APPEALING ON THE FACTS AND WITNESS CREDIBILITY: THE DEMEANOUR OF THE WITNESS

Earlier posts have considered issues relating to witness statements and witness credibility. In particular the difficulties of appealing findings of fact. A helpful summary of the principles relating to appealing when a judge has made a finding in relation to credibility can be found in the Court of Appeal decision in Sohal -v- Suri [2012] EWCA Civ 1064.

THE APPEAL

The defendants appealed a decision of the judge that the claimant owned certain property.  The judge had found that the documentary evidence was inconclusive and based the decision on an assessment of the witnesses.

HOW A JUDGE CAN APPROACH WITNESSES

1. f… summarising the judgment of the judge in the order in which it is written, and without intending any disrespect to the judge, dissect the various strands of evidence in his judgment. I have grouped the facts under headings and I accept that it is arguable that the same facts should be included under different headings or more than one heading but that does not alter the core points that I wish to demonstrate. My approach will enable me to deal with the numerous detailed submissions made on this appeal more succinctly than I might otherwise have been able to do. Before I do so I should explain a little about the process of fact-finding and the limited nature of the appellate function.

MAKING FINDINGS OF FACT

1. The position is that judgments on questions of fact can be expressed in different ways. Consistently with the independence of the judiciary, it is left to the judge to decide how to express his conclusions, subject to review on appeal in accordance with what are for the most part well-established principles. It is not for this court to retry the case: our task is to review the judgment of the judge for error. The judge does not have to make a finding on every disputed item of evidence. It is enough if he makes findings on matters which he needs to resolve before coming to his conclusion. Likewise, there is no obligation on the judge to make findings if, after having considered the matter conscientiously, he forms the view that it is not possible to make a particular finding.
2. Returning to the judgment of the judge in this case, since he had to adjudicate upon the existence of an oral agreement made between two family members, one of whom had passed away, in the presence of one of the daughters of the survivor, he analysed all the circumstantial evidence to ascertain where the weight of the evidence lay.
3. There is nothing improper or unusual about this methodology. It was described thus by Pollock MR in Re Exall (1866) 176 ER 850, 4 F & F 922 when considering whether a crime had been committed:

“…all the circumstances must be considered together. It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.”

1. It would follow from this that, if the judge drew some inferences from the evidence that are liable to be set aside on appeal, that would not necessarily mean that the whole of the judgment should be set aside. It would only be set aside if either that inference was an essential link in the chain of reasoning or if the inference was so intertwined into the “rope” of the judge’s finding viewed collectively that it could no longer bear the weight of the conclusion.
2. The obverse of this principle is that, while appellate courts are reluctant to intervene where a trial judge has decided the case on the basis of a witness’ demeanour (because the judge had the advantage of seeing the witness which they do not), they will do so if the trial judge’s decision cannot stand when reviewed by reference to the objective evidence. Thus in Armogas v Mundogas (The Ocean Frost)[1985] 1 Lloyd’s Rep 1, Robert Goff LJ , with whom Stephenson and Dunn LJJ agreed, held:

“Much argument was directed to the circumstances in which this court could and should reverse the findings of fact of a trial judge who had based himself upon his view of the credibility of witnesses which this court had not had the advantage of seeing and hearing give evidence. The principles are well established in authoritative cases including Montgomerie & Co. Ltd. v. Wallace-James [1904] A.C. 73 , Powell v. Streatham Manor Nursing Home [1935] A.C. 243 , Watt (or Thomas) v. Thomas [1947] A.C. 484, especially per Lord Thankerton, at pp. 487–488, and Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370 . I have found particularly helpful the statement made by Lord Macmillan in Powell v. Streatham Manor Nursing Home, when he said, [1935] A.C. 243 , 256:

“Where, however, as in the present instance, the question is one of credibility, where either story told in the witness box may be true, where the probabilities and possibilities are evenly balanced and where the personal motives and interests of the parties cannot but affect their testimony, this House has always been reluctant to differ from the judge who has seen and heard the witnesses, unless it can be clearly shown that he has fallen into error.”

I respectfully agree with Browne L.J. when he said in In re F. (A Minor) (Wardship: Appeal) [1976] Fam. 238 , 259, that in his experience it was difficult to decide from seeing and hearing witnesses whether or not they are speaking the truth at the moment. That has been my own experience as a judge of first instance. And especially if both principal witnesses show themselves to be unreliable, it is safer for a judge, before forming a view as to the truth of a particular fact, to look carefully at the probabilities as they emerge from the surrounding circumstances, and to consider the personal motives and interests of the witnesses. As Lord Wright said in Powell v. Streatham Manor Nursing Home [1935] A.C. 243, 267–268:

“Yet even where the judge decides on conflicting evidence, it must not be forgotten that there may be cases in which his findings may be falsified, as for instance by some objective fact;…”

and he referred in particular to some conclusive document or documents which constitute positive evidence refuting the oral evidence of the witnesses.”

