The law on this point seems to me to be clear: The Attorney
General has the choice as to how to authenticate documents,
and authentication by means of identification of handwriting
is no less legitimate than any other means of
authentication, and the Attorney General cannot be forced to
call a witness whom he does not consider to be a desirable
or convenient or trustworthy witness. See Archbold (34th
edition), section 1125:
“Admissions or confessions to persons other than
magistrates, if in writing, are proved as any other
written instrument: R. versus Swatkins, 4 C. & P. 548.”
See Phipson, p. 538:
“The handwriting and signature of unattested
documents…may be proved by calling (1) the writer; or
(2) a witness who saw the document signed; or (3) a
witness who has acquired a knowledge of the writing…
or (4) by comparison…or (5) by experts…or (6) by
the admissions of the party against whom the document
is tendered, whether such admissions are expressly made
for the purposes of the trial or are merely of an
evidentiary nature… The above methods, being equally
admissible and equally primary, may be resorted to
indifferently – subject, of course, to observation,
should weaker proof be tendered where stronger might
have been adduced.”
See Lucas versus Williams (1892) 2 Q.B. 113, and Wright
versus Cobb, 1 T.L.R. 555.
In the latter case, Wright versus Cobb, the prosecution
wished to prove signatures on a bill by identification of
the signatories’ handwriting, but the judge ruled that the
prosecution had to call as witnesses either the signatories
themselves or a witness who saw them sign, since he
considered this to be “the best evidence,” as opposed to
identification of their handwriting, which he considered to
be “secondary evidence.” Setting aside this ruling, Lord
“Secondary evidence. Evidence of handwriting…is not
secondary evidence. It is good prima facie evidence…
The judge gave a ruling that the party himself whose
signature was in question, or someone who saw him write
it, must be called. It can only be accounted for by
the extraordinary influence of the learned counsel. It
really is not arguable that a judge can compel parties
to call such witnesses as he pleases, and in the order
which he pleases.”
Criminal Appeal 11/58 (12 Piskei Din 1905, 1921) and
Criminal Appeal 28/59 (13 Piskei Din 1205, 1209) are in my
view no authority for the argument that, in order to prove
what the Accused said in his recorded conversations with
Sassen, it is necessary to call either Sassen or another
witness who was present at the conversations. Neither of
these two judgments discussed a case where the recording was
confirmed, expressly or implicitly, by the Accused himself.
Section 37(2) of the Criminal Procedure (Trial upon
Information) Ordinance does not, in my opinion, apply to the
present case. This section lays down a particular form of
proof with regard to “a statement by an accused person.”
The three subsections of Section 37: (1) Statements made by
an accused during the preliminary enquiry and recorded by
the magistrate; (2) not made during the preliminary enquiry;
(3) before the magistrate or at the trial – show that the
Section deals with statements made by the accused at various
stages during his examination. The substance of Section
37(2) follows the same lines, particularly in its second
“If the statement has been reduced to writing and
signed or otherwise attested by the accused, the
admission shall be proved by evidence of the person who
was present at the time and heard the statement made
and saw the accused sign the admission or otherwise
attest the statement.”
This complex procedure is not the usual one, except where,
as the learned Attorney General has indicated, the police is
taking evidence in accordance with Sections 2 and 3 of the
Criminal Procedure (Evidence) Ordinance. The many forms in
which persons make their statements, whether orally or in
writing, in the ordinary ways of life or the ordinary course
of business, should not be forced into the Procrustean bed
of Section 37(2); it cannot be assumed that this was the
legislator’s intention. Section 37(2) lays down certain
forms of proof for statements made by an accused in certain
circumstances, but it cannot be interpreted as a general
rule governing and limiting the forms of proof with
reference to utterances and statements made orally or in
writing in the normal way of life, before becoming an
accused. If it is to be inferred from the Mandatory
judgment in Criminal Appeal 26/44 (Palestine Law Reports 87)
that Section 37 is of general incidence, what was actually
decided in this particular case – as well as in Criminal
Appeal 29/46 (1946 ALR 231) was that a statement by the
appellant made before he became an accused is not subject to
the provisions of the aforementioned sections. The
statements of the present Accused in his recorded
conversations with Sassen were made some years before he
became “an accused,” and were therefore not made by “an
accused” within Section 37(2).
The statements by the Accused to Sassen are admissible in
evidence even if they contain a confession or an admission
of incriminating facts within the meaning of Section 9 of
the Evidence Ordinance, since Sassen was not a person in
authority over the Accused, and his statements were made
freely and voluntarily. As for the argument of the learned
Counsel for the Defence about the “tavern atmosphere” and so
on, this does not void the Accused’s statements (see
Criminal Appeal 186/55, 11 Piskei Din 769, 772), but goes
only, insofar as it will be proved, to the adduce the weight
of the statement.
