Day 311 - 06 Dec 96 - Page 21


     
     1   MR. RAMPTON:  No, none at all.  Well, it is one of those case in
     2        which secondary evidence is the best evidence.
     3
     4   MR. JUSTICE BELL:  Because the original, even supposing that it
     5        is in the solicitors' office or had been kept by them, can
     6        no longer be identified so that one can produce it?
     7
     8   MR. RAMPTON:  That is right.  I mean, let us assume, which is
     9        reasonable to assume, and I know Mrs. Brinley-Codd will not
    10        mind my saying this, that either the inquiry agents or the
    11        solicitors, or both, made a bit of a pig's ear of it and
    12        did not, as they should have done, attach each leaflet as
    13        it was collected to the report or to the notes of the
    14        interview with Mr. Carroll or Mr. Nicholson.  If a witness
    15        in the witness box says, "I do not know that that actual,
    16        physical object was one of the copies that we collected on
    17        that date, or whatever would be sent to our employers, but
    18        I am certain that it was a document identical to that that
    19        I collected, or that I saw being distributed", then it is
    20        necessarily secondary evidence, but it is the best evidence
    21        because the actual document which was collected or which
    22        was handed out has been lost, effectively, for evidential
    23        purposes.  It may very well be that the document that
    24        I showed one or other witness was the actual document, but
    25        your Lordship has no basis for drawing that conclusion.
    26
    27   MR. JUSTICE BELL:  Yes.  So, at the end of the day, if you are
    28        right about that, it is not a question of admissibility it
    29        is a question of weight in asking whether one can be
    30        confident it was actually like that?
    31
    32   MR. RAMPTON:  Exactly, and if your Lordship thought on the
    33        balance of probabilities that it was the case, that that
    34        was the leaflet, not the particular object but that leaflet
    35        was the one they saw being handed up and which Mr.
    36        Nicholson collected from one of the demonstrators, and it
    37        was that leaflet which the inquiry agents remembered from
    38        their time at London Greenpeace, then that would be the end
    39        of it.
    40
    41   MR. JUSTICE BELL: Yes.  Then the next question is-----
    42
    43   MR. MORRIS:  Can I say, we are all making legal submissions on
    44        this, that secondary evidence is prima facie inadmissible.
    45
    46   MR. JUSTICE BELL:  Yes.  You have heard what Mr. Rampton said
    47        about that.  He said it is, in fact, the best evidence and
    48        therefore not secondary evidence.  Well, secondary evidence
    49        in this case is the best evidence because they cannot
    50        identify just which document was the one in question and 
    51        therefore that cannot be produced by the witness, so you 
    52        can deal with that if you wish in due course. 
    53
    54   MR. RAMPTON:  My Lord, if I may illustrate it so the Defendants'
    55        legal advisers can grapple with it, it is a bit like
    56        Mr. Carroll's photograph of the box in the
    57        London Greenpeace office.  That is secondary evidence.
    58
    59   MR. JUSTICE BELL:  Yes.
    60

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