1. In this case, the judge directed himself not to rely on demeanour alone. After concluding that Patwant was a credible witness, he held:

“My impression of him is that he is an honest witness but of course before coming to any conclusions I do need to look at all the other evidence in the case and particularly the documentary evidence. To that extent I am recording here my initial observations of him in the course of him giving his evidence to the court.” (J 23)

1. The judge made the same point in relation to the credibility of Patwant’s two daughters, Dr Niki Suri (“Niki”) and Makinder:

“So far as demeanour is concerned, neither Makinder and Niki led me to believe that they were lying. I accept that is not conclusive. They were not shown in the course of cross-examination to be liars but nevertheless one does have to look at the whole of the evidence and in particular contemporaneous documentary evidence before reaching a final conclusion.” (J 26)

1. However, what may be unusual is this: the judge essentially held that the objective criteria were inconclusive. Having gone through the evidence, including such documentary evidence as there was, and the probabilities, the judge held that there were still three unexplained issues in the case and that he was therefore constrained to consider whether he could determine the issues on the basis of his findings as to demeanour and credibility. He held:

“32. I acknowledge that this is a case where there are great difficulties with regard to the differences in values between the two properties. …

34. The second issue which concerns me is the rent. I do not understand why a bank account was kept going in the name of Tony and Namita. …

35. In the end the conclusion I have reached is that I do accept the credibility – in the sense of truthfulness – of the evidence which has been given by the claimant and his daughters. There are some oddities, for example these bank accounts that I have just referred to, and I do bear in mind of course, as I have said before, the Indian culture in respect of property being owned by the family as opposed to the individual. I do understand of course that within this family and particularly between Pat and Tony that there was a close bond which one would not have expected it to be necessary to put everything in writing as to what has happened. I accept that in this case. I can see, although it may be speculative to say so, that Tony may have had reasons for not being open with his wife about some of his financial transactions in order to preserve his own personal prestige towards her. It is very unfortunate that this was not cleared up before he died but I do understand that there is a level of trust.

36. Having accepted the truthfulness of that evidence then it seems to me that at least at the beginning of the year 2000 and at the celebrations in Nakuru there was an agreement between Tony on the one hand and Patwant on the other that the Rectory Gardens property would be owned by Patwant and the Nakuru property would be owned by Tony as soon as the necessary documents were signed. Indeed, the document required for Nakuru was signed before Patwant left Kenya that time. Therefore there is detriment to him as a result of the agreement being partially carried into effect and I think he is entitled to a declaration that he is the owner of number 9, Rectory Gardens, Wollaton. “

1. So, while the judge directed himself that he should not rely on credibility alone, but should cross-check what was said against other more objective evidence, he ultimately found himself unable to do that. He used his findings on demeanour and credibility to decide the case. We have not been taken to any authority which prevents the judge from taking this course and requires him to hold that the case was not proved, which would in this case mean that Patwant’s claim failed as he had the burden of proof. A person’s behaviour as a witness is undoubtedly evidence of a particular kind. In the absence of any relevant authority to the contrary, in my judgment, it must follow that in the circumstances which I have just described the demeanour of a witness can be probative and resolve an uncertainty or conflict in the evidence. There is no reason why, as here, this should not apply to the central issue in the case.

