R v Hartwick (No 3)

[2002] VSC 480

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. C01021821 of 2002

THE QUEEN

V

JOHN DOUGLAS HARTWICK, LISA JANE HARTWICK AND CELIA KATHLEEN CLAYTON

Ruling No 3

JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2002
DATE OF RULING:	28 October 2002
CASE MAY BE CITED AS:	R v Hartwick & Ors (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 480

---

Crime Practice and Procedure – Cross-examination by accused on prior statement of witness – Admissibility of prior statement on application of Crown.

---

APPEARANCES:	Counsel	Solicitors
For John Douglas Hartwick	Mr J. Desmond	McNamaras
For Lisa Jane Hartwick	Mr S. Langslow	Stary Myall
For Celia Kathleen Clayton	Mr L. Hartnett	Patrick Dwyer
For DPP	Mr G. Horgan S.C. with Mr D. Hallowes	Kay Robertson Solicitor for Public Prosecutions

HIS HONOUR:

1. The Crown seeks an order that the second statement of Paula Rodwell be admitted into evidence.  Two bases are advanced.  First the Crown submits that counsel for John Hartwick cross-examined her on the second statement in circumstances where the witness did not refresh her memory from the statement.  Counsel for the Crown submitted that John Hartwick was therefore obliged to tender it.

1. Accepting for present purposes that the principle allegedly relied on is accurately stated,[1] the premise to the argument is not made out.  I am satisfied that Paula Rodwell did refresh her memory and that the parties proceeded on that basis.  For example, Mr Desmond in cross-examination made that assumption and it was not challenged by the Crown at the time.

   [1]In my view the relevance of refreshing memory only arises where the rule in Walker v Walker (1937) 57 CLR 630 applies – see R v Harrison [1966] VR 72. Therefore, the issue of refreshing memory does not arise in this instance.

1. The other basis advanced by the Crown is the discretion conferred upon the Court by s. 36 of the Evidence Act 1958 as to the "use" of a document used in cross-examination.

1. The Crown argues that without having the document in front of them, the jury will not be able to understand the nature, purpose and scope of the second statement.

1. Leaving aside the question whether the discretion in s. 36 permits a judge to override the rules of admissibility, the Crown must be able to demonstrate that the admission into evidence of the document is justified and, therefore, that the document is relevant to address the issue articulated by the Crown.

1. In my view it is not.  It appears from the cross-examination conducted by Mr Desmond that it is accepted that the purpose of the second interview was a limited one clarifying a few matters.  In fact his cross-examination was based on that premise.  Thus there is no issue as to the nature and purpose of the second statement in respect of which it would be relevant to consider the content of the second statement.  The real complaint of the Crown seems to be that the witness was not able to recall all the topics which she sought the opportunity to clarify.  That is so and the Crown has to live with that unless it may be said that to lead evidence of the other matters which she did refer to would shed light on why she did not mention the matters on which she was challenged in cross-examination by Mr Desmond.  But I am satisfied that to establish what she did attempt to clarify would not shed any light on why she did not mention the matters on which she was challenged on cross-examination.  The statement therefore is not relevant on that basis.

1. For the foregoing reasons I rule against the Crown on this application and I do so whether the Crown's application was in fact to have the document admitted as evidence of the truth of the facts stated or solely as evidence of statements made relevant to the credibility of Ms Rodwell.

---