Angel v Aubrecht

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Taylor and Forte, JJ.A.)
• Judgment Date: 17 July 2007
• Date: 17 July 2007
• Court: Court of Appeal (Cayman Islands)

Court of Appeal

(Zacca, P., Taylor and Forte, JJ.A.)

ANGEL

and

AUBRECHT

A. Akiwumi for the appellant;

Ms. K. Houghton and S.T.McCann for the respondent.

Cases cited:

(1) R. v. Honeyghon, [1999] Crim. L.R. 221, referred to.

(2) R. v. Jobe, [2004] EWCA Crim 3155, considered.

(3) R. v. PrefasUNK(1986), 86 Cr. App. R. 111, considered.

Legislation construed:

Evidence Law (2006 Revision), s.4(1): The relevant terms of this sub-section are set out at para. 5.

Evidence-witnesses-hostile witness-previous inconsistent statement-if witness denies making alleged statement, court may rule under Evidence Law (2006 Revision), s.4(1) that witness adverse or ‘hostile’ to allow counsel to cross-examine or otherwise prove statement-ruling is merely interim, subject to change on hearing further evidence

The respondent brought an action for damages in the Grand Court in respect of injuries sustained in a traffic collision with the appellant”s van.

The appellant”s van allegedly turned right at an intersection, without signalling, into the path of the respondent”s oncoming motorcycle, causing a collision. Although the appellant”s wife (who was in the van at the time) was called by respondent, her testimony supported the appellant”s account that the van had been going straight ahead. The judge declared her an adverse or ‘hostile’ witness, within the meaning of s.4(1) of the Evidence Law (2006 Revision), and ruled that counsel for the respondent could put to her previous inconsistent statements she had allegedly made to the police regarding the van”s direction of travel. Following a voir dire, the judge found that the appellant”s wife had, in fact, made the statements, but later changed his mind after hearing further evidence. Nevertheless, he rejected her account in favour of that of independent witnesses and found the appellant 100% liable for the respondent”s damages. The appellant appealed on the ground, inter alia, that the judge had erred in declaring his wife a hostile witness and the present report is limited to the court”s ruling on this issue.

On appeal, the appellant submitted that (a) nothing in his wife”s conduct or demeanour at the time warranted the finding that she was hostile and such a ruling should not have been made before all the evidence had been heard; and (b) the judge”s ultimate conclusion that she had not made the statements was not sufficient to remove completely from his mind his earlier contrary finding, which indelibly marked her as lacking in credibility and resulted in a material irregularity in the trial.

The respondent submitted in reply that (a) he did not have to prove but merely assert that the witness had made the alleged inconsistent statements before putting them to her, since it was only by the judge”s interim ruling on hostility that he was permitted to cross-examine her under s.4(1); and (b) the judge was easily capable of reconsidering his

conclusion made after the voir dire (which had, moreover, been undertaken at the appellant”s request) and had weighed all the relevant evidence in reaching his final decision.

Held, dismissing the appeal:

(1) The judge had not erred in declaring the appellant”s wife an adverse or ‘hostile’ witness within the meaning of s.4(1) of the Evidence Law (2006 Revision). Hostility could be demonstrated by the witness”s manner and demeanour or, as in the present case, by inconsistency between her evidence and an alleged prior statement. When the basis for the supposed hostility was the making of alleged prior inconsistent statements, the party alleging they had been made could not first be required to prove that they had in fact been made. The judge”s opinion that the witness was hostile was enough and was merely an interim ruling that necessarily had to be given before he reached a conclusive decision to allow counsel for the respondent to cross-examine or to otherwise prove the alleged statements under s.4(1) (paras. 13–14).

(2) Nor had there been a material irregularity in the conduct of the trial merely because the judge had ultimately preferred the evidence of the independent witnesses, despite his acceptance that the appellant”s wife had not made prior inconsistent statements and that consequently she could...