9 of the Criminal Code, accessible at http:laws-lois.justice.gc.caengactsC-46page- 142.htmldocCont. 158 Previously cited. For detailed facts, see the in-depth analysis in section 5.3 of the Case Digest. 159 The trial court case which included this ruling is R. v. Orr, 2013 BCSC 1883 CanLII,, Canada, but the Court of Appeals ordered a retrial on the basis of the lacks in the expert witness’s qualiications at R. v. Orr, 2015 BCCA 88, Canada. The case is available in the UNODC Human Traficking Case Law Database UNODC No. CAN015. Documentary evidence Documentary evidence can be of particular value in traficking in persons cases, especially in cases in which testimonies of the victim and witnesses are not enough to provide the court with a full picture of the circumstances of the case or in order to strengthen such testimony. Documentary evidence may take many forms, including, but not limited to: • Text messages • Letters • Financial records, such as business records and bank records • Journals or ledgers • Lists • Transcripts e.g. of phone calls • Birth certiicates, baptismal certiicates and school records, to prove the victim’s age • False birth reports, to show a manipulation of age • A certiication from a ship, to prove that the victim was on board • Plane or other travel tickets • Passports and other personal documents, including visas • Contracts including marriage contracts • Medical or police records

2.8 Real evidence

“Real evidence” can be an important source of evidence in traficking in persons cases. The term “real evidence” is used to describe objects including people and animals submitted for the court’s scrutiny for the purpose of gathering impressions about their properties, rather than their content, which would be considered documentary evidence. In other words, if a document is submitted to court in order to attest to its appearance, for example, if the handwriting of a letter is being explored, it will be deemed “real evidence”, whereas if it is submitted in order to attest to its content, it will be classiied as documentary evidence. “Real evidence” may include photographs, traces, ingerprints, but also human demean- our. 160 While none of the cases reviewed for this Case Digest speciically referred to in- gerprints as evidence, this may be due to the fact that in many cases available, the court decision often only references a portion of the evidence submitted to it. On the face of it, it seems that these pieces of evidence could be used to prove the presence of a defendant or victim in a certain place or as evidence of sexual exploitation or the use of a gun in controlling the victim. “Real evidence”, as all other forms of evidence, may of course be used by prosecution or defence to support their respective cases. 160 See Phipson and Elliott, Manual of the Law of Evidence, London, Sweet and Maxwell, 1980, pp. 27-28; see also Cross and Tapper, On Evidence, Lexis Nexis, 2004 pp. 64-65 on “Appearance of Persons” and “Demeanor of Witnesses”. The cases below are intended to provide the practitioner with some ideas respecting possibly relevant real evidence.

