Day 311 - 06 Dec 96 - Page 29


     
     1        say, but I had a vague memory of it and when the time of
     2        the cross-examination was going on I said to myself, 'Well,
     3        this is something I have to look at' and I only arrived at
     4        the clear conclusion, which the authorities directed me to,
     5        actually after that had all finished.
     6
     7   MR. JUSTICE BELL:  I tell you what my experience in these matter
     8        is.  It is this, and it is in the criminal jurisdiction:
     9        that a witness gives evidence; when being cross-examined
    10        the cross-examiner challenging his or her evidence puts to
    11        her a statement which she has made -- they used to be the
    12        old depositions, they are now the statements tendered --
    13        and cross-examining even about matters about which she has
    14        given evidence of but has not actually referred to it in
    15        her statement, or his statement, because the statements are
    16        not normally shown to witnesses in criminal cases, a
    17        fortiori if he or she is cross-examined on something else
    18        in the statement which he or she has not even referred to
    19        in her evidence, prosecuting counsel then stands up with a
    20        triumphant look on his face and says, 'Right, I want the
    21        whole of that statement in, because it has lots of goods
    22        things which my witness forget to tell the jury the first
    23        time round'.  Then out go the jury and there is an unholy
    24        row and the judge has to do what is fair.
    25
    26        Although when I first started in practice it almost went in
    27        as night follows day, as years went by some judge's,
    28        anyway, began to say, 'Well, I have a discretion in the
    29        matter and I am not going to let it happen'.
    30
    31   MR. RAMPTON:  Absolutely, that is because of the rule in Sang.
    32        The rule probably applies, though there is no clear
    33        authority, in jury cases in the civil limb of justice, on
    34        the simple ground that in those circumstances the prejudice
    35        outweighs the probative value.
    36
    37   MR. JUSTICE BELL: Do I have a discretion in this or?
    38
    39   MR. RAMPTON:  No.
    40
    41   MR. JUSTICE BELL:  So it is just a matter of weight?
    42
    43   MR. RAMPTON:  Yes.
    44
    45   MR. JUSTICE BELL:  I might think that I do not want to attach
    46        weight to something which is in a note which neither side
    47        actually asked the witness a single question about?
    48
    49   MR. RAMPTON:  You might well do, and the one-thirtheenth is the
    50        judge directing, or instructing as the Americans say, the 
    51        other twelve-thirteenths, who are the jury, who might well 
    52        say, 'Treat this with caution because it was not tested. 
    53        He was not asked about it by the Plaintiffs' counsel, and
    54        the Defendants did not ask him about it either, but if you
    55        think' -- this is, I suppose, how one would do -- 'overall
    56        that he is a reliable witness, if his notes have the ring
    57        of truth, then you may be inclined to attach some weight to
    58        what he says in the notes which were not tested'.
    59
    60        Actually, as a matter of reality, in this particular case

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