Day 280 - 17 Jul 96 - Page 27


     
     1
     2   MR. JUSTICE BELL:  No, it does not.  Imagine this situation.  I
     3        do not know just what was in the mind of the -- I have not
     4        looked back to see what the purpose of drafting the Act
     5        exactly as it was drafted, because I have to say, as I
     6        think I very plainly indicated the other times, the wording
     7        seems so plain.  For instance, someone may make a
     8        statement, let us say, a month after a road accident.  In
     9        that they have got --  or, let us say two weeks after a
    10        road accident.  In that statement they have got quite a lot
    11        of detail.  They cannot refresh their memory from the
    12        statement or they may not be allowed to by the Judge
    13        because he may say two weeks is too long afterwards, and
    14        there are various rules about refreshing your memory from
    15        notes or statements you have made.  They have got to be
    16        made essentially as soon as reasonably practical
    17        afterwards.  There may be a bit of slack in that, but two
    18        weeks might be too much.  You are going to call the witness
    19        to give evidence of what happened in the road accident but
    20        you perceive when he goes into the witness box he may not
    21        remember all the details which he put in his statement two
    22        weeks afterwards and, in fact, he may get some things
    23        rather different and you very much like what is in the
    24        statement.  So what you do is serve a notice under the
    25        Civil Evidence Act and you produce that statement.  The
    26        rules say you have got to take your witness in-chief first
    27        and then you put the statement to him, and that actually
    28        becomes pursuant to section 2.1, evidence of the truth of
    29        the facts which are in the statement, and section 2.3 does
    30        not stop you doing that because you actually call the
    31        witness himself, and you then have the advantage not just
    32        of what he can remember three years later when the
    33        responsibility for road accident is being tried out as
    34        evidence, but you also have evidence itself, the statement
    35        which he made.  You might say that you can ask the witness
    36        when he is in the witness box, "Did you make a statement at
    37        the time, and would your recollection be better then than
    38        it was now" and normally they will say "Yes"  but you have
    39        to call the person into the witness box to do that.  You
    40        could not just, on my present interpretation of section
    41        2.6.3 just produce a written statement from him saying
    42        "This is what happened in the road accident and I made a
    43        statement two weeks after it which was true", because 2.3
    44        would prevent you doing that.
    45
    46   MS. STEEL:  But if you look at it the other way round if you
    47        have the witness in the witness box there is no point in
    48        putting a Civil Evidence Act on it because you might as
    49        well just say "Do you aver this statement you made two
    50        weeks after the accident."
    51
    52   MR. JUSTICE BELL:   Well, you do not necessarily have to put a
    53        Civil Evidence notice on it.  I would have to look at the
    54        rules.  May be you do.  But it does not matter whether you
    55        have got to put a notice on it or not. Whether or not you
    56        have to put a Civil Evidence Act notice on it, the fact is
    57        if you call the man into the witness box he can prove he
    58        made a statement earlier and that statement is admissible
    59        under section 2.1 as evidence of the facts stated in it.
    60        If you call someone else, if you call the solicitor to whom

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