Regina v Amir Ibrahim El Mostafa and Saleh Khodr

[2007] NSWDC 331

CITATION:	Regina v Amir Ibrahim El Mostafa and Saleh Khodr [2007] NSWDC 331 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Please see Regina v Amir Ibrahim El Mostafa [2007] NSWDC 219 for hearing dates
JUDGMENT DATE:	23 April 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Application to show a witness a document to refresh their memory is refused.
CATCHWORDS:	Criminal law - Evidence - Crown application - Refresh memory of witness with document
LEGISLATION CITED:	ss 32, 192 Evidence Act 1995
CASES CITED:	The Queen v Van Beelen (1972) 6 SASR 534
PARTIES:	Regina Amir Ibrahim El Mostafa Saleh Khodr
FILE NUMBER(S):	06/11/0574; 06/11/0047
COUNSEL:	Mr Calvert for the Crown Mr Simpson for Amir Ibrahim El Mostafa Dr Webb for Saleh Khodr
SOLICITORS:	Ms Flemming for the NSW DPP Ms Duffy for Amir Ibrahim El Mostafa Mr Rahme for Saleh Khodr

JUDGMENT

1. There is a witness in the witness box giving evidence before the jury. His name is Musadek Al Zargani. The Crown Prosecutor has, I expect, almost finished with him in evidence-in-chief. The Crown Prosecutor has sought leave under s32 of the Evidence Act 1995 for the witness to use a document to try to revive his memory about a fact in the course of giving his evidence. That is not permitted by s32(1) of the Evidence Act without my leave. Various factors are stated in s32(2) which I will not set out. Mr Simpson opposes the application.

2. The document from which the witness would be asked to refresh his memory is a statement dated 11 February 2005 given to the police. The events in respect of which he will be asked to give evidence occurred on 30 January 2005.

3. He has already given an account of what occurred on that day including his recollection of words said by one of the accused, Mr El Mostafa. There is a portion of his statement dated 11 February 2005 which the Crown Prosecutor has highlighted which contains the additional words in respect of which he wishes the witness to refresh his memory. Those words are: "If you vote you will die".

4. In opposing the application Mr Simpson says that there is no guarantee that the witness found the document to be accurate at the time. He points to the fact acknowledged by the Crown that there has already been, some days or weeks ago, an amendment to the statement concerning words recollected or not by this witness. In addition Mr Simpson argues that in accordance with s32(2)(b) the document was not made when the events recorded in it were fresh in his memory.

5. The authority on that question appears to be The Queen v Van Beelen 1972, a judgment of Sangster J in the Supreme Court of South Australia. It is reported as a note in 6 SASR 534. At 537 His Honour said:

“ The suggestion in Cross on Evidence, Australian edition, of the requirement of 'Contemporaneity' seems to me, again with respect, to be wrong. Certainly if the memorandum were made or verified contemporaneously the facts would be fresh in the mind of the witness, but in my opinion the real test is freshness of memory as a question of fact and not the relationship in time, except that shortness of time makes it easier to accept the witness's assertion that the facts were fresh and length of time more difficult - and a great length of time would undoubtedly lead any court to reject the evidence claiming that the events were fresh in the memory of the witness at the time of making the memorandum ".

6. The time in this case is almost two weeks and what the witness is being asked to recollect are specific words uttered by one of the accused. He has given his account in court without that addition of these specific words.

7. Two matters to which my attention has been drawn by both parties and are contained in s192 of the Evidence Act. Mr Simpson argues in accordance with s192(2)(b) that it would not be fair to his client and the Crown Prosecutor acknowledges fairly that the importance of the evidence to be called by reference to clause (c) is not overwhelmingly significant.

8. I find it difficult in accordance with the Van Beelen terminology to accept, given the length of time, the assertion that the specific contents of the statement were fresh in the memory or would have been fresh in the memory of this witness almost two weeks after the event.

9. Although not referred to in submissions it has become clear in the course of my presiding over this matter that the altercation which is the subject of this evidence was followed by a riot that evening or at least a sequence of events the Crown alleges was a riot and would have received a significant degree of publicity.

10. I take that into account in determining the extent to which, in those circumstances, the few additional words might have been fresh in the memory of this witness. Accordingly I refuse leave to this witness to refresh his memory from the document.

oOo

09/05/2008 - Typographical error - Paragraph(s) 1