R v Bowie (No 3) [2022] NSWSC 1504

R v Bowie (No 3) [2022] NSWSC 1504

The witness was competent because memory difficulties and inconsistencies did not establish incapacity under s 13. Leave was granted to refresh memory from paragraph 6 of the statement because the witness had found the statement accurate when made, but leave was refused for paragraph 21 because she had already described the dress ring and had not indicated an inability to remember it. The witness's evidence that she recognised the ring in the photograph as belonging to Roxlyn was relevant, was not shown to have been improperly obtained, and its probative value was not outweighed by unfair prejudice because any risks could be addressed by directions. The proposed in-court identification of...

Jurisdiction
Australia
Judgment Date
04 November 2022
Procedural Posture
Criminal Proceedings for Murder / Procedural Rulings During Trial on Evidence
Outcome
Application partly granted and partly refused; photo identification evidence admitted and in-court identification evidence not admitted.
Legal Topics
['witness Competence' 'refreshing Memory' 'relevance' 'improperly Obtained Evidence' 'unfair Prejudice' 'identification or Recognition Evidence']
['evidence' 'criminal Law'] ['witness Competence' 'refreshing Memory' 'relevance' 'improperly Obtained Evidence' 'unfair Prejudice' 'identification or Recognition Evidence']

Case Brief

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Procedural Posture

Criminal Proceedings for Murder / Procedural Rulings During Trial on Evidence

Legal Issues

  1. 1 ['Whether the witness Corale Komene lacked capacity to give evidence under s 13 of the Evidence Act 1995 (NSW).' 'Whether leave should be granted under s 32 of the Evidence Act 1995 (NSW) for the witness to refresh her memory from paragraphs 6 and 21 of her statement dated 3 April 2019.' 'Whether evidence that the witness identified or recognised the signet ring from a photograph was relevant under s 55 of the Evidence Act 1995 (NSW).' 'Whether the identification or recognition evidence should be excluded as improperly obtained under s 138 of the Evidence Act 1995 (NSW).' 'Whether the probative value of the identification or recognition evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW).' 'Whether an in-court identification of the ring itself as belonging to Roxlyn Bowie was admissible.']

Ratio Decidendi

The witness was competent because memory difficulties and inconsistencies did not establish incapacity under s 13. Leave was granted to refresh memory from paragraph 6 of the statement because the witness had found the statement accurate when made, but leave was refused for paragraph 21 because she had already described the dress ring and had not indicated an inability to remember it. The witness's evidence that she recognised the ring in the photograph as belonging to Roxlyn was relevant, was not shown to have been improperly obtained, and its probative value was not outweighed by unfair prejudice because any risks could be addressed by directions. The proposed in-court identification of...

Court Disposition

Application partly granted and partly refused; photo identification evidence admitted and in-court identification evidence not admitted.

Orders

  • ['I refuse the application to exclude further evidence of the witness Corale Komene pursuant to s 13 of the Evidence Act.' 'Pursuant to s 32 of the Evidence Act, I grant leave to the witness Corale Komene to refresh her memory in respect of paragraph 6 of her statement, dated 03/04/2019.' 'I refuse leave to have the...