Citation: R v Waldron (No.1) [2024] NSWDC 157
Court: District Court of New South Wales
Date: 8 March 2024
Judge: Mahony SC DCJ
Background
The accused faced a 10-count indictment alleging that he and a colleague, both senior employees of the Commonwealth Bank of Australia, received corrupt payments as a reward for facilitating a US software company, Service Mesh Inc. (SMI), to enter into supply contracts with CBA. The Crown alleged those contracts were timed to inflate SMI's revenue during an earnout period, triggering a payment to SMI's shareholders of over US$98 million. Separate counts alleged the accused aided and abetted his colleague to receive corrupt payments in the same scheme.
On 17 December 2014, CBA investigators interviewed the accused. A CBA lawyer, Ms Kate Brown, attended that interview and took contemporaneous handwritten notes, which she later had typed up and verified word for word against her originals.
When the Crown called Ms Brown at trial, she recalled the interview taking place but had no specific recollection of what was said. The Crown applied under section 32 of the Evidence Act 1995 (NSW) for leave to allow her to refresh her memory from her notes. The accused then applied to exclude her evidence entirely on hearsay grounds.
Legal Issues
- Whether section 32 of the Evidence Act is merely a machinery provision and does not independently render evidence admissible.
- Whether Ms Brown's evidence of what was said at the interview, given after refreshing her memory from her contemporaneous notes, constituted hearsay evidence and should be excluded under section 59 of the Evidence Act.
- Whether, if the evidence was hearsay, it was nonetheless admissible under section 60 (non-hearsay purpose), section 81 (admissions exception), or section 82 of the Evidence Act.
Decision
Issue 1: Section 32 as a machinery provision
Both parties accepted that section 32 of the Evidence Act is a machinery provision: it permits a witness to use a document to try to refresh memory and, with leave, to read from it as part of their evidence. It does not independently determine whether that evidence is admissible. The central question remained whether what Ms Brown gave in evidence was hearsay.
Issue 2: Whether Ms Brown's evidence was hearsay
The court followed the Victorian Court of Appeal's reasoning in CSR Ltd v Amaca Pty Ltd and its adoption by Besanko J in ABCC v O'Connor. Section 32 does not distinguish between evidence from a refreshed memory and evidence from a recorded memory. On the plain meaning of the provision, all that is required is that the witness used the document to try to revive memory. Applying that reasoning, the court held that Ms Brown's evidence of the notes she personally took at the meeting did not amount to hearsay evidence and could not be excluded under section 59 of the Evidence Act (at [31]).
The court distinguished R v Woods [2023] NSWSC 1163, where Yehia J had found section 32 to be a machinery provision in the context of determining whether a jury warning was required under section 165. In that case, the admissibility of the evidence was not contested, and the question was an entirely different one. That distinction meant R v Woods did not undermine the court's conclusion here (at [32]).
Issue 3: Admissibility as admissions (alternative finding)
In the event that the primary conclusion was wrong and the evidence was hearsay, the court found an alternative basis for admissibility. To the extent the evidence contained statements made by the accused adverse to his interests in the proceedings, those statements constituted admissions under the Evidence Act. Ms Brown, as a person who saw, heard and perceived those statements being made, could give evidence of them pursuant to sections 81 and 82 of the Evidence Act (at [33]-[34]).
Orders Made
- The accused's application to exclude the evidence of Ms Kate Brown was refused.
- Leave granted on 1 March 2024 for Ms Brown to refer to her contemporaneous notes of the 17 December 2014 interview was confirmed.
- Leave was granted for Ms Brown to read from those notes.
- Ms Brown's evidence in chief given on the voir dire was admitted as evidence in the trial.
Key Takeaways
- The District Court confirmed that section 32 of the Evidence Act 1995 (NSW) is a machinery provision governing the process of memory refreshing; it does not independently determine admissibility, but leave to read from a document does not automatically render the resulting evidence hearsay (at [31]).
- Following CSR Ltd v Amaca Pty Ltd and ABCC v O'Connor, a witness's evidence given after using a contemporaneous document to try to revive memory is not hearsay evidence simply because the witness no longer independently recalls the events; the section does not distinguish between refreshed and recorded memory (at [29]-[31]).
- R v Woods [2023] NSWSC 1163 was distinguished on the basis that Yehia J was deciding whether to give a jury warning under section 165, not whether the evidence was admissible in the first place; the two questions involve different considerations (at [32]).
- Where a witness's evidence of statements made by an accused at interview would otherwise be hearsay, sections 81 and 82 of the Evidence Act provide an alternative pathway to admissibility if those statements are adverse to the accused's interests and the witness directly perceived them being made (at [33]-[34]).
- The high degree of correlation between Ms Brown's notes and the separate notes taken by the CBA investigator was treated as relevant to reliability and the exercise of the leave discretion, but not as a standalone basis for admissibility (at [16]).
Legislation and Cases Referenced
Legislation
- Crimes Act 190 0 (Cth)
- Evidence Act 1995 (NSW)
- Evidence Act 2008 (VIC)
- Fair Work Act 2019 (Cth)
Cases
- Australian Building and Construction Commissioner v O'Connor (No 3) [2018] FCA 43
- CSR Ltd & Anor v Amaca Pty Ltd (2016) 62 VR 359; [2016] VSCA 320
- R v Woods [2023] NSWSC 1163