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Refreshing Memory

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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 the event 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 the document. 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; McGregor). 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
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