Day 263 - 14 Jun 96 - Page 15


     
     1        those days, and he is doing that from what he has already
     2        seen.  If, for example, there was an accident and there was
     3        something about a red car and, I do not know, 12 statements
     4        were taken, or something, and it was said in court that
     5        there was no red car mentioned in any of the statements,
     6        then you would be relying on all of those statements to
     7        show that there was no red car there.  Effectively, that is
     8        what the Plaintiffs are doing.
     9
    10   MR. JUSTICE BELL:  I am not sure it is quite that way round.
    11        What I am saying is, you, at the moment, seem to me to have
    12        a cogent argument that the way the Plaintiffs have put out
    13        their case, you can ask me to infer from the absence of any
    14        evidence that McDonald's was not mentioned and you were not
    15        a feature, by presence or being referred to, at those other
    16        meetings, or any events there may be.  It is slightly
    17        different, do not forget, because you have served witness
    18        statements, so it is fair to assume  that you are going to
    19        give evidence, though you are in no way obliged to;
    20        therefore, it is fair for me to assume that you will say --
    21        if you brought this in without notice, no one could take
    22        exception to it, I do not suppose -- "I was only at the
    23        meetings where I am reported as being."  Indeed, one of the
    24        meetings you say you were reported as being at, you were
    25        not at, a meeting or an event; and Mr. Morris makes the
    26        same point.  If you say that and the other side have not
    27        called any evidence to the contrary, then you are likely to
    28        be believed.
    29
    30   MS. STEEL:   OK.  There is another point:  on the matter of
    31        where there was a meeting which a number of agents attended
    32        and which we have only got the notes of one agent for,
    33        I spoke to another barrister this morning, and he was
    34        saying that in criminal cases, where a police officer has
    35        made a note of events at a certain time, other police
    36        officers can rely on the notes and, therefore, they are not
    37        witness specific; and, therefore, you know, we might be
    38        entitled to rely on what the notes say.
    39
    40   MR. JUSTICE BELL:  I think what counsel was probably trying to
    41        say is that where two police officers, let us say, witness
    42        one particular incident, what very often happens is that
    43        only one of them actually makes up a note, but he either
    44        does it with the other there, each aiding the other's
    45        recollection, or the note is shown to the other officer,
    46        promptly upon it being made, while all the matters are
    47        fresh in their memory, and he really, in those
    48        circumstances, should initial or sign it; but even if he
    49        does not, he may be allowed by the judge to use the other
    50        officer's notes to refresh his memory.  But, effectively, 
    51        then it is his note, because he has checked it while 
    52        everything is still fresh in his memory.  If he looked at 
    53        it four weeks later -- if he first looked at four weeks
    54        later, the judge would not allow him to use it to refresh
    55        his memory.  So, in those circumstances, it is effectively
    56        his note as well as the note of the person who actually
    57        wrote it in the notebook.
    58
    59   MS. STEEL:   Also, in those circumstances, all the notes would
    60        have to be, you know, given as material to the other side.

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