[Note - my comments are intertwined and in red text]

[After a six month adjournment to, as Mrs. Justice Smith had ruled at the 1st hearing, allow evidence to be produced by the Defendants to demonstrate that my allegations are
vexatious etc. and be it noted that at the earlier hearing Mrs. Justice Smith had said that I don't
have to do anything myself.]

J.HULBERT -v- HIS HONOUR JUDGE SIMPSON and SHEILA WEST
12th November 1996

MR. HULBERT: My Lady, if it is to be demonstrated that my Statement of Claim is
scandalous, frivolous, vexatious, I submit that the Second Defendant, or Respondent, must
demonstrate that the shorthand books could not have been tampered with.

MRS. JUSTICE SMITH: No, Mr. Hulbert, you have to demonstrate that you have a case
which is capable of being won.

[Note - The exact opposite of what she told me at the first hearing: she said then and I quote from
the official transcript of the first hearing:

MRS. JUSTICE SMITH: Now, I am not suggesting that you do anything further yourself, because I
have suggested and Mr. Richardson has agreed that it would be more
appropriate if he takes those steps; it will be easier for him and he is going to bring some further
evidence.]
(unquote)
and had she forgotten that at the earlier hearing she'd made these comments:-
a) traversing the facts cannot entitle you to have the action struck out; (to Mr. Richardson)
and
b) the duty of a pleader is to plead the facts not the evidence which supports it;
and
c) if he says," I have set it out as best I am able," what we have to do in this case Mr. Richardson, as it seems to me, is to look at it on the assumption that these allegations are true;
and
d) if there is any basis for this case it must be litigated;
and
e) if this case falls to be determined it falls to be determined by a trial judge;
and
f) that it must never be asserted that any of us (judiciary) have indulged in any kind of protection of a
colleague, however eminent they may be.

MR. HULBERT: Yes, I can demonstrate that, my Lady. But I understood that the
Respondents were to demonstrate to me that my Statement of Claim is scandalous.

MRS. JUSTICE SMITH: No. One of the reasons that -- we adjourned for two reasons on
the last occasion: (1) you had not brought half the papers with you, and I could not even look at the
transcripts that were in issue, so I could not see what it was that you were alleging; and (2) you
indicated that the shorthand writer would swear an affidavit that this was her work, and that she
would, in effect, certify it, and then you would be satisfied.

[Note - I was in no position to make any such indication: it was Justice Smith herself who made the
suggestion and Mr. Richardson: Counsel for Simpson & West, agreed as quoted above.]

MR. HULBERT: I didn't say that, my Lady, with respect.

MRS. JUSTICE SMITH: You swore, Mr. Hulbert, and I am not going to argue about it.

[Note - Untrue. I certainly felt like swearing, but I did not, nor did I give evidence under oath.]

MR. HULBERT: Well, Mr. Richardson said, or undertook that she would swear an
affidavit with demonstrable probity on that document. That has not been done.

MRS. JUSTICE SMITH: That she would swear an affidavit with what?

MR. HULBERT: With demonstrable probity.

MRS. JUSTICE SMITH: Demonstrable?

MR. HULBERT: Something she can back it up with. What she has done, she has served a
purported certificate of verification with it, and that verification certificate is undated.

[ Note - It was Mr. Richardson that proposed bringing back an affidavit sworn by Mrs. West with
demonstrable probity on that document (transcript of first hearing) and no demonstrable probity of it
has ever been produced. An affidavit cannot prove its own truth, so Mr. Richardson had failed to
live up to his undertaking to the Court.]

MRS. JUSTICE SMITH: She has sworn an affidavit saying that her work is -- her bone
fide shorthand notes and bone fide transcription of the days in question in your trial.

[Note - Justice Smith pointedly refers to the shorthand notes and transcript as being bone fide, but
she started to, then declined to say what Mrs. West had sworn to and, as stated, no demonstrable
probity for either document.]

That is what you asked for - that is what you have. You have now changed your mind, as I
understand it....

[Note - Untrue, it is what Mr. Richardson and I later, agreed to. as shown by the evidence of the
first hearing which quotes Mr. Richardson thus:
MR. RICHARDSON: I think it is now wise, if I may say so, for the defendants to demonstrate to
the plaintiff that there has been no skulduggery here whatever. He may not
accept that at all, but I shall seek to have it demonstrated to him and it is not going to be done
behind closed doors.]
(unquote)

[Note - It was never done: period.]

MR. HULBERT: No, I have not at all.

MRS. JUSTICE SMITH: Well, it is really not to the point, because there is before
me an appeal, which I shall hear today, in the conventional fashion. I was seeking on the earlier
occasion to assist you because you are a litigant in person. You said that if you had evidence
from the shorthand writer, you would be satisfied, and that would be an end to the case. It seemed
to me that that was an appropriate way of pleasing everybody. Now I understand that you are not
pleased. So today we will go on with the appeal in the conventional form.

[Note - Surely Mrs. Justice Smith didn't think that I'd be satisfied with notebooks that had clearly
been tampered with and an affidavit without the probity that Mr. Richardson had undertaken to
provide, unless she believes that an affidavit proves its own truth.]

MR. HULBERT: My point is that the shorthand books - and I have seen them - have been tampered with. Can I refer to the evidence that proves that they have been tampered with, my
Lady?

MRS. JUSTICE SMITH: You can show me. If you wish.

MR. HULBERT: Well, Counsel has the original notebooks.

MRS. JUSTICE SMITH: Have you drafted an amended Statement of Claim to
suggest that there is tampering with the notebooks? Because that is not what you had said earlier.
You said that they had -- that Judge Simpson had dictated alterations.

MR. HULBERT: Mrs. West had taken down that false evidence.

MRS. JUSTICE SMITH: Well, if that is so, I do not see how the shorthand books
have come to be altered. So you can show me if you like, if there is something you want to show me.

MR. HULBERT: I shall. There are six pages missing in bulk, a total of six pages in
two books.

MRS. JUSTICE SMITH: Yes, let me see it.

MR. HULBERT: Book 667 contains 78 sheets.

MRS. JUSTICE SMITH: I am going to have a look at her affidavit, Exhibit No, 1 to
her affidavit, is that right?

MR. HULBERT: Pardon, My Lady?

MRS. JUSTICE SMITH: I am looking at her affidavit and the exhibits to it. There
are the shorthand notes that are exhibited to her affidavit, that is right, is it not?

MR. HULBERT: That is correct.

MRS. JUSTICE SMITH: Now then, what do you want me to look at, what pages?

MR. HULBERT: No particular pages. The amount of pages, there are 78 sheets in
book 667. The front covers states there are 160 pages, which would be 80 sheets.

MRS. JUSTICE SMITH: Book 667, I am looking at the frontispiece, yes, 10th and
11th of December '91, is that right?

