R v Lupton (No 3) [2022] NSWSC 36

Supreme Court New South Wales

Medium Neutral Citation: R v Lupton (No 3) [2022] NSWSC 36 Hearing dates: 24 January 2022, 25 January 2022 Date of orders: 25 January 2022 Decision date: 25 January 2022 Jurisdiction: Common Law Before: Hamill J Decision: The application under s 32 of the Evidence Act 1995 (NSW) is refused. Catchwords: EVIDENCE – application to revive memory – relevant considerations – witness not certain of memory at time of statement – uncertainty patent on terms of the statement – "doing things I shouldn't have been doing" – drugs – witness shouting at the time of the events – unclear what other parties said – whether "revival" of memory may be misleading – application refused Legislation Cited: Evidence Act 1995 (NSW), ss 32, 38, 66, 192 Cases Cited: R v Jenkin (No 5) [2018] NSWSC 730 R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105 Category: Procedural rulings Parties: Regina Jay Lupton Representation: Counsel: G Harrison (Regina) A Webb (Lupton)

Solicitors: Solicitor for Public Prosecutions (NSW) (Regina) Legal Aid (NSW) (Lupton) File Number(s): 2020/73934

EX TEMPORE Judgment (REVISED) 1. At the end of the first day of evidence in Mr Jay Lupton's murder trial, the Prosecutor sought leave to allow the current witness (Sherie O'Neill) to use a document to try to revive her memory in relation to words spoken by the deceased and/or the accused shortly after, on the prosecution case, the deceased was stabbed. Counsel for the accused objects to leave being granted. 2. Ms O'Neill is said to be an eye witness to the stabbing and she has given evidence of events she witnessed in the backyard of her mother's house at Lethbridge Park shortly before midnight on 24 February 2020. She has also given evidence of the relationships between a number of the key players and events leading up to the stabbing. It is common ground that Mr Lupton stabbed the deceased at the premises but there is a dispute as to the precise location of the stabbing and circumstances in which that stabbing occurred. 3. Ms O'Neill gave evidence that she saw Mr Lupton shove Mr Jaouhara in the area of the chest. The following exchange then occurred (at T 89-90): "Q. Did Hady a say or do anything? WEBB: When please, your Honour. CROWN PROSECUTOR Q. At that point did Hady say or do anything? A. No, I don't - I can't recall. I was still yelling at Jay to leave him alone. Q. Was Hady standing or sitting at the point in time when it looked like Jay pushed him? A. He was just standing. Q. What about afterwards after Jay pushed him, did Hady remain standing or what? A. No, he was sitting down - sorry, sitting down. Q. And was did Jay at that point say anything to Hady? A. Sorry you broke up. Q. At that point did Jay say anything to Hady as he pushed him or immediately afterwards? A. I'm not - I couldn't tell you, I'm sorry. Like I said I was, I yelling myself. Q. You are saying - do you recall whether anything was being said at that time by anyone? A. No, I'm sorry. Q. Again you made a statement to the police shortly after this on 27 February, do you remember that? A. Is that the first one or the second one? Q. That's the second statement on 27 February? A. Okay, yeah I do remember. Q. If you were permitted to look at that statement might that help you to remember what was being said if anything? A. Maybe, I doubt it. I'm sorry, maybe." 1. I am told that the first statement referred to by Ms O'Neil is one in which she gave a false account of the events. The second statement was made three or four days after the event. 2. After a somewhat muted objection was foreshadowed, there was a brief discussion between counsel and the examination in chief continued (T 90-91): "Q. If you just think as best as you can back to that moment can you recall if Jay said anything? A. To myself or Hady? Q. To either of you? A. Like he may have, I'm not sure. I was screaming. I was yelling at the top of everyone to be honest. Q. When you made your statement to the police on 27 February was your memory at that time about what happened better than it is now, almost two years later? A. I'm not sure. I was going through a lot back then and I was doing things I shouldn't have been doing. But I'm sure whatever I said was –" 1. At that point, Mr Webb raised a formal objection to the witness being permitted to try to refresh her memory by reference to her police statement dated 27 February 2020. The examination concluded as follows (T 91): "Q. So when you made the statement to the police on 27 February that's a few days after this incident, you understand? A. Yep. Q. And you told the police various things like what you remembered and had seen and heard? A. Yes. Q. It is now some one year and 11 months after the incident, do you agree with that? A. If - yeah, if that's - yeah I'm not sure really, but yes. Q. And you can't remember at this stage what it was if anything Jay said at this time I am talking about, is that right? A. Yeah. Q. If you were to look at the statement that you made on 27 February might that help you to remember what it was that was said, if anything? A. I'm not sure but I can have a look." 1. At that stage, at 3:55pm, the jury was permitted to separate for the day and counsel commenced their submissions. The submissions continued this morning. Having indicated this morning my provisional view that leave should not be granted, the learned Prosecutor made a number of further submissions relating, first, to whether the subject matter was fresh in the memory, drawing analogy with s 66 of the Evidence Act 1995 (NSW) and also the criteria in ss 32 and 192. 2. He also foreshadowed an application to cross-examine the witness under s 38, but that is a matter I need not consider at this time. At the moment, the issue is whether or not the witness should be permitted to revive her memory, or attempt to revive her memory, by reference to her police statement, in particular, the contents of paragraph 12 of that statement. 