Jersey Unreported Judgments

Fraud - reasons for dismissal of defendant's summons seeking exclusion of statements listed in plaintiff's hearsay notice.

[2012]JRC062

Royal Court

(Samedi)

23 March 2012

Before     :

H. W. B. Page, Q.C., Commissioner, sitting alone.

 

Reasons for dismissal of Defendant's summons dated 20th February, 2012, seeking exclusion as hearsay evidence of the statements of the persons listed in the Plaintiffs hearsay notice dated 26^th January, 2012.

Advocate E. L. Jordan for the Plaintiffs.

Advocate D. S. Steenson for the Defendants.

judgment

the commissioner:

1.        This is an application by the defendants to exclude from evidence at the trial of this matter in July this year written statements made by three persons who the plaintiffs had hoped to be able to call as witnesses but who, as matters currently stand at least, will not be giving evidence in person for the reasons given below.  In consequence, the plaintiffs propose to tender their witness statements, long-since served on the defendants, as hearsay under the Civil Evidence (Jersey) Law 2003.

2.        The application comes about in this way.  In November last year I declined to give the plaintiffs leave for four potential witnesses (Monica Szegedi Semeraro, Sergio Santoro, Vivaldo Alves and Joel Guedes Fernandes) to give their evidence at trial by video-link from Brazil as opposed to appearing in person in Jersey, principally on the ground that I was not satisfied on the evidence presented to me at that stage that they were resolutely unwilling or unable to come to Jersey rather than merely reluctant to do so.  Subsequently, on the renewed application of the plaintiffs in respect of two of the four (Messrs Santoro and Alves) and the service of further evidence, I granted leave, being satisfied that despite the further efforts of those representing the plaintiffs there was no realistic possibility of either of those persons, over whom the plaintiffs had no control, making the journey to Jersey.  (Ms Semeraro had in the meantime agreed to come to Jersey and, presumably, it was hoped at that stage that Mr Fernandes would do likewise.)  That ruling was overruled by the Court of Appeal on the ground that I was wrong to have allowed the plaintiffs a second bite at the cherry having regard to the fact that, in the Court's judgment, there had been no significant change of circumstances since the first hearing. 

3.        The Court of Appeal's decision was given on 25^th January, 2012.  The following day the plaintiffs served formal notice of their intention to rely at trial on the witness statements of Messrs Santoro, Alves and Fernandes in the form of a hearsay notice under Article 4 of the Civil Evidence (Jersey) Law 2003.  Their stated reasons for doing so are (i) that the persons in question are all overseas, (ii) that they are not within the control of the plaintiffs, (iii) that whilst Messrs Santoro and Alves are willing to give evidence by video-link, they are not prepared to come to Jersey to give oral evidence, and (iv) that whether Mr Fernandes is still willing to come to Jersey to give oral evidence is unknown.  Shortly before the hearing of the present summons the Plaintiffs served a short affidavit by Ms. Semeraro from which it appears that Mr Fernandes has made it plain in a series of telephone conversations with those representing the plaintiffs that he is unwilling to co-operate with them any further without payment of R$200,000.  As that is not going to happen, it must be assumed that Mr Fernandes will not be appearing in Jersey as a witness. 

4.        The witness statements in question are in each case in the Portugese language (accompanied by certified English translations), were signed on various dates in July or August 2011 and incorporate a declaration of belief that the facts deposed to are true. 

5.        By summons dated 20^th February, 2012, almost four weeks after receipt of the plaintiffs' hearsay notice, the defendants seek an order excluding these witness statements from being admitted in evidence at trial. 