MR. HULBERT: Right.

MRS. JUSTICE SMITH: Yes, "160 pages" it says, yes. Now what do you want me
to look at?

MR. HULBERT: Well, my point is, there are not 160 pages in the book.

MRS. JUSTICE SMITH: Well, she has not displayed for you the entire book. You
are not entitled to see the entire book. You are entitled to see those pages that relate to your case.

[Note - whether I was entitled to or not, I did count the pages at the office of Solicitor Mr. Swales,
without reading or being able to read the shorthand and Mr. Swales also counted them and agreed
on the number of pages that the books contained and he also sent me a letter confirming the number
of pages that both books contained: the letter is retained by myself.]

MR. HULBERT: That is correct. That is correct. I do wish to see the entire book.

MRS. JUSTICE SMITH: Well then, what inference can I draw?

MR. HULBERT: You can draw in inference that there are six pages missing.

MRS JUSTICE SMITH: Where from?

MR. HULBERT: Four pages from 667, and two pages are missing frm book 668.

MRS JUSTICE SMITH: How do I tell that?

[Note - and this is a High Court Judge.]

MR. HULBERT: Well, simply by counting them my Lady. I have counted them. Mr.
Swales (for the Respondents) has counted them, and he agrees with me.

MRS. JUSTICE SMITH: I am sorry, I do not understand how one draws any
inference as to tampering or incompleteness from counting pages, because the other pages may have been occupied with the books with a case that is nothing to do with yours.

MR. HULBERT: Possibly, but possibly there could be something to do with my case.

MRS. JUSTICE SMITH: Possibly there could. But do you see, what we have there is a case of Judge Bullimore's covered by this book from page 1 - 100, apparently.

MR. HULBERT: That is correct my Lady.

MRS. JUSTICE SMITH: So how can I draw any inference about your case?

MR. HULBERT: You can't. The inference you can draw is that there are pages
missing. It is quite possible --

MRS. JUSTICE SMITH: Which pages are missing?

MR. HULBERT: Well, the pages that are missing obviously aren't numbered. I can't
tell you which pages they are. Can I just show you in the book my Lady?

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: This coil at the top left is tucked inside for safety reasons. On the
book 668, that coil is out. There is damage to the tops of the pages where it has been taken off - I
say it has been taken off - and replaced. This is another book, which demonstrates how simple it
is to take that coil off and out, back. I say there is pages being taken out and pages with false
evidence inserted

MRS. JUSTICE SMITH: Well, you would not be able to put pages back in then,
would you?

MR. HULBERT: Pardon?

[Note - should have been, 'splutter' :-)]

MRS. JUSTICE SMITH: If you are suggesting that pages have been torn out of this
book, and that you can tell that --

MR. HULBERT: But --

MRS. JUSTICE SMITH: Just let me finish, And that you can tell that has been done
by looking at the coil at the top, it would not be possible, would it to insert other pages?

MR. HULBERT: Quite easy, of course you can, my Lady. It is simple. If I take a coil
off, I can take as many pages out of here as I want and insert them in this book, it's quite easy.

MRS. JUSTICE SMITH: Wait a moment. So you are saying there are six pages
missing, or six pages that have been taken out and put back in?

MR. HULBERT: There could be any number taken.

MRS. JUSTICE SMITH: There could be. But what are you alleging?

MR. HULBERT: I just don't know how many pages are taken out. What I do know,
is that there are six pages missing in both books, a total of six pages, And I know that the coil has
been tampered with; it could not have come out accidentally. I know that pages, the damage at the
top of the pages, they could have been done when the coil had been taken out
and replaced. I believe that is how the damage did occur.

MRS. JUSTICE SMITH: None of this is alleged in your statement of Claim, is it?

MR. HULBERT: It is not, because I didn't have sight of the book then, my Lady. It
was only a week or so ago that Mr. Swales let me have sight of the book.

MRS. JUSTICE SMITH: Have you drafted an amended Statement of Claim?

MR. HULBERT: I haven't drafted an amended Statement of Claim, no. I intend to,
depending on the outcome of this subpoena.

MRS. JUSTICE SMITH: Well I am not prepared to consider this additional allegation unless it in a form appropriate to the pleading, because, at the moment, I do not understand it. I do
not understand what you are alleging....

[Note - I was and am unable to believe that, but I kept my cool]

MR. HULBERT: I am alleging --

MRS. JUSTICE SMITH: ....so far as the book is concerned.

MR. HULBERT: May I explain then, my Lady?

MRS. JUSTICE SMITH: You can say.

[Note - with a ring about it that it would make no difference, but I kept my cool]

MR. HULBERT: I am alleging that pages have been removed from the books. I am
alleging that pages with false evidence has been inserted into the books, true evidence has been
taken out. I have evidence that shows that the books have been tampered with, by way of the
photocopies.

MRS. JUSTICE SMITH: Well, that is a different matter, though, is it not? That is
another allegation, is it? You are saying that you can tell from photocopies that something has been
tampered with?

MR. HULBERT: That is correct , yes. And if perhaps we were to look at the original
- you have the original book there - you will probably see from that that something has happened.

MRS. JUSTICE SMITH; Well, show me which pages to look at? Tell me which
pages to look at?

MR, HULBERT: The pages are missing. The pages are missing, my Lady; I can't show you.

MRS. JUSTICE SMITH: I thought you said that you could tell from the photocopies
that it has been tampered with.

MR. HULBERT: Yes.

MRS. JUSTICE SMITH: Right. Tell me which pages to look at?

MR. HULBERT: I understand. The front cover of book 668.

MRS. JUSTICE SMITH: The front cover, yes, the shorthand book.

MR. HULBERT: You will see that the coil at the top....

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: ....you see the coil at the top is not in position, is not in the position it
should be.

MRS. JUSTICE SMITH: What am I to infer from that?

MR. HULBERT: That it has been tampered with.

MRS. JUSTICE SMITH: The fact that this book is now going on for six years old....

MR. HULBERT: There are other possibilities.

MRS. JUSTICE SMITH: There are, are there not?

MR. HULBERT: There are. In the same folder copy, you see damage to the top
left-hand corner at this page. Page No. 2 of the same book....

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: ....damage to the top-left.

MRS. JUSTICE SMITH: What damage? To the coil?

MR. HULBERT: To the coil at the top-left.

MRS. JUSTICE SMITH: To the what? What did you say?

MR. HULBERT: The paper is torn on the top-left hand corner of the....

MRS. JUSTICE SMITH: It is a bit dog-eared, is it?

MR. HULBERT: Pardon?

MRS. JUSTICE SMITH: It is a little dog-eared.

MR. HULBERT; Yes, it is.

