The Crown has called Justin McLannen in its case. Mr McLannen is currently giving evidence. Principally, his evidence is relied upon by the Crown for the purpose of rebutting what is anticipated to be evidence of good character which will be adduced in the case of the accused McNamara.
Mr McLannen made a statement to the police on 16 January 2015 in which he detailed a meeting in early 2014 at which he, the accused and the deceased were in attendance. He alleges that in the course of that meeting, McNamara made a number of threats to him, in the context of inquiries which were then being undertaken by McNamara relating to the proceedings which had been brought against Chun Lok Lam and Chun Kit Lam.
It is worth noting that some of Mr McLannen's evidence appears to be independently corroborated by a document allegedly found on McNamara's computer at the time of his arrest.
In the course of giving evidence, the Crown sought leave for Mr McLannen to revive his memory in relation to two particular aspects of his statement. That application was opposed by Ms Shead, who appears on behalf of McNamara. The two areas in respect of which the Crown has made that application are paragraphs 21 and 24 of Mr McLannen's statement of 16 January 2015. Paragraph 21 is in the following terms:
"He asked me why I had that name and I didn't know that I did so I just told him it was the AFP's fuck up. He then went on to say something along the lines of 'Do you know what happens to rats that snitch? They end up hanging themselves, when you give them enough rope the guilt kills them'. He said, 'If they don't know what to do with the rope you may have to give them a hand'. I took what he said to mean that he would kill me if I gave a statement."
Paragraph 24 is in the following terms:
"I was shitting myself and agreed to what he said. He said to me, 'Do you know who I am?' I said 'No', he said, 'I am than ex-cop from Kings Cross, I was a bikie and I have seen things you could never imagine'. I just nodded my head and agreed with everything he was saying."
The Crown's application enlivens two particular sections of the Evidence Act 1995 (NSW) ("the Act"). The first is s. 32 which is in the following terms:
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.
The second is s. 192 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.
There is a dearth of authority as to the meaning of the term "fresh in his or her memory" as it appears in s. 32. In Graham v R [1998] HCA 61; (1998) 195 CLR 606, the High Court considered the phrase as it appears in s. 66 of the Act. The plurality (Gaudron, Gummow and Hayne JJ) made the following observations (at paragraph [4]):
"The word 'fresh' in its context in s. 66 means recent or immediate. It may also carry with it a connotation that describes the quality of the memory (as being not deteriorated or changed by lapse of time) but the core of the meaning intended is to describe the temporal relationship between the 'occurrence of the asserted fact' and the time of the making of the representation. 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, years."
Taken by itself, that passage may lend support to the Crown's position. However, subsequent to the decision in Graham the Parliament amended 66 of the Act by inserting s. 2A. The effect of that amendment was to overcome the restrictive interpretation which had been applied by the High Court in Graham to the interpretation of the phrase "fresh in the memory".
No corresponding amendment was made to the provisions of s. 32. In that regard the authors of Uniform Evidence in Australia (Lexis Nexis 2015) make the following observation (at p. 109):
"Under s. 32(2) the freshness of the event in the witness' memory when the events were recorded is just one of the matters that must be taken into account by the Court. Under s. 66(2) it is the only requirement. This difference in drafting together with the liberalisation of the freshness test in s. 66(2)A suggests the Court should not take a liberal approach in its consideration of whether the events were 'fresh' in s 32(2)(b)(i). Although there has been no amendment to s. 32 so as to bring it into line with s. 66(2)A, it is suggested that s. 66(2)A provides guidance to interpreting the freshness consideration in s. 32."
In making those observations, the authors make reference to a decision of Roth (a Pseudonym) v The Queen [2014] VSCA 242 where Neave and Priest JJA made the following observation (at [40]):
"Although it is unnecessary to decide the question we would have difficulty in accepting the argument that 'fresh in the memory' for the purposes of s. 32 of the Act should be read in the same manner as it was interpreted in Graham for the purposes of s. 66, which modifies the hearsay rule."
I am left to conclude, in these circumstances, that a generally liberal rather than a restrictive, approach is to be adopted in resolving the present question.
Adopting that approach, I turn to the provisions of s. 32(2). That section sets out considerations which, although not exhaustive, are mandatory in determining whether or not leave should be granted.
The first of those considerations is that contained in s. 32(2)(a). It requires that I take into account whether the witness will be able to recall the fact or opinion adequately without using a document, in this case his statement. I am satisfied in the circumstances Mr McLannen will not be able to recall those passages to which I have referred without reference to his statement.
The second consideration in s. 32(2)(b) has two separate components. The first is whether the document from which it is sought that the witness revive his memory is one that was written or made when the events recorded in it were fresh in his memory. In the course of giving evidence, and in answer to a leading question from the Crown, the witness agreed with the proposition the relevant events were fresh in his memory at the time his statement was made. There was no further question put to the witness as to why this was so. Indeed, there was no further question put to the witness so as to confirm that he understood the import of the phrase "fresh in his memory".
In my view, the submission of counsel for the accused that such an answer should be given very little weight is one which has considerable force. That is, in effect, the only direct evidence of the consideration set out in s. 32(2)(b)(i). It is not without significance that a period of 12 months elapsed between when the meeting took place and when Mr McClannen made his statement. That is an obviously significant period of time.
In all of the circumstances, I am not satisfied, that the relevant events were fresh in Mr McClannen's memory at the time that the statement was made. That tends against a grant of leave. The second consideration, set out in s. 32(2)(b)(ii), is whether the witness found the statement to be accurate. I infer from the fact that he signed the statement that he did so.
I have also had regard to the provisions of s. 192 and the considerations set out therein. Granting leave would not add unduly to the length of the trial, and I am not satisfied in all of the circumstances that if leave were granted it would operate in a way which was necessarily unfair to McNamara.
As far as the importance of the evidence is concerned, it is relevant to note, as I have already outlined, the evidence does not go to a "core issue" in the case. Rather, it is led by the Crown to rebut the anticipated evidence of good character which will be led in the case for the accused. This is a further factor which tends against a grant of leave.
In all of these circumstances, I do not propose to grant leave to allow the witness to refresh his memory from his statement.
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Decision last updated: 15 June 2016