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Supreme Court 14 October 2019

R v Dillon (No 2)

[2019] NSWSC 1536

Homicide
CRIMINAL PROCEDURE ADMISSIBILITY OF EVIDENCE FRESH IN THE MEMORY IMPORTANCE OF WITNESS REFUSE LEAVE

Citation: R v Dillon (No 2) [2019] NSWSC 1536
Court: Supreme Court of New South Wales
Date: 14 October 2019
Judge: Campbell J

Background

The accused stood trial for murder. The Crown called the deceased's brother as a witness. He had been present when the fatal stab wound was inflicted and had made three separate statements to police: one on the day of the incident (18 July 2016), a second roughly three months later (12 October 2016), and a third in December 2017.

During examination, the witness could not recall observations he had recorded in his second statement about a male and female seen on the front balcony of the accused's home, including that the male wore a fluorescent yellow work shirt. That evidence had identification significance and did not appear in the first statement made on the day of the incident.

The Crown applied under s 32 of the Evidence Act 1995 (NSW) for leave to allow the witness to use the 12 October 2016 statement to refresh his memory. The defence opposed the application.

  • Whether the 12 October 2016 statement satisfied the "fresh in the memory" requirement under s 32(2)(b) of the Evidence Act 1995 (NSW)
  • Whether the High Court's interpretation of "fresh in the memory" from Graham v The Queen (1998) 195 CLR 606 applies to s 32, given that Parliament amended s 66 but not s 32 following that decision
  • Whether, having regard to the factors in s 192(2) of the Evidence Act, leave should be granted or refused

Decision

Campbell J held that the expression "fresh in the memory" in s 32 carries the meaning the High Court gave it in Graham v The Queen: a state of relative contemporaneity captured by the phrase "hours or days rather than weeks or months." Although Parliament later amended s 66 to broaden that concept, it did not amend s 32 in the same way. His Honour regarded that legislative choice as significant, and applied the stricter Graham standard to s 32. A statement made nearly three months after the events plainly did not meet that standard.

His Honour also identified a separate concern arising from the third statement. In that statement, the witness disclosed that, shortly before making the second statement, he and his father had visited the scene and conducted a re-enactment to reconstruct events in his mind. Campbell J found this process itself suggested the events were not fresh when the second statement was made, even on a more generous reading of "fresh in the memory."

Turning to the discretionary factors in s 192(2), his Honour acknowledged that the evidence could be important, given its identification value and the centrality of this witness to the prosecution case. However, the defence case was directed at demonstrating the unreliability of the witness's recollection, and the jury was entitled to assess that recollection without the witness being assisted by a document that did not meet the statutory threshold. The high stakes of a murder trial reinforced the trial judge's obligation to ensure fairness to the accused.

Campbell J refused the Crown's application for leave.

Orders Made

No formal orders were extracted in the provided text, beyond the ruling refusing the Crown's application for leave under s 32.

Key Takeaways

  • The Supreme Court held that the "fresh in the memory" requirement in s 32 of the Evidence Act 1995 (NSW) retains the strict contemporaneity standard from Graham v The Queen, meaning hours or days rather than weeks or months.
  • Parliament's decision to amend s 66 (but not s 32) following Graham was treated as a deliberate legislative choice, preserving the narrower test for memory-refreshing applications under s 32.
  • A statement made approximately three months after the events in question did not satisfy the "fresh in the memory" threshold under s 32(2)(b), even where that statement recorded significant details absent from an earlier contemporaneous account.
  • Evidence that a witness undertook a scene re-enactment and reconstruction process before making a subsequent statement can itself undermine any claim that the relevant events were fresh in memory at the time of that statement.
  • Under s 192(2), the importance of the evidence to the Crown is not determinative. Where the defence case turns on challenging a witness's reliability, permitting memory refreshment from a document falling outside the statutory requirements may render the trial unfair to the accused.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 32, 66, 192(2)

Cases
- Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61