R v Weaver (No 6) [2022] NSWSC 502

R v Weaver (No 6) [2022] NSWSC 502

Leave was refused because the ERISP transcript was not written or made by Ms Howlett for s 32(2)(b)(i), and the only evidence that she found it accurate was her undertaking dated 19 March 2021, about 15 months after the events. In the circumstances, including her status as an accomplice and former co-accused and the prospect and receipt of sentencing benefit for assisting the authorities and undertaking to give evidence, the Court was not satisfied that the requirements and discretionary considerations justified permitting her to refresh her memory.

Jurisdiction
Australia
Judgment Date
22 April 2022
Procedural Posture
Criminal Trial for Murder / Crown Application Under S 32 of the Evidence Act 1995 (nsw) for Leave for a Witness to Refresh Her Memory in Court
Outcome
Application refused.
Legal Topics
['refreshing Memory' 'witness Evidence' 'evidence Act 1995 (nsw) S 32' 'evidence Act 1995 (nsw) S 192' 'accomplice Evidence' 'fresh in Memory']
['criminal Law' 'evidence'] ['refreshing Memory' 'witness Evidence' 'evidence Act 1995 (nsw) S 32' 'evidence Act 1995 (nsw) S 192' 'accomplice Evidence' 'fresh in Memory']

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Procedural Posture

Criminal Trial for Murder / Crown Application Under S 32 of the Evidence Act 1995 (nsw) for Leave for a Witness to Refresh Her Memory in Court

Legal Issues

  1. 1 ['Whether Yolanda Howlett should be granted leave to use an unsigned ERISP transcript to revive her memory about an alleged statement by the accused before he allegedly fatally confronted Larry White.' 'Whether s 32(2)(b)(i) applied where the ERISP transcript was not written or made by the witness.' 'Whether the words "at such a time" in s 32(2)(b)(ii) require the witness to have found the document accurate when the events recorded in it were fresh in her memory.' "Whether the s 192 considerations and the witness's status as an accomplice and former co-accused favoured granting leave."]

Ratio Decidendi

Leave was refused because the ERISP transcript was not written or made by Ms Howlett for s 32(2)(b)(i), and the only evidence that she found it accurate was her undertaking dated 19 March 2021, about 15 months after the events. In the circumstances, including her status as an accomplice and former co-accused and the prospect and receipt of sentencing benefit for assisting the authorities and undertaking to give evidence, the Court was not satisfied that the requirements and discretionary considerations justified permitting her to refresh her memory.

Court Disposition

Application refused.

Orders

  • ['Application for leave for Yolanda Howlett to refresh her memory from answers to questions 659 to 668 in the transcript of her second ERISP of 2 June 2020 refused.']