“SOMETIMES AN UNIMPRESSIVE WITNESS SPEAKS THE TRUTH”: FACT FINDING AND THE CIVIL COURTS: PRIVY COUNCIL OVERTURN FINDINGS OF FACT
In Cleare v The Attorney General & Ors (Bahamas)  UKPC 38 the Privy Council was scathing of the method of fact finding of the trial judge. The judge erred in failing to consider the significance of medical evidence.
” It is clear that the appellant was an extremely unimpressive witness. Sometimes, however, an unimpressive witness speaks the truth. So there is a need to consider all the other relevant evidence, perhaps particularly unchallenged expert evidence, before rejecting the evidence of an unimpressive witness”
The claimant brought an action alleging he had been assaulted by police whilst in custody. The trial judge rejected his case, finding it had been fabricated. The Court of Appeal (in the Bahamas) upheld that finding.
ON APPEAL TO THE PRIVY COUNCIL
The Privy Council noted the uphill task the claimant faced on appeal. However given the unusual method of fact finding, and important omissions, the claimant was successful on appeal.
The appellant frankly acknowledges the weight of the burden which he carries in bringing to the Board an appeal of this character. As it noted in Central Bank of Ecuador v Conticorp SA  UKPC 11, para 4, the Board “will as a matter of settled practice decline to interfere with concurrent findings of pure fact, save in very limited circumstances”. At para 5 it reminded itself of the inherent advantage enjoyed by the trial judge over courts of appeal in the determination of facts. At para 6, however, it quoted a passage in the speech of Lord Thankerton in Thomas v Thomas  AC 484 at 488 to the effect that the reasons given by the trial judge might justify a conclusion that he had not made proper use of his inherent advantage. And at para 8 the Board stressed the need for the judge to have tested the evidence against the background of the available material.
In the opinion of the Board the structure of the judge’s judgment in the present case is unorthodox. But no complaint was made about it on the appellant’s behalf in the Court of Appeal; and in its judgment, delivered by Allen P, that court made no mention of it.
The structure of the judge’s judgment was to express a conclusion that the appellant’s claims should be dismissed prior to addressing certain medical evidence upon which the appellant heavily relied.
(a) Between paras 1 and 27 of his judgment the judge recited the evidence given in relation to all the various claims by the appellant and by five of the witnesses called on behalf of the respondents, namely Police Inspector Hamilton, Police Sergeant Rahming, Police Sergeant Bowe, a man with whom the appellant had shared a cell at the police station and a former girlfriend of the appellant.
(b) Then, in para 28, the judge recorded that the appellant had called three doctors to give evidence on his behalf and at that point he correctly noted that he was required to decide the case on the entirety of the evidence before him. But that is not what he proceeded to do. For some reason he postponed consideration of the medical evidence.
(c) Instead the judge proceeded to assess the appellant’s credibility. Between paras 31 and 35 he said that he accepted “nothing” that the appellant had said as being true; that it seemed accurate to describe him as a “con artist”; and that he rejected his testimony.
(d) Thereupon the judge addressed each of the appellant’s various claims.
(e) Between paras 44 and 47 he addressed the two claims of assault. At para 46 he said that they “must fail” and that the appellant had concocted them. At para 47 the judge said:
“I would dismiss these claims. I will return to the matter of the medical evidence.”
(f) It was only from paras 68 to 88 that the judge ultimately examined the medical evidence and concluded that it was “not of much value” to the appellant.
The judge was wrong to conclude that the claims of assault should be dismissed prior to considering the medical evidence adduced in support of them. More particularly, he was wrong to reject the appellant’s evidence as untrue, indeed as fabricated, without considering it in the light of the medical evidence which was said to corroborate it. In this respect the Board refers to three authorities in the Court of Appeal of England and Wales. In Armagas Ltd v Mundogas SA (The “Ocean Frost”)  1 Lloyds Rep 1, at 57, Robert Goff LJ observed that it was of the first importance to test the veracity of a witness by reference to the facts ascertained independently of his testimony. In Mibanga v Secretary of State for the Home Department EWCA Civ 367,  INLR 377, Buxton LJ held, at para 30:
“The adjudicator’s failing was that she artificially separated the medical evidence from the rest of the evidence and reached conclusions as to credibility without reference to that medical evidence; and then, no doubt inevitably on that premise, found that the medical evidence was of no assistance to her. That was a structural failing …”
Indeed in para 32 Buxton LJ described it as an error of law or principle; see also paras 24 and 25 of the judgments. So the court ordered that the appellant’s claim for asylum be reheard. In Jakto Transport Ltd v Hall  EWCA Civ 1327 the trial judge found that the employee’s accident at work had been caused by a defective tool. The basis of the employer’s appeal was that the judge had expressed a provisional conclusion to that effect before considering the evidence of Mr Glenn, the joint expert, who was a consultant engineer. In paras 28 and 29 of her judgment, Smith LJ held:
“28. … that was an error of approach.
Where, as here, the expert evidence was relevant to the way in which the accident … might have happened, it was incumbent upon the judge to consider it at the time when he was reaching his conclusions on the credibility of the witnesses.”