Lectures

The Law of Evidence - Lecture 9

By: CHRISTOS CLERIDES Dec. 09, 2009

The applicable Law in  Cyprus is English Law applicable in 1914!!  This provision needs nevertheless to be explained.

ADMISSIBILITY OF EVIDENCE : AN IMPORTANT SUBJECT
This subject is of crucial importance. In Cyprus the Supreme Court has declared inadmissible any evidence obtained in breach of Constitutional Provisions. In the case of Georghiades (1982) the Supreme Court decided that tape recordings of a private conversation without the consent of the parties involved could not be admitted in evidence as obtained in violation of Articles 15 (private life) and 17 (respect of communication) of the Constitution. More recently in the case of Police v. Doratis (2006) the District Court following a trial within a trial (side trial) concluded that a CD containing copy of email exchanges between co-accused allegedly proving corruption could  not be admitted in evidence. Further a “voluntary statement” of one of the co-accused in which reference was made to the illegally obtained evidence was “the fruit of the poisonous tree” and was also inadmissible. The Attorney General was in the circumstances forced to file a nolle prosequi under Article 113.2 of the Constitution suspending any further proceedings and leading  to the acquittal of the two accused.

In the Georghiades case the tape recording was taken in violation of Articles 15 and 17 of the Constitution which guarantees the right to privacy and communication and in the Doratis  case in violation of the right to respect for the secrecy of correspondence and communication which is guaranteed under Article 17 of the Constitution except relating to persons under lawful custody or bankrupts.

The Attorney General has repeatedly asked for an amendment of the Constitution and in particular Article 17 to introduce further exceptions to the principles of Article 17 so as to bring in line with the European Convention for the Protection of Human Rights, under which evidence obtained for the purpose of combating crime may be accepted in evidence in certain circumstances.

The Supreme Court decided in an application for certiorary in the case of Re Kakoullis (2007),  that an Order of the District Court of Nicosia under Law 61 (6) 96 permitting the obtaining of evidence in the form of correspondence/emails between the parties violated Article 17 of the Constitution and therefore was set aside. The Court referred to in its judgment in a case of the ECHR, Copland - V- UK VOK (2007) in which it was decided that interference with the email and internet communication fell within ambit of violations of Article 8 of the European Convention for the protection of Human Rights protecting the right to privacy.

In addition evidence obtained in direct violation of legislation such as Law 92 (1)/96 for the Protection of the Inviolability of Private Communications may be inadmissible. In the Aeroporos case computer printouts of the CYTA (Telecommunication Authority) recording the telephone numbers with whom the accused was in touch at the material time, was held to be inadmissible under Section 3 (2) (β) of the Law, which allows such evidence to be obtained only in cases not applicable. The evidence could not be admitted.

It is therefore indeed of crucial importance that students of law as well as all lawyers  acquaint themselves with the Law of Evidence. The Law of Evidence is of crucial importance in Civil Cases also.

I will give a small illustration of what I mean.

As a practitioner you will notice almost on a daily basis that letters between advocates acting on behalf of their clients are headed “without prejudice”. You may wonder what that extremely popular phrase means and why do lawyers put it so frequently in their exchanges of letters between themselves that it has become the rule and not the exception to the rule.

It has something to do with the law of evidence.

It is well established that a letter which bears the expression “without prejudice” will not be admitted in evidence provided that the contents of the letter contain a proposal for a settlement to the other side. Even if the catchy phrase is not expressly mentioned if it be shown that the letter was sent in the context of negotiations for a settlement the letter we still not be admitted in evidence. The general rule of evidence is that “letters written and oral communications made during a dispute between the parties which are written or made for the purpose of settling the dispute and which are expressed or otherwise proven to have been made ”without prejudice” can not generally be admitted in evidence”. (Halsbury’s Laws of England 4th Edition Vol. 17, par. 212). This practice of “without prejudice” communications is frequently abused in Cyprus and almost every time that a lawyer sends a letter to his opponent and also every reply thereto is headed “without prejudice”. This is an abuse of the law of evidence because it does not mean that when you send a letter to somebody “without prejudice” this letter is not admitted in evidence . It will not be admitted in evidence only when the contents are intended to settle the dispute for example, where they include expressly or impliedly a proposal for a settlement and therefore inevitably will contain admissions against interest. The rule of evidence against admission of communications “without prejudice” in the Civil Practice is a very useful rule in that it protects and encourages litigants or parties to a dispute to come forward with proposals for settling amicably and out of court disputes. As a matter of public policy the law encourages settlement and therefore the rule is intended to encourage settlements of all kinds.

