Kapelis- The Hatmaker

by Andreas Kappa

  The respondents had wind in their sails and believed their defences were growing stronger by the day. On the strength of this belief, no further offers were put by them to Andrew.

  Andrew and Hans were concerned.

  Andreas was loving it. ‘What is next?’ he asked his grandson, who was worried.

  Andrew said, ‘We will call all our other factual and expert witnesses and close our case.’

  Andreas said, ‘Excellent. If they call any witnesses at all—I doubt the former king will give evidence.’

  The other witnesses were called, including the doctors, and all the other witnesses were cross-examined. Several reports and documents were tendered in the complainant’s case.

  Andrew advised the judge and jury that his case was now closed with the exception to his entitlement to call evidence in reply.

  Wagstaff, QC, then proceeded to open his case. He outlined how the burden of proof always remains with the complainant to prove his case on the balance of probabilities and that the respondent king did not have to prove anything.

  He made it clear that, on all the evidence that will be heard, the complainant would not make out his case against the former king for a number of legal and factual reasons he set out to the jury.

  The former king then appeared in the back of the court. He was dressed in the finest suit from Italy woven in the best cloth, hair in a coiffure, and with beautiful and shiny black shoes, a blood-red tie, and a hanky in his front suit pocket.

  He was perfectly playing the part of royalty.

  He walked past Andreas, who was in pants, a shirt, simple worn-out shoes, an old jacket, and his walking stick.

  This juxtaposition was patent to all in the courtroom. It was like night and day.

  Wagstaff, QC, then called all his witnesses to disprove the complainant’s case that there was no knowledge of the orders-in-council or that the orders-in-council did not exist and were a figment of Andreas’s aging imagination to make money from the case.

  The former king entered the witness box, was sworn, and then gave evidence. His evidence in chief was one of denial and lack of knowledge as to what happened in 1947 and what his father did or did not do. As to leaving the country in 1967 during the coup, he said he was in fear of his life and the life of his family.

  He was cross-examined by Andrew at length. During one part of his cross-examination, the exchange was as follows.

  Andrew said, ‘Assuming that the order-in-council did exist and were signed and ratified by your father, would you regard it as lawful?’

  He answered the question over objection as follows. ‘No.’

  ‘The interference by the king or the state on judicial officers performing their duty would be beyond power and an anathema.’

  He answered over more vigorous objections, ‘Yes.’

  ‘The king’s seal and his signature on a document are only valid if approved by parliament and the relevant minister.’

  There were objections once more.

  He said, ‘That is correct.’

  ‘You would, of course, recognize the royal seal and your father’s signature if you saw it.’

  He agreed. He also agreed that only the king would have the exclusive possession of the seal.

  The final series of questions were ‘According to your evidence, you were in fear of your life during the coup. What about the lives of your six million subjects in Greece? Did they matter?’

  There were objections again as to the relevance of the question.

  The king could only say, ‘Yes, they did.’

  Andrew then said, ‘Faced with internal conflict in Greece you thought it appropriate to leave your country as a king, and you fled your country and have lived in London since that time.’

  The king said, ‘Yes.’

  It was an answer that everyone in the court thought was weedy.

  Andrew then made a call for production of the orders-in-council so he could tell the jury it should have been produced from other judicial officers at the time and neither the state or the king could produce it.

  After two days, the cross-examination concluded.

  Witnesses—including bureaucrats, administrators, medical evidence, and other witnesses—gave evidence in the king’s case, and other documents were tendered.

  Andrew cross-examined all the witnesses in the king’s case.

  Cox, QC, opened his case in a similar manner to Wagstaff’s opening and made a point that as the government, the state’s hands were tied as to the conduct of the previous king and the military junta that imposed martial law.

  He said the state should not be found liable for these actions, being actions of others interfering in due process.

  In a way, the opening of Cox, QC, was a cutthroat defence, blaming the king during 1947, and the monarch thereafter.

  Behind the scenes, Wagstaff and Cox had agreed to this defence, as it was a cunning way tactically to free the state of liability and then the king to say why he should be liable for the political upheaval in Greece.

  Also, there was an agreement between them that if one was found liable, there would be a contribution for any verdict of money of one-third the state and two-thirds the king.

  Cox, QC, called his witnesses, who were mainly bureaucrats, administrators, professors of Greek constitution law, historical experts, and medical evidence. Andrew cross-examined all the witnesses.

  It was now week 7, and the cases for the complainant and the two respondents had now been concluded.

  The judge asked Andrew, ‘Do you have any evidence in reply so we can start the final addresses to the jury?’

  It was 3:30 p.m.

  Andrew said to the judge, ‘It is 3:30 p.m. May we please adjourn? I will consider my position overnight.’

  All the respondents and the judge agreed after a gruelling seven-week trial.

  They returned to the hotel. The men agreed to meet for dinner.

  Andreas said, ‘Someone will be joining us, so book for four.’

  Andrew was puzzled about who the mystery guest would be. The men all arrived at the table for dinner and, to the utter surprise of Andrew and Hans, it was Aspros.

