Citation: R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105
Court: Supreme Court of New South Wales
Date: 22 February 2016
Judge(s): Bellew J
Background
The accused McNamara was on trial for a serious criminal offence. The Crown called a witness, referred to here by his role as a Crown witness, principally to rebut anticipated good character evidence expected to be led by McNamara's defence.
The witness had provided a statement to police on 16 January 2015, describing a meeting he attended with McNamara in early 2014. In that statement, he alleged McNamara made a series of threatening remarks to him. Notably, approximately 12 months had passed between the alleged meeting and the making of the police statement.
During examination-in-chief, the Crown sought leave under section 32 of the Evidence Act 1995 (NSW) for the witness to use his police statement to revive his memory in relation to two specific passages. McNamara's counsel opposed the application.
Legal Issues
- Whether the court should grant leave under section 32 of the Evidence Act 1995 (NSW) for the witness to use his police statement to revive his memory while giving evidence
- Whether the police statement was made when the relevant events were "fresh in his or her memory" within the meaning of section 32(2)(b)(i)
- What interpretive approach applies to the "fresh in the memory" requirement in section 32, and whether the more liberal approach introduced for section 66 by parliamentary amendment carries any weight in the section 32 context
Decision
Bellew J began by examining the statutory framework. Section 32 requires a court, when considering whether to grant leave, to take into account at least two matters: whether the witness can adequately recall the fact without the document, and whether the document was made when the events were fresh in the witness's memory (or was at that time found by the witness to be accurate).
On the "fresh in the memory" question, his Honour considered the High Court's reasoning in Graham v R (1998), where the plurality held that "fresh" in the context of section 66 described a temporal relationship likely measured in hours or days, not years. However, Parliament subsequently amended section 66 by inserting section 2A, relaxing that strict temporal test. No equivalent amendment was made to section 32. His Honour concluded from the academic commentary and the Victorian Court of Appeal's observations in Roth v The Queen (2014) that a generally liberal, rather than strictly restrictive, approach should apply to section 32 nonetheless.
Applying that liberal approach, Bellew J accepted that the witness would be unable to recall the relevant passages without reference to his statement, satisfying section 32(2)(a). However, on the critical question of freshness, the only evidence was the witness's agreement with a leading question from the Crown that the events were fresh in his memory when he made the statement. His Honour gave that answer little weight, noting no follow-up questions were asked to confirm the witness understood the phrase or to explain why the events remained fresh despite the 12-month interval. The gap of one year between the meeting and the statement was, in his Honour's view, obviously significant and weighed against a finding that the events were fresh in the witness's memory.
Turning to the section 192 considerations, Bellew J was satisfied that granting leave would not unduly lengthen the trial and would not necessarily be unfair to McNamara. However, the character and relative importance of the evidence also told against leave: the evidence was not directed at a core issue in the trial but only at rebutting anticipated good character evidence. Balancing all factors, his Honour refused leave.
Orders Made
No formal orders were made in this decision. The application for leave under section 32 of the Evidence Act 1995 (NSW) was refused.
Key Takeaways
- A gap of approximately 12 months between the events in question and the making of a witness statement is a significant factor weighing against a finding that events were "fresh in the memory" under section 32(2)(b)(i) of the Evidence Act 1995 (NSW).
- Where the Crown relies solely on a witness's agreement with a leading question to establish freshness, and asks no follow-up questions to confirm the witness's understanding of the term or to explain the basis for that claim, the court may give that evidence very little weight.
- The High Court's restrictive temporal interpretation of "fresh in the memory" from Graham v R (1998) was developed in the context of section 66, which was subsequently amended by Parliament. Section 32 received no equivalent amendment, and the Supreme Court here adopted a generally liberal rather than strictly restrictive approach to that phrase in the section 32 context, while declining to resolve the question definitively.
- Under section 32(2), the freshness requirement is one of multiple considerations rather than the sole determinant, and courts must also weigh the section 192 factors, including the importance of the evidence and any potential unfairness to a party.
- Evidence led solely to rebut anticipated good character evidence, rather than to address a core issue at trial, carries reduced weight in the leave assessment and can tilt the balance against granting the application.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), sections 32, 66, 66(2A), 192
Cases
- Graham v R [1998] HCA 61; (1998) 195 CLR 606
- Roth (a pseudonym) v The Queen [2014] VSCA 242
Secondary Sources
- Uniform Evidence in Australia (LexisNexis, 2015)