Supreme Court New South Wales Medium Neutral Citation: R v Dillon (No 2) [2019] NSWSC 1536 Hearing dates: 30 September; 1, 8, 9, 10, 14 October 2019 Date of orders: 14 October 2019 Decision date: 14 October 2019 Jurisdiction: Common Law Before: Campbell J Decision: I am not satisfied that the statement of 12 October 2016 is a statement that the witness ought to be permitted access to in an attempt to revive his memory in court, and I refuse the leave sought. Catchwords: CRIMINAL PROCEDURE – Admissibility of evidence – whether to permit refreshing of memory with contemporaneous document – fresh in the memory – importance of witness – judicial function to ensure fairness in trial – refuse leave Legislation Cited: Evidence Act 1995 (NSW), ss, 32, 66, 192(2) ` Cases Cited: Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 Category: Procedural and other rulings Parties: Regina (Crown) Joshua Dillon (Accused) Representation: Counsel: Neil Adams (Crown) Luke Brasch (for the accused) Solicitors: Solicitor for Public Prosecution (Crown) Rivera Legal (Accused) File Number(s): 2016/217435 Judgment 1. Mr Abdul Abu-Mahmoud, the brother of the deceased, is giving evidence. This witness was present when his brother received the fatal stab wound. He has made three statements to the police during the course of the investigation. The first of which was made on 18 July 2016, the very day on which these events occurred, the second of which was made on 12 October 2016, just short of three months later, and that the third was made on 11 December 2017. 2. Mr Abdul Abu-Mahmoud has been asked a question about observations he made when he first arrived at the home of the accused, and it's clear to me that he has forgotten a matter that he relayed to police in his statement of 12 October, notwithstanding the consideration that he has both statements with him, and I would infer was at some stage invited to read them in preparation for giving evidence. 3. The matter is identification evidence, and does not appear in the first statement of 18 July 2016 but appears in the second statement of 12 October. The passages in paragraph 7 of that statement, and the final three sentences, which are in the following terms: As I drove past (number 5 Anderson Avenue) I saw another black car parked in front of the white ute. I saw two people, a male and a female, on the front balcony. The male was wearing a fluro yellow work shirt, and they entered the front door of the house. 1. The Crown has applied for leave permitting the witness to use the statement of 12 October 2016 in an attempt to revive his memory under s 32 of the Evidence Act 1995. Mr Brasch has objected. Subsection (2) of s 32 is in the following terms: Without limiting the matters that the Court may take into account of 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, (b) whether so much of the document as the witness proposes to use is, or was 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 time, found by the witness to be accurate. 1. The submissions of counsel before me have centred on that second mandatory consideration, whether the events recorded in the statement of 12 October 2016 were fresh in the witness's memory, and reference has been made to the provisions of s 66 of the Evidence Act 1995 (NSW) which contained the same expression, "fresh in the memory". 2. The High Court of Australia considered the expression, "fresh in the memory" in the context of s 66. In Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61, in that case their Honours held that the expression referred to a state of relative contemporaneity best summed up in the expression, hours or days rather than weeks or months. The Parliament subsequently when the Evidence Act was reviewed amended s 66 but not s 32 to abrogate the effect of the High Court's decision by inserting subsection (2A) in s 66. This made clear that the requirement was not necessarily one of strict contemporaneity, and that a range of factors were relevant to the decision, whether an asserted fact was fresh in a witness' memory, of which the lapse of time between the occurrence of the asserted fact and the making of the representation was only one. 3. The ability of a court to permit a person to refresh memory from a contemporaneous document was a feature of the law of evidence prior to the enactment of the 1995 Evidence Act, and a reasonable degree of contemporaneity was always a condition of the permission of the Court to permit the document to be used. Under the present s 32, the concept of contemporaneity is not a condition of admissibility, rather it is a factor, and a mandatory factor which the Court is required to take into account in deciding whether to grant leave for the use of the document to refresh the witness' memory. 4. I am of the view that it is significant that the Parliament did not seek to expand the concept of "fresh in the memory" for the purpose of s 32 when it moved to amend s 66, and that the expression "fresh in the memory" has the meaning ascribed to it by the High Court of Australia in Graham v The Queen, as I say, for the purpose of s 32. 5. Manifestly the statement of 12 October 2016 does not fit that definition. 6. Even were I wrong about that, there is another matter of some concern about whether when the statement of 12 October 2016 was made, the events contained in that document, which really operate by way of significant amplification of the account given on 18 July 2016, were fresh in Mr Abdul Abu-Mahmoud's memory, and the concern I have in relation to that matter is the statement of 11 December 2017. At para 4 and 5 of that statement the witness said this: Sometime at the beginning of October 2016 my father and I attended the front of 5 Anderson Avenue Panania to visualise the scene to get a correct understanding of how the incident took place. My father and I stood on the front yard, and I went through everything and did a form of a re-enactment to try and get it correct in my mind of how it happened, and where people were standing before completing my second statement. While we were doing this re-enactment my father did not influence me in any way. All my recollections and memories in relation to what happened were my own, and no way was I assisted by my father or any other person. 1. It seems to me, even if one took an expanded view of the meaning of "fresh in the memory", that detail of how he came to make the second statement rather suggests that he went through a process of re-enactment and reconstruction in order to equip himself to provide that significant amplification in the statement of 12 October 2016. That evidence indicates to me that if that process was necessary, notwithstanding the dramatic nature of the events with which this trial is concerned, they were not as at 12 October fresh in his memory. 2. Returning to the terms of s 32. As I've said, the 12 October statement is certainly not contemporaneous, and is not fresh in the memory in the interpretation as I understand still should be given to that expression in the context of s 32. It seems to me that the witness will not be able to recall the concluding passages of paragraph 7 unless he's given the opportunity to refresh his memory. I appreciate that that evidence may be important evidence, providing as it does some measure of identification of the accused, however, as Mr Brasch reminded me, when determining whether to grant leave under s 32 I am not required but directed to have regard to the matters in s 192(2). 3. Looking at those matters, it seems to me the process of reviving memory would not extend the trial, but it could possibly be unfair to the accused. Mr Brasch has submitted with some force that clearly Mr Abdul Abu-Mahmoud is an important, indeed central witness in the prosecution case, and the content of his evidence is very much in issue. The defence case may depend upon demonstrating that his recollection is, at the very least, unreliable, and that the jury should be given the opportunity to make their own assessment of that in the usual way; and that's a factor which favours refusing the leave sought. 4. For the same reasons, the evidence may be important, and given its centrality, and that I suppose favours the Crown, however, only to bear in mind that I am conducting a criminal trial with a jury for the most serious offence of murder, and stakes in the matter are extremely high, and it is my function as the trial judge to ensure the fairness of the trial. It would seem to me that the choices I am facing are either to permit or refuse the Crown's application, and that there is no other procedure that could be adopted or followed which might get around, as it were, the problem. 5. I am not satisfied that the statement of 12 October 2016 is a statement that the witness ought to be permitted access to in an attempt to revive his memory in court, and I refuse the leave sought. ********** 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: 06 November 2019