MRS. JUSTICE SMITH; Yes, it is six years old, you know.

MR. HULBERT: I agree, there are other possibilities, my Lady. There are quite a
number of them.

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: Perhaps my Lady could look at the book to see....

MRS. JUSTICE SMITH: Certainly.

MR. HULBERT: ....more accurately. I think book 667 is the one that has most damage to the pages.

MRS. JUSTICE SMITH: Most damage to the pages, yes?

MR. HULBERT: Page 121.

MRS. JUSTICE SMITH: There is not a page 121 in this book.

MR. HULBERT: 667.

MRS. JUSTICE SMITH: I am looking at 667.

MR. RICHARDSON: My Lady, I think if you turn it around the other way.

MRS. JUSTICE SMITH: Yes, I see. On the back, yes. I understand. Thank you. 121.
What do I look at?

MR. HULBERT; Top left-hand corner, my Lady, where the corner is.

MRS. JUSTICE SMITH: That is all right, It looks absolutely perfect to me. at the very
end hole there is a little damage, yes. I would say that this book is remarkably clean and well looked after.

MR. HULBERT: There are some deletions on page 155.

MRS. JUSTICE SMITH: Deletions, where is that? Just at the bottom?

MR. HULBERT: Top and bottom, my lady.

MRS. JUSTICE SMITH: Well, at the top it looks like a doodle. Then we go on to
book 668, that is the last page. Yes?

MR. HULBERT: I do have the numbers written down. the pages in the book there are
677 pages, 107, 108, 109.

MRS. JUSTICE SMITH: Wait a moment. 107, yes. I do not see the deletions on there.

MR. HULBERT: No. Damage to the paper.

MRS. JUSTICE SMITH: Damage?

MR. HULBERT: Yes.

MRS. JUSTICE SMITH: Where is the damage? It is absolutely
pristine this page.

MR. HULBERT: Will you have a look at 108, my Lady?

MRS. JUSTICE SMITH: Yes. So is that.

MR. HULBERT: May I have a look at it please?

MRS. JUSTICE SMITH: Yes, by all means. Not even a single hole has been damaged
at the top. I think we ll should handle it rather carefully.

MR. HULBERT: Yes, of course. No, there is no damage on there, There is on the next
one (109)

MRS. JUSTICE SMITH: Yes, well I'm sorry, I am not prepared to draw any inference
of any kind, even if it is.

[Note - in fact there are quite a number of pages with damage at the tops, as the photocopies in my
possession reveal. I was wrong about the numbers of a couple of the pages talking from memory.]

MR. HULBERT: My contention is that it has been tampered with.

MRS. JUSTICE SMITH: That is your contention.

MR. HULBERT: And the coil has been taken off. Whether you accept that or not, that
is entirely up to you of course.

MRS. JUSTICE SMITH: Yes. You see, what is said against you is that, although you
may give evidence that your recollection is different, your recollection of what was said is different
from that which is in the notebooks and in the transcripts, that even if you are right,

[Note - quote from dialogue between Mrs. Justice Smith and Mr. Richardson at
the first hearing:

MRS. JUSTICE SMITH:   One would hope that some standard form of shorthand such as Pitman
had been used.
MR. RICHARDSON:   Yes.
MRS. JUSTICE SMITH:   And that should be a relatively simple matter to demonstrate. If there is
correspondence and no sign of alteration within the body of the shorthand document, then an
overwhelming inference against the plaintiff would be drawn.
MR. RICHARDSON: Yes.
MRS. JUSTICE SMITH: But until then, what more can the plaintiff do if the first that he knows of
it is when he receives the transcript and says to himself, "That is not right." Let us suppose that he
had half a dozen other witnesses who were sitting in court. He has tried to get the jurors, of course.
That is another matter. But let us suppose that there had been half a dozen witnesses who had been
listening and they agreed with him.
MR. RICHARDSON :   My Lady, he would then be able to particularize very considerably the
allegation. You see the allegation is corruption.
MRS. JUSTICE SMITH:   He would not know any more how it had been done, He
would only be able to give better particulars of it.

and there are some differences, it is a very long way from demonstrating, even a prima facie case, that there has been a conspiracy to pervert the course of justice....

MR. HULBERT: But there is more --

MRS. JUSTICE SMITH.... a conspiracy to alter evidence.

MR. HULBERT: But there is a lot more to it than that, my Lady.

MRS. JUSTICE SMITH: I see.

MR. HULBERT: May I tell you of the evidence I have?

MRS. JUSTICE SMITH: Well, all I have at the moment is what is in your pleading, and
it is the pleading which is under examination.

[Note - Mrs. Justice Smith had uttered the truth about what should have been under examination: the Statement of Claim to determine whether there was a cause of action alleged and she'd aleady held
that there was. Yes, it was the pleading that was to have been under examination anD one has to
wonder why she'd stated, at the start of this hearing that I have to demonstrate that I have a case
which is capable of being won. ]

MR. HULBERT: I have submitted exhibits and I have submitted all the evidence that I
have. May I just mention that now?

MRS. JUSTICE SMITH: Yes.
I

MR. HULBERT: Paragraph 6 (a) in my affidavit refers to a witness statement, a copy of
which I have here. It is a statement signed by one of the witnesses whose evidence has been
tampered with. It gives an entirely different account of her evidence relating to her notes, to the
purported evidence of Mrs. West's transcript. I have acknowledged in the affidavit that the two
different accounts of evidence doesn't prove either untrue.

MRS. JUSTICE SMITH: I am sorry, I have difficulty in I am sorry, I have difficulty in
hearing you.

MR. HULBERT: I have acknowledged in the affidavit that two different accounts of
evidence doesn't prove either one untrue. But the witness whose evidence has been tampered
with has signed her statement, and Mrs. West had consistently declined to certify her transcript in
accordance with the rules of verification.

MRS. JUSTICE SMITH: Do you intend to show me a statement of somebody who says
that the transcript does not accord with what the witness said?

MR. HULBERT: I have no intention of doing that, no, ma'am.

MRS. JUSTICE SMITH: Well, there it is. I have made it, I hope, plain that I am
unimpressed by your complaint that Mrs. West has refused to certify her transcript. She has
certified it, so far as I am concerned, by swearing an affidavit.

MR. HULBERT: Yes. I am asking you to consider the witness statement of the witness.

MRS. JUSTICE SMITH: Well, I asked you a moment ago whether you proposed to show
it to me.

MR. HULBERT: Yes, of course.

MRS. JUSTICE SMITH: And I understood that your reply was that you did not intend to
show it to me. That is what you said a moment ago.

[Note - she had asked me if I intended to show her a statement of somebody who says that the
transcript does not accord with what the witness said and I had no statement from anyone saying
that the transcript does not accord with what the witness had said, because it was me that was
saying that.]

