R v Jenkin (No 5) [2018] NSWSC 730

R v Jenkin (No 5) [2018] NSWSC 730

Although AR could not recall the relevant facts adequately without a document, the judge was not satisfied that the police interview was made when the events were fresh in AR's memory and the specific s 32(2) considerations tended against leave. Nevertheless, s 32(2) is not exhaustive, and the s 192(2) considerations and interests of justice favoured leave: granting leave would not unduly lengthen the trial, the use of the aid would be patent to the tribunal of fact and not unfair to the accused, the evidence was potentially important, the proceeding was a murder trial, and no better order or direction was suggested. Leave was therefore granted under s 32(1).

Jurisdiction
Australia
Judgment Date
09 May 2018
Procedural Posture
Common Law Criminal / Procedural Ruling in a Murder Trial on Leave Under S 32 of the Evidence Act 1995 (nsw) to Allow a Witness to Use a Document to Revive Memory
Outcome
Leave granted under s 32(1) of the Evidence Act 1995 (NSW).
Legal Topics
['leave to Revive Memory by Use of a Document' 'witness Memory' 'fresh in the Memory' 'voir Dire' 'evidence Act 1995 (nsw) S 32']
['criminal Law' 'evidence'] ['leave to Revive Memory by Use of a Document' 'witness Memory' 'fresh in the Memory' 'voir Dire' 'evidence Act 1995 (nsw) S 32']

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Procedural Posture

Common Law Criminal / Procedural Ruling in a Murder Trial on Leave Under S 32 of the Evidence Act 1995 (nsw) to Allow a Witness to Use a Document to Revive Memory

Legal Issues

  1. 1 ['Whether witness AR should be granted leave under s 32(1) of the Evidence Act 1995 (NSW) to use a document to try to revive his memory while giving evidence.' 'Whether AR could recall the relevant conversations adequately without using the document.' "Whether the document was written or made when the events recorded in it were fresh in AR's memory." 'Whether other discretionary considerations, including those in s 192(2) of the Evidence Act 1995 (NSW), supported granting leave.']

Ratio Decidendi

Although AR could not recall the relevant facts adequately without a document, the judge was not satisfied that the police interview was made when the events were fresh in AR's memory and the specific s 32(2) considerations tended against leave. Nevertheless, s 32(2) is not exhaustive, and the s 192(2) considerations and interests of justice favoured leave: granting leave would not unduly lengthen the trial, the use of the aid would be patent to the tribunal of fact and not unfair to the accused, the evidence was potentially important, the proceeding was a murder trial, and no better order or direction was suggested. Leave was therefore granted under s 32(1).

Court Disposition

Leave granted under s 32(1) of the Evidence Act 1995 (NSW).

Orders

  • ['Leave granted under s 32(1) of the Evidence Act 1995 (NSW) to allow witness AR to use a document to revive his memory in the course of giving evidence.' 'Leave was not granted under s 32(3) to allow the witness to read aloud from his statement.']