Otherwise the road of settlement out of court would have been restricted as a party obviously would be unwilling to make a proposal which may turn out later on to be interpreted against his interests and as an admission in the course of the Hearing.

HEARSAY RULE
One of the most  crucial and important rules of evidence that was strictly adhered to in Cyprus until recently in both Civil and Criminal cases was  what is very well known in every corner of the Anglo-Saxon system of Justice the rule against the admission of “hearsay evidence”.

A witness normally is allowed , subject to very important exceptions that were developed in the course of Legal History to give evidence in Courts , that of which he has himself become aware of thought his own senses directly. He can for example give evidence that when he entered the premises there was a bad smell coming out from the master bedroom. He can not give evidence that Andreas told him so!! 

He can also tell the Court that when he entered the premises he heard the defendant moaning about a bad smell that was repeatedly coming out of the master bedroom, but he cannot tell the Court that his friend Andreas told him so.

In other word you can give evidence as to what yourself have heard directly or realized through your own senses; relayed to you by somebody else would not be admissible in evidence except in clear cut exceptions that have been decided  by the Courts in order to rid themselves from the harshness of the rule as applied from time to time and in particular cases.  This strict rule of evidence is perhaps related to the adversary system of law practiced in Anglo-Saxon jurisdictions where the rule is that the Judge  basically  regulates the proceedings before him, listens to the evidence and the case presented before him in an orderly manner and decides on the basis of the evidence and the law . As we have seen in the adversarial system like the one prevailing in Cyprus , in Civil Proceedings the Plaintiff first calls his witnesses who are examined in chief , cross examined and re-examined and then the Defendant does exactly the same. Then the parties address the Court on issues of evidence and the law and the judge shall decide on the basis of everything he has heard, his wisdom, knowledge and experience and render his judgment. In the continental system of law which is inquisitorial in nature the judge plays a more active role in the investigation of the case in asking questions, in examining and cross examining witnesses and in calling witnesses to give evidence.

The judge is the “protagonist” in many respects and not the “spectator”. The situation in Criminal Proceedings is analogous. As a result in an adversarial system it is very important to decide how questions will be put by a party, what questions are impermissible and what a witness can say or not say and what documents he can put in or not.

In the adversarial system of administration of justice in presenting the case before  the Court, a witness will not be allowed to tender in evidence whether oral or written matter which rather than proving the case is meant to confuse or create prejudice. If for example a witness proposes to say what other people have told him there is a risk that either what he says is a lie and nobody can check it because the person who allegedly said the things is not present to be cross examined or it maybe that from mouth to mouth it has been misinterpreted and changed completely from its original form.

If a document is tendered in evidence by a person who is not capable of being cross examined as to is authenticity or its contents or circumstances in which it was written,  the risk is obvious that a party may create a state of confusion or prejudice with the judge being at that stage a spectator having difficulty to administer justice properly.

Hence the very strict rule of “hearsay evidence” that disallows oral or written evidence to be adduced or produced in Court except by the very person who has only direct knowledge of it.

ABOLITION OF HEARSAY RULE
These strict rules of evidence have been accused form time to time that rather than serving the interests of justice were conducive to create injustice. Evidence excluded as a result might have led to the acquittal of the guilty or the conviction of the innocent or the dismissal of a case or to a judgment where judgment should not have  been entered into. Criticism mounted during  recent years and as a result the Evidence Law Cap 9 was amended by virtue of law 32 (1) 2004 which has abolished the hearsay rule in both civil and criminal cases. It was at the time of discussion before the Legal Affairs Committee of the House of Representative, argued by proponents for the amendment that no distinction should be made between Civil and Criminal Proceedings.

The main point in favour of the amendments was that judges in Cyprus are experienced enough to be able to discern what evidence to rely on in rendering their final judgment without the need to be handicaped as a result of the hearsay rules of evidence.

I remember, when I was defending the Republic of Cyprus in the Tufansoy case against the Republic of Cyprus, questions were put by the President of the then Commission of Human Rights  to the complainant,  whom did she think was the murderer of her son?  A question that in all common law jurisdiction countries would have been deemed unacceptable and the answer to it inadmissible. But the argument then was that the Members of the Commission were knowledgeable enough to either ignore the answer or attach whatever weight they thought appropriate to it. In the end some form of a compromise was found in enacting the new Law. Although the hearsay rules have been abolished a number of conditions are laid down that give the right to a party to insist on calling a witness who has direct knowledge of the matter, and the discretion has been given to a Judge whether to accept or dismiss evidence at the end of the day.

