The organized criminal group commonly known in South Africa as the "Mountain Boys" was highly organized and operated transnationally. The syndicate engaged in a range of criminal activities that constitute serious offences under South African law. The offences relate to racketeering activities and related categories of offences, including money-laundering. The information gathered further indicated that members of the organized criminal group also committed a range of other serious crimes including theft, fraud as well as offences under the provisions of the South African Mining Rights Act and the Precious Metals Act. In particular, the group members operated as national buyers and exporters of illicit platinum group metals ("PGM") from South Africa. There are five clearly distinguishable levels of activities used by the group to smuggle PGMs.
As a starting point, PGMs were stolen at source from the mines, often in large quantities. These PGMs were later sold through various receivers to exporters. The various levels of the criminal operators in the illicit PGM industry can be described as follows:
Level 1 "the runners"
The unwrought PGM's were stolen from the processing plants in South African mines. A runner, who was usually an employee of the mine, would then transport the material from the mine by bag or by other methods and sell it to a middleman. Runners used to have a wide network of black market contacts, including illicit smelters.
Level 2 "the middleman"
The middleman would buy considerable volumes of PGMs from the runners. The middleman crushed the PGMs into smaller pieces and packaged them for the national buyers, before delivery.
Level 3 "national buyers"
The national buyers would buy the PGM'S from the level 1 and 2 operatives. These buyers appeared to be the link between the runners/middleman and more sophisticated criminals who constituted the next level in the hierarchy of the criminal operators. Often, these buyers were members of the organized criminal group or they operated as independent couriers for such group. Their task was to buy and transport the material from the runner/middleman to wealthy local syndicate leaders.
Level 4 "the local syndicate leader"
The syndicate leader/buyer used a fronting company, usually a scrap metal dealer, to export the product from South Africa. The PGM stocks that they had purchased from various sources were processed, containerised or packaged and then sold to local or international contacts. Processing allowed for detailed records to be kept by the syndicate leaders from whom the product was bought and samples were also taken for analysis (assay) to determine value and PGM content. Misrepresentations were made to customs by undervaluing and falsifying the nature of the consignment. This step was used to overcome the requirements for prescribed permits and licences to possess, transport and deal in the product as required by the Act.
Level 5 "the international buyers"
The international contacts were situated abroad. Sophisticated networks, consisting of legal persons and entities established abroad dealt with the imports and revenues derived from the sale of stolen South African PGMs distributed to the refiners in Western Europe and Canada.
The complexity of the case required participation of witnesses and justice collaborators associated with the accused in one or more activities, who were offered indemnity should they testify for the prosecution. Plea agreements in terms of section 105 A of the South Africa Criminal Procedure Act were also entered into with some of the accused, who would, as part of the plea agreement, testify against one or more of the accused. For instance, the charges against two defendants, Kevin Naidoo and Terrence James, were finalized as both pleaded guilty in terms of section 105 A (plea agreement). Both were scheduled to testify for the prosecution in court.
Vincent Gigante was the head of the Genovese crime family in New York City. Along with the heads of the four other organized crime families in New York City, he was a member of the Commission, a body that governed La Cosa Nostra families throughout the United States. He and Vittorio "Vic" Amuso - the head of the Lucchese family - were centrally involved in a scheme to control the multi-million dollar window replacement business in New York City.
They carried out the scheme through the Genovese family's control of window replacement companies, which made labour payoffs to the window replacement union that the Lucchese family controlled. In exchange for bribery payments to corrupt union officials, the Genovese family's companies were allowed to circumvent costly union rules and to hire less expensive non-union workers. When other companies successfully bid on jobs, union representatives would persuade them to withdraw their bids through coercive means. Gigante also conspired to murder Peter Savino, an associate of the Genovese family, as he correctly believed that Savino had begun cooperating with law enforcement agents. The plan to kill Savino did not succeed, however, because Savino entered the witness protection programme and Gigante was therefore unable to locate him. At trial, Savino testified about Gigante's involvement in the window replacement scheme. Savino testified from a remote location by way of a live two-way closed-circuit television procedure that allowed Savino to view and hear Gigante and counsel while simultaneously allowing Gigante, counsel, the judge, and the jury to view and hear Savino. That procedure resulted from the district court's grant of the government's pre-trial application to permit Savino to testify through a two-way closed-circuit television procedure. The reason was Savino's terminal illness. Savino was then in the final stages of an inoperable, fatal cancer and was under medical supervision at an undisclosed location.
