R v Duffy (No. 2)

[2015] NSWSC 474

Supreme Court

New South Wales

Medium Neutral Citation:	R v Duffy (No. 2) [2015] NSWSC 474
Hearing dates:	27 April 2015
Date of orders:	27 April 2014
Decision date:	29 April 2015
Jurisdiction:	Common Law - Criminal
Before:	Davies J
Decision:	Leave to the Crown to cross-examine on the issue of whether the accused had said prior to the murder that he intended to kill the deceased
Catchwords:	EVIDENCE – criminal trial – murder – unfavourable witness - prior inconsistent statements – application by Crown to cross-examine witness – whether evidence had probative value – whether probative value outweighed by unfair prejudice
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507 R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 Regina v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
Category:	Procedural and other rulings
Parties:	Crown Michael John Duffy (Defendant)
Representation:	Counsel: E Wilkins SC (Crown) J Trevallion (Defendant) Solicitors: Solicitor for Public Prosecutions (Crown) McGowan Lawyers (Defendant)
File Number(s):	2012/175139

Judgment

1. These are my reasons for acceding to the Crown’s application to be permitted to cross-examine Scott Derbridge in relation to evidence that the accused had said, prior to the murder, that he also wanted to kill the deceased.

2. In his evidence in chief on 24 April 2015 Mr Derbridge gave the following evidence in connection with this issue.

Q. What else happened while you were in the park?

A. XY kept telling me that they're going to kill Colleen.

Q. Did Rachael say anything about that?

A. Yeah, Rachael was there too.

Q. Who was there when those comments were made?

A. Just Rachael and XY.

Q. Where was Duffy?

A. With Colleen and his mate Nozzy.

Q. Whereabouts were they, do you know?

A. At the table.

Q. Which table was that?

A. At the park.

Q. You say you were with XY and Rachael somewhere else, were you?

A. Yeah.

Q. Whereabouts were you?

A. They were clothes shopping at Campbelltown, Queen Street.

Q. So you had left the park, had you, with XY and Rachael?

A. Yeah.

Q. So where was it that you say that these things were said to you, in the park or at the clothes shop?

A. Both.

Q. Did you take that seriously?

A. No, I thought they were just messing around.

Q. Where did you go after you had been to the clothes shop?

A. I went back to the park.

Q. Who did you go back to the park with?

A. XY and Rachael.

Q. When you got there, did you meet up with anybody?

A. No, it was just Duffy, Colleen and Nozzy still there.

3. Mr Derbridge first participated in an ERISP on 9 May 2012. During this interview he did not reveal anything about the murder. Instead, he told a false story concocted by the co-offender Rachael Evans that another group of people had turned up at the property and that the deceased was alive when Derbridge and his group left the property.

4. He participated in a second ERISP on 12 July 2013 where he revealed a full account of what happened. During the course of that ERISP he was being asked about what happened after the deceased’s murder. He said as follows:

Q.   Can you recall any conversation that Duffy and Rachael had?

A   No.

Q455   While all this was happening?

A   No.

Q456   How would you describe Rachael's demeanour, or behaviour?

A   Was Rachael was a bit psycho, goes, "I wanted to kill her" and that,

saying "I wanted to kill her, I wanted to kill her" and yeah ---

Q457.   OK. You said she, you said she was "psycho" ?

A.   Yeah.

Q458.   And by that, by that you mean?

A.   Well she hadn't had her medication at all, or something. Like, I don't    know, she was meant to take her Seroquel, or something.

Q459.    And you said that she said, "I wanted to kill her, I wanted to kill her"?

A.   Yeah, she want to ---

Q460.   [12.32] When was this said?

A.   Hmm?

Q461.   When was, when was that, when was that said?

A.   Before.

Q462.   Before when?    

A.   Before the murder.

Q463.   O.K. Can you recall, we're sort of stepping back a bit now, but can you recall when that was?

A.   No.

Q464.   Was it before you got to the house, was it when you were at the    house?

A.   When we were at the house.

Q465.   O.K. Was that before you went to sleep with XY?

A.   Yeah.

Q466.   So it was before you sent to sleep with XY?

A.   Yeah.

Q467.   Can I just take you to where those comments were made, who was present at that time?

A.   Duffy, XY and Nozzy.

Q468.   O.K. Where did that take place, that conversation, or those

comments? Where were they made?

