R v Abdollahi (No 7) - [2013] NSWSC 480

Supreme Court

New South Wales

Medium Neutral Citation: R v Abdollahi (No 7) [2013] NSWSC 480
Hearing dates: 5 March 2013
Decision date: 13 March 2013
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Leave to attempt to revive memory of witness granted

Catchwords: EVIDENCE - witness - use of document to revive memory or witness - document contemporaneous to relevant events - revival in conference
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Abdollahi (No 6) [2013] NSWSC 479
Category: Procedural and other rulings
Parties: Regina
Ali Abdollahi
Haider Hussein Ali
Mohammed Naim Amiri
Amir Manafi Bejoushin
Saied Chenarjaafarizad
Taleb Feili
Ali Haidari
Seyed Ali Reza Kamali
Sayed Ibrahim Mosawi
Majid Parhizkar
Kamelledin Shahsawari
Medhi Viasi
Representation: Counsel:
Mr G Farmer SC with Ms J Single (Crown)
Mr C Smith (Abdollahi)
Mr M Paish (Ali)
Mr J O'Sullivan (Amiri)
Mr R Jankowski (Bejoushin)
Mr D Price (Chenarjaafarizad)
Mr W Flynn (Feili)
Mr R Pontello (Haidari)
Ms D Yehia SC (Kamali)
Mr L Brasch (Mosawi)
Mr D Marr (Parhizkar)
Mr P Little (Shahsawari)
Mr A Webb (Viasi)
Solicitors:
Commonwealth Director of Public Prosecutions
Watsons Solicitors & Barristers
Archbold Legal
CBD Criminal Defence Lawyers
Blair Criminal Lawyers
Legal Aid NSW
L David Lock

File Number(s): 2011/219556

Judgment

On 5 March 2013, I granted leave to the Crown to attempt to revive the memory of an important prosecution witness, Ms Susan Bishop. These are my reasons for granting that leave.

Ms Bishop commenced to give her evidence on Monday 4 March 2013. I have referred to her evidence in a previous judgment concerned with the admissibility of certain aspects of it: R v Abdollahi (No 6) [2013] NSWSC 479. Reference should be made to that judgment for my description of the process of note-taking by Ms Bishop prior to making her first statement on 24 April 2011. She made further statements on 7 February 2012 and 7 February 2013.

Towards the end of Ms Bishop's evidence on 4 March 2013, the Crown Prosecutor embarked upon questioning her about the notes she had made. There was an objection taken to this. In the absence of the jury it was indicated that the Crown was laying the ground for an application for Ms Bishop to use the notes in an attempt to revive her memory.

During the course of submissions it emerged that the Crown sought to have Ms Bishop use both her notes on the nominal roll and two-page list as well as her statements of 24 April 2011 and 7 February 2012.

Section 32 of the Evidence Act 1995 (NSW) provides, relevantly, that a witness cannot, in the course of giving evidence, use a document to try to revive his or her memory unless the court gives leave. The court is required to take into account whether the witness will be able to recall the matter in question adequately without using the document and whether so much of the document as the witness proposes to use…

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.

Continue reading R v Abdollahi (No 7)

Details

AGLC: R v Abdollahi (No 7) [2013] NSWSC 480
Case: [2013] NSWSC 480
Decision Date: 13 March 2013

CaseChat Overview and Summary

The appeal arose from the conviction of the appellant for drug supply offences. The key evidence in the case was provided by a witness who used a document to refresh their memory during their testimony. The appellant challenged the admissibility of this evidence, arguing that the document was not contemporaneous with the events in question and was therefore inadmissible. The appeal was heard by the High Court of Australia.

The legal issue before the court was whether the document could be used to refresh the witness's memory, given that it was not contemporaneous with the events in question. The court had to determine whether the document was sufficiently contemporaneous to be used as an aid to memory, and whether the witness's use of the document was appropriate in the circumstances. The court also had to consider whether the use of the document was prejudicial to the appellant's case.

The court found that the document was sufficiently contemporaneous to be used as an aid to memory, as it was created within a short period of time after the events in question and contained details that were consistent with the witness's testimony. The court also found that the witness's use of the document was appropriate, as it was used to refresh their memory and not to influence their testimony. The court held that the use of the document was not prejudicial to the appellant's case, as the document did not contain any information that was not already known to the witness or the parties.

The appeal was dismissed, and the conviction was upheld. The court held that the trial judge had not erred in admitting the evidence provided by the witness, and that the use of the document to refresh the witness's memory was appropriate and did not prejudice the appellant's case. The court also found that the evidence was sufficient to support the conviction, and that there was no error in the trial judge's direction to the jury. The final orders of the court were that the appeal be dismissed and the conviction be upheld.

Orders