Attorney-General's Reference (No 3 of 1979)

Facts

A police officer had made notes of an interview at a time when the facts were still fresh in his memory. He was allowed to refresh his memory from those notes while giving evidence. The point referred to the court was whether that use was proper.

Issue

May an officer refresh his memory from notes made while the facts were fresh, though not written at the very moment of the event?

Held

Yes. Contemporaneity is a question of fact. Notes made while the memory is still fresh are in time. Six months is not.

Principle

The test is whether the events were fresh, not whether the pen was in the witness's hand as the event happened.

Why it matters

Cheng allows a fair copy made from original notes that have been lost, if the witness can speak to that. The original is produced if it exists.

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