R v Lupton (No 3) [2022] NSWSC 36

R v Lupton (No 3) [2022] NSWSC 36

Leave under s 32 was refused because, although the witness could not presently recall what was said and the statement was made when the events were fresh in her memory, paragraph 12 of the statement itself showed that she did not know what was yelled and could say only that she thought Mr Lupton yelled particular words. Permitting her to look at the statement to revive memory risked creating a misleading account of both what occurred and what her memory was when the statement was made, especially where her uncertainty was explained by her own yelling at the time and drug use at that stage of her life.

Jurisdiction
Australia
Judgment Date
25 January 2022
Procedural Posture
Murder Trial; Procedural Evidence Ruling / Prosecution Application Under S 32 of the Evidence Act 1995 (nsw) for Leave for a Witness to Use a Police Statement to Try to Revive Memory During Examination in Chief
Outcome
The application under s 32 of the Evidence Act 1995 (NSW) is refused.
Legal Topics
['revival of Memory' 'leave Under S 32 of the Evidence Act 1995 (nsw)' 'discretionary Leave Considerations Under S 192 of the Evidence Act 1995 (nsw)' 'witness Memory and Prior Statements']
['evidence' 'criminal Law' 'criminal Procedure'] ['revival of Memory' 'leave Under S 32 of the Evidence Act 1995 (nsw)' 'discretionary Leave Considerations Under S 192 of the Evidence Act 1995 (nsw)' 'witness Memory and Prior Statements']

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Procedural Posture

Murder Trial; Procedural Evidence Ruling / Prosecution Application Under S 32 of the Evidence Act 1995 (nsw) for Leave for a Witness to Use a Police Statement to Try to Revive Memory During Examination in Chief

Legal Issues

  1. 1 ["Whether Ms O'Neill should be permitted under s 32 of the Evidence Act 1995 (NSW) to use paragraph 12 of her police statement dated 27 February 2020 to try to revive her memory of words allegedly spoken shortly after the stabbing." 'Whether the statement reflected a sufficiently accurate or certain memory at the time it was made, given that the statement itself recorded uncertainty about what was yelled.' "Whether granting leave could mislead the jury by producing evidence stronger than the witness's memory at the time of the statement."]

Ratio Decidendi

Leave under s 32 was refused because, although the witness could not presently recall what was said and the statement was made when the events were fresh in her memory, paragraph 12 of the statement itself showed that she did not know what was yelled and could say only that she thought Mr Lupton yelled particular words. Permitting her to look at the statement to revive memory risked creating a misleading account of both what occurred and what her memory was when the statement was made, especially where her uncertainty was explained by her own yelling at the time and drug use at that stage of her life.

Court Disposition

The application under s 32 of the Evidence Act 1995 (NSW) is refused.

Orders

  • ["Leave to have Ms O'Neill revive her memory from paragraph 12 of her police statement dated 27 February 2020 is refused."]