R v Jenkin (No 5)

On 9 May 2018, I granted leave under s 32 of the Evidence Act 1995 (NSW) to allow a witness (“AR”) to use a document to revive his memory in the course of giving evidence. These are my reasons for granting leave.

When the issue first arose counsel for the accused raised no objection, saying “[u]nder the Evidence Act, I concede [that course] is available to the Crown as a tool”: Transcript (T) p 385. The Crown then asked the witness:

Counsel for the accused then asked to raise a matter in the absence of the witness and the following 16 pages of transcript (T 385-401) records the evidence then given on the voir dire and the submissions made in opposition to the grant of leave.

Section 32 provides:

As to the criterion in s 32(2)(a), it was clear that the witness could not recall the facts he was being asked about (adequately or at all) without using the document. On the other hand, it was not clear that he would be able to recall those facts if he did use the document. It was not clear that the witness could remember what happened a very short time earlier and I doubted that allowing him, as the Crown Prosecutor initially proposed, to read the entirety of his 42 page interview and then return to the witness box, would do anything to improve the quality of his evidence. The evidence he gave before the application for leave under s 32 was granted included the following: [1]

The evidence on the voir dire did not establish that the witness found his statement to be accurate at the time it was made: s 32(2)(b)(ii). It seems the witness adopted the 42 page interview in a subsequent statement but that statement was not tendered on the voir dire although it was later (after I granted leave) marked for identification: MFI 6. There was no evidence on the voir dire as to when the statement was made or whether it asserted that the earlier interview was accurate. For those reasons, the criterion in s 32(2)(b)(ii) was not satisfied or addressed.

The bulk of the argument centred on s 32(2)(b)(i) and whether the interview was made when “the events recorded in it were fresh in his or her memory”. The events the witness was expected to give evidence about occurred in around March or April 2015. The interview with the witness was held on 17 July 2015.

The accused relied on what was said by the majority of the High Court in Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 at [4]:

The Crown referred to amendments to s 66 which require the Court to take into account the nature of the event, the age and health of the person and the period of time between the event and the representation: s 66(2A). That amendment was calculated to overcome the strictures of the High Court’s decision in Graham and the singular focus on the temporal proximity of the representation to the event. However, reliance on that amendment is misplaced because no similar amendment was made to s 32.

On the other hand, counsel for the accused referred to the decision of Bellew J in R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105. In Rogerson (No 24) his Honour declined to grant leave under s 32 when there was a delay of about one year between the event in question and the police statement the Crown sought to use to revive a witness’s memory. Bellew J held that the event was not “fresh in his or her memory” for the purpose of s 32. However, in doing so, his Honour at [10-12] cited a well-known textbook and a decision of the Victorian Court of Appeal as follows:

In the present case, the events of which the witness was giving evidence occurred around three months before his statement. The witness’s evidence, and his insightful self-assessment of the quality of his memory, suggested that he had difficulty remembering things that happened yesterday, let alone things that happened months earlier. For example, he said he had read his interview the day before he gave evidence and yet he could remember almost none of the details he provided in that interview. Asked about the conversations he had told the police about in the interview, which he had read 24 hours earlier he replied: “Fuck, I can’t remember what I said.” [2]

There was no evidence that AR’s memory was better in 2015 than it is today. In view of the quality of AR’s memory generally, the nature of the events he was being called upon to remember and the delay between the subject events and his police interview, I was not satisfied that the interview was recorded when the events therein recorded “were fresh in [AR’s] memory”.

It will be seen that a consideration of the specific criteria in s 32(2) tended to militate against allowing the witness to use the document to revive his memory. However, s 32(2) does not provide an exhaustive set of criteria and commences with the words “[w]ithout limiting the matters that the court may take into account”. A number of other matters militated in favour of granting leave to assist a witness who was clearly struggling. For example, the matters set out in s 192(2) of the Evidence Act pulled in the direction of the grant of leave. Section 192 of the Evidence Act provides:

Based on those criteria, and considering the interests of justice as a whole, I determined that leave should be granted. In particular, I determined:

I also took into account the observations of Bellew J in Rogerson (No 24) to the effect that the section should be interpreted and applied in a “generally liberal”, rather than restrictive way. It is not necessary to consider that observation further, and each case will be determined on its own facts and in accordance with the terms of the statute and the interests of justice, but I was satisfied that leave should be granted under s 32(1) in the present case. I did not grant leave under s 32(3) allowing the witness to read aloud from his statement. No application was made under that subsection and, given the witness’s manifest memory issues, it would not have been fair to allow him to read from an interview which he scarcely remembered making.