Judgment

On 9 May 2018, I granted leave under s 32 of the Evidence Act 1995 (NSW) to allow a witness (“AR”) to use a document to revive his memory in the course of giving evidence. These are my reasons for granting leave. When the issue first arose counsel for the accused raised no objection, saying “[u]nder the Evidence Act, I concede [that course] is available to the Crown as a tool”: Transcript (T) p 385. The Crown then asked the witness:

Q: Is your memory exhausted as to your recollection of conversations you said you had with Mr Jenkin?

A: Exhausted? I don’t understand what you’re saying. You’re saying “exhausted”. What do you mean by “exhausted”.

Q: You forgot?

A: Yeah, I can’t remember.

Counsel for the accused then asked to raise a matter in the absence of the witness and the following 16 pages of transcript (T 385-401) records the evidence then given on the voir dire and the submissions made in opposition to the grant of leave. Section 32 provides:

32 ATTEMPTS TO REVIVE MEMORY IN COURT

(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.

(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:

(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and

(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that:

(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or

(ii) was, at such a time, found by the witness to be accurate.

(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.

(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

As to the criterion in s 32(2)(a), it was clear that the witness could not recall the facts he was being asked about (adequately or at all) without using the document. On the other hand, it was not clear that he would be able to recall those facts if he did use the document. It was not clear that the witness could remember what happened a very short time earlier and I doubted that allowing him, as the Crown Prosecutor initially proposed, to read the entirety of his 42 page interview and then return to the witness box, would do anything to improve the quality of his evidence. The evidence he gave before the application for leave under s 32 was granted included the following: [1]

Q. And you spoke to the police at Wollongong, the police station at Wollongong on 17 July 2015, they interviewed you?

A. Yeah.

Q. Do you recall that?

A. I don't recall it, but I know there is a statement there, yeah.

Q. You spoke to two police officers in an interview that was recorded?

A. Yeah.

Q. Do you recall the last occasion you saw Mark Dower?

A. Nup.

Q. Do you know, did you have any conversations about Mark Dower, with Mark Jenkin, before Mark Jenkin was arrested at some point; did you have some conversation with him about Mark Dower?

A. Well, I can't remember but I know it's in the statement, yeah.

Q. What is your memory of, what do you have a memory of, what was said to you by Mark Jenkin about that?

A. Well no, I haven't. Only what I have read in my statement.

Q. When did you read that last?

A. I read it yesterday.

Q. What can you recall the statement you gave to the police, what did that indicate in relation to your recollection of the conversations between, about between Mr Jenkin, about Mr Dower; what do you recall Mr Jenkin saying?

A. Fuck, I can't remember what I said.

Q. Sorry?

A. I can't remember what I said.

Q. Did reading the statement that you made to the police refresh your memory?

A. Well, it did when I read it. You know what I mean. I don't have a very good memory because I used heaps of drugs.

The evidence on the voir dire did not establish that the witness found his statement to be accurate at the time it was made: s 32(2)(b)(ii). It seems the witness adopted the 42 page interview in a subsequent statement but that statement was not tendered on the voir dire although it was later (after I granted leave) marked for identification: MFI 6. There was no evidence on the voir dire as to when the statement was made or whether it asserted that the earlier interview was accurate. For those reasons, the criterion in s 32(2)(b)(ii) was not satisfied or addressed. The bulk of the argument centred on s 32(2)(b)(i) and whether the interview was made when “the events recorded in it were fresh in his or her memory”. The events the witness was expected to give evidence about occurred in around March or April 2015. The interview with the witness was held on 17 July 2015. The accused relied on what was said by the majority of the High Court in Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 at [4]:

The word "fresh", in its context in s 66, means "recent" or "immediate". It may also carry with it a connotation that describes the quality of the memory (as being "not deteriorated or changed by lapse of time" but the core of the meaning intended, is to describe the temporal relationship between "the occurrence of the asserted fact" and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years. (footnotes omitted)

The Crown referred to amendments to s 66 which require the Court to take into account the nature of the event, the age and health of the person and the period of time between the event and the representation: s 66(2A). That amendment was calculated to overcome the strictures of the High Court’s decision in Graham and the singular focus on the temporal proximity of the representation to the event. However, reliance on that amendment is misplaced because no similar amendment was made to s 32. On the other hand, counsel for the accused referred to the decision of Bellew J in R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105. In Rogerson (No 24) his Honour declined to grant leave under s 32 when there was a delay of about one year between the event in question and the police statement the Crown sought to use to revive a witness’s memory. Bellew J held that the event was not “fresh in his or her memory” for the purpose of s 32. However, in doing so, his Honour at [10-12] cited a well-known textbook and a decision of the Victorian Court of Appeal as follows:

