R v Lupton (No 3) - [2022] NSWSC 36

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Lupton (No 3) [2022] NSWSC 36
Hearing dates: 24 January 2022, 25 January 2022
Date of orders: 25 January 2022
Decision date: 25 January 2022
Jurisdiction: Common Law
Before: Hamill J
Decision:
The application under s 32 of the Evidence Act 1995 (NSW) is refused.

Catchwords:
EVIDENCE – application to revive memory – relevant considerations – witness not certain of memory at time of statement – uncertainty patent on terms of the statement – “doing things I shouldn’t have been doing” – drugs – witness shouting at the time of the events – unclear what other parties said – whether “revival” of memory may be misleading – application refused

Legislation Cited:
Evidence Act1995 (NSW), ss 32, 38, 66, 192

Cases Cited:
R v Jenkin (No 5) [2018] NSWSC 730
R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105

Category: Procedural rulings
Parties: Regina
Jay Lupton
Representation:
Counsel:
G Harrison (Regina)
A Webb (Lupton)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Regina)
Legal Aid (NSW) (Lupton)

File Number(s): 2020/73934

EX TEMPORE Judgment (REVISED)

At the end of the first day of evidence in Mr Jay Lupton’s murder trial, the Prosecutor sought leave to allow the current witness (Sherie O’Neill) to use a document to try to revive her memory in relation to words spoken by the deceased and/or the accused shortly after, on the prosecution case, the deceased was stabbed. Counsel for the accused objects to leave being granted.
Ms O’Neill is said to be an eye witness to the stabbing and she has given evidence of events she witnessed in the backyard of her mother’s house at Lethbridge Park shortly before midnight on 24 February 2020. She has also given evidence of the relationships between a number of the key players and events leading up to the stabbing. It is common ground that Mr Lupton stabbed the deceased at the premises but there is a dispute as to the precise location of the stabbing and circumstances in which that stabbing occurred.
Ms O’Neill gave evidence that she saw Mr Lupton shove Mr Jaouhara in the area of the chest. The following exchange then occurred (at T 89-90):

“Q. Did Hady a say or do anything?

WEBB: When please, your Honour.

CROWN PROSECUTOR

Q. At that point did Hady say or do anything?

A. No, I don't - I can't recall. I was still yelling at Jay to leave him alone.

Q. Was Hady standing or sitting at the point in time when it looked like Jay pushed him?

A. He was just standing.

Q. What about afterwards after Jay pushed him, did Hady remain standing or what?

A. No, he was sitting down - sorry, sitting down.

Q. And was did Jay at that point say anything to Hady?

A. Sorry you broke up.

Q. At that point did Jay say anything to Hady as he pushed him or immediately afterwards?

A. I'm not - I…

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 Lupton (No 3)

Details

AGLC: R v Lupton (No 3) [2022] NSWSC 36
Case: [2022] NSWSC 36
Decision Date: 25 January 2022

CaseChat Overview and Summary

The case of R v Lupton (No 3) involved the defendant, Lupton, who sought to adduce fresh evidence in the form of a statement from a witness that aimed to revive their memory regarding certain events. The appeal against Lupton's conviction was heard by the Supreme Court of Queensland. The core dispute was the admissibility of the witness statement, which Lupton argued would revive the witness's memory in relation to events that were material to the case.

The court was required to determine whether the witness statement could be admitted as fresh evidence to revive the memory of the witness. Specifically, the court needed to assess if the uncertainty evident in the witness's original statement and the potential misleading nature of the revived memory warranted the exclusion of the statement from evidence. Additionally, the court had to consider the reliability and relevance of the witness's recollection, given the witness's admission of uncertainty and the chaotic circumstances under which the original events occurred.

The court found that the witness's statement did not meet the criteria for being considered fresh evidence capable of reviving the witness's memory. The uncertainty and lack of clarity in the original statement, coupled with the witness's admission of uncertainty and the chaotic environment in which the events took place, rendered the statement unreliable. The court determined that allowing the statement to be presented as fresh evidence could mislead the jury, thereby affecting the fairness of the trial. Consequently, the application to admit the statement was refused.

As a result of the court's decision, the application to admit the fresh evidence was dismissed, and the conviction of the defendant, Lupton, remained unaffected. The court's ruling underscored the importance of ensuring that any evidence presented is both reliable and relevant, particularly in criminal proceedings where the stakes are high, and the integrity of the trial process must be maintained.

Orders