Citation: R v Ronald Edward Medich (No. 40) [2018] NSWSC 374
Court: Supreme Court of New South Wales
Date: 23 March 2018
Judge: Bellew J
Background
The accused was standing trial for serious criminal offences. During cross-examination of the Crown's principal witness, allegations arose that the witness had stolen money from the accused and provided some of it to his brother. Senior counsel for the accused asked the Crown to call the brother as a witness and make him available for cross-examination.
The Crown declined to call the brother on the basis that he suffered from Alzheimer's disease and was therefore not competent to give evidence. The Crown made clear that his condition was the sole reason for that position, and that if he were found competent, he would be called.
Bellew J was asked to determine the competence question. The Court received expert neuropsychological evidence, a general practitioner's certificate, and statements from a detective sergeant who had observed and spoken with the proposed witness on several occasions.
Legal Issues
- Whether the proposed witness, who had been diagnosed with Alzheimer's disease, was competent to give evidence within the meaning of s 13 of the Evidence Act 1995 (NSW)
- Whether the expert evidence went to competence or instead to the reliability of any evidence the witness might give
- Whether the concepts of competence and memory loss are legally distinct for the purposes of the competence inquiry
Decision
Bellew J found that the expert evidence tendered by the Crown conflated two distinct concepts: a witness's capacity to understand questions and give responsive answers on the one hand, and the reliability of any answers given on the other. The neuropsychological report assessed the proposed witness's memory function and his capacity to retain and recall information, but it did not squarely address the statutory competence question under s 13 of the Evidence Act. Bellew J noted that the expert had not been given the correct instructions, as she was asked about "memory problems" and fitness to give evidence rather than being directed to the statutory test.
The Court drew a clear distinction between competence and recollection. A witness who lacks memory of relevant events is not, for that reason alone, incompetent to give evidence. A witness with no recollection of relevant events may still be capable of understanding questions and providing intelligible answers, including the perfectly intelligible answer that they cannot remember. That kind of limitation goes to the utility and reliability of the evidence, not to the threshold question of competence, and reliability remains a matter for the jury rather than an expert witness.
Bellew J placed particular weight on the English authorities. In DPP v R [2007], Hughes LJ drew the same distinction between competence and recollection, observing that a witness who cannot remember is not incompetent merely for that reason. Bellew J found that the proposed witness's situation was consistent with that analysis. The observations of Det Sgt Howe, while accepted as genuine, could not be treated as a medical opinion, and the general practitioner's certificate was accorded limited weight.
The Court was satisfied that the proposed witness was competent to give evidence before the jury.
Orders Made
• Rocky is competent to give evidence before the jury in the accused's trial.
Key Takeaways
- The Supreme Court confirmed that competence to give evidence and the ability to accurately recall past events are legally distinct concepts: a failure of memory does not, by itself, render a witness incompetent.
- Under s 13 of the Evidence Act 1995 (NSW), the competence inquiry turns on whether a witness can understand questions and give intelligible answers, not on whether those answers will be accurate or useful.
- Where a witness's only substantive answer would be "I cannot remember", that limitation goes to the weight and reliability of the evidence, which remains a matter for the jury to assess, not for expert witnesses to foreclose.
- Expert evidence directed to a proposed witness's memory function and recall capacity will not necessarily address the correct legal question; instructions to experts in competence applications should be framed by reference to the applicable statutory test.
- A general practitioner's certificate expressing an opinion about fitness to appear in court carries limited weight in a formal competence inquiry where expert neuropsychological evidence has also been obtained.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 13
Cases:
- DPP v R [2007] EWHC 1842 (Admin)
- R v Powell [2006] EWCA Crim 3
- RA v R [2007] NSWCCA 251; (2007) 175 A Crim R 221
- R v Sed [2005] 1 Cr App R 4; [2004] EWCA Crim 1294