Day 311 - 06 Dec 96 - Page 23


     
     1
     2   MR. RAMPTON:  Even if they have no recollection at all.
     3
     4   MR. JUSTICE BELL:  Yes, and that is what refreshing one's memory
     5        actually means although that is not what is happening at
     6        all, but that is what is all that is meant, and that is
     7        what is said in Lord Talbot v Malehide.
     8
     9   MR. RAMPTON:  Lord Goddard's words in Grant v Dickson are very
    10        expressive in practicalities.
    11
    12   MR. JUSTICE BELL: It has happening all over the country at this
    13        very minute, because police officers are looking in their
    14        notebooks refreshing their memories when they cannot
    15        remember a thing about the subject of their notes.
    16
    17   MR. RAMPTON:  That is right.
    18
    19   MR. JUSTICE BELL: Secondly, if the original notes or record has
    20        been lost this may still give evidence of a fact which he
    21        does not now recollect if it is in a copy or a
    22        transcription of a report made from his notes but which he
    23        checked at the time.
    24
    25   MR. RAMPTON:  That is right, my Lord, yes.
    26
    27   MR. JUSTICE BELL:  So that he can say, "Well, I checked it at
    28        the time and it substantially reproduces what was in my
    29        note which is no longer available."
    30
    31   MR. RAMPTON:  That is right.
    32
    33   MR. JUSTICE BELL: That is what happened in Lord Talbot v.
    34        Malehide, because the witness, Flood, had checked
    35        Connelly's book entries which Connelly, who was not called,
    36        had made from Flood's memoranda.  But that leads to this
    37        question: apart from section 4 of the Civil Evidence Act,
    38        which I want to come to in a moment, is it legitimate, and
    39        this particularly relates to Mr. Russell and-----
    40
    41   MR. RAMPTON:  It only relates to Mr. Russell.
    42
    43   MR. JUSTICE BELL:  I think that is probably right, I have not
    44        checked through.
    45
    46   MR. MORRIS:  Maybe some of Bishop's as well.
    47
    48   MR. JUSTICE BELL: It may not make a jot of difference as to the
    49        main thrust of the evidence or the conclusion at the end of
    50        the day, but I want to make sure I understand the 
    51        technicalities of it.  If someone else has made a report 
    52        from the witnesses' notes or in terms from a report made by 
    53        the witness which is no longer available, and the witness
    54        did not compare or check the ultimate report which is the
    55        one we have in court for his own report or notes, and he
    56        cannot now remember whether the report is accurate or not
    57         -- when I say "now", that is when he is in the witness box
    58        -- can he use that report to refresh his memory because
    59        Doe v. Perkins would seem to say not, and it is neither the
    60        Lord Talbot nor the Bryant situation.

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