R v Qaumi & Ors (No 38)

During the course or the examination of a witness known as Witness E, the Crown sought leave under s 32 of the Evidence Act 1995 (NSW) for the witness to revive his memory in relation to the mobile telephone numbers of three relevant people. Senior Counsel for Farhad Qaumi opposed the grant of leave. Leave was granted for the following reasons.

Section 32 of the Evidence Act provides:

When asked about the telephone numbers the witness indicated that he was unable to recall them and was led in such a way that all that could be said was that he accepted what the Crown Prosecutor was telling him that was recorded in his police statement. [1] Objection was taken to the witness being taken to relevant parts of his statement and the statement was marked for identification. [2] The Crown Prosecutor then adduced the following questions:

The Crown then made the application under s 32 of the Evidence Act.

The statement in question was made on 1 August 2014. It seems that was a considerable period of time after the witness last used the telephone numbers. Accordingly, at the time, I was inclined to accept the defence counsel’s submission that the statement was not fresh in the memory of the witness for the purpose of s 32(2)(a) of the Evidence Act.

However, I was satisfied that the consideration in s 32(2)(b) of the Evidence Act was satisfied. That is, the witness found the record of the telephone numbers to be accurate at the time he made the statement.

Subsection (2) does not provide an exhaustive list and the factors in s 192 of the Evidence Act are also relevant. Some of those factors are relevant – forcing the Crown to prove these telephone numbers by some other means would have added to the length of the trial, the evidence is important and the proceedings involve a number of serious allegations of criminal offences including murder and attempted murder. No unfairness to the accused was identified.

Giving testimony in a criminal trial is not a memory test. These days, very few people memorise telephone numbers. That is because they keep the telephone numbers of their friends, colleagues and associates in the contact list on their mobile telephone. As it turned out, evidence later emerged that the witness did not have an actual memory of the three telephone numbers. Rather, in making his statement to the police, he extracted the numbers from his telephone. [3]