R v Dillon (No 2) [2019] NSWSC 1536

R v Dillon (No 2) [2019] NSWSC 1536

The statement of 12 October 2016 was not contemporaneous and was not made when the relevant events were fresh in the witness's memory for the purposes of s 32; the later evidence of a re-enactment and reconstruction process reinforced that conclusion. Although the witness could not recall the passage without refreshing his memory and the evidence may be important, permitting access to the statement could be unfair to the accused in a murder trial where the witness was central and the reliability of his recollection was in issue. Leave was therefore refused.

Jurisdiction
Australia
Judgment Date
14 October 2019
Procedural Posture
Criminal Procedure Admissibility of Evidence / Procedural Ruling During Jury Trial on Crown Application for Leave Under S 32 of the Evidence Act 1995 (nsw) to Permit a Witness to Refresh Memory From a Statement
Outcome
Leave refused.
Legal Topics
['refreshing Memory' 'fresh in the Memory' 'identification Evidence' 'fairness of Criminal Trial' 'leave Under Evidence Act 1995 (nsw)']
['criminal Law' 'evidence' 'criminal Procedure'] ['refreshing Memory' 'fresh in the Memory' 'identification Evidence' 'fairness of Criminal Trial' 'leave Under Evidence Act 1995 (nsw)']

Case Brief

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Procedural Posture

Criminal Procedure Admissibility of Evidence / Procedural Ruling During Jury Trial on Crown Application for Leave Under S 32 of the Evidence Act 1995 (nsw) to Permit a Witness to Refresh Memory From a Statement

Legal Issues

  1. 1 ['Whether the witness should be permitted to use his statement of 12 October 2016 to revive his memory in court under s 32 of the Evidence Act 1995 (NSW).' "Whether the statement of 12 October 2016 was made when the events recorded in it were fresh in the witness's memory." 'Whether granting leave could be unfair to the accused given the importance of the witness and the identification evidence.']

Ratio Decidendi

The statement of 12 October 2016 was not contemporaneous and was not made when the relevant events were fresh in the witness's memory for the purposes of s 32; the later evidence of a re-enactment and reconstruction process reinforced that conclusion. Although the witness could not recall the passage without refreshing his memory and the evidence may be important, permitting access to the statement could be unfair to the accused in a murder trial where the witness was central and the reliability of his recollection was in issue. Leave was therefore refused.

Court Disposition

Leave refused.

Orders

  • ["The Crown's application for leave to permit the witness to use the statement of 12 October 2016 to revive his memory in court is refused."]