Itâs easier to forget than to remember. If a witness has forgotten things it is permissible, sometimes, for the witness to check a written record of what has been forgotten. The most common occasion of this is when a police officer refreshes his/her memory from his/her notebook. This is permissible only if the written record is a record made contemporaneous with the events in respect of which the evidence is being given.
As Marcel Proust observed, memory is elusive. Sometimes the reading of the contemporaneous note is used simply to flesh out the recollection of the events recollected and recorded. This is termed âpresent recollection revivedâ?. Sometimes nothing is recollected but the record remains; it is in the handwriting of the witness, say. This can be referred to by the witness. The witness affirms his/her belief in the accuracy of the record and the court receives the record. This is called âpast recollection recordedâ?.
In D.P.P. v. Cliffford [2002] IEHC 81 (22 July 2002) the High Court addressed the issue of a witness referring to a notebook while giving evidence. The District Court judge had dismissed the charge against the accused because the Garda witness had been consulting his notebook while giving evidence. The judge took the view that the Garda should have requested permission of him, the judge, before doing this. In effect the judge excluded the evidence of the Garda because of this. The High Court found that this was wrong in law and effectively remitted the prosecution back to the District Court for hearing.