  Andrew said, ‘But he has given his evidence. You can’t call him again.’

  Andreas said, ‘Did Wagstaff call me a liar about everything but focused more on me lying about the orders-in-council?’

  Andrew said, ‘Yes, Papou.’

  Andreas said, ‘Then call Aspros, and I will tell you what to do to re-establish my credibility. Isn’t that the law? It was when I was a lawyer.’

  Andrew agreed with the old man that it was the law.

  Even Aspros did not know what he was talking about or why he was there, but he trusted Andreas as he always did.

  Andreas’s last words to his grandson before he retired for the evening were these ‘Grandson, please read the Ancient Greek Laws of Athens – critical court documents to prove a party’s case, were sealed before a civil trial commenced in Ancient Athens and placed in the ‘echinos’ (a clay jar) to preserve the integrity of the evidence.”

  Andreas then laughed at the men and went to bed.

  Once more, Andrew was left puzzled at the old man’s comments and impressed by his grandfather’s knowledge of the law.

  The next day, Andrew announced that he was re-calling Aspros as a witness in the case in reply. There were objections that, whatever evidence there from Aspros, that evidence should have been led in chief.

  The judge enquired why this was not done. He said he was instructed to call the witness again.

  The judge said she would see where this evidence was going and then intervene if it was unfair to the respondents.

  The judge said, ‘Please proceed, Mr Kape.’

  Aspros was sworn again and entered the witness box, holding his cap. Andrew
was handed a series of questions drafted by Andreas.

  Andrew said, ‘Your Honour, I have been handed a series of questions the complainant wishes me to ask the witness, so it is all new to me.’

  There was a cacophony of objections from the counsel for the respondents.

  Further, the respondents’ counsel made barbed remarks that Andrew should know his case by now to belittle his competence before the jury.

  ‘Proceed,’ said the judge.

  Andrew then asked the questions.

  ‘Do you have a cap with you?’

  ‘How is this relevant?’ said Wagstaff, jumping up and down.

  ‘We will find out,’ said the judge, ruling against his objection.

  ‘Yes,’ said Aspros.

  ‘I maintain my objection,’ said Wagstaff, with Cox joining in.

  The judge said, ‘I note your objections, and I also note you object to all this evidence. There is no need to object again. I will rule on it.’

  Andrew continued, ‘Who made the cap?’

  Aspros said, ‘Andreas.’

  Andrew said, ‘When?’

  Aspros said, ‘Before my trial in 1947.’

  The jury and the judge were now very interested in the evidence.

  Andrew said, ‘You have kept that cap for all that time?’

  Aspros said, ‘Yes, because I swore to Andreas that it would never leave my side.’

  Andrew said, ‘Has it ever left your possession?’

  Aspros said, ‘No, never.’

  Andrew said, ‘Could I please hand to you a pair of scissors?’

  There was objection again, which was overruled. The jury was watching carefully what was going on.

  Andrew said, ‘Could you please use the scissors to carefully cut open the top of the cap?’

  Aspros did what he was told. When he had removed the top of the fabric cap, there was a piece of leather that was almost worn out.

  Andrew said, ‘Could you please remove the leather and unwrap it?’

  He did so.

  Andrew said: ‘Is there anything inside the leather?’

  Aspros said, ‘Yes.’

  Andrew said, ‘Could you please show it to me?’

  Aspros said, ‘Yes, of course’.

  Andrew said, ‘Did you know what the document is in the cap as you sit there giving your evidence?’

  Aspros said, ‘Never. And anyway, I would not know what it said because I cannot read or write.’

  It was an innocent but truthful answer by the witness.

  Once Andrew had carefully inspected and read the document, he said to the judge, ‘I tender the document as relevant to this case.’

  The document was then handed to counsel for both respondents, who were left speechless. The document was the original orders-in-council signed and sealed by King Paul of Greece in 1947.

  The former king looked mortified. He was handed the document by his counsel and then read the document carefully. He inaudibly told his counsel it was genuine.

  After inspecting the document, the counsel for the former king and the state, aided by their clients to interpret the document, handed the document to the judge.

  The judge said, ‘Is there an objection for this document to be tendered into evidence?’

  There was a litany of objections, including being caught by surprise, incurable prejudice in the proceedings and admissibility.

  The judge asked, ‘Is it authentic? You have your client there. He could vouch for the authenticity of his father’s signature and the seal without the need to call further evidence.’

  Wagstaff reluctantly said, ‘I am instructed by my client that it is authentic. Thank you. We have no reason to re-call my client to give evidence.’

  The judge said, ‘Well, you called him a liar. This may prove he is not and will re-establish his credibility as a witness if the jury finds the complainant’s truthfulness is a fact in issue. The document will now be evidence in this trial. This old man has only one chance in his lifetime to prove his case. My ruling is that I am exercising my discretion to admit these orders-in-council into evidence’

  The judge marked the orders-in-council as an exhibit.