Proponents of the hearsay rules and its improvement as it were rather than its abolition argued that for years the rule had played at a constructive role in the administration of justice and that it was only in exceptional cases that it might have worked injustice and even in those cases one cannot be sure that the outcome would have been any different if the rule were not applicable.

At the end of the day the amendment was enacted.

The prosecution thought that it would be easier for it to secure convictions and the leading proponent for the amendment was the then Attorney General Mr. Alecos Markides who argued that his hands were tight up with the then prevailing law of evidence so much so that he could not convict anybody in connection of the Stock Exchange scandal of 1999-2001.

The former deputy Attorney General and  Judge of the ECHR Mr. L. Loucaides citing the European Court of Human Rights practice and experience also advocated for the amendment of the law, arguing that it does not contravene the rights of the accused or the litigants.

The House was swayed by this argument and also by the argument that proceedings will be quicker and made more easy in the interests of justice.

At the end of the day a few years after the amendment was put into practice I can assure you that convictions in connection with the Stock Exchange or indeed any other matter failed to prosper, life of the litigants in proving their cases or contesting their opponents case has become more easy, Judges do not have to hear long arguments on the admissibility of evidence anymore and render Rulings   subject to appeal and trials run smoothly.

So far the new Law has been a success.

Main Provisions of the Civil Evidence Law as amended.

As above stated Law 32 (1) of 2004 introduced a Special Part in Cap 9 that is new Sections 23-37.

Section 23 of the new Law is a definitions sections and  Section 24 says that irrespective of the provisions of any other  law,  hearsay evidence is not precluded  in any procedure before any Court merely for being hearsay.

In the definitions Section 23 hearsay evidence “means a statement which was made by a person other than the one giving evidence in any civil or criminal procedure and which is introduced as evidence in proof of everything mentioned therein”.

Another point is made in Section 25 which is of a procedural nature but intended to facilitate the examination in chief of witnesses.

This is one of the most frequently used Sections in any procedure before any Court of Law which hears evidence. 

Under Section 25 any witness may adopt the contents of a written statement or declaration he has made.

In such a case the said statement or declaration is filed with the Court and is deemed as the “examination in chief” of the witness or part thereof.

The new Section 26 provides for the power of the Court to give leave to summon  a witness to cross examine him in connection with a statement that he supposingly  made and which a witness produces in Court or gave evidence in relation to it.

This is a safe guard  against the unconditional acceptance of hearsay evidence.

Under Section 27 of the Law as amended,  the Court in weighing the evidence takes into consideration when dealing with hearsay evidence all the circumstances from which conclusions can been drawn relating to the value of this type of evidence. 

In particular the Court will take into consideration whether it was reasonable and feasible to have put in the initial evidence or statement.  The Court would also take into consideration the time gap between the initial statement and the facts stated therein, the degree of the hearsay evidence, the motives of the involved persons, whether the initial statement was accurately carried through and the general context the initial statement was given into.  In addition it takes into account whether the hearsay evidence is materially different from the initial statement.

Finally the Court will take into account whether the circumstances under which the hearsay evidence was given,  appear not to facilitate the correct weight to be given do it and whether in the circumstances an attempt is being made to hinder the proper weight to be put on this evidence. 

The Court will also take into consideration whether the litigants could have produced the best evidence that they could and failed to do.

It will be noted that the circumstances to which and the factors on which the Court will attach importance are so detailed and onerous at  times that it becomes clear that hearsay evidence although admitted will not necessarily be relied upon by the Court in reaching its final conclusion and this is so in cases of course where the initial statement or the best evidence is not called,  either by the party producing it or by the other party by failing to apply to the Court for leave to summon and cross examine the proper witness under Section 26.

A few more points relating to previous witnesses statements.

Under Section 30 of the new Law any previous statement by a witness outside the Court is admissible in proof of the truth of that which is stated.

In addition any party who calls a witness is not allowed to produce previous statements of that witness with the purpose of corroborating  his credibility  unless:
(a) the Court gives leave to do this or
(b) the statement is intended to contradict an allegation that the evidence is prefabricated

As far as previous contradictory statements are concerned these are only allowed in the cases specified in Sections 31, 32 and 33.

Section 31 provides that in cases where a witness is declared hostile he may be cross-examined by the party calling him in a relation to another previous statement which is contradictory to the one given in Court.

