PILLAY J:
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This ruling follows an attempt by the Learned counsel for the Plaintiff to produce a photocopy of the forensic report made by her witness, one Dr Citadini.
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Learned counsel indicated that she had a copy but with highlights whereas the original was with the Dr in Italy. Following the said statements, the Learned counsel for the Defendant was asked if he had any objections. Miss Benoiton for the Plaintiff indicated that she had served Mr. Elizabeth with a copy. A back and forth followed with Mr. Elizabeth finally locating the said report on his phone at which point Miss Benoiton informed the Court that she had gone to at least six different offices but could not get a functioning printer.
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The document was shown to Dr Citadini who identified the document as hers with the last page bearing her signature. Upon Miss Benoiton moving for production of the report as an exhibit Mr Elizabeth objected. Firstly, on the basis that the document is a photocopy of an original. He relied on the case of Bertine Ah-Kong for his argument that the photocopy had to be certified as true copy of the original. Secondly, he argued that the document emanating from another country required an apostille in order to be admitted as an exhibit.
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In answer Miss Benoiton sought confirmation of the section of law opposing counsel was relying on. Mr. Elizabeth agreed that he was relying on section 7 of the Evidence Act and on the case of Bertine Ah-Kong. Miss Benoiton proceeded to argue that section 28 of the Evidence Act was not applicable to the matter at hand in view of the fact the document she was seeking to produce was not one which required an apostille being a document produced by the witness in her personal capacity.
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As regards the second part of the objection in terms of the document being a photocopy, Mr. Elizabeth could not provide the section of law on which he based his objection nor could he provide a copy of Bertine Ah-Kong on which he relied. However, with the Court drawing Miss Benoiton’s attention to section 31 (b) of the Evidence Act she suggested that Dr. Citadini should be shown all 5 pages of the document so she could compare it to the one she created and/or the one she had on her end and confirm same and with that authentication of the document by the author on site, the Court should consider accepting that as an approved authentication method.
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With Mr. Elizabeth having asked for a formal ruling on his objection the Court proposed taking a date for the ruling. At that point Miss Benoiton requested that Dr. Citadini read out the document which would resolve the admissibility issues.
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What transpired thereafter as can be seen from the record is that Miss Benoiton wanted the evidence of the doctor to be taken that day itself because of the costs factor. But I will come back to that issue and how that developed.
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As regards the objection by Mr. Elizabeth, it was in two parts;
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That the document is a photocopy
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That the document required an apostille.
9. The short answer to the second part of the objection is that that objection cannot be maintained under section 28 of the Evidence Act on the basis of the Ruling this Court gave in MA 401/2023 in this very matter. Section 28 is applicable to public documents is defined as follows:
"public document" means—
(a) document emanating from an authority or an official connected with the courts or tribunals of a Convention State, including those emanating from a public prosecutor, a clerk of a court or a process server;
(b) administrative documents;
(c) notarial acts;
(d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificate recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures; but does not include
(e) documents executed by diplomatic or consular agents; and
(f) administrative documents dealing directly with commercial or customs operations.
10. There is no indication that the forensic report sought to be produced falls within any of the above categories.
11. As regards the first part of the objection, that the document is a photocopy, indeed the case of Bertine Ah-Kong addressed the issue of a production of a photocopy. The reason why the order made in that case was for the photocopy to be authenticated by Miss Pool is because that particular document was a notarized document. In law notaries are required to provide authenticated copies of documents as per the decision in the said case.
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Other than his reliance on the case of Bertine Ah-Kong, Mr. Elizabeth could not recall the relevant section dealing with the production of photocopies as exhibits. On being asked to look at section 31 of the Evidence Act by the Court, Miss Benoiton submitted that the Court could authorize the authentication by the witness herself pursuant to part (b) of section 31 which reads as follows:
Where in a trial a statement contained in a document is admissible in evidence under section 14, section 15, section 29 or section 30 it may be proved
(a) by the production of that document, or
(b) whether or not that document is still in existence, by the production of a copy of that document, or of the material part of it, authenticated in such manner as the court may approve.
13. Of application to the current proceedings is section 14 of the evidence act which reads thus;
(1) Subject to this section, a statement contained in a document shall be admissible in any trial as evidence of any fact stated therein of which direct oral evidence would be admissible if
(a) the document is or forms part of a record compiled by a person acting under a duty from information supplied by a person, whether acting under a duty or not, who had, or may reasonably supposed to have had, personal knowledge of the matters dealt with in that information; and
(b) the person who supplied the information
(i) is dead or by reason of his bodily or mental condition unfit to attend as witness;
(ii) is outside the Republic and it is not reasonably practicable to secure his attendance;
(iii) cannot be identified and all reasonable steps have been taken to identify him;
(iv) his identity being known, cannot be found and all reasonable steps have been taken to find him;
(v) cannot reasonably be expected, having regard to the time which has elapsed since he supplied or acquired the information and to all the circumstances, to have any recollection of the matters dealt with in that information; or
(vi) having regard to all the circumstances of the case, cannot be called as a witness without his being so called being likely to cause undue delay or expense.
