R v Dougas; R v Read; R v Linke (No 13)

The three accused seek a distorted memory direction, the draft of which is set out in MFI 31 and which I set out for convenience below:

The introduction which they seek to be inserted into the proposed distorted memory direction pursuant to s 165B of the Evidence Act 1995 (NSW) is in MFI 29 with one additional sentence in a red box on the right-hand side of MFI 30, together set out below for convenience:

The Crown opposes a distorted memory direction and submits it is not required because the way in which the case has been conducted would have been more than sufficient to alert the jury to the difficulties occasioned by delay. The Crown submits that this is part of the jury’s function as the tribunal of fact, that they are well aware of these matters and that I should not give a judicial imprimatur to a warning about distorted memory in this context when they are well able to work out these matters for themselves, as part of their orthodox activities as the tribunal of fact.

The Crown referred me to the decision of the Victorian Court of Appeal in Wade (a pseudonym) v R [2019] VSCA 168 (Wade), in which there was consideration about an equivalent provision, s 32 of the Jury Directions Act 2015 (Vic).

I was also referred to the decision of R v Reardon [2002] NSWCCA 203; (2002) 186 FLR 1 (Reardon), a decision of the New South Wales Court of Criminal Appeal in which Simpson J at [143] expressed the view that, where potential unreliability and the reasons for it were fully exposed to the jury through evidence-in-chief, cross‑examination and final addresses then this could constitute a good reason for declining the direction. That statement was made in the context of, I apprehend, an appeal against conviction when her Honour was considering whether the trial judge’s omission, or refusal, to give such a direction constituted an error, which ought lead the Court to quashing the conviction.

I am, however, in a different position in the sense that I am in the position to decide whether the direction should be given prophylactically, which would mean the question which arose for the Court of Criminal Appeal’s consideration in Reardon would not arise.

There is significant force in the Crown’s submission that the potential unreliability of Mr Chapple’s evidence on the grounds, relevant for present purposes, of delay, and the reasons for it, were fully exposed to the jury. Certainly Mr Chapple was extensively cross-examined about prior inconsistent statements, which he had made in the course of the initial investigation by Sinclair Knight Merz (SKM) conducted by Jones Day in 2012; and the police investigation, which commenced in 2013 and led to the laying of charges in 2019 and a committal hearing in 2020.

However, in Wade at [35] their Honours, Priest, Forrest and Weinberg JJA, said that relevantly, if there is any doubt in a judge’s mind as to whether a s 32 [Jury Directions Act 2015 (Vic)] direction ought be given - which is the equivalent to this distorted memory direction, which is in MFI 31 - then prudence and, indeed, the structure and language of s 32 requires that a direction should be given. I consider, relevantly, that s 165B(2) and (3) of the Evidence Act have the same effect.

I am not sure that a direction is required. On the other hand, the giving of the direction would emphasise to the jury the potential for the memory of Mr Chapple to have been distorted by the passage of time. Although this did not constitute the complete challenge to Mr Chapple’s evidence, it was one of a number of important challenges.

In these circumstances, I am persuaded that I should give a direction in accordance with MFI 31 and that I should foreshadow the direction using the words in MFI 29 including the sentence in the box on the right‑hand side in red in MFI 30.