R v Al Batat & Ors (No 15) [2020] NSWSC 1227

R v Al Batat & Ors (No 15) [2020] NSWSC 1227

The application under s 32 of the Evidence Act 1995 (NSW) was refused because the witness's statement was made 27 months after the relevant event, such that her memory was not sufficiently 'fresh' at the time the statement was made. Permitting her to use the statement would not genuinely assist with providing a true and accurate recollection of the WeChat conversation, as required by the statute and established principles.

Parties
Prosecution: Regina; Accused: Abdallah Hassan Al Batat; Accused: Ying Cheng Luo; Accused: Ian Fan; Accused: Jaiyu Liu; Accused: Jacob Blake Bayliss; Accused: Nai An Li
Jurisdiction
Australia
Judgment Date
10 September 2020
Procedural Posture
Criminal / Pre Trial Ruling
Outcome
Application to refresh witness's memory under s 32 of the Evidence Act refused.
Legal Topics
Memory Refreshment, Admissibility of Prior Statements, Interpretation of 'fresh in the Memory', Use of Documents in Court
Evidence Law Criminal Law Memory Refreshment Admissibility of Prior Statements Interpretation of 'fresh in the Memory' Use of Documents in Court

Case Brief

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Parties

Regina

Prosecution

Abdallah Hassan Al Batat

Accused

Ying Cheng Luo

Accused

Ian Fan

Accused

Jaiyu Liu

Accused

Jacob Blake Bayliss

Accused

Nai An Li

Accused

Procedural Posture

Criminal / Pre Trial Ruling

Legal Issues

  1. 1 Whether to grant leave under s 32 of the Evidence Act 1995 (NSW) for a witness to refresh memory from a statement made 27 months after the event
  2. 2 Interpretation of 'fresh in the memory' in the context of s 32 versus s 66 of the Evidence Act

Ratio Decidendi

The application under s 32 of the Evidence Act 1995 (NSW) was refused because the witness's statement was made 27 months after the relevant event, such that her memory was not sufficiently 'fresh' at the time the statement was made. Permitting her to use the statement would not genuinely assist with providing a true and accurate recollection of the WeChat conversation, as required by the statute and established principles.

Court Disposition

Application to refresh witness's memory under s 32 of the Evidence Act refused.

Orders

  • The application under s 32 of the Evidence Act 1995 (NSW) is refused.
  • Prosecutor is not permitted to put the statement in the witness's hands for memory refreshment.