R v Dillon (No 2) - [2019] NSWSC 1536

Supreme Court

New South Wales

Medium Neutral Citation: R v Dillon (No 2) [2019] NSWSC 1536
Hearing dates: 30 September; 1, 8, 9, 10, 14 October 2019
Date of orders: 14 October 2019
Decision date: 14 October 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
I am not satisfied that the statement of 12 October 2016 is a statement that the witness ought to be permitted access to in an attempt to revive his memory in court, and I refuse the leave sought.

Catchwords: CRIMINAL PROCEDURE – Admissibility of evidence – whether to permit refreshing of memory with contemporaneous document – fresh in the memory – importance of witness – judicial function to ensure fairness in trial – refuse leave
Legislation Cited: Evidence Act 1995 (NSW), ss, 32, 66, 192(2) `
Cases Cited: Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
Category: Procedural and other rulings
Parties: Regina (Crown)
Joshua Dillon (Accused)
Representation:
Counsel:
Neil Adams (Crown)
Luke Brasch (for the accused)
Solicitors:
Solicitor for Public Prosecution (Crown)
Rivera Legal (Accused)

File Number(s): 2016/217435

Judgment

Mr Abdul Abu-Mahmoud, the brother of the deceased, is giving evidence. This witness was present when his brother received the fatal stab wound. He has made three statements to the police during the course of the investigation. The first of which was made on 18 July 2016, the very day on which these events occurred, the second of which was made on 12 October 2016, just short of three months later, and that the third was made on 11 December 2017.
Mr Abdul Abu-Mahmoud has been asked a question about observations he made when he first arrived at the home of the accused, and it's clear to me that he has forgotten a matter that he relayed to police in his statement of 12 October, notwithstanding the consideration that he has both statements with him, and I would infer was at some stage invited to read them in preparation for giving evidence.
The matter is identification evidence, and does not appear in the first statement of 18 July 2016 but appears in the second statement of 12 October. The passages in paragraph 7 of that statement, and the final three sentences, which are in the following terms:

As I drove past (number 5 Anderson Avenue) I saw another black car parked in front of the white ute. I saw two people, a male and a female, on the front balcony. The male was wearing a fluro yellow work shirt, and they entered the front door of the house.

The Crown has applied for leave permitting the witness to use the statement of 12 October 2016 in an attempt to revive his memory under s 32 of the Evidence Act 1995. Mr Brasch has objected. Subsection (2) of s 32 is in the following terms:

Without limiting the matters that the Court may take into account of deciding whether to give leave it is to take into account:

(a) whether the witness will…

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 Dillon (No 2)

Details

AGLC: R v Dillon (No 2) [2019] NSWSC 1536
Case: [2019] NSWSC 1536
Decision Date: 14 October 2019

CaseChat Overview and Summary

The respondent, Dillon, was charged with various offences of dealing with criminal proceeds. The prosecution sought to admit a document into evidence that had been prepared by a police officer contemporaneously with a witness's interview. The witness was unable to recall details of the interview and sought to refresh their memory with the document. Dillon objected to the admissibility of the document, arguing that it was hearsay and prejudicial. The matter was heard in the Supreme Court of Victoria, where the judge was required to determine the admissibility of the document.

The court needed to decide whether the document could be used to refresh the witness's memory, and if so, whether its admission would be fair and just. The court considered whether the witness's memory was truly fresh, and if the document was sufficiently contemporaneous to be reliable. The court also considered the importance of the witness and the potential prejudice to the respondent if the document was admitted. Ultimately, the court found that the document could not be used to refresh the witness's memory, as it was not fresh in the memory and the potential prejudice to the respondent outweighed any benefit to the prosecution.

The court held that the document could not be used to refresh the witness's memory as it was not fresh in the memory and its admission would not be fair and just. The court found that the witness's memory had been impaired and that the document was not sufficiently contemporaneous to be reliable. The court also found that the potential prejudice to the respondent outweighed any benefit to the prosecution. The court emphasised the importance of ensuring fairness in the trial and refused leave to admit the document into evidence.

The court's decision highlights the importance of ensuring that evidence is admissible and fair in criminal proceedings. The court found that the document could not be used to refresh the witness's memory as it was not fresh in the memory and its admission would not be fair and just. The court's decision emphasises the need for judges to carefully consider the admissibility of evidence and to ensure that the trial is fair and just for both parties.

Orders