R v Al Batat & Ors (No 20) [2020] NSWSC 1319

R v Al Batat & Ors (No 20) [2020] NSWSC 1319

The witness's evidence, demeanour, apparent preoccupation with the accused in the dock, and the detailed contents of her prior statement justified the conclusion that she might reasonably be supposed to have knowledge of the relevant matters and was not making a genuine attempt to give evidence. It was preferable first to attempt revival of memory under s 32, and, when that failed, the s 192 factors favoured granting leave under s 38(1)(b) without relevant unfairness or undue delay.

Jurisdiction
Australia
Judgment Date
01 October 2020
Procedural Posture
Criminal Law Procedural Rulings / During Jury Trial, Applications for Leave Under the Evidence Act 1995 (nsw) Concerning Witness Martina Sellers
Outcome
Leave granted under s 32 and under s 38(1)(b) of the Evidence Act 1995 (NSW); leave was not granted at that stage under s 38(1)(a) or s 38(1)(c).
Legal Topics
['reviving Memory' 'cross Examination of Own Witness' 'unfavourable Witness' 'prior Inconsistent Statement' 'genuine Attempt to Give Evidence' 'leave Under S 192' 'evidence of Police Statement']
['criminal Law' 'evidence'] ['reviving Memory' 'cross Examination of Own Witness' 'unfavourable Witness' 'prior Inconsistent Statement' 'genuine Attempt to Give Evidence' 'leave Under S 192' 'evidence of Police Statement']

Case Brief

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Procedural Posture

Criminal Law Procedural Rulings / During Jury Trial, Applications for Leave Under the Evidence Act 1995 (nsw) Concerning Witness Martina Sellers

Legal Issues

  1. 1 ['Whether leave should be granted under s 32 of the Evidence Act 1995 (NSW) to allow Martina Sellers to use her police statement to attempt to revive her memory.' 'Whether leave should be granted under s 38 of the Evidence Act 1995 (NSW) for the Prosecutor to question Martina Sellers as though cross-examining her.' "Whether the witness's lack of recall constituted unfavourable evidence or involved a prior inconsistent statement." 'Whether the witness was making a genuine attempt to give evidence about matters of which she might reasonably be supposed to have knowledge.']

Ratio Decidendi

The witness's evidence, demeanour, apparent preoccupation with the accused in the dock, and the detailed contents of her prior statement justified the conclusion that she might reasonably be supposed to have knowledge of the relevant matters and was not making a genuine attempt to give evidence. It was preferable first to attempt revival of memory under s 32, and, when that failed, the s 192 factors favoured granting leave under s 38(1)(b) without relevant unfairness or undue delay.

Court Disposition

Leave granted under s 32 and under s 38(1)(b) of the Evidence Act 1995 (NSW); leave was not granted at that stage under s 38(1)(a) or s 38(1)(c).

Orders

  • ['Leave granted to allow the witness to revive her memory under s 32 of the Evidence Act 1995 (NSW).' 'Leave granted for the Prosecutor to cross-examine the witness under s 38(1)(b) of the Evidence Act.']