Citation: R v Warwick (No.36) [2018] NSWSC 1264
Court: Supreme Court of New South Wales
Date: 9 August 2018
Judge(s): Garling J
Background
The case is a criminal trial before the Supreme Court concerning, among other matters, events connected to an explosion at a Kingdom Hall in Casula on 21 July 1985. The Crown called a witness, referred to here as the witness, who had been interviewed by police at Liverpool Police Station on 11 August 1985, just weeks after the explosion. That interview was recorded in a document marked MFI Z (the Record of Interview, or ROI).
The witness could recall being interviewed but could no longer recall the specific date of an observation he had made of the accused prior to the explosion. That date appeared in his 1985 answers to questions 51 to 55 of the ROI.
The Crown applied for leave under s 32 of the Evidence Act 1995 to permit the witness to use the ROI to refresh his memory and, further, to give that part of his evidence by reading aloud the relevant questions and answers.
Legal Issues
- Whether the three mandatory requirements under s 32 of the Evidence Act 1995 were satisfied so as to justify granting the Crown's application for leave to revive memory
- Whether the possibility that the date recorded in the ROI was suggested to the witness by police, or was otherwise inaccurate, was a proper basis for refusing leave
- Whether it was appropriate to allow the witness to give evidence by reading aloud questions and answers 51 to 55 pursuant to s 32(3) of the Act
Decision
Issue 1: Whether the s 32 requirements were satisfied
Garling J identified three mandatory matters the court must take into account under s 32: whether the witness can adequately recall the fact without the document; whether the document was made when the events were fresh in memory; and whether the witness found the document to be accurate at that time (at [6]). The judge was satisfied that all three requirements were met. The witness could not recall the relevant date, the ROI was made only weeks after the explosion, and the ROI itself contained the witness's confirmation at question and answer 74 that it was a correct record (at [7]-[9]).
Issue 2: Whether potential inaccuracy or police suggestion defeated the application
The accused argued that the date in question 53 may have been suggested to the witness by police in 1985, and that other evidence would show it to be erroneous. Garling J rejected the submission that either concern stood against granting leave. The possibility that another witness or evidence might contradict the date went to the ultimate weight the court would give the evidence, not to the threshold question of permitting memory refreshment (at [11]-[12]). Whether the recollection was accurate was a question of objective fact for final determination, not a reason to deny access to the document at this stage.
Issue 3: Giving evidence by reading aloud
Garling J accepted the Crown's application under s 32(3) and directed that the witness give his evidence as to the refreshed recollection by reading aloud questions and answers 51 to 55 from MFI Z (at [10], [14]).
Orders Made
- The Crown's application under s 32 of the Evidence Act 1995 for leave to permit the witness to refresh his recollection from questions 51 to 55 and the answers contained in MFI Z is granted.
- The witness's evidence as to his refreshed recollection is to be given by reading aloud questions and answers 51 to 55.
Key Takeaways
- Under s 32 of the Evidence Act 1995, a court must consider three mandatory factors before granting leave to revive memory: adequacy of unaided recall, freshness of memory at the time the document was made, and the witness's satisfaction as to accuracy at that time (at [6]).
- A short interval between the events and the making of the document supports a finding that the facts were fresh in the witness's memory, even where the document is decades old by the time of trial (at [8]).
- A challenge to the accuracy of the recorded content, including a suggestion that police may have prompted a particular answer, does not necessarily defeat a s 32 application. Such matters bear on the ultimate weight of the evidence rather than the threshold for granting leave (at [11]-[12]).
- Section 32(3) permits a court to direct that evidence of a refreshed recollection be given by reading aloud the relevant portions of the document, and the Supreme Court found that approach appropriate in this case (at [10], [14]).
- A witness's own confirmation within the record of interview that it accurately recorded the conversation can satisfy the accuracy requirement for the purposes of s 32 (at [9]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not Applicable