Report No. 69

Chapter 90

Refreshing the Memory of witness

Section 159

90.1. Introductory.-

In order that the knowledge of a witness may be available to the Court in its search for truth, the use of aids to memory is permitted by the law and, in certain cases, the use of previous memoranda is also allowed, in substitution for memory, under certain conditions. A witness may be honest and willing to speak the truth, and may claim personal knowledge of facts, and yet he may have no adequate present recollection of facts. Hence the need for such provision.

90.2. An important aid to exactness would be neglected if, human memory and inaccuracy being what they are a witness cannot be at liberty to justify his recollection to facts by reference to written memoranda concerning him1. In the interests of truth, it would be desirable, as was pointed out by Field J.,2 to recognise the full benefit of the recollection of the witness as to the whole of the facts. Writing is a more reliable means of preserving the truth than simple memory. It is on these assumptions that witnesses are permitted to refresh their memory by referring to certain writings, under specified circumstances. This procedure is, of course, subject to certain safeguards-in particular, the right to cross-examine the witness on the document so used and the requirement of the production of the document in court for the purpose.

1. Cunningham Evidence, p. 377, cited by Woodroffe.

2. Jhubbo, 1882 ILR 8 Cal 742 (744, 745).

90.3. Scheme of section 159.-

We begin with section 159. Section 159 deals with refreshing the memory of a witness. The section can be divided into two principal divisions, namely, the portion dealing with witnesses in general and the portion dealing with experts. In regard to witnesses in general, the first three paragraphs alongwith the proviso are relevant, while experts are dealt with in the fourth paragraph.

90.4. Under the first part of the section, a witness under examination may refresh his memory by reference to three kinds of "writings", namely-

(a) any writing made by the witness himself at the time of the transaction concerning which he is questioned or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory;

(b) such writing made by any other person and read by the witness within the period aforesaid-in this case, the condition is that when he read it, he knew it to be correct;

(c) a copy of such document, with the permission of the court-in this case, the condition is that the court should be satisfied that there is sufficient reason for non-production of the original.

Under the second part, an expert may refresh his memory by reference to professional treatises.

90.5. Sections 159 and 160.-

This is the scheme of section 159. There is also a provision in section 160, for the use of a memorandum, where the witness has no present recollection. The two sections deal with two different situations, though the difference may be rather subtle.

90.6. Strictly speaking, in the case under section 159, the document is resorted to in order "to revive a faded memory"1, and the witness swears from the actual recollection of the facts which the document evokes. In the situation in section 160, memory is not revived. Section 159 deals with the present recollection, while section 160 deals with the past recollection. "In section 159, it is not the memorandum that is the evidence, but the recollection of the witness." On the other hand, in the case of a writing admissible under section 160, the witness has no specific recollection at the time when he gives evidence, but he guarantees as correct the fact recorded in the writing. The witness, after referring to the writing under section 160, swears as to the fact, not because he remembers the fact, but because of his confidence in the correctness of his record2.

1. Goodeve Evidence, p. 209 (213) cited by Woodroffe.

2. Abdul Salim v. Emperor, MR 1922 Cal 107.

90.6A. Question of hearsay.-

Since the writing referred to under sections 159-160 would usually be an extra judicial statement, an interesting debate seems to have taken place in the U.S.A. on the question whether the situation where a previous statement or memorandum is used as "past recollection recorded" is or is not an exception to the rule against hearsay. Professor Morgan1 is of the opinion that at least in the situation where the witness has no independent recollection, theoretically, the rule against hearsay is violated-though he does not question the wisdom of the exception.

"How can his prior identical unworn declaration be of equal probative value with his present sworn and examined testimony?" Posing this query, Professor Morgan points out that if the memorandum is received as evidence of the unremembered matter contained in it, it cannot be on the ground of refreshment of recollection. "If accepted at all, it must be as a substitute for present memory. This means, in short, the reception in evidence of an extra judicial statement as probative of the matter asserted in it. If this is not hearsay, it comes perilously close to it."

On the other hand, Judge Lockwood is of the view that the objection on the score of hearsay is without foundation. "The recorded memory of the witness is thus as much a statement of that witness as to what he personally saw or heard as is his present independent recollection of the same fact2". Since the person who witnessed the event testifies to the accuracy of the memorandum as made, that memorandum is just as much direct and not hearsay evidence as the language of the witness when he testifies to his independent recollection of what he saw. So much as regards the theoretical aspects of the section; we now turn to some of the salient features of the section.

1. Morgan Relation between Hearsay and Preserved Memory, (1927) 40 Harvard Law Review 709, 717, 718.

2. Kinsey v. State, (1937) 49 Arizona 201 (Supreme Court of Arizona).

90.7. Contemporaneity.-

It is a condition precedent to the use of a record under section 159 that it must be contemporaneous. This is also the English law. Some of the cases cited by Cross1 may be mentioned. In Jones v. Stroud, (1825) 2 C&P 196, it was held that a witness could not refresh his memory from a copy made six months after the original was brought into existence; but in Burrough v. Martin, (1809) 2 Camp 112; R. v. Langton, (1876) 2 QBD 296, a witness was allowed to refresh his memory with regard to a voyage by reference to the ship's log book, the entries in which were compiled after the events to which they related.

In R. v. Simmonds, (1967) 51 Cr App Rep 316 (329), notes made by customs officers at the first convenient opportunity after returning to their office from lengthy interviews were held to comply with the condition of contemporaneity, and the officers were permitted to read them to the court. It was said to be a course constantly adopted by police officers giving evidence of a long interview or series of interviews with suspects; "our courts are not slaves to orality".2

Thus, it is not possible to lay down any mathematically precise rule as to how nearly contemporaneous with the fact recorded the memorandum must be. The writing may have been made either by the witness himself, or by others, provided in the latter case that it was read by him when the facts were fresh in his memory and he knew the statement to be correct.3

1. Cross Evidence, (1974), p. 201.

2. Cross Evidence, (1974), p. 203.

3. R.V. Mills, R.v. Rose, (1962) 3 All ER 288 (301).

90.8. Papers or books that may be referred to for refreshing.-

Thus, a solicitor may refer to his diary1, or an ordinary witness may refer to a newspaper report read by him when the facts were fresh in his mind.2 An official shorthand writer may refer to his notes at trial, even though copies of these may be privileged from production to a non-party who has sub-poenaed him.3 And a workman's time-book may be used to refresh the memory of the cashier, who read it every fortnight, when paving the wages in accordance therewith.4 A log-book kept by the mate of the ship and inspected by the captain a week afterwards, may be used to refresh the memory of either.5

So, depositions taken before a Magistrate or Coroner may be referred to at the trial, either by the witness who signed,'6 or by the clerk who wrote them.7 A person who gives information about records which it was his duty to keep may look at them to refresh his memory as to whether on a certain day they were kept accurately, but in general, if the witness knew the fact only from his document, record etc., the original document, record etc. must be put in the evidence, and properly proved by other means.8

1. R. v. Mills, R. v. Rose, (1962) 3 All ER 288 (301). 7 R. v. Dexter, 19 Cox 360; R. v. Bass, (1953) 1 QB 680.

2. Dyer v. Best, 4 H&C 189.

3. James v. James, ex rel 21st May, 1919, per Roche, J.

4. R. v. Langton, 2 QBD 296.

5. Anderson v. Whallay, 3 C&K 54; Burrough v. Martin, 2 Camp 112.

6. R. v. Williams, 6 Cox 343; Wood v. Cooper, 1 C&K 645.

7. R. v. Mann, 49 JP 743.

8. Deo v. Perkins, (1790) 3 TR 749.

90.9. Inadmissible documents.-

Since the writing used for refreshing the memory is only an aid, technical objection to its admissibility becomes immaterial. It seems to be settled in England that a writing which is not legally admissible for want of stamp or registration can still be used for refreshing the recollection, the assumption being that what is evidence is still the oral evidence of the witness, and not the writing. On the same principle, a document rejected by reason of a rule of procedure-for example, Order 13. Rule 2 of the Code of Civil Procedure, 1908-can still be used under section 159.1

