R v Keogh (No 2) - [2015] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v KEOGH (NO 2)
[2015] SASC 180
Judgment of The Honourable Justice Blue
11 November 2015
CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - NOTICE AND DISCLOSURE TO ACCUSED
CRIMINAL LAW - PROCEDURE - WITNESSES - REFRESHING MEMORY
The defendant is charged with the murder of his fiancé in 1994.
Statements were taken by the police from various witnesses in 1994 and 1995 leading up to the committal in 1994 and trials in February/March and August 1995.
The defendant was convicted at the second trial, which conviction was set aside in December 2014 on a second appeal.
The defendant invited the Director to agree to a protocol for proofing witnesses for the forthcoming retrial. The protocol included that witnesses’ recollection be exhausted before they are shown previous accounts; witnesses then only be invited to refresh their memories by reference to previous accounts from which they could refresh their memories in court; witnesses not be shown transcripts of previous evidence; and that the proofing be recorded.
Held:
1.       The prosecution owes to the court a duty of disclosure in respect of evidence of prosecution witnesses (at [54], [62]).
2.       The duty of disclosure is not absolute but depends on considerations of fairness and the particular circumstances of the case (at [56]-[61]).
3.       The duty of disclosure is not necessarily confined to matters known to the prosecution but the prosecution has a duty in certain circumstances to make reasonable inquiries in order to make disclosure (at [63]).
4.       The court has power to order disclosure by the prosecution to the defence (at [64).
5.       In the case of witness W1, a direction should be given to the Director, if necessary, that the prosecution disclose to the defence in an appropriate form the present recollection nd unrefreshed evidence of witness W1 by proofing her initially without her first reading her previous accounts disclose the previous accounts provided to her and stage at which they are provided, and disclose her refreshed evidence (at [83]-[88]).
6.       The question of disclosure in respect of other prosecution witnesses reserved (at [89]).
7.       No direction should be given that the Director not provide to witnesses at any stage witness statements in respect of which they would not be granted permission to refresh their memory out of court (at [92]).
8.       There is no basis to give a direction that the Director not give to prosecution witnesses at any stage transcripts of their previous evidence. Observations as to the general undesirability of witnesses being given such transcripts (at [100]-[101]).
9.       No direction should be given that a verbatim record of the proofing of prosecution witnesses be made. It is a matter for the Director to determine the form of the disclosure to be made. Disclosure in conventional narrative form would comply with the duty of disclosure (at [106]).
Evidence Act 1929 (SA), s 45A, 45B, referred to.
Cannon v Tahche (2002) 5 VR 317; Collaton v Correll [1926] SASR 87; Lau Pak Ngam v The Queen [1966] Crim LR 443; Majinski v State of Western Australia (2013) 266 A Crim R 552; Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87; R v H [2004] 2 AC 134; R v Higgins (Unreported BC9406132); R v Keane (1995) 99 Cr App R 1; R v Pachonick [1973] 2 NSWLR 86; R v Perry (No 1) (1981) 27 SASR 166; R v Richardson [1971] 2 QB 484; R v Singh (1977) 15 SASR 591; R v Ward [1993] 1 WLR 619; R v Westwell (1976) 62 Cr App R 251; Rooke v Auckland City Council [1980] NZLR 680; SOBH v Police Force of Victoria [1994] 1 VR 41; Worley v Bentley [1976] 2 All ER 449, discussed.
A J v The Queen [2011] VSCA 215; Ames v Nicholson [1921] SASR 224 ; Bale v Mills (2011) 81 NSWLR 98; Birchall v Bullough [1896] 1 QB 325 ; Button v The Queen [2002] WASCA 35; Carter v Hayes (1994) 61 SASR 451; Dairy Farmers Cooperative Milk Co Ltd v Acquilina (1963) 109 CLR 458; DPP v Toomalatai (2006) 13 VR 319; Gillespie v Steer (1973) 6 SASR 200; Hardwick v The State of Western Australia (2011) 211 A Crim R 349; Hetherington v Brooks [1963] SASR 321; HKSAR v Tse Tat Fung [2010] HKCA 156; In the matter of a petition by Fritz van Beelen (1974) 9 SASR 163; Mallard v The Queen (2005) 224 CLR 125; Normandale v Rankine (1972) 4 SASR 205; O'Sullivan v Waterman [1965] SASR 150; Payne v Ibbotson (1858) 27 LJ Ex 341; Prestage v The Queen [1976] Tas SR 16; R v Brown [1998] AC 367; R v Charlton [1972] VR 758; R v Da Silva [1990] 1 WLR 31; R v Devenish [1969] VR 737; R v Garofalo [1999] 2 VR 625; R v Harrison [1966] VR 72; R v Hennesey (1978) 68 Crim App R 419; R v K (1991) 161 LSJS 135; R v Mason [1976] 2 NZLR 122; R v Naidanovici [1962] NZLR 334; R v Shea (1978) 18 SASR 591; R v Simmons (1967) 51 Cr App R 316; R v Tofilau (No 2) (2006) 13 VR 28; R v TSR (2002) 5 VR 627; R v van Beelen (1972) 6 SASR 534; Topham McGregor ( 1844) 1 Car & Kir 320, considered.

R v KEOGH (NO 2)
[2015] SASC 180
Blue J:

The defendant Henry Vincent Keogh is charged with the murder of Anna Jane Cheney on 18 March 1994.
The defendant was convicted of the murder on 23 August 1995.
The conviction was set aside by the Full Court on 19 December 2014 on a second appeal[1] and it was directed that the defendant be re-tried.
[1] Criminal Law Consolidation Act 1935 (SA) s 353A. The defendant’s first appeal was dismissed on 22 December 1995. Applications to reopen the appeal or entertain a second appeal were dismissed for want of jurisdiction on 13 May 1997 and 22 June 2007.
The trial is listed to commence before Judge alone on 8 March 2016.
The defendant has brought an application seeking a stay of proceedings on various grounds. I directed that three inter-related preliminary issues raised by that application be heard and determined before the balance of the application.[2] Those issues are:
1.Should the Director disclose to the defence the present recollection of the prosecution witnesses unaffected by their reading previous accounts given by them being witness statements given to the police or transcripts of their evidence at the committal and/or previous trials?
2.Should the Director:
(a)     proof the witnesses (at the appropriate stage) by reference only to materials from which they could refresh their memory in court?
(b)    not show to the witnesses their evidence transcripts?
3.Should the Director make a record of the proofing and in what form?
[2]    Some other preliminary issues are to be heard and determined before the balance of the application.
Background
The prosecution case is that the defendant deliberately drowned Ms Cheney in the bath by causing her head to be submerged until she drowned.
The prosecution case is that Ms Cheney died some time between 8.10 pm and 9.30pm on 18 March 1994. The cause of death was drowning. The defendant called an ambulance at 9.32 pm. Ambulance officers arrived at 9.38 pm and found Ms Cheney deceased lying on her back on the bathroom floor. Police officers arrived at 9.48 pm. The police investigation commenced then and included discussions with or interviews of the defendant. The prosecution case is circumstantial.
In 1994 and 1995, in the course of the police investigation and in the lead up to the committal and the trials, the police interviewed numerous witnesses and prepared witness statements which the witnesses signed.
On 7 May 1994, the defendant was arrested and charged with murder.