A.   At the park.

Q469.   At the park at?

A.   Campbelltown.

Q470.   [12.32] Campbelltown

A.   Yeah.

Q471.   So this is way before you get to the ---

A.   Yeah.

Q472.   O.K. What, what was everybody's reactions in regard to those

comments?

A.   Oh, I don't know.

Q473.   You were present?

A.   Yeah, I, I thought, I thought it was just someone talking - - -

Q474.   Sure.

A.   --- like talking shit. And yeah, but they did it anyway.

Q475.   Right. Did you, so you took those comments as being ---

A.   Yeah.

Q475.   --- as being what?

A.   Like talking shit.

Q476.   Talking shit.

A.   Yeah.

Q477.   O.K. What was the other people's reactions to those comments?

A.   I don't know.

Q478.   Can you recall ---

A.   No.

Q478.   — what XY's reaction was?

A   No.

Q479.   Was XY with you at the time?

A   Yeah.

Q480.   [12.33] And can you recall what her reaction was?

A.   She was saying it too, "I want to kill her".

Q481   What about Duffy?

A.   Yeah. Duffy was in on it too.

Q482.   And when you say “he was in on it”, what, what was he, what was he doing or ---

A.   Nothing, he just goes, “Yeah, we will, we will”, and yeah, they killed her.

5. Mr Derbridge pleaded guilty to being an accessory after the fact to murder. At his sentencing hearing before Judge Maiden SC he undertook to give evidence against the accused consistent with what he had informed the police in his ERISP of 12 July 2013.

6. In the light of the evidence given by Mr Derbridge last Friday where he said that Duffy was not around when both Rachael and XY said that they wanted to kill Colleen, the Crown applied under s 38 Evidence Act 1995 (NSW) based on prior inconsistent statements in two respects. The first and most important was as to the accused’s presence when the comments were made by Rachael and XY. The second basis was where the conversations were said to have taken place.

7. Mr Derbridge also gave evidence at the sentence hearing for Rachael Evans on 31 October 2014. The evidence he relevantly gave about this issue was this:

Q. Did you hear Rachael Evans say anything about Colleen and her intentions towards Colleen?

A. Heard XY was saying they want to kill her.

Q. What did Rachael say?

A. That “I want to kill her”.

Q. And did XY say that as well?

A. Yeah.

Q. And did Duffy say anything?

A. I don’t think Duffy was around.

Q. Sorry?

A. I don’t think Duffy was around.

Q. Did Rachael say anything about why she wanted to do that?

A. No.

8. Based on the ERISP of 12 July 2013 the Crown expected that the evidence that would be given by Mr Derbridge was that the conversation speaking of an intention to kill the deceased took place at the park in Campbelltown and that the accused was present and joined in the agreement to kill the deceased. By contrast, Mr Derbridge’s evidence in chief in the present trial is that the threats were made by Rachael and XY when they had gone clothes shopping with Mr Derbridge in Queen Street, Campbelltown when the accused remained at the park with the deceased and the person described as Nozzy.

9. The Crown bases the application not on any unfavourability in any particular way but on the basis that the witness has made a prior inconsistent statement.

10. Mr Trevallion of counsel for the accused opposed leave being given on two bases. First, he said that the evidence could not be characterised as being unfavourable to the Crown. Secondly, he submitted that the evidence should be excluded under s 137 of the Evidence Act 1995 (NSW). By that he meant that evidence of what appeared in the ERISP involving Mr Duffy’s joining in the desire to kill the deceased should not be permitted to be given.

11. Mr Trevallion said also that the matter was connected with the issue of whether or not he sought a Basha enquiry in relation to the evidence of Mr Derbridge. Such an enquiry had been foreshadowed (along with a similar enquiry in relation to the evidence of XY) but the application was abandoned after information was provided by the Crown following a conference between the Crown and Mr Derbridge shortly before the trial commenced. The information apparently provided by Mr Derbridge at that conference, and subsequently provided to the defence, was that the conversation about planning to kill the deceased took place on two separate occasions, once at the park and once on the train to Picton, and on neither occasion was the accused present. On the basis of that information Mr Trevallion saw no need for a Basha enquiry in relation to Mr Derbridge’s evidence.

12. In that regard Mr Trevallion also drew attention to what Mr Derbridge said in his third ERISP of 16 June 2014 as follows:

Q60.   [11:30] No. Do you, what was your recollection of what any of those

conversations were at Mawson Park?

A.   I hardly spoke to them at Mawson Park. I only spoke to XY.

Q61.   Yep, and what about with XY, was there any conversation with

her at Mawson Park that you remember?

A.   Who? Ah, just XY saying she wants to kill.

Q62.   Oh, XY?

A.   Yeah.

Q63.   O.K. What was that? Do you remember what that conversation was?

A.   No, it was just her and her sister ---

Q64.   Yeah.

A.   --- just saying they want to kill Colleen.

Q65.   And, and that was at Mawson Park, was it?

A.   Yeah.

Q66.   O.K. Do you remember that exact conversation?

A.   No, I don't.

Q67.   And how do you know that's what they were talking about?

A.   ‘Cause XY came and told me.

Q68.   What did she tell you?

A.   She told me that they're going to kill her tonight.

Q69.   Oh, O.K. So XY came and told you that there was a

conversation with her and Rachel and that Rachel had said or

someone had said that they want to go and kill tonight?

A.   Yeah.

DETECTIVE SENIOR CONSTABLE KING

Q70   [11:31] Sorry. Were you preset (sic) at that conversation between Rachel and XY?

A.   No.

Q71.   And you heard, you only heard this from XY?

A.   Yeah---

13. Mr Trevallion submitted that what was contained in the ERISP of 12 July 2013 was ambiguous and equivocal and that was clarified in the ERISP of 16 June 2014. There was, therefore, no need to introduce the evidence in the July 2013 ERISP.

14. Mr Trevallion submitted that the material in the ERISP of July 2013 had only a very low probative value because of the number of times Mr Derbridge had been asked about the issue and the different answers that he had given. Mr Trevallion submitted that there would be unfair prejudice because of the possible emotional effect that the evidence would have on the jury in having evidence of preplanning involving the accused where there is no other evidence of this in the case.

15. In my opinion the Crown’s application should be acceded to because what was contained in the July 2013 ERISP was a prior inconsistent statement to the evidence given in chief by Mr Derbridge. The statement is a significant one because the Crown believed on the basis of Mr Derbridge’s undertaking to give evidence against both Ms Evans and the present accused that the evidence would be consistent with that ERISP. In that sense the evidence given by Mr Derbridge in omitting this significant matter was unfavourable to the Crown in any event.

16. I do not consider that the evidence in the ERISP is ambiguous or equivocal. The evidence in the ERISP is clear as to the accused’s involvement in the intention to kill the deceased. Certainly, however, the evidence when taken with the other evidence of Mr Derbridge including his evidence in chief and what is contained in his 2014 ERISP might be thought to involve difficulties relating to his credibility and reliability.

17. In Regina v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 Spigelman CJ (with whom Simpson and Adams JJ agreed said:

[40]   This Court should determine whether or not a ruling on the admissibility of evidence “substantially weakens” the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. It is not desirable for this Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations.

18. This view was followed in R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 at [66]-[67], [86], [162], [175], [194]-[197] and [215] notwithstanding that the Victorian Court of Appeal in Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507 declined to follow Shamouil.

19. I consider that the evidence contained in the 2013 ERISP has significant probative value as evidence that the accused had with Rachael and XY planned to kill the deceased. I do not consider that there is any unfair prejudice to the accused by its being admitted. It is obviously evidence that the accused would rather be excluded but that is not the test for unfair prejudice.

20. I do not consider that the jury is likely to misuse the evidence. Seen in the context of the facts in this case it is difficult to see that any emotional effect on the jury from the evidence would be more than minimal. Apart from its emotional effect it was not suggested how the evidence might be misused.

21. It is clear that Mr Derbridge’s reliability, and maybe his honesty, will be in issue because of the large number of inconsistent accounts he has given in relation to this issue. The fact that there is no other evidence supporting Mr Derbridge on this point is likely, if anything, to work in the accused’s favour. However, even if there is some legitimate prejudice to the accused, which is difficult to see, I am of the opinion that the probative value of the evidence far outweighs any unfair prejudice.

22. For those reasons I acceded to the Crown’s application under s 38.

**********

Decision last updated: 25 May 2015