MR. HULBERT: Well, I certainly do intend. I must have misunderstood my Lady.

MRS. JUSTICE SMITH: Will you show it to me now?

MR. HULBERT: It is paragraph --

MRS. JUSTICE SMITH: Which witness is it?

MR. HULBERT: It was Special Constable Watson.

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: Paragraphs 26 and 29. May I bring them around?

MRS. JUSTICE SMITH: No, hand it to the Usher. Paragraph 26: "Having discussed the
events of the incident and the injuries sustained with the other officers, I decided to end my shift, as I
needed to be up at six o'clock to go to work. I am not sure how far I got in writing out my notes."
It is very difficult for me to read the rest because it has been highlighted and then photocopied, so the words are almost blacked out. Doing the best I can: "I'm not sure how far I got in writing up my
notes. But PC Newis agreed to provide me with a photocopy of his notebook, and, therefore, I
used his the following day to assist me in completing my own notes. I did not copy PC Newis'
notebook, but put in the points with which I agreed, and altered the parts where my views
differed." That is 26. and 29: "On 19th June I went off duty at two o'clock.
Having completed my notes the following day, I did not hear anything further about the case
until some months later, when PC Newis telephoned me and said a statement was needed. I wrote out my statement at home from the notes that I had recorded in my notebook."

Well, how does that help you to demonstrate that the transcript has been tampered with? I thought
you were going to produce a statement which said: "I have been shown a transcript of the words
which I am supposed to have spoken in court. I did not speak those words. I said something
different." That is what this case is about, Mr. Hulbert.

MR. HULBERT: So, two versions of evidence about a notebook is not relevant, then?

MRS. JUSTICE SMITH: Of course it was relevant at your trial.

MR. HULBERT: No, to this case?

MRS. JUSTICE SMITH: It was relevant at your trial, and indeed you were acquitted.

[Note - It most certainly was not relevant at my trial as Justice Smith tried to make out because the
witness statement was made nearly three and a half years after my trial, but
I kept my cool.]

MR. HULBERT: My Lady, I am asking: is it not relevant?

MRS. JUSTICE SMITH: What you have to demonstrate, is that not only where there
are some inaccuracies in the transcript, in the sense that the transcript was different from that which
was actually said, but you also have to demonstrate that the judge might well conclude - might
conclude - that that showed that there had been a dishonest conspiracy between the judge and
shorthand writer. And that such differences as there were had not arisen as a result of an honest
mistake by the shorthand writer in transcribing that which had been said.

[Note - no answer, just a rapid change of subject: Justice Smith didn't want to hear any more about
the witness's contradictory statement.]

MR. HULBERT: May I refer to the evidence in the transcripts themselves?

MRS. JUSTICE SMITH: Yes. One of the reasons I adjourned last time was because we
had not got them.

MR. HULBERT: My Lady, you do have the transcripts?

MRS. JUSTICE SMITH: I have got them now.

MR. HULBERT: I am referring to Sergeant Starns' transcript.

MRS. JUSTICE SMITH: Yes. What page?

MR. HULBERT: Page 23D.

MRS. JUSTICE SMITH: 23. Unfortunately I have not got letters
down the side, but,
roughly, down the middle.

MR. HULBERT: I have the original transcripts.

MRS. JUSTICE SMITH: Never mind. It is a page which begins with the words: "Judge
Simpson: 'The Jury can see it. You can ask a question of the Sergeant about it'", is that right?

MR. HULBERT: Yes. Prior to Judge Simpson's invitation to the jurors to examine my
custody record (page 23D) to see if a different pen had been used, different coloured ink, etc., the
Sergeant insistently testified that he did not write the words "Assault Police," in other words, it
could have been written down later. And it was because I could see the words were written in the
Sergeant's own handwriting that I requested permission for the jurors to examine the record (page
22D). It was for that reason that Judge Simpson invited the jurors to examine it.

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: Yet, despite my request and the judge's invitation, the false evidence in the
transcript are pages 19C.

MRS. JUSTICE SMITH: 19C?

MR. HULBERT: Yes.

MRS. JUSTICE SMITH: Which part is false at 19C?

MR. HULBERT: I will just continue, actually. On page 19C, 20E, 20F, 21D, 21H and 22B purport Sergeant Starns' evidence to have been consistent that he wrote the words 'Assault Police' when I arrived at the station. Now, the reason the judge invited the jury to examine the custody record is because he consistently said that he did not write it.
So he invited them to see

MRS. JUSTICE SMITH: You say that in fact he had consistently said that he did not write
it?

MR. HULBERT: Consistently. And he did not say that he had written it until after the judge
had addressed the jury. Then he immediately, without any questions, said "I just remembered, I did
write it." Well, the transcript --

MRS. JUSTICE SMITH: And the judge asked him why he had firmed
up, because the transcript indicates that he was saying that he thought he had written it, but it could have been written by somebody else at a later stage.

[Note - Justice Smith was quoting from the transcript that I was saying is false.]

MR. HULBERT: Actually, my Lady, the judge did not say "firmed up." He said just one or
two words, "he firmed up a bit." The Sergeant.

MRS. JUSTICE SMITH: Well, does it really matter whether he said whether "he firmed
up"?

MR. HULBERT: Well, I was there. That is my recollection, and I know that I am right. But
the point is, the judge would not have invited the jury to examine that custody record if the Sergeant
had consistently said that he had written those two words.

MRS. JUSTICE SMITH: That is your view.

MR. HULBERT: Pardon?

MRS. JUSTICE SMITH: That is your view.

MR. HULBERT: Of course that is my view, plus the fact that I was there, and I know.

MRS. JUSTICE SMITH: Yes?

MR. HULBERT: I would just like to gone on. When Judge Simpson dictated the false
evidence relating to the words 'Assault Police', he either overlooked my request, and his own
invitation to the jury, or he thought it unlikely that the false evidence would be disputed. In any event, my request and his invitation are transcribed.

This goes on about the same thing. I would like to refer to Jean Elizabeth Watson's transcript, if I
may, my Lady?

MRS. JUSTICE SMITH: Yes. Just let me make a note of what you have just said. I just
want to make sure that I have your submissions right. You claim that, in truth, PC Starns had consistently claimed that he had not written the words 'Police Assault' on the custody record?

MR. HULBERT: That is correct, my Lady.

MRS. JUSTICE SMITH: And that he had then changed his evidence on seeing the
record?

MR. HULBERT: No, my Lady. Immediately after -- well, he probably had seen the
record. But it was immediately after Judge Simpson invited the jury to have look at the custody
record.

MRS. JUSTICE SMITH: I see. So, before he had seen it himself, as soon as he knew that
the jury were going to see it, you say that he changed his evidence.