The jury found Gigante guilty of the more recent conspiracies to murder Peter Savino and John Gotti, although the court later dismissed the charge of conspiracy to murder Gotti as time-barred. Gigante was also convicted on all the extortion and labour payoff counts related to the windows scheme. He was sentenced to twelve years in prison, five years of supervised release, and a fine of $1,250,000.
Gigante argued that the admission of Peter Savino's testimony via two-way, closed-circuit television testimony from a remote location violated his Sixth Amendment right "to be confronted with the witnesses against him". Gigante maintained that no compelling government interest justified the deprivation of his constitutional right to a face-to-face confrontation with Savino. The government asserted that by refusing to attend a deposition of Savino, Gigante waived his right to a face-to-face confrontation. More fundamentally, the government argued that Gigante waived his confrontation rights through his own misconduct, with protracted attempts to delay his own trial by feigning incompetence.
The Supreme Court explained that "[t]he central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." (Id. at 845, 110 S. Ct. 3157). The salutary effects of face-to-face confrontation include 1) the giving of testimony under oath; 2) the opportunity for cross-examination; 3) the ability of the fact-finder to observe demeanour evidence; and 4) the reduced risk that a witness will wrongfully implicate an innocent defendant when testifying in his presence.
The closed-circuit television procedure utilized for Savino's testimony preserved all of these characteristics of in-court testimony: Savino was sworn; he was subject to full cross-examination; he testified in full view of the jury, court, and defence counsel; and Savino gave this testimony under the eye of Gigante himself. Gigante forfeited none of the constitutional protections of confrontation.
Schertzer, Steven Correia, Joseph Miched, Nebojsa Maodus and Raymond Pollard were five police officers part of the drug squad of the Toronto Police Service (TPS) Central Field Command (CFC). In 2004, they were accused of conspiracy to obstruct justice and other substantive offences including perjury, assault causing bodily harm and extortion. According to the conspiracy charges against them, in 1997 they coerced the drug dealer Andreas Ioakim into contacting another drug dealer, Aida Fagundo, in order to deliver 5 kilos of cocaine. It was alleged that the accused seized large amounts of money and drugs from Ioakim and not reporting them. In addition, they were accused of attacking Ms. Fagundo after the delivery and taking her money and belongings. Ms. Fagundo pled guilty to possession of cocaine and was sentenced in 1999 to 30 months in jail.
The accused were suspected of obstructing justice by various means, including falsification of their memo books, inclusion of misleading or false information in police records, preparation of false affidavits, perjury and failing to account for evidence seized. They also concealed the complaint for misconduct filed by Ms. Fagundo.
The investigation of the offences began in 2001. The testimony of Ms. Fagundo was sought against the accused. For nine years, Fagundo travelled widely to Cuba, the Dominican Republic and Spain, where she was residing when the pursuant order for her hearing by means of technology was issued. Previously, on behalf of Canadian authorities, the Cuban authorities interviewed her to investigate whether she was willing to testify in Canada. She declined the offer, scared for her security, among other reasons.
In 2008, pursuant to the Mutual Legal Assistance in Criminal Matters Treaty binding Spain and Canada, Canadian prosecutors asked to conduct the interview of Fagundo in Spain. She refused on the ground that such a request would interfere with her application for a Spanish residency permit. The mutual legal assistance request was then withdrawn by Canada.
After several attempts to interview Ms. Fagundo, she finally agreed to testify under certain conditions. In particular, she accepted to be interviewed via video conferencing. The interview took place in May 2009 and was recorded.
In granting the prosecution their motion for video conferencing, the judge noted in this decision that a fair trial does not always require that an accused physically confront a witness in person. For the evidence to be admissible in court, the court, jury, counsel and accused must be able to see the witness on a screen and hear and see the witness testify in real time, and the witness has to be able to hear and see counsel questioning her, the registrar who administers the oath, and the court, in the event that the presiding judge must speak to her.
The Italian system foresees the implementation of special measures when standard measures of protection for collaborators of justice and witnesses (e.g., home/workplace surveillance and escorts) are inadequate and the individual is at risk of serious endangerment. A "collaborator of justice" is someone facing criminal charges who agrees to cooperate by giving testimony on mafia-type criminal association offences or other offences listed in the law. A "witness" is any victim of a serious crime or any person who has witnessed a crime and testifies at trial, thus exposing himself/herself to serious and imminent danger (e.g., witnesses of criminal acts that occurred in their home or immediate environment, such as relatives of members of criminal groups; entrepreneurs and traders victimized by a racket). A witness can be put under protection regardless the type of crime.