On 22 and 23 August 1994, a preliminary examination was conducted in the Magistrates Court. Some of the witnesses were examined and transcripts of their examination were prepared. The defendant was committed for trial on 23 August 1994.
In February–March 1995, the defendant was tried before a Judge and jury in this Court. Various witnesses were called by the prosecution and were cross-examined by senior counsel for the defendant. The defendant gave evidence. On 11 March 1995, the jury was discharged upon being unable to reach a verdict.
In August 1995, the defendant was tried again before a Judge and jury in this Court. Various witnesses were called by the prosecution and were cross-examined by senior counsel for the defendant. The defendant gave evidence. On 23 August 1995, the defendant was convicted of murder.
In December 1995, the defendant’s appeal against his conviction was dismissed by the Full Court.
In June 2013, the defendant filed a second appeal against his conviction. On 19 December 2014, the Full Court set aside the defendant’s conviction and directed that he be re-tried.[3]
[3] R v Keogh (No 2) [2014] SASCFC 136.
On 24 April 2015, the defendant’s solicitors wrote to the Director inviting him to adopt a protocol for proofing each witness. The protocol can be divided into four elements. The first part is that the witness be proofed from his or her recollection. The second part is that after the witness’s recollection has been exhausted, if she or he requests it and it meets the criteria for refreshing memory in court, she or he may be proofed by refreshing her or his memory from that previous account. The third element is that the witness not be shown any transcripts of his or her evidence given in court. The fourth element is that a record be made of each witness’s unrefreshed memory, the previous accounts given to each witness and when given, and the extent to which her or his memory is refreshed.
On 29 April 2015, the Director responded declining to agree to the proposed protocol and saying that he proposed to invite each witness to view his or her witness statements and transcripts of previous evidence before meeting with anyone from the Director’s office and would make a record of any previous accounts provided to the witness.
On 9 September 2015, the defendant filed an application for a permanent stay of proceedings on various grounds.
Disclosure of witness’s recollection
The first issue is whether the Director is required to disclose to the defence the present recollection of the prosecution witnesses unaffected by their reading previous accounts given by them.
The defendant contends that the prosecution has a duty to disclose to the defence all evidence within its power. This includes the present recollection of the witnesses it proposes to call at trial unaffected by their previous accounts. Once they are shown such material, their unaided recollection will be indelibly affected and their evidence compromised.
The Director contends that it is recognised that witnesses can refresh their memory out of court from any source available, they have a right to do so, and neither the defendant nor the Court can or should interfere in the process adopted by the prosecution of proofing witnesses.
Both parties refer to and make contentions about the rules governing refreshing memory in court and admissibility of evidence when a witness has refreshed her or his memory out of court. It is necessary to refer to those rules as background before turning to the issue of the prosecution’s duty of disclosure relied upon by the defendant.
Present recollection revived/past recollection recorded[4]
[4] Terminology adopted by Heydon, Cross On Evidence, 10th Australian ed (2015) [17215].
It is important to distinguish between two situations that are often, although misleadingly, described as refreshing memory from past records. They are distinct in principle and subject to different legal rules as to the conditions to be satisfied before they are permitted or admitted, their use and consequences. However, in real life they may well be blurred.
The first situation is one in which a witness’s memory is triggered or revived by looking at a previous account[5] of events earlier made (reviving memory).[6] In this case, the witness’s oral testimony based on the revived memory is the admissible evidence[7] and the record triggering the witness’s memory is not evidence.[8]
[5]    The record could be oral (eg a tape recording) or tactile (eg a Braille record) but this does not apply in the present case (which only involves typed witness statements and evidence transcripts) and for ease of expression I refer only to written records.
[6]    Collaton v Correll [1926] SASR 87 at 93 per Napier J; R v van Beelen (1972) 6 SASR 534 at 535-536 per Sangster J; R v Shea (1978) 18 SASR 591 at 596-597 per King J (with whom Bright and Walters JJ agreed).
[7]    Collaton v Correll [1926] SASR 87 at 93-94 per Napier J; Hetherington v Brooks [1963] SASR 321 at 324-326 per Travers J.
[8]    Payne v Ibbotson (1858) 27 LJ Ex 341 at 341 per Pollock B (with whom Martin, Bramwell and Channell BB agreed). Hence it does not matter that the record would be inadmissible if tendered: Birchall v Bullough [1896] 1 QB 325 at 326 per Wright J and Bruce J.
The second situation is one in which a witness’s memory is not triggered or revived by looking at the previous account but the record is verified as having been made by the witness and as being an accurate record of the events recorded in it (verifying record).[9] In this case, the record is the admissible evidence[10] and the witness’s oral testimony is the necessary proof of the authenticity and accuracy of the record.[11]
[9] Collaton v Correll [1926] SASR 87 at 93 per Napier J; R v Shea (1978) 18 SASR 591 at 596-597 per King J (with whom Bright and Walters JJ agreed).
[10] Ames v Nicholson [1921] SASR 224 at 228 per Poole J; R v Naidanovici [1962] NZLR 334 at 339-340 per North and Cleary JJ; Normandale v Rankine (1972) 4 SASR 205 at 207 per Walters J; Gillespie v Steer (1973) 6 SASR 200 at 202-203 per Sangster J.
[11] Ibid.
The latter situation is less commonly the subject of decided cases than the former. This is probably because in many instances the witness’s memory is revived and in most cases in which it is not there is no contest as to tender of the record or because the tenderer relies on statutory provisions such as sections 45A and 45B of the Evidence Act 1929 (SA) instead of the common law principle.
The distinction between the two situations was identified by Napier J in Collaton v Correll[12] as follows:
We speak of a document being used to “refresh memory”; but this expression is used to denote two distinct mental processes. The perusal of the document may stimulate the memory, and thus enable a witness to recollect the matter to which he deposes. This is a process of memory. On the other hand, the perusal of the document may not enable the witness to recollect the fact, but it may enable him to vouch for its accuracy. If he is able to remember that the truth was committed to writing, and is able to identify the writing, the document enables him to vouch for the fact as it is therein set out. In some cases he is allowed to go further still, and to vouch for the fact, although he cannot even recollect the document… In such a case a process of reasoning is involved.[13]
[12] [1926] SASR 87. See also R v van Beelen (1972) 6 SASR 534 at 535-536 per Sangster J.
[13] At 93. (Emphasis added)
In real life, a witness who has been shown an earlier record may find it difficult to distinguish between having her or his memory revived (actual memory) and remembering making the record and reconstructing a memory of the events recorded in it (reconstructed memory). It may be that the witness has a combination of actual and reconstructed memory for different events recorded, different aspects of an event recorded or an indivisible amalgam of actual and reconstructed memory. Whether a witness can distinguish between actual and reconstructed memory will depend on the time between making the record and giving evidence, the importance to the witness of the subject matter, the quality of the witness’s memory and other factors.
In the different context of a witness refreshing memory from notes made by another and read by the witness while the events were still sufficiently fresh, in R v Singh[14] Sangster J said:
It may indeed be a difficult intellectual exercise for any witness to look at a set of notes for the purpose of refreshing his memory and be called upon to say very quickly whether a particular passage in those notes reminds him of something which he now remembers or merely indicates what somebody else remembered and which he himself, even with the benefit of the notes, does not remember.[15]
[14] (1977) 15 SASR 591.
[15] At 594.