(2) Subsection (1) applies
(a) whether the information contained in the document was supplied directly or indirectly, but if it was supplied indirectly, only if each person through whom it was supplied was acting under a duty; and
(b) whether or not the person compiling the record is himself the person by whom the information is supplied.
(3) A statement made in connection with a criminal trial or with an investigation relating or leading to a criminal trial shall not be admissible under this section in a criminal trial.
(4) Subject to subsection (5), where in any trial a statement based on information supplied by any person is given in evidence under this section
(a) any evidence which, if that person had been called as a witness, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in the trial; and
(b) evidence tending to prove that that person has, whether before or after supplying the information, made a statement, whether oral or otherwise, which is inconsistent with it shall be admissible for the purpose of showing that he had contradicted himself.
(5) Nothing in subsection (4) shall enable evidence to be given of any matter of which, if the person in question had been called as a witness, could not have been adduced by the cross examining party.
(6) A statement which is admissible under this section shall not be capable of corroborating evidence given by the person who supplied the information on which the statement is based.
(7) In deciding for the purposes of subsection (1)(b)(i) whether a person is fit to attend as a witness the court may act on a certificate purporting to be signed by a medical practitioner.
(8) Where in a civil trial a party desiring to give a statement in evidence by virtue of this section has called or intends to call as a witness in the trial the person who originally supplied the information from which the record containing the statement was compiled, the statement
(a) shall not be given in evidence by virtue of this section on behalf of that party without the leave of the court; and
(b) without prejudice to paragraph (a), shall not, without the leave of the court, be given in evidence by virtue of this section on behalf of that party before the conclusion of the examination in chief of the person who originally supplied the information.
(9) Nothing in this section affects the admissibility of a document where the document is tendered otherwise than for the purpose of proving a fact stated in it.
(10) This section does not apply to a document to which section 15 applies.
14. Of direct relevance to this matter is subsection 8 above. In my humble opinion by virtue of the fact that counsel has asked that the report be produced, paragraph (a) has been satisfied as has paragraph (b) in that the Plaintiff has already deponed. In the circumstances the original report of Dr Cittadini is admissible.
15. That being so, can a copy of the said report be produced? In the case of Bertine Ah-Kong this Court examined the rule with regard to production of photocopies as evidence as follows;
[12] Article 1334 of the Civil Code of Seychelles provides that:
Copies of a document, when the original exists, are not evidence of the contents of the original, the production of which may, in all cases, be demanded.
[13] In “Introduction to the Law of Evidence in Seychelles, Sauzier 1983” Articles 1334, 1335 and 1336 of the Civil Code is explained thus:
Article 1334 is equivalent to the best evidence rule of the
English law of evidence.
In certain cases when the original is kept in the custody of
a Government department or a public officer such as a notary or a
land surveyor the original is not admissible. The document can
only be proved by the production of a certified copy under the
hand of the head of department or public officer having the
custody of the document. Sections 7 and 8 of the Evidence Act
(Cap 74) refer to this.
…
Articles 1335 and 1336 would only apply in case the original document no longer exists.
[14] In the case of Zaksat General Trading Co Ltd v Yousef Al Shaibani & Ors (CS 247/1998) [2000] SCSC 10 (6 July 2000) Perera J explained that:
The procedure of serving a "notice to produce" is based on the "best evidence" Rule, that when a document was put in as evidence, the original had to be produced. In Seychelles, this rule is contained in article 1334 of the Civil Code. However, that rule has now lost its rigidity. The modern attitude to the rule is set out by Lloyd LJ in R v. Government of Pentenville Prison Exp Osman (1989)3All ER 701 at 728, thus:
.....The Court would be more than happy to say goodbye to the best evidence Rule. We accept that it served an important purpose in the days of Parchment and Quill Pens. But, since the invention of Carbon Paper and, still more, the photocopier and the telefacsimile machine, that purpose has largely gone. Where there is an allegation of forgery the Court will attach little, if any, weight to anything other than the original; so also if the copy produced in Court is illegible. But to maintain a general exclusionary Rule for those limited purposes is, in our view, hardly justifiable.
[15] His Lordship added that
In this respect Beldam J in the case of R v Wayte (1983) 76 Cr. App. R. 11O at 116 stated:
First, there are no degrees of secondary evidence. The mere fact that it is easy to construct a false document by photocopying techniques does not render the photocopy inadmissible.
The fact that the documents were only copies merely went to weight, not admissibility.
[16] In the more recent case of R v Ernesta & Ors (CO 22 of 2016) [2017] SCSC 838 (20 September 2017) the Court found that:
[…] In general primary evidence in the case of documentary evidence would be the original document or an admission of its contents and it is imperative that if the original is available, it should be produced as this would be the best evidence. However in the case of Garton v Hunter [1969] 2 QB 37 Lord Denning M.R. stated “That old rule has gone by the board long ago….. Nowadays we do not confine ourselves to the best evidence”.