The cooperation offered by must be trustworthy. Within 180 days from the time the person has expressed willingness to cooperate, s/he must supply critical information, in particular all information he or she possesses that can help to reconstruct criminal acts and circumstances and to locate and arrest the perpetrators. The protection programme is determined by a Central Commission (the Deputy Minister of the Interior, two judges and five police officers) upon request of a public prosecutor, for a period of 6 to 60 months. A temporary plan can be adopted as soon as the intention to cooperate is expressed. The special protection measures can be extended to persons living permanently with the collaborator or witness, or persons at risk because of their relationships with the collaborator or witness.
The protection system is based on the principle of "camouflage", i.e., the achievement of complete anonymity. The subjects relocate to a new, secure place of residence and are given a provisional identity document valid during the protection term only. In particularly sensitive cases, regulations also provide for a permanent change of identity. Assistance measures can also be prescribed to facilitate social reintegration and provide material support (accommodation, transfer fees, health care, legal and psychological assistance, and allowances for those who are unable to work).
The protected persons commit themselves to: observing security rules and cooperating actively in carrying out the protection measures; being questioned, examined or being available for any acts to be carried out; not disclosing facts of the proceedings to anyone other than law enforcement and judicial authorities and their defending counsel; and not contacting any person involved in criminal activities. Collaborators of justice, but not witnesses, shall specify all personal properties and assets at their disposal, directly or indirectly, which will be seized.
The programme is terminated when the conditions that called for it no longer exist, or because of non-compliance with the obligations, perpetration of offences, unauthorized return to the place of origin or revealing the new identity or place of residence. The protected person can also quit the programme with a written renunciation.
The programme may include measures to facilitate social reintegration when the cooperation is completed. For collaborators of justice, these measures include a monetary allowance for two to five years, plus a lump sum for accommodation. For witnesses, these measures cover a period up to 10 years and guarantee the person's standard of living prior to admission to the programme. Witnesses receive a sum of money as a reimbursement for lost income, can obtain secured loans and sell their real estate to public revenue bodies at market price; and if they are civil servants, they preserve their job on paid leave.
Regional perspective: Pacific Islands Region
Case Study 5 (Production of Evidence, Tonga)
On August 29, 2018, the Criminal Jurisdiction of the Supreme Court of Tonga issued a ruling discharging a defendant who had been charged with one count of possession of methamphetamine pursuant to the Illicit Drugs Act.
The case was dismissed because the prosecution admittedly did not comply with the provisions in section 36 of the Act which provides:
Specifically, the prosecution could not comply with 36(2), rendering the certificate inadmissible and therefore unable to rely on it to prove the substance was methamphetamine.
In the ruling, the judge describes the challenges related to this provision:
" This is a timely warning for Tonga. Methamphetamine is becoming more popular in Tonga and prosecutions are becoming more common for this kind of drug. It has had devastating consequences for other countries where it has proved to be difficult to control and even more to eradicate but has only recently acquired a noticeable presence in Tonga. The practical reality for Tonga is that it will be extremely expensive and sometimes difficult to require an analyst to come to Tonga to give evidence where a defendant does give notice under section 36 (3) that the analyst is required. Attendance of an overseas analyst can only be voluntary since a subpoena cannot have extraterritorial effect."
He warns that it may "become routine to require the analyst to give evidence because it will be known that a failure to call the analyst where notice is given will inevitably mean that the prosecution fails. This may have very serious consequences for law enforcement and the welfare of Tongans if it results in the failure to obtain convictions in drug cases of this kind. In [the present case], the amount of the drug was very small, but the consequences will be far more serious in cases of large scale importations, or manufacturing or supply cases."
The ruling urges for a legislative change to avoid this problem in the future.
Case Study 6 (Witness Protection Program, Australia)
Australian Crime Commission v Gray & Anor examines several issues arising from the placement of a couple in a witness protection program in Australia.
