Director of Public Prosecutions (WA) v Mansfield [No 11] - [2009] WASC 294

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANSFIELD [No 11] [2009] WASC 294

CORAM: JENKINS J

HEARD: 25-28 MAY, 17 JUNE 2009

DELIVERED : 3 JULY 2009

PUBLISHED : 25 SEPTEMBER 2009

FILE NO/S: CIV 1977 of 2002

MATTER :Section 15, s 41, s 79 and s 84 of the Criminal Property Confiscation Act 2000

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
NIGEL CUNNINGHAM MANSFIELD
Respondent
NIGEL CUNNINGHAM MANSFIELD
ROSALIND JANE MANSFIELD
First Objectors
THE STATE OF WESTERN AUSTRALIA
Respondent to the Objectors

Catchwords:

Criminal law - Confiscation of property - Freezing order - Application for criminal benefits declaration - Objection to confiscation of frozen property - Foreign Evidence Act 1994 (Cth) - Admissibility of evidence

Legislation:

Criminal Justice Act 1967 (UK)
Evidence Act 1994 (Cth), s 125, s 155A
Extradition Act 1988 (Cth), s 19(7)
Foreign Evidence Act 1994 (Cth), s 21, s 22, s 23, s 24, s 25
Magistrates' Courts Act 1980 (UK)
Rules of the Supreme Court 1971 (WA), O 37 r 5

Result:

Pre-trial rulings as to admissibility of evidence under the Foreign Evidence Act 1994 (Cth)

Category: B

Representation:

Counsel:

Applicant:    Mr M J Hawkins
Respondent:    Mr M L Bennett
First-named First Objector     :    Mr M L Bennett
Second-named First Objector     :    Mr C E Chenu (25 & 26 May only)
Respondent to the Objectors     :    Mr M J Hawkins

Solicitors:

Applicant:    Director of Public Prosecutions (WA)
Respondent:    Lavan Legal
First-named First Objector     :    Lavan Legal
Second-named First Objector     :    Durack & Zilko
Respondent to the Objectors     :    Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bennett v Government of the United Kingdom (2000) 179 ALR 113
Cabal v United Mexican States (No 3) (2000) 186 ALR 188
Federal Republic of Germany v Haddad (1990) 21 FCR 496
Prabowo v Republic of Indonesia & Cleary (1997) 74 SCR 599
Prabowo v Republic of Indonesia (1995) 61 FCR 258
Zoeller v Federal Republic of Germany (1989) 23 FCR 282

