1Where the specific criteria in s 32(2) of the Evidence Act 1995 (NSW) — including whether the document was made when events were 'fresh in the memory' — are not satisfied, the court retains a residual discretion to grant leave under s 32(1) by reference to the non-exhaustive considerations in s 32(2) and the general leave factors in s 192(2).
2The amendment introducing s 66(2A) of the Evidence Act, which broadened the 'fresh in the memory' test for the hearsay exception, does not directly apply to s 32(2)(b)(i), but the authorities suggest s 32 should nonetheless be interpreted in a 'generally liberal rather than restrictive' manner.
3A grant of leave under s 32(1) to use a document to revive memory does not automatically entail leave under s 32(3) to read aloud from the document; where the witness scarcely remembers making the statement, fairness may preclude the latter.
Case Details
Citation[2018] NSWSC 730
CourtNSWSC
JurisdictionNew South Wales
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