D. Esparon, J
- Upon the counsel for the Accused Mr Clifford Andre making a motion viva voce to the Court that the Court views certain video. The video which was disclosed by the prosecution which he has tendered in the basis that it would be used as evidence for trial purposed. The prosecution has objected to the Court viewing the said video. One, the basis that no formal motion has been made to the Court only a viva voce motion.
- Two, that it would prejudice the minds of the Court, since there is a right to fair hearing is that is before the case is heard in the merits. Counsel for the Accused, the applicant in the bail application has submitted that in order for the Court to have a fair appreciation of the case, to be impartial it is important that the Court views the video footage since he had made averments. The applicant Mr Kilindo in his affidavit has made averments as to different moments, different timing within the video footage that the Court needs to itself view.
- Counsel for the Republic has submitted to the Court that this Court should not view this video footage because it has come from a viva voce application and not a proper application before the Court. And secondly it will prejudice the mind of the Court to view the evidence before the trial has started.
- This Court has considered the submissions of counsel for the Accused, the applicant in the bail application and of Counsel for Respondent in the bail application, the Counsel for the Republic.
- This Court finds that viewing such a video footage would prejudice the mind of the Court in view of the fact that in this Court there is a right to fair hearing which also means equality of arms on both sides.
- By viewing the video footage of which the evidence should be seen during the trial itself, the Court would obviously be prejudiced at this stage as the Court is not in the view at this stage to make any finding whether is the accused is guilty or not, since the Court doesn’t know what evidence lays angst the Accused person at this stage and what other evidence are there to be disclosed the accused person and which is going to be produced the full version of the evidence which is going to be produced before the Court at the stage o trial.
- However, this Court notes that Mr Kilindo has made a lot of averments in his affidavit his bail application. It is there for the Court to consider and take a view on such averments. Mr Kilindo has averred that he has viewed the video the footage and the Court has to consider the averments made in the affidavit as well as any averments in the prosecution’s affidavit, any order to make a determination as to the bail application.
- I draw this parallel to the practice direction issued by the Court in passing which the prosecution has to disclose copies of documents to the Court beforehand. Although the practice direction has been repealed, for exactly this purpose. I note also there is a Judgment before the Court of Appeal that has pronounced itself in the civil matters in that regard.
- Be that as it may, I would obviously uphold the objection so that the Court will not view the video footage at this stage of the proceedings.
Signed, dated and delivered at Ile du Port on 19th September 2022.
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D. Esparon, J