Barnes v The Queen
[1990] TASSC 38
•17 August 1990
Serial No 35/1990
List "A"
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APEAL)
CITATION: Barnes v R [1990] TASSC 38; A35/1990
PARTIES: BARNES, John Kevin
v
R
FILE NO/S: CCA 20/1990
DELIVERED ON: 17 August 1990
DELIVERED AT: Hobart
JUDGMENT OF: Green CJ, Neasey and Wright JJ
Judgment Number: A35/1990
Number of paragraphs: 15
Serial No 35/1990
List "A"
File No CCA 20/1990
JOHN KEVIN BARNES v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
NEASEY J
WRIGHT J
17 August 1990
Order of the Court
Appeal dismissed.
Serial No 35/1990
List "A"
File No CCA 20/1990
JOHN KEVIN BARNES v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
17 August 1990
This is an appeal against the appellant's conviction for trafficking in a narcotic substance on the ground that "the trial judge erred in law in permitting the admission into evidence of notes allegedly made by Detective Tully of a conversation with the appellant". It is not submitted that the trial judge erred in failing to exclude the evidence in the exercise of his discretion and thus the sole issue is whether the evidence of the notes was admissible.
Sergeant Tully gave evidence that he and another police officer had a conversation with the appellant during which the appellant made admissions. During his examination–in–chief, Sergeant Tully gave evidence that he had taken "abbreviated notes" of the conversation. In the course of his cross–examination, Sergeant Tully said that he had refreshed his memory from the notes before he came to court and counsel for the appellant called for their production and inspected them. Sergeant Tully said that he did not show the notes to the appellant "because he would not have been able to understand them ... because they were so abbreviated". Sergeant Tully was questioned about several phrases which he said the appellant had used and was asked whether they were abbreviated in the notes. The cross–examination went beyond the issues of the witness's credit and the reliability of his recollection and explicitly or implicitly raised the further issues of whether the notes had in fact been taken, whether the notes could have been easily understood by the appellant and whether the witness's explanation for not showing them to the appellant was true, which issues in turn, were relevant to the issue of whether the admissions had been made at all. It follows that the actual form which the notes took was a fact which was directly relevant to the jury's determination of an important question in the trial and were thus admissible.
I would dismiss the appeal.
Serial No 35/1990
List "A"
File No CCA 20/1990
JOHN KEVIN BARNES v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J
17 August 1990
I agree with the reasons for judgment to be given by Wright J, and with the order he proposes.
Serial No 35/1990
List "A"
File No CCA 20/1990
JOHN KEVIN BARNES v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
17 August 1990
On 2 April 1990, the appellant was convicted of trafficking in a narcotic substance. He now appeals against his conviction on the sole ground that the learned trial judge erred in law in admitting into evidence, notes allegedly made by Detective Senior Sergeant Tully in the course of a conversation with the appellant.
Evidence of this conversation was given by both Detective Constable William Grierson and Detective Senior Sergeant Tully. In their evidence–in–chief, neither of them referred to the notes or made mention of their existence. However during the course of cross–examination of Constable Grierson who testified first, he was asked whether any notes had been taken of the conversation. He agreed that notes had been taken and that they had not been shown to the appellant after the interview was completed. When Sergeant Tully gave evidence he said the reason for this was that the notes had been taken in abbreviated form and that they would not have been capable of interpretation by anyone other than the author. To use Sergeant Tully's own words, "Because he wouldn't have been able to understand them ... Because they were so abbreviated".
Sergeant Tully was also asked by defence counsel whether he had referred to the notes out of court prior to giving his evidence. When Sergeant Tully agreed that he had done so, defence counsel, no doubt relying upon the decision of this Court in Mather v Morgan [1971] Tas SR p192, called for the production of the notes and then perused them. Sergeant Tully was then cross–examined upon the notes.
It is now claimed that this cross–examination was not such as to render the notes themselves admissible in evidence because the cross–examination of each police witness was limited to testing the accuracy of his recollection.
A perusal of the transcript however, clearly indicates that the cross–examination went well beyond this and that it was suggested to both police officers that the notes which were produced amounted to a false or concocted document brought into existence for the purpose of falsely supporting the police claim that the appellant had made damaging admissions to them. This is illustrated by the following passage of evidence:
"Mr EllisRight so again you are left with a set of notes containing a full confession.
Constable Grierson Yes.
Mr EllisWhich would have been able to have been turned into real evidence, real objective evidence?
Constable Grierson Well it is not common practice to show the person charged the notes, they are for our benefit.
Mr EllisYes if they exist?
Constable Grierson They exist.
Mr EllisIf they existed at the time?
Constable Grierson They existed at the time.
Mr EllisThat's why you couldn't show them to him, there weren't any?
Constable Grierson There were.
Mr EllisThere had been no such conversation of which you've given evidence?
Constable Grierson That's incorrect there was that conversation.
Mr EllisIt didn't take place.
Constable Grierson It took place".
In my opinion, from this point onwards the disputed issue changed from being one as to the use and value of the document as an aide memoire and a testing of the accuracy of that memory by reference to the document, and expanded rather into the much broader issue of the general credit of the police witnesses as to whether or not the notes had been taken at all. When Sergeant Tully gave his evidence and was cross–examined, the issue expanded further and involved the question of whether the notes could have been readily understood by the appellant if they had been placed before him for perusal at the conclusion of the interview.
It is clear from the authorities that a document used by a witness for the purpose of refreshing his memory out of court cannot be put in evidence by counsel calling that witness unless the cross–examination by opposing counsel goes beyond testing the witness's recollection and reliability by reference to those notes. As stated in Mather v Morgan (supra) at p.206:
"In our view the decisions which clearly establish the right of cross–examining counsel to inspect a document used in the witness box by a witness to refresh his memory justify the conclusion that he should be given the opportunity to exercise the same right in relation to a document used by the witness to refresh his memory before he comes into court. The rationale of the decisions is that in the interest of justice cross–examining counsel should be able to check the source of the witness's memory stimulus, and test the reliability of the witness's oral testimony by reference to it."
However, where the nature of the cross–examination involves a suggestion that the witness has subsequently made up his evidence, involving either expressly or by implication the allegation that the record is concocted, the record may be admissible to rebut this suggestion, and, if the nature of the record assists as to this, to show whether or not it is a genuine contemporaneous record which has not subsequently been altered (see Sekhon v The Queen (1987) 85 Cr App R 19 at p22).
In the present case, a perusal of the document in question by the jury would have assisted them in determining both whether the document was genuine and whether it could have been easily understood by the appellant had it been shown to him.
For these reasons, I think that his Honour was not in error in admitting the document into evidence as he did, nor has it been shown that he erroneously exercised his discretion in taking this course. I am also of opinion that his Honour gave an appropriate direction to the jury as to the use which they could make of the document in the course of his summing up.
In my opinion, the appeal should be dismissed.
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