Regina v Amir Ibrahim El Mostafa and Saleh Khodr [2007] NSWDC 331

Regina v Amir Ibrahim El Mostafa and Saleh Khodr [2007] NSWDC 331

Leave was refused because, given the almost two-week interval between the events and the statement, the specific words sought to be added, the witness's evidence in court without those words, and the surrounding circumstances including publicity after the alleged riot, the judge found it difficult to accept that the specific contents of the statement were fresh in the witness's memory when the statement was made; fairness and the limited importance of the evidence also weighed against granting leave.

Jurisdiction
Australia
Judgment Date
23 April 2007
Procedural Posture
Criminal Law Evidence Crown Application / Crown Application for Leave Under S 32 of the Evidence Act 1995 for a Witness Giving Evidence Before the Jury to Use a Document to Refresh Memory
Outcome
Application refused.
Legal Topics
['refreshing Memory of Witness' 'leave Under S 32 of the Evidence Act 1995' 'fairness and Importance Considerations Under S 192 of the Evidence Act 1995']
['criminal Law' 'evidence'] ['refreshing Memory of Witness' 'leave Under S 32 of the Evidence Act 1995' 'fairness and Importance Considerations Under S 192 of the Evidence Act 1995']

Case Brief

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Procedural Posture

Criminal Law Evidence Crown Application / Crown Application for Leave Under S 32 of the Evidence Act 1995 for a Witness Giving Evidence Before the Jury to Use a Document to Refresh Memory

Legal Issues

  1. 1 ['Whether the Crown should be granted leave under s 32 of the Evidence Act 1995 for witness Musadek Al Zargani to use a police statement dated 11 February 2005 to try to revive his memory about additional words allegedly said by Mr El Mostafa on 30 January 2005.']

Ratio Decidendi

Leave was refused because, given the almost two-week interval between the events and the statement, the specific words sought to be added, the witness's evidence in court without those words, and the surrounding circumstances including publicity after the alleged riot, the judge found it difficult to accept that the specific contents of the statement were fresh in the witness's memory when the statement was made; fairness and the limited importance of the evidence also weighed against granting leave.

Court Disposition

Application refused.

Orders

  • ['Leave to the witness to refresh his memory from the document is refused.']