Day 157 - 18 Jul 95 - Page 31
1 considering a transcript of evidence which has been given
2 in the trial itself and which you have actually heard.
3
4 MR. MORRIS: Yes, but it is one thing to hear evidence; it is
5 another thing to record it in such a way that we are not
6 going to be disadvantaged.
7
8 MR. JUSTICE BELL: Yes, that may be but it is not a distinction
9 which would have been at all relevant to what the court was
10 deciding in deciding whether the transcript was a document
11 which could be put in under the Civil Evidence Act.
12
13 MR. MORRIS: Right. I would submit that the principle is the
14 same, although the circumstances were different, that a
15 transcript can be in certain circumstances considered to be
16 either evidence or something which would help a party to
17 advance their case or damage that of their adversary in
18 certain circumstances. I would say that because of the,
19 what you might call, unusual circumstances of this case and
20 our inability to make any kind of effective record of the
21 evidence and the already pre-existing -----
22
23 MR. JUSTICE BELL: Again I do not accept that, as I said
24 before. I accept that a transcript is a better record than
25 your note, but to say that you cannot have any effective
26 record of the evidence does seem to me, in my experience,
27 to be over stating it. You may be right that, for
28 instance, it is not accurate for me to compare my note with
29 your note because, quite apart from any experience over the
30 years I may have in taking a note, an effective note of
31 evidence, I appreciate that you have to think of the next
32 question whereas I do not. I may think of what the next
33 question could be that you might ask, but I do not have
34 responsibility for asking it, so that I can concentrate,
35 perhaps, more on my note. I have that point in mind.
36
37 You have your tape recorder. I know that you
38 cross-examined, you would say, effectively (and I am not
39 going to dispute that) witnesses who have given their
40 evidence-in-chief before you have had a transcript of their
41 evidence, because if they have given their evidence on one
42 day and then you have started to cross-examine them that
43 day, or you have cross-examined them the following day, you
44 have done so without the benefit of the transcript. I know
45 because, although I am not making a point of it, I sit here
46 and I look down at the way you are working, and I know that
47 very often when you are cross-examining you are doing so
48 off the basis of a note you have made of the evidence.
49
50 MR. MORRIS: I think we should say again the tape recording is
51 no way a substitute. For a start, it will not be
52 transcribed and, secondly, we cannot afford actually to
53 make a recording every day because we would not be able to
54 afford it, for the same reasons that we would not be able
55 to afford to buy the transcript.
56
57 MS. STEEL: Can I just say as well, I am not entirely sure that
58 everything that is being said in the court is being
59 recorded at a volume that I am going to be able to hear.
60 Obviously, I will have to listen at the end of the day
