At trial in the Magistrates' Court, the Crown was prevented from allowing an officer to refresh his memory from a copied Form MG DD/A in relation to a breath test procedure. The DJ purported to apply the "best evidence" rule, as the Crown was unable to produce the original form.
The High Court found that the "best evidence" rule, and therefore the admissibility of a document in these circumstances, does not affect the power to allow memory refreshing under section 139(1) of the Criminal Justice Act 2003. The officer should have been allowed to refresh his memory using the document, regardless of its evidential status.
The High Court also found that the document would have been admissible as evidence if the Crown had tried to adduce it in chief through the officer. Applying the best evidence rule, there was no evidence that the copy had been altered, and any risk of discrepancy was a matter for cross-examination and comment. The Defendant would not have been prejudiced by its admittance.