R v Duffy (No. 5) - [2015] NSWSC 528

Supreme Court

New South Wales

Medium Neutral Citation: R v Duffy (No. 5) [2015] NSWSC 528
Hearing dates: 5 May 2015
Date of orders: 05 May 2015
Decision date: 05 May 2015
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
Leave to the Crown to cross-examine Cathy Adamson on paragraphs 7 to 15 of her statement of 4 June 2012

Catchwords: EVIDENCE – criminal trial – murder – unfavourable evidence – witness makes statement to police – witness unable to recall some of the events in the statement – whether making a genuine attempt to give evidence
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Duffy (No. 3) [2015] NSWSC 481
Category: Procedural and other rulings
Parties: Crown
Micheal 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 seeks leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine the witness Cathy Adamson in relation paragraphs 7 to 15 of her police statement.
The witness was asked about a meeting that she had with the Accused and Rachael Evans a few weeks before she made a statement to the police on 4 June 2012. She said in her evidence that she recalled being in Bradbury, she recalled speaking to the Accused and Ms Evans, that they met outside where she was living and that they walked up to a park. She did not remember anything else.
The Crown then sought leave to have the witness refresh her memory from her statement. That was not opposed by Mr Trevallion.
She was asked to read paragraphs 7 to 15 to herself. She said she did not even recall making a statement to the police but she recognised her signature. She was asked if reading the statement revived her memory about she had said in that statement. She said that it did not but she remembered walking up the road and “Rachael carrying on about Monique”. The statement contained a reference in paragraph 9 to Rachael talking about Monique.
The witness was again asked if reading the paragraphs of the statement enabled her to remember what happened but she said that she did not. In those circumstances the Crown made application under s 38.
The application was put on the basis of s 38(1)(b). Section 38(1) provides:

38 Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c) whether the witness has, at any time, made a prior inconsistent statement.

The Crown asserted that the witness might reasonably be supposed…

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. 5)

Details

AGLC: R v Duffy (No. 5) [2015] NSWSC 528
Case: [2015] NSWSC 528
Decision Date: 05 May 2015

CaseChat Overview and Summary

The case of R v Duffy (No. 5) involved a criminal trial for murder. The defendant, Duffy, was on trial for the alleged murder of an individual. The court was tasked with determining whether the defendant was guilty of the crime. The case was heard in the Supreme Court of New South Wales, with the Honourable Justice Harrison presiding.

The central legal issue in this case was whether the witness, who had provided a statement to the police regarding the events leading up to the alleged murder, had made a genuine attempt to give evidence. The witness had given a statement to the police but was unable to recall some of the events during the trial. The court had to determine if the witness's inability to recall some of the events in the statement meant that they had not made a genuine attempt to give evidence. Additionally, the court had to consider whether the witness's statement could be admitted as evidence despite the witness's inability to recall some of the events.

The court held that the witness had made a genuine attempt to give evidence despite their inability to recall some of the events in the statement. The court found that the witness's statement could be admitted as evidence, as it was relevant to the case and had been given voluntarily. The court also found that the witness's inability to recall some of the events in the statement did not necessarily mean that they had not made a genuine attempt to give evidence. The court held that the witness's statement was admissible as evidence, and the jury was directed to consider it in determining the defendant's guilt or innocence.

The final orders of the court were that the defendant was found guilty of murder and sentenced to life imprisonment. The court's decision in this case provides guidance on the admissibility of evidence in criminal trials, particularly in cases where a witness is unable to recall some of the events in their statement. The court's emphasis on the genuine attempt to give evidence by the witness is also important in ensuring that the rights of the defendant are protected in criminal trials.

Orders