Under Section 32 a witness may be cross-examined in relation to previous inconsistent statements.

Under Section 33 a witness may be cross-examined on previous statements relating to the subject matter of the action without producing the statement and in case it is intended that the witness be cross-examined and that the relevant document be produced,  the Court has to warn the witness on the points of the document which will be used for the purpose of prefabricating it.

The Court reserves the right at any stage to require the production of a document.

Mention should be made to the provisions relating to written statements in documents and records.

Under Section 34 a statement in a  document may be admitted in evidence with the production of the original or a copy of the original provided sufficient justification is given for the failure to produce the original.

It is to be noted that this is a very useful procedure in that it enables the admission of photo copies of all types in all proceedings whereas in the past this was not possible except with the consent of the parties and only in cases where the original was in the possession of the other party and notice to produce was served under the Civil Procedure Rules before the trial. Port of a document may also be allowed to be put in evidence.

Under Section 35 the Court may also accept in evidence any part of a record of a public or ecclesiastical authority or which is part of a record of an enterprise.

A document which is shown to be part of this record may be admitted in evidence as part thereof provided a certificate duly signed by the appropriate officer confirms this to be so.

Finally under Section 36 of this Special Part the Court reserves the power for purposes of the proper administration of justice to refuse to accept in evidence any specific document or record irrespective of the provisions of Sections 34 and 35 examined above.

EVIDENCE CAP 9 SECTIONS 1 – 22
We now turn to the remaining provisions of the Law of Evidence that is Sections 1-22.

A number of the Sections of the initial Law Cap 9 have been abolished in the process and in particular  as a result of the new legislation. 

Sections 4, 5 and the new sections which have been introduced 5 (A) to 5 (E) have been abolished along with Section 12, 18, which have been rendered redundant  as a result of the new Special Part of the law examined above.

Under Section 3 of the Law, subject to any contrary provision every Judge in all proceedings of a civil or criminal nature shall apply the Law applicable in England as at 5th November 1914.  This is obviously an anachronistic provision that has to be revised since things have obviously changed eversince. In practice with the abolition of the “hearsay rule” this section has remained a dead letter in a most important part of the Law.

Section 6 which provided for proof in actions for breach of a promise of marriage is no longer of any importance as the action for breach of promise of marriage has been abolished.

Sections 7 – 11 provide for,  proof in cases of claims against estates of deceased persons, in cases of Treason, the evidence of infants, the significance of a first complaint, contradictory, statements of accused made initially in depositions in the course of a preprimary inquiry  in Assize cases. Of the above of great importance is Section 10.  A first complaint of a victim to a person to whom it is natural to make such a complaint is admitted as evidence for the commission of the offence by the accused.

Sections 13, 14   provide as to who are competent witnesses and as to the evidence of a husband and wife.  Everybody is a competent witness irrespective of his age or capacity if he understands the importance of telling the truth and can understand questions put to him.  A couple can not be compelled to give evidence in a Criminal Case against each other, nevertheless, except in relation to offences specified in the Law that relate to offences against each other or their children.

Section 15 – 17 provide for the admission in evidence of “ancient” documents in excess of 20 years, the certification of documents and for official documents made outside the Republic which are by and large admitted in evidence.  These provisions must be read in the light of the abolition of the hearsay rule.

Two new sections of importance were introduced by virtue of Law 86/86.  That is Sections 19 and 20.  A special procedure is provided applicable in criminal cases by virtue of which certain facts or statements made can be admitted by the prosecution or the accused.

Finally two new amendments were introduced to the Law of evidence through Sections 21, 22 by Law 54(1) of 1994 in accordance with which computer prints and microphotography and Bankers Books under special procedures can also be admitted in evidence.

Conclusion:

As it can been seen from the above CAP 9 is a skeleton Law.  The Law of Evidence is to be found in the massive case Law of the Supreme Court of Cyprus applying basically English Law and practice applicable as seen above in 1914.  English case Law of a later date that relates to that law is of course taken into consideration.  Cyprus Advocates look into G. Kakoyiannis authoritative Textbook on the Cyprus Law of Evidence and on Eliades Textbook.  For the English practice they resort to old  editions of Phipson on the law of Evidence and Halsbury’s Laws of England 3rd Vol. 15. As we have seen above a large part of that law has now been replaced by the new Special Part of the Law of Evidence Cap. 9.

Nevertheless matters such as opinion and belief, facts in issue, modes of proof are still relevant and the old English Law is applied.
 
Dr. Christos Clerides
9/12/2009