Day 280 - 17 Jul 96 - Page 28


     
     1        he made it, into the witness box, that statement which the
     2        solicitor took is admissible of the truth of the facts in
     3        it.  But if you just serve under the Civil Evidence Act a
     4        written statement of the witness, or a written statement of
     5        the solicitor, then the written statement which was taken
     6        from the eyewitness is not admissible under the Civil
     7        Evidence Act.  See section 2.3, and these are all matters,
     8        in theory at least, considered by Parliament which go to
     9        the admissibility of evidence, which is more likely to be
    10        reliable than not and excludes evidence which is more
    11        likely to be unreliable than not, and they have had to draw
    12        the line somewhere.
    13
    14             But all this, in a way, is to try to explain what I am
    15        making of the Act of Parliament. I must follow the Act of
    16        Parliament.  Many Judges have said, and Counsel and
    17        solicitors and, no doubt, litigants in person, that the
    18        time may come when a much wider discretion is given to a
    19        Judge to hear all sorts of hearsay and just decide what is
    20        reliable and what is not, but that time has not yet come.
    21        I am bound by the Civil Evidence Act.
    22
    23   MS. STEEL:  I do not know.  I mean, well, it just, there does
    24        not seem a point in allowing statements either orally or
    25        documentary in under the Civil Evidence Act and then
    26        turning around and saying that you cannot unless you have
    27        got direct oral evidence.
    28
    29   MR. JUSTICE BELL:  It does not allow them in.  2.1 does not
    30        allow them in just like that.  It says. "Subject to this
    31        section."
    32
    33   MS. STEEL:  I understand that but there is no point -- if you
    34        are just going to say you cannot do it why not say you can
    35        not do it in section 1?
    36
    37   MR. JUSTICE BELL:  What they could have done 2.1 saying, "In any
    38        civil proceedings a statement made, whether orally or in a
    39        document or otherwise by any person shall be admissible as
    40        evidence of any fact stated therein of which direct oral
    41        evidence by him would be admissible, provided that he is
    42        called to give direct oral evidence or the person to whom
    43        it is made is called to give direct oral evidence."  One
    44        could have worked out a form of words of that kind, but
    45        they have chosen to do it another way and it all boils down
    46        to the same thing.
    47
    48   MS. STEEL:  Well, I still think it would be a contradiction, in
    49        the same paragraph.
    50
    51   MR. JUSTICE BELL:  I think I must call on you.  I mean, if you
    52        are stymeyed by it, there you are, I have got to rule on
    53        this.
    54
    55   MS. STEEL:  There are a lot of things I want to say.  I mean, I
    56        distinctly get the impression that there is more to it than
    57        the way it is being read, but I just do not know.  I do not
    58        have enough time to look up all the references about the
    59        law surrounding it.  I do not have time to look up all the
    60        references about it.

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