MR. HULBERT: He immediately changed his tune.

MRS. JUSTICE SMITH: On learning that the jury were going to
see it, is that it?

MR. HULBERT: That is correct.

MRS. JUSTICE SMITH: And that, subsequently, Judge Simpson, you say, has caused an
alteration, caused several alterations.

MR. HULBERT: Six, my Lady.

MRS. JUSTICE SMITH: Six alterations in the transcript, to make it appear that the officer
was uncertain rather than sure.

MR. HULBERT: Well, the transcript shows that he was pretty sure in his answers. That is
false evidence. Certainly he did write --

MRS. JUSTICE SMITH: He was saying: "I think I wrote it at the time you came in. But I
am not sure. It could have been written later." And he explained circumstances in which it might have come about that it was written later.

MR. HULBERT: That was not the evidence, my Lady. That was false evidence.

MRS. JUSTICE SMITH: To make it appear -- so you say that Judge Simpson has caused
six alterations in the transcript, to make it appear that the officer was uncertain as to whether or not
--

MR. HULBERT: No, they are my words, my Lady. Make it appear that the officer was
certain that he had written it.

MRS. JUSTICE SMITH: That the officer thought he had written it?

MR. HULBERT: Yes. The evidence shows that the officer was
certain.

MRS. JUSTICE SMITH: Well, let us just have a look. "Reasons for detention." Question: "I'm not going to suggest...", well, this is you not wanting to put your case. "I don't want to upset the officer." "We're not here to see about anybody being upset." "Are you suggesting it might be - not necessarily by this man - but that somebody, to cover the Police's back, has added that reference to 'Assault Police' at a later stage?" "That is my belief." "That's your case?"
Answer: "Well, that could be the case. If I can explain it to you, it could have been written down that -- it could be I have written that down when you first came in. It might well be that, as events have unfolded, the law requires that if you are under arrest for one thing and we realize you have
committed another offence, you will be told that you are under arrest for that additional offence." Then you say: "It could have been on?" "It could well be. As I recall it, I wrote that down when you came in. It could well be it was written on afterwards. That would be perfectly legitimate." "Just a
minute, Mr. Hulbert. How long after it is either written down on when he arrives, the reason for arrest is written down, assuming it is not done then, when would it be done?" As soon as I am made aware that there are other circumstances. In this case, I have written this down, as I recall it, when you came in." "It has my signature right underneath?" That is you asking the question. Well, what he is saying is that, as far as he recollects it, he has done it himself.

[Note - What Justice Smith is doing there is quoting from one of Mrs. West's transcripts that is alleged to be false.]

MR. HULBERT: Yes, it is.

MRS. JUSTICE SMITH: But it could be that it was done by somebody else later. Then, when he sees it, he says it is his own writing.

[Note - again from the allegedly false transcript.]

MR. HULBERT: He did say that at one point. But five or six times he is certain that he wrote it.

MRS. JUSTICE SMITH: Well, show me where he is certain

MR. HULBERT: At 20 -- you have not got the letters on the transcript, have you? "I wrote that down when you came in," that is just below the middle of the page on page 20.

MRS. JUSTICE SMITH: On page 20?

MR. HULBERT: Yes.

MRS. JUSTICE SMITH: "As I recall it, I wrote that down when you came in. It could well be it was written on afterwards. That would be perfectly legitimate." He is not saying he is certain. He is saying: "As I recall it - but it is several months ago - I wrote it."

[Note - again from the allegedly false transcript.]

MR. HULBERT: May I ask where you are now, my Lady?

MRS. JUSTICE SMITH: I am looking at the passage that you have asked me to look at in the middle of page 20.

MR. HULBERT: Page 20.

MRS. JUSTICE SMITH: "It could well be. As I recall it, I wrote that down when you came in. It could well be it was written on afterwards. That would be perfectly legitimate." So he is trying to help you as far as he remembers. But he is agreeing with you, very helpfully, as you may think, he is agreeing with you it could be later.

[Note - this gets funnier and funnier: Justice Smith is telling me that he is trying to help me by reading the allegedly false transcript. The evidence she is reading is false which is my case and here she is trying to make out that it's true evidence.]

MR. HULBERT: Yes. "As far as I recall, I wrote that down when you came in." Then at F, which is below: "In this case, I had written this down, as I recall, when you came in." On the next page, just about the middle: "As far as I remember, it was there when you came in." At G (near the
bottom): "The 'Assault Police' was written when you arrived." At the very bottom: "I can contend that the 'Assault Police' was written when you arrived?" That is five or six definite assertions from the Sergeant that is was written when I arrived. However, may I go on to Mrs. Watson's transcript,
please?

MRS. JUSTICE SMITH: Yes, Mrs. Watson.

MR. HULBERT: There are a number of purported pieces of evidence in the transcript that I am dubious about. I refer only to the evidence that I am absolutely certain is falsely omitted.

The most important omission in the transcript of Jean Watson's evidence is the false testimony given in examination that the taxi driver had told the officers that he saw a man running into a house after refusing to pay. This evidence was given to support the second false statement signed by the taxi
driver - which I have here - who had already testified.

MRS. JUSTICE SMITH: You say that that has been removed from her testimony, do you?

MR. HULBERT: Yes, it has.

MRS. JUSTICE SMITH: So she said that the taxi driver .... ?

MR. HULBERT: Had reported.

MRS. JUSTICE SMITH: Had reported .... ?

MR. HULBERT: Had reported a man running into a house, after refusing to pay.

MRS. JUSTICE SMITH: Refusing to pay. Yes?

MR. HULBERT: Which supported the taxi driver's false statement.

MRS. JUSTICE SMITH: That is the taxi driver said to the ....?

MR. HULBERT: In a second statement that he made, yes, a CJA Statement.

MRS. JUSTICE SMITH: But what did he say to the court? That is what we are concerned about.

MR. HULBERT: He didn't say the same thing. He said it wasn't in his sentence. I have his transcript here as -- well, it wasn't his evidence, more or less. The Police Officers wrote it down, took it, put that down, and he signed the statement.

MRS. JUSTICE SMITH: Supported --

MR. HULBERT: But his evidence was not that he did report a man running in the house after refusing to pay.

MRS. JUSTICE SMITH: That he did not, or that he did?

MR. HULBERT: That was not his evidence, no. That was only in his CJA Statement.

MRS. JUSTICE SMITH: I see. Yes?

MR. HULBERT: Now, Judge Simpson omitted that, to protect her from the consequences of obvious perjury after the taxi driver had testified.

MRS. JUSTICE SMITH: Judge Simpson has removed that evidence from the transcript?

MR. HULBERT: Yes. But once again, my Lady, Judge Simpson overlooked my cross-examination of Jean, by failing to omit my questions to her about running into a house after
refusing to pay. That significant piece of evidence is found on page 8B and C.

