Citation: R v Hunter (No 13) [2014] NSWSC 1156
Court: Supreme Court of New South Wales
Date: 16 July 2014
Judge(s): Button J
Background
This decision arose in the course of a criminal trial before the Supreme Court. The Crown sought leave to allow one of its witnesses, referred to as Mr Gove Junior, to revive his memory while giving evidence in chief by reference to a document that had been tendered as a voir dire exhibit (that is, an exhibit received during a preliminary hearing conducted in the absence of the jury to determine admissibility).
The application was made during examination in chief. The witness apparently had difficulty recalling the relevant events, prompting the Crown to invoke the statutory procedure for memory revival rather than relying on unaided oral testimony.
The evidence at issue concerned what the accused allegedly said at a particular location on the afternoon of 20 June 2011, including alleged threats of retaliation.
Legal Issues
- Whether the Crown should be granted leave under s 32 of the Evidence Act 1995 (NSW) to permit the witness to attempt to revive his memory by reference to a document while in the witness box
- Whether the discretionary factors under s 192 of the Evidence Act weighed for or against granting leave
- Whether any basis existed to exclude or limit the procedure under ss 55 or 137 of the Evidence Act
Decision
Button J considered the requirements of s 32 of the Evidence Act, focusing in particular on s 32(2)(b)(i) and (ii), which set out the conditions under which leave may be granted for a witness to use a document to revive memory during examination in chief. His Honour also considered the general leave factors prescribed by s 192, which require a court to weigh matters such as the importance of the evidence, the nature of the proceeding, and any potential unfairness or prejudice.
Button J concluded that the s 192 factors, taken together, supported granting the application. He placed particular weight on the probative value of the evidence concerning the accused's alleged statements and threats made at Livingston Avenue on 20 June 2011.
His Honour found no basis on which the court's discretion should be exercised to refuse the procedure. Having considered ss 32, 55, 137, and 192 of the Evidence Act, Button J granted the Crown leave to have the witness use the voir dire exhibit in an attempt to revive his memory in the witness box.
Orders Made
• Grant the Crown leave to have the witness use voir dire exhibit BB in an attempt to revive his memory in the witness box pursuant to s 32 of the Evidence Act 1995 (NSW)
Key Takeaways
- Under s 32 of the Evidence Act 1995 (NSW), a court may grant leave for a witness to attempt to revive memory by reference to a document during examination in chief, subject to the conditions in s 32(2)(b).
- The discretionary factors in s 192 of the Evidence Act are to be considered as a whole rather than assessed individually in isolation, and may collectively favour granting leave even where individual factors might not be determinative.
- High probative value of the evidence sought to be elicited was a significant consideration in favour of permitting the memory revival procedure.
- Sections 55 and 137 of the Evidence Act, which respectively address relevance and the exclusion of evidence whose probative value is outweighed by the danger of unfair prejudice, were considered but provided no basis for refusing the application on the facts of this case.
- The decision is interlocutory and fact-specific, forming part of a larger criminal trial; its significance is confined to the procedural ruling made at that stage of the proceedings.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 32, 55, 137, 192
Cases cited:
- None cited in the judgment