Supreme Court New South Wales Medium Neutral Citation: R v Warwick (No.39) [2018] NSWSC 1286 Hearing dates: 16 August 2018 Date of orders: 16 August 2018 Decision date: 16 August 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Dismiss the Notice of Motion filed in court on 16 August 2018 to strike out the evidence-in-chief of Mr Jesse Sheather. Catchwords: EVIDENCE – application by accused to strike out evidence-in-chief of a former police officer – Evidence Act 1995, s 33 not applicable – where it was asserted that witness refreshed his memory from documents without leave – Evidence Act 1995, s 32 not applicable – notice of motion dismissed 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.1731) 1. Application is made by Notice of Motion filed in Court this morning for an order that the entirety of the evidence-in-chief of Mr Jesse Sheather, a retired Detective Sergeant of the NSW Police, be struck out. In support of that Notice of Motion the Accused relies upon the affidavit of Ms Elizabeth Ramsay of 16 August 2018, to which was attached a statement of Mr Sheather dated 15 December 2015. Submissions 1. The submissions by the Accused in support of the Notice of Motion seem to rely upon the contention that Mr Sheather, in giving evidence of what he recalls seeing or doing on particular occasions, is only doing so as a consequence of having refreshed his recollection from documents which are, or else contain, previous representations which amount to hearsay evidence. As a result, it is submitted the evidence given by Mr Sheather is itself hearsay and thereby inadmissible. 2. The Accused also submitted that the Crown was obliged first to identify and lead evidence from Mr Sheather of what the state of his actual recollection was, whether he has previously had any defect of recollection which may have been refreshed and, if so, from what material, or else how, that recollection has been refreshed. It was further submitted that the Crown should lead evidence from Mr Sheather to clarify whether the content of his evidence is in truth a primary recollection, a refreshed recollection or evidence which has been reconstructed by him in some way. 3. As well as these oral submissions, the Accused has also put written submissions before the Court that the provisions of s 32 of the Evidence Act 1995, which address the refreshing of memory in Court, apply with the consequence that the Crown was obliged to obtain leave from the Court before adducing the evidence of Mr Sheather because he had refreshed his recollection. It is submitted that the evidence ought be struck out as leave was not applied for or granted, and should not be granted. 4. Finally, the Accused submitted in writing that s 33 of the Evidence Act applies because the witness, being a former police officer, is being led through his statement made in December 2015, as well as from other documents which do not fall within the provisions of s 33(2). It was accordingly advanced that those provisions do not permit Mr Sheather to have given evidence in the form in which he has, with the consequence that the Court should strike out the whole of his evidence to date. 5. The Crown opposed the relief sought, submitting that there was no merit to the application. The Crown noted that much of the evidence-in-chief had been given by Mr Sheather without the Accused raising any objection at all. Evidence Act, s 33 1. It is convenient to address these issues in the reverse order to which they were made. 2. Section 33 of the Evidence Act provides that a police officer may give evidence-in-chief for the prosecution by reading or being led through a written statement previously made by that police officer. 3. Subsection (3) provides that a reference to a "police officer" includes a reference to a person who at the time the relevant statement was made was a police officer. 4. The Accused submitted that s 33 of the Evidence Act applies not only where the witness is reading a previously made written statement or being asked leading questions by reference to a previously made written statement, but also to a circumstance where the Crown adduces the evidence of such a person by effectively following the contents of a statement, even if the Crown does not make a formal acknowledgment that that is what they are doing, and even where the questions are not leading in form. There are a number of difficulties with accepting this submission. 5. First, insofar as the evidence of Mr Sheather derives from the statement made in December 2015, it is clear that he was not then a police officer. That statement is therefore not a statement of a kind caught by the provisions of s 33 of the Evidence Act. Thus, the submission relying upon this provision is misguided. 6. Secondly, I do not think that the evidence-in-chief of Mr Sheather falls within s 33(1) of the Evidence Act. Mr Sheather did not give evidence by reading a written statement nor, within the meaning of that section, did he give evidence by being led through that written statement. Accordingly, s 33 is irrelevant to the evidence-in-chief which has been given by Mr Sheather. 7. Thirdly, I see no warrant in the text of s 33 of the Evidence Act, read in the context of the Evidence Act, to apply the provisions of s 33 to evidence being led from a former police officer which may be based on a previous statement, or else be led through the asking of questions which follow a similar order to that previous statement. 8. Section 33 was introduced into the Evidence Act to address a very specific issue, and that is that having regard to the role of a police officer and the ordinary course of the business in which they were engaged (involving making statements setting out the entirety of their evidence, and perhaps on a number of different matters from time to time), it will be appropriate to allow the police officer to read that statement through as constituting their evidence‑in‑chief where such a statement complies with the provisions of s 33, rather than requiring police officers to memorise the contents of their statement. That is not what is occurring here. 9. There is no basis for the order sought by reference to the ground argued with respect to s 33 of the Evidence Act. Evidence Act, s 32 1. The second ground argued related to s 32 of the Evidence Act. As earlier indicated, the argument appears to be that the evidence-in-chief of Mr Sheather is inadmissible in circumstances where Mr Sheather had no present independent memory of the contents of a past statement including a previous representation, or else no memory of what actually happened, and that he has refreshed his memory from a document shown to him by the Police or the Crown. That section provides that leave was required before Mr Sheather refreshed his memory, which was not applied for or granted. I reject this submission. 