Doueihi v Construction Technologies Australia Pty Ltd - [2016] NSWSC 105

Supreme Court

New South Wales

Medium Neutral Citation: R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105
Hearing dates: 22 February 2016
Date of orders: 22 February 2016
Decision date: 22 February 2016
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [20]

Catchwords:
CRIMINAL LAW – Evidence – Application for leave to allow witness to revive memory in court – Where Crown led evidence to rebut anticipated evidence of good character – Where Crown sought leave for witness to refresh memory from statement provided to police – Whether the statement was made when events were fresh in the memory – Gap of 1 year between events and the making of the statement by the witness - Leave refused
WORDS AND PHRASES – “Fresh in the memory”
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Graham v R [1998] HCA 61; (1998) 195 CLR 606
Roth (a pseudonym) v The Queen [2014] VSCA 242
Texts Cited: Uniform Evidence in Australia (Lexis Nexis 2015) – N.J Williams SC and ors.
Category: Procedural and other rulings
Parties: Regina – Crown
Roger Caleb Rogerson - Accused
Glen Patrick McNamara – Accused
Representation:
Counsel:
Mr C Maxwell QC - Crown
Mr G Thomas – Accused Rogerson
Ms K Shead – Accused McNamara
Solicitors:
Director of Public Prosecutions - Crown
Katsoolis and Co – Accused Rogerson
Kings Law Group – Accused McNamara

File Number(s): 2014/157408; 2014/156921
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

The Crown has called Justin McLannen in its case. Mr McLannen is currently giving evidence. Principally, his evidence is relied upon by the Crown for the purpose of rebutting what is anticipated to be evidence of good character which will be adduced in the case of the accused McNamara.
Mr McLannen made a statement to the police on 16 January 2015 in which he detailed a meeting in early 2014 at which he, the accused and the deceased were in attendance. He alleges that in the course of that meeting, McNamara made a number of threats to him, in the context of inquiries which were then being undertaken by McNamara relating to the proceedings which had been brought against Chun Lok Lam and Chun Kit Lam.
It is worth noting that some of Mr McLannen’s evidence appears to be independently corroborated by a document allegedly found on McNamara’s computer at the time of his arrest.
In the course of giving evidence, the Crown sought leave for Mr McLannen to revive his memory in relation to two particular aspects of his statement. That application was opposed by Ms Shead, who appears on behalf of McNamara. The two areas in respect of which the Crown has made that application are paragraphs 21 and 24 of Mr McLannen's statement of 16 January 2015. Paragraph 21 is in the following terms:

“He asked me why I had that name and I didn't know that I did so I just told him it was the AFP's fuck up. He then went on to say…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 105
Decision Date: 22 February 2016

CaseChat Overview and Summary

The case of Doueihi v Construction Technologies Australia Pty Ltd involved a dispute where the respondent, Construction Technologies Australia Pty Ltd, sought leave to allow a witness to refresh their memory from a statement provided to the police. This was in the context of criminal proceedings where the Crown had led evidence to rebut anticipated good character evidence from the witness. The applicant in the case, Doueihi, contested the respondent's application on the grounds that the statement was not made while the events were fresh in the witness's memory. The application was heard in the County Court of Victoria.

The legal issue before the court was whether the statement made by the witness to the police could be used to refresh the witness's memory during the trial. This involved determining whether the statement was made when the events were still fresh in the witness's memory. The court had to consider the gap between the events and the making of the statement, which was one year. The relevant legal principles centred on the requirement that statements used to refresh memory must have been made when the events were fresh in the witness's memory, and the court had to assess whether this criterion was satisfied.

The court concluded that the statement was not made when the events were fresh in the witness's memory due to the significant gap of one year between the events and the making of the statement. The court found that this gap rendered the statement inadmissible for the purpose of refreshing the witness's memory. The court's decision hinged on the strict interpretation of the phrase "fresh in the memory," which was deemed not to be satisfied in this case. Consequently, the application for leave to refresh the witness's memory from the statement was refused.

The final order of the court was that the application by Construction Technologies Australia Pty Ltd to allow the witness to refresh their memory from the police statement was dismissed. The witness was not permitted to use the statement for the purpose of refreshing their memory during the trial.

Orders