R v Duffy (No. 1)
[2015] NSWSC 444
•21 April 2015
|
New South Wales |
Case Name: | R v Duffy (No. 1) |
Medium Neutral Citation: | [2015] NSWSC 444 |
Hearing Date(s): | 20 April 2015 |
Date of Orders: | 20 April 2014 |
Decision Date: | 21 April 2015 |
Jurisdiction: | Common Law - Criminal |
Before: | Davies J |
Decision: | Question 259 and its answer in the accused’s ERISP should not be excluded. |
Catchwords: | CRIMINAL LAW – murder – joint criminal enterprise - evidence – answer in accused’s ERISP – accused asserts co-offender killed deceased – accused claims to have left the room as killing commenced – accused denied enquiring of deceased’s welfare at any time – inference of encouraging and assistance – whether probative value outweighed by danger of unfair prejudice |
Category: | Procedural and other rulings |
Parties: | Crown |
Representation: | Counsel: |
File Number(s): | 2012/175139 |
JUDGMENT
The accused has been charged with murder, alternatively being an accessory after the fact to murder. He has also been charged with breaking and entering a dwelling house and committing a serious indictable offence therein, namely larceny, alternatively that he did steal in a dwelling house.
The Crown wishes to tender his ERISP made on 7 June 2012. The parties have agreed on which questions and answers should be omitted from that ERISP with the exception of question 259 and its answer. So that this question and answer can be put into context I will set out questions 256 to 260 with their answers.
Q256 Micheal, I'll just bring you back to when you, when you, you stated
that you saw Rachael strangling which you said with a belt. Was that correct?
A Yeah, a belt or a leather strap or something.
Q257 And then you said, what, sorry, what was Rachael's, how, how was, how was she? Did she say anything or --
A No.
Q257(sic) -- what, what was she doing?
A She was trying to strangle her like, she had like, a, like, a fucken, a smile on her face.
Q258 What do you, what do you think she was, she was trying to achieve by
that?
A I'm not sure.
DETECTIVE SENIOR CONSTABLE GROVES
Excuse me.
DETECTIVE SENIOR CONSTABLE KING
Q259 At any time did you become aware that or did you inquire about the welfare of Colleen Ayers or Marlboro as --
A No.
Q260 Did you see her any other time after, after that?
A Yeah, when they were fucken trying to take her out of the house. As I
said I'll make a full interview and statement at a further date. I'm not willing to, you know, to give one now until I find all the evidence and that come through. And then I'll make a full statement. I'll tell youse everything.
Counsel for the accused objects to question 259 and its answer on two bases. First, it is said that the question and answer are ambiguous as to the time about which the question is asking, with the result that the evidence is misleading and confusing. Secondly, it was submitted that the jury may impermissibly reason that there some duty or obligation on the accused to act to assist the deceased in circumstances where there is no duty or obligation to do so and that this failure is somehow indicative or probative of his guilt. In that regard the jury may think that the failure demonstrates bad character which would be prejudicial to the accused.
The Crown’s principal case against the accused is that he was responsible for strangling the deceased. That is expected to be the evidence given by the co-offender whose evidence at her sentencing hearing was to that effect. The Crown’s alternative case is that there was a joint criminal enterprise and, even if the co-offender did the strangling, the accused was present encouraging and assisting that act. The evidence is relevant to this alternative case.
The Crown accepts that there is no duty on the accused to have assisted the deceased nor to have made any enquiry about her welfare. The Crown says, however, that his failure to make such an enquiry is one piece of evidence that would enable an inference that he was in fact encouraging and assisting in the killing of the deceased.
Counsel for the accused submits that, if that is the purpose of its tender, the evidence contained in the answer has very little probative value and that is outweighed by the danger of unfair prejudice to the accused because of the impermissible way that the jury may reason.
In my opinion, the question and answer are admissible and ought to be received into evidence. In the first place the question and answer are relevant to a fact in issue, namely, whether the accused was engaged in a joint criminal enterprise with the co-offender to kill the deceased.
I do not consider that any ambiguity about the timing to which the question is directed results in unfair prejudice. The question and answer must be seen in the context of the surrounding questions. The events involving the accused and the deceased commenced a day or so earlier when they first met. Those events included sexual relations between the accused, the deceased and the co-offender on the day before, the travelling to the deceased’s parents’ house, sexual relations between the accused and the deceased in the bedroom at the house, and the killing involving at least the offender and, on the Crown’s case, the accused.
Although the words “at any time” which introduced the question could theoretically encompass any of those events, there is nothing to suggest any problem with the deceased’s welfare (apart from the fact that she with the others had ingested drugs and alcohol) until the events in the bedroom of the house involving the use of the belt around her neck. A reading of questions 256-258 make that clear. Question 259 did not introduce a new topic. It is noted that it was the same police officer who asked questions 256-260.
As far as the jury’s misusing the question and answer is concerned, the context of the events is also relevant. The accused was not an uninvolved bystander such as a person at a street brawl. Until the time the co-offender entered the bedroom and attempted to strangle the deceased with the belt the accused was involved in sexual activity with the deceased. In those circumstances a failure to enquire about the deceased’s welfare at that time in the events is a relevant matter for the jury to consider when coming to a view about whether or not the accused was encouraging and assisting the co-offender in her attempts to kill the deceased.
The jury will certainly need to be told that there is no general duty or obligation on the part of a person to assist the deceased in those circumstances nor to enquire about her welfare. The jury will need to be told that they cannot use his failure to enquire as a sign of his bad character to draw a conclusion of guilt. However, his failure to make an enquiry has some significant probative value for the jury to determine whether or not he was engaged in a joint criminal enterprise. The question and answer is not, in the context of the events that happened, unfairly prejudicial to the accused. However, even if there is some unfair prejudice, such unfair prejudice does not outweigh its probative value.
Nor does the admission of the question and answer reverse the onus of proof, as counsel for the accused asserted, on the basis that it requires the accused to give an explanation for why he did not make such an enquiry. The mere fact that evidence tends to call for an explanation does not of itself involve reversing the onus. For example, evidence is likely to be given by the co-offender that the accused killed the deceased. On one view, such evidence calls for an explanation by the accused. The evidence is not inadmissible for that reason alone. The jury must decide if they accept the co-offender’s evidence regardless of any explanation, or lack of it, from the accused. The jury will be told that the accused has no obligation to explain or say anything.
Similarly the jury will be directed as I have indicated earlier. No reversal of onus arises.
Question 259 and its answer should not be excluded from the ERISP.
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