MRS. JUSTICE SMITH: Yes. But the whole point of this passage that the judge is trying to explain to you is that this witness cannot answer questions about what happened, because she was not there. All she can answer, for what it is worth, is what the taxi driver told the Police.

MR. HULBERT: That is correct.

MRS. JUSTICE SMITH: Which is hearsay. The judge is not very interested in this, and does not really want the jury to listen to it because it is hearsay.

MR. HULBERT: That is right, my Lady. The point is, that I put that question to her about 'running into in the house after refuse nothing pay', I would not have been able to put in that question to her if she had not have testified in examination that the taxi driver had reported a man running
into her house after refusing to pay, because 'running into her house after refusing to pay' certainly is not in her CJA Statement.

MRS. JUSTICE SMITH: I am sorry, I do not understand this at all.

MR. HULBERT: Well, my point is: why would I 'ask her that question about 'running into the house,' and so she had not testified --

MRS. JUSTICE SMITH: You are saying to her: "Your statement does not say that I ran into the house after refusing to pay?" And the judge says: "Well, of course it does not say that, because she does not know; she was not there."

MR. HULBERT: I understand that, yes.

MRS. JUSTICE SMITH: Well now, I do not understand your --

MR. HULBERT: My point is: why would I mention 'running into the house' at all if nobody had mentioned it?

MRS. JUSTICE SMITH: Well, you tell me that the taxi driver had said that in a statement.

MR. HULBERT: Yes. But I am not cross-examining the taxi driver, I am cross-examining Jean.

MRS. JUSTICE SMITH: Well, she does not --

MR. HULBERT: Why should I say that she said that, you know, to put it wrongly? Why should I say that she had said that if she had not testified to that?

MRS. JUSTICE SMITH: Where do you --

MR. HULBERT: Not that she said --

MRS. JUSTICE SMITH: Where do you put it to her?

MR. HULBERT: Pardon, my Lady?

MRS. JUSTICE SMITH: Where you do put it to her that she has said that the taxi driver has told her that?

MR. HULBERT: I put my question the wrong way. I framed it the wrong way, my Lady.

MRS. JUSTICE SMITH: "You did say that I went in, refusing to pay, when you were giving your evidence before?"

MR. HULBERT: I am sure I mentioned the word 'running' in that somewhere. At "You said that I was running into the house.' I should have said is: "You were told....."

MRS. JUSTICE SMITH: Look Mr. Hulbert, we are not here to discuss whether you asked the right questions of this witness. You were acquitted, and that is an end to that.

[Note: The witness's evidence is alleged to have been tampered with and it was not, or should not have been the end to that: we were there to consider my claim]

MR. HULBERT: I am trying to make a point.

MRS. JUSTICE SMITH: You are trying to suggest that your Judge -- you are telling me that Judge Simpson has tampered with the transcript. Well, I am trying to understand what you say he has tampered with and to what end. At the moment I cannot see for the life of me.

MR. HULBERT: The end is to protect the police.

MRS. JUSTICE SMITH: I know that is what you say. But what I am trying to understand is what you say he has actually done to the words, and how the alteration of those words came to produce the effect that you say it was designed to have. That is what I am trying to understand, and I am finding it very difficult.

MR. HULBERT: yES. Well you say you are finding it very difficult, but I am just telling you that I would not have asked -- I would not have mentioned the word 'running' at all if she had not have testified that the taxi driver had told them that he purported -- that the taxi driver had told them that I was running into a house after refusing to pay. I wouldn't have used the word 'running' at all. I would have had no reason to.

I have Mr. xxxxxxxx'x false statement here: "On Tuesday 18th June 1991. I reported a fare running into a house after refusing to pay." Jean Watson backed that up when she gave evidence. I am absolutely certain that I asked the questions under cross examination, (hers) and I knew what I was after. I am not suggesting that Judge Simpson did anything -- I am saying that he did it. I know. I was there. There is no question in my mind.

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: I do not think I should say much more about the evidence of the transcripts, because you seem to be not bothered about it at all.....

MRS. JUSTICE SMITH: I am very bothered about it.

MR. HULBERT: ....it seems to me. Well, I will go on a little piece more.

MRS. JUSTICE SMITH: If you want to try again to explain to me the point that you make about the taxi driver and Mrs. Watson, by all means try again. It is only fair that I should tell you that I am unable to follow the point that you are making. I would do exactly the same if I failed to
follow what Mr. Richardson was saying to me.

MR. HULBERT: Well, I shall try again, my Lady. Mr. XXXXXXX (the taxi driver) made what I say is a false statement, and it's just about proved, in that he said that he had reported a man running into a house after refusing to pay. Now, the Officer PC Newiss, PC Newiss testified, and I asked him if the taxi driver had reported a man running into a house after refusing to pay. PC Newiss (the officer in the case) said no, he hadn't. Mr. XXXXXXX himself would not say that he had reported a man running into a house after refusing to pay.

MRS. JUSTICE SMITH: I am sorry, you dropped your voice then.

MR. HULBERT: This taxi driver himself in testimony would not agree with his own statement that he had reported a man running into the house after refusing to pay.

Yes. Now, when it came to the time of Jean Watson's turn to give evidence, she immediately supported the taxi driver's false statement, by saying that he had reported a man running into a house after refusing to pay. That has been omitted. I do not know if you do not seem to be able to understand, but in cross-examination I put that question to her wrongly, because she could not say that I was running in; she was not there, obviously, so I should not have done it that way. What I should have said to her is: "You said that you were told that a man was running into a house after refusing to pay?" I didn't put it that way. That is why Judge Simpson picked me up.

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: But my point is, as I say, I should have said: "You were told that a man was running into a house after refusing to pay?" Now, I wouldn't have said that to her if she had not backed up that false statement in examination.

I do have copies of all my questions to all of the witnesses bar one, my Lady, and that witness is Sergeant Starns. The copy of the questions I put to him went missing during a luncheon interval in Court No.2, while it should have been locked up, or while it was locked up. The court was locked at the luncheon interval.

MRS. JUSTICE SMITH: Yes. So?

MR. HULBERT: Well, I am just mentioning it, for what it is worth, that I do not have the questions I put to Sergeant Starns. ú

MRS. JUSTICE SMITH: I see. Yes? You say you would not have cross-examined her if she would have not said that?

MR. HULBERT: I wouldn't have asked that question in cross-examination.

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: My Lady, I should say that I am doing the best I can now simply. I can't afford -- I can't get Legal Aid, because nobody -- and I can't get a solicitor to do it for me. I am having to do this myself.

MRS. JUSTICE SMITH: Yes. I appreciate that.

MR. HULBERT: It is a hard thing to believe.

