Chapter 2 Div 3 Flashcards
In what circumstances may a witness in the witness box, refresh his or her memory from a document?
(a) By s 32(1), witness must not, in the course of giving evidence, refresh his or her memory from a document without leave.
i) In addition to s 192(2) factors (Stanoevski), s 32(2) provides that, in determining an application for such leave, the court may (without limitation) take into account:
(1) The witnesses ability to recall the fact or opinion without using the document; and
(2) Whether the document was written by the witness when the events recorded were “fresh in the memory”, or was, at such a time, found by the witness to be accurate.
ii) The question of whether the fact or opinion was “fresh in the memory” requires a flexible approach – see response by s 66(2A) to Graham which had said “freshness” is likely to mean “hours or days, not years”. No specific temporal limit: Singh
iii) Leave may be appropriate even where the precise terms of s 32(2)(b) are not met (R v Cassar and Sleiman).
iiii) If a document is used with leave, production may be required s 32(4).
(b) If the witness is a police officer, s 33 provide a procedure for the officer read from or be led through a previously written statement in certain circumstances.
Use, production or inspection of document under ss 32 or 34 does not render the documents automatically admissible, but will result in loss of client legal privilege (if applicable) under s 122(6).
Waiver of any part Div. 3 of Pt 2.1 by Court possible under s 190 with consent
When can a witness refresh her memory outside of box?
there are almost no limits on a witness using any document or thing to refresh his or memory out of court (s 34 implicitly allows this: Lindsay-Owen v Lake)
The documents and things so-used may be required to be produced to the party (s 34(1)).
Use, production or inspection of document under ss 32 or 34 does not render the documents automatically admissible, but will result in loss of client legal privilege (if applicable) under s 122(6).
Waiver of any part Div. 3 of Pt 2.1 by Court possible under s 190 with consent
In what circumstances can a police office read from or be led through a written statement previously made by the police officer?
(a) In criminal proceedings (defined), where a police officer (defined) is giving evidence in chief for the prosecution, the police officer may read or be led through a written statement previously made by the police officer (s 33(1)), provided:
i) The statement was made by the police officer at the time or soon after the occurrence of the events to which the statement refers,
ii) The police officer signed the statement when made, and
iii) A copy of the statement has been given to the person charged (or their legal representative) a reasonable time before the hearing of the evidence.
(b) Section 33 does not require the police officer to have exhausted their memory in order to give evidence by reading the statement and no leave is required (c.f. s 32).
(c) “Soon after” implies days rather than weeks (Orchard v Spooner)
(d) More broadly, a police officer acting as a witness may be able to revive his or her memory, and read from a statement under s 32(3), even where s 33 does not apply (e.g., civil proceedings or where giving evidence for the defendant).
(e) Under s 32, leave must be sought for the police officer to revive his or her memory using the statement, and the court will have regard to the matters in ss 32(2) and 192 (Stanoevski).
(f) Reading of the statement under either ss 32 or 33 will result in the loss of client legal privilege under s 122(6).
(g) Court may otherwise allow for police officer to read from statement by exercising general power to control the manner of giving evidence under ss 11 and 26.
Police officer at time statement made sufficient to use s 33: 33(3)
Can the court order someone to give evidence or produce docs without a subpoena?
Yes if they are present and compellable the Court may order it, with the effect of a subpoena: s 36