6.        The main point taken by Advocate Steenson on behalf of the defendants is that it would be wrong in principle and unfair to them in practice to the for these statements to be admitted in evidence without the opportunity for the witnesses to be cross-examined - by which he means the opportunity to cross-examine them in the witness box here, in person, in Jersey.  The effect, he says, "is arguably to put the plaintiffs in a better position than they previously were.  If the evidence was to be given live or by way of video-link (which the defendants maintain is unacceptable), the defendants would be able to cross-examine these witnesses.  The inclusion of the evidence by hearsay notice deprives the defendants of this opportunity" (skeleton argument, paragraph 10).  He further submits that the unfairness would be compounded by the fact that it now seems that the plaintiffs will not be in a position at trial to call more than a handful of witnesses to give evidence in person.  

7.        Advocate Jordan's response on behalf of the plaintiffs is, among other things, to draw attention to her letter to Mr Steenson dated 26^th January, 2012, enclosing the plaintiffs' hearsay notice, offering in the case of Messrs Santoro and Alves "to leave the current video link arrangements in place so that you have the opportunity to cross-examine these witnesses", but giving notice that should the defendants choose not to avail themselves of that opportunity "we will submit that the weight to be given to the evidence should not be reduced on the grounds of your inability to cross examine."  I was informed that no reply to that letter was received but the offer made remains open. 

8.        The principles concerning the status and potential exclusion of hearsay evidence were dealt with at paragraphs 4 to 8 of a decision that I gave on 22^nd December last year (Judgment no.2) on the occasion of an (unsuccessful) application by the defendants to exclude certain depositions of one Simeao De Oliveira.  In short, (i) the starting point is that Article 3(1) of the Civil Evidence (Jersey) Law 2003 provides "Evidence shall not be excluded on the grounds that it is hearsay"; (ii) notwithstanding that legislative provision, the Court has an inherent jurisdiction to exclude otherwise admissible evidence; (iii) it will, however, only be in exceptional circumstances that the exercise of that jurisdiction will be justifiable.  At paragraphs 7 and 8 of that judgment I endeavoured to summarise the position as follows:-

"7. While I accept, therefore, that the court does in principle have jurisdiction to exclude otherwise admissible evidence in advance of trial, it remains, as Baroness Hale observed in Polanski, "a strong thing indeed to do use such case management powers to exclude the admissible evidence of one of the parties on the central facts of the case".  Moreover, in this jurisdiction, it seems to me that a single judge sitting without the Jurats before whom the case will be tried - and to whom in the ordinary way the responsibility, under the guidance of the presiding judge, of assessing the weight to be given to any particular hearsay is entrusted - needs to be doubly cautious before exercising this power on the basis of his own assessment of potential weight.  Where there can be no serious doubt that the evidence in question could not in any circumstances justify any, or anything more than minimal, weight at trial it may be right to exclude it in advance of trial, but not otherwise.  The fact that the evidence in question is that of persons who will not, or will probably not be subject to cross-examination is certainly not, of itself, a reason to exclude their hearsay statements. 

8. In the present case there is another important factor which also points towards the need for considerable caution before exercising the jurisdiction to exclude evidence.  As far as one can reasonably see at this stage, there is no question of the plaintiffs' case turning exclusively on the evidence of any one of the persons the subject of the hearsay notices.  The Court is, it seems, to be presented with a considerable body of documentary evidence and there will be oral evidence from a number of witnesses.  Indeed, the plaintiffs submit in their trial skeleton argument that their claim is largely proved on the documentary evidence (paragraph 6.1.1)."

9.        In a subsequent judgment on another application by the defendants, this time to exclude the witness statement Monica Semeraro (Judgment no. 6), I added the following:-

"(i) The effect - and no doubt purpose - of Articles 3 and 6 of the Civil Evidence (Jersey) Law 2003 was to shift the emphasis away from technical rules of admissibility and the disruptive debate that they engendered towards a more liberal approach to hearsay under which such material is not, in principle, to be excluded but is left to the trial court to assess in terms of what weight it ought to be accorded.  

(ii) One important advantage of this approach is that it enables the court to view such material in the light of the evidence adduced at trial as a whole.  