2. In the first place, s 32 is applicable by its terms to a witness who is in the course of giving evidence in Court. It does not apply to a person from whom a statement is being obtained in advance of giving evidence. Accordingly, it is a section which is limited to the process of the refreshing of memory whilst a witness is in Court. 3. The evidence-in-chief given by Mr Sheather did not, in my assessment of it, involve an attempt by the Crown to have the witness revive his memory in Court. The mere fact that a witness gives a description of the nature of a document when it is placed before him and is asked to identify whether he recognises that document is not a process which amounts to the adducing of evidence of a kind which falls within s 32. There has been no evidence given by this witness which involves a revival of his memory in Court during his evidence-in-chief. 4. In my view, s 32 therefore has no application. It is not a basis for making the order sought. Principal Submissions 1. The principal submission by the Accused seeks to place an obligation on the Crown on pain of inadmissibility of the evidence, when adducing evidence from a witness to events which occurred many years ago to first trace the course of the state of the witness' recollection prior to any question about the witness' current recollection being admissible. 2. To put that submission in context, the Accused submitted that by reference to Mr Sheather's 2015 statement, there are many parts of that statement where the witness gives what one might regard as a limited account of his then recollection, states that he has no further recollection about a specific matter and is then shown a document which is identified. He then in the statement recounts his recollection, so refreshed. 3. The Accused submitted that it is incumbent on the Crown when a witness is called to give evidence-in-chief to identify each of those matters, including whether the witness actually recollects something or whether the evidence that the witness is asked to give is a refreshed recollection, or perhaps one reconstructed by reference to extraneous facts. It is only then, as I understand the submission of the Accused and depending upon the existence of an actual recollection, that such evidence of the witness would be admissible. 4. An example which was demonstrative of this submission of the Accused can be identified in the evidence given on Wednesday, 15 August 2018 by Mr Sheather at pages 1688 and 1689 of the transcript. The witness had given evidence that he had attended at Northmead on the day an explosive device was found in a vehicle. He was then asked this question: "Can you tell us what happened that day in relation to your attendance?" 1. The witness then gave a lengthy answer responding to that question setting out what he saw and what he did on that day in significant detail. 2. By way of contrast, the Accused points to paragraphs 29 to 35 inclusive of the 2015 statement of Mr Sheather, and submits that a reading of the substance of those paragraphs in that statement indicates that Mr Sheather had no actual recollection of what he did. It was then submitted that, as a consequence, the evidence Mr Sheather has given here in this trial can only be the recitation of hearsay material contained in contemporaneous running sheets prepared by this witness from which he has refreshed his recollection. Discernment 1. First, I do not accept the conclusion for which the Accused contends, namely that the witness in fact had no recollection at all of these events. However, even if I was to conclude that in 2015 this witness had no recollection of a particular event and that he had refreshed his recollection from one or more documents which contained hearsay statements, that would not preclude the evidence being properly admitted as his evidence-in-chief. 2. The state of, or the integrity of, a witness' recollection may be a matter relevant to the weight of the evidence – that is, the weight to be given to the evidence in due course. That the evidence the product of a refreshed recollection rather than a product of the witness' actual recollection does not seem to me to affect, in any way, the admissibility of the evidence of the witness in the first place. Rather, it is a matter which is appropriate to be explored in cross‑examination if thought necessary as a matter which may, but not must, affect the weight of the evidence. 3. There may be many occasions where a witness gives in evidence the product of a refreshed recollection or memory where it simply does not matter whether the evidence comes from such a refreshed recollection or an original recollection. It may be that is because the witness gives evidence of facts which are not in dispute. In that case, whether or not a cross-examiner chose to explore how the witness had come to give his evidence would be of no consequence. That is because in this example the evidence is not in issue, and is to be accepted as correct. The cross‑examiner may well simply choose to deal with other parts of the evidence. 4. I give that example not to suggest what the cross-examiner in this trial should or should not do, but to indicate that the nature of the objection is not one which relates to the admissibility of evidence, but is one which relates to the way in which the evidence of a witness may be the subject of cross‑examination and ultimate submissions as to its weight. 5. I am unpersuaded by anything put on behalf of the Accused this morning that the order sought in the Notice of Motion ought be made. An Additional Note 1. I should add that in the course of the submissions it was made plain that although the application related to the evidence-in-chief of Mr Sheather which had already been given, the submissions were likely to have application to the further evidence-in-chief of Mr Sheather and would also have broader application to the evidence of a number of witnesses who are due to come before the Court. 2. The submissions on behalf of the Accused have been understood by me as being related not just to the evidence-in-chief of Mr Sheather which has already been given, but also to his future evidence. It is, in my view, unnecessary for the Accused's representatives to make similar objections to the evidence of each witness or to particular questions that are asked on the grounds which have been identified in the course of this Motion. If, of course, there are other bases for objections to evidence, then those objections will need to be taken and identified at the time. 3. In summary, I dismiss the Notice of Motion filed in Court on 16 August 2018 to strike out the evidence-in-chief of Mr Jesse Sheather. ****** Amendments 31 August 2018 - Addition of transcript reference. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2018