Day 112 - 31 Mar 95 - Page 04
1 compellable by law to produce, on subpoena, an original
2 document in his possession, but fails to do so, secondary
3 evidence of its contents cannot be given, although the
4 witness will be punishable for disobedience" -- I should
5 say I am reading from chapter 36, paragraph 29 on page 981
6 -- and then at the bottom of that page: "When a document
7 is in the possession of a stranger within the jurisdiction
8 who has not been subpoenaed to produce it, secondary
9 evidence of its contents cannot be given". Then there is a
10 reference to a case back in 1916.
11
12 So, without going any further at this stage -- I have not
13 looked into it any further than that -- the position would
14 appear to be that if Mr. Rampton objects to secondary
15 evidence being given, that is, someone from the witness box
16 giving their recollection of what the contents of a
17 document were, you have to subpoena the person who you
18 believe to hold a document to bring it to court.
19
20 I say that, that is just on looking at Phipson without
21 looking at any of the cases. If I am right about that --
22 I have not heard any argument about it -- the next step for
23 you, if you really think that the document itself is
24 important, would be to subpoena whoever might be in
25 possession of it to bring it to court.
26
27 What you really have to do is try to identify the document
28 or class of documents and ask yourselves whether what the
29 document shows is worth going through that exercise.
30
31 What I suggest you do is you wait until we have got to --
32 I would be surprised if we do not finish with Ms. Hovi's
33 evidence as far as it goes today; it may be, I do not know,
34 we will have to wait to see whether Mr. Rampton wants to
35 ask if he can cross-examine further when he has taken
36 further instructions, or whether he wants to apply to call
37 evidence in rebuttal.
38
39 But, whatever the position is on that before the end of
40 today, Ms. Hovi will have given all the evidence she can
41 give today, it may will have completed her evidence,
42 subject to you searching for another document, then I think
43 you have to think about what the pros and cons of
44 subpoenaing someone to bring the document are. I suggest
45 you wait until you have heard all her evidence before you
46 make any decision about that.
47
48 We wait and see what happens in the rest of the
49 cross-examination.
50
51 MR. MORRIS: Yes. That was our view entirely, actually.
52
53 MR. JUSTICE BELL: You may find that we have as much information
54 as we can usefully have on that score. On the other hand,
55 you may feel you want to take the matter further.
56
57 MR. MORRIS: Our view was similar to that really, which is that
58 we are quite happy with the evidence of our witness, but
59 that if the Plaintiffs were going to call rebuttal
60 evidence, then we may have to consider a subpoena.
