R v Lam (No 10) - [2005] VSC 284

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

THE QUEEN

CUONG QUOC LAM & ORS

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JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2005 to 19 September 2005
DATE OF JUDGMENT:	1 April 2005
CASE MAY BE CITED AS:	R v Cuong Quoc Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 284

RULING NO. 10

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Evidence – Document used to refresh memory in the witness box – Whether document must be made at a time contemporaneous with the event – Requirement that facts be fresh in the memory – Significance of temporal relationship between occurrence of event and its recording – Voir dire to establish whether memory refreshed by perusal of record.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Dean S.C. with Mr P. Southey	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For Cuong Quoc Lam	Mr S. Grant	Michael Gleeson & Associates
For Hung Tu Van	Mr A. Jackson	Haines & Polities
For Linh Van Nguyen	Mr D. Brustman	Valos Black & Associates
For Thanh Nha Nguyen	Mr F. Gucciardo	Theo Magazis & Associates
For Long Thanh Tran	Mr G. Mullaly	Victoria Legal Aid
For Hong Bui	Mr J. Saunders	Valos Black & Associates
For Hoang Tran	Mr M. Rochford	Brendan Wilkinson

HIS HONOUR:

Application has been made by the prosecution to permit the witness Linh Xuan Tran to refresh his memory from a statement that he made to the police on 15 July 2002 concerning his description of a motor vehicle which he observed on the morning of 8 July 2002 in Chapel Street outside the Legends Pool Parlour. Counsel for the accused, Cuong Lam, objected to the witness being permitted to refresh his memory from the statement on the ground that it was not made at a time contemporaneous with the event. It was submitted that even if the events were still fresh in the witness’s memory at the time the statement was made, it did not satisfy the condition that it be a contemporaneous record. Senior counsel for the prosecution submitted that if the record was made at a time when the events were fresh in the witness’s memory the record could be used for the purpose of refreshing the witness’s memory.

I ruled that the witness could refresh his memory from the relevant passage of his statement and that I would later give reasons. With the agreement of all counsel a voir dire was then conducted to ascertain whether perusal of the relevant paragraph revived the witness’s recollection. On the voir dire the witness said that it did. In the jury’s presence the witness was then asked to refresh his memory by perusing the relevant paragraph from his statement. He then gave evidence as to the description of the motor vehicle.

These are my reasons for permitting the witness to refresh his memory.

At common law it is a necessary precondition to a witness’s use of a document…

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 Lam (No 10)

Details

AGLC: R v Lam (No 10) [2005] VSC 284
Case: [2005] VSC 284
Decision Date: 1 April 2005

CaseChat Overview and Summary

In the case of R v Lam (No 10), the respondent was on trial for various criminal charges. The prosecution sought to admit a document used by the respondent to refresh their memory during their testimony. The defence objected on the basis that the document was not contemporaneous with the events it sought to record, and therefore could not be used to refresh memory. The matter was considered in a voir dire by the court to determine the admissibility of the document.

The legal issues at the heart of the case centred on the rules governing the use of documents to refresh memory in the witness box. The court was required to consider whether a document must be made at a time contemporaneous with the event it records to be admissible for this purpose. The court also needed to consider the requirement that the facts must be fresh in the memory of the witness and the significance of the temporal relationship between the occurrence of the event and its recording. Ultimately, the court needed to determine whether the document in question could be used to refresh the memory of the witness.

The court found that the document could be used to refresh the memory of the witness, despite not being contemporaneous with the events it sought to record. The court noted that the key requirement was that the facts must be fresh in the memory of the witness, and that the temporal relationship between the occurrence of the event and its recording was not a strict requirement. The court found that the witness had demonstrated that the facts were fresh in their memory and that the document could assist in recalling those facts. The court also found that a voir dire was an appropriate means of establishing whether the memory of the witness had been refreshed by the perusal of the record.

No specific orders were made in the case, as the matter was resolved during the voir dire. The court's decision, however, provides guidance to practitioners on the admissibility of documents used to refresh memory in the witness box. The decision highlights the importance of ensuring that the facts are fresh in the memory of the witness, rather than placing strict emphasis on the temporal relationship between the occurrence of the event and its recording.

Orders