32. Attempts to revive memory in court

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 evive 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.

Kaye J considered the operation of s 32(3) in the trial of DPP v Curran (Ruling No 2) [2011] VSC 250. While s 192 gives general direction as to the exercise of discretion, the section itself is silent on the considerations a court should consider in whether to grant leave to allow a witness to read their statement aloud. Without deciding, Kaye J appeared to apply a test similar to s 135, that of overall fairness to the accused.