In Mancorp Pty Ltd v Baulderstone Pty Ltd[16], Debelle J referred to a danger that exists when a witness refreshes memory from a statement before coming to court to give evidence:
…there is a danger that the evidence given will not represent his recollection of the events but will be more likely to be his recollection of what he has recently been reading or examining for the purpose of refreshing his memory.[17]
Refreshing memory in court
[16] (1991) 57 SASR 87.
[17] At 92. (Citations omitted)
Revived memory
A witness is not permitted to look at a record in court for the purpose of reviving memory without the prior leave of the trial judge.[18]
[18] O'Sullivan v Waterman [1965] SASR 150 at 157-158 per Mayo J.
There are three conditions for grant of permission to refresh memory from a record:
1.the record must be made and verified[19] by the witness when the witness had a reliable actual recollection of the events recorded;[20]
2.the witness must first give evidence by reference to his or her unaided recollection and exhaust that recollection before refreshing his or her memory from the record;[21]
3.the witness must be unable to give accurate evidence in full detail and sequence of her or his own recollection without having recourse to the record.[22]
[19] The document need not be made by the witness if it is verified at the requisite time.
[20] For one formulation of this condition: see R v Shea (1978) 18 SASR 591 at 596-597 per King J (with whom Bright and Walters JJ agreed). See further at [33] and following below.
[21] Prestage v The Queen [1976] Tas SR 16 at 36-38 per Chambers J (with whom Crawford J relevantly agreed) and 39 per Nettlefold J.
[22] Hetherington v Brooks [1963] SASR 321 at 324-326 per Travers J; O'Sullivan v Waterman [1965] SASR 150 at 157-158 per Mayo J; Prestage v The Queen [1976] Tas SR 16 at 36-38 per Chambers J (with whom Crawford J relevantly agreed)
One or more of these requirements are often waived by the opposing party but they remain conditions if and to the extent that the grant of leave is contested.
The underlying rationale for the first criterion involves a distinction being drawn between two discrete situations. In one situation, a record is made of the witness’s recollection for the purpose of capturing and recording his or her recollection proximate to the events in question in circumstances where the witness’s recollection is likely to be materially adversely affected if the record is not made. Permitting the witness to refresh his or her memory in this situation is conducive to eliciting the best available evidence from the witness. In the other situation, a record is made the purposes of trial and proximate to trial in circumstances where the witness’s recollection is not likely to be materially better that it will be at trial. Permitting the witness to refresh her or his memory in the latter situation is confusing to the essential orality of criminal trials and not conducive to eliciting the best available evidence from the witness. The difficulty is in drawing the line between these two situations.

There are considerable differences as to the criteria that have been articulated for satisfaction of the first condition which I have attempted to express in neutral terms above without formulating the criterion or criteria. I identify those differences without needing to resolve them. First, it is sometimes said that there are two criteria, being contemporaneity of record and freshness of memory. It appears that the better view is that there is but a single criterion of freshness of memory, the assessment of which is commonly informed by the effluxion of time.[23]
[23] See R v van Beelen (1972) 6 SASR 534 at 537 per Sangster J.
Secondly, when the criterion of contemporaneity is expressed, it is articulated in varying terms such as “contemporaneous” or “reasonably contemporaneously” or “at or near the event”.[24] It is clear that, to the extent that the period between event and record is a criterion, it is not measured mechanically in terms of time but involves a broad based assessment by reference to the effect on the witness’s memory of the effluxion of time.[25] It is sometimes expressed in absolute terms (eg close to the events)[26] and sometimes in relative terms (eg closer to the events) [27].
[24] Hetherington v Brooks [1963] SASR 321 at 324 per Travers J; R v Simmons (1967) 51 Cr App R 316 at 330 per Sachs and Fenton Atkinson JJA and James J.
[25] R v Singh (1977) 15 SASR 591 at 593 per Sangster J.
[26] Hetherington v Brooks [1963] SASR 321 at 324 per Travers J; R v Simmons (1967) 51 Cr App R 316 at 330 per Sachs and Fenton Atkinson JJ and James J.
[27] Lau Pak Ngam v The Queen 1966] Crim ALR 443 at 444 per Hogan CJ, Briggs and Huggins JJ; R v Da Silva [1990] 1 WLR 31 at 36 per Stuart-Smith LJ, Tudor Evans and Auld JJ.
Thirdly, when the criterion of freshness of memory is expressed, it is sometimes expressed in absolute terms (eg the witness’s memory was fresh)[28] and sometimes in relative terms (eg the witness’s memory was fresher or better)[29]. However expressed, it is clear that there is a measure of elasticity in the assessment.[30]
[28] R v Richardson [1971] 2 QB 484 at 490 per Sachs and Fenton Atkinson JJA and Mars-Jones J.
[29] R v Singh (1977) 15 SASR 591 at 594 per Sangster J.
[30] R v Richardson [1971] 2 QB 484 at 490 per Sachs and Fenton Atkinson JJA and Mars-Jones J.
When there is opposition to the grant of permission, there is often a voir dire during which the witness is examined and cross-examined as to the record and the witness’s past and present memory. The opponent may inspect and cross-examine on the record on the voir dire without being obliged to tender it if called upon to do so.
After the witness has given evidence in chief, the opponent is entitled to call for production and inspection of the record without being obliged to tender it if called upon to do so.[31] The opponent may cross-examine on the parts of the record used to refresh memory without being obliged to tender it if called upon to do so.[32] The opponent is entitled to tender the record on the issue of credit.[33]
[31] R v Harrison [1966] VR 72 at 76 per Winneke CJ, Pape and Adam JJ. The same applies if the witness refreshes his or her memory out of court: R v Pachonick [1973] 2 NSWLR 86 at 87-88 per Lee J; Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87 at 89-90 per Debelle J.
[32] R v Harrison [1966] VR 72 at 76 per Winneke CJ, Pape and Adam JJ.
[33] Dairy Farmers Cooperative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 465-466 per McTiernan, Kitto, Menzies, Windeyer and Owen JJ.
Verifying record
In principle, a witness should not need the prior leave of the trial judge before be asked to look at a record in court for the purpose of verifying that it is an accurate record of events of which the witness’s memory is not revived. This is because the testimony has no probative value in itself but only to qualify tender of the record as an exhibit. However, it would be wise for leave to be sought given that the distinction between reviving memory and verifying recorded knowledge is often blurred in practice and because there may be misunderstandings about the intended use of the record.
There are four conditions for admission of such a record:
1.the record must be produced;[34]
2.the record must have been made when the witness had an accurate recollection of the events recorded;[35]
3.the truth must have been recorded in the record; [36]
4.the record must have been made or verified by the witness.[37]
[34] Collaton v Correll [1926] SASR 87 at 93 per Napier J; Gillespie v Steer (1973) 6 SASR 200 at 202 per Sangster J.
[35] Ames v Nicholson [1921] SASR 224 at 228 per Poole J; Collaton v Correll [1926] SASR 87 at 93 per Napier J; Gillespie v Steer (1973) 6 SASR 200 at 202 per Sangster J.
[36] Ames v Nicholson [1921] SASR 224 at 228 per Poole J; Collaton v Correll [1926] SASR 87 at 93 per Napier J; Gillespie v Steer (1973) 6 SASR 200 at 202 per Sangster J.
[37] Collaton v Correll [1926] SASR 87 at 93 per Napier J.
Satisfaction of these conditions need not necessarily be proved by the witness provided that it is proved by admissible evidence.[38]
[38] Collaton v Correll [1926] SASR 87 at 93 per Napier J.
