DPP v Weiss

[2002] VSC 14

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1464 of 2001

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOHDAN WEISS

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Ruling No. 1

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	2 February 2002
CASE MAY BE CITED AS:	DPP v Bohdan Weiss
MEDIUM NEUTRAL CITATION:	[2002] VSC 14

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Criminal law and procedure – accused refreshing memory from notes made after the event – requirement to exhaust memory.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Faris QC	OPP
For the Accused	Mr C. Lovitt QC	Victoria Legal Aid

HIS HONOUR:

1. I refuse at present the application made by Mr Lovitt for his client to refresh his memory from his notes.  I do so for this reason:  I have already indicated to Mr Lovitt that this is not a memory test and when his client has evidently exhausted his memory, I will give him leave, subject to hearing Mr Faris, to refer to his later-made notes for purposes of refreshing his memory.

1. I have indicated that foreshadowed ruling in the absence of any submissions from the Prosecutor because as I said to Mr Lovitt I wish Mr Weiss to have every opportunity to place his evidence before the court, even though as a matter strictly of law the notes are not notes made at or immediately after the events.  I think fairness requires that an accused person who later makes notes be given every facility, given that there is stress upon a witness accused and these are matters of memory.

1. It is quite evident that Mr Weiss has not yet exhausted his memory.  I would not wish his capacity to be believed to be reduced either because his answers are elicited in leading form by his barrister or because he refers to notes when he has - if he has - an actual memory of events.

1. We have reached the point in his evidence where the accused has repeatedly said that the officer, Detective Sergeant Thomas, asked, "But who?  But who?", and that the witness has said, "I cannot take the rap for this one.  I didn't do this one."  The hiatus between that and the next matter will no doubt be evident to any experienced counsel.  I wish Mr Weiss to have the opportunity to proceed with his evidence without lessening its credibility and accordingly I decline at present the application, but it will be granted in circumstances of fairness to Mr Weiss.

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