JENKINS J: (This judgment was delivered extemporaneously on 3 July 2009 and edited from transcript)
The applicant wishes to adduce foreign evidence from five witnesses who have provided testimony pursuant to the Foreign Evidence Act 1994 (Cth) (the FEA). The names of the witnesses and the dates of their testimony are K J Coles taken 4 December 2003, K Jani‑Parmar taken 7 January 2004, P Jani taken 19 December 2003, T Roggla taken 29 November 2003 and H Moser taken 14 November 2003. There was a sixth witness, A F Reitmeier, whose evidence has been taken in this way but by email dated 24 June 2009, the DPP advised that he did not intend to rely upon the evidence of A Reitmeier.
With regard to the testimony of Messrs Roggla and Moser there are additional issues as their evidence was taken in a foreign language. The respondent objects to the admissibility of the translations of their evidence.
I will commence with the evidence of Mr Coles. Rulings which I make in respect of his testimony may also apply to other witnesses.
The evidence sought to be adduced from Mr Coles is an affidavit said to be 'sworn/affirmed' in the United Kingdom on 4 December 2003. Mr Coles deposed that he resided at 'The Gatehouse, Stable Lane, Pitsford.' His affidavit was witnessed by 'Tony J Mayer, JP, Northampton (England).' The affidavit is in the following terms:
Affidavit
IN THE MATTER OF THE
FOREIGN EVIDENCE ACT 1994
Affidavit
I, …………Kevin Joseph Coles………………………………..
(full name and title, if appropriate, of person making the affidavit)
of ………….The Gatehouse, Stable Lane, Pitsford ……………
(address)
Say on oath/affirm ⁽¹⁾ as follows:
1.The document attached to this affidavit and marked with the letter A is a statement signed by me on 4 December 2003
2.The contents of the statement are true and correct.
Sworn/'affirmed ⁽²⁾ at    )
NORTHAMPTON UK)
         (place)            )
On 4 December 2003    )
         (date)             )        ………Signature …..
Before me:                ) (Signature of the person who makes the affidavit)
(Signature)
(Signature of the judge, magistrate or other
Officer before whom the affidavit is made)
TONY J MAYER JP
NORTHAMPTON (ENGLAND)
(Name and title of the judge, magistrate or other officer)
⁽¹⁾ ^{Strike out as appropriate or replace if affidavit is neither sworn nor affirmed}
⁽²⁾ ^{Strike out as appropriate}
Attached to the affidavit is a 13‑page statement apparently signed by Mr Coles and Mr Mayer on each page. At the commencement of the first page the following endorsement appears:
This statement (consisting of 13 pages each signed by me) is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated anything in it which I know to be false or do not believe to be true.
That endorsement is followed by what appears to be Mr Coles' signature and the date 4 December 2003. There are also a number of documents attached to the statement of Mr Coles. Barring the final two-page statement, which I will refer to later in these reasons, each of these documents are referred to in Mr Coles' statement. The statement and documents are in the English language.
In front of the affidavit there is a document which states that it is a 'Certification under subsection 26(1) of material received in response to a request made by or on behalf of the Attorney‑General.' The certificate states that the certificator, Robyn Margaret Fraser Warner, is a person holding the position of Assistant Secretary, International Crime Branch, Criminal Justice Division, Attorney-General's Department. Further, that such a position is a senior executive service position in the Attorney‑General's Department and the subject of a notice published in the Gazette by which the Attorney‑General has appointed the person who occupies that position as an authorised officer for the purposes of the FEA s 26(1).
The certificator certifies that the material attached to the certificate, being the affidavit of Mr Coles, was received from the United Kingdom Home Office by the Attorney‑General's Department in response to a request for assistance in the matter of John Kizon and Nigel Mansfield dated 28 July 2003. The certificator also certifies that the seal to the certificate is the seal of the Attorney General's Department of the Commonwealth of Australia. The certificate is signed and dated 11 March 2004.
The applicant submits that Ms Warner's certificate, Mr Coles' affidavit, statement and attachments are admissible pursuant to the FEA s 24. The FEA s 24 states:
24Foreign material may be adduced as evidence
(1)Subject to subsection (2), foreign material may be adduced in a proceeding to which this Part applies.
(2)The foreign material is not to be adduced as evidence if:
(a)it appears to the court's satisfaction at the hearing of the proceeding that the person who gave the testimony concerned is in Australia and is able to attend the hearing; or
(b)the evidence would not have been admissible had it been adduced from the person at the hearing.
The FEA s 25 provides a discretionary power to prevent foreign material being adduced in evidence in certain circumstances. The FEA s 21 ‑ 23 are provisions in respect of the obtaining of foreign material to which s 24 applies, the requirements for such testimony and the form of such testimony. Those sections state:

21Requests for foreign material
This Part applies to testimony, and any exhibit annexed to such testimony, obtained as a result of a request made by or on behalf of the Attorney‑General to a foreign country for the testimony of a person, and any exhibit annexed to such testimony, to be made available.
22Requirements for testimony
(1)The testimony must have been taken:
(a)on oath or affirmation; or
(b)under such caution or admonition as would be accepted, by courts in the foreign country concerned, for the purposes of giving testimony in proceedings before those courts.

(2)The testimony must purport to be signed or certified by a judge, magistrate or officer in or of the foreign country to which the request was made.

23Form of testimony
(1)The testimony may be reduced to writing or be recorded on an audio or video tape.
(2)The testimony need not:
(a)be in the form of an affidavit; or
(b)constitute a transcript of a proceeding in a foreign court.

