R v Weaver

Supreme Court of NSW|2022-04-22|Before: Campbell J

jUDGMENT

On Friday, 22 April 2022, I refused the Crown leave for Yolanda Howlett, a central witness in the Crown case, to revive her memory about a fact from the answers to questions 659 to 668 recorded in the transcript of her second ERISP of 2 June 2020.
The accused, Scott Weaver, is standing trial for the murder of Larry White on 20 December 2019. The fact that the Crown wished to elicit was that before stabbing Ms Howlett in the abdomen, which occurred before Mr Weaver is alleged to have inflicted fatal stab wounds on Mr White, Mr Weaver said to Ms Howlett words to the effect, "I should knock you … because you've cheated on me". The Crown case is that that statement coupled with the wounding of Ms Howlett is strongly probative evidence of an aggressive state of mind on Mr Weaver's part immediately prior to him fatally confronting Mr White while armed with the murder weapon.
The transcript is unsigned and was not written or made by the witness. The Crown accordingly relied upon the provisions of subss 32(2)(a) and (b)(ii) of the Evidence Act 1995 (NSW) to make good the application for leave. I was satisfied from the course of her evidence that Ms Howlett would be unable to recall the relevant fact adequately without using the document for the purpose of subs 32(2)(a). The real question debated before me was whether the subs 32(2)(b) consideration had been satisfied.

Legislation

Section 32 of the Evidence Act is in the following terms: (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.
I bear in mind that the subs 32(2) considerations while mandatory are not of themselves determinative of the exercise of the s 32(1) discretion.

Summary of argument

In summary, the Crown argued that the expression "fresh in the memory" in subs 32(2)(b)(i) was not governed by the reasoning in Graham v the Queen (1998) 195 CLR 606; [1998] HCA 61 at [4]. In this regard reliance was placed upon the reasoning of the Victorian Court of Appeal in Roth (a Pseudonym) v R [2014] VSCA 242 at [40] - [42] ("Roth"), assuming that sub-paragraph (i) was applicable and secondly, in any event, that sub-paragraph (ii) is a relevant consideration. It was also argued that for the purpose of the sub-paragraph (ii) consideration the emphasis is on a document by whomsoever written or made found by the witness to be accurate without any requirement of contemporaneity whatsoever. For the second proposition reliance was placed upon R v Al Batat (No 15) [2020] NSWSC 1227 at [17] - [19], Hamill J; R v Qaumi (No 38) [2016] NSWSC 743 at [5] - [8], Hamill J; and R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105 at [11] - [12] and [17] - [18], Bellew J. The Crown also argued the s 192 factors favoured the grant of leave.
Mr Evers of Counsel, who appears for Mr Weaver, argues that the sub-paragraph (i) consideration conditioned upon the expression "fresh in the memory" remains governed by Graham v The Queen and requires a high degree of contemporaneity; and the same is true of the sub-paragraph (ii) consideration. Although sub-paragraph (ii) is capable of capturing a document prepared by another but found by the witness to be accurate, the expression between the commas "at such a time" is a reference back to the time referred to in sub-paragraph (i), that is to say, "when the events recorded in it were fresh in … her memory".
Moreover, Mr Evers argued that the s 192 factors did not favour the grant of leave. He also pointed out that when the 2 June interview was conducted, Ms Howlett was a co-accused who had also been charged with the murder of Mr White. The murder charge was later withdrawn, and she pleaded guilty before R.A. Hulme J to the lesser charge of being an accessory after the fact to Mr White's murder. She received a discount on her sentence in view of her undertaking to give evidence on the trial of Mr Weaver in accordance with the record of interview of 2 June 2020. He argued that this was a significant discretionary factor, which of itself, should lead to a refusal of leave.

