Citation: R v DX (No 2) [2011] NSWDC 165
Court: District Court of New South Wales
Date: 24 June 2011
Judge(s): Cogswell SC DCJ
Background
The proceedings concerned a disputed facts hearing in a sentence matter involving historical sexual offences alleged to have occurred in the mid-1990s. The Crown sought to have a witness refresh her memory from a statement she had given to police on 17 May 2011, approximately fifteen years after the events in question.
The Crown applied for leave under s 32 of the Evidence Act 1995 to permit the witness to use that statement. Counsel for the offender objected, arguing that the statutory requirements for memory refreshing had not been satisfied.
Legal Issues
- Whether a witness may refresh her memory under s 32 of the Evidence Act 1995 from a statement made approximately fifteen years after the events recorded in it.
- Specifically, whether the phrase "such a time" in s 32(2)(b)(ii) refers to the time when the statement was made, or to the earlier time when the events were fresh in the witness's memory.
Decision
The Crown's position was that s 32(2)(b)(ii) permitted the use of the statement because the witness had, at the time of making it, found its contents to be accurate. The statement itself confirmed this in its opening paragraph. On this reading, "such a time" simply meant the time the document was made.
The court rejected that interpretation. Cogswell SC DCJ accepted the defence submission that "such a time" refers back to the point in time when the events were fresh in the witness's memory, as required by s 32(2)(b)(i). The phrase does not stand alone; it is anchored to the freshness requirement earlier in the subsection.
The court drew support from the Australian Law Reform Commission's report (ALRC 26, volume 1, paragraph 165), which indicated that the relevant consideration is whether the document was verified by the witness as accurate at a time when the facts were fresh in her memory. Accepting the Crown's broader interpretation would allow any witness to refresh from a document made years after the events, regardless of whether memory was fresh at the time. The court agreed with defence counsel that this would defeat the purpose of the section.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court held that the phrase "such a time" in s 32(2)(b)(ii) of the Evidence Act 1995 refers to the time when the recorded events were fresh in the witness's memory, not merely the time the document was created.
- Under s 32(2)(b), it is insufficient for a witness to have verified a document as accurate at the time of making it; that verification must have occurred when the underlying events were still fresh in the witness's memory.
- A statement made approximately fifteen years after the events it records does not satisfy the requirements of s 32(2)(b), even if the witness attested to its accuracy at the time of making it.
- Recourse to the ALRC report (ALRC 26, volume 1, paragraph 165) supported a construction of s 32 that preserves the section's purpose of requiring temporal proximity between the events and the creation or verification of the document.
- Interpreting "such a time" as referring only to the moment of document creation would, the court found, effectively render the freshness requirement in s 32(2)(b)(i) meaningless.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 32
Secondary materials:
- Australian Law Reform Commission, Evidence (ALRC Report 26, volume 1, 1985), paragraph 165