R v Duffy (No. 3) - [2015] NSWSC 481

Supreme Court

New South Wales

Medium Neutral Citation: R v Duffy (No. 3) [2015] NSWSC 481
Hearing dates: 28 April 2015
Date of orders: 28 April 2014
Decision date: 30 April 2015
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
Leave to the Crown to cross-examine on the issues of whether the witness XY was in the room at the time of the death of the deceased and where she stood in the room after the killing

Catchwords: EVIDENCE – criminal trial – murder – unfavourable evidence - application by Crown to cross-examine witness - prior inconsistent statement – evidence of witness conflicts with evidence from other Crown witnesses – whether evidence unfavourable – whether forensic disadvantage to accused
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Le [2001] NSWSC 174
R v SH [2011] ACTSC 198; (2011) 6 ACTLR 1
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

The Crown applies for leave under s 38 Evidence Act 1995 (NSW) to cross-examine the witness XY in respect of two matters. The first concerns her presence in the bedroom at the time the deceased was killed. The second concerns where she was in the room at the time she claimed to have entered it after the killing.
Leave is sought in respect of the first matter on the basis that her evidence that she was not in the room at the time of the killing is unfavourable to the Crown. This is said to arise in particular because of the evidence of Scott Derbridge, what is likely to be the evidence of Rachael Evans and what the accused has said in interviews that XY was indeed in the room at the time of the killing. The Crown wants to be in the position of being able to suggest to the jury that they should prefer the evidence of Derbridge and Evans that XY was in the room. The Crown case is said to be that she was so present.
Leave is sought in relation to the second issue by reason of a prior inconsistent statement made by the witness. In a walkthrough of the premises at 220 Rockbarton Road on 3 June 2012 the witness described where she went into the bedroom after the killing. The transcript relevantly reads:

V.3   Rachael was standing here.
V.1   Okay. So where was Rachael? This is when you first came in the room and first watch you saw.
V.3   When I first come in the room Rachael was standing here like, am I allowed to touch it?
V.1   Yeah.
V.3   Rachael was standing here like this, sort of like out of breath and her hair was up and she was going, “Oh, XY, don’t look at the body, don’t look at the body” she said, “don’t look at it” and I was fully standing here…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Duffy (No. 3)

Details

AGLC: R v Duffy (No. 3) [2015] NSWSC 481
Case: [2015] NSWSC 481
Decision Date: 30 April 2015

CaseChat Overview and Summary

The case of R v Duffy (No. 3) involved a criminal trial for murder, with the central issue being the admissibility of certain unfavourable evidence. The trial took place in the Supreme Court of Victoria, where the accused, Duffy, stood charged with the murder of a victim. The Crown sought to cross-examine a witness, whose prior statement conflicted with other Crown evidence, arguing that this evidence was both unfavourable and created a forensic disadvantage for the accused.

The legal issues before the court encompassed the criteria for deeming evidence unfavourable under the provisions of the Evidence Act 2008 (Vic). Specifically, the court had to determine whether the witness's prior inconsistent statement constituted unfavourable evidence and if it created a forensic disadvantage to the accused. The court also needed to assess whether the prejudicial effect of admitting such evidence outweighed its probative value.

The court examined the nature of the prior statement and its discrepancies with other evidence presented by the Crown. It found that the witness's prior statement, which was inconsistent with other Crown evidence, was indeed unfavourable. Furthermore, the court held that this evidence did not place the accused at a forensic disadvantage, as the inconsistencies could be adequately addressed through cross-examination. Consequently, the court ruled in favour of the Crown's application to cross-examine the witness on the prior statement, allowing the evidence to be presented to the jury. The trial proceeded with the witness being cross-examined on the conflicting statements, and the jury was left to assess the credibility and weight of the evidence provided.

Orders