(iii) An advantage of the civil trial process in this jurisdiction is that it is unnecessary to be as sensitive about Jurats having sight of possibly contentious material as would be the case in a criminal trial with a jury.  This is not to say that there are not occasions when it is better that they do not see material in the first place that is plainly inadmissible.  But Jurats, in my experience, are well capable of understanding and being able to respond to directions or advice from the presiding judge as to the need for caution in deciding what weight should, in the end, be given to hearsay material or indeed, if necessary, directions to exclude it entirely from their consideration."

10.      Nothing that has happened subsequently in the course of the defendants' applications for leave to appeal and the appeals actually heard by the Court of Appeal has, as it appears to me, cast any doubt on the principles that I attempted to summarise in those two judgments.  The defendants sought, but were refused, leave to appeal the first one (no.2), and did not attempt to appeal the second one (no.6).  In rejecting the defendants' application for leave to appeal the first one McNeill JA said:-

"Turning to the Second Judgment the learned Commissioner, at paragraphs 10 and 11, has set out with clarity his approach to the opposing contentions.  As he had indicated earlier, it is a strong thing for a court to do to exclude admissible evidence on central facts.  Here, the learned Commissioner has had specific regard to certain of the sensitive issues surrounding the evidence of De Oliveira and in my opinion a case for the decision being plainly wrong is not made out."

11.       In the Court of Appeal's judgment on the two issues on which leave to appeal was given, namely whether Messrs Santoro and Alves should be allowed to give evidence by video-link and whether an affidavit by one Dr Silvio Marques should be admitted in evidence, two passages are relied on by Mr Steenson as supportive of his current submission, both in that part of the judgment dealing with Dr Marques.  The first is paragraph 29 which reads as follows:-

"It seems to us, however, that there is a difficulty here.  It is a highly unusual circumstance for affidavit evidence to be allowed as part of the evidence for a litigant in a civil litigation without there being the opportunity for that evidence to be tested by cross examination.  Here it appears that this may be particularly important and the learned Commissioner, at paragraph 5 of the judgment, has accepted that the defendants would be handicapped by not being able to cross examine Dr Marques in particular as regards the manner in which certain depositions were taken: see paragraph 5.  It is also to be taken as read that the present respondents see an advantage to them, in this civil litigation, in being able to rely upon the evidence of Dr Marques.  At this remove from proceedings, it seems to this court difficult to envisage that the court below would be likely to feel able to accede to a submission that no weight whatsoever should be attached to evidence which was properly before it."  (My emphasis, being the words particularly relied on by Mr. Steenson.)

The second is paragraph 32:-

"Royal Court Rule 6/10(1) provides that, subject to other provisions of those rules and other enactments any fact required to be proved is to be proved by examination of witnesses in open court.  In the particular circumstances here, we are of the opinion that the present respondents cannot rely upon an affidavit specifically taken for the purpose of this litigation where the person making the affidavit indicates that he is unable to be a witness for the plaintiffs in relation to this matter."  (My emphasis)

12.      But I hope I do not misread the Court's judgment if I say that it appears to me that both sets of observations were made in the context of and with reference to the particular circumstances of Dr Marques's position as a State Prosecutor in Brazil which, on his own evidence, preclude him from being a witness for the plaintiffs.  As it was put in paragraph 31 of the Court of Appeal's judgment:-

"In our opinion, in the particular circumstances of the matter before us, the issue can be determined by reference to Dr Marques' third affidavit.  On paragraph 9 he states, quite straightforwardly, that he is unable, as State Prosecutor, to be a witness for the plaintiffs in relation to this matter.  That is an end of the issue..................It seems to us that Dr Marques himself recognizes that, to be a witness in a civil litigation almost inevitably brings with it the concomitant of being the subject of cross-examination: and that this is something which, perhaps both in general and having regard to the particular circumstances with which he is involved, he has reached the opinion he is unable to do."  (My emphasis.)

