Citation: R v Lupton (No 3) [2022] NSWSC 36
Court: Supreme Court of New South Wales
Date: 25 January 2022
Judge(s): Hamill J
Background
The accused stood trial for the murder of a man stabbed at a residential property in Lethbridge Park shortly before midnight on 24 February 2020. It was common ground that the accused inflicted the stabbing, but the precise location and circumstances were disputed.
A key prosecution witness gave eyewitness evidence about events in the backyard of the premises that night. During examination-in-chief, she was unable to recall words spoken by the accused and the deceased shortly after the stabbing. The prosecutor sought leave under s 32 of the Evidence Act 1995 (NSW) for the witness to consult a police statement she made approximately three to four days after the event, in order to attempt to revive her memory of those words.
Defence counsel objected, and the matter was argued at the close of the first day of evidence and continued the following morning.
Legal Issues
- Whether the court should grant leave under s 32 of the Evidence Act 1995 (NSW) for the witness to consult her police statement to revive her memory
- Whether the relevant conditions in s 32(2) were satisfied, including whether the witness found the statement accurate when she made it
- What weight should be given to the s 192 discretionary considerations in determining whether to grant leave
Decision
The s 32(2) conditions:
Hamill J accepted that at least two of the s 32(2) conditions were satisfied, including that the statement was made reasonably contemporaneously with the events in question (at [10]). However, his Honour was not satisfied that the witness had found the statement to be accurate when she made it, as required by s 32(2)(b)(ii). Although the statement contained a standard declaration of truthfulness, the relevant portion of the statement itself revealed uncertainty at the time of its making (at [11]).
The content of the statement:
The operative paragraph of the statement showed the witness was unsure at the time of writing what had been said. She recorded that she did not know what the accused was yelling and could state only that she "thought" he had said particular words (at [16]). Hamill J reasoned that permitting the witness to consult this paragraph might give a misleading account of both what actually occurred and what her memory was when she made the statement. If the witness then gave evidence of what was said, that would misrepresent the state of her recollection at the time (at [16]).
Reliability concerns:
His Honour identified two reasons why the witness was uncertain, both at the time of making the statement and at trial. She had been shouting herself during the events, and she had been using drugs heavily at that time, a matter the prosecutor conceded (at [18]). The potential for cross-examination to expose these limitations did not, in his Honour's view, cure the fundamental problem that no genuine and accurate memory was available to be revived (at [17]).
The liberal interpretation argument:
The prosecutor invoked the approach in R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105, where Bellew J held that s 32 should be interpreted liberally in favour of granting leave. Hamill J acknowledged that approach but noted that each application turns on its own facts, and the particular quality of the evidence here did not warrant leave (at [13]).
Orders Made
- The application under s 32 of the Evidence Act 1995 (NSW) is refused.
- The prosecutor was permitted to make a further attempt to elicit the evidence by conventional examination-in-chief.
Key Takeaways
- Section 32 of the Evidence Act 1995 (NSW) requires a court to consider whether the witness found the document accurate at the time of making it; where the document itself reveals the witness was uncertain at that time, this condition may not be satisfied (at [11], [16]).
- Granting leave to revive memory from a document can be misleading where the document records only a tentative belief rather than a confident recollection, because any "revival" would overstate what the witness actually remembered (at [16]).
- Even where a liberal approach to s 32 has been endorsed in earlier authorities, Hamill J confirmed that each application is determined by its own facts, and the quality of the underlying evidence remains a central consideration (at [13]).
- Where a witness was shouting during the events and was affected by drugs at the relevant time, those circumstances bear directly on whether a genuine memory capable of revival exists (at [18]).
- Refusing leave under s 32 does not preclude the prosecution from making a further attempt to elicit the same evidence through conventional examination-in-chief (at [19]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 32, 38, 66, 192
Cases
- R v Jenkin (No 5) [2018] NSWSC 730
- R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105