In 1989, the National Crime Authority (the "NCA"), predecessor of the Australian Crime Commission, found that Mr. Gray was involved in money laundering on behalf of a large drug dealing syndicate. Mr. Gray gave the NCA information about Schneider and Saxon, the main drug traffickers, and agreed to wear a listening device and provide evidence against them. Mr. Gray and his wife - to whom the NCA promised financial and other assistance - were placed into a scheme of witness protection.
During their period in witness protection, the Grays' financial situation substantially deteriorated and Ms. Gray lost her business. In 1997, after Saxon was apprehended and convicted, the couple's participation in the witness protection program was terminated. By then, Mr. Gray was 74-year-old and Mrs. Gray was 59-year-old. Neither had worked since entering the program some seven and a half years previously.
Shortly after the program's termination, Mr. Gray received a notice to pay a large sum in concept of taxes for the benefits obtained as protected witness. The Grays filed a claim alleging that the NCA, through its officer Inspector Small, made representations by which they were promised that, if they entered into a witness protection program and cooperated, they would be "looked after" and "would not be financially disadvantaged." Mr. Gray was diagnosed with cancer and died in April 2000, aged 77 years.
Mrs. Gray asserted that the NCA had broken its promise and acted in an unconscionable manner. She claimed (representing Mr. Gray's state and personally) equitable compensation basing her claims on promissory estoppel. The court of first instance agreed with her, ordering the Australian Crime Commission to pay the taxes, and compensation representing the Gray's rehabilitation costs. The Australian Crime Commission appealed.
The Court of Appeal dismissed the appeal, setting aside the payment to the Australian Taxation Office and ordering instead that the sum and interest be paid to Mrs. Gray as administrator of the estate of the late Mr. Gray.
Case Study 7 (Admissibility of Skype Testimony at Trial, Federated States of Micronesia)
In FSM v. Halbert, the Court analysed the admissibility of a witness' testimony over Skype. The matter came as a result of the impossibility of a prosecution's crucial witness to travel to the Federated States of Micronesia to testify in a criminal trial.
Mr. Halbert, the defendant, had been charged with the crimes of aggregated criminal mischief and aggregated theft. These charges were based on his alleged misrepresentation to the Government that he had a University degree from the University of Washington, and his alleged submission of a falsified degree. The purpose of these alleged misrepresentations was to create the impression that he was qualified for a governmental position that he in fact held for over four years.
To prove the falsity of Mr. Halbert's credentials, the Government arranged for an Assistant Registrar of the University of Washington to travel to FSM to testify at the trial. Traveling, however, was not possible for Ms. Tina Miller neither for Mr. Eric Chace, both employed by the University of Washington in the United States. Hence, the Government filed a motion to introduce Mr. Chace's testimony via Skype, a platform for communication that allows for real time audio-visual communication. The defendant contended that admitting Skype testimony was impermissible under the FSM Criminals Rules and would violate his constitutional right to confront the witness.
During the hearing on the motion in limine, the Government arranged for Mr. Chace to testify over Skype in order to demonstrate that such testimony was technologically and logistically feasible. After hearing arguments from both sides, the Court granted the motion.
Exercise 1 (Fiji Independent Commission against Corruption's Power to Prosecute)
The Courts of Fiji have ruled favourably on the prosecutorial powers of the Fiji Independent Commission against Corruption (FICAC).
Read the following illustrative materials and answer the questions.
Regional perspective: Eastern and Southern Africa
Case study 8 (The defendant’s right to cross-examination vis-a-vis the protection of witnesses – Ethiopia)
In The Right to Cross-Examination and Witness Protection in Ethiopia: Comparative Overview, the author analyzes a decision of the Council of Constitutional Inquiry (CCI) of Ethiopia pertaining to constitutional challenges to the Protection of Witnesses and Whistleblowers of Criminal Offences Proclamation No.699/2010.
In the case, referred to as MehadiAley and others, three defendants charged with the commission of terror-related offences argued that the failure to disclose the identity of witnesses by the prosecutor violated their right to a fair trial by means of impeding the right to cross-examination. Accordingly, they attacked the constitutional validity of the provisions of the Proclamation No.699/2010 that allow for witnesses’ identity withholding.
The CCI interpreted that the defendants’ constitutional right to cross-examine witnesses does not impose the obligation to disclose the names and addresses of witnesses, and neither are the defendants entitled to know them. Adopting a broad interpretation, the Court held that such a requirement would pose a danger to the safety of witnesses rather than ensuring the fairness of the trial. The constitutional challenges were dismissed.