The document must be produced and tendered;[39] otherwise the witness’s evidence in reference to it will be disregarded.[40]
[39] Subject to proof of loss or destruction and adducing secondary evidence under the best evidence rule: Topham McGregor (1844) 1 Car & Kir 320 (174 ER 829) at 323 per Rolfe B.
[40] Ames v Nicholson [1921] SASR 224 at 228 per Poole J.
Refreshing memory out of court
In Lau Pak Ngam v The Queen,[41] the principal witnesses for the prosecution had read to them before the trial the statements they had previously given to police. The defendant appealed to the Supreme Court of Hong Kong Appellant Jurisdiction on the ground that this may have affected the value and weight of their evidence. Hogan CJ, Briggs and Huggins JJ equated the position of refreshing memory out of court with that in court. They said:
R v Mullins and Gleed v Stroud indicate that there is no objection to statements taken by the police being used in court to refresh a witness’s memory and there is no rule that it is preferable for witnesses to refresh their memories by reference to documents in court rather than by looking at such documents before going into the witness box. Testimony in the witness box becomes more a test of memory than of truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at a time closer to the events in question. If a witness is denied reasonable opportunities for refreshing his memory there is a greater danger that the court would be deprived of his full testimony than of untruthful testimony being encouraged and facilitated. Refusal of access to statements would tend to create difficulties for honest witnesses but be likely to do little to hamper dishonest witnesses.[42]
[41] [1966] Crim LR 443.
[42] At 444.
In R v Richardson,[43] the defendant was charged with burglary in April and May 1969. The sole issue was identity. In June 1969, the defendant was identified at identification parades as the burglar by one witness to each burglary. In July 1969, those two witnesses (and three minor witnesses) gave statements to the police. Shortly before giving evidence at trial in November 1970, they refreshed their memories by reading their police statements. The defendant appealed on the ground that this rendered the evidence inadmissible. The Court of Appeal held that the evidence was not rendered inadmissible and in any event the critical evidence of identification was in no way assisted by the statements. Sachs and Fenton Atkinson JJA and Mars-Jones J cited part of the passage from Lau Pak Ngam v The Queen extracted above and said:
With those views this court agrees. It is true that by the practice of the courts of this country a line is drawn at the moment when a witness enters the witness-box; when giving evidence there in chief he cannot refresh his memory except by a document which… “must have been written either at the time of the transaction or so shortly afterwards that the facts were fresh in his memory.” (Incidentally, this definition does provide a measure of elasticity and should not be taken to confine witnesses to an over-short period.) This is, moreover, a practice which the courts can enforce: when a witness is in the box the court can see that he complies with it.
The courts, however, must take care not to deprive themselves by new, artificial rules of practice of the best chances of learning the truth… there can be no general rule (which, incidentally, would be unenforceable, unlike the rule as to what can be done in the witness-box) that witnesses may not before trial see the statements which they made at some period reasonably close to the time of the event which is the subject of the trial. Indeed, one can imagine many cases, particularly those of a complex nature, where such a law would militate very greatly against the interests of justice.[44]
[43] [1971] 2 QB 484.
[44] At 489-490. (Emphasis added)
In Worley v Bentley,[45] the alleged victim of an assault gave a statement to the police shortly after the alleged assault in January when the events were fresh. She gave evidence at the trial in May. She had refreshed her memory out of court. While the prosecution failed to inform the defence of this, it was elicited towards the beginning of cross-examination. The Court of Appeal held that no harm was done by the non-disclosure in these circumstances. Kilner Brown LJ (with whom Lord Widgery CJ and Watkins J agreed) said:
As a general rule there is nothing wrong in the practice of showing to a witness a statement made by that witness at some time before the witness goes into the witness box to give evidence [The Court then referred to the desirability of the defence being provided with a copy of the statement]. The defence should be enabled to deal with the situation as to the weight to be given to the evidence of the witness giving evidence in such circumstances.[46]
[45] [1976] 2 All ER 449.
[46] At 451. (Emphasis added)
In R v Pachonick,[47] a police officer made notes of an interview of the defendant shortly thereafter. He refreshed his memory out of court. Lee J held that the defendant was not obliged to tender the notes after calling for them in court and the position was the same as if the witness’s memory had been refreshed in court. In the course of his reasons, Lee J said:
There is authority which I think should be followed that it is proper in many circumstances for a prosecution witness to refresh his memory, out of court, from a document made contemporaneously with or soon after the events about which he is giving evidence…
[As to the obligation of the opponent to tender the statement upon calling for it] there is no basis which can be urged as to why there should be a distinction between the practice which applies when the witness refreshes his memory in the witness box, as compared with a case where he does it outside the court before coming into the court.[48]
[47] [1973] 2 NSWLR 86.
[48] At 87, 88.
In R v Westwell,[49] witnesses to an assault made statements to the police soon after the events in question. Bridge and Shaw LJJ and Cantley J said:
There is no general rule that prospective witnesses may not, before giving evidence at a trial, see the statements which they made at or near the time of the events of which they are to testify. They may see them whether they make a request to do so or merely accept an offer to allow them to do so. On the other hand, there is no rule that witnesses must be allowed to see their statements before giving evidence. There may be cases where there is reason to suppose that the witness has some sinister or improper purpose in wanting to see his statement and it is in the interests of justice that he should be denied the opportunity.… However, in most cases and particularly where, as often happens, there is a long interval between the alleged offence and the trial, the interests of justice are likely to be best served and witnesses will be more fairly treated if, before giving evidence, they are allowed to refresh their recollection by reference to their own statement made near the time of the events in question.[50]
[49] [1976] 2 All ER 812, (1976) 62 Cr App R 251.
[50] At 814. (Emphasis added)
In Rooke v Auckland City Council,[51] a witness to a vehicle collision had the registration number of the defendant’s vehicle written down by his girlfriend while still in his car. He gave the registration number to the police who included it in his statement. He checked his memory out of court just before giving evidence by asking the prosecutor the number recorded in his statement. He testified that he had an actual recollection of the registration number since the day of the collision. Holland J held that his evidence was not rendered inadmissible because he had checked his recollection against his police statement. Holland J referred to R v Richardson, Worley v Bentley and R v Westwell and textbooks and said:
The gravamen of those cases and the passages in the textbooks indicate that there is nothing wrong with a prosecution witness referring to a statement made by him prior to going into the witness box even if the statement is not a contemporaneous note to which he could obtain permission to refer while in the witness box…
The failure to permit a witness to refresh his memory of facts which after research he is willing to assert as his own, can only lead to testimony in the witness box becoming more a test of memory than of truthfulness as was stated in Lau Pak Ngam v The Queen. As was also stated in that case, the refusal of access to material to enable memory to be refreshed may be a hindrance to an honest witness but would not inhibit a dishonest one.[52]
[51] [1980] NZLR 680.
