THE PRESIDENT: It isn’t the case that the deposition was made in German, then translated into English, and then translated back into German, was it?
SIR DAVID MAXWELL-FYFE: My Lord, that is why I assume it was the original. I am sorry this was done. I haven’t got the original document in front of me but I assume that was so. I will find out in a moment for you.
THE PRESIDENT: Yes. What is the point, Dr. Siemers?
DR. SIEMERS: I believe that this sentence should be struck from the document. It does not record a fact.
THE PRESIDENT: You mean you are asking to have it struck out or...
DR. SIEMERS: Yes.
THE PRESIDENT: What do you say, Sir David?
SIR DAVID MAXWELL-FYFE: My Lord, the witness sets out fully the facts in the preceding paragraphs of the affidavit and then it is true that he introduces the sentence “By my personal opinion....” but the gist of the statement is that from these facts which I have stated the higher formations of the Navy in Kiel and in other places in Germany must have had knowledge of these terrible conditions. A man who has been working in that detachment of the German Navy and knows the communications between that detachment and the headquarters is in a position to say whether headquarters would have knowledge from the facts he has stated. His inference has a greater probative value than the inference which the Court can draw. The objection to the statement of a matter of opinion is where the witness gives his opinion on a matter on which the Court is equally capable of drawing an opinion from the same facts, but the importance of that statement is that he is saying “working in the bow and being familiar with the chain of command and communications.” I say that anyone at Kiel must have been able to learn from these facts what was going on at these places—so that is the narrow point, whether his special knowledge entitles him to express a view which the Court, without that special knowledge, would not be in a position to draw.
THE PRESIDENT: But ought he not theoretically to state all the facts; and if he does state all the facts, then the Tribunal will be in the same position as he is to form a judgment; and it is for the Tribunal to form the judgment.
SIR DAVID MAXWELL-FYFE: My Lord, that is exactly the point to which I was addressing my argument, that there is the additional fact, that because he was working there, was part of the chain of naval command and he is speaking of the knowledge of the naval command from the point of view of somebody who was working in it, and, therefore, he has on that point his opinion as to the sources of knowledge; and the necessity of constructive knowledge is an additional fact. My Lord, the state of a man’s mind and the expression of his knowledge may be a fact in certain circumstances, just as much a fact as that stated, as Lord Bowen once put it.