34. Attempts to revive memory out of court

34. Attempts to revive memory out of court

(1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.

(2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.

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33. Evidence given by police officers

33. Evidence given by police officers

(1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.

(2) Evidence may not be so given unless-

(a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and

(b) the police officer signed the statement when it was made; and

(c) a copy of the statement had been given to the person charged or to the person's Australian legal practitioner or legal counsel a reasonable ime before the hearing of the evidence for the prosecution.

Note

Paragraph (c) differs from the Commonwealth Act and New South Wales Act.

(3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police
officer.

Section 33 is a provision that facilitates the giving of police evidence. It does not dispose of the issues raised in McKinney v R (1991) 171 CLR 468 about the inherent difficulties of challenging police evidence and the caution that much of it should be treated with, particularly admissions.

This provision will not assist with the admission of evidence which is not admissible either because of an exclusionaary rule or in the exercise of judicial discretion.

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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.

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