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Supreme Court 15 September 2025

R v Bobak (No 2)

[2025] NSWSC 1051

Homicide
EVIDENCE WITNESS EVIDENCE REFRESHING MEMORY IN COURT S 32(1) EVIDENCE ACT LEAVE GRANTED

Citation: R v Bobak (No 2) [2025] NSWSC 1051
Court: Supreme Court of New South Wales
Date: 15 September 2025
Judge(s): Dhanji J

Background

The accused stood trial for murder following a fatal stabbing. The Crown called a witness who had been involved in a physical altercation with the accused shortly before the killing. The witness described the accused choking him during this earlier confrontation but could not recall what the accused said during the choking.

The Crown sought to refresh the witness's memory using his partial police statement from several days after the incident. In that statement, the witness had said the accused was "saying something like he was going to kill me while he was choking me." When showing the witness the document did not revive his memory, the Crown applied for the witness to read the relevant words aloud as part of his evidence under s 32(3) of the Evidence Act 1995 (NSW).

A clinical neuropsychologist had been called before the witness to explain his presentation. The expert described the witness as having slurred and slow speech, slowness of thought, and difficulty acquiring and recalling new information without prompting, although his responses were logical and he retained "big picture information."

  • Whether leave should be granted under s 32(1) of the Evidence Act to permit the witness to use his police statement to try to revive his memory about what the accused said during the choking.
  • Whether leave should be granted under s 32(3) of the Evidence Act to permit the witness to read aloud the relevant passage from the statement, given that his memory was not in fact refreshed.
  • How the discretionary factors in s 192 of the Evidence Act (including importance of the evidence, unfairness to the accused, and the nature of the proceeding) applied to the s 32(3) application.

Decision

Dhanji J granted leave under s 32(1), finding the witness was unable to recall the relevant fact without the document and that the statement had been made when events were fresh in the witness's memory. The statement was taken only days after the incident and later adopted on video. Defence counsel did not oppose this step.

However, when the witness read the relevant passage to himself, his memory was not refreshed. He maintained he had no recall of what the accused said during the choking. The Crown then sought leave under s 32(3) for the witness to read the words aloud as part of his evidence. Defence counsel opposed.

Dhanji J refused the s 32(3) application. While accepting the evidence was relevant to the accused's state of mind before the stabbing and was of some importance in a murder trial, the court weighed this against several countervailing factors. Significant other evidence of the accused's anger and aggression already existed. The alleged utterance related to an intention to kill the witness, not the deceased who was ultimately killed. A reasonable inference was available that the accused could have killed the witness (who was on the ground while the accused stood over him with a sword) but did not do so.

Critically, the court found that admitting the evidence would be unfair to the accused under s 192(2)(b). The witness's complete inability to recall even the effect of the words spoken meant it would be very difficult for the accused to test the evidence in cross-examination. The combination of this inability to test the evidence, the context that the threat was directed at the witness rather than the deceased, and the inference that the accused did not in fact carry out the threat against the witness made it unfair to admit the passage through the s 32(3) mechanism.

Orders Made

  • Leave granted under s 32(1) to show the witness the relevant part of his police statement to attempt to revive his memory.
  • Leave refused under s 32(3) for the witness to read aloud the relevant passage from his statement as part of his evidence.

Key Takeaways

  • Under s 32 of the Evidence Act, the process of refreshing memory involves two distinct stages: leave to use a document to try to revive memory (s 32(1)), and a further, separate discretion to permit reading aloud where the attempt at revival fails (s 32(3)).
  • The discretion under s 32(3) is not automatic once s 32(1) leave is granted. Even where the evidence is relevant and important, the court must weigh fairness to the accused and other s 192 considerations before permitting a witness to read aloud a prior statement as evidence.
  • Where a witness cannot recall even the gist of the recorded fact, the accused's ability to meaningfully test the evidence in cross-examination is significantly compromised, and this weighs heavily against granting s 32(3) leave.
  • In refusing leave, the Supreme Court considered that the Crown's case was not significantly diminished by the absence of this single piece of evidence, given substantial other evidence of the accused's aggression and state of mind.
  • Following Perish v R (2016) 92 NSWLR 161, the court noted it may not even be necessary to obtain formal leave under s 32(1) where the opposing party does not object.

Legislation and Cases Referenced

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

Cases:
- Perish v R; Perish v R; Lawton v R (2016) 92 NSWLR 161; [2016] NSWCCA 89