Therefore, my final conclusion is that the Attorney General
was fully entitled to submit as evidence against the Accused
the transcript of 47 tapes of his recorded conversations
with Sassen, together with the Accused’s additional comments
(T/1393), and that the Court was bound to accept the
evidence submitted in accordance with the law.
Presiding Judge: We shall now recess. After the recess the
Attorney General still has to reply on the Statement by
Steger, and then we shall begin with the cross-examination
of the Accused.
Presiding Judge: Mr. Hausner, please proceed.
Attorney General: With the Court’s permission, with
reference to the statement by Steger, as far as we could see
during the recess, this contains several declarations that
are hearsay, so that such parts of the statement are in any
case not admissible. We shall also peruse the affidavit in
greater depth, but I do not wish to oppose it at this stage
and thus delay the proceedings. I therefore agree to its
submission for this reason, and not because I agree to its
Judge Halevi: We have already heard many hearsay statements
in this trial.
Attorney General: Yes, but then there has to be special
permission given under Section 15, in order to mitigate the
rules of evidence; otherwise, in my humble opinion, Section
10 of the Evidence Ordinance will apply, which states that
judgments must not be based on inadmissible evidence. To
the extent that the rules of evidence are not relaxed,
Section 10 will still apply. I would just like to ask for a
copy. If the Court will make the document available to us
afterwards, we can have it copied.
Presiding Judge: Yes, and we would also like three extra
Judge Halevi: Mr. Hausner, I am not quite clear about this.
There are many documents which have been submitted here and
are of the same type as the Steger affidavit, although I am
not familiar with this particular document, and there has
never been an explicit decision to distinguish between the
parts that are hearsay and those which are direct testimony.
Until now, I had understood that every document submitted –
either there was no objection or there was general reliance
on Section 15, where the witness had died. If a document
was submitted, it was submitted in its entirety, whether it
was hearsay or ordinary testimony. Will you argue later in
your summing-up that for each document a distinction must be
made, as regards admissibility, between hearsay evidence and
direct evidence, or is that to be left to the discretion of
Attorney General: I do intend to argue that generally the
rules of evidence should be followed, and the rule of
hearsay is still applicable, unless the Court has deviated
from it under the powers given to it by Section 15.
However, I should like to reconsider the problem and
scrutinize all the documents to which the remarks of Your
Honour might apply, in order to avoid wholesale
disqualification of many items of evidence, possibly
including some in which we, too, are interested.
Judge Halevi: Only for the sake of clarification: If the
decisions of the Court are silent on this particular issue,
is a special decision needed, or can they be interpreted as
implying some sort of a ruling?
Attorney General: I see exactly what the problem is.
Decision No. 93
We authorize submission of the deposition of Alois Steger as
evidence in this trial. The Attorney General raises no
objection to such submission. The deposition is marked
N/99. Dr. Servatius: This is a sworn affidavit by Alois
Steger, resident at 3, rue de la Banque, Paris. The
deposition was made on 28 March 1961, before the notary
Steinbach in Cologne. Steger made two separate statements,
one of which deals with mediation regarding letters to
Theresienstadt. This is a document quoted at the end of the
Kasztner Report, where there is a copy of a letter from
Theresienstadt to a Jewish commission abroad. However, this
is not the document which interests us here.
The next document is the main one. In the third paragraph
“When the German troops occupied Hungary on 19 March
1944, I was in Budapest, where I had an apartment at
Mariengasse 5. Since my car had been confiscated
immediately, I tried to get it released. For this
purpose I was directed to Obersturmbannfuehrer Becher
who was competent for economic matters. His name was
then known to everyone and appeared on the posters
about confiscation of factories. He was the person who
decided all these things. When, after many endeavours,
I was finally admitted to see Becher, he demanded proof
that I was Aryan, and then Becher asked what I, a
Slovak, was doing in Budapest. When I told him that I
had business activities there, he said: “All right,
then get me coffee or caffeine, I need them for my
pilots.’ When I said that there wasn’t anything like
that here, and it could only be obtained in
Switzerland, he said: ‘I will release your car, but I
demand a service from you in return for that.’ He was
not prepared to listen to my objection that there
really was not anything I could do to help in this
The statement goes on to discuss the events which led to the
emigration of 318 persons from the Manfred Weiss Works, how
he was involved in that, and then, at the bottom of page 3,
it says that the transports were not getting through to
“…as far as I know, Saly Mayer in Switzerland was
delaying the payments. I was told this by Jewish
circles of my acquaintance. It was then that Dr.
Kasztner came to me in desperation and said that Becher
does not want to help any more, he considers himself as
having been let down vis-a-vis Himmler. The transport
already referred to, for which I supplied the goods,
was then only just carried out with difficulty.”
