R v Warwick (No.36) [2018] NSWSC 1264

Supreme Court New South Wales

Medium Neutral Citation: R v Warwick (No.36) [2018] NSWSC 1264 Hearing dates: 09 August 2018 Date of orders: 09 August 2018 Decision date: 09 August 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) The application by the Crown under s 32 of the Evidence Act 1995, to permit this witness to refresh his recollection from Questions 51 to 55 and the Answers given to those questions contained in MFI Z, is granted. (2) Direct that the evidence of the witness, as to his refreshed recollection, be taken by him reading aloud Questions and Answers 51 to 55. Catchwords: EVIDENCE – witness evidence – refreshing memory in court – police record of interview from interview with witness in 1985 – witness entitled to refresh his memory using the document – witness entitled to give his evidence by reading questions and answers contained in document aloud Legislation Cited: Evidence Act 1995 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown Leonard John Warwick (Accused) Representation: Counsel: K McKay / G Christofi (Crown) A R Conolly / E Ramsay (Accused)

Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused) File Number(s): 2015/222068 Publication restriction: Not Applicable

EX TEMPORE Judgment (T.1439) 1. Application has been made by the Crown, pursuant to s 32 of the Evidence Act 1995, for leave for the present witness, Mr Mark Gore, to use the document MFI Z to revive his memory about facts. MFI Z is a Record of Interview ("ROI") between Detective Senior Constable Brown and the witness, Mr Gore, at Liverpool Police Station on 11 August 1985. 2. The witness has given evidence that he recalls being interviewed by Police at a time shortly after the explosion of the bomb at Kingdom Hall, Casula on 21 July 1985. He has given evidence that at the time of that interview, which resulted in the document MFI Z, the facts, about which he spoke, and which are recorded in that document in Questions 51 to 55, were fresh in his memory. He has also said that the ROI accurately records what he said in the course of the interview. Indeed, Question 74 of the ROI says that it is a correct record of the conversation which was held that day. 3. Mr Gore has been asked to recall an observation of the physical appearance he made of the Accused at a time prior to the explosion of the bomb at the Kingdom Hall. He has said that he is not presently able to recall the date of that observation. Questions and Answers 51 to 55 in the ROI refer to the observation Mr Gore made of the Accused, the date of the observation and a reference to a particular day shift. Those questions are followed by further questions relating to that day shift. 4. The Accused opposes the grant of leave. He submits that such is the context of the ROI and the nature of events which were occurring at or around the time of the interview, with respect to interactions between the Police and the Accused, the Court would readily conclude that in August 1985, contrary to what the witness then told the Police, the date contained in the answer to Question 53 was suggested to the witness whether indirectly or directly by the Police. 5. It is further submitted that it will be demonstrated that the date the witness gave is erroneous and contrary to other evidence which is likely to be led. It is therefore submitted that, given its likely inaccuracy, it is inappropriate for the witness to be given leave to refresh his recollection. 6. In my view, a determination of this application requires careful attention to the provisions of s 32 of the Evidence Act. Whilst the Act does not limit the matters the Court may take into account in considering a grant of leave, it is essential for the Court to take into account first, whether the witness will be able to recall a fact or opinion adequately without using the document; secondly, whether the document was written or, in this case, contains answers made by the witness when the events recorded in it were fresh in his memory; and thirdly, whether the document was at such time found by the witness to be accurate. 7. In my view, each of these mandatory requirements is fulfilled. The relevant fact is the date, which is contained in answer to Question 53, but the preceding two questions and the succeeding two questions and answers provide an important context to that question and answer, given that Mr Gore is unable to recall the relevant date. 8. Having regard to the relatively short time period between when the event occurred and when the ROI was given, and having regard to the evidence of the witness, I am satisfied that the events the subject of the application, were fresh in his memory at the time of the ROI. 9. As well, I am satisfied, by reference to Question and Answer 74 of the ROI and the witness' evidence, that at the time he gave the statement he satisfied himself that the question and answer was accurate. 10. The Crown seeks, pursuant to s 32(3) of the Act, that the evidence that the witness be given the leave of the Court to give part of his evidence by reading aloud the Questions and Answers between 51 and 55. In my view, that is an appropriate way to proceed. 11. As to the other matters raised by the Accused in opposition to a grant of leave, accepting the way in which they were put by the Accused's lawyers does not lead me to the view that they would stand against allowing the witness to refresh his recollection. I accept that it may be that, by reference to other evidence, the witness' recollection of the date which he gave to Police in August 1985 may be demonstrated to be, or else concluded to be, erroneous. However, in my view that does not tell against the witness refreshing his recollection from the document. 12. It is a question of objective fact for ultimate conclusion whether the Court would accept this witness' recollection, but it seems to me that the matters raised do not impact upon the central provision of allowing the witness to refresh his recollection and then reading aloud those questions and answers. 13. The application by the Crown under s 32 of the Evidence Act to permit this witness to refresh his recollection from Question 51 to 55 and the Answers given to those questions contained in MFI Z is, accordingly, granted. 14. I direct that the evidence of the witness, as to his refreshed recollection, be taken by him reading aloud Questions and Answers 51 to 55. ******