2.8.1 Photographs and videos

Photographs or videos can concretize testimony about victims’ conditions or their presence in exploitative premises and support other evidence relating to the nature of the connection between victims and defendants. In learning from the following cases, however, caution must be exercised because jurisdictions may have disparate rules about the conditions for the admission of such evidence and, for example, proof of the good working order of the equipment. In the Samaesan Thailand 161 case concerning labour exploitation of workers from Myan- mar, the police received a tip from one of the victim’s relatives about the plight of the victims. They were able to gather various kinds of evidence, including photographs of the persons involved in the exploitation taken at the moment when the relative of the victim paid money to the defendant for the victim’s release. These photos provided evidentiary support for the conviction of the defendant for deprivation of liberty offences, traficking in persons for labour exploitation, traficking in persons committed by an organized criminal group, smuggling of migrants and immigration offences. In the Ranya Boonmee Thailand 162 case, the victims were exploited in a shrimp-processing factory. The prosecution presented as evidence, photographs of the shrimp factory, which showed that it was surrounded by a sixteen-foot-high, barbed wire capped wall. The photo- graphs also showed the housing in which the victims lived and that this housing was inside the walls. However, while the trial court convicted the defendants, the court of appeals exonerated them on the basis of inconsistencies in the alleged victims’ testimonies and the testimony of similarly situated workers who claimed they had not been forced to live on-site. The charges were of accepting and retaining workers illegally, including those under the age of 15 and 18 years old for the purposes of enslavement and compelling them to work under slavery-like conditions In Kaufman United States, the defendants took advantage of severely mentally ill individuals and subjected them to forced labour and involuntary servitude. Evidence in this case included 78 video tapes of the victims performing sexual acts or being touched sexually by the defendants. This evidence was noted only as background and was not part of the holding of the court of appeal. The defendants were convicted on multiple charges including forced labour and involuntary servitude. In Hirang y Rodriguez Philippines, 163 a case concerning sexual exploitation of minors, a properly authenticated videotape was played inside the courtroom during the trial. It showed the defendant talking to the police oficers acting as poseur customers about the girls’ sexual expertise in bed, including oral sex, and the amounts the customers were to pay to him. The defendant also admitted in the videotape that he rented a van so that the girls could be transported to Chowking for prostitution purposes. It should be noted that the video 161 Samaesan, Criminal Court of Bangkok, 28 January 2013, Thailand. The case is available in the UNODC Human Traficking Case Law Database UNODC No. THA011. 162 Previously cited. For detailed facts, see the in-depth analysis in section 5.7 of the Case Digest. 163 See Index of all cases. tape in this case may be considered both documentary and real evidence, given the nature of its content. In Muñoz Argentina, 164 two defendants harboured a minor girl and several adult women for the purpose of sexual exploitation. Photos and videos were found on the premises, contributing to prove the sexual exploitation and the age of the women. In addition, photos of the brothel with bars on one side and behind the main area, and a series of rooms with red lights provided supporting evidence. In a slavery case Wei Tang Australia, 165 a video of the bedroom where the victims slept was submitted which showed a lack of furniture, thus supporting the prosecution case that the victims were held under conditions of slavery. In addition, the prosecution submitted a video which depicted the victims laughing together while cooking with an agent of the defend- ant. While the defence claimed that this video proved that the victims had been happy with the conditions under which they were held, the prosecutor who handled the case commented that the video actually showed the opposite—young, vulnerable and sad young women whose laughter seemed forced, and who were thankful for such little things as cooking. In addition, the video served to explain why the victims initially lied to police about the location of the premises in order to protect the agent of the accused with whom the video showed that they had bonded. 166

2.8.2 Equipment and other utensils

Sometimes equipment found at the scene of the crime can be of probative value. In Samaesan Thailand, 167 workers from Myanmar, including minors, were exploited by the defendant in the ishing industry. The victims testiied that when they refused to work, they were beaten or threatened with death. During a rescue operation, the investigators seized electric shock equipment, which was purportedly used to torture the victims. Based on this evidence and the testimonies of the victims, the court convicted the defendant of traficking in persons for labour exploitation and other charges. 168 In Okoya Nigeria, 169 where young women were lured into prostitution and forced to take an oath during a “juju” ceremony, the prosecution presented as evidence an animal tail, as well as other items usually used in “juju” oath taking ceremonies. The evidence was found in the shrine of the so-called native doctor who invoked the oath. The defendant in this case was convicted of procuring for prostitution, organizing foreign travel for the purpose of prostitution, and deceitful inducement to travel from Nigeria to a foreign country. Similarly, in another Nigerian case of traficking for the purpose of exploitation of prostitution Omoruyi Nigeria, 170 a wrap used in the “juju” oath taking process, which contained pubic hairs and 164 Previously cited. 165 See Index of all cases. For detailed facts, see the in-depth analysis in section 5.3 of the Case Digest. 166 The information was provided by an Australian expert who prosecuted the case. 167 See Index of all cases. 168 Other charges included: deprivation of liberty of others; deprivation of liberty of a child; dishonestly receiv- ing, disposing of, procuring, seducing or taking away of minor; traficking in persons committed by an organized criminal group; smuggling of migrants; and assisting illegal immigrant to illegally stay in the Kingdom. 169 Attorney General of the Federation v. Sarah Okoya, High Court of Justice, Edo State of Nigeria, Benin Judicial Division, 19 November 2004, Case No. B15C2004, Nigeria. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. NGA001. 170 See Index of all cases. For detailed facts, see the in-depth analysis in section 5.5 of the Case Digest.