THE APPELLATE APPROACH

Appellate approach

1. It is common ground that, on an appeal against a judge’s findings of fact, the appellant has in general to show that the judge was plainly wrong. It is well established that, where a finding turns on the judge’s assessment of the credibility of a witness, an appellate court will take into account that the judge had the advantage of seeing the witnesses give their oral evidence which is not available to the appellate court. It is, therefore, rare for an appellate court to overturn a judge’s finding as to a person’s credibility. Likewise, where any finding involves an evaluation of facts, an appellate court will not interfere with a finding made by the judge unless the judge’s conclusion is “outside the bounds within which reasonable disagreement is possible”. Where, however, the finding turns on matters on which the appellate court is in the same position as the judge, the appellate court in general must make up its own mind as to the correctness of the judge’s finding (see Datec Electronic Holdings v United Parcels Service [2007] 1 WLR 1325 at [46] per Lord Mance).
2. In this case, the appellant makes a number of challenges: he contends that the judge failed to draw certain inferences from the primary facts, that, in other respects, he drew the wrong inferences and that in drawing or not drawing inferences the judge attached the wrong weight to various matters. In my judgment, where the challenge is to an inference not drawn, or drawn, by the judge from other facts the principles are as set out above. The appellant has to show that the failure to draw the inference, or as the case may be the making of the inference, was plainly wrong. The respect which, as I have just explained, an appellate court accords to primary facts based on oral evidence, and to an evaluation of facts made by the judge, applies also to inferences drawn from such facts or evaluation. Putting the matter another way, in those circumstances, the appellant will in general have to show that the inference, which he contends should have been drawn, was one that should inevitably have been drawn, so as to entitle the appellate court to interfere. In addition, it follows from the fact that the appellate court must be satisfied that the judge is wrong that it is not enough merely to disagree with the weight which, when drawing or deciding not to draw inferences, the judge has given to some factors over others.
3. Further, it is in general not enough on an appeal from a judge’s findings of fact to point to the fact that there are additional findings that the judge could have made. The judge is not bound to make findings on every matter in issue in the trial. In general a judge is only obliged to make findings on key matters though in some cases it may also be appropriate to make findings on an alternative basis in case the judgment is overturned on appeal. This principle is relevant because in this case there are factual issues on which the judge did not make findings, such as the issue whether Patwant had made more than one loan of £30,000 to Tony. It is obvious that a judge could be criticised for causing excessive cost if he seeks to investigate every matter that was raised in the trial, even if it is not necessary to do so for the purposes of his decision.

CONCLUSION: THE APPEAL WAS REFUSED

The Court also reproduced, as part of its judgment, part of the supplementary judgment of the trial judge where clear findings were made as to which witnesses were believed.

SUPPLEMENTAL JUDGMENT OF HHJ ELLY

“5. The case concerned the ownership of a property in Woollaton. The property is registered in the name of Sandy Pyara Singh Suri deceased. The Claimant’s case is that it was owned by him. The circumstances were by sale with the consideration in part being the remission of a loan and by a later agreement partly by way of exchange of a share of a property owned by the Claimant in Kenya.

6. The agreement, or more accurately sequence of agreements, was oral. There was some evidence in documents which supported the agreement at least in part. There were other documents that the defendant submitted pointed to there being no agreement in the terms alleged by the Claimant. There were two parties to the agreement, the Claimant and the deceased.

7. Apart from the Claimant’s evidence, I had evidence from his daughter Niki that she was present at a conversation between the Claimant and the deceased to the final part of the agreement when the Claimant agreed to transfer to the deceased his share of the property in Kenya, which was then owned by the Claimant and his brother Pyara, who was the father of the deceased. Pyara is also now deceased.

8. Pyara had made known his intention to transfer his share of the Kenyan property to another son, a brother of the deceased. The [deceased] was at the time of the conversation witnessed by Niki living in the Kenyan property with his wife and family. His father also lived there, but the son who inherited Pyara’s share, then lived in the USA. Subsequently the deceased purchased that share from his brother.

9. The Wollaton property had been purchased by Pyara and put into his son the deceased’s name. Neither father nor son had lived in the property, and all the arrangements for the purchase and later letting of the property were handled by the Claimant and his daughter Makinder, the Part 20 Defendant.

10. Whilst the Defendant could point to a number of discrepancies in the documents, which could lead to the conclusion that the agreement pleaded by the Claimant was not reached, such a conclusion would have required me to reject the evidence of the Claimant and his daughter Niki. Moreover I would have had to find that it was a lie. There was no room for a finding that they were mistaken.

11. I heard the evidence of the Claimant and his daughters Niki and Makinder. I found their evidence credible and I believed it. I have considered the points raised by the Defendant in the further submissions. In the light of the criticisms of the evidence made in those submissions I have reconsidered my findings. Having done so I remain of the view I gave in the oral Judgement; that the Claimant’s and his daughters’ evidence was truthful.

12. Having accepted that evidence and, as stated above, bearing in mind this was not a case where on that facts one could find that he was honest but mistaken, my conclusion that there was an agreement or series of agreements as a result of which the deceased had agreed to transfer his interest in the Woollaton property to the Claimant stands.

13. Although the submission suggested that a number of matters were not addressed in the Judgment, I have recently re-read it for the purposes of approving the transcript. The arguments put to me in opposition to the claim are set out. But in the end my view was that none of these was conclusive, and although they supported the defendant’s case, they do not outweigh my assessment of the evidence of claimant and of his witnesses.

14. Having heard and seen them I believe their evidence and, as I say above, this was not a case where they may have been mistaken. It was put clearly by the defendant that they were lying. My judgment is that they were telling the truth.”

 RELATED POSTS

This issue is also discussed in a number of other posts.

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?

5. Assessing the reliability of witnesses: How does the judge decide?

6. Which witness is going to be believed? A High Court decision on credibility