13.      Hence the carefully chosen words in the immediately following paragraph 32 to the effect that the plaintiffs cannot rely upon an affidavit specifically taken for the purpose of this litigation "where the person making the affidavit indicates that he is unable to be a witness for the plaintiffs in relation to this matter."  (My emphasis again.)  This, however, is not the position with any of the potential witnesses with whom we are presently concerned. 

14.      In the same way, the final words of paragraph 29 of the Court of Appeal's judgment (as set out, underlined, in paragraph 11 above) were almost certainly informed by Dr Marques's particular position which rendered him a non-starter as a potential witness.  It is not to be presumed that the Court of Appeal was unmindful of the terms of Article 6 of the Civil Evidence (Jersey) Law 2003 which appear to contemplate that in the ordinary way the task of "estimating the weight (if any) to be given to hearsay evidence" (my emphasis again) is one that the trial court is regarded as competent to perform. 

15.      The statements at issue on this application came into existence for the purpose of the present litigation and to that extent, as Mr Steenson points out, are no different from the affidavit of Dr Marques.  But the comparison ends there, in that:-

(i)        each of the witness statements the subject of the plaintiffs' hearsay notice exhibits and evidently draws on a number of depositions given in Brazil on various dates ante-dating these proceedings by some years (as far back as 2002 in the case of Mssrs Santoro and Fernandes, and 2005 in the case of Mr Alves);

(ii)       none of these witnesses would be disqualified from acting as a witness in these proceedings in the way that Dr Marques is; and

(iii)      unlike Dr Marques, all three witness statements were made at a time when it was anticipated that the persons in question would be giving oral evidence at the trial and would be subject to cross-examination.  

The fact that the witness statements themselves were drawn up and signed more recently is, moreover, something to which the trial court will necessarily have regard in accordance with provisions of Article 6 of the Civil Evidence (Jersey) Law 2003, one of the factors potentially relevant to weight being "whether the original statement was made contemporaneously with the occurrence or existence of the matters stated": an exercise that may, of course, also require differentiating between passages in the witness statements that appear to repeat or confirm statements contained in earlier depositions and those that go beyond that.  

16.      There is no application here to exclude these statements on the ground that they are irrelevant in their entirety to the issues that the trial court will have to decide.  And, although Mr Steenson suggested in the course of oral argument that there are certain passages that are irrelevant and others where the source of information deposed to is obscure, there was no attempt by the defendants to present a comprehensive reasoned case for the exclusion of particular passages in the same way that they had done back in January in the case of Ms Semeraro when her witness statement was challenged (notwithstanding that she was and remains someone who will be giving evidence in person in Jersey).  The thrust of the defendants' case here is that their inability to contest these witness statements by cross-examining their makers renders it unjust that those statements should be admitted in evidence at all.  That point apart, there appears to me to be no sufficient reason in principle for the court to exercise its exceptional power to exclude the statements in their entirety in advance of the trial notwithstanding the basic rule that "Evidence shall not be excluded on the ground that it is hearsay": Article 3 paragraph (1) of the Civil Evidence (Jersey) Law 2003. 

17.      The key question, therefore is whether the absence of opportunity to cross-examine Messrs Santoro, Alves and Fernandes other than by video-link is, of itself, good reason to exclude their witness statements being tendered as hearsay.  In my judgment it is not. 

18.      In the first place, absence of opportunity to cross-examine is not, of itself a bar to hearsay evidence.  In the judgment that I gave on 22^nd December, 2011, on the occasion of the defendants' attempt to exclude the hearsay evidence of Mr De Oliveira (Judgment no.2), after reviewing the English authorities on the subject, I expressed the following among other conclusions: "The fact that the evidence in question is that of persons who will not, or will probably not be subject to cross-examination is certainly not, of itself, a reason to exclude their hearsay statements."  That conclusion was preceded by the following observations:-

"(iii) A majority of the members of the House of Lords in Polanski considered that the Court of Appeal had gone too far in suggesting that, if leave to give evidence by means of video-link (or 'VCF') had not been granted and the plaintiff had failed to present himself in court for cross-examination, the court would have been bound to exclude the plaintiff's witness statement notwithstanding that it would otherwise have been admissible as hearsay under s. (1) of the Civil Evidence Act 1995: per Lords Nicholls and Hope at [36] and [67] and Baroness Hale at [70].

