State of Brunei & Ors v HRH Prince Jefri & Ors

Where a hearsay statement is served under the Civil Evidence Act 1995, the opposing party may seek an order permitting the statement-maker to be examined and cross-examined. A possible immunity of the witness from the court’s orders does not justify refusing the order at that stage. The witness should be given the opportunity to decide whether to assert immunity in response to the order. Questions concerning the interaction between hearsay evidence, the right to confront accusers under Article Six, and committal proceedings should be determined when the committal hearing begins and the witness’s position is known.

The judgment concerned the respondent’s first application in committal proceedings. The applicants had served a hearsay statement reporting the second respondent’s evidence about an alleged conversation with the Sultan of Brunei concerning a Swiss bank account. The respondent sought an order permitting the Sultan to be cross-examined on that statement.

The application also sought consequences if the Sultan failed to attend, raising issues about immunity, the application of the Civil Evidence Act 1995 to committal proceedings, and Article Six. Those wider issues were not pressed for determination at this stage.

1. The application for an order permitting the Sultan of Brunei to be examined and cross-examined on the hearsay statement was granted. The procedure followed was the correct procedure where a hearsay statement had been served under the Civil Evidence Act 1995.
2. The possible immunity of the witness from orders of the court was not a ground for refusing to make the order. The court should not pre-judge whether the witness would assert immunity or waive it. The witness was entitled to decide how to respond after being informed of the order.
3. The respondent’s proposed order requiring consequences if the witness did not attend was not determined. The respondent did not press that issue at this stage, and it was adjourned to the hearing of the committal application.
4. The potential conflict between the application of the Civil Evidence Act 1995 to committal proceedings and the respondent’s Article Six right to confront accusers by live evidence was left for decision when the committal hearing commenced and the witness’s attendance position was known.