The applicant says that so far as s 25 provides a discretion to the court not to admit foreign material, that discretion can only be exercised by the trial judge when the applicant seeks to adduce the evidence. The discretion would have to be exercised having regard to the issues then alive between the parties and the evidence then before the court. In my view there is strength in this submission.
While most of the factors relevant to s 24 and to the exercise of the discretion in s 25 are now known, there are some which are not. For example, it is not known whether the particular witness will or will not be in Australia at the time of trial and, if not, whether he or she would be available for cross‑examination by video‑link. Further, the exact nature of the evidence which will then be before the court and the precise issues which will then be alive between the parties are not known. For these reasons, it is not appropriate that I determine the issues in s 24(2) and exercise the discretion in s 25, prior to trial.
However, there are some issues with regard to the testimony that the applicant seeks to have adduced pursuant to the FEA that I can determine now. In particular, unless the material is 'foreign material' it is not admissible under s 24. I am in a position to determine whether the material is 'foreign material'.
Further, the respondent's written objection to Mr Coles' testimony is that his affidavit is not an affidavit verified in accordance with the orders of Blaxell J for the filing of affidavits in this matter and it has not been verified in these proceedings. That is an issue which I can also deal with.
In oral submissions the respondent added further grounds of objection. The first is that the applicant has not filed the ministerial request which initiated the taking of the evidence and the other is that, on its face, the evidence does not appear to comply with the FEA s 22(2) because it was witnessed before a JP who is not a judge, magistrate or other officer in or of the United Kingdom.
The applicant submitted that the affidavit is admissible under the FEA and that it was properly sworn and filed in these proceedings, notwithstanding that it does not have the heading of these proceedings.
As to the first objection it is clear that the affidavit of Mr Coles does not conform to the Rules of the Supreme Court 1971 (WA) (SCR) O 37 in a number of respects, the most obvious being that it is not properly entitled. The SCR O 37 r 5(1) and (2) provide:
Unless the Court otherwise orders,
(1)an affidavit maybe filed notwithstanding any irregularity in the form thereof.
(2)An affidavit may, with the leave of the Court, be used in evidence notwithstanding any irregularity in the form thereof.
As I said to the respondent's counsel during oral submissions I do not see the defects in form as being compelling reasons to rule, at this point, that the affidavit is inadmissible. Mr Bennett, on behalf of the respondent, submitted that the defects were more than a question of form in that, because Mr Coles' affidavit and other like affidavits were not filed in the correct form, if they were admitted pursuant to the FEA the respondent does not get the right to insist on cross‑examination of the deponent. Further, he made the assertion that the respondent does not 'get any of the protection.' I do not accept these submissions. The FEA s 25 requires a court to consider matters, such as the ability to cross‑examine the deponent in exercising the discretion in that section. The court may also take into account in the exercise of its discretion the issue of the form of the document. All relevant matters will be considered before the court determines whether or not Mr Coles' affidavit is to be adduced in evidence in accordance with that discretion. There will also be the need for the applicant to obtain leave under SCR O 37 r 5(2) for the leave of the court to use the evidence, notwithstanding the irregularities in its form.
Subject to that issue of leave, I reject the objection to the admissibility on the basis that the affidavit has not been sworn in these proceedings. I would not think that if leave was sought that that would be a compelling reason not to grant leave to the applicant to adduce the affidavit.
In respect of the certificate attached to the affidavit, the FEA s 26 states:
(1)The Attorney‑General or an authorised officer may, by signed writing, certify that specified foreign material was obtained as a result of a request made to a foreign country by or on behalf of the Attorney‑General.
(2)It is presumed (unless evidence sufficient to raise doubt is adduced to the contrary) that the foreign material specified in the certificate was obtained as a result of that request.
(3)In this section:
authorised officer means a person:
(a)who is an SES employee or acting SES employee in the Attorney‑General's Department; and
(b)whom the Attorney‑General has, by notice published in the Gazette, appointed as an authorised officer.
The section clearly envisages that a certificate will be prepared. Such a certificate is not required by statute to be in the form of an affidavit and I see no reason to require it to be so. The purpose of s 26 appears to be to facilitate proof of the matters stated in the certificate without the need to call evidence of them. It would be counter to this purpose to require the certificate to be in the form of an affidavit or to be attached to an affidavit sworn by the certificator so as to require the certificator to be present for cross‑examination. In my opinion, as long as the certificate complies with the provisions of s 26 the applicant should be able to tender it at the trial of this matter even though it is not in the form of an affidavit or attached to an affidavit of the certificator.
