Section 33 of the Evidence Act 2008 allows police officers to give evidence by reading or being led through a previous written statement, subject to certain conditions.

I know the police were generally pretty keen on this provision: it meant the end of rote-learning statements before court cases, and provided a real incentive to take detailed and contemporaneous notes. (I’ve mentioned before that the Courts encourage police to go beyond mere pen and paper and jump into the 21st century with portable recording devices.)

Section 33 provides that police may give evidence by reading their statement. Can they just launch into reading from their statements, or do they need the tribunal’s okay first?

Odgers points out that ALRC38 (the report that resulted in the Evidence Act 1995 in NSW and the Commonwealth, which in turn is the predecessor of Victoria’s Evidence Act 2008) didn’t propose s 33. (It doesn’t get a mention in ALRC102 either.)

Instead, the provision came from s 418 of the Crimes Act 1900 (NSW). That section was considered in Orchard v Spooner (1992) 28 NSWLR 114; (1992) 62 A Crim R 184, cited by Odgers in his text. That case deals mainly with the contemporaneity requirements of the provision, but provides some insight into its purpose.

On 14 November 1990, when introducing the Bill which led to s 418 of the Crimes Act being constituted in its present form, the Attorney-General of the day said (Hansard, 14 November 1990 at 9660):

“…Mr Speaker, you know only too well the farce of an officer exhausting his memory, referring to the statement, giving more evidence, exhausting his memory again, and again referring to the statement. It is beyond intellectual capacity to tolerate that. Police are permitted to refer to their statements to refresh their memories. They must continue to give their evidence with further reference to the statement until their memories are again exhausted. This procedure cannot be permitted to continue. It is defective for two main reasons.

The first is that police must spend time memorising their statements word for word. I remember one case in which a policeman told me he had spent several weeks of his own time and several weeks of departmental time memorising a 40-page statement, and was in the witness box for only 20 minutes. In many cases a contemporaneously prepared statement is more accurate than a police officer’s memory, unassisted by any written document and possibly clouded by time and intervening events.

The second defect in the current situation is that during evidence in chief the impression gained by a jury is that the police have an actual independent recollection of what happened. The jury should be made aware of the truth; that is, that the police officer recorded what was said at the time and has used that written record to give evidence. The Bill therefore provides that police called for the prosecution may give their evidence by being led through or reading from a statement prepared at the time of or soon after the events to which the statement relates. In jury cases a trial judge may then give a direction as to the reason police give their evidence in a different manner from the way in which other witnesses give theirs. I expect that in many cases the statement would merely be tendered and the officer would not be taken through it.”

Ex facie, the procedural reform encapsulated in s 418 is a useful one. By allowing police officers to read statements, the farce enacted by an officer attempting to remember a statement off by heart is a matter with which our system of justice can well do without: Orchard v Spooner at 116 – 117.

The point about accurate recollection was considered by Victoria’s Full Court in R v Baffigo [1957] VR 303. Pietro Baffigo appealed his conviction at General Sessions (what is now the County Court) because a former police officer was allowed to refresh his memory from his contemporaneous notes.

Smith J said at 304:

The witness here who was allowed to refresh his memory, had, as I follow the position, sworn during the course of the evidence that he gave without the aid of the document, first that he could not be sure of the precise phrasing used, and secondly that as to quite a number of the particular questions that he referred to, he could not recall what was said. He could recall the question but not the answer, or there was some particular part of the answer that he could not recall. And lastly, at the end of the part of the evidence given without the aid of the document, he said that he remembered that there was more said, but he could not remember what it was. Whatever may be the position in other circumstances, it appears to me to be plain that in those circumstances it was proper to allow the witness to refresh his recollection by looking at his notes of the whole of the interrogation that he was attempting to narrate, and the objection that he should have been confined to the particular parts of the notes which bore directly on specific matters that he had forgotten, does not appear to me to be sustainable.

Cross on Evidence at [17170] discusses the importance of orality in Australian trials — courts hearing witnesses give oral evidence — which gives courts the opportunity to assess those witnesses’ credibility and reliability.

When police merely memorise their statements and give a psittacine recitation of their evidence, the court is really just hearing a human dictation machine and might just as well read the document itself.

The only case I can find directly on s 33 seems to recognise this. In Chisari v The Queen (No 2) [2006] NSWCCA 352 the Court said:

[28] It is apparent that the provision exists to recognize the reality that police officers frequently are required to testify long after events have occurred and that in the intervening period they may be likely to have been involved in a multiplicity of incidents about which they may also be required at some future time to testify. A practice of reciting statements which have been learned by heart — a recognized past practice — represented more a test of recall of the recitation than a recall of events and s 33 provides a transparent practice of evidencing matters which would be fresh in the memory at the time of making the statement.

[29] It is relatively infrequent that the police officer would be speaking of matters which concerned that officer so directly as a victim although, as Mr Dawe QC for the Crown in the appeal observed, there are no doubt other such cases when, for example, officers are the victims of assault or resisting arrest, the situation would be similar.

[30] The provision vests a discretion and his Honour exercised it by declining to permit the reading of the statement. He indicated a preference that the constable be led through the statement, subject to the exclusions which he had ruled on an individual basis and it was observed that much of the evidence was in fact adduced by non leading questions. There is nothing to support a conclusion that the appellant was treated with any unfairness in this regard.

But that case muddies the water because it suggests that section 33 is a discretionary provision and a judge or magistrate might refuse permission for a police officer to read or be led through their statement.

In Uniform Evidence Law, John Anderson and Peter Bayne state there is no leave requirement under s 33 — but don’t cite any authority to support their statement.

But I think they’re probably right. The leave provision in s 192 certainly applies to s 32, about witnesses generally referring to documents in court to revive their memory.

But s 33 starts off with the qualifier Despite section 32…, and does not refer to a leave requirement. The principal of statutory interpretation expressio unius est exclusio alterius — express reference to one matter indicates other matters are excluded — adds weight to the argument that s 33 is not subject to the leave requirement.

I think that means the police can just launch in to reading their statements — if they so desire. But the risk they might run is criticism of the type raised in McKinney v The Queen (1991) 171 CLR 468; [1991] HCA 6 and R v Williams [2001] 1 Qd R 212; [1999] QCA 324 (see my post here). And that in turn might leave them open to suggestions of unreliability under s 165. Alternatively, it might be suggested that if they need to read all of their statement it’s because they have no memory of the incident — in which case they can’t dispute anything outside the scope of those notes.

My experience is most prosecutors encourage police officers to recall as much as they can, and turn to s 33 only for significant parts of evidence or those where accuracy is critical — such as conversation with an accused person. (Though that might also be covered by s 139 and perhaps s 86.)

What are your thoughts and experiences?