[52] At 684, 686. (Citations omitted. Emphasis added)
In Majinski v State of Western Australia,[53] the defendant was charged with indecently dealing with and sexually penetrating a child on 28 November 2009. The child was interviewed by police on 30 November 2009 and the interview was recorded audiovisually. In May 2011 just before trial, the child was proofed by a prosecutor. The prosecutor showed the child the audiovisual record of the interview. No complaint about this was made by the defendant at trial or on appeal. Complaint was made that the prosecutor coached the child during their discussion independently of the audiovisual record of the interview. I address the coaching aspect of the case below. The Western Australian Court of Appeal referred in passing to refreshing memory from out of court statements in the course of distinguishing between proofing and coaching. Martin CJ (with whom Buss and Mazza JJA agreed) said:
Whether preparation amounts to “coaching” is inevitably a matter of degree, and is dependent on the facts. It is clear that the practice of witnesses reading their statements prepared contemporaneously with, or soon after, the incident in respect of which he or she is asked to testify prior to the hearing, or being taken through it by the person to whom it was made, is generally proper.[54]
[53] [2013] WASCA 10, (2013) 266 A Crim R 552.
[54] At [30]. (Citations omitted)
These authorities establish that there is no impropriety in showing to a witness an out of court statement made relatively close to the events in question compared to the trial even if it would not necessarily meet the first condition for refreshing memory in court. These authorities do not establish that it is desirable to show to a witness an out of court statement made at a time remote from the events in question and relatively close to the witness giving evidence.
On the facts of each case, the record in question was made soon after and at most two months after the event. In Lau Pak Ngam v The Queen, the Court referred to statements to the police taken at “a time closer to the events in question”. In R v Richardson, the Court referred to “statements which they made at some period reasonably close to the time of the event”. In R v Pachonick, the Court referred to a document made “contemporaneously with or soon after the events”. In R v Westwell, the Court referred to “statements which they made at or near the time of the events”. In Majinski v State of Western Australia the Court referred to “statements prepared contemporaneously with, or soon after, the incident”.
While Napier J in Collaton v Correll[55] said “there is no rule that a witness, before he comes into Court, may not stimulate his recollection in any way he can”, this was said in the context of a challenge to the admissibility of the witness’s evidence on the ground that the document was not produced and did not address the issue of timing of the making of statement. While Debelle J in Mancorp Pty Ltd v Baulderstone Pty Ltd[56] cited that case as authority for the proposition that “a witness is entitled to refresh his memory out of court in any way he can”, this was said in the context of the issue whether the document was required to be produced before the witness gave evidence. Neither case is authority, for the proposition that it is desirable to show a witness out of court before giving evidence a statement taken close to the date of trial and remote from the date of the events in question.
[55] [1926] SASR 87 at 94.
[56] (1991) 57 SASR 87 at 88.
These cases establish that the fact that a witness has been shown an out of court statement whenever made does not render the witness’s evidence inadmissible. In a civil case, it may be relevant to the weight of the evidence depending on the circumstances. In a criminal case, the witness’s evidence might be subject to exclusion under the unfairness discretion in exceptional circumstances but otherwise it will be admissible and the showing of the statement may be relevant to the weight of the evidence.
Prosecution duty of disclosure
The prosecution owes a duty to disclose to the defence on a timely basis:
(a)evidence proposed to be adduced by the prosecution including the evidence of witnesses and proposed exhibits;[57]
(b)evidence of witnesses who the prosecution does not propose to call;[58]
(c)material that tends to reflect materially on the credibility of prosecution witnesses;[59]
(c)material that tends to weaken the prosecution case or assist the defence case;[60]
(e)material that is relevant to an issue in the case.[61]
[57] R v Devenish [1969] VR 737 at 739 per Winneke CJ, Gowans and Gillard JJ; In the matter of a petition by Fritz van Beelen (1974) 9 SASR 163 at 248 per Walters, Wells and Jacobs JJ; R v Higgins (Unreported BC9406132) at 74 per Brooking, Byrne and Eames JJ; R v Brown [1998] AC 367 at 374-376 per Lord Hope of Craighead (with whom Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Clyde and Lord Hutton agreed); Mallard v The Queen [2005] HCA 68, (2005) 224 CLR 125 at [17] per Gummow, Hayne, Callinan and Heyden JJ.
[58] In the matter of a petition by Fritz van Beelen (1974) 9 SASR 163 at 249 per Walters, Wells and Jacobs JJ; R v Higgins (Unreported BC9406132) at 74 per Brooking, Byrne and Eames JJ; R v Brown [1998] AC 367 at 374-376 per Lord Hope of Craighead (with whom Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Clyde and Lord Hutton agreed); Grey v The Queen [2001] HCA 65, (2001) 75 ALJR 1708 at [23] per Gleeson, Gummow and Callinan JJ.
[59] R v K(1991) 161 LSJS 135 at 140 per King CJ (with whom Cox and Debelle JJ agreed); R v Brown [1998] AC 367 at 377 per Lord Hope of Craighead (with whom Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Clyde and Lord Hutton agreed).
[60] R v Brown [1998] AC 367 at 374-377 per Lord Hope of Craighead (with whom Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Clyde and Lord Hutton agreed); R v H [2004] UKHL 3, [2004] 2 AC 134 at [14] per Lord Bingham of Cornhill (delivering the judgment of the Privy Council).
[61] R v Keane (1995) 99 Cr App R 1 at 6 per Lord Taylor of Gosforth CJ, Auld and Mitchell JJ; R v Brown [1998] AC 367 at 376 per Lord Hope of Craighead (with whom Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Clyde and Lord Hutton agreed); Button v The Queen [2002] WASCA 35 at [14] per Malcolm CJ (with whom Wallwork and Owen JJ agreed); Mallard v The Queen (2005) 224 CLR 125 at [17] per Gummow, Hayne, Callinan and Heydon JJ and [81] per Kirby J.

These categories have expanded markedly over the last 20 to 30 years. Seminal authorities included decisions of the English Court of Appeal in R v Ward[62] and R v Keane[63] and the Victorian Court of Criminal Appeal in R v Higgins[64]. The change was summarised by the House of Lords in R v H[65] in which Lord Bingham of Cornhill (delivering the judgment of the Privy Council) said:
Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence...
This is a field in which domestic practice has developed markedly, although not always consistently, over the last 20 years. Until December 1981, the prosecution duty was to make available, to the defence, witnesses whom the prosecution did not intend to call, and earlier inconsistent statements of witnesses whom the prosecution were to call. Guidelines issued by the Attorney General in December 1981 extended the prosecution's duty of disclosure somewhat, but laid down no test other than one of relevance ("has some bearing on the offence(s) charged and the surrounding circumstances of the case") and left the decision on disclosure to the judgment of the prosecution and prosecuting counsel.
In R v Ward this limited approach to disclosure was held to be inadequate:
"An incident of a defendant's right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case. This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence. Moreover, this duty is continuous: it applies not only in the pre-trial period but also throughout the trial".
The rule was stated with reference to scientific evidence, because that is what the case concerned, but the authority was understood to be laying down a general test based on relevance: see R v Keane..[66]
[62] [1993] 1 WLR 619 at 645 per Glidewell, Nolan and Steyn LJJ.
[63] (1995) 99 Cr App R 1 at 6 per Lord Taylor of Gosforth CJ, Auld and Mitchell JJ.
[64] Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 2 March 1994 BC 9406132) at 71-74 per Brooking, Byrne and Eames JJ.
[65] [2004] 2 AC 134.
[66] [14]-[17]. (Citations omitted).
The duty of disclosure is not absolute. There is no right to discovery such as exists in South Australia[67] in civil cases.[68] There is not a universal obligation for the Crown to produce at the outset indiscriminately all papers within the possession or control or power of the prosecution.[69]
[67] In some other jurisdictions discovery is in the discretion of the court: see for example Federal Court Rules 2011 rules 20.11-20.13. In all jurisdictions the scope of documents to be discovered is subject to the discretion of the court.