10. No corresponding amendment was made to the provisions of s. 32 [this is a reference to s 66(2A)]. In that regard the authors of Uniform Evidence in Australia (Lexis Nexis 2015) make the following observation (at p. 109):

“Under s. 32(2) the freshness of the event in the witness' memory when the events were recorded is just one of the matters that must be taken into account by the Court. Under s. 66(2) it is the only requirement. This difference in drafting together with the liberalisation of the freshness test in s. 66(2)A suggests the Court should not take a liberal approach in its consideration of whether the events were ‘fresh’ in s 32(2)(b)(i). Although there has been no amendment to s. 32 so as to bring it into line with s. 66(2)A, it is suggested that s. 66(2)A provides guidance to interpreting the freshness consideration in s. 32.’

11. In making those observations, the authors make reference to a decision of Roth (a Pseudonym) v The Queen [2014] VSCA 242 where Neave and Priest JJA made the following observation (at [40]):

“Although it is unnecessary to decide the question we would have difficulty in accepting the argument that 'fresh in the memory' for the purposes of s. 32 of the Act should be read in the same manner as it was interpreted in Graham for the purposes of s. 66, which modifies the hearsay rule.”

12. I am left to conclude, in these circumstances, that a generally liberal rather than a restrictive, approach is to be adopted in resolving the present question.

In the present case, the events of which the witness was giving evidence occurred around three months before his statement. The witness’s evidence, and his insightful self-assessment of the quality of his memory, suggested that he had difficulty remembering things that happened yesterday, let alone things that happened months earlier. For example, he said he had read his interview the day before he gave evidence and yet he could remember almost none of the details he provided in that interview. Asked about the conversations he had told the police about in the interview, which he had read 24 hours earlier he replied: “Fuck, I can’t remember what I said.” [2] There was no evidence that AR’s memory was better in 2015 than it is today. In view of the quality of AR’s memory generally, the nature of the events he was being called upon to remember and the delay between the subject events and his police interview, I was not satisfied that the interview was recorded when the events therein recorded “were fresh in [AR’s] memory”. It will be seen that a consideration of the specific criteria in s 32(2) tended to militate against allowing the witness to use the document to revive his memory. However, s 32(2) does not provide an exhaustive set of criteria and commences with the words “[w]ithout limiting the matters that the court may take into account”. A number of other matters militated in favour of granting leave to assist a witness who was clearly struggling. For example, the matters set out in s 192(2) of the Evidence Act pulled in the direction of the grant of leave. Section 192 of the Evidence Act provides:

192 LEAVE, PERMISSION OR DIRECTION MAY BE GIVEN ON TERMS

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d) the nature of the proceeding; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

Based on those criteria, and considering the interests of justice as a whole, I determined that leave should be granted. In particular, I determined:

Granting leave would not unduly lengthen the trial: s 192(2)(a).

The fact that the witness was using the aid was patent to the tribunal of fact and would accordingly not cause any unfairness to the accused man: s 192(2)(b).

The evidence of the conversation the witness had with Mr Jenkin was potentially important: s 192(2)(c).

The nature of the proceedings – a murder trial – suggested to me that there should be some attempt to allow the witness to revive his memory: s 192(2)(d).

Neither counsel suggested any other order or direction that could be given in relation to the evidence: s 192(2)(e). As I have said, I did not think the proposal to excuse the witness to have him read the 42 page interview was likely to improve the quality of the evidence. Rather, it was likely to waste time with little practical benefit.

I also took into account the observations of Bellew J in Rogerson (No 24) to the effect that the section should be interpreted and applied in a “generally liberal”, rather than restrictive way. It is not necessary to consider that observation further, and each case will be determined on its own facts and in accordance with the terms of the statute and the interests of justice, but I was satisfied that leave should be granted under s 32(1) in the present case. I did not grant leave under s 32(3) allowing the witness to read aloud from his statement. No application was made under that subsection and, given the witness’s manifest memory issues, it would not have been fair to allow him to read from an interview which he scarcely remembered making.

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Endnotes 1. T 383(46). 2. T 384.

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