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

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