R v L Cassar; R v E Sleiman (Judgment No 28) [1999] NSWSC 651

New South Wales Supreme Court CITATION : R v L Cassar; R v E Sleiman (Judgment No 28) [1999] NSWSC 651 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70036/98; 70216/98 HEARING DATE(S) : 26/05/99 JUDGMENT DATE : 9 July 1999

PARTIES : Regina v Leanne Cassar; Regina v Emad Sleiman JUDGMENT OF : Sperling J

For Crown: M L Barr COUNSEL : For Accused Leanne Cassar: D N Stewart For Accused Emad Sleiman: K G Horler AM QC For Crown: F Gray (DPP NSW) SOLICITORS : For Accused Leanne Cassar: John Bettens & Co For Accused Emad Sleiman: Ross Hill & Associates CATCHWORDS : EVIDENCE - proof of contents of a document by tendering a summary or extract and by oral evidence by a witness who saw the document - use by a witness of a document made by another person to revive memory. ACTS CITED : Evidence Act 1995, ss 32(2) & 48(4)(a)(b) CASES CITED : Hadid v Australis Media Limited (Judgment No 10, 1 November 1996, unreported); Horne v MacKenzie (1839) 6 Cl & Fin 628; Kwok Si Cheng (1976) 63 Cr App Rep 20. DECISION : Document admissible. Leave to refresh recollection from document.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SPERLING J

Friday 9 July 1999 70036/98 Regina v Leanne Cassar 700216/98 Regina v Emad Sleiman

