Citation: R v Abdollahi (No 7) [2013] NSWSC 480
Court: Supreme Court of New South Wales
Date: 13 March 2013
Judge: R A Hulme J
Background
This decision arose from a criminal trial involving multiple accused persons charged in connection with a disturbance at an immigration detention facility on 20 April 2011. An important prosecution witness, a Serco staff member, had made contemporaneous notes during the disturbance and later provided a series of formal statements to police.
When the witness gave evidence, she was unable to recall certain incidents and the identities of detainees involved in them. The Crown applied for leave to allow her to use her notes and earlier statements to revive her memory while giving evidence.
Defence counsel for several accused objected to the application on various grounds, including concerns about the reliability and fairness of the note-taking process, the unavailability of original post-it notes, and the fact that the nominal roll on which the witness recorded notes also contained notes made by other officers.
Legal Issues
- Whether the court should grant leave under s 32 of the Evidence Act 1995 (NSW) for the witness to use documents to revive her memory while giving evidence
- Whether the documents in question were made when the events recorded were fresh in the witness's memory, as required by s 32(2)(b)(i)
- Whether granting leave would be unfair to any party, having regard to the factors in s 192(2) of the Evidence Act, including the importance of the evidence and the nature of the proceedings
Decision
Issue 1: Leave refused for the laundry rubbish bin incident
The court declined to grant leave in relation to one incident involving the alleged removal of rubbish bins from a laundry area by three of the accused. The witness had not referred to this event at all in her oral evidence and had not claimed any inability to recall it. Additionally, the first account of the incident appeared only in a statement made approximately ten months after the events, well beyond the point where it could reasonably be said to have been recorded when fresh in her memory.
Issue 2: Leave granted for other incidents
The court granted leave for the witness to use her notes and first statement to revive her memory about three other incidents: the dismantling of soccer goal posts, the discharging and throwing of fire extinguishers, and an incident involving a detainee during a stampede toward the roof. Each of these incidents was recorded either in the witness's notes or her statement of 24 April 2011, within a timeframe when the events could reasonably be considered fresh in her memory.
Issue 3: Section 192 considerations
Hulme J weighed the importance of the evidence to the prosecution, the serious consequences for the accused in criminal proceedings, and whether unfairness to any party would result. He was not persuaded that granting leave would cause relevant unfairness to any party or to the witness. While the witness's diagnosed Post Traumatic Stress Disorder and her tendency to block out memories of the events provided context for her memory difficulties, the court noted this did not constitute the kind of unfairness to which s 192 refers.
Issue 4: Process for revival
The court expressed concern about placing the notes and first statement before the witness in the presence of the jury, given that the documents contained references to multiple accused and included notes by other officers. To avoid any unfairness, the court directed that the memory revival process occur in conference between the Crown Prosecutor and the witness, and the revival was not to extend to the witness's later statement of 7 February 2012.
Orders Made
- Leave to attempt to revive the memory of the witness granted (subject to the limitations set out in the judgment)
Key Takeaways
- Under s 32 of the Evidence Act 1995 (NSW), a court must consider whether the document proposed for memory revival was made when the events were fresh in the witness's memory; a statement made ten months after the relevant events did not satisfy this requirement.
- Leave to revive a witness's memory is appropriately refused where the witness has not actually claimed in evidence an inability to recall the incident in question.
- Section 192(2) requires the court to balance the importance of the evidence sought and the nature of the proceedings against any unfairness that granting leave might cause; in serious criminal proceedings, the weight of those factors can support granting leave.
- A witness's psychological condition, such as PTSD, may provide relevant background context for memory difficulties but does not, of itself, constitute the kind of unfairness to a witness contemplated by s 192.
- Where the documents proposed for use contain information about multiple parties or are authored partly by others, a court may direct that the memory revival process occur in conference rather than in front of the jury, to minimise prejudice.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- R v Abdollahi (No 6) [2013] NSWSC 479