  There was deafening silence in the courtroom for minutes.

  After she marked the document as an exhibit, she asked the interpreter to read it out to her and the jury from the Greek language into English and requested a translator to provide a certified translation of the document into English for the next day.

  All this was done.

  It was apparent to all that Wagstaff was like a wet cat and was now eating humble pie. Cox was whiter than his normal pale colour and was silent.

  The respondents’ counsel asked for an immediate adjournment until the following day so they could get instructions on this recent evidence.

  The jury was captivated and astonished by the document that was in the cap for almost fifty years.

  The jury was provided with the original documents to await the translation. The jury was then excused for the day, and counsel left the courtroom.

  Both Wagstaff and Cox agreed that it was impossible to cross-examine Aspros on that evidence and it would be dangerous to do so in front of the jury.

  It was midday, and an earlier adjournment than usual was called.

  All the lawyers for the former king and the state’s lawyers gathered into a huge conference room to discuss what had happened.

  Andrew, Hans, Aspros, and Andreas all went back to hotel. The men booked a small conference room to talk about the day’s events.

  Andrew said, ‘Papou, you truly are an amazing man. You are full of surprises.’

  Hans had a nervous laugh like he was in shock.

  Aspros said, ‘I love your grandfather, and God will right the wrongs after all this time.’

  Andreas said, ‘You watch now, my boys. They will ring us with a huge settlement offer. Fuck them. Let the jury decide.’

  This was the first time that Andrew heard his grandfather swear.

  Andrew said, ‘Whatever you want, Grandfather, I will do. God bless you, old fox.’

  The men all laughed.

  At about 5 p.m. that afternoon, Wagstaff rang Andrew in his room.

  Wagstaff’s voice was cracking and no longer confident. He said, ‘Can we please try to settle this case? I know you did not know about the cap. I saw that your face was in as much shock as ours.’

  Andrew said, ‘I will try. Do you have another offer?’

  Wagstaff said, ‘Yes, I do. The combined offer is 60 million euros. Please get back to me.’

  Andrew assured him that he would get back to him.

  Andrew said to his grandfather, ‘They have offered 60 million euros. Papou, it is a matter for you.’

  Andreas said, ‘I like these jurors. Let them decide what I am worth. Don’t let them know we have rejected their offer until 9:45 a.m. tomorrow. I want them to shit potatoes overnight’

  Andrew tossed and turned all night, anxious about the offer being rejected.

  Wagstaff and Cox also had a difficult night. Both had their clients with them, and everyone was nervous in their respective camps. The men went to their respective rooms for the night.

  The next day, Andrew approached both counsel and said, ‘Offer rejected.’

  Wagstaff and Cox were both highly agitated. They were both worried what the jury might do.

  As the evidence had finished, all parties were now to give their final address to the jury.

  As was customary in common law trials, the second respondent addressed first. Then the first respondent finally addressed the jury and the complainant would have the last say to the jury.

  The effect of the closing address of the second respondent was that the state did not know. And if the state did know, the king’s word
prevailed, and it was not the state’s fault.

  Cox told the jury to be measured in their assessment of damages and to be fair and reasonable. If they did find that the state was liable, the state’s share of the damages should be no more than 30 per cent of the total amount.

  It was a lame, boring closing submission by Cox, matching his personality.

  Wagstaff then delivered his closing address. It was powerful and persuasive and exposed the skill of a seasoned and highly competent common law advocate.

  Wagstaff showed inconsistencies in the factual evidence of the complainant. He suggested that the current exiled king should not be liable for his father’s conduct and the ills of his father’s decisions.

  He weaved and turned the law on its head to suggest there was no liability for his client. He put to the jury that, despite the authenticity of the document in evidence, it might have been created by a bureaucrat to embarrass the then king.

  After his careful but biased analysis of the facts favouring his client, he turned to compensation and damages. Like Cox, he told them to be fair and measured if they found his client liable. He told them that the claim for economic loss was excessive.

  He then went on to tell them with vigour that the exemplary damages, damages to make an example of his client for his conduct, should be nil. The former king’s father was to blame.

  As to punitive damages, he made it clear that his client should not be punished for the evils of his forefathers, as it would set a dangerous and ill-considered precedent.

  Then he turned to aggravated damages and told them that what happened to Andreas was unfortunate but general damages for his pain and suffering would be sufficient and to award aggravated damages would constitute double dipping in favour of Kapelis.

  He ended by saying that if his client was found liable, the fair and equitable proportion between his client and the state should be in an equal share—that is, 50 per cent for each party.

  Now it was Andrew’s turn to deliver his final address to the jury.

  Andrew commenced this way: ‘You remember almost eight weeks ago, when this trial started, I told you about this case. Nothing has really changed. You have now heard all the facts that prove the case. There were several sustained and wholesale attacks on the credibility of the witnesses in the complainant’s case that went nowhere. The facts have been proven beyond reasonable doubt, which is the criminal onus of proof, not on the lesser onus of balance of probabilities, which is the civil onus.