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

1. 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.

2. 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.

3. 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 like this ….

V.1 was Detective Senior Constable Williams and V.3 was the witness XY.

4. The Crown relies on that part of the extract in the last excerpt where the witness said “and I was fully standing here like this”. That part of the disc of the walkthrough was played to the Court. It demonstrated that when the witness said “and I was fully standing here like this” she was standing at the foot of the bed in a position where she indicated she was next to Rachael Evans. That is to be contrasted to the evidence she gave in chief that she went only a few steps into the room through the internal door and stood near the cupboard that was positioned near that door.

5. Counsel for the accused opposed leave being given in respect of the first issue but not in respect of the second. Although a viewing of the extract of the disc of the walkthrough suggests to me that the statement relied upon was somewhat equivocal, it was capable of being interpreted as the witness saying that she was standing at the foot of the bed next to Rachael Evans after she entered the room following the killing. If that is the correct reading of her statement there is a clear inconsistency with her evidence in chief and leave should be granted.

6. In relation to the first issue counsel for the accused submitted, first, that the Crown did not open the case to the jury on the basis that the witness was in the room during the killing. Further, he submitted that the Crown was endeavouring to pick and choose which of the witnesses’ various accounts was accepted by the Crown. Finally, he submitted that he intended to cross-examine the witness to suggest that she was in the room at the time of the killing and that if the Crown was entitled to do so it would remove a forensic advantage that the accused had.

7. It is true that the Crown did not open the case to the jury on the basis that this witness was in the room at the time of the killing. Putting aside whether there was any obligation to do so when nothing could be made of the point against the present accused, the Crown was faced with the not unusual situation that it had conflicting evidence from witnesses it was bound to call. The three most significant witnesses are the co-offender Rachael Evans, Scott Derbridge and the present witness XY who were all criminally involved in the events concerned. The Crown had an obligation to lead evidence from the present witness knowing that on this issue it would conflict with the evidence of the other two witnesses. If the Crown did not at least put to this witness that she was present in the room at the time of the killing the Crown would not be in the position to suggest to the jury that they should accept the evidence of Rachael Evans and Scott Derbridge to that effect. In that way, the evidence of this witness that she was not in the room was unfavourable to the Crown.

8. In R v Le [2001] NSWSC 174 McClellan J said:

[15]   … [I]n my opinion, the word "unfavourable" should be given a broad meaning thereby ensuring that in the course of any criminal trial the Court would not be denied evidence as to any relevant issue and would not be denied the opportunity for that evidence to be appropriately tested. Only this approach will allow the jury to have the opportunity of coming to an informed view about whether or not the evidence called by the Crown should be accepted.

9. In a somewhat similar vein Refshauge J in R v SH [2011] ACTSC 198; (2011) 6 ACTLR 1 having reviewed a number of authorities on the issue of unfavourable evidence:

[35]   It seems to me, however, that these issues really go to the exercise of the discretion to grant leave rather than to the meaning of “unfavourable”. While it may be correct to say that the Crown is to pursue the truth wherever it might lead … the Crown, having laid certain charges, should be able to test the evidence that is inconsistent with those charges. …

10. In cases such as the present where inconsistent evidence is given by Crown witnesses it is not so much a matter of the Crown picking and choosing as being able to present a coherent account of events based on the evidence that has been given. That may mean inviting the jury to prefer the evidence given by one or more witnesses as opposed to evidence given by another witness.

11. Counsel for the accused was not able to point to any specific forensic disadvantage that would be suffered by the accused if he could not first put to the witness that she had been present in the room at the time of the killing. His only concern was how the questions about the matter would be framed. He is free to press the issue with as much vigour as he chooses, and that is likely to be more vigorous than questions put by the Crown which would simply suggest that the event happened in a particular way. There is no forensic disadvantage from the Crown asking the questions first.

12. In my opinion the witness’s evidence is unfavourable to the Crown and leave ought to be given to the Crown to cross-examine about it.

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Decision last updated: 25 May 2015