MRS. JUSTICE SMITH: What is a hard thing to believe?

MR. HULBERT: It is very hard to believe that a judge would do what I am saying he has done. It is difficult for me to get anybody to represent me.

MRS. JUSTICE SMITH: Yes.

MRS. JUSTICE SMITH: It is not for me to question the advice that you have been given, Mr. Hulbert, and I am not going to do so. I do not know - and I do not want you to tell
me - what advice you have been given.

MR. HULBERT: This has been worrying me for a number of years. It has caused a lot of upset in our family.

MRS. JUSTICE SMITH: Yes. It may be that you have become obsessed with the case.

MR. HULBERT: I have, my Lady.

MRS. JUSTICE SMITH: Yes, Well now, what else do you want to say?

MR. HULBERT: Well, I do not think there is much more I can say that will do me a lot of good, to tell you the truth, my Lady. Of course, I ask for my appeal to be allowed.

MRS. JUSTICE SMITH: Yes. Do you want to say anything else, Mr. Hulbert?

MR. HULBERT: Well, there is one point I am not very clear about: District Judge Weston struck the Statement of Claim on the grounds that there is no alleged cause of action, and my appeal is against that.

MRS. JUSTICE SMITH: Yes, I understand that.

MR. HULBERT: He did not strike it out on the grounds of Counsel who was trying to have it struck out, so I am wondering where that puts me, as far as that hearing goes, the Order made by Judge Weston.

MRS. JUSTICE SMITH: Well, I did explain to you on the last occasion, because I specifically remember doing so, that this was a rehearing of the application, the Defence
application that your case should be struck out, your Statement of Claim should be struck out, and that I would make my mind up afresh. It is open to the Defendants to advance different grounds before me from those which were advanced before Judge Weston. So you are entitled to do that.

MR. HULBERT: Yes. May I ask this, my Lady: have the Respondents demonstrated that my Statement of Claim is scandalous yet, or do they still have to address you on that
score?

[Note - Justice Smith was waiting for the different grounds to strike out the Statement of Claim and plainly that's an admission that District Judge Weston wrongly exercised his discretion by striking out the claim as disclosing no reasonable cause of action. Mrs, Justice Smith never did strike out the claim on any other ground, but she did dismiss the appeal for and I have no hesitation in saying it, the protection of a colleague. She therefore abandoned the very principle that she'd held six months earlier: "that it must never be asserted that any of us (judiciary) have indulged in any kind of protection of a colleague, however eminent they may be."]

MRS. JUSTICE SMITH: Well, I am going to call on Mr.Richardson in a moment or two. But I am waiting to find out whether you have finished what you want to say?

MR. HULBERT: Yes, I have, my Lady.

MRS. JUSTICE SMITH: Yes. Mr. Richardson?

MR. RICHARDSON: My Lady, my submission is that all that has fallen from Mr. Hulbert today, and indeed on the last occasion, pulling it together and taking his Statement of Claim and looking at it in the most benevolent way that one can, is obviously unsustainable.

The essence of what he is saying, is that judge and a shorthand writer, for reasons which are not entirely clear to me, they may be to your Ladyship, but certainly not to me ....

MRS. JUSTICE SMITH: Well, I think I understand what the allegation is.

MR. RICHARDSON: .... which the rationale for doing it, as we understand it, in some way to defeat a civil claim that Mr. Hulbert wished to, at that stage, launch for --

MRS. JUSTICE SMITH: To hinder it.

MR. RICHARDSON: To hinder it.

MRS. JUSTICE SMITH: And, thus, the judge and the shorthand writer have, for those reasons, in one case deliberately fabricated evidence.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: And in another case deliberately omitted evidence which was said.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: If one looks at the transcript - and we certainly can see it in particular on page 20 - the points which Mr. Hulbert has sought to say have been, in my
submission, amply demonstrated to be manifestly wrong. Your Ladyship referred to the relevant passage and the answer given. The officer's evidence was utterly clear on this particular point. He was asserting that his recollection was that he did write the relevant passage down at the time, but
he may be wrong about that, wholly fair.

[Note: here is Mr. Richardson following Justice Smith's lead by inferring that the transcript is true.
It is ludicrous to suggest that a transcript that is alleged to be false can be used as evidence of its truth. There can be little doubt that both Mr. Richardson and Justice Smith knew that such a submission was utter nonsense and the advres inference is very clear.]

MR. HULBERT: May I interrupt, my Lady?

MRS. JUSTICE SMITH: No. Mr. Richardson did not. You will have another opportunity, but you will not interrupt.

MR. RICHARDSON: And, thus, in my submission, that particular point is demonstrably in error. As for the other point on page 8 in which Mr. Hulbert has sought to say, where he is for saying, as I understand it, he asked a question which was in the following way: "It doesn't say that in the statement. I am trying to make a point. You said I was running into the house?" He is seeking to say that the officer has said that at an earlier part of her evidence, which the judge has managed to direct Mrs. West to delete, has said that. There is no evidence, not a jot of evidence to
suggest that is the position. It is purely Mr. Hulbert's recollection that --

MRS. JUSTICE SMITH: Yes. He is entitled, is he not, to say: "This is my recollection." And for today's purposes, provided the case is adequately pleaded, for today's purpose we have to assume that his evidence is capable of being accepted.

MR. RICHARDSON: Yes.

MRS. JUSTICE SMITH: Yes. Well now, it seems to me that his difficulty is that, even if accepted, where does it take him?

[Note: "if accepted" the answer is obvious]

MR. RICHARDSON: Nowhere, in my submission. He is seeking to say that there has been some sort of conspiracy to pervert the course of justice. The evidence which you have from the shorthand writer, Mrs. West, is utterly clear.

MRS. JUSTICE SMITH: Do you say that, if the judge were to accept Mr. Hulbert's evidence that the words were either not spoken, or were spoken and have been ....

MR. RICHARDSON: Omitted for some reason.

MRS. JUSTICE SMITH: .... cut out, that the tampering that he alleges is accepted as an issue of fact, that it would not be open to the judge to draw the inference of conspiracy to pervert?

MR. RICHARDSON: No. He has got to go a great deal further than just saying "it is left out". All he seems to be saying at the moment is that "it appears to have been left out" or "there appear to have been some additions in some way."

MRS. JUSTICE SMITH: No. What I am putting to you, Mr. Richardson, is: let us suppose for a moment that the judge at trial, the notional trial, hears the evidence, looks at the transcript, accepts Mr. Hulbert's evidence that there are differences between the transcript and reality, that the
transcript is inaccurate in the ways that he alleges ....

MR. RICHARDSON: Yes.

MRS. JUSTICE SMITH: ...now then, Mr. Hulbert has always had to accept that he has no direct evidence of conspiracy. The whole case must depend (if at all) on inference.