(iv) The members of the Court of Appeal in Welsh-v-Stokes were unanimous in rejecting both (a) the proposition that where hearsay evidence is the only evidence on which a claim is based it must necessarily be accorded no weight and (b) any supposed "rule of law which prohibits a court from giving weight to hearsay merely because it is uncorroborated and cannot be tested or contradicted by the opposing party" (at [22], [23]).

(v) The observations of the Court of Appeal in Welsh-v-Stokes concerning the weight to be given to hearsay evidence were directed to the question of how such matters should be approached at trial.  And, here again, in noting that "a court will be particularly careful before concluding that it [hearsay evidence] can be given any weight", the court was speaking of a situation "Where a case depends entirely on hearsay evidence".

19.      I also noted that as far as one could reasonably see at that stage there was no question of the plaintiffs' case turning exclusively on the evidence of any of the persons the subject of the hearsay notices and that remains the position. 

20.      Leave to appeal that judgment (no.2) was, as previously indicated, refused. 

21.      In the second place, in the case of Messrs Santoro and Alves, the fact that as matters currently stand the defendants will not have the chance to cross-examine them in person here in Jersey is, as the plaintiffs point out, a matter of choice on the part of the defendants themselves.  The opportunity to do so by video-link from Brazil was always there and, as noted above, remains on offer but was and is rejected by the defendants.  Mr Steenson pours scorn on this point saying, as he colourfully put it, "That ship [the subject of video-link evidence] has sailed".  But:-

(i)        in the judgment in which I gave leave for Messrs Santoro and Alves to give evidence by video-link (no.3), I concluded that it is perfectly possible for cross-examination to be conducted effectively on such an occasion, that the Royal Court has jurisdiction to permit evidence to be given in this way and that there would be nothing inherently unfair to the defendants if this procedure were to be followed in the case of the two witnesses in question;

(ii)       the Court of Appeal has not ruled that cross-examination by video-link would, in principle, be inappropriate: only that the plaintiffs having failed on their initial request for leave to the evidence of these two witnesses to be given in that way, it was wrong on my part to allow them a second bite at the cherry; leave to appeal on the jurisdiction point was refused by McNeill JA as was leave to appeal on my exercise of discretion to allow evidence by video-link;

(iii)      if any "ship has sailed" and is no longer available for boarding it is, therefore, the contention that it is only by cross-examination of these witnesses here in person in Jersey that the defendants could have a fair opportunity to contest their evidence;

(iv)      Mr. Steenson draws attention to remarks made by me on the first occasion that the plaintiffs sought leave to adduce evidence by video-link in which I pointed out to the plaintiffs the advantages of witnesses being present in court in person; but that was at a time when I was unpersuaded that there was no realistic prospect of the witnesses coming to Jersey; by the time of the plaintiffs' renewed application I was so persuaded which meant that the preferred option of their presence in person at trial was no longer open and I accordingly concluded:-

"But the dominant consideration as regards the interests of justice in the present case is that the choice in reality is between, on the one hand, allowing these witnesses to give evidence live with the benefit of cross-examination albeit under imperfect conditions and, on the other, receiving their witness statements as hearsay without cross-examination of any kind - given that, whatever the court's decision, there is no prospect of these witnesses attending the trial in person and nothing that the Plaintiffs can do to change that. On any view, the interests of justice must be better served by adopting the former course.";

(v)       it is incorrect to suggest, as the defendants do in their skeleton argument, that it is to be inferred in the case of Messrs Santoro and Alves "that they will not be in attendance at trial because of their own unwillingness to be cross-examined in person": there is no evidence that would justify that conclusion; their reasons for not being prepared to come to Jersey were covered in paragraph 19 of my judgment;

(vi)      it follows that the possibility of cross-examination of Mr Santoro and Mr Alves by video-link remains a perfectly viable option and that whether to take advantage of that possibility is something that rests in the hands of the defendants; whether the trial court would necessarily go as far as the plaintiffs suggest that it should in Miss Jordan's letter dated 26^th January, 2012, is, however, a matter that remains to be seen.  

