Scottish Court of Session Decisions

Lord Justioe-Clerk—The proof was adjourned from July to October, when three months after Christina Fairbairn had been examined it was proposed to challenge the veracity of her testimony on the ground that both before and after her examination she had made statements inconsistent with what she had said in her examination. I think the course which the Lord Ordinary took was the right one. With regard to statements made by the witness after her examination, I must say I know no precedent for holding her recal competent. With regard to statements made by her before her examination, if distinct and specific, I think her recal would probably be competent under the provisions of the Evidence Act. But in my opinion the allegations contained in the motions before us are not capable of proof. They are not sufficiently specific as regards the time and place, and the precise words said to have been used by her. It is true that it may be said that there is a certain specification in the words “a day or two before,” but then the motion is lacking further in place and detail of words. I am unwilling, like the Lord Ordinary, after three months had elapsed, and the witness had been examined, to open up her evidence on such meagre statements as were contained in the motion. Therefore on the whole matter, and without deciding that it would be incompetent to allow parties to make the statements more specific if we thought necessary for the justice of the cause, I am of opinion that as the case stands we ought not to sanction the additional inquiry.

I have thought it right to indicate my opinion on this question as it was fully argued before us, although it is not necessary for the decision of this case in the view I take of it.

Lord Craighill—It is obvious that a distinction must be taken in the two motions relating to the additional evidence proposed to be taken in virtue of the 4th section of the Evidence Act. The first relates to things which were said by Christina Fairbairn after she had been examined as a witness, and the second to things said by her prior to her examination. Now, although it is not necessary for the decision of the case, I may say that in my opinion the matter of the first motion is not covered by the section of the Act as I understand it, and I should for my own part disallow such a motion. As regards the second motion, the matter is different, though I may say that I could not have allowed it without a more precise specification of the things which are to be the subject of the examination.

Lord Rutherford Clark—There is here a motion made on the part of the defender to recal Christina Fairbairn for further examination, and it may be divided into two parts—first, to recal her in order to examine her as to statements made by her before her examination as a witness; second, to recal and examine her with respect to statements made by her after she had been examined as a witness. The motion, as I understand it, is made under the Evidence Act of 1852. Now, I am clearly of opinion that the Act gives no warrant whatever for the motion to examine the witness as to statements made by her after being examined as a witness. The purpose of the Act was, shortly stated, to enlarge the subject-matter of cross-examination, but I do not think the Act intended for that could be further extended or applied to statements made after cross-examination. The other part of the motion is clearly within the Act, and so far as I can judge is sufficiently precise and detailed to allow us to grant it, and I myself should have been inclined to allow the witness to be recalled and examined on that part of the motion.