[Note: the evidence of the tampered with notebooks and the later witness statement made by the police officer that cotradicts the evidence in the transcript and the case rested upon the evidence whereupon the inference of conspiracy could be drawn if the allegations were not admitted]

MR. RICHARDSON: Yes.

MRS. JUSTICE SMITH: He may seek to amend to add evidence of tampering with the notebooks, but let us leave that out of the account. At the moment, the case must depend on inference. Do you say that it is not open to a judge to draw the inferences which Mr. Hulbert seeks to have drawn?

MR. RICHARDSON: Not on this evidence. If he had something else, in the shape of a statement, which, as your Ladyship put to him, "I didn't say that. I wouldn't have said this. It does not accord with my recollection of the events."

MRS. JUSTICE SMITH: But that goes to the -- you mean for Mrs. West, for example, as we have looked at today, or PC Starns?

MR. RICHARDSON: PC Starns, or somebody of that kind. Or a tape, for example, if there had been one, demonstrably wrong. But ....

MRS. JUSTICE SMITH: But that is factual.

MR. RICHARDSON: .... even if you accept all of that, it is wrong. In other words, the statement is what is written down on the --

MRS. JUSTICE SMITH: That is what we are working on at the moment; hypothetically the judge accepts that factually it is wrong.

MR. RICHARDSON: It does not make the giant leap into a conspiracy.

MRS. JUSTICE SMITH: Could he?

MR. RICHARDSON: He would need rather more than this, because it is such a very serious thing to assert. Just because it is wrong, I mean, for example --

MRS. JUSTICE SMITH: Assuming there are mistakes, assuming that it is wrong - there are two possibilities that spring to mind, one is mistake, the other is something more sinister, deliberate alterations - why do you say it is not possible for the judge to draw the inference?

MR. RICHARDSON: Of this evidence?

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: Because, on this evidence there is nothing glaringly inaccurate about the evidence, or the transcript, or anything of that kind. There has been nothing shown to your Ladyship, apart from the Plaintiff's recollection, it does not accord with his recollection.
Conspiracy, particularly conspiracy of this kind involving a judge and a shorthand writer, should only be permitted to go ahead, in my submission, and could only be obviously sustainable, if there was the plainest possible evidence.

MRS. JUSTICE SMITH: That is putting it a bit high, is it not? If there is something from which the judge could draw the inference which the Plaintiff seeks to have drawn, it should go for trial.

MR. RICHARDSON: Yes. On that basis, something along the lines of, not only somebody saying that that does not accord, but something on the face either of the documents, either forensically, or it just looks wrong, there are pages missing, and matters of that kind.

MRS. JUSTICE SMITH: Yes, but that is factual, you see. To my mind, I think maybe it is a shame that this matter simply did not go to a judge to hear the evidence and make his or her mind up about whether the burden of proof is satisfied that this material is false. But my difficulty is that, at
the present time, I have to work on the assumption that the Plaintiff is in a position to prove factually on the basis of his own evidence, because he is going to say "these are the words that were said."

MR. RICHARDSON: Yes. But if it is obviously unsustainable, to use the words in the case of the Duchy of Lancaster v. The London Northwestern Railway, if it is obviously unsustainable - it is reported in 1892(3) Chancery, but it is in the section there, that is.the phrase --

MRS. JUSTICE SMITH: 1819?

MR. RICHARDSON: Order 18, rule 19.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: "Frivolous and vexatious".

MRS. JUSTICE SMITH: Yes: "Obviously frivolous or vexatious or obviously unsustainable".

MR. RICHARDSON: My submission is that, in this particular case, what the Plaintiff is seeking to show is obviously demonstrably unsustainable.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: He has not demonstrated anything at all, and keeps on seeking to assert that simply because it does not accord with his recollection of events, it, thus, must be wrong, and, thus, he makes a giant leap that there must be a conspiracy between the judge and the shorthand writer. He does not even countenance the notion that there might be a mistake.

MRS. JUSTICE SMITH: That, as it seems to me, is the point.

MR. RICHARDSON: He is making a giant leap, and that is obviously unsustainable on the material which he has. Given the affidavit which evidence your Ladyship has before you from the shorthand writer, we have done our best, given that it is a litigant in person, to demonstrate propriety.

Note: truly amazing. The best that had been done was to provide Mrs. West's notebooks with pages missing etc and an affidavit with no demonstable probity contrary to Mr. Richardson's undertaking, but worse than that; Mrs. Justice Smith had the evidence before her, by way of a District Judge's order demonstrating that the affidavit is false: that Mrs, West had failed to comply with his earlier order, which, she had sworn, she did comply with.]

MRS. JUSTICE SMITH: Yes, quite so. I understand that.

MR. RICHARDSON: .... more than we normally would do, because we feel it only right that in a situation of this kind, itis the right thing to do. That is my basic submission.

MRS. JUSTICE SMITH: Yes.

MR. RICHARDSON: I do not think I can assist further. It is as short and as stark as that.

MRS. JUSTICE SMITH: Now then, you wanted to say something else. You are entitled to reply in any event.

MR. HULBERT: Yes. Counsel mentioned something that Sergeant Starns had said in evidence. He is taking that evidence as reliable. I am saying that,they cannot take that evidence as reliable, because it is false. And there is a contradiction between Mrs. West's transcript and Jean Watson's evidence about the time that she made up her notes and Judge Simpson's version of time she made up her notes.

MRS. JUSTICE SMITH: You are dropping your voice again. You see, there is quite a bit of traffic outside. it is important that I hear everything that you say.

MR. HULBERT: There is contradiction between Mrs. West's affidavit of Jean Watson about the time that she made up her notes and Judge Simpson's version of the time that she
made up her notes in his summing up, which was taken down by a different, Mr. Hammerman(?), a different court recorder.

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: Mrs. West's transcript states that she made up her notes at 12:30. Judge Simpson, when telling the jury about the time that she made up her notes, said that she testified that she made them up at 01:30 in the morning. That is only a small contradiction, but it at least proves that both transcripts cannot be true.

MRS. JUSTICE SMITH: Yes.

MR. HULBERT: I have submitted Judge Simpson's summing up to the court.

MRS. SMITH: I am not going to look at that today. There is no allegation in respect of it. Is there anything else?

Note: "no allegation"? The allegation is that false transcripts were provided by Mrs. West and Judge Simpson, in his summing up, contradicts one of the false transcripts; very relevant to the stated fact relied on in the Statement of Claim.]

MR. HULBERT: No, my Lady.

MRS. JUSTICE SMITH: Thank you very much.

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Phoney Judgement of Mrs. Justice Smith
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Judgement of Lord Justice Saville Court of Appeal
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