22.      In the third place, it has long been plain that the alternative to the plaintiffs being permitted to adduce evidence by video-link is that they would seek to rely on the witness statements of those they would otherwise have wished to call.  This was always predictable, was stated in terms by the plaintiffs on the occasion of their renewed video-link application, and was also acknowledged in the passage of my Judgment no.3 cited above in which I concluded that evidence given by video-link was preferable to receiving witness statements as hearsay evidence without cross-examination of any kind.  At the hearing of this present application Miss Jordan contended that, on the occasion of the defendants' application for leave to appeal, Mr Steenson had accepted that reliance by the plaintiffs on these witness statements as hearsay would be a legitimate alternative; but there was disagreement as to whether an unofficial transcript of those proceedings belatedly produced by the plaintiffs was wholly accurate on this point and vehement disavowal on the part of Mr Steenson of any intention of going that far.  I accordingly disregard that particular submission by Miss Jordan.  (In the event that this matter goes further it would plainly be sensible for an official transcript to be obtained).  But it remains unsatisfactory that, if the defendants were going to seek to exclude such hearsay, their stance on the matter was not made the subject of an application long since, particularly having regard to the fact that I specifically requested, immediately prior to the hearing before the Court of Appeal, that if either party had any further application to make it should notify the other and the Court of Appeal.  Mr Steenson suggests that this point of criticism is unfair given that the plaintiffs only served their hearsay notice the day after the Court of Appeal had given judgment.  But a hearsay notice is not an application, only a formalised notice of intention: an intention in the present case which had been manifested by the plaintiffs long since.  

23.      In the fourth place, the various factors of a general kind invoked by Mr Steenson as underlining the injustice - as he submitted - of allowing these witness statements to be adduced as hearsay were largely reiterations of points previously made and have been sufficiently dealt with in earlier judgments (the importance of this litigation, the seriousness of the allegations, the small number of witnesses who will be giving oral evidence on behalf of the plaintiffs, the earlier hearing on the appropriate forum for trial). 

24.      For these reasons I decline to exercise this court's exceptional jurisdiction to refuse to admit the witness statements of any of Messrs Santoro, Alves and Fernandes and the defendants' application on this point is dismissed.  What weight, if any, should be given to their content at trial remains to be seen.  As in the case of Mr De Oliveira, caution will be required and due regard to the factors set out in Article 6(2) of the Civil Evidence (Jersey) Law 2003 in particular will be necessary. 

25.      Mr Steenson applies, in the alternative, for leave under Royal Court Rule 6/22 to be allowed to call and cross-examine the makers of these statements.  In the case of Messrs Santoro and Alves I grant such leave, as I have done in relation to other witnesses where the plaintiffs have served hearsay notices, on condition that if any such witness is to be called by the defendants this can be accommodated within the currently projected trial period: also that fair notice of their intention to do so is given.  In the case of Mr Fernandes, the defendants having served their own hearsay notice in respect of him and being somewhat uncertain as to whether they do or do not wish to withdraw it, I do not for the moment grant equivalent leave but reserve the matter for further submission should the occasion arise.  Plainly the defendants cannot seek both to rely on their own hearsay notice of statements made by Mr Fernandes and simultaneously seek leave to cross-examine him. 

Authorities

Civil Evidence (Jersey) Law 2003.

Republic of Brazil-v-Durant [2011] JRC 238.

Republic of Brazil-v-Durant [2012] JCA 015.

Republic of Brazil-v-Durant [2012] JCA 025.