Reviving Memory

Published by Geoff Harrison | 15 December 2024

Generally, in any court proceedings, a witness will not be able to refer to their statement or a document whilst giving evidence. An exception applies under s32 of the Evidence Act 1995 ('the Act'), where the court may grant leave for a witness to revive their memory from a document. In deciding whether to give leave or not, the court 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 proposed 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.

Other Sources:

• Evidence - The Use of Documents in Cross-Examination and Examination in Chief in Criminal Trials, Dina Yehia SC

Cases:

• Chiha v R [2024] NSWCCA 222

• R v Weaver (No 6) [2022] NSWSC 502 ("...at such a time")

• R v Jenkin (No 5) [2018] NSWSC 730

• R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105

• R v Woods; R v Hayes; R v McLachlan; R v Harding; R v Farnsworth [2023] NSWSC 1163

• R v Al Batat & Ors (No 15) [2020] NSWSC 1227

• R v Al Batat & Ors (No 20) [2020] NSWSC 1319

• R v L Cassar; R v E Sleiman (Judgment No 28) [1999] NSWSC 651

• Graham v R [1998] HCA 61 (fresh in memory)

• Stanoevski v R [2001] HCA 4 (re leave under s192(2))

  
  

Extracted Legislation:

EVIDENCE ACT 1995 - SECT 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.