R v Rogerson; R v McNamara (No 24)

The Crown has called Justin McLannen in its case. Mr McLannen is currently giving evidence. Principally, his evidence is relied upon by the Crown for the purpose of rebutting what is anticipated to be evidence of good character which will be adduced in the case of the accused McNamara.

Mr McLannen made a statement to the police on 16 January 2015 in which he detailed a meeting in early 2014 at which he, the accused and the deceased were in attendance. He alleges that in the course of that meeting, McNamara made a number of threats to him, in the context of inquiries which were then being undertaken by McNamara relating to the proceedings which had been brought against Chun Lok Lam and Chun Kit Lam.

It is worth noting that some of Mr McLannen’s evidence appears to be independently corroborated by a document allegedly found on McNamara’s computer at the time of his arrest.

In the course of giving evidence, the Crown sought leave for Mr McLannen to revive his memory in relation to two particular aspects of his statement. That application was opposed by Ms Shead, who appears on behalf of McNamara. The two areas in respect of which the Crown has made that application are paragraphs 21 and 24 of Mr McLannen's statement of 16 January 2015. Paragraph 21 is in the following terms:

Paragraph 24 is in the following terms:

The Crown's application enlivens two particular sections of the Evidence Act 1995 (NSW) (“the Act”). The first is s. 32 which is in the following terms:

The second is s. 192 which is in the following terms:

There is a dearth of authority as to the meaning of the term "fresh in his or her memory" as it appears in s. 32. In Graham v R [1998] HCA 61; (1998) 195 CLR 606, the High Court considered the phrase as it appears in s. 66 of the Act. The plurality (Gaudron, Gummow and Hayne JJ) made the following observations (at paragraph [4]):

Taken by itself, that passage may lend support to the Crown's position. However, subsequent to the decision in Graham the Parliament amended 66 of the Act by inserting s. 2A. The effect of that amendment was to overcome the restrictive interpretation which had been applied by the High Court in Graham to the interpretation of the phrase "fresh in the memory".

No corresponding amendment was made to the provisions of s. 32. In that regard the authors of Uniform Evidence in Australia (Lexis Nexis 2015) make the following observation (at p. 109):

In making those observations, the authors make reference to a decision of Roth (a Pseudonym) v The Queen [2014] VSCA 242 where Neave and Priest JJA made the following observation (at [40]):

I am left to conclude, in these circumstances, that a generally liberal rather than a restrictive, approach is to be adopted in resolving the present question.

Adopting that approach, I turn to the provisions of s. 32(2). That section sets out considerations which, although not exhaustive, are mandatory in determining whether or not leave should be granted.

The first of those considerations is that contained in s. 32(2)(a). It requires that I take into account whether the witness will be able to recall the fact or opinion adequately without using a document, in this case his statement. I am satisfied in the circumstances Mr McLannen will not be able to recall those passages to which I have referred without reference to his statement.

The second consideration in s. 32(2)(b) has two separate components. The first is whether the document from which it is sought that the witness revive his memory is one that was written or made when the events recorded in it were fresh in his memory. In the course of giving evidence, and in answer to a leading question from the Crown, the witness agreed with the proposition the relevant events were fresh in his memory at the time his statement was made. There was no further question put to the witness as to why this was so. Indeed, there was no further question put to the witness so as to confirm that he understood the import of the phrase "fresh in his memory".

In my view, the submission of counsel for the accused that such an answer should be given very little weight is one which has considerable force. That is, in effect, the only direct evidence of the consideration set out in s. 32(2)(b)(i). It is not without significance that a period of 12 months elapsed between when the meeting took place and when Mr McClannen made his statement. That is an obviously significant period of time.

In all of the circumstances, I am not satisfied, that the relevant events were fresh in Mr McClannen’s memory at the time that the statement was made. That tends against a grant of leave. The second consideration, set out in s. 32(2)(b)(ii), is whether the witness found the statement to be accurate. I infer from the fact that he signed the statement that he did so.

I have also had regard to the provisions of s. 192 and the considerations set out therein. Granting leave would not add unduly to the length of the trial, and I am not satisfied in all of the circumstances that if leave were granted it would operate in a way which was necessarily unfair to McNamara.

As far as the importance of the evidence is concerned, it is relevant to note, as I have already outlined, the evidence does not go to a “core issue” in the case. Rather, it is led by the Crown to rebut the anticipated evidence of good character which will be led in the case for the accused. This is a further factor which tends against a grant of leave.

In all of these circumstances, I do not propose to grant leave to allow the witness to refresh his memory from his statement.