This is part 5 of the serialisation of my evidence paper. The previous posts are here.
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‘One reason why the solicitor might not be able to give evidence in the orthodox manner is that he could no longer remember the conversation which might have been a decade earlier. In theory, under the common law, he could not give evidence of it, and the file note would be hearsay if used to prove that what it recorded having been said was in fact said: it would be analogous with the note of the DVD’s serial number in the third example of hearsay in the notes to s. 59.
In practice, a blind eye has been turned to witnesses giving evidence of things they can no longer remember, by reference to their contemporaneous notes and papers, either before court or in the witness box, and the Evidence Act, 2008 dispenses with the pretence: sections 32 and 34 are headed ‘Attempts to revive memory …’, in contrast to the old language of ‘refreshment’. So the solicitor could give the evidence from the witness box, or in his affidavit, after having attempted to revive his memory by reading the file note. The solicitor could in fact, with the court’s leave, read out the contents of the file note, and if necessary provide interwoven testimonial explanation: s. 32(3). In either case the client could call for its production: ss. 32(3) and 34(1), even if privileged,[1] without fear that the solicitor could compel its tender as a result: s. 35.
[1] Grundy v Lewis [1998] FCA 1537; Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26; see also my blog here.
