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.