[68] SOBH v Police Force of Victoria [1994] 1 VR 41 at 41-48 per Brooking J and 67-73 per Ashley J.
[69] R v TSR [2002] VSCA 87, (2002) 5 VR 627 at [73] per Chernov JA (with whom Philips CJ and Philips JA agreed).
The duty of disclosure arises out of considerations of fairness to the accused.[70] Fairness is the ultimate criterion as to what should be disclosed. If it would not be unfair to the accused not to make disclosure of particular matters in particular circumstances, there will not be a duty to disclose them. Whether there is a duty to disclose particular material in a particular case therefore depends on the facts and circumstances, including the issues in the case and the significance of the material.
[70] R v Higgins (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 2 March 1994 BC 9406132) at 71 per Brooking, Byrne and Eames JJ.
In SOBH v Police Force of Victoria,[71] Brooking traced the historical origins for the rule that there is no right to discovery at common law or equity. Effectively the duty of disclosure informed by considerations of fairness has arisen to fill the vacuum created by the non-recognition of a right to discovery. Brooking J said:
That there is no right in an accused person to obtain discovery of all documents relevant to the charge remains undoubtedly correct. But it cannot now be denied that the court in its criminal jurisdiction has inherent power to order the prosecutor to produce to the defence for inspection documents or things in the possession of the prosecutor where the interests of justice require it.[72]
[71] [1994] 1 VR 41.
[72] At 47-48. (Citations omitted) See also at 67-73 per Ashley J.
When an issue arising in a criminal proceeding depends on or is informed by fairness, account is usually taken not only of fairness to the accused but also fairness to the community and fairness to a witness.[73] Although in most cases fairness to the accused is likely to be the predominant consideration informing the content of the duty to disclose, fairness to the community and fairness to a witness might in some cases also inform the content of that duty.
[73] R v Tofilau (No 2) [2006] VSCA 40, (2006) 13 VR 28 at [152] per Vincent JA (with whom Calloway and Buchanan JJA agreed); DPP v Toomalatai [2006] VSC 256, (2006) 13 VR 319 at [81] per Bell J; Bale v Mills [2011] NSWCA 226, (2011) 81 NSWLR 98 at [66] per Allsop P, Giles JA and Tobias AJA.
In R v Higgins,[74] the Victorian Court of Criminal Appeal addressed the variability of the content of the duty to disclose material tending to assist the defence case. Brooking, Byrne and Eames JJ said:
… the application of this duty of disclosure to a given case will depend upon the facts of the case and the significance of the material in question in light of the issues in the particular case.[75]
[74] Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 2 March 1994 BC 9406132.
[75] At 71. (Citations omitted)
There are circumstances that justify non-disclosure of a matter that prima facie should be disclosed.[76] An example is when the disclosure would involve a risk of prejudice to the public interest in which case that factor must be taken into account in determining whether disclosure should be made.[77]
[76] SOBH v Police Force of Victoria [1994] 1 VR 41 at 48 per Brooking J.
[77] R v H [2004] 2 AC 134 at 155 per Lord Bingham of Cornhill delivering the judgment of the Privy Council.
The duty of disclosure is owed to the court and not to the defendant[78] or the community.[79] The Victorian Court of Appeal addressed this in Cannon v Tahche.[80] Winneke P, Charles and Chernov JJA said:
What is sometimes called the “prosecutor’s obligation to act fairly”, one aspect of which is the prosecutor’s “duty of disclosure”, does not spring from any statutorily given power, but from practices established by judges over the years which have been designed to ensure that an accused person receives a fair trial. … These rules of practice, calculated to enhance the administration of criminal justice by ensuring that accused persons have a “fair trial”, are collected in the speech of Lord Devlin in Connelly v. Director of Public Prosecutions. As his Lordship noted, it is the court itself which carries the responsibility of ensuring that an accused has a “fair trial”, and, to that end, will enforce practices such as those which extend to controlling the form of presentment or indictment to prevent abuses of the court’s process which involve unfairness to the accused. …
The prosecutor’s “duty of disclosure” has been the subject of much debate in appellate courts over the years. But, as it seems to us, authority suggests that, whatever the nature and extent of the “duty”, it is a duty owed to the court and not a duty, enforceable at law at the instance of the accused...
The prosecutor’s obligation to act fairly, with due regard to the interests of the accused, has been variously described as a “duty”, an “obligation”, a “responsibility”, or “a function”. But the history of its development demonstrates that, however it is described, the “duty” is owed to the court and not to the public at large or the accused. It is a significant aspect of the administration of criminal justice and the court’s capacity to ensure the accused’s right to a fair trial.[81]
[78] Although the defendant is the beneficiary of the duty.
[79] R v Hennesey (1978) 68 Crim App R 419 at 426 per Lawton CJ (with whom Jones and Smith JJ agreed); Cannon v Tahche [2002] VSCA 84, (2002) 5 VR 317 at [56], [57] and [58] per Winneke P, Charles and Chernov JJA.
[80] (2002) 5 VR 317.
[81] At [56], [57] and [58].
The duty of disclosure is not necessarily confined to matters known to the prosecution. In some circumstances, the prosecution has an obligation to make enquiries to discharge its duty of disclosure.[82] For example, the prosecution has a duty to make reasonable enquiries about prior convictions of prosecution witnesses[83] and other matters reflecting materially upon the credibility of prosecution witnesses.[84]
[82] A J v The Queen [2011] VSCA 215 at [22] per Weinberg and Bongiorno JJA (with whom Buchanan JA agreed).
[83] R v Garofalo [1999] 2 VR 625 at 637 per Ormiston JA (with whom Charles JA agreed).
[84] R v K(1991) 161 LSJS 135 at 140 per King CJ (with whom Cox and Debelle JJ agreed).
The court has power to order disclosure of material by the Crown to the defence.[85]
[85] R v Charlton [1972] VR 758 and 761 per Winneke CJ, Little and Anderson JJ; R vMason [1976] 2 NZLR 122 at 123 per McCarthy P, Richmond and Cooke JJ; R v Perry (No 1) (1981) 27 SASR 166 at 171-172 per Cox J; Sobh v Victoria Police Commissioner [1994] 1 VR 41 at 47-48 per Brooking J and 71 per Ashley J; Carter v Hayes (1994) 61 SASR 451 at 456 per King CJ (with whom Bollen and Mullighan JJ agreed); R v Higgins (Unreported, Supreme Court of Victoria Court of Criminal Appeal 3 March 1994 BC94061132) at 73 per Brooking, Byrne and Eames JJ.
Disclosure of unrefreshed evidence
The circumstances in which the witnesses will come to give evidence at the third trial are highly exceptional.
In a typical case, statements are taken from witnesses progressively. An initial statement is taken and follow up statements are taken as additional matters arise. The trial is usually within one, two or three years of the initial statement. The witnesses have special reason to keep the relevant events in mind. They expect that they will or may have to give evidence at trial. They are also being reminded by the ongoing process of statement taking by the police and proofing by the prosecution.
