18 In GAC the witness, in the course of cross examination, made a number of concessions favourable to the defence case. I approached this matter upon an assumption that Mark Chipperfield would remain resolute as to his memory deficit and, accordingly, that he would not be able to be tested nor would he make concessions to the cross examiner.
19 Unfair prejudice for the purpose of s 137 is concerned with whether there exists a danger that the jury will use the evidence "upon a basis logically unconnected with the issues in the case; R v Lockyer (1996) 89 A Crim R 457 per Hunt CJ at CL at 460. I did not consider that the difficulty Mr Spencer highlighted with respect to the cross examination of the witness constituted a danger of unfair prejudice such that I should exclude the evidence pursuant to s 137.
20 Mr Chipperfield was called in the presence of the jury and gave evidence consistent with that which he had given on the voir dire. The Crown Prosecutor sought leave to cross examine him pursuant to s 38(1). I had not made a ruling formally at the conclusion of the voir dire on the grant of leave since it seemed to me to be premature to do so. It remained possible (although perhaps unlikely in the light of the history of the matter) that the witness would give answers before the jury which differed from the tenor of his evidence on the voir dire. I indicated a provisional view that I would be disposed to grant leave pursuant to s 38(1) (a), (b) & (c) in the event that his evidence was in accord with that given on the voir dire. It was agreed that I might have recourse to the evidence given on the voir dire in determining any application for the grant of leave under s 38. In the presence of the jury Mark Chipperfield gave evidence that he had no recall of the events of the 18 November 1997 nor the following day. I granted leave to the Crown Prosecutor to cross examine him. In so doing I had regard to the considerations set out in s 192(2)(a) - (e) of the Act. In particular, I note that I did not consider that there was any unfairness to the witness in granting leave. The proceedings against him have been finalised. I did not consider that the grant of leave would work unfairness to the accused for the reasons I have referred to above. I have already noted the importance of the evidence in the proceedings. I also had regard to the nature of the proceedings namely that the accused is being tried upon an indictment charging him with murder.
21 I was quite satisfied that Mark Chipperfield was not making a genuine attempt in the course of his examination in chief to give evidence. I regarded his claim as to memory loss for the period of days surrounding the subject events to be unworthy of belief. It may not have been necessary to consider the grant of leave under s 38(1)(a) having regard to the view I had formed as to the witness's unfavourable attitude; see R v Lozano (unreported) NSWCCA, 10 June 1997. However, on any view I considered that his evidence was unfavourable in the way that term has been explained in R v Souleyman (1996) 40 NSWLR 712.
22 Mr Spencer submitted that the previous representations contained in the ERISP were not made when the occurrence of the asserted facts were fresh in the witness' memory within the meaning of s 66(2) of the Act. Detective Beck commenced his interview with the witness at 3.46pm on Wednesday 19 November 1997. The evidence suggests that the fatal assault on the deceased occurred at around 8.00am on Tuesday 18 November 1997. Thus the interview was made within 32 hours of the happening of the events. I consider that this does not fall outside the period of being "fresh in the memory" for the purpose of the section. I have regard to the observations of Gaudron, Gummow and Hayne JJ in Graham v The Queen [1988] HCA 61; 195 CLR 606 at 608 [4]:
"Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years".
23 Mr Spencer's challenge on the issue of "freshness" was directed more to the evidence as to the witness' state of drug induced intoxication than with contemporaneity. In the interview the witness gave an account of taking heroin on the previous day after the robbery of Mr Palin. There were features of his presentation during the interview consistent with a view that he was affected to some degree by the ingestion of drugs. A statement from Dr Moynham was tendered by the Crown going to this question. It is not clear to me that the determination of whether events are "fresh in the memory" for the purpose of s 66(2) invites consideration of the reliability of the witness' memory in the light of any evidence touching on drug ingestion or the like. However, it is not necessary for me to decide this question since I am of the view that the evidence does not disclose a basis for concern that in consequence of his consumption of drugs Mark Chipperfield's memory as to the events of 18 November was not "fresh" when he participated in the interview with Detective Beck.
24 I considered that the contents of the ERISP were admissible pursuant to s 66(2) of the Act. I was also of the view that it was open to the Crown to prove the contents of the statement pursuant to s 43 of the Act as a prior inconsistent statement the making of which had not been admitted by the witness. The credibility of the witness was an issue once he was called and denied recollection of the events of 18 November 1997. I considered that the proof of the previous representations made by the witness had substantial probative value within the meaning of s 103 of the Act.
25 Having regard to the circumstance that the edited ERISP would be available as evidence of the facts which Mark Chipperfield had intended to assert therein (either pursuant to s 66 or s 60) I was invited to reject it in the exercise of discretion under s 137. For the reasons I have set out above, in dealing with the application to exclude the evidence of the witness in its entirety, I did not consider that the probative value of the ERISP was outweighed by the danger of unfair prejudice to the accused and accordingly I admitted it.
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