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Supreme Court 21 April 2015

R v Duffy (No. 1)

[2015] NSWSC 444

Homicide
CRIMINAL LAW MURDER JOINT CRIMINAL ENTERPRISE EVIDENCE ANSWER IN ACCUSED’S ERISP ACCUSED ASSERTS CO

Citation: R v Duffy (No. 1) [2015] NSWSC 444
Court: Supreme Court of New South Wales
Date: 21 April 2015
Judge: Davies J

Background

The accused was charged with murder, alternatively as an accessory after the fact to murder, as well as break-and-enter and larceny offences. The Crown's principal case was that the accused personally strangled the deceased. An alternative Crown case was that a co-offender performed the strangling while the accused was present, encouraging and assisting her, as part of a joint criminal enterprise.

During a recorded interview (known as an ERISP, or electronically recorded interview of a suspected person), the accused was asked whether he had at any time made any enquiry about the victim's welfare. He answered "No."

The parties agreed on the omission of most contested portions of the ERISP, but disagreed about whether that single question and answer (question 259) should be placed before the jury.

  • Whether question 259 and its answer were admissible, given that the question used the phrase "at any time," which the accused argued was ambiguous as to its temporal scope
  • Whether admission of the evidence risked impermissible jury reasoning, specifically that the jury might treat the accused's failure to enquire about the victim as evidence of bad character, or as a breach of some (non-existent) duty to assist
  • Whether admitting the evidence would reverse the onus of proof by effectively requiring the accused to explain his failure to enquire

Decision

Davies J ruled that question 259 and its answer were admissible and should not be excluded from the ERISP tendered to the jury.

On the ambiguity point, the court found that the phrase "at any time" did not create unfair prejudice in context. Reading questions 256 to 260 together made clear that the police were asking about the period surrounding the strangulation. Nothing in the evidence suggested any concern about the deceased's welfare prior to the events in the bedroom involving the belt. The temporal scope of the question was therefore sufficiently apparent from its context.

On the unfair prejudice point, the court accepted that the Crown could not, and did not, