Ku-ring-gai Council v John David Chia (No 7) [2018] NSWLEC 169

Ku-ring-gai Council v John David Chia (No 7) [2018] NSWLEC 169

Leave was granted because the witness was unable to recollect the relevant date without the record of interview, use of the document for the limited purpose would not add to the length of the trial, would not be unfair to any party, and may provide information of some materiality. Although the events were not fresh in the witness' memory when the interview was conducted, the defendant had made extensive use of the interview in cross-examination and the specific date of 4 October 2014 had not been put to the witness by Mr Myles.

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

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether leave should be granted under s 32 of the Evidence Act 1995 (NSW) for prosecution witness James McKenzie to use part of a transcript of a recorded interview to refresh his memory as to the date he commenced work for the defendant in late 2014.' 'Whether the discretionary factors in s 192 of the Evidence Act 1995 (NSW), including unfairness to the defendant, supported or opposed the grant of leave.']

Ratio Decidendi

Leave was granted because the witness was unable to recollect the relevant date without the record of interview, use of the document for the limited purpose would not add to the length of the trial, would not be unfair to any party, and may provide information of some materiality. Although the events were not fresh in the witness' memory when the interview was conducted, the defendant had made extensive use of the interview in cross-examination and the specific date of 4 October 2014 had not been put to the witness by Mr Myles.

Court Disposition

Leave granted.

Orders

  • ["Leave granted pursuant to s 32(1) of the Evidence Act 1995 (NSW) for the document to be used for the limited purpose of refreshing the witness' memory as to the date of the meeting in respect of which he was being re-examined."]