R v DX (No 2)

[2011] NSWDC 165

District Court

New South Wales

Medium Neutral Citation:	R v DX (No 2) [2011] NSWDC 165
Decision date:	24 June 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	I reject the application
Catchwords:	CRIMINAL LAW - disputed facts hearing - historical sexual offences - application for leave for witness to refresh her memory under s 32 Evidence Act 1995 - statement given by witness to police not made when events were fresh in the witness's memory - meaning of "such a time"
Legislation Cited:	Evidence Act 1995 s 32
Category:	Procedural and other rulings
Parties:	Regina DX
Representation:	Mr ML Barr for the Director of Public Prosecutions Ms S Goodwin for the offender
File Number(s):	2010/66496
Publication restriction:	It is an offence to publish the name, or any information that identifies a complainant in sexual offence cases.

Judgment

1. The Crown Prosecutor has applied for leave for a witness to refresh her memory. The application is made under s 32 of the Evidence Act 1995. The events which the Crown Prosecutor wishes to lead evidence about occurred in the mid 1990s. The document which the Crown Prosecutor is seeking leave for the witness to use to refresh her memory was made on 17 May 2011.

2. The Crown Prosecutor, Mr M Barr, argues that the document is able to be used. The document is in fact a statement given by the witness to the police. Ms S Goodwin, who appears for the offender in these sentence proceedings, objects to the procedure. She argues that s 32(2) of the Evidence Act has not been complied with. She requires Mr Barr to lead evidence to form a basis for subs (2)(a) but more significantly she argues that s 32(2)(b) has not been complied with.

3. It appears to be common ground that the statement made in 2011 was not made when the events recorded in it were fresh in the witness's memory.

4. However, Mr Barr argues that it is able to be used under s 32(2)(b)(ii) because the statement was at the time that it was made found by the witness to be accurate. The statement itself, which I have admitted on the voir dire as exhibit VDD, says as much in para 1.

5. Ms Goodwin on the other hand argues that the expression "such a time" refers not to when the statement was made but to the phrase used in s 32(2)(b)(i) "when the events recorded in it were fresh" in the memory of the witness.

6. I agree with Ms Goodwin's submission. It seems to me to be supported by the observations contained in the Australian Law Reform Commission's Report (ALRC 26, volume 1, para 165) which says that the "specific matters to be considered by the Court include whether the document was made or written or verified by the witness as accurate at a time when the facts were fresh in" the memory of the witness. It seems to me that the phrase must be interpreted in light of that. If it were not so it would mean that - just in this case - a witness who had made a statement some fifteen years after an event would be able to refresh their memory from it even though it was many years after the events recorded and many years after those events could be said to be fresh in the witness's memory. The alternative interpretation Ms Goodwin submits would defeat the purpose of the section and I agree with her.

**********

Decision last updated: 27 October 2011