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BSA 2023 § 164 — Right of adverse party as to writing used to refresh memory

§ SECTION 164 · BSA 2023 · CHAPTER X — OF EXAMINATION OF WITNESSES

Right of adverse party as to writing used to refresh memory

Fair sight of the note. Any writing a witness used to refresh his memory (§ 162) or as a record of forgotten facts (§ 163) must be produced and shown to the opposite party if he asks — and that party may cross-examine the witness on it.

How to read Section 164

If a witness leaned on a writing to refresh his memory, the other side may demand to see it — and may cross-examine him on it.

The writing

Any writing referred to under § 162 or § 163 — the note used to refresh, or the record relied on.

Produced on demand

Must be produced and shown to the adverse party if he requires it.

And tested

That party may, if he pleases, cross-examine the witness upon the writing.

The bare Act

The section in its own words — a single, reciprocal right.

Section 164 · verbatim

Any writing referred to under the provisions of the two last preceding sections shall be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.

In short: a witness who leans on a writing — whether to refresh his memory under § 162 or to speak to facts he no longer recalls under § 163 — cannot keep that writing to himself. This section gives the adverse party a matching right of fair sight: on his requirement, the writing shall be produced and shown to him. He is thus able to see for himself the very document the witness relied on — to check what it actually says, whether it was made when the section requires, and whether it truly supports the evidence given. And he may go further: he may, if he pleases, cross-examine the witness upon that writing — probing its making, its accuracy, and any discrepancy between the writing and the testimony. The provision embodies a simple principle of fairness and equality of arms: a witness may not shore up his evidence with a private note the other side can neither see nor test.

→ This carries forward IEA 1872 § 161 — the adverse party may inspect and cross-examine on a writing used to refresh memory.

Glossary

writing referred to under the two last preceding sections

Any writing used under § 162 (refreshing) or § 163 (recorded facts).

produced and shown to the adverse party

Made available for the opponent to inspect.

if he requires it

The right arises on the adverse party’s demand.

cross-examine the witness thereupon

Question the witness about that writing.

the adverse party

The opposing side.

equality of arms

The rationale — the opponent sees and tests what the witness leaned on.

The picture

The note a witness leaned on is not a private crib — the other side may see it and question him on it.

witness used a writingto refresh (§ 162) or asa record (§ 163)adverse party requires it→ PRODUCED & SHOWNhe sees it for himselfand may CROSS-EXAMINE on ittest its making & accuracyequality of arms — no private note the other side cannot see or testthe opponent may check whether the writing truly supports the evidencea fair-play rider on the refreshing-memory rules of §§ 162–163

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

produced & shownThe refreshing writing must be shown to the other side on demand

In one lineAny writing used under § 162 or § 163 must be produced and shown to the adverse party if he requires it.
the writing the witnessleaned on(refresh or record)shown to the OTHER sideon his requirementthe opponent may see the very document relied on
Any writing referred to under the provisions of the two last preceding sections shall be produced and shown to the adverse party if he requires it;on demand, the writing must be shown…the § 162/§ 163 writing is not private — the adverse party is entitled to see it.
ExampleA witness refreshes his memory from his diary. The opposing counsel may require it be produced, and inspect what it actually records — and whether it was made when the section allows.
✗ Not thisThe witness cannot keep the writing back. Once he has used it under § 162/§ 163, the adverse party’s requirement to see it must be met.

cross-examineAnd the other side may question the witness upon it

In one lineThe adverse party may, if he pleases, cross-examine the witness upon that writing — probing its making, accuracy and any discrepancy.
having seen the writing, the adverse party may cross-examine on itwho made it? when? is it accurate? does it match the evidence?its MAKINGby whom & whenits ACCURACYis it reliable?any DISCREPANCYwriting vs testimonythe reliance on the writing is fully open to challenge
such party may, if he pleases, cross-examine the witness thereupon.→ and may cross-examine the witness on the writingthe opponent may test the witness’s reliance on it — its making, accuracy, and fit with the evidence.
ExampleShown the diary, counsel may put to the witness that an entry was added later, or that it differs from his oral account — exposing any weakness in his reliance on it.
✗ Not thisThe right ensures the writing can be seen and tested; it is a rule of fair procedure. It does not, by itself, turn the note into the calling party’s own substantive exhibit.

Connected provisions

§ 162 · refresh

Refreshing memory

The writing a witness uses to refresh — now open to the adverse party’s inspection.

§ 163 · back

Testimony to recorded facts

The record relied on though not recalled — equally subject to this right.

§ 165 · next

Production of documents

Bring the summoned document despite objection; the court decides, may inspect (save matters of State), and never requires Minister–President papers.

lineage

IEA 1872, § 161

Carried forward — the adverse party may inspect and cross-examine on a writing used to refresh memory.