Vingehoedt v Stanford International Bank Ltd ((in Liquidation))

• Jurisdiction: Antigua and Barbuda
• Judge: Pereira, C.J.
• Judgment Date: 26 January 2015
• Neutral Citation: AG 2015 CA 1
• Docket Number: ANUHCVAP2014/0030
• Court: Court of Appeal (Antigua and Barbuda)
• Date: 26 January 2015

Court of Appeal

Pereira, C.J.; Blenman, J.A.; Thom, J.A.

ANUHCVAP2014/0030

Vingehoedt

and

Stanford International Bank Limited

(In Liquidation)

Appearances:

Ms. E. Ann Henry, QC, with her, Ms. C Debra Burnette for the appellant.

Mr. Malcolm Arthurs, with him, Ms. Nicolette Doherty for the respondent.

Evidence - Appeal against the order of the judge allowing US transcripts of criminal proceedings into evidence as evidence and proof of the words that were spoken in those proceedings and by whom they were spoken but not as evidence of the truth stated — Whether the hearsay evidence would have any probative value- Whether the hearsay evidence would be prejudicial to the appellant.

The respondent filed an application to adduce hearsay evidence from the transcripts of US criminal proceedings (“US Transcript”), in the case of United States of America v. Robert Allen Stanford. It relied on sections 29 and 30 of the Evidence (Special Provisions) Act, 2009 (“the Act”). Alternatively, they sought to rely on the transcript as a non-hearsay record of what was said at the criminal trial and not for the truth of what was stated in order to show that the joint liquidator's understanding of the fraud is consistent with the evidence given by witnesses in the criminal proceedings. The learned trial judge ordered that the US Transcript be allowed into evidence as evidence and proof of the words that were spoken in those proceedings and by whom they were spoken, but not as evidence of the truth of what was stated. The appellant filed an application for leave to appeal that order on the main basis that the probative value of the hearsay evidence is outweighed by the prejudicial effect. The application was treated as the appeal.

Held: dismissing the appeal and awarding costs on the appeal to the respondent to be assessed unless agreed within 30 days, that:

• 1. Section 29 of the Act does not make hearsay evidence admissible in circumstances where it would otherwise be inadmissible. It merely obviates the need for formal proof of its authenticity which was otherwise required by common law. Moreover, it does not provide an exception to the hearsay rule. The test as to whether the evidence falls within an exception to the hearsay rule so as to be admissible without formal proof under section 29 of the Act must still be applied. If the evidence is hearsay evidence not falling within any exception to the rule then such evidence will be inadmissible whether or not section 29 of the Act exists.

  Section 29 of the Evidence (Special Provisions) Act, 2009 applied; Merck & Co. Inc. v. Apotex Inc. (T.D.) [1998] 3 FC 400 applied.

• 2. Evidence of a statement made to a witness by a person who was not himself called as a witness is not hearsay evidence and is admissible when it seeks to establish by the evidence not the truth of the statement but the fact that it was made. The learned trial judge explicitly stated that it was for that purpose he was admitting the US Transcript. Given that the US Transcript was not admitted as evidence of the truth of what is stated therein, but rather as evidence in proof of the fact of what was stated and by whom, there has been no breach of the hearsay rule.

Subramaniam v. Public Prosecutor [1956] 1 WLR 965 applied.

Pereira, C.J.

1 The appellant sought leave to appeal the decision of the learned trial judge in respect of an order made on 1st August 2014, in which, on application of the respondent to adduce hearsay evidence, he ordered that the transcripts of the US criminal proceedings in the case known as United States of America v. Robert Allen Stanford, which took place between 23rd January 2012 and 8th March 2012 (“the US Transcript”) are allowed into evidence as ‘evidence and proof of the words that were spoken in those proceedings and by whom they were spoken, but not as evidence of the truth of what was stated’. The trial window which was fixed for November was no longer feasible as the appellants, being dissatisfied with that order, sought leave to appeal on 15th August 2014 as well as a stay of the proceedings in the Court below pending the determination of the appeal.

2 The application came on for consideration before a single judge of the Court on 23rd September 2014 whereupon the application was referred to the Full Court under rule 62.2(5) of the Civil Procedure Rules 2000. The Full Court at its sitting in November 2014, with the consent of the parties, treated the application for leave to appeal as the appeal.

THE APPELLANT'S COMPLAINT

3 The gravamen of the appellant's complaint is essentially that the hearsay evidence will be of no probative value (not being admitted as proof of the truth of what was said) but on the other hand will be highly prejudicial to the appellant who will be unable to test the evidence by cross-examination and that substantial excerpts from the US Transcript are included in the witness statement of Mr. Marcus Wide [Mr. Wide is one of the joint liquidators of the respondent.] on which he has expressly relied as the basis on which he reached certain conclusions which are highly prejudicial to the appellant.

4 As the basis supporting the application for a stay, the appellant says that the US Transcript is voluminous and if it is to be included in the bundle for trial it will considerably impact on the amount of time for the trial and the attendant costs thereof. The stay was not resisted by the respondent as it was considered the appropriate course pending the delivery of the Court's decision as to the correctness of the learned trial judge's decision.

5 It is common ground between the parties that the common law rule against the admissibility of hearsay evidence subject to known exceptions represents the state of the law in Antigua and Barbuda. This is unlike the UK where the common law rule has been statutorily modified by the Civil Evidence Act 1995 of the UK which permits the admission of hearsay evidence in civil proceedings once certain procedures are followed.

THE DECISION OF THE TRIAL JUDGE

6 The learned trial judge delivered an oral ruling which has been captured and produced from the transcript of the proceedings. He noted that the respondent had given notice of their intention to adduce the US Transcript (with a copy served on the appellant) and that the respondent wished to have the US Transcript admitted as evidence and proof of its contents and relied on section 29 of the Evidence (Special Provisions) Act, 2009 (“the Act”) [No. 5 of 2009, Laws of Antigua and Barbuda.] as well as section 30 of the said Act. Of relevance, is section 29(1) which states as follows:

“(1) Evidence of a proceeding or record of, in or before a Court in Antigua and Barbuda, Great Britain, a British Overseas Territory or Dependency or a foreign country may be given in a proceeding by an exemplification or certified copy of the proceeding or record, purporting to be under the seal or hand of the Court, without any proof of the authenticity of the seal or signature.”

The learned trial judge opined, rightly in our view, that section 29 of the Act does not in terms say that evidence of such proceeding or record is evidence of the truth of such statements contained in the proceedings or record. He further opined that section 29 of the Act did more than merely provide for proof of the fact...