Citation: R v Dougas; R v Read; R v Linke (No 13) [2022] NSWSC 385
Court: Supreme Court of New South Wales
Date: 28 March 2022
Judge(s): Adamson J
Background
Three accused faced trial on charges relating to an alleged conspiracy, with the charge period dating back to the early 2000s. The key prosecution witness, Mr Chapple, did not give his first account of the alleged events until an internal company investigation in 2012, with Australian Federal Police involvement commencing in 2013. By the time of trial in 2022, between 17 and 22 years had elapsed since the events in question.
The accused applied for a "distorted memory direction" to be given to the jury. This direction would warn the jury about the potential unreliability of Mr Chapple's evidence arising specifically from the lengthy delay between the alleged offences and his first account of them. The Crown opposed the application, arguing that the conduct of the trial had already sufficiently alerted the jury to those concerns.
Legal Issues
- Whether a distorted memory direction under s 165B of the Evidence Act 1995 (NSW) was required or appropriate given the significant delay between the alleged events and Mr Chapple's first account
- Whether the extensive cross-examination of Mr Chapple on prior inconsistent statements and delay-related unreliability was sufficient to displace the need for a formal judicial direction
- Whether the proposed direction in the form drafted by the accused (MFI 31, with prefatory material from MFI 29 and MFI 30) should be given
Decision
Adamson J acknowledged there was "significant force" in the Crown's submission. Mr Chapple had been extensively cross-examined about prior inconsistent statements made across multiple stages of investigation, and the potential unreliability of his evidence had been exposed through evidence-in-chief, cross-examination, and closing addresses.
Her Honour nonetheless turned to the Victorian Court of Appeal's reasoning in Wade v R [2019] VSCA 168, where Priest, Forrest and Weinberg JJA held that if any doubt exists in a judge's mind as to whether the equivalent direction should be given, prudence and the structure of the relevant legislation require that it be given. Her Honour considered that ss 165B(2) and (3) of the Evidence Act 1995 (NSW) carried the same effect.
Her Honour also distinguished the present position from that considered in R v Reardon, noting that in that case the Court of Criminal Appeal was reviewing a trial judge's refusal to give the direction after conviction, whereas here the question was whether to give the direction prophylactically, thereby avoiding any such question arising on appeal.
Accepting that she was "not sure" a direction was strictly required, her Honour concluded that giving it would serve the important purpose of emphasising to the jury the potential for Mr Chapple's memory to have been distorted by the passage of time. That consideration, she found, was sufficient to tip the balance in favour of granting the application.
Orders Made
• A direction on distorted memory in accordance with MFI 31 shall be given to the jury
• The direction shall be foreshadowed using the words in MFI 29 including the sentence in the box on the right-hand side in red in MFI 30
Key Takeaways
- Under s 165B of the Evidence Act 1995 (NSW), where a trial judge has any doubt about whether a distorted memory direction is required, the structure and purpose of the provision favour giving the direction rather than declining it, consistent with the Victorian Court of Appeal's approach to the equivalent provision in Wade v R.
- Extensive cross-examination of a witness on delay-related unreliability does not automatically displace the need for a formal distorted memory direction, even where the potential for unreliability has been fully explored during the trial.
- A trial judge considering this question prophylactically is in a materially different position from an appellate court reviewing a refusal after conviction: the prophylactic approach avoids the error question arising on appeal altogether.
- The proposed direction encompassed not only warnings about honest but mistaken recollection, but also specific prejudice to the accused, including unavailability of telephone records, witnesses, company documents, and HR records, illustrating how delay-based directions can extend beyond general memory warnings.
- Sufficient doubt about the necessity of a direction, rather than a positive finding that one is required, was treated as adequate grounds for granting the application in these circumstances.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 165B
Cases:
- R v Reardon [2002] NSWCCA 203; (2002) 186 FLR 1
- Wade (a pseudonym) v R [2019] VSCA 168
Legislation considered by analogy:
- Jury Directions Act 2015 (Vic), s 32