[7] However if it (primary evidence) is not available due to it being lost, destroyed or when it is in the possession of the other party, secondary evidence which would be a copy of the document which includes a photocopy or oral evidence in regard to the contents of the document, can be produced or given. This was followed in the case of Kajala v Noble (1982) 75 Cr. App R. 149 where Ackner L.J. stated at pg 152 “The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded has gone by the board long ago. The only remaining instance of it is that, if an original document is available in one’s hand, one must produce it; nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to the weight, and not admissibility. Therefore, we hold that photocopies are admissible.
[8] In the case of R v Wayte 1983 76 Cr App R 100, the Court gave the following guidelines on the procedure to be adopted when it was sought to produce in evidence photostat copies of documents, in cases where admissibility was in question.
(a) Documents should not be handed to nor seen by the jury until questions of admissibility have been determined.
(b) Warning should be given to Counsel in advance so that they may have a fair chance of considering admissibility.
(c) Where the accused is unassisted by counsel the guidance of the Court should be sought before the document is put before the jury.
(d) On exceptional occasions there would be a trial within a trial on the issue of admissibility.
[9] The Court similarly held that the photostat copies of documents were admissible as evidence where they were relevant and the original had been lost. The fact that the documents were merely copies went to the weight and not admissibility of the document. The genuineness or authenticity of the document (includes alleged fabrication of a document) is left to the Jury or Judge to decide at the end of the case on considering the evidence led.
16. It is further noted that routinely the Courts in Seychelles allow photocopies to be produced, in circumstances when witnesses have the original documents available with them in Court, for various reasons such as their desire to retain their original copy for one reason or another.
17. In the circumstances I find no good reason to refuse to allow the production of the photocopy of Dr. Citadini’s report. However, that photocopy should be a clear copy devoid of any notes and highlights made by counsel or whomsoever other than the witness herself.
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Now, before I take leave of this matter, let me address the developments mentioned in paragraph 7 above which emanated for the most part because Miss Benoiton did not come prepared for her case. I say that she did not come prepared for her case because by her own admission she had to go round 6 offices to attempt to find a printer to get a clear copy of the report printed as the one she had in her possession had been annotated and highlighted. This should have been done since earlier from her office and placed on her file. Faced with the objection by Mr Elizabeth and a request for a formal ruling on the objection raised, Miss Benoiton attempted to find ways to get around that objection as she was concerned as to the costs implications for her client in wasting a day’s costs for the attendance of the doctor and her evidence not being taken. Admittedly this Court was willing to accommodate her attempts.
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I have no hesitation in apologising to Miss Benoiton, which I do now, for my comments at page 25 to 26 of the proceedings that she was trying to itemise a document that she had no intention of producing as an exhibit. She had in fact at page 24 requested that the document be itemised, that we proceed with the doctor’s evidence and then she would get the original in and have the doctor come simply to adduce it as an exhibit. However, the record also shows that her prior request made at page 18, in spite of Miss Benoiton’s attempt at page 20 to state that she had “not effectively communicated [her] point”, her request at page 18 had been for Dr Citadini “to just give her, give us her opinion on what she examined. If she can read out the document, then we will not have admissibility issues in respect of production of a copy.” Her attempts were in effect to circumvent the objection. Her suggestion is in fact something that is done in some cases without any objection from opposing counsels. Additionally, objections are routinely addressed by opposing counsels agreeing to the suggestions proposed by the counsel attempting to produce an exhibit in order to satisfy the conditions for which the objection was raised such as laying the basis or agreeing to production of the document sought to be produced as an item in the first instance. In the instant case, however, Mr Elizabeth objected to all attempts made to resolve the issue and address the laxities which were the basis of his objection, being that the document was a copy and contained writings and highlights. He insisted on a formal ruling.
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The issue wasn’t so much that Mr. Elizabeth was being insistent on a formal ruling or that Miss Benoiton was attempting to find solutions to the best interests of her client, which both were entitled to do in my humble opinion. The issue was Miss Benoiton’s indignation, which is not reflected in black and white on the record, and which has been evident since this incident, and might I add totally uncalled for, on being called out for the suggested solutions which to my mind were attempts to circumvent the objection which went one step too far. At this point I have to say that I am unable to understand how Miss Benoiton was planning on itemising the report and then recalling the doctor to simply produce it as an exhibit later. By then we would have already gone through the cross examination and she would be at the stage of re-examination at which point she would have been unable to produce the report as an exhibit. Hence my comment about her attempting to get in through the back door.
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As I said, I am not in the habit of ridiculing counsels or making allegations about counsel’s conduct or casting aspersions on counsels unless there is something that has happened to merit comments being made and is relevant to the issue at hand.
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In any event, the lesson for the future is to record objections by counsels and then deliver a ruling ex-tempore or reserve the ruling.
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With all that said, the objection is dismissed. A copy of the doctor’s report may be produced as exhibit since she has already satisfied the criteria in section 31(b) of the Evidence Act.
Signed, dated and delivered at Ile du Port on 19 November 2024
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Pillay J