Land and Environment Court New South Wales Medium Neutral Citation: Ku-ring-gai Council v John David Chia (No 7) [2018] NSWLEC 169 Hearing dates: 26 October 2018 Date of orders: 26 October 2018 Decision date: 30 October 2018 Jurisdiction: Class 5 Before: Robson J Decision: See [14] Catchwords: PRACTICE AND PROCEDURE – criminal law –application by prosecutor to refresh the memory of a witness pursuant to s 32 of the Evidence Act 1995 (NSW) – leave granted Legislation Cited: Evidence Act 1995 (NSW) s 32 Category: Procedural and other rulings Parties: Ku-ring-gai Council (Prosecutor) John David Chia (Defendant) Representation: Counsel: T Howard SC with N Hammond (Prosecutor) C Steirn SC with D Beaufils (Defendant) Solicitors: HWL Ebsworth Lawyers (Prosecutor) Dentons Australia Pty Ltd (Defendant) File Number(s): 2016/00293131 Judgment 1. On 26 October 2018, during the re-examination of prosecution witness James McKenzie, Mr Howard, senior counsel for the prosecutor, made an application under s 32 of the Evidence Act 1995 (NSW) ('Evidence Act') for leave to allow Mr McKenzie to use a document to refresh his memory. 2. I granted leave and deferred the giving of reasons. My short reasons follow. 3. Section 32 of the Evidence Act provides: 32 Attempts to revive memory in court (1) 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. (2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account: (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. (3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. (4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party. 1. In considering whether to grant leave, the Court must also have regard to s 192 of the Evidence Act which is in the following terms: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 1. The document to which Mr Howard wished to have the witness refer was part of a copy of the transcript of a recorded interview which the witness had undertaken in August 2016 with Phillip Myles, a private investigator retained by the prosecutor. The record of interview was used extensively by Mr Steirn, senior counsel for the defendant, during his cross-examination of the witness. 2. The matter about which the witness' memory was sought to be revived was the date upon which he commenced work for the defendant in late 2014. The prosecutor conceded that given the interview was conducted in 2016, the events were not then "fresh" in the witness' memory within the meaning of s 32(2)(b)(i) of the Evidence Act. 3. Mr Howard submitted that it was nonetheless appropriate that the Court give leave for the witness to have access to the record of interview given that Mr Steirn had extensively referred to the document during the witness' cross-examination on the basis that the events were fresher in the witness' mind at the time of the interview than they were now. 4. In relation to the s 192 discretionary factors, Mr Howard submitted that the grant of leave would not add unduly to the length of the hearing, that the Court would not consider there was any unfairness in the grant of leave, that the evidence was not critical but was of some materiality and that the present proceedings are, obviously, a criminal trial. 5. Mr Steirn objected to leave being granted and submitted that it was axiomatic that a defendant may lead a witness in cross-examination but that such an approach was not open to the prosecutor in re-examination. Moreover, he submitted that him to describe the record of interview as "fresher" than the witness' memory now was a legitimate forensic tactic that should not be used against him. 6. Mr Steirn's "most fundamental" objection was that the evidence of the date about which the prosecutor wished to refresh the witness' memory was an example of contamination because Mr Myles had earlier suggested in the interview that the meeting took place in early October. He submitted that in those circumstances to grant leave would be unfair to the defendant within the terms of s 192(2)(b). 7. Having regard to the factors in s 32(2), it was clear that the witness was unable to recollect the date of the meeting without recourse to the record of interview, however I accept that the events recounted in the document were not fresh in the witness' mind at the time it was prepared. 8. Nevertheless, I determined that it was appropriate to grant leave for the document to be shown to the witness on the basis that it would not add to the length of the trial, would not be unfair to any party and may provide information of some materiality to the case. 9. In respect of fairness, I did not consider that the answer was necessarily an example of information being fed to the witness by Mr Myles. Although Mr Myles suggested that the meeting was in early October, the witness provided a specific date, 4 October 2014, which was not put to him by Mr Myles. I accepted the submission of the prosecutor that, given the extensive use made of the record of interview by the defendant, it was fair and appropriate to grant leave to the prosecutor to rely upon it for the limited purpose sought. 10. Accordingly, I granted leave pursuant to s 32(1) for the document to be used for the limited purpose of refreshing the witness' memory as to the date of the meeting in respect of which he was being re-examined. ********** 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: 19 November 2018