Nick Dowse Refreshing Memory
Refreshing Memory – Structure of Answer
1. The general rule at CL is that the evidence a witness gives should come from his or her own
memory, and not simply be a rehash of another document.
2. The courts have recognised that for some witnesses, exact recollection is difficult due to the
nature of their job (ie a doctor in a very busy casualty ward, a police officer that issues hundreds
of speeding tickets etc).
3. Happens in three situations
a. Where witness wants to use document while giving evidence for the purpose of actually
reviving their memory
i. Before allowing the witness to refer to the document, the court’s leave must be
obtained (Van Beelen).
ii. Must be able to show 3 things to allow a witness to refresh their memory from a
document while on the stand:
1. Witness must need to refresh their memory
a. The witness must genuinely need to refer to a document in order to
refresh their memory.
b. This will be easily satisfied where a large amount of time has elapsed
between the event and the date the witness is giving evidence.
c. Eg: “The police officer would need to show that he had a need to
refresh his memory, for example, due to the time elapsed between the
car accident and the trial, or the number of driving incidents he had
been involved in as a police officer.”
2. Document made or verified by the witness and substantially accurate
a. The document to which reference is to be made must be one which
the witness either actually complied themselves, or verified for its
accuracy (Van Beelen).
i. Not enough to have been made “under the supervision” of the
witness, or merely to be “made in the presence of the witness,
or assented to by him” (Van Beelen per Sangster J @ 536).
b. The witness should be able to confirm that the document is an
accurate record the facts it contains.
c. If person who made document not available, may be able to use s 93B
QEA to make the notebook admissible (see Hearsay notes).
3. Document must have been made at a time sufficiently contemporaneous with
a. The facts must have been recorded in the document at time when they
were still “fresh in the witness’s memory” (Van Beelan).
i. The test is freshness of memory as a question of fact, not the
relationship in time (Van Beelen per Sangster J @ 538)
1. However, shorter times are easier to accept as fresher.
iii. If the above can be satisfied, the witness may proceed to refresh their memory from
iv. The document does not become evidence: the evidence given by the witness is still
their oral testimony (Pachonick)
1. This only applies where the witness regains an independent memory, simply
revived by the document.
2. If they have no independent memory of the facts apart from the document,
need to go to “tried to revive memory but failed” below!
v. However, the other side may “call for” the document and cross-examine the witness
on those parts of it which were used in order to refresh memory (Walker v Walker;
1. Whole document does not have to be admitted into evidence under the rule in
Page 1 of 3 Nick Dowse Refreshing Memory
Walker v Walker.
a. If go further than just using certain parts, the whole documen