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.