I do not need to read any more of the text, but I am
referring to it.
Judge Halevi: Dr. Servatius, is there perhaps a typing
error at the bottom of page 2? There it says 2,000 dollars,
while on page 3 at the top it says 1,000 dollars; but that
should be less than 1,000 dollars, should it not – should it
not be 200 dollars?
Dr. Servatius: Well, it is not particularly clear what the
situation was. I did ask the witness Steger about it once.
The idea was as follows – it was worded here to the
contrary: “Becher demanded 2,000, Eichmann said 100 or 200,
I am not quite sure now which, and then Himmler said that
was ridiculous, it should be at least 1,000”; it is not
expressed clearly here, apparently what he said was not
understood clearly. It is made clear by what is stated
later on, that Eichmann arranges it for a smaller amount.
Presiding Judge: You must now answer the questions of the
Accused: Yes, Your Honour.
Q. During your interrogation by the police you said, at the
end of your first Statement: “I know that I shall be found
guilty of being an accomplice to murder. It is clear to me
that I may expect the death penalty. I do not ask for
mercy, for I do not deserve it.” You said that you were
willing to hang yourself in order to atone for the horrible
crimes that occurred. So it says on page 361 of your
Statement. Are you prepared to repeat this here, in the
A. I stand by these words in my Statement, and this
morning, in reply to the concluding question of Counsel for
the Defence, I repeated them and did not go back on them
under examination as a witness.
Q. You do admit, therefore, that you were an accomplice to
the murder of millions of Jews?
A. No, that I cannot admit. From the human – let me say
from the point of view of human guilt, a question which I
have to judge in a much graver manner, because in this
respect I must sit in judgment with myself – in this respect
I must admit that I have played my part, though under
orders. From the legal point of view, as a recipient of
orders, I had no choice but to carry out the orders I
received. How far the fact that I had to carry out part of
the deportations and that the Jews who were thus deported
found their death, how far I am legally guilty is a question
which, in my opinion, should be left until the question of
responsibility has been examined.
Presiding Judge: You may sit down during the translation.
Attorney General: The Accused was asked a question and he
must answer it. I shall not interrupt him. But he must not
give replies in the form of lectures, but answer my
questions briefly with yes or no. If necessary, he may
offer his explanations later.
My question is not juridical. Do you consider yourself
guilty of being an accomplice to the murder of millions of
Jews – yes or no?
Accused: Guilty from the human point of view, because I
am guilty of having carried out the deportations.
Q. Very well. Towards the end of the War you told several
persons, as you said yourself this morning, that you would
gladly jump into your grave in the knowledge that five
million people had died together with you. You said that
your expression was “five million enemies of the Reich.”
But during your interrogation by the police you said, in the
same context, on page 308, that you had told your people:
“Millions of Germans died in the War, millions of enemies
also perished, and according to my estimation five million
Jews also perished in this War.” Both statements are thus
correct. And you said that you would gladly jump into your
grave in the knowledge that the War had taken the lives of
five million Jewish enemies of the Reich.
A. No, I did not say that – five million Jewish enemies of
the Reich. As enemies of the Reich we regarded at the time
those enemies who stood at the gates of the last bulwark of
the Reich’s capital, and it was under the impact of this
fact that I made my statement. This statement had nothing
to do with Jews.
Presiding Judge: Please, let him have his Statement. Read
your words as they were recorded at the time.
Accused: Yes, that is – let me say – a summary, and it is
correct; a summing up of all the victims of this War, an
estimation, and in the knowledge that at that very moment
the last bulwark was threatened I made this statement, but I
absolutely deny that even in my mind I referred to Jews,
because at that time…
Q. I don’t want to hear any “because,” I want an answer.
Did you say that five million Jews died during the War and
that you would gladly jump into your grave because of that?
A. No, not because of that would I have jumped gladly into
my grave; that is a wrong interpretation of my words.
Q. Did you not regard the Jews as enemies and adversaries
of the Reich?
A. During the War, after the declaration of War and
following the statement of Dr. Chaim Weizmann, the leader of
the Zionists, I regarded the Jews as enemies of Germany,
Q. Without “but,” I want an answer! That will do for me.
Presiding Judge: If he wishes to complete his answer I think
you should allow him to do so.
Attorney General: If the Court so wishes.
Dr. Servatius: Your Honour, would it be possible for the
Accused to complete this answer. He must answer the
questions clearly and briefly, but he should be given the
opportunity to add some explanation.
Presiding Judge: I have already remarked on that, Dr.
Please complete your reply.
Accused: But I did not regard them as enemies of the
Reich in the sense I used this expression then, in the last
phase of the War. For during this final phase, the
advancing Red Army and the North American bomber planes were
in my opinion the enemies of the Reich. Not the Jews.