During the course of submissions, the respondent complained that Ms Warner's assertion in the certificate that she was authorised to make the certificate is not the subject of evidence. For example, the Gazette to which she refers has not been produced in evidence. Thus, it was asserted that the certificate itself 'isn't evidence of anything.' It seems to me that the Evidence Act 1994 (Cth), s 125 or s 155A apply and render the certificate admissible, even in the absence of such proof.
As to the ground of objection that the applicant has not filed the request referred to in the certificate, it is apparent that the existence of the certificate absolves the applicant from the necessity of doing so. It is not for this court to look behind the statutory certificate to determine whether those administrative steps were taken: Cabal v United Mexican States (No 3) (2000) 186 ALR 188.
The respondent submits that the affidavit of Mr Coles is incomplete or deficient because it is not clear whether it was sworn or affirmed. Mr Bennett submits, without reference to any authority, that as neither word was struck out I can not be sure that the affidavit was either sworn or affirmed. The FEA s 22(1)(a) requires that the testimony must have been taken on oath or affirmation. As the affidavit refers to both oath and affirmation and neither has been struck out I am prepared to draw the inference that it was taken on one of those bases. I decline to draw the inference that it was not taken under either an oath or an affirmation.
In any event, I note that the actual testimony attached to the affidavit was taken under a caution. This is the same caution that is set out in the Criminal Justice Act 1967 (UK) and the Magistrates' Courts Act 1980 (UK), as a precondition for a written statement being admitted into evidence. Thus it appears that the testimony satisfies the FEA s 22(1).
As to the respondent's objection that the affidavit was not signed or certified by a judge, magistrate or officer in or of the United Kingdom, I have been assisted by various cases which have construed a similar provision in the Extradition Act 1988 (Cth) (the EA) s 19(7). The first proposition that emerges from those cases is the word 'officer' is not limited to judicial officers and includes other persons holding public offices as long as they are apparently appropriate officers to sign or certify the relevant document. The second proposition is that where a section only requires that a document or testimony 'purports' to be signed or certified by a judge, magistrate or an officer it is not for the court to go behind the signature of the witness who purports to be such a person and require proof that they are who they claim to be: Prabowo v Republic of Indonesia (1995) 61 FCR 258, 265 ‑ 267; Prabowo v Republic of Indonesia & Cleary (1997) 74 SCR 599, 603; Bennett v Government of the United Kingdom (2000) 179 ALR 113, [33] ‑ [37]; Cabal [168] and [171].
I acknowledge that if the evidence raised a substantial doubt about the status of the witness then the position may be different. However, taking into account that in the English common law the initials JP, customarily, are used to describe a justice of the peace, to the extent that I am required to be so satisfied, I am satisfied that the testimony purports to be signed by a judge, magistrate or officer of the United Kingdom.
For these reasons I am satisfied that the affidavit of Mr Coles, including the attached statement and documents, are foreign material for the purposes of the FEA s 24.
The respondent's objections to the admissibility of the affidavits of Ms Jani‑Parmar and Mr Jani are the same as those for Mr Coles. On this basis, I make the analogous rulings to those I have made in respect of Mr Coles' affidavit and related certificate. I note that the affidavit of Ms Jani-Parmar was in any event sworn or affirmed before a person who purports to be a magistrate.
Next I turn to consider the affidavit of Hans‑Rudolph Moser. This has not been separately filed but it is annexed to the affidavit of Christopher John Cubbage, sworn 19 March 2004, which has been filed. The affidavit of Mr Moser is in German. I do not understand the affidavit, even to the extent of being able to be satisfied that it is foreign material for the purposes of the FEA. There is what may be a statement of Mr Moser and attached documents following the affidavit but the first eight pages of this material are in the German language, as is one of the attached documents. The final page of what may be the statement has some signatures on it but the related printing is in German. I do not understand it.
After what may be the statement and attached documents there is what is said to be a 'certification' by a qualified translator. It is not in the form of an affidavit. I have not been told that there is any special status given to such a certification. There follows what may be an English language translation of Mr Moser's affidavit, statement and attached German language document. However, it is not possible for me to be sure of this given that the certificate states that it is a translation of the 'German source text.' The German source text is not identified.
There are two problems with this material. The first is that what is sought to be adduced pursuant to the FEA is in a foreign language, not able to be understood by me. Secondly, the certification of the translation is not in affidavit form and does not properly identify the material to which it relates.