The typical case is exemplified by the second trial of this matter in August 1995. One witness can be selected as an exemplar. I shall call this witness W1. W1 was spoken to by police on 28 March 1994. She gave a lengthy statement to the police that she signed on 19 April 1994. She gave supplementary statements that she signed on 5 December 1994 and 23 January 1995. She gave evidence at the first trial between 24 February and 2 March 1995. She gave a short supplementary statement that she signed on 19 April 1995. She gave evidence at the second trial on 11 to 14 August 1995. It may be expected that W1 kept in mind the events in question until she gave evidence and the defendant was convicted at the second trial in August 1995.
Unlike the typical case, 20 years have now elapsed since the second trial. W1 and the other witnesses have not had reason to keep the events in question in mind by either continuing statement taking and proofing or the expectation that they would be giving evidence at a further trial. They will be proofed by the Director’s office 20 years after the relevant events and after they were last asked to given an account of those events.
The passage of 20 years is likely to have had a substantial effect on the memories of the witnesses of the relevant events. That effect will be variable from witness to witness, topic to topic and detail to detail.
When the witnesses come to give evidence at trial, they will be required[86] to give evidence in the witness box in the first instance without being permitted to refresh their memories from their previous accounts given in 1994-1995 (unrefreshed evidence).
[86] It cannot be assumed at this stage that the defendant will waive this requirement.
If the witnesses are proofed initially by reference to their unrefreshed memory before they are shown their previous accounts, the witness statements now prepared by the prosecution will give notice to the defendant of the witnesses’ unrefreshed evidence.
If the witnesses are not so proofed but instead are invited to read their previous accounts before being asked for their unrefreshed recollection, depending on the witness and the topic and the level of detail, the situation will fall into one or more of three categories.
The first category is that, as a result of a witness’s unrefreshed recollection not being captured before being shown the witness’s previous accounts of events, the witness will not at trial be able to distinguish between refreshed and unrefreshed recollections or to give an accurate account of the witness’s unrefreshed recollection. To that extent, the prosecution will have deprived itself of the ability to adduce the witness’s unrefreshed evidence at trial. It is no answer to say that the defendant can cross-examine about the witness’s unrefreshed recollection because on the present hypothesis that will already have been indelibly compromised.
The second category is that, notwithstanding the witness’s unrefreshed recollection not being captured before being shown the witness’s previous accounts of events, the witness will nevertheless at trial be able to distinguish between refreshed and unrefreshed recollections and to give an accurate account of the witness’s unrefreshed recollection. To that extent, the prosecution will not have disclosed to the defence the witness’s unrefreshed evidence.
The third category is that the witness’s memory will not be refreshed by being shown the witness’s previous accounts of events. To that extent, the prosecution’s proposed method of proofing will not compromise the witness’s unrefreshed recollection and the witness’s unrefreshed evidence will be disclosed to the defence by the witness’s statement based on the current proofing. However, if this were the case, it would be otiose for the Director to show the witnesses his or her previous accounts in the first place.
Whether and to what extent a particular witness’s recollection will fall into one or more of these three categories will vary from witness to witness. The relevance and importance of a particular witness’s evidence on a particular topic will also vary. As noted above, the duty of disclosure is not absolute but depends on unfairness and whether there is a duty to disclose particular material in a particular case will depend on the particular facts and circumstances.
I return to the exemplar of W1. W1 was a friend of the defendant. She met him two years or so before March 1994. In her initial statement to the police, W1 said that her relationship with the defendant became romantic and sexual over time. She set out generally in sequence and in considerable detail their social meetings and sexual activities. W1 elaborated on her narrative account to some extent in each of her supplementary statements. W1 also gave evidence at both trials about these matters.
The defendant gave evidence in which he denied that he had any sexual or romantic relationship with W1. He said that their relationship did not rise above that of friends. This was put to W1 in cross-examination.
The prosecution relied at the previous trials and is expected to rely at the forthcoming trial on W1’s evidence to prove that there was a sexual and romantic relationship between W1 and the defendant and this is a significant strand in the Crown’s circumstantial case against the defendant. Accordingly, W1’s evidence is both important and contested.
W1’s credit and reliability are likely to be challenged at trial. Obviously, it is not possible to pre-judge those questions. For the purposes of analysis, I will assume in favour of the Crown that W1 is an honest witness.
I have little doubt that there are some matters that W1 presently recalls and when she gives evidence at trial will recall without refreshing her memory by reference to previous accounts and to this extent the situation will fall into the third category referred to at [75] above.
I also have little doubt that there are other matters, particularly of detail, of which W1 does not have a present recollection but which she may well recall after refreshing her memory by reference to previous accounts and which will therefore fall within the first and/or second categories referred to at [73]-[74] above. If W1 is shown her previous accounts before being asked for her unrefreshed recollection, there is a real risk that in respect of some events and in respect of some details of other events she will not at trial be able to distinguish between refreshed and unrefreshed recollections, her unrefreshed recollection will have been indelibly compromised and the situation will fall within the first category referred to at [73] above. To the extent that it transpires that W1’s recollection is refreshed but she is able to distinguish between refreshed and unrefreshed recollections, her proof will disclose her refreshed recollection but the defence will only learn her unrefreshed recollection at trial and the situation will fall within the second category referred to at [74] above.
In the circumstances, prima facie the prosecution should first proof W1 by reference to her unrefreshed recollection and only when that recollection has been exhausted should she be invited to refresh her memory from her previous accounts. This will result in disclosure to the defence of both the unrefreshed and refreshed recollection of W1.
The question then arises whether there is any reason why such disclosure should not be made by the prosecution. The Director contends that fairness in the administration of justice includes considerations of fairness to witnesses. The Director contends that it is unfair to the witnesses not to permit them to refresh their memory out of court from their previous accounts even if they would not be permitted to refresh memory in court from those previous accounts.
I accept the Director’s first contention: fairness to witnesses where applicable is to be taken into account along with fairness to the accused in determining the content of the duty of disclosure. As to the Director’s second contention, for the purposes of the question presently being considered[87] I am assuming that the witnesses are permitted to refresh their memories out of court from their previous accounts: the only question is whether the proofing by the prosecution should exhaust their unrefreshed recollection before their memories are so refreshed. There can be no unfairness to a witness by a proofing in that order. Indeed, a witness will be required to give evidence at trial in that order, if indeed the witness is permitted to refresh his or her memory in court from his or her previous accounts.
[87] I consider below whether there is a constraint upon the material from which witnesses can refresh their memory out of court.
There is no other reason why the prosecution should not disclose to the defence the present recollection and therefore unrefreshed evidence of W1 by proofing her initially without her first reading her previous accounts.
The final question is whether a direction should be given in advance of the proofing. The alternative is to leave the issue to be raised at a later stage after the witnesses have been proofed in the manner proposed by the Director. It might be raised by an application to exclude the evidence of witnesses under the unfairness discretion or an application (already foreshadowed or contingently made) for a permanent stay on the ground of abuse of process. It is in the interests of justice that the issue be resolved at this stage rather than being deferred until later.

I am satisfied that I have power and am prepared if necessary to give a direction to that effect. However, I anticipate that, as was the case in R v Perry (No 1),[88] the Director will act in accordance with my intimation.
[88] (1981) 27 SASR 166 at 172 per Cox J.
I will hear submissions from the parties if necessary as to the position in relation to the other witnesses.
Which previous accounts are shown to witnesses
The defendant contends that the Director should only proof the witnesses by reference to materials from which they could refresh their memory in court. The defendant makes an independent contention that the Director should not in any event show to the witnesses their evidence transcripts.
