There had been a collision between two ships. The plaintiff sought to have admitted in evidence a film of radar echoes recorded by a shore radio station. The defendants argued that evidence produced mechanically and without human intervention was inadmissible hearsay.
Held: The court considered the admission of ‘real evidence’ in the form of plots of a ships course. Every plot involves a margin of error.
Sir Jocelyn Simon P said: ‘If tape recordings are admissible, it seems that a photograph of radar reception is equally admissible – or indeed, any other type of photograph. It would be an absurd distinction that a photograph should be admissible if the camera were operated manually by a photographer but not if it were operated by a trip or clock mechanism. Similarly if evidence of weather conditions were relevant, the law would affront common sense if it were to say that those could be proved by a person who looked at a barometer from time to time, but not by producing a barograph record. So too with other types of dial recordings. Again, cards from clocking-in-and-out machines are frequently admitted in accident cases.’
and ”It is said that the echoes of the two ships involved in this collision appear on the film and that a succession of photographs from the film will throw light on where and how the collision occurred and the responsibility of each ship. Normally this radar and screen are monitored by human agency, but on this occasion – for reasons I was not told, nor needed to be – it was not monitored. The film strip, however, is available. The defendants resist the admissibility of this strip of film on the broad ground that it is a piece of evidence produced purely mechanically without human intervention and as such offends against the hearsay rule. Counsel for the defendants relies on Myers v Director of Public Prosecutions (1964) 2 All ER 881; (1965) AC 1001. He has argued robustly that it makes all the difference that no human agency is available to verify or explain what the machine records. The Evidence Act, 1938, does not render this sort of evidence admissible, in his submission.
I am clearly of the opinion that the evidence is admissible, and could, indeed, be a valuable piece of evidence in the elucidation of the facts in dispute. In a case concerned with mechanical recordings by tape recorder, R v Maqsud Ali, R v Ashiq Hussain (1965) 2 All ER 464; (1966) 1 QB 688, the Court of Criminal Appeal, in ruling that the tape recordings were admissible, stated (1965) 2 All ER at p469; (1966) 1 QB at p 701 that it could see no difference in principle between a tape recording and a photograph. See also R v Senat, R v Sin (Mar 16, 1968), The Times; 112 Sol Jo 252. Moreover, R v Maqsud Ali (1965) 2 All ER 464; (1966) 1 QB 688 makes it plain that we are not here concerned with evidence admissible under the Evidence Act, 1938, because that Act is not applicable to criminal proceedings. Counsel for the defendants seeks to distinguish R v Maqsud Ali (1965) 2 All ER 464; (1966) 1 QB 688 from the present case on the ground that in the former case the police officer set up a recording machine to overhear part of a recorded conversation and claimed to be able to identify the voices recorded. I should be sorry to think that that was a ground for distinction; for in R v Maqsud Ali
(1965) 2 All ER 464; (1966) 1 QB 688, the language was a dialect of Punjabi, not understandable by Urdu experts, let alone by English police officers. In my view the evidence in question in the present case has nothing to do with the hearsay rule and does not depend on the Evidence Act, 1938.’
References: [1968] 1 WLR 739, [1971] 2 Lloyd’s Rep 277, [1968] 2 All ER 195
Judges: Lord Reid, Sir Jocelyn Simon P
Statutes: Evidence Act 1938
Jurisdiction: England and Wales
This case is cited by:
- Applied – Castle v Cross 1984
First-hand evidence, in this case, a print-out from a device, of what is displayed or recorded on a mechanical measuring device is real evidence admissible at common law.
‘In the absence of evidence to the contrary, the courts will presume that . .
([1984] 1 WLR 1372, [1985] 1 All ER 87) - Cited – ‘Bow Spring’, Owners of Ship v ‘Manzanillo Ii’, Owners of Ship CA 28-Jul-2004
There had been a collision at sea.
Held: (Addendum) Where the admiralty court sought advice from assessors, modern good practice required that the advice should be disclosed to the parties advisers and that they have opportunity to comment. . .
(, [2004] EWCA Civ 1007, Times 19-Aug-04)
These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.192207