statement admissible in common law systems, as well as civil law systems, in order to prove the truth of what is stated, if it has been proven to have been elicited voluntarily.
100
Defendants’ confessions, whether partial or full, have been important in cases of traficking and allied crimes. One example is the case of Okwuede Nigeria,
101
where the defendant’s out-of-court confession to all the elements of the crime was instrumental in his conviction.
Another example is Omoruyi Nigeria,
102
where even in the absence of victim testimony, the defendant’s statements which were confessional in nature,
103
were instrumental in a convic- tion for organizing foreign travel which promotes prostitution.
In Case No. 16852010 Egypt,
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the evidence included out of court confessions by the parents of the victim who were also defendants in the case. They admitted that they had
approved the Orfy
105
type of marriage of their minor daughter for inancial beneits. The trial Criminal Court of Gizah convicted the defendants of child traficking and other offences, based,
in part, on these confessions, in conjunction with other evidence.
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However, the Court of Cassation has ordered a retrial due to what it considered to be laws in the judgment of the
trial criminal court, including the court’s omission to reply to the defendants’ defence that the marriage of their daughter was based on a valid marriage contract. The Court of Cassation also
held that there was a contradiction in the trial criminal court’s reasoning, in relying on the religious opinion issued by the Grand Mufti annulling the marriage,
107
while refusing to critically examine it as requested by the defence. In addition, the trial criminal court did not reply to
one defendant’s claim that her confession was void because it was given as a result of coercion.
2.6 Expert or professional testimony
Supporting testimonial evidence can also be derived from professionals who submit expert opinions. Jurisdictions differ regarding the rules governing the submission of such evidence,
including on questions such as: when does written opinion sufice and when is oral testimony necessary? When may a judge order expert testimony and when must such testimony be
submitted by parties in the case? What is the proper ambit of such testimony in order to ensure it does not encroach upon the judge’s or jury’s function to rule on the issues? However,
despite these differences, most jurisdictions allow relevant expert testimony in some form.
Expert opinions can relate to medical matters Expert opinion on medical matters can be an important evidentiary source in traficking in
persons cases. Medical experts can, for example, assist the court by presenting a medical opinion on the age of a victim; by documenting injuries or the victim’s psychiatric situation;
or by giving a medical opinion on the question whether a victims was subject to rape.
100
Ibid.
101
See Index of all cases.
102
Previously cited. For detailed facts, see the in-depth analysis in section 5.5 of the Case Digest.
103
Two of the charges were organizing foreign travel which promotes prostitution and the defendant admitted that he had organized foreign travel.
104
See Index of all cases.
105
For more information on Orfy marriage, see the Egyptian case in section 2.3 on “Testimonial evidence of persons other than victims”.
106
This included the victim’s testimony, police investigation, the victim’s uncle’s testimony, the testimony of a neighbour who saw the abuser bringing the victim to his house and a religious opinion issued by the Grand Mufti.
107
For more detail about this religious opinion see section 2.6 on “Expert or Professional Testimonyreligious opinion”.
Furthermore, a medical opinion regarding the defendant may also be helpful for the court, depending on the circumstances of the case. A concrete example concerned a case in which
the defendant claimed that he could not have sexually exploited the victim due to physical incapacity. His claim was countered by an expert medical opinion, as will be seen below.
108
In Wipaporn Songmeesap Thailand,
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a 14-year-old Thai girl was enslaved as a domestic worker. The victim was underpaid for her work and was severely physically abused. In this
case, in addition to the victim testimony, the testimony of a doctor was submitted who performed a medical examination of the victim and documented her wounds. The doctor’s
report and his testimony were mentioned as part of the evidential foundation for the conviction of restraining an injured minor for the purposes of enslavement and another charge.
In the Urizar Canada
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case, involving sexual exploitation of the victim by her boyfriend, the court relied on a medical report to conirm that the victim had suffered injuries to her
knees consistent with her claims that the defendant had pushed her downstairs. The defendant was convicted of human traficking and other charges.
In Mwakio Kenya,
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the court, in denying the defendant’s appeal on the issue of the suficiency of the evidence for his conviction of deilement and child traficking for sexual
exploitation, relied, in addition to other evidence, on a doctor’s testimony regarding his medical examination of the victim. This expert testimony corroborated the victim’s claim that
she had been raped. The court noted that:
“Rape and deilement are both crimes which are perpetrated under the cover of darkness. There is unlikely to be an eye witness. In many cases the only corroboration is medical.”
George Hezron Mwakio v Republic [2010] eKLR, Criminal Appeal 169 of 2008, High Court of Kenya at Mombasa, 28 June 2010, Kenya.
In Hirang y Rodriquez Philippines,
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concerning commercial sexual exploitation of several Filipino girls, four victims were subjected to a dental examination to determine their
ages. The examination found that they were all minors. The court relied on the results of the examination in order to rule that this was a case of traficking of minors which is
considered “qualiied” traficking in persons.
113
Also in Canonoy Philippines,
114
in which a 14-year-old girl was employed by the defendant to provide sexual services in his bar, a dentist testiied that he had carried out a dental
examination of the victim to determine if she already had a third molar tooth. The signiicance of the presence of a third moral tooth was that “if the patient has no third molar, still below
the age of 17 years or minor”. Upon checking, the dentist concluded that that the victim
108
See a full description of Ernst F. Germany in this section.
109
Case No. 49942550, Red Case No. 122132552, 1st Instance: Criminal Court of Southern Bangkok, 6 November 2009, Thailand. The case is available in the UNODC Human Traficking Case Law Database UNODC
Case No. THA005.
110
See Index of all cases. For detailed facts, see the in-depth analysis in section 5.2 of the Case Digest.
111
See Index of all cases.
112
See Index of all cases.
113
This denotes traficking under aggravating circumstances, in this case, in view of the fact that the victim was a minor.
114
People of the Philippines v. Monette Canonoy, Crim. Case No. 14206, the Regional Trial Court, 1st Judicial Region, Branch 11, Laoag City, the Philippines. The case is available in the UNODC Human Traficking Case Law
Database UNODC No. PHL054.
