R v Al Batat & Ors (No 15)

Yesterday, the Prosecutor sought leave under s 32 of the Evidence Act 1995 (NSW) to have the current witness, Ms Wai Li, refresh her memory from a police statement she made on 1 May 2019. Three of the six accused opposed the grant of leave. The evidence subject of the s 32 application concerns a “conversation” between Ms Li and one of the accused, Mr Luo, which was conducted over a medium known as WeChat the day after the alleged murder on 1 February 2017. That is, the alleged WeChat messages were sent and received on 2 February 2017, more than two years before Ms Li’s statement was made. The evidence was considered in two separate judgments in the course of the pre-trial hearing: R v Al Batat & Ors (No 8) [2020] NSWSC 1095 and R v Al Batat & Ors (No 10) [2020] NSWSC 1107. In the first of those judgments I ruled the evidence was admissible against Mr Luo and in the second I ruled that it was inadmissible against Mr Liu. In accordance with those rulings, the evidence is only being elicited in Mr Luo’s case.

The way in which the evidence came out, and the manner in which the application for leave was made and opposed, is recorded in yesterday’s transcript: [1]

The jury was then sent home for the day and counsel for Mr Luo, that is, Mr Webb, indicated he opposed the grant of leave to refresh Ms Li’s memory under s 32 of the Evidence Act. His opposition was supported by, at least, Senior Counsel for Mr Al Batat (Ms Rigg SC) and counsel for Mr Liu (Ms Carroll). The evidence is only tendered against Mr Luo but the other accused have a legitimate interest in the application because, as was submitted by Ms Rigg, the evidence may potentially go to, or at least be used as, evidence concerning the issue of any common purpose or criminal agreement between the men. The prosecution opened the trial on the basis of both joint criminal enterprise and extended joint criminal enterprise. Mr Liu has a particular interest because he is concerned that evidence prejudicial to him may emerge when that evidence is not admissible in his case.

Section 32 requires, in essence, that the witness's memory is exhausted, although the section uses different terms, as set out below. I doubt that the evidence that preceded the application truly engaged the prerequisite in s 32(2)(a) but, for the purpose of the argument, I am prepared to accept that it does. This decision is not based upon any deficiency in that regard.

The statement of 1 May 2019 deals with the alleged WeChat conversation on 2 February 2017 in paragraph 99 of 104. That paragraph reads as follows:

The matter raised by Ms Carroll in the absence of the jury, and implicitly by Mr Webb before the jury was sent out, is that the police and prosecution have access to the relevant WeChat conversation because they have (or had) possession of Ms Li’s telephone. The Prosecutor says he understands that he does not have access to the relevant record. There is no evidence either way as to this issue and I will put it to one side. The application is to refresh the memory from the statement of 1 May 2019 and that application must be dealt with on its own merits. Obviously, if the WeChat message is actually available, it is the best evidence of the conversation. Otherwise the Court is left to rely on Ms Li’s memory of what was said in the “chat”.

Section 32 of the Evidence Act provides:

Section 192 of the Evidence Act provides some criteria to be considered in determining whether to grant leave.

Neither s 192 nor s 32(2) provides an exhaustive list of criteria upon which the decision as to whether leave should be granted must be determined. Section 32 reflects the common law position but the ALRC intended that the provision should create greater “flexibility”: Stephen Odgers, ‘Uniform Evidence Law’ (15th Edition, Lawbook Co, 2020), p 175 [EA.32.60]. The statute places less importance on the contemporaneity of the document sought to be used to refresh the witness’s memory but that requirement remains an important part of the evaluation of whether leave should be granted.

The phrase “fresh in the memory” has received a lot of attention both at common law and under the provisions of the Evidence Act: see for example R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105; Roth v The Queen [2014] VSCA 242; Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61.

Graham v The Queen was specifically concerned with the provision in s 66 of the Evidence Act which provides an exception to the hearsay rule. Gaudron, Gummow and Hayne JJ said of the expression “fresh in the memory”:

Section 66 was amended to overcome those observations. Section 66(2A) now provides:

No similar amendment was made to s 32 of the Evidence Act.

The Prosecutor submitted that the phrase should be interpreted consistently whenever it is used in the Evidence Act. While that submission reflects a well-established axiom of statutory construction, it cannot sensibly be applied when one section has been amended to give the word or phrase a particular connotation or meaning and the other section has not.

The Prosecutor submitted that the nature of the communication was such that the memory of the conversation was fresh at the time of the statement. This was based on the importance of the communication – that is, a communication that somebody had been shot and killed. However, the witness was not recalling her own memory of the incident but rather one of a number of communications she had that morning over a messaging service. It is not known just how many messages she had sent or received that day or how many conversations, communications and “WeChats” she had been involved in during the 27 months between the alleged conversation and the making of her statement.

The event, being a WeChat message exchange, was not fresh in Ms Li’s memory when she made her statement of 1 May 2019. It was far from it.

The Prosecutor relies on the fact that Ms Li signed her statement as true and correct and refers to s 32(2)(b)(ii) of the Evidence Act; that is, it is submitted the documents was “found by the witness to be accurate” (presumably) when she signed it. That is a relevant consideration but it is not one of very much weight in all of the circumstances of this case. The jurat in paragraph 1 of the statement is part of every statement taken by New South Wales Police. It is also to be noted that this was an induced statement, given upon a promise made to Ms Li that its contents would not be used against her.

In terms of s 192, the following matters are relevant to the question of whether leave should be granted:

I have considered all of these matters. However, the heart of the issue, to my mind, is whether allowing Ms Li to refer to her statement while she is in the witness box will genuinely or actually assist her in providing a true and accurate memory of the content of the relevant WeChat messages. I don’t think that it will. Ms Li’s statement of 1 May 2019 provided what was accurately described by Ms Rigg as an “impressionistic” memory of the WeChat conversation. There is simply no way that her memory at that time allows for a perfect reproduction of the words actually used 27 months earlier on 2 February 2017.

Accordingly, the application under s 32 of the Evidence Act 1995 (NSW) is refused.

Nothing in this judgment or in this ruling, will prevent the Prosecutor from exploring the WeChat conversation further in evidence-in-chief but he will not be permitted the put the statement in the witness’s hands for the purpose of purporting to refresh her memory. Nor will he be permitted to cross-examine the witness in the absence of leave being granted under s 38 of the Evidence Act.