Citation: Regina v Amir Ibrahim El Mostafa and Saleh Khodr [2007] NSWDC 331
Court: District Court of New South Wales
Date: 23 April 2007
Judge(s): Cogswell SC DCJ
Background
Two accused were on trial in the District Court. During the Crown's examination-in-chief of a witness, the Crown Prosecutor sought leave to show that witness a police statement he had made approximately two weeks after the events in question.
The statement dated 11 February 2005 related to events that occurred on 30 January 2005. The specific portion the Crown sought to use contained the words "If you vote you will die," which the witness had not volunteered in his oral evidence. The Crown's purpose was to refresh the witness's memory about those particular words allegedly spoken by one of the accused.
Defence counsel for one of the accused opposed the application, raising concerns about the accuracy of the statement and whether the events had genuinely been fresh in the witness's memory when the statement was made. The opposition was strengthened by the fact that an amendment to the statement had already been made during the proceedings.
Legal Issues
- Whether leave should be granted under section 32 of the Evidence Act 1995 for a witness to use a document to revive his memory during evidence-in-chief
- Whether the events recorded in the statement were "fresh in the memory" of the witness at the time the statement was made, as required by section 32(2)
- Whether granting leave would be fair to the accused, having regard to the discretionary considerations in section 192 of the Evidence Act 1995
Decision
The court refused the Crown's application. The central issue was whether the witness's memory of the specific words had been fresh when he made the statement almost two weeks after the incident. Drawing on The Queen v Van Beelen (1972), the court accepted that the relevant test is not strict contemporaneity but rather whether the facts were genuinely fresh in the witness's memory at the time of making the document.
The court found it difficult to accept, given the passage of nearly two weeks, that the precise wording of a specific utterance would have been fresh in the witness's memory when the statement was made. The fact that the altercation was followed by events described by the Crown as a riot, and that those events attracted significant publicity, was also taken into account. The court reasoned that such a surrounding context could further undermine confidence that a witness's specific recollection of particular words remained uncontaminated.
The court also noted that the Crown fairly conceded the additional words were not overwhelmingly significant to the proceedings, and that granting leave would not be fair to the accused, as contemplated by section 192(2)(b) of the Evidence Act 1995. Weighing all these factors, leave was refused.
Orders Made
- The Crown's application for leave under section 32 of the Evidence Act 1995 for the witness to refresh his memory from the document was refused.
Key Takeaways
- The District Court confirmed that the test under section 32(2) of the Evidence Act 1995 for refreshing memory is not strict contemporaneity but genuine freshness of memory as a question of fact, following The Queen v Van Beelen.
- A gap of almost two weeks between the relevant events and the making of a witness statement was found sufficient, in the circumstances, to cast doubt on whether the specific contents of that statement were fresh in the witness's memory when made.
- The surrounding context of an event matters: where significant public events follow the incident in question, a court may take into account the risk that a witness's specific recollections could be influenced by those subsequent events.
- Under section 192(2)(b) and (c), both the fairness of granting leave to the opposing party and the relative importance of the contested evidence are relevant considerations in the court's discretion.
- A prior amendment to a witness statement can weigh against granting leave to use that statement for memory-refreshing purposes.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 32, 192
Cases:
- The Queen v Van Beelen (1972) 6 SASR 534 (Supreme Court of South Australia, Sangster J)