R v Dougas; R v Read; R v Linke (No 13) [2022] NSWSC 385

R v Dougas; R v Read; R v Linke (No 13) [2022] NSWSC 385

Although the potential unreliability of Mr Chapple's evidence due to delay had been significantly exposed to the jury, the passage of time was an important challenge to his evidence and, applying the prudential approach reflected in Wade and s 165B(2) and (3) of the Evidence Act 1995 (NSW), the judge was persuaded that the distorted memory direction should be given.

Jurisdiction
Australia
Judgment Date
28 March 2022
Procedural Posture
Criminal Procedure — Trial — Directions to Jury / Procedural Ruling During Trial on Application by Accused for Distorted Memory Direction
Outcome
Application granted; ruling made that a distorted memory direction would be given to the jury.
Legal Topics
['directions to Jury' 'distorted Memory Direction' 'delay' 'reliability of Witness Evidence' 'section 165 B Warning']
['criminal Procedure' 'evidence'] ['directions to Jury' 'distorted Memory Direction' 'delay' 'reliability of Witness Evidence' 'section 165 B Warning']

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Procedural Posture

Criminal Procedure — Trial — Directions to Jury / Procedural Ruling During Trial on Application by Accused for Distorted Memory Direction

Legal Issues

  1. 1 ["Whether a distorted memory direction should be given to the jury in relation to Mr Chapple's evidence because of the passage of time." 'Whether the way the trial had been conducted, including cross-examination and addresses exposing delay-related unreliability, made the direction unnecessary.']

Ratio Decidendi

Although the potential unreliability of Mr Chapple's evidence due to delay had been significantly exposed to the jury, the passage of time was an important challenge to his evidence and, applying the prudential approach reflected in Wade and s 165B(2) and (3) of the Evidence Act 1995 (NSW), the judge was persuaded that the distorted memory direction should be given.

Court Disposition

Application granted; ruling made that a distorted memory direction would be given to the jury.

Orders

  • ['The Court will give a direction in accordance with MFI 31.' 'The Court will foreshadow the direction using the words in MFI 29, including the additional sentence in the red box on the right-hand side of MFI 30.']