(1983)1983 January 28 [HADJIANASTASSIOU, LORIS, PIKIS, JJ.] ANDREAS ANASTASSIOU AND ANOTHER, Appellants-Defendants. GEORGHIOS CHR. MOUYIA, Respondent-Plaintiff. (Civil Appeal No. 6255)., £\iclence—Witness—Refreshing memory from written record—And production in evidence of such record—Principlesapplicable—• Use that can be made of the document by the Court. Jn thecourse ofthetrial ofa claim for £1,992.810 mils forthe supply of goods the respondent-plaintiff referred, by way of 5 jefreshing his memory, to certain notes which he made in loose pieces of paper and in which he had recorded, simultaneously with thesupply ofthegoods,thegoods supplied andtheir value. These noteswereadmitted inevidence buta perusal ofthe record showed that the respondent had an accurate recollection of the 10 facts stated therein. Counsel for the appellant contended that these notes were wrongly admitted in evidence, an error that crept into the judgment of the Court, leading to a misdirection, in that itwas treated as mdependenl evidence tending to establish the claim of the respondent. 15 Held, that a witness may refresh his memory from a record kept, purporting to record events that take place, provided the record is made contemporaneously with the event; that what is contemporaneous, isa matter of fact and degree; that a note 20 made contemporaneously with the event is not evidence perse, i.e. it cannot be relied upon as evidence ofthefacts stated therein; that itsuseis limited to refreshing the memory ofa witness in order to ensure that the contest between theparties is oneof truth and not memory; that the document relied upon for the 25 14 I C.L.R. 5 10 15 Anastassicju and Another v. Mouyi'a refreshment oi''memory maybe produced in evidence in order to disclose the premises upon which memory is refreshed and afford an opportunity to the other side to cross-examine the witness with regard to that part of the document relied upon exclusively for the refreshment of memory; that therefore. thetrial Court wasnotwronginacceptingtheproduction ofthe document inevidence, though it should have been made explicit that itscontent wasnot admitted in anyderivative sense; that contrary to the submission of counsel, the trial Court drew no inferences from the contents of the document as such and relied upon it exclusively as a means of checking the accuracy of the evidence of the respondent, evidence that was accepted as truthful and reliable; that there wasno misdirection whatever, in this or any other legard; and that consequently the appeal must fail. Appealdismb.tid Cases referred to; Senat v. Senat [1965] P. 117-177: ilalliday v. Holgate, 17 L.T. 18. 20 Appeal. Appeal by defendants against the judgment of the District Courl of Nicosia (Papadopoulos, P.D.C.) dated the 7th March, 1981 (Action No. 4725/76) whereby they were adjudged topay to plaintiff the sum of £1,992.810 mils balance due for goods 25 sold and delivered. E. Lemonaris, for the appellants. X. Syllouris, for the respondent. HADJIANASTASSIOU J.; Having heard counsel for the appellants, we consider it unnecessary to call upon counsel for the 30 respondent to address us on the issues raised in this appeal. Mr. Justice Pikis will give our reasons for the decision. PIKIS J.: This appeal was taken against a judgment of the District Court of Nicosia, upholding a claim of the respondent, a trader in animal feeds, for therecovery of a sumof £1,992.810 35 mils, from the appellants, husband and wife, owning a farm in partnership. The appellants disputed being partners in the running of the farm and,maintained that only the husband. appellant 1,wasresponsible for the management ofthe business 15 I'ikis .1. Anaslassiou and Another v. Mouyia
(1983)that belonged to him. There was a denial of any indebtedness to the respondent although it was agreed that appellant 1 was in account with the respondent over a long period of time. Far from acknowledging liability, appellant 1 maintained before the trial Court, that he overpaid the respondent owing to a 5 mistake, by an amount of £91.785 mils in respect of which they raised a counterclaim. Bytheir appeal, the appellants disputed the factual substratum of the judgment and maintained that the findings of the Court were at variance with the weight of the evidence. Also they 10 contested a finding that appellant 2was the partner of appellant !. contending there was no partnership between the two and no liability on her part to make good any debt owing to the respondent. By a notice of supplementary grounds of appeal, ••hey challenged the validity of the judgment on a ground not 15 specifically raised to start with, relating to the admissibility of a document, notably exhibit 6, consisting of notes made b> '.he respondent, received in evidence, to record details of the \aluc of goods supplied to the appellants over a period of '.ir,e. Counsel for the appellants abandoned every ground 20 of appeal but for the last mentioned, wisely in our judgment, in view of the existence of overwhelming evidence establishing the exis'ence of a partnership between the appellants. Moreover, the remaining findings of the Court, far from going against the weight of the evidence, they appear to reflect such weight. 