R v Hickson (No. 2)

The Crown applies to avail itself of s 32 of the Evidence Act 1995 (NSW) on the basis of evidence given so far by Robert Hamilton where he has indicated an inability to remember a number of aspects of events recorded in paragraph 27 of his statement of 5 June 2018.

Section 32 relevantly provides:

The Court must also take into account, when considering whether leave should be given, the matters in s 192(2) of the Act.

In the light of Mr Hamilton’s evidence so far, I am satisfied that he cannot recall the matters set out in his statement, particularly paragraph 27, without using the statement.

Mr Hamilton’s statement was made in June 2018. It concerned events that took place mainly in 1989 and 1990. In those circumstances, the statement cannot be said to have been made when the events were fresh in the mind of the witness.

However, subparagraph (2)(b)(ii) is satisfied because paragraph 1 of Mr Hamilton’s statement says, “This statement by me accurately sets out the evidence I would be prepared to give...”. In that sense the witness found the facts to be accurate at the time of the making of the statement.

In relation to s192(2), I consider that the matter identified in s 192(2)(a) is not relevant. As to the other matters in s 192(2), I accept that in some respects it would be unfair to the accused to permit leave to be granted under s 32, given what Mr Hamilton has indicated thus far is his memory of the events. However, the unfairness arises only because the accused will be deprived of the benefit of the witness’s poor memory. If leave is given, the witness can still be cross-examined about that poor memory.

Balanced against that unfairness, must be the importance of the evidence and the nature of the proceedings. The evidence is significant evidence that amounts to an admission on the part of the accused in relation to the very serious offence charged.

Taking into account the matters in s 192(2), I consider that leave should be granted under s 32.