As for the need for a translation of such foreign language material, in Federal Republic of Germany v Haddad (1990) 21 FCR 496 the Full Federal Court said at 499:
We act on the view that material placed before the court to satisfy the requirements of section 19 subsection (7)(b) should not be received if written in a language other than English unless its English meaning is proved or admitted.
The court was referring there to the EA s 19(7)(b). That provision provided that a document that was sought by or on behalf of an extradition country to be admitted into evidence in extradition proceedings was duly authenticated for the purposes of the section if it purported to be authenticated by the oath of affirmation of a witness or to be sealed with an official or public seal. The document to which the court was referring was the page which had the seals on it. It was intended to be an authentication of what preceded it. It was in a foreign language and had not been translated.
In Cabal, another extradition case, French J, as he then was, considered that it was not necessary for a full translation of a warrant in a foreign language to be produced as supporting material for the purposes of extradition. It was satisfactory if there was a partial translation of the operative parts of the warrant.
The extradition cases are also authority for the proposition that a translation of a foreign language document does not have to be in any particular form or by a particular person as long as the translator has the necessary qualifications or experience to give the translation: Cabal [161], Prabowo v Republic of Indonesia (1995) 61 FCR 258, 270 ‑ 271; Zoeller v Federal Republic of Germany (1989) 23 FCR 282, 289 ‑ 292.
Given that the hearing of this matter is to proceed by way of affidavits, the translation of any foreign language material needs to be on affidavit. An affidavit by a translator attaching a translation of the foreign material obtained pursuant to the FEA and a copy of the foreign language material itself would in all likelihood be admissible. It may then enable a judge to be satisfied that the foreign language material is 'foreign material' for the purposes of the FEA and admissible itself. However, the documents presented by the applicant in respect of Mr Moser's purported testimony fall short of these requirements.
The applicant's counsel submitted that the applicant intended to call evidence at the hearing from a translator. As the hearing of this matter is to proceed by way of affidavit material, the applicant cannot assume that he will be able to do so. The proper way to deal with the translation in respect to witnesses who have given testimony in a foreign language is to file an affidavit of a translator, as I have described. This not having been done, I am not satisfied that Mr Moser's affidavit or statement is 'foreign material' for the purposes of the FEA. It is not admissible at this point in time.
Finally, I turn to the affidavit of Thomas Roggla. It is also annexed to Mr Cubbage's affidavit. It commences with the certificate made by Ms Warner under the FEA s 26(1). Next there is an affidavit in English made by Mr Roggla on 25 November 2003. It is in the same form as Mr Coles' affidavit. It states that it was sworn at 'Police, Monaco' on 25 November 2003 before 'Olivier Jude, police Captain, officer.' Underneath that title in the first place it appears are the printed words, 'Signature of the judge, magistrate or other officer before whom the affidavit is made.' Underneath the name and title in the second place they appear are the printed words, 'Name and title of the judge, magistrate or other officer'. In the second place they appear the title is expressed as 'Capitaine Inspecteur Police MONACO'.
There is attached to the affidavit seven pages of text in the French language. I have a sparse but sufficient knowledge of the French language to ascertain that it states that it is the deposition of the witness Mr Thomas Roggla and that it purports to be signed by, amongst others, Mr Roggla and Olivier Jude. Following that statement is a page which states that '[t]he foregoing seven pages of English text, being material supplied by Monaco in response to a mutual assistance request in the matter of Kizon and Mansfield is a true and accurate translation of the French source text prepared by me, Yvette Van Lu, on 20 February 2004'. There follows a stamp and the signature of the translator and seven pages of English text.
I am satisfied that the affidavit and statement or deposition in French of Mr Roggla is foreign material pursuant to the FEA. However, the purported translation thereof, not being in the form of an affidavit, is not admissible at this time. In the cases construing similar authentication provisions in the EA there is dicta which may provide a basis for me to conclude that the affidavit and its attachment, being the statement of Mr Roggla in French, is admissible but that the statement or material in the statement could not be acted on because it is not able to be understood by the court: Zoeller, 290. However, the better view is given that the substantial portion of the testimony of Mr Roggla cannot be understood because it is in a foreign language, the affidavit should not be admitted in evidence unless and until an English translation is properly proven or admitted. Thus, I am not prepared to rule that the affidavit and attachment of Mr Roggla is admissible at the time. On the contrary, it is inadmissible.
