Citation: R v Warwick (No.39) [2018] NSWSC 1286
Court: Supreme Court of NSW
Date: 16 August 2018
Judge: Garling J
Background
During a criminal trial, the accused sought to have the entirety of the evidence-in-chief of a retired Detective Sergeant struck out. The witness had given evidence describing events he witnessed and actions he took, many years before the trial. The accused challenged that evidence on the basis that it derived from, or was contaminated by, documents containing hearsay statements from which the witness had previously refreshed his memory.
The motion was filed on the morning of 16 August 2018 and was supported by an affidavit attaching a statement made by the witness in December 2015, at a time when he was no longer a serving police officer. The Crown opposed the application, noting that much of the evidence-in-chief had already been given without objection.
Legal Issues
- Whether section 33 of the Evidence Act 1995 applied to the witness's evidence-in-chief, given that he was a former (not current) police officer and was not reading from or being formally led through a prior statement
- Whether section 32 of the Evidence Act 1995 required the Crown to obtain leave before the witness gave evidence, on the basis that he had refreshed his memory from documents prior to giving evidence
- Whether the Crown was obliged to first establish the state of the witness's recollection before adducing evidence about past events, on pain of inadmissibility
Decision
Ground 1: Section 33 of the Evidence Act
Garling J rejected all three bases for applying section 33. First, the December 2015 statement was made after the witness had left the police force, and section 33 only applies to statements made by a person who was a police officer at the time of making the statement (at [11]). Second, the witness did not give evidence by reading a written statement or by being formally led through one, so section 33 was not engaged on its own terms (at [12]). Third, the court found no warrant in the text of section 33 to extend it to evidence led from a former officer that may be based on a prior statement or that follows a similar sequence to one (at [13]). Section 33 was introduced to address the specific practicality of allowing serving officers to read their operational statements rather than memorise them, and that purpose was not engaged here (at [14]-[15]).
Ground 2: Section 32 of the Evidence Act
The court rejected the section 32 argument on two grounds. Section 32 applies only to the refreshing of memory while a witness is actually in the course of giving evidence in court; it does not apply to the preparation of a statement before trial (at [17]). Further, nothing in Mr Sheather's evidence-in-chief involved an attempt to revive his memory in court. Identifying and describing a document placed before him did not constitute memory refreshing within the meaning of the section (at [18]-[19]).
Ground 3: The Crown's alleged obligation to establish the state of recollection
The court rejected the submission that the Crown must trace the history of a witness's recollection before any evidence about past events becomes admissible (at [20]-[22]). Even accepting, for argument's sake, that the witness had no independent recollection in 2015 and had refreshed his memory from documents containing hearsay, that would not render his evidence-in-chief inadmissible (at [26]). The integrity and origins of a witness's recollection bear on the weight of the evidence, not its admissibility, and the proper vehicle for testing those matters is cross-examination (at [27], [29]).
Orders Made
- The Notice of Motion filed in court on 16 August 2018 to strike out the evidence-in-chief of Mr Jesse Sheather was dismissed.
Key Takeaways
- Section 33 of the Evidence Act 1995 does not apply to a statement made by a person who was no longer a police officer at the time of making it, even if that person was a police officer at the time of the events described (at [11]).
- A witness does not give evidence "by being led through" a prior statement within the meaning of section 33 merely because the questions asked follow a similar order to the contents of that statement (at [12]-[13]).
- Section 32 of the Evidence Act 1995 governs the refreshing of memory while a witness is in the course of giving evidence in court; it has no application to the preparation of witness statements prior to trial (at [17]).
- Whether evidence is the product of a refreshed recollection, rather than an unassisted original recollection, goes to the weight of the evidence rather than its admissibility (at [26]-[27]).
- The appropriate mechanism for testing the integrity or origins of a witness's recollection is cross-examination, not a pre-emptive application to strike out the evidence-in-chief (at [27], [29]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not Applicable