1. Jiwanlal v. Neelmani, AIR 1928 PC 80.

90.10. Inadmissible documents.-

This is illustrated by an English case.1 In an action for money lent, an insufficiently stamped promissory-note purporting to be signed by the defendant and expressed to be given for the money lent was put into the hands of the defendant by counsel for the plaintiff, for the purpose of refreshing his memory and obtaining from him an admission of the loan. It was held that the plaintiffs were entitled to use the note for that purpose, notwithstanding the provision of the Stamp Act that an instrument not duly stamped "shall not be given in evidence or be available for any purpose whatever". It would, therefore, appear that in order to be useful for the purpose of refreshing the memory, a document need not be admissible as independent evidence.

1. Birchalul v. Bullough, (1896) 1 QB 325.

90.11. No compulsion.-

Refreshing the memory is not mandatory on the part of a witness. If a witness refuses to refresh his memory, he cannot be compelled to do so-although such refusal may sometimes give rise to an adverse inference. In Jhaku Mahton,1 it was observed that "the Sessions Judge was not bound to compel the witness to look at the so-called diary in order to refresh his memory".

1. Jhaku Mahton, ILR 8 Cal 793.

90.12. Position in U.S.A.-

The subjects dealt with in sections 159-160 have received detailed attention in the United States. We have already deferred1 to the discussion in that country as falling under the doctrine of "present recollection revived" (section 159), or the doctrine of "past recollection recorded" (section 160). The latter doctrine comes into play when a witness is unable to sufficiently remember the circumstances of an event, which circumstances are described in a written statement. The former doctrine permits the witness to refer to the writing for the purpose of refreshing his recollection.

1. Para. 90.6, supra.

90.13. Loss of memory.-

It may be noted that a case of complete loss of memory is outside sections 159-160. English courts have not1 had to deal with the problem of the amnesiac or near amnesiac witness. But we may refer to a British Coumbian case-R. v. Pitt, (1968) 68 DLR (2d) 513; Cross Evidence, (1974), p. 202. The accused was charged with attempt to murder her husband. The Accused was suffering from functional amnesia and said in court that she could remember title of what happened.

Her counsel then applied for leave to have her hypnotised in court, a hypnotist having given evidence that her memory might be refreshed by an hypnotic trance. The application was granted, the accused giving her evidence after she had emerged from the trance. The decision was partly based on the analogy of refreshment of memory, but reference was also made to the unfairness of not allowing the accused the benefit of the latest medical techniques.

1. Cross Evidence, (1794), p. 202.

90.14. Recommendation.-

While the above discussion does not necessitate any changes of substance in the section, certain points of drafting should be mentioned. For the sake of facility of reading, it is, in our view, desirable to re-structure section 159 by dealing, in one sub-section, with witnesses, and in another sub-section, with experts. Incidentally, it has been held1 that the word "writing" in the section includes also printed matter. It appears to be desirable to replace that word by "document"-an expression which is already used in the section in regard to copies and is wider than "writing". That expression will cover, for example, photographs.2

As regards experts, it may be useful to allow reference to periodical literature which may not fall within "treatises".

1. Ram Chandra v. R., AIR 1930 Lah 371.

2. See section 3, "document".

90.15. We therefore recommend the substitution of the following section in place of section 159-

Revised Section 159

159. Refreshing memory.-(1) A witness may, while under examination, refresb his memory by referring-

(a) to any document made by the witness himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory;

(b) to any such document made by any other person, and read or seen by the witness within the time aforesaid, if, when he read or saw it, he knew it to be correct;

(c) with the permission of the Court, to a copy of such document; provided the Court be satisfied that there is sufficient reason for the non-production of the original.

(2) An expert may refresh his memory by reference to professional treatises or articles published in professional journals.

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