25 The parties had a successful business relationship over a period of time. After a period of years, the respondent noticed delays in the discharge of themonetary obligations of the appellants and insisted on payments being made coincident with the supply of animal feeds for the livestock of the appellants. 30 Appellants were not apparently in a position, after 1974, to meet their obligations in time. Respondent thereupon made a practice of recording, simultaneously with the supply of goods to the appellants, in loose pieces of paper, the goods supplied and their value. The indebtedness of the appellants 35 rose to £1,992.810 mils, a sum demanded from the appellants prior to the institution of this action. The lack of any favourable response, led to the institution of the present proceedings. - In the course of his evidence, the respondent referred to these 16 I C.L.R. An?s(assiou and Another v. Mouyia Pikis .). notes by way of refreshing his memory, although it appears from a perusal of' he record that he had an accurate recollection of the facts noted therein. The notes were admitted in evidence. notwithstanding the objection of counsel for the appellant* 5 and. were made an exhibit in the proceedings. The submission of counsel for the appellants is that these notes were wrongly admitted in evidence, an error that crept into the judgment of the Court, leading to a misdirection, in that it was treated as independent evidence tending to establish 10 the cla;m of the respondent. A perusal of thejudgment of the Court reveals that LiteJudge confined the use of this evidence to its value, as an aid for the refreshment of the memory of the respondent and nothing more. The learned trial Judge was particularly well impressed by the 15 demeanour of the respondent and his thorough recollection of the events, so much so that he felt no uncertainty whatcvei in relying onhisevidence as a true reconstruction of the material facts of the case. Counsel for the appellants made extensive reference to Phipson on Evidence, Wth ed., on the subject 20 of the refreshment of a witness' recollection from written records. made contemporaneously with the event (paras. 152S et seq.) and, drew our attention to the decision of Sir Jocelyn Simon. P., as he then was, in Senat v. Senat [1965] P., pp. 172-177. on the legitimate use that may be made of a document relied 25 upon for the refreshment of a witness' recollection. The relevant principles may be briefly summarised as follows: A witness may refresh his memory from a record kept, purporting to record events that take place, provided the recoid is made contemporaneously with the event. What is 30 contemporaneous, isamatter offact and degree. Its application need not be debated here for the respondent made the records in question immediately after the event. The element of contemporaneity is designed to eliminate the possibility of errors creeping into the record on the one hand and, the preparation 35 of records long after the event, for self-serving purposes, on the other. A note made contemporaneously with the event is not evidence per se, i.e. it cannot be relied upon as evidence of the facts stated therein. Its use is limited to refreshing the memory of a witness'in order to ensure that the contest between 17 Pikis J. Anastassiou and Another v. Mouyia
(1983)the parties is one of truth and not memory. Montague Smith, J., found the reason for the rule to be that a witness should not suffer from a mistake and should be able to explain an inconsistency. (See, Halliday v. Holgate, 17L.T. 18). A document relied upon for the refreshment of memory may be produced in evidence in order to disclose the premises upon which memory is refreshed and afford an opportunity to the other side to cross-examine the witness with regard to that part of the document relied upon exclusively for the refreshment of memory. And so long as cross-examination is confined within those limits, the document will not be held to have been adopted by the cross-examining side as evidence in the case. 5 10 Therefore, the trial Court was not wrong in accepting the production of the document in evidence, though it should have been made explicit that its content was not admitted in any 15 derivative sense. Contrary to the submission of counsel, the trial Court drew no inferences from the contents of the document as such and, relied upon it exclusively as a means of checking the accuracy of the evidence of the respondent, evidence that was accepted as tiuthful and reliable. There 20 was no misdirection whatever, in this or any other regard. Consequent!)', the appeal fails. The appeal is dismissed with costs. Appeal dismissed with costs. 18