Statements to police
The defendant does not contend that the evidence of a witness will be rendered inadmissible if she or he has refreshed her or his memory out of court by reference to a previous account in respect of which permission is not granted to refresh memory in court.
The defendant’s contentions are founded on the duty of disclosure. The rationale, where it applies, requiring disclosure of a witness’s unrefreshed evidence considered in the previous section does not apply so as to inhibit a witness being shown a previous account after the witness’s unrefreshed memory has been exhausted in proofing. Provided that the witness has first been proofed by reference to his or her unrefreshed memory, the duty of disclosure does not require that the witness not be shown a previous account that does not meet the criteria for refreshing memory in court.
I observe in passing that the Director submits that, given the elasticity in the assessment of the freshness criterion for permitting refreshing of memory in court, it would be difficult in practice for the prosecution to determine during proofing which previous accounts or which parts of previous accounts would meet that criterion. For example, in the case of W1, her initial statement to the police covered events that had occurred quite recently as well as events that had occurred up to two years or so earlier. W1 then provided subsequent statements progressively up to a year or so later. The Director submits that it would be difficult for the prosecution to determine whether W1 will be permitted to refresh her memory from parts of her initial statement, and if so which parts, or from her subsequent statements. All of W1’s statements were made much nearer to the time of the relevant events (within two or three years at most) than to the present time (more than 20 years later). The Director’s observation raises an important practical consideration that would inform any consideration of the propriety of the prosecution’s proposed proofing.
Transcripts of evidence
The defendant contends that the Director should not any event show to the witnesses their evidence transcripts.
Taking W1 as an exemplar, she was cross-examined at both trials concerning matters other than her relationship with the defendant being matters that went at least primarily to credit. The defendant contends that providing to her transcripts of her cross-examination (and indeed her evidence in chief and re-examination) is a form of coaching and is unfair.
Subject to the question addressed above of witnesses’ unrefreshed recollections being exhausted before they are shown previous accounts, the duty of disclosure does not impact on the provision by the prosecution to witnesses of transcripts of evidence.
In Majinski v State of Western Australia,[89] the Western Australian Court of Appeal addressed the difference between proofing and coaching. Martin CJ (with whom Buss and Mazza JJA agreed) said:
Whether preparation amounts to 'coaching' is inevitably a matter of degree, and is dependent on the facts. It is clear that the practice of witnesses reading their statements prepared contemporaneously with, or soon after, the incident in respect of which he or she is asked to testify prior to the hearing, or being taken through it by the person to whom it was made, is generally proper. …
Questioning of a witness moves beyond 'proofing' to impermissible 'coaching' when the witness' true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness. A solicitor or counsel should not advise a witness as to how to answer a question. By way of example, in Day v Perisher Blue Pty Ltd the defendant's solicitors prepared an extensive document for the defendant outlining 'possible areas of questioning, (to be passed on to the respective witnesses)' and included suggestions as to appropriate responses which would be in line with the defendant's case. This conduct, alongside the holding of a pre-trial conference by the practitioner in which multiple witnesses jointly discussed evidence to be given at trial, was held to seriously undermine the trial and 'tainted' the defendant's case.
…If a prosecutor's interview with the complainant goes beyond proofing to impermissible coaching, and the complainant's evidence is fundamentally 'tainted' through the session, this may undermine the ability of an accused person to have a fair trial [90]
[89] (2013) 226 A Crim R 552
[90] At [30], [32], [35]. (Citations omitted)
If it is found that a witness’s evidence has or may have been affected by coaching, the trial judge may give a warning to the jury[91] or in an extreme case may exercise a discretion to exclude the witness’s evidence.[92]
[91] Hardwick v The State of Western Australia[2011] WASCA 164; (2011) 211 A Crim R 349 at [95] per Buss JA (with whom McClure P and Pullin JA agreed); Majinski v State of Western Australia [2013] WASCA 10 at [36] per Martin CJ (with whom Buss and Mazza JJA agreed).
[92] HKSAR v Tse Tat Fung [2010] HKCA 156; [2010] HKEC 815 at [73] per Hartmann JA, McMahon and Lunn JJ.
The effect of providing to a witness a transcript of the witness’s evidence given in a previous trial will vary greatly from case to case. At one extreme, such as in some cases where the questioning in chief was conventional and there was no cross-examination, the record might be more akin to a proofing as recorded in a witness statement. At the other extreme, where a lengthy and detailed cross-examination addressed issues (such as credit) that ranged beyond the facts in issue in the case and the witness is given transcript to take away and study, the forensic nature of the process results in the transcript being fundamentally different from a witness statement. In such a case, it might be found, depending on the evidence the witness gives about the extent, use and effect of reading the transcript, that there has been coaching.
In the case of W1, it is difficult to see the need for W1 to be shown a transcript of her previous evidence. There is no inhibition on W1 being proofed by reference to topics, including topics that arise as a result of evidence given by her at trial including during cross-examination. Such proofing could be undertaken in a delicate and iterative manner which could not be achieved by bluntly giving to her the transcript of her evidence. There appears to be a level of risk that W1’s evidence would be affected in a manner that may give rise to an allegation of coaching if she were provided with transcripts of evidence. In these circumstances, it is undesirable that W1 be provided with transcripts of evidence.
However, it is not possible to make an assessment whether the provision of transcripts to any witnesses will have the effect of coaching and if so what the consequences should be. These are questions that can only be decided at trial after W1 has given evidence. There is no basis for any direction to be given at this stage concerning the prosecution’s proposed method of proofing.
Record of proofing
The defendant contends that the Director should make a record of the proofing of the witnesses.
In the letter from the defendant’s solicitor to the Director dated 24 April 2015, a request was made that the Director agree to record each witness’s unrefreshed memory, the materials given to each witness and when given, and the extent to which his or her memory is refreshed. In his response, the Director said that the prosecution would not be making audio/video recordings of conversations with prosecution witnesses but would keep records of materials provided to them.
Although not made explicit by either party, my understanding is that, if and to the extent that witnesses are first proofed by reference to their unrefreshed memory, the Director will in accordance with normal practice prepare a proof in narrative form of their unrefreshed evidence, record what previous accounts are then provided to the witnesses and at what stage, and will prepare a proof in narrative form of their refreshed evidence. My understanding is that the defendant was seeking a verbatim record in some form of questions and answers such as an audio or audiovisual recording or transcript.
In those cases in which witnesses are first proofed by reference to their unrefreshed memory, the duty of disclosure requires that there be provided to the defence a statement in an appropriate form of the witness’s unrefreshed evidence, identification of what previous accounts are provided to the witness and at what stage, and a statement in an appropriate form of their refreshed evidence.
It is a matter for the Director to determine the form of the disclosure. Disclosure is not usually given by way of audio or audiovisual recordings or transcripts of questions and answers. Provided that substantive disclosure is made of the witness’s unrefreshed and refreshed evidence and of the previous accounts provided to the witness, such as by providing statements in traditional narrative form, the Director will have complied with the duty of disclosure.
Conclusion
The prosecution should disclose to the defence in an appropriate form the present recollection and therefore unrefreshed evidence of W1 by proofing her initially without her first reading her previous accounts, an identification of the previous accounts provided to her and stage at which they are provided, and in an appropriate form her refreshed evidence.
I will hear submissions from the parties if necessary as to the position in relation to the other witnesses.