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
