Day 280 - 17 Jul 96 - Page 27
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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.
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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."
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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