JUDGMENT NO. 28

HIS HONOUR: 1 On 26 May 1999, I gave certain rulings in relation to the admissibility of evidence. I said I would publish my reasons at a later time. These are my reasons. 2 The accused's case included evidence that, on the night of the stabbing of the deceased, 17-18 May 1997, the accused were transported by Mr Mahmoud Sleiman (a relative of the accused Emad Sleiman) in the latter's Ford Laser motor car, registration number SLN 660. Mr Mahmoud Sleiman had said, in evidence, that he had purchased the motor vehicle from a Mr Mansour shortly before 17-18 May 1997. 3 I gave the Crown leave to adduce evidence in question in a case in reply, with a view to showing that the vehicle was, in fact, elsewhere that night, namely, at the Tienda Motel, The Entrance. Evidence was adduced on the voir dire for the purpose of the ruling. That evidence was as follows. 4 Mrs Townsend, the daughter of the manager of the motel, gave evidence that she was on duty on the night of 17-18 May 1997. She said it was the practice of the motel and a practice which she followed for a registration form to be filled out for each guest, which included the name and address of the guest, the registration number of the guest's motor vehicle, the date of check in and the charge for the room. She said it was also the practice and her practice to personally check the registration number of a guest's motor vehicle. 5 Mr P Baker, Mrs Townsend's father and the manager of the motel at the relevant time, gave evidence that a search had been conducted for the relevant batch of registration forms, and they could not be found. I was satisfied that the form in question could not be produced. 6 Detective Senior Constable Trench gave evidence that, at the request of Acting Detective Sergeant McNab, he attended at the Tienda Motel, The Entrance on 15 October 1997, where he inspected a registration form relating to a stay at the motel by a Mr Mansour earlier in 1997. He said that he recorded the name, address, car registration, payment details and dates from the form either on the fax which had been received from Acting Detective Sergeant McNab or on a separate sheet of paper. He said he was able to give that evidence without refreshing his recollection from any document but not the detailed particulars of what he saw and recorded. Detective Senior Constable Trench said that he faxed his original note of those particulars to Acting Detective Sergeant McNab or a typed up record of those particulars. He said he had been unable to find the document faxed to Acting Detective Sergeant McNab but was able to produce the cover sheet or header relating to the transmission. That was tendered as an exhibit on the voir dire. 7 Acting Detective Sergeant McNab said in his evidence on the voir dire that, having requested Detective Senior Constable Trench to make inquiries at the Tienda Motel and having received a reply from him, he (Acting Detective Sergeant McNab) keyed in a running sheet on 20 October 1997 incorporating the information he had received. This document was produced and tendered on the voir dire. It stated that the records of the Tienda Motel, The Entrance, showed that some time on 17 May 1997 Cyril Mansour booked into the motel, and that the registration number of his car was SLN 660. (There was other evidence tending to show that Mr Mansour had occupied a room in the motel on the night of 17-18 May 1997 and had checked out late on 18 May 1997.) Acting Detective Sergeant McNab said that he had searched for the document faxed by Detective Senior Constable Trench and it could not be found. 8 I held that the running sheet was admissible (in an edited form incorporating the salient details) pursuant to s 48(4)(a) of the Evidence Act 1995. Section 48(4)(a) provides that a party may adduce evidence of the contents of a document that is not available to the party by tendering a document that is an summary of or an extract from the document in question. 9 I further held that Detective Senior Constable Trench should have leave, pursuant to s 32, to use the running sheet to try to revive his memory. That section provides that a witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave. 10 I further held that Detective Senior Constable Trench could give oral evidence of what he saw in the registration form pursuant to s 48(4)(b), using the running sheet to refresh his recollection. Section 48(4)(b) provides that a party may adduce evidence of the contents of a document that is not available to the party by adducing oral evidence of the contents of the document in question. 11 I made it a condition of those rulings that the Crown lead evidence in the trial as to the manner in which the documentation came into existence. That was to give the accused the opportunity of bringing out any matter adverse to the reliability of the chain of proof of the contents of the registration form. 12 My reasons for these rulings were as follows. It was clear that the original of the registration form was a business record of the kind referred to in s 69 and that proof of the contents of the form would, accordingly, be evidence of the fact. It followed that, if the contents of the form could be proved, that would stand as evidence that vehicle, registration number SLN 660, was at the Tienda Motel, The Entrance, with Mr Mansour overnight on 17-18 May 1997 and, accordingly, had not been used to transport the accused that night. 13 That the registration form was a document not available to the Crown, within the meaning of s 48(4), was also clear on the evidence led on the voir dire. 14 I was satisfied that the running sheet was a summary of or an extract from the registration form within the meaning of s 48(4) and was, accordingly, admissible as evidence of the contents of the form pursuant to that section. 15 Section 32(2) prescribes matters which the court is to take into account in deciding whether to give leave to a witness to use a document to refresh the witness's recollection. The matters specified are expressed to be without limiting the matters that the court may take into account. The specified matters are: "(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or (ii) was, at such a time, found by the witness to be accurate." 16 Having regard to the evidence given on the voir dire, I was satisfied that Detective Senior Constable Trench would be unable to recall the relevant content of the registration form without using the running sheet to refresh his recollection. That answered para (a) above. 17 As to paragraph (b) above, there are two relevant matters to be stated. First, there is a question as to whether the facts of the case come within the ambit of paragraph (b). Whether they do is a matter which the court is obliged to take into account. Secondly, the matter specified in paragraph (b) is not a condition for the operation of s 32. It is a matter to be taken into account and it is a matter to be taken into account without limiting the matters that the court may take into account in deciding whether to give leave 18 I was of the opinion that the facts of the case did not come within the ambit of paragraph (b). The running sheet was not written or made by Detective Senior Constable Trench. Nor was it examined by the witness and found to be accurate when the inspection of the registration form was fresh in his mind. However, the document - purportedly and according to the evidence - recorded what Detective Senior Constable Trench had seen when he inspected the registration form. The kind of information recorded in the document was also important. Relevantly, the only material content was a date, a name and the registration number of a motor vehicle. That is not the kind of information likely to be inaccurately transcribed or corrupted in transmission from one police officer to another in the course of a criminal investigation. Evidence given by Detective Senior Constable Trench, using the document, was likely to be reliable. Indeed, there was no serious doubt in my mind that the running sheet accurately recorded what Detective Senior Constable Trench had seen in the registration form. 19 In Horne v MacKenzie (1839) 6 Cl & Fin 628, a surveyor made notes at the time of an inspection. Subsequently, he wrote up a printed report from his notes, and he made jottings on his copy of the report reflecting other details in his notes which had not been incorporated in the report. Objection was taken to the surveyor refreshing his recollection as to what he had seen on the inspection from the printed report and the jottings. The trial judge ruled against the objection. His Lordship said that the report was "made from his (the surveyors') original notes, but it is not a literal transcript of them; but in substance it is the same". On appeal, it was held that the trial judge was right to allow the witness to refresh his recollection from the report and the jottings written on it. 20 The point of the decision is that the report and jottings were not made at a time which was "contemporaneous" with the event, that being the terminology in which the common law rule was cast (now "fresh in the mind" in s 32). 21 In Kwok Si Cheng (1976) 63 Cr App Rep 20, a police officer was permitted, over objection, to refresh his memory from a statement he had prepared from his note book. The note book was no longer available. On appeal, Lawton LJ said (at 24): "What seems to us to be the position is this. If the statement in this case, or any other transcription of notes in other cases, is substantially what is in the notes and there is evidence to that effect, then the judge should allow the witness to refresh his memory from the statement or transcription as the case may be. But if, after investigation, it turns out that the statement or transcription bears little relation to the original note, then a different situation arises. The judge in the exercise of his discretion would be entitled to refuse to allow a witness to refresh his memory from such an imperfect source of information." 22 In both of the cases I have cited, the later document was prepared by the maker of the original, contemporaneous notes. I do not see why, however, there should be any difference in principle where the later document is made by some other person, provided that the later document incorporates substantially the same information as appeared in the original contemporaneous notes. Factually, that was so in the present case. 23 Because the running sheet did in substance record the same information as was recorded by Detective Senior Constable Trench in his original note of what he saw in the registration form and because that note was made contemporaneously with his observation of what appeared in the registration form, it was appropriate to give the witness leave to use the running sheet to revive his memory of what he had seen in the registration form, notwithstanding that the running sheet was not a document made by the witness or found by the witness to be accurate when his observation was fresh in his memory. 24 In Hadid v Australis Media Limited (Judgment No 10, 1 November 1996, unreported), I refused to allow a witness to refresh his recollection from notes of a conversation made by another person. I held that, the notes not being within the ambit of s 32(2)(b), s 32 did not apply. On consideration, I think it would be wrong to hold, as a universal rule, that there is no scope for the operation of s 32 without answering to the considerations mentioned in para (b) of s 32(2). (I would mention that there was a second point in my judgment in Hadid - not presently relevant - which provided an alternative reason for what was ultimately decided there.) 25 In the present case, for the reasons I have given, I decided that oral evidence of the contents of the registration form could be given by Detective Senior Constable Trench, using the running sheet to revive his memory of what he had observed when he inspected it. 26 Thus, the contents of the registration form - itself admissible as a business record - could be proved by tendering the running sheet as a summary or extract pursuant to s 48(4)(a), and also by adducing oral evidence from Detective Senior Constable Trench pursuant to s 48(4)(b) utilising the running sheet to revive his memory of its contents. ********