R v Lupton (No 3)

At the end of the first day of evidence in Mr Jay Lupton’s murder trial, the Prosecutor sought leave to allow the current witness (Sherie O’Neill) to use a document to try to revive her memory in relation to words spoken by the deceased and/or the accused shortly after, on the prosecution case, the deceased was stabbed. Counsel for the accused objects to leave being granted.

Ms O’Neill is said to be an eye witness to the stabbing and she has given evidence of events she witnessed in the backyard of her mother’s house at Lethbridge Park shortly before midnight on 24 February 2020. She has also given evidence of the relationships between a number of the key players and events leading up to the stabbing. It is common ground that Mr Lupton stabbed the deceased at the premises but there is a dispute as to the precise location of the stabbing and circumstances in which that stabbing occurred.

Ms O’Neill gave evidence that she saw Mr Lupton shove Mr Jaouhara in the area of the chest. The following exchange then occurred (at T 89-90):

I am told that the first statement referred to by Ms O’Neil is one in which she gave a false account of the events. The second statement was made three or four days after the event.

After a somewhat muted objection was foreshadowed, there was a brief discussion between counsel and the examination in chief continued (T 90-91):

At that point, Mr Webb raised a formal objection to the witness being permitted to try to refresh her memory by reference to her police statement dated 27 February 2020. The examination concluded as follows (T 91):

At that stage, at 3:55pm, the jury was permitted to separate for the day and counsel commenced their submissions. The submissions continued this morning. Having indicated this morning my provisional view that leave should not be granted, the learned Prosecutor made a number of further submissions relating, first, to whether the subject matter was fresh in the memory, drawing analogy with s 66 of the Evidence Act 1995 (NSW) and also the criteria in ss 32 and 192.

He also foreshadowed an application to cross-examine the witness under s 38, but that is a matter I need not consider at this time. At the moment, the issue is whether or not the witness should be permitted to revive her memory, or attempt to revive her memory, by reference to her police statement, in particular, the contents of paragraph 12 of that statement.

Section 32(1) forbids a witness from trying to revive their memory by reference to a document unless the Court gives leave. Section 32(2) provides a non-exhaustive list of matters that a court must take into account in determining the question of leave. Section 192 provides a further non-exhaustive list of considerations that a Court “is to take into account” when considering the grant of leave under the provisions of the Evidence Act 1995.

I am satisfied that at least two of the matters referred to in section 32(2) are satisfied. That is:

It is not so clear that the witness found the statement to be accurate at the time she made the statement: s 32(2)(b)(ii). I will return to that issue but acknowledge that the first paragraph of the document, which is in the common form for such statements, indicates the statement is true to the best of Ms O’Neill’s belief. However, as will be seen, the relevant portion of the statement tends to suggest that she was not certain at the time.

As to the matters in s 192(2), I make the following observations:

In R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105, Bellew J held that s 32 should be interpreted liberally in favour of the grant of leave. I made passing reference to that observation, while not adopting it, in R v Jenkin (No 5) [2018] NSWSC 730. Even so, the grant of leave in the latter case, given the quality of the evidence in question, might be seen as a liberal interpretation favourable to the party seeking to have the witness revive their memory - in that case, the prosecution. As I said in granting leave, each case will be determined by its own factual circumstance.

That brings me to the relevant part of the statement. It is in the following terms:

Ms O’Neill has given evidence to the effect of what she said in paragraph 11 of her statement in the following passage of the transcript (T 88):

It is the words in paragraph 12 that the Prosecutor is attempting to elicit. The problem is that, on the terms of the statement itself, Ms O’Neil was not sure what was said, even at the time she made her statement. She said “I don’t’ know what he was yelling” and could say no more than “I think” he yelled “look what you’ve done”. Allowing Ms O’Neill to use the statement to revive her memory may give a misleading account both of what actually happened, and what her memory was at the time she made her statement. If she reads the statement and this “revives” a memory that Mr Lupton said “look at what you’ve done” (which is the evidence the Prosecutor is trying to adduce) that will give a false account of her memory at the time of her statement.

It is true that cross-examination will readily expose that, but nevertheless it is difficult to see how we are reviving what can sensibly be said to be a true and accurate memory at the time of the statement.

There appear to be at least two reasons Ms O’Neill is unsure now, and was unsure four days after the event, about what, if anything, Mr Lupton said at the relevant time. First, she was yelling herself. Second, she was using a lot of drugs at that stage of her life. This is the implication in her evidence of “I was doing things I shouldn't have been doing”, a matter conceded by the Prosecutor.

The Prosecutor will be permitted to make another attempt to elicit the evidence in the traditional way but leave to have the witness revive her memory from paragraph 12 of the statement is refused.