3. Section 32(1) forbids a witness from trying to revive their memory by reference to a document unless the Court gives leave. Section 32(2) provides a non-exhaustive list of matters that a court must take into account in determining the question of leave. Section 192 provides a further non-exhaustive list of considerations that a Court "is to take into account" when considering the grant of leave under the provisions of the Evidence Act 1995. 4. I am satisfied that at least two of the matters referred to in section 32(2) are satisfied. That is: 1. The witness cannot recall what was said without referring to her statement. 2. At the time the statement was made the facts were fresh in the memory of the witness. I make that finding in spite of the ambiguity of the witness's own opinion on that issue. 1. It is not so clear that the witness found the statement to be accurate at the time she made the statement: s 32(2)(b)(ii). I will return to that issue but acknowledge that the first paragraph of the document, which is in the common form for such statements, indicates the statement is true to the best of Ms O'Neill's belief. However, as will be seen, the relevant portion of the statement tends to suggest that she was not certain at the time. 2. As to the matters in s 192(2), I make the following observations: 1. Granting leave will not unduly add to the length of the trial. 2. Granting leave has a small capacity to operate unfairly to Mr Lupton because Ms O'Neill was not clear even at the time she made her statement precisely what was said. 3. The evidence has some importance in the trial as it may bear upon the accused's intention at the time of the stabbing. 4. It is a murder trial and the prosecution should be permitted to adduce all the evidence relevant to the accused guilt. 5. Adjourning the proceeding will do nothing to nothing to resolve or advance the issue and it is difficult to envisage any direction that would 1. In R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105, Bellew J held that s 32 should be interpreted liberally in favour of the grant of leave. I made passing reference to that observation, while not adopting it, in R v Jenkin (No 5) [2018] NSWSC 730. Even so, the grant of leave in the latter case, given the quality of the evidence in question, might be seen as a liberal interpretation favourable to the party seeking to have the witness revive their memory - in that case, the prosecution. As I said in granting leave, each case will be determined by its own factual circumstance. 2. That brings me to the relevant part of the statement. It is in the following terms: "11. Hady was sitting up on a pile of rubbish against my mum's house, out the back, Jay was at the shed, it looked like he was looking for something. I told Hady to go, I said "Hady, just go, leave now". Hady went to get up and go, he didn't say anything. Jay turned around and told Hady "don't fucken go anywhere". Hady was still getting up to leave. I stood between Jay and Hady, because I didn't want there to be a fight, I thought Jay would punch on. Jay walked from the shed towards Hady, and pushed me aside, as he was walking still towards Hady, Jay said "move" as he pushed me. "12. Jay moved towards Hady, kind of like lunged towards him and I thought he was grabbing him, it looked like he was trying to grab Hady by the shirt. I now think he must have been stabbing him. Hady didn't cry out, or say anything, he just sat back down, and sat there quietly. Jay was yelling at Hady, I don't know what he was yelling, I think he yelled "look what you've done" towards me." 1. Ms O'Neill has given evidence to the effect of what she said in paragraph 11 of her statement in the following passage of the transcript (T 88): "Q. What did you do when Jay walked past you? A. I was screaming at him to like I was just - I can't really be sure. I was screaming at him, yelling him to stop. Calm down or something, don't know. Q. What was it made you say to him to calm down? A. Because he was angry at me, we were fighting so. Q. Do you remember did Hady say anything when you told him to piss off? A. I can't really remember if he did or not. Q. And as best as you can you recall what was it that Jay said when you told Hady to piss off? A. I think he was swearing and said no, fucking not - don't fucking go anywhere or something like that, something along those lines. Q. What did you do when Jay said that? A. I was still screaming and yelling at Jay, telling him to piss off yeah." 1. It is the words in paragraph 12 that the Prosecutor is attempting to elicit. The problem is that, on the terms of the statement itself, Ms O'Neil was not sure what was said, even at the time she made her statement. She said "I don't' know what he was yelling" and could say no more than "I think" he yelled "look what you've done". Allowing Ms O'Neill to use the statement to revive her memory may give a misleading account both of what actually happened, and what her memory was at the time she made her statement. If she reads the statement and this "revives" a memory that Mr Lupton said "look at what you've done" (which is the evidence the Prosecutor is trying to adduce) that will give a false account of her memory at the time of her statement. 2. It is true that cross-examination will readily expose that, but nevertheless it is difficult to see how we are reviving what can sensibly be said to be a true and accurate memory at the time of the statement. 3. There appear to be at least two reasons Ms O'Neill is unsure now, and was unsure four days after the event, about what, if anything, Mr Lupton said at the relevant time. First, she was yelling herself. Second, she was using a lot of drugs at that stage of her life. This is the implication in her evidence of "I was doing things I shouldn't have been doing", a matter conceded by the Prosecutor. 4. The Prosecutor will be permitted to make another attempt to elicit the evidence in the traditional way but leave to have the witness revive her memory from paragraph 12 of the statement is refused.