Crown Allowed to Revive Witness Memory Using Document

The court granted the Crown's application to allow a witness to refer to a document to revive memory regarding telephone numbers in a criminal trial involving serious offenses. The decision was based on the relevance of the evidence and the absence of unfairness to the accused.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] & Ors (No 38) [2016] NSWSC 743 Hearing dates: 7 June 2016 Date of orders: 07 June 2016 Decision date: 07 June 2016 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Application for leave to revive memory granted. Catchwords: CRIMINAL LAW – application by Crown to revive memory in court – telephone numbers – not a memory test – leave granted – no point of principle Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: [NAME]: Counsel: [redacted] J Stratton SC & M Curry ([NAME]) P Young SC ([NAME]) [NAME]([NAME]) [NAME] ([NAME]) [NAME] ([NAME])

Solicitors: [redacted] [NAME] ([NAME]) [NAME] ([NAME]) [NAME] ([NAME]) [NAME] ([NAME]) [NAME] ([NAME]) File Number(s): [NAME] - 2014/6809; 2014/315201; 2014/315252Mumtaz [NAME] – 2014/6813; 2014/315251; 2014/315260Jamil [NAME] - 2013/336086; 2014/18164; 2014315253Mohammad [NAME] – 2014/316236Mohammad [NAME] - 2013/344739; 2014/66939 Publication restriction: No publication until the conclusion of the trial.

Judgment 1. During the course or the examination of a witness known as Witness E, the Crown sought leave under s 32 of the Evidence Act 1995 (NSW) for the witness to revive his memory in relation to the mobile telephone numbers of three relevant people. [NAME] opposed the grant of leave. Leave was granted for the following reasons.

2. Section 32 of the Evidence Act 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."

1. When asked about the telephone numbers the witness indicated that he was unable to recall them and was led in such a way that all that could be said was that he accepted what the Crown Prosecutor was telling him that was recorded in his police statement. [1] Objection was taken to the witness being taken to relevant parts of his statement and the statement was marked for identification. [2] The Crown Prosecutor then adduced the following questions: "Q. Just in relation to the statement you made on 1 August 2014, clearly it was closer to the time that these things happened, is that correct, your contact with these people? A. Yes. Q. At the time you made the statement, were you able to recall the phone numbers for these people? A. Yeah, at the time I was but now it's been so long I don't remember. Q. When you made the statement and those particular phone numbers were given, were you satisfied that the statement accurately recorded the phone numbers you provided? A. Yes, yes."

1. The Crown then made the application under s 32 of the Evidence Act.

2. The statement in question was made on 1 August 2014. It seems that was a considerable period of time after the witness last used the telephone numbers.

Accordingly, at the time, I was inclined to accept the defence counsel's submission that the statement was not fresh in the memory of the witness for the purpose of s 32(2)(a) of the Evidence Act.

3. However, I was satisfied that the consideration in s 32(2)(b) of the Evidence Act was satisfied. That is, the witness found the record of the telephone numbers to be accurate at the time he made the statement.

4. Subsection (2) does not provide an exhaustive list and the factors in s 192 of the Evidence Act are also relevant. Some of those factors are relevant – forcing the Crown to prove these telephone numbers by some other means would have added to the length of the trial, the evidence is important and the proceedings involve a number of serious allegations of criminal offences including murder and attempted murder. No unfairness to the accused was identified.

5. Giving testimony in a criminal trial is not a memory test. These days, very few people memorise telephone numbers. That is because they keep the telephone numbers of their friends, colleagues and associates in the contact list on their mobile telephone. As it turned out, evidence later emerged that the witness did not have an actual memory of the three telephone numbers. Rather, in making his statement to the police, he extracted the numbers from his telephone. [3]

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Endnotes 1. T 2731.

2. T 2731.

3. T 2734. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2016