Ku-ring-gai Council v John David Chia (No 8) [2018] NSWLEC 170

Ku-ring-gai Council v John David Chia (No 8) [2018] NSWLEC 170

Leave was granted because the witness could not recall the date of the meeting without the record of interview, use of the limited passage would not add to the length of the trial, would not be unfair to any party, and might provide important information. Although the interview was not made when the events were fresh in the witness' memory, the defendant had extensively used the same record in cross-examination and had suggested fabrication. If the material was credibility evidence, it was admissible in re-examination under s 108(1).

Jurisdiction
Australia
Judgment Date
30 October 2018
Procedural Posture
Class 5 Criminal Trial / Application by the Prosecutor During Re Examination of Prosecution Witness James Mc Kenzie for Leave Under S 32 of the Evidence Act 1995 (nsw) to Use a Document to Refresh Memory
Outcome
Leave granted
Legal Topics
['refreshing Memory in Court' 'credibility Evidence' 're Establishing Credibility' 'leave to Use Record of Interview in Re Examination']
['practice and Procedure' 'criminal Law' 'evidence'] ['refreshing Memory in Court' 'credibility Evidence' 're Establishing Credibility' 'leave to Use Record of Interview in Re Examination']

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Procedural Posture

Class 5 Criminal Trial / Application by the Prosecutor During Re Examination of Prosecution Witness James Mc Kenzie for Leave Under S 32 of the Evidence Act 1995 (nsw) to Use a Document to Refresh Memory

Legal Issues

  1. 1 ['Whether the prosecution witness should be given leave under s 32 of the Evidence Act 1995 (NSW) to use part of a transcript of a recorded interview to refresh his memory.' 'Whether the relevant material was credibility evidence excluded by s 102 of the Evidence Act 1995 (NSW).' 'Whether an exception to the credibility rule applied under s 108 of the Evidence Act 1995 (NSW).' 'Whether the discretionary factors in s 192 of the Evidence Act 1995 (NSW) supported granting leave.']

Ratio Decidendi

Leave was granted because the witness could not recall the date of the meeting without the record of interview, use of the limited passage would not add to the length of the trial, would not be unfair to any party, and might provide important information. Although the interview was not made when the events were fresh in the witness' memory, the defendant had extensively used the same record in cross-examination and had suggested fabrication. If the material was credibility evidence, it was admissible in re-examination under s 108(1).

Court Disposition

Leave granted

Orders

  • ["The prosecutor was granted leave to use the limited portion of the record of interview sought to be relied upon for the purpose of reviving Mr McKenzie's memory."]