Determination

I was satisfied that s 32(2)(b)(i) does not apply to the ERISP transcript of 2 June 2020. The transcript, as a document, was neither written nor made by Ms Howlett in any sense. In this regard Clause 6 of Part 2 of the Dictionary to the Evidence Act applies. The transcript was not written, made or otherwise produced by Ms Howlett nor did she "recognise" the relevant representation sought to be introduced by the Crown "by signing, initialling or otherwise marking the document".
As the parties properly put it the issue turns on s 32(2)(b)(ii). The first question relates to the meaning of the sub-paragraph. As I have said by the reference to the decisions I have cited, the Crown submitted that there was no relevant temporal connection required, let alone contemporaneity, between the witness finding the document to be accurate and the occurrence of the events recorded in it. I do not agree.
It is useful to set out the provision again: whether so much of the document as the witness proposes to use is, or is a copy of, a document that - … (ii) was, at such a time, found by the witness to be accurate. (My emphasis.) In my opinion, the phrase I have emphasised is a reference back to the only time referred to in the Section connoted by the preposition when in sub-paragraph (i). The grammatical sense of sub-paragraph (ii) is to be garnered, in my opinion, by amplifying the expression "at such time" by reference to the temporal connection in sub-paragraph (i) as follows: whether so much of the document as the witness proposes to use is, or is a copy of, a document that - … (ii) was, when the events recorded in it were fresh in his or her memory, found by the witness to be accurate. There is no evidence before me of when the transcript was created, and the only evidence from which an inference may be available that it was found by Ms Howlett to be accurate is her written undertaking to give evidence dated 19 March 2021 (part of Exhibit VD 2). That undertaking contains the warranty that the contents of the ERISP are "true" and no information has been withheld. That is some 15 months after the events recorded in the ERISP occurred.
As Bellew J observed in R v Rogerson, the question of whether events are fresh in the memory is to be decided by adopting "a generally liberal rather than a restrictive approach". I interpolate that at the factual level his Honour was not satisfied that the effluxion of a period of 12 months in that case meant that the relevant events were fresh in the witness's memory.
As I have already pointed out, Bellew J's adoption of the "liberal rather than … restrictive approach" was derived from the decision in Roth at [40]. In a joint judgment Neave and Priest JJA said: "Although it is unnecessary to decide the question, we would have difficulty in accepting the argument that "fresh in the memory" for the purpose 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." When recording counsel's submissions their Honours had set out the passage from Graham v The Queen and also referred to the legislative response to it by the enactment of s 66(2A) which reduced the element of relative contemporaneity to one only of three mandatory but not exclusive considerations including "the nature of the event concerned" and "the age and health of the [witness]".
It is interesting to note the facts in Roth were that the relevant document containing a statement which the complainant in a sexual abuse case had "found to be accurate" was made to police five years after the occurrence of the relevant events (at [27]). Their Honours found that the trial judge had made clear the need to take account of whether when the events recorded in the statement, they were fresh in the memory of the witness when considering the exercise of the discretion to grant leave under s 32. They were not persuaded that a case of fairly arguable error had been made.
The decision in Roth is essentially a refusal of leave to bring an appeal out of time. The relevant passage (at [40]) which I have set out is in its terms clearly obiter dictum. Nonetheless, from the content and length of the judgment, the adoption of the approach mandated for the purpose of s 66 to the interpretation of s 32 by a process of construction was clearly a position carefully considered by their Honours and accordingly falls into the category of "considered dicta" of an interstate intermediate appellate court concerning "uniform Legislation". Under the modern law of judicial precedent which applies to our federal and national judicial system, I am required to consider myself bound by their Honours considered dicta: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 at 492; C.A.L No 14 Pty Ltd (T/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 at [49] - [50].
Adopting Bellew J's "liberal approach", it must be observed that the expression "fresh in the memory" where it appears in the Evidence Act, and perhaps in contrast to the common law rules regarding refreshing memory, does not require even a relatively strict approach to contemporaneity. Even so, it is relevant to consider that although Ms Howlett's interview of 2 June 2020 (her second interview with police) was doubtless accurately recorded, that interview itself was conducted following an approach by Ms Howlett through her solicitor after she had her charge of an accessory after the fact upgraded to one of murder as a co-accused with Mr Weaver.
Moreover, the only evidence of her in any way finding the transcript of the interview to be accurate is in her undertaking to give evidence against Mr Weaver given for the purpose of her own proceedings on sentence for the charge of being an accessory after the fact to Mr White's murder, to which she pleaded guilty and, in my judgment, in respect of which she had the expectation of receiving a significant discount from the sentence that would otherwise be passed, which expectation was fully justified in the event. R.A. Hulme J allowed an additional discount of 15 percent, over and above the 25 percent discount for her plea of guilty when sentencing Ms Howlett.
Also, in my judgment, the note of the decision in R v Graham [1973] Crim LR 629 (Court of Appeal (Criminal Division) for England and Wales) is instructive so far as the exercise of the residual discretion conferred by s 32(1), informed as it is by s 192, Evidence Act is concerned. A store manager was convicted of theft over an event reported as a burglary. A salesman whom he had allegedly paid to keep quiet was called to give evidence by the prosecution. The relevant "apparent burglary" occurred on 2 November 1971 and the salesman made a statement on 29 November of the same year. His evidence was vague and he was permitted to refresh his memory from his police statement, although the judge gave a warning to the jury about the potential unreliability of evidence of an accomplice. The Court of Appeal held that the lapse of time from 2 to 29 November "was such as to leave a judge to hesitate before giving leave" (p. 69). This was, I infer, due to the somewhat strict requirement of contemporaneity attending the common law rule. More relevantly for present purposes, the Court expressed the view "that the cases must be rare when an accomplice, the testing of whose evidence was particularly important should be allowed to refresh his memory". The Court reiterated the view that being an accomplice, the witness ought not to have been permitted to refresh his memory from a statement "made so long after the events". Although the requirement for the evidence of an accomplice to be corroborated has been abolished in New South Wales by the provisions of s 164 of the Evidence Act, I consider their Lordships' observations to remain apposite to the general exercise of the discretion.
Both counsel addressed me on the effect of s 192 Evidence Act. Neither submitted that it was an independent source of the power to grant leave for Ms Howlett to refresh her memory, not requiring engagement with s 32(2). Granting leave would not be likely to affect the length of the trial (s 192(2)(a)). Nor would a grant of leave be unfair either to Ms Howlett or to the accused per se (s 192(b)). Although this is subject to what I have said about R v Graham, I regard the evidence of Mr Weaver's state of mind immediately prior to the confrontation with Mr White as not unimportant, but its absence hardly detracts significantly from the strength of the Crown case (s 192(2)(c)). Mr Weaver is standing trial for murder, and it is important that it be conducted according to law (s 192(2)(d)). No question of any need for an adjournment arises, although the jury will be given a warning in any event under s 165(2) about the potential unreliability of Ms Howlett's evidence.
It seems to me that none of the s 192 considerations adds substance to the question I have to decide. It is clear from the cases that the question of whether the mandatory requirement of "fresh in the memory" is fact-sensitive and depends upon all of the circumstances of the case. Given: Ms Howlett's status as an accomplice in relation to the accessorial charge and a co-accused on the murder charge when the second interview was conducted; and having regard to the real prospect of a material gain being obtained by her in sentencing proceedings for assisting the authorities by agreeing to the second interview and undertaking to give evidence against Mr Weaver, I was not satisfied that leave to permit her to refresh her memory should be granted.
For these reasons I refused the application.

Amendments 19 May 2022 - Publication restriction lifted at the end of trial 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: 19 May 2022

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