EVIDENCE - evidence of admission in WeChat exchange - evidence admissible against one of six accused - application to refresh memory from statement - where statement made 27 months after “chat” - impressionistic recall of conversation - relevant considerations - leave to put document in hands of witness refused
EVIDENCE - words and phrases - “fresh in the memory” - statutory construction - whether phrase should be construed wherever it appears in statute - where one section amended to define phrase - where section under consideration not amended
Quick Take
1Where the phrase 'fresh in the memory' in s 66 of the Evidence Act 1995 (NSW) has been amended to broaden its meaning but the same phrase in s 32 has not been similarly amended, the two provisions should not be construed consistently; the unamended s 32 retains the stricter temporal requirement.
2A police statement recording an 'impressionistic' recall of a messaging conversation made 27 months after the exchange is not a document made when events were fresh in the witness's memory for the purposes of s 32, and permitting its use in the witness box is unlikely to genuinely revive a true and accurate memory of the original communication.
3In a multi-accused trial, the risk of unfairness to co-accused against whom evidence is inadmissible is a relevant consideration under s 192 when determining whether to grant leave under s 32.
Case Details
Citation[2020] NSWSC 1227
CourtNSWSC
JurisdictionNew South Wales
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