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

v

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:

1. 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.

1. 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.

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

1. At common law it is a necessary precondition to a witness’s use of a document to revive memory that the document must have been made or verified whilst the facts were still fresh in the witness’s memory.[1]  The requirement that the facts must be fresh in the memory recognises the extent to which and the rate at which memory loss occurs and the risk of decrease in the accuracy of statements as a result of unconscious reconstruction and interference.[2]

   [1]Heydon, J.D. (2004) Cross on evidence (7^th Australian Ed.), Sydney, LexisNexis Butterworths at [17195-17200];  Waight, P.K. (1998) Evidence: commentary and materials ( 5^th Ed.), North Ryde, NSW, LBC Information Services at 281.

   [2](1985) Report on Evidence, Australian Law Reform Commission (ALRC) Report No. 26 Vol I at [688].

1. The rule was stated in Archbold in these terms

“….a witness may refresh his memory by reference to any writing made or verified by himself concerning and contemporaneously with the facts to which he testifies.  Contemporaneously is a somewhat misleading word in the context of the memory refreshing rule.  It is sufficient for the purpose of the rule if the writing was made or verified at a time when the facts were still fresh in the witness’s memory”.[3]

The Court of Appeal in Reference by the Attorney-General No. 3 of 1979 considered this to be a correct statement of the common law principle.[4]

[3]Mitchell, Stephen (ed.) (1979), Archbold: pleading, evidence and practice in criminal cases (4^th ed.), London, Sweet & Maxwell.

[4](1979) 69 Cr App R 411 at 412. See also R v Kelsey (1981) 74 Cr App R 213 at 217.

1. In England, though some degree of contemporaneity is required, the permissible interval between the event and the recording of it must be such that the facts were fresh in the witness’s memory.[5]  Lord Justice Sachs in R v Richardson[6] referred to such a requirement as providing a measure of elasticity which should not be taken to confine witnesses to an over short period. 

   [5]Dyer v Best 4 H&C 189 per Pollock CB.

   [6][1971] 2 All ER 773 at 777.

1. Whether a record is contemporaneous is a matter of fact and degree.[7]  Records made 27 days[8], 4 weeks[9] and three months[10] after the events have not been viewed as sufficiently contemporaneous records to permit a witness to refresh their memory from it. 

1. [7]Simmonds Coupe & Ors (1967) 51 Cr App R 317 at 330; R v Da Silva [1990] 1 All ER 29 at 32.

   [8]R v Graham [1973] CrimLR 628 at 629.

   [9]R v Governor of Glouscestershire Prison; ex Parte Miller [1979] 2 All ER 1103. See Footnote 1 Cross on Evidence at [17185].

   [10]R v Woodcock [1963] CrimLR 273.

1. In R v Van Beelen[11] Sangster J considered that the requirement of contemporaneity suggested in Cross on evidence was wrong.[12]  His Honour stated the real test to be freshness of memory as a question of fact and not the relationship in time between the occurrence of the asserted fact and its recording.[13]

   [11](1973) 6 SASR 535n at 537.

   [12]See Footnote 1.

   [13]Evans v Sparrow (1973) 6 SASR 519 at 528.

1. In Orchard v Spooner[14] Newman J considered the wording of s.418(2) Crimes Act 1900 which permits a police officer to give evidence in chief by reading a statement made by the police officer “at the time of or soon after the occurrence of the events to which it refers”.  Newman J found such a requirement to be temporal in nature involving a concept of immediacy contemplating days rather than weeks as being the permissible time that may elapse between the event and the making of the statement.  In the course of reaching this conclusion, his Honour considered the common law rule which permits a witness to refresh their memory and agreed with the view stated by Sangster J in Van Beelen[15]. 

   [14](1992) 28 NSWLR 114.

   [15]See also Gillespie v Steer (1973) 6 SASR 200; Crnisanin& Jekic v Logan (1972) 4 SASR 340 and R v Singh (1977) 15 SASR 591 at 593.

1. The English decision in Richardson was followed in R v Pachonick[16], Lee J permitting a prosecution witness to refresh his memory out of court, from the document made “contemporaneously with or soon after the events” about which he was giving evidence.  The rule has been similarly stated in R v Bryant (No.2)[17] that a witness may look at a document “in which he has recorded a fact at about the time he knew of it from his own knowledge”.

   [16][1973] 2 NSWLR 86.

   [17][1956] St Qd 570 at 593.   See also The Queen v Kirkman [2000] ACTSC 2 at [12]; R v O’Neill [1995] QCA 331.

