past recollection recorded

Past Recollection Recorded

In rare situations a witness may have no independent recollection of something they have previously recorded.  

For example, a police officer may have made notes regarding a criminal offence but has no recollection of the event.  Under these circumstances one would think that the police officer not be allowed to refresh his memory by referring to the past recollection recorded.  The law is clear on this issue.  In the decision of Fleming v. Toronto Railway Co, [1911] O.J. No. 40, the Ontario Court of Appeal held that a witness who has no present recollection of something they have recorded in the past will be permitted to use that past recorded information to refresh their memory.

However, there is an exception to this rule.  Should the past recollection recorded not be made contemporaneously then the past recollection recorded is unreliable.  That is, when the witness has no recollection of the event and the recording was not made contemporaneously with the event then that witness should not be permitted to rely on the past recollection recorded because it is highly unreliable.  

Also if the past recollection recorded is inconsistent with other evidence before the court then it is unreliable and should be given little or no weight.  For example, if the police officer who has no independent recollection of the event he is testifying to, and additionally has flawed notes, then that past recollection recorded in his notes is unreliable.  

As counsel it is important to probe whether the witness testifying has an independent recollection of the event they are testifying to.  This is line of questioning may bear some fruit.  This is especially true when the past recollection recorded was not made contemporaneously with the event.