Citation: R v Jenkin (No 5) [2018] NSWSC 730
Court: Supreme Court of New South Wales
Date: 9 May 2018
Judge(s): Hamill J
Background
This decision arose during a murder trial in the NSW Supreme Court. The Crown sought leave under s 32 of the Evidence Act 1995 (NSW) to allow a witness, referred to as "AR", to use a document to revive his memory while giving evidence. The document in question was a 42-page record of a police interview conducted on 17 July 2015, approximately three months after the events the witness was asked to describe.
The witness gave evidence that he had read the interview the day before appearing in court, yet could recall almost none of its contents. He attributed his poor memory to having used "heaps of drugs". His candid assessment of his own recollection ("Fuck, I can't remember what I said") prompted Hamill J to describe it as an "insightful self-assessment of the quality of his memory."
Counsel for the accused initially raised no objection to the course proposed, but later challenged it during a voir dire (a preliminary hearing conducted in the absence of the jury to determine the admissibility of evidence). Hamill J delivered these reasons after granting leave.
Legal Issues
- Whether the witness's memory was sufficiently exhausted to satisfy the criterion in s 32(2)(a) of the Evidence Act 1995 (NSW)
- Whether the police interview was made when "the events recorded in it were fresh in his or her memory" within the meaning of s 32(2)(b)(i)
- Whether the High Court's interpretation of "fresh" in Graham v The Queen (1998) 195 CLR 606, decided in the context of s 66, applied equally to s 32
- Whether the amendments introduced by s 66(2A) assisted the Crown's position under s 32
- Whether leave should be granted under the general discretionary factors in s 192 of the Evidence Act
Decision
Memory exhausted (s 32(2)(a)): Hamill J was satisfied that the witness could not recall the relevant facts adequately without the document. The witness's evidence made clear he had no meaningful independent recollection of the conversations, despite having read the interview the previous day. The criterion under s 32(2)(a) was met.
Accuracy at time of making (s 32(2)(b)(ii)): The voir dire evidence did not establish that the witness had found the interview to be accurate at the time it was made. A subsequent statement in which he apparently adopted the interview was not tendered during the voir dire, so this criterion was not satisfied.
"Fresh in the memory" (s 32(2)(b)(i)): The events occurred around March or April 2015 and the interview was conducted on 17 July 2015, a gap of approximately three months. Hamill J noted the High Court's holding in Graham v The Queen that "fresh" in the context of s 66 meant "recent" or "immediate", with the temporal gap more likely measured in hours or days than months. However, his Honour observed that the amendment introducing s 66(2A) (which broadened the freshness inquiry under s 66 to include factors such as age, health, and elapsed time) had no equivalent in s 32. Citing the approach of Bellew J in R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105, and academic commentary suggesting s 32 should not be interpreted as restrictively as s 66, Hamill J took a "generally liberal" approach. Given that three months is a considerably shorter interval than the years considered in Graham, his Honour was satisfied the criterion was met on the facts of this case.
General discretion (s 192): Hamill J applied the s 192 factors and determined that granting leave would not unduly lengthen the trial, that the witness's use of the document would be visible to the jury (reducing unfairness to the accused), that the evidence was potentially important in a murder trial, and that no party suggested any alternative order or direction. Notably, Hamill J declined to grant leave under s 32(3) to allow the witness to read aloud from the interview. No such application was made, and given the witness's evident memory difficulties, his Honour considered it would not have been fair to permit that course.
Orders Made
- Leave granted under s 32(1) for the witness AR to use the document to revive his memory while giving evidence.
- Leave under s 32(3) (to read aloud from the document) was not granted; no application was made for it.
Key Takeaways
- A court applying s 32(2)(a) of the Evidence Act 1995 (NSW) may be satisfied that a witness's memory is exhausted even where the witness has recently read the document in question, provided the evidence demonstrates a near-total failure of recollection.
- The High Court's strict temporal approach to "fresh in the memory" in Graham v The Queen was decided in the context of s 66 of the Evidence Act, not s 32. Hamill J confirmed that the subsequent amendment to s 66(2A) does not apply directly to s 32, but that the difference in drafting between the two provisions supports a generally liberal (rather than restrictive) reading of "fresh" in s 32(2)(b)(i).
- A gap of approximately three months between the recorded events and the police interview did not, on these facts, preclude satisfaction of the "fresh in the memory" criterion under s 32(2)(b)(i).
- Under s 32, the freshness requirement is one factor among several the court considers, in contrast to s 66 where it was the only stated requirement before the introduction of s 66(2A).
- Leave under s 32(3) to permit a witness to read aloud from a document is a separate question from leave under s 32(1), and fairness to the accused remains a live consideration in each case.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 32, 66(2A), 192
Cases:
- Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
- R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105
- Roth (a Pseudonym) v The Queen [2014] VSCA 242 (cited in Rogerson No 24)
Secondary Sources:
- Odgers, Uniform Evidence in Australia (LexisNexis, 2015)