R v Duffy (No. 5) [2015] NSWSC 528

R v Duffy (No. 5) [2015] NSWSC 528

The Court was not satisfied that the preconditions in s 38(1)(b) were met because the witness did not simply say she remembered nothing, had some memory revived after seeing the statement, and did not claim self-incrimination under s 128. However, her evidence that she could not remember the relevant conversation beyond what she had given was unfavourable evidence. Since she had used her statement to try to revive her memory about the conversation, the Crown was entitled under s 38(1)(a) to put the statement's contents to her in cross-examination to seek agreement that the recorded facts occurred.

Jurisdiction
Australia
Judgment Date
05 May 2015
Procedural Posture
Criminal Trial Murder / Procedural Ruling on Crown Application for Leave to Cross Examine Witness Under S 38 of the Evidence Act 1995 (nsw)
Outcome
Leave granted pursuant to s 38(1)(a).
Legal Topics
['unfavourable Witnesses' 'cross Examination of Own Witness' 'refreshing Memory From a Statement' 'prior Police Statement' 'genuine Attempt to Give Evidence']
['criminal Law' 'evidence'] ['unfavourable Witnesses' 'cross Examination of Own Witness' 'refreshing Memory From a Statement' 'prior Police Statement' 'genuine Attempt to Give Evidence']

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Procedural Posture

Criminal Trial Murder / Procedural Ruling on Crown Application for Leave to Cross Examine Witness Under S 38 of the Evidence Act 1995 (nsw)

Legal Issues

  1. 1 ['Whether the Crown should be granted leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine Cathy Adamson about paragraphs 7 to 15 of her police statement.' 'Whether the witness was not making a genuine attempt to give evidence within s 38(1)(b).' "Whether the witness's inability to remember matters in her police statement amounted to unfavourable evidence within s 38(1)(a)."]

Ratio Decidendi

The Court was not satisfied that the preconditions in s 38(1)(b) were met because the witness did not simply say she remembered nothing, had some memory revived after seeing the statement, and did not claim self-incrimination under s 128. However, her evidence that she could not remember the relevant conversation beyond what she had given was unfavourable evidence. Since she had used her statement to try to revive her memory about the conversation, the Crown was entitled under s 38(1)(a) to put the statement's contents to her in cross-examination to seek agreement that the recorded facts occurred.

Court Disposition

Leave granted pursuant to s 38(1)(a).

Orders

  • ['Leave to the Crown to cross-examine Cathy Adamson on paragraphs 7 to 15 of her statement of 4 June 2012.' 'Leave is granted pursuant to s 38(1)(a) to cross-examine the witness concerning paragraphs 7-15 of her statement.']