1. In R v Hall[18] Hunt CJ described the common law test to be that the facts be fresh in the witness’s memory at the time the document was made.  His Honour described it as a flexible test which did not require strict contemporaneity.

   [18](1997) 92 A Crim R 168.

1. The English Court of Appeal may have expanded the circumstances in which a record may be used to refresh memory.  In R v Da Silva[19] the Court of Appeal found a statement made one month after the incident to which it related could be contemporaneous.   It considered that if the statement was made at a time much nearer the events and its contents represented the witness's recollections at the time it was made the witness could use the document to refresh his recollection.[20]

   [19]See Footnote 7 Da Silva.

   [20]See Footnote 7 Da Silva at 33.  See also South Ribble Magistrates: ex-parte Cochrane [1996] 2 Cr App R 544.

1. In New Zealand it is not clear whether a document need be of a contemporaneous character before it can be used by a witness to refresh their memory.[21]  The decision in Da Silva was discussed in Bennet v R[22].  It is unnecessary for me to determine whether Da Silva represents the law in this State.

   [21]Rooke v Auckland City Council [1980] 1 NZLR 680; Equiticorp Industries Group Ltd(In Statutory Management)  v R [1995] 3 NZLR 243.

   [22][2004] NZCAA 24.

1. The High Court in Graham v R[23] considered the meaning of the word “fresh” as it applies to a complainant's memory within the context of s.66 Evidence Act 1995 (NSW). Gaudron, Gummow and Hayne JJ found that a complaint of sexual assault would not be “fresh” within the context of s.66 unless it were “recent” or “immediate”. The term “fresh” was viewed as carrying with it the connotation that described the quality of the memory as being “not deteriorated or changed by lapse of time”. Their Honours described the core of the meaning intended by the term “fresh” as:

“…..the temporal relationship between the ‘occurrence of the asserted fact’ and the time of making the representation.  Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as with the case here, in years.”[24]

[23](1998) 195 CLR 606.

[24]Ibid at [4].

1. Callinan J, with whom Gleeson CJ agreed, said:

“….Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or mere contemporaneity, or otherwise will almost always be the most important consideration in any assessment of its freshness……….”[25]

In Papakosmas v R[26] the “close contemporaneity of the statement with the fact in issue” was similarly emphasised by Gaudron J and Kirby J when dealing with evidence of recent complaint

[25]Ibid at [34].

[26](1999) 164 ALR 548 at 560.

1. In R v Adam aka Odishou[27] the New South Wales Court of Appeal was required to consider the application of s.66 of the Evidence Act 1995 to a record made some 10 weeks after the events in question.  The Court referred to a ruling of Wood CJ at CL made on 3 December 1998 in the same case relating to the ability of a witness to refresh his memory from a record of interview made seven weeks after the events in question.  Wood CJ after referring to passages from the High Court’s judgment in Graham said:

“In my view the judgment of Gaudron J, Gummow J and Hayne J was not intended to confine the expression ‘freshness’ strictly or exhaustively in terms of mere hours or days.  As the Law Reform Commission Report underlined, a measure of flexibility is appropriate.  The question is, as their Honours point out, one of fact and degree. 

In my view a statement made seven weeks after an event is not one which should be regarded as being outside the period of fresh memory.  It is in fact a relatively short period after events of the kind here involved.  Having regard to normal expectation and experience of life I would regard a statement made at that point of time as still being fresh in the memory of a witness.”[28]

The Court of Appeal considered that this view had much to commend it.

[27](1999) 47 NSWLR 267.

[28]See Footnote 26 R v Adam at [132].

1. In this State, witnesses have generally been allowed to use a record made or verified by them which is sufficiently though not strictly contemporaneous but made at a time when the facts are still fresh in the witness’s memory.[29]

   [29]See for example R v Alexander &Taylor [1975] VR 741 at 750; Hatziparadissis v GFC (Manufacturing) Pty Ltd [1978] VR 181.

1. In Cross on Evidence the requirement of contemporaneity is described as amounting to no more:

“…..than strong evidence of compliance with the further requirement that the writing must have been brought into existence whilst the facts were still fresh in the witness’s memory”. [30]

[30]See Footnote 1 Chapter 9 at [17185].

1. The weight of authority clearly shows that it is not a requirement of the common law that there be strict contemporaneity with the events recorded.  The facts must be fresh in the witness’s memory.  The temporal relationship between the occurrence of the event and the recording of it remains a significant factor in determining whether or not the facts were fresh in the witness’s memory at the time the record was made or verified.

1. A record made by the witness seven days after the event in question when the facts were fresh in his memory was one which could be used by the witness to refresh his memory.