Citation: R v Hickson (No. 2) [2019] NSWSC 1616
Court: Supreme Court of New South Wales
Date: 20 November 2019
Judge: Davies J
Background
This decision arose during a criminal trial in the Supreme Court concerning a serious charge against the accused. The Crown sought to rely on the evidence of a witness, Robert Hamilton, who had given a statement in June 2018 about events that took place predominantly in 1989 and 1990.
During his evidence in court, Hamilton indicated he could not recall a number of aspects of those events, particularly the matters recorded in paragraph 27 of his statement. The Crown applied for leave to allow Hamilton to refresh his memory from his statement while giving evidence.
Legal Issues
- Whether the requirements of s 32 of the Evidence Act 1995 (NSW) were satisfied, permitting a witness to use a prior statement to revive memory during testimony
- Whether leave should be granted having regard to the discretionary considerations in s 192(2) of the Act, including any unfairness to the accused
Decision
Issue 1: Satisfaction of s 32 requirements
Davies J was satisfied that Hamilton could not recall the relevant matters without reference to his statement (at [4]). The statement was made in June 2018 concerning events from 1989 and 1990, meaning it could not be said to have been made when those events were fresh in the witness's mind (at [5]).
However, the court found that s 32(2)(b)(ii) was satisfied because the opening paragraph of Hamilton's statement declared that it accurately set out the evidence he would be prepared to give. The witness had therefore found the facts to be accurate at the time of making the statement (at [6]).
Issue 2: Discretionary considerations under s 192(2)
Davies J acknowledged that granting leave would cause some unfairness to the accused, because the accused would be deprived of the benefit of the witness's poor memory (at [7]). The court noted, however, that this unfairness was limited: if leave were granted, the accused could still cross-examine Hamilton about that poor memory (at [7]).
Weighing that unfairness against the importance of the evidence and the nature of the proceedings, Davies J concluded that leave should be granted. The evidence constituted a significant admission by the accused in relation to a very serious offence (at [8]-[9]).
Orders Made
- Leave is granted to the witness to revive his memory under s 32 of the Evidence Act 1995 (NSW)
Key Takeaways
- Under s 32 of the Evidence Act 1995 (NSW), a witness may be granted leave to refresh memory from a prior statement even where that statement was not made when the events were fresh in mind, provided another condition in s 32(2)(b) is satisfied (at [5]-[6]).
- A statement's opening declaration that it "accurately sets out the evidence" the witness would give can satisfy s 32(2)(b)(ii), on the basis that the witness found the recorded facts to be accurate at the time of making the statement (at [6]).
- The court held that depriving an accused of the benefit of a witness's poor memory is a form of unfairness relevant to the s 192(2) discretion, but it is a limited one where cross-examination on that poor memory remains available (at [7]).
- In exercising the s 192(2) discretion, the significance of the evidence and the seriousness of the charge are factors capable of outweighing unfairness to the accused (at [8]-[9]).
- The Supreme Court confirmed that a statutory declaration of accuracy within a witness statement can do important work in satisfying the preconditions to memory refreshing under s 32, even for events distant in time from the making of the statement (at [5]-[6]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Nil