Regina v Amir Ibrahim El Mostafa and Saleh Khodr [2007] NSWDC 331

New South Wales District Court

CITATION: Regina v Amir Ibrahim El Mostafa and Saleh Khodr [2007] NSWDC 331 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Please see Regina v Amir Ibrahim El Mostafa [2007] NSWDC 219 for hearing dates

JUDGMENT DATE: 23 April 2007

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ at 1

DECISION: Application to show a witness a document to refresh their memory is refused.

CATCHWORDS: Criminal law - Evidence - Crown application - Refresh memory of witness with document

LEGISLATION CITED: ss 32, 192 Evidence Act 1995

CASES CITED: The Queen v Van Beelen (1972) 6 SASR 534

Regina PARTIES: Amir Ibrahim El Mostafa Saleh Khodr

FILE NUMBER(S): 06/11/0574; 06/11/0047

Mr Calvert for the Crown COUNSEL: Mr Simpson for Amir Ibrahim El Mostafa Dr Webb for Saleh Khodr

Ms Flemming for the NSW DPP SOLICITORS: Ms Duffy for Amir Ibrahim El Mostafa Mr Rahme for Saleh Khodr

JUDGMENT

1. There is a witness in the witness box giving evidence before the jury. His name is Musadek Al Zargani. The Crown Prosecutor has, I expect, almost finished with him in evidence-in-chief. The Crown Prosecutor has sought leave under s32 of the Evidence Act 1995 for the witness to use a document to try to revive his memory about a fact in the course of giving his evidence. That is not permitted by s32(1) of the Evidence Act without my leave. Various factors are stated in s32(2) which I will not set out. Mr Simpson opposes the application.

2. The document from which the witness would be asked to refresh his memory is a statement dated 11 February 2005 given to the police. The events in respect of which he will be asked to give evidence occurred on 30 January 2005.