The other matter which I now address in respect of Mr Roggla's material, in case an application is made to adduce it at some later time, is whether his affidavit purports to be witnessed by a judge, magistrate or other officer. It is clear on the face of the affidavit that Olivier Jude purports to be a judge, magistrate or other officer because he has signed the affidavit in two places above that stated requirement. There may however be said to be evidence in the form of his title to indicate that he is not an appropriate officer for the purposes of the FEA.
The question of who is an appropriate officer to authenticate supporting documents for the purposes of the EA has been considered in the cases of Cabal [171] and Prabowo 265 - 267. In the EA s 19(7) there is the same necessity as in the FEA for documents to purport to be be signed by a 'judge, magistrate or other officer.' From these cases it is apparent that an officer need not be a judicial officer but may be an administrative officer provided they are a member of a class of officer appropriate to the circumstances. In my view, there is nothing in the office of police captain which would render Olivier Jude an inappropriate officer to witness Mr Roggla's testimony. The affidavit and statement of Mr Roggla are not inadmissible on this basis.
In written submissions dated 29 June 2009 the respondent raises new objections to some of the FEA material. The first new objection he makes is with regard to the certificates under the FEA s 26(1). He says that subsection requires that the certificates 'certify that specified foreign material was obtained as a result of a request made to a foreign country.' He says that the certificates attached to Messrs Moser's and Roggla's affidavits only say that certain material is 'attached to the certificate.' Thus the objection appears to be that referring in the certificate to material that is attached and then attaching it does not comply with the requirements of the FEA to specify the material in the certificate.
The word 'specified' is not defined in the FEA. The Shorter Oxford Dictionary defines 'specify' to mean, 'To mention, speak of or name something definitely or explicitly, to set down or state categorically or particularly, to relate in detail.' Whilst it is more usual to specify something by naming it I am of the view that one may also specify something by setting it out in full. Where something is so large that it cannot be set out in full in the document which specifies it I do not see that it is open to say that it has not been specified in that document because, rather than being set out in full, it is attached in full. In this respect I refer to French J's comments in Cabal [170], where his Honour said:
A certificate may be endorsed upon the document in question. It may also appear in a separate document provided that it identifies the document to be authenticated and attests to its genuineness. There is no mandate for imposing a technical requirement not derived from the meaning of the word or the terms of the Act which would require a certificate to be endorsed upon or attached to the document to be certified.
It is true that the statutory requirement there under consideration was different to s 26 but the reasoning is still applicable to this case. I am not prepared to rule that the s 26 certificates or the material which they certify is inadmissible on this basis. In my opinion each of the certificates specifies the relevant affidavit by saying that it is attached and by attaching the whole of the affidavit. In this way the certificate appropriately specifies or identifies the document which it certifies.
The second submission made by the respondent is that as the applicant has not complied with s 26(1) and as he, the respondent, has rebutted the presumption in s 26(2) the applicant should be required to produce the request or requests for foreign material on behalf of the Attorney‑General. As I do not find either that the applicant has not complied with s 26(1) or that the respondent has rebutted the presumption in s 26(2), I am not prepared to so rule.
The third submission is in relation to the last two pages of Mr Coles' evidence as filed, which is a witness statement of another witness which is not referred to in Mr Coles' affidavit. The respondent submits that if this statement has been included as an oversight it should be excluded or, if it has been included deliberately, it is not certified and should be excluded on that basis. The statement is that of Brendon Lee Cross dated 8 April 2004. It clearly does not form part of Mr Coles' affidavit and cannot be admitted as part of it. Consequently, it is not admissible.
The fourth submission is that the affidavits of Mr Coles, Mr Jani and Ms Jani‑Parmar do not say whether they were sworn of affirmed. I have already dealt with this submission and I am not prepared to strike the affidavits on that basis.
The fifth submission is that in each of those affidavits the attached statement is said to be marked with the letter A, yet the attached statement is not marked with the letter A. It is said that on this basis the affidavits ought to be excluded.
The affidavits are clearly defective in this respect. I am satisfied, however, that it is a defect in form not substance. The statements attached to the affidavits are in each case dated with the correct date as is in the relevant affidavit. The statements appear to have been made and signed by the persons named in the affidavits and witnessed by the persons named in the affidavits as the witnesses. On these bases I am satisfied that the statements attached to the affidavits are in each case the statement referred to and said to be attached to the relevant affidavit. I am not prepared to rule that the affidavits are inadmissible on this basis.
The sixth submission relates to Mr Moser's affidavit where it says that Mr Moser was cautioned under s 52 of what appears to be a foreign statute. The respondent submits that, in accordance with comments I made during an exchange with counsel, I could not be satisfied that the FEA s 22(1) has been complied with unless the relevant section of the statute, a translation thereof and an affidavit proving the same had been filed.
The FEA s 22(1) requires 'foreign material' to be taken 'on oath or affirmation or under such caution or admonition as would be accepted, by courts in the foreign country concerned, for the purposes of giving testimony in proceedings before those courts'. There must be evidence before the court sufficient to satisfy these statutory requirements. It may be that there is sufficient evidence in the affidavit to do this or further evidence such as suggested by the respondent may be required. I have noted the lack of a translation verified by affidavit and that the lack thereof renders Mr Moser's affidavit inadmissible. It seems to me that a ruling on this objection is inappropriate at this time given my ruling as to the inadmissibility of Mr Moser's affidavit. Thus I do not find that it is necessary to rule on this objection.
The respondent's final objection to the admissibility of the FEA material again relates to the evidence of Mr Moser. The respondent submits that as the person who witnessed Mr Moser's affidavit says merely that his office is that of 'investigating officer with the Arlesheim District Office' I ought not be satisfied that he is an appropriate officer to sign Mr Moser's testimony for the purposes of the FEA s 22(2).
It is not for me to go behind an assertion in an affidavit that a witness is a judge, magistrate of officer. However, if on the face of what is asserted the witness does not purport to be a judge, magistrate or officer then the material is not admissible. Further, if the witness on the face of what is asserted on the document is not an appropriate officer to witness the testimony then the testimony is not admissible.
The issue is what level of doubt must be reached before a court declines to take a witness's assertion that they are an officer at face value and give due faith and credit to it? In my view, it must be a matter of discretion for the judge to determine taking into account all the facts known about the document and the person before whom it was witnessed. In this case I have currently ruled Mr Moser's affidavit to be inadmissible because it is not accompanied by a verified translation. The title of the witness to which the respondent refers is in, what may be, the English language translation of Mr Moser's affidavit. I have ruled that that translation is not admissible unless verified by affidavit. A further objection based on whether the witness is an appropriate officer should not be determined in the absence of that affidavit.
The balance of the respondent's submissions relate to the exercise of the discretion to admit into evidence otherwise admissible 'foreign material'. As I indicated to the parties during submissions and earlier in these reasons I am not prepared to exercise that discretion prior to trial. The exercise of the discretion would need to take into account the probative value of the evidence given the issues between the parties at the time the 'foreign material' was tendered. The exercise of the discretion may also depend on whether the witness was available to be cross‑examined at trial by video‑link or audio‑link. These are matters which are not yet known for certain.
It follows, from my deferral of ruling on the exercise of a discretion to admit the FEA material pursuant to s 25 and to also rule on its admissibility pursuant to s 24(2), that the fact that the respondent was not given an opportunity to be present and to ask questions when the testimony was taken, and the delay since it was taken, are not reasons of themselves which override all other matters which would warrant me exercising my discretion not to admit the evidence. Those matters will have to be considered and balanced along with all other relevant matters at the time the discretion under those sections is exercised. It may be that, when the discretion is exercised, those matters are powerful reasons not to admit the material but, as I have said, those issues can only be considered along with all other relevant issues.
These are my reasons in respect of the FEA material. It follows that at this stage the material relating to Mr Coles, Ms Jani‑Parmar and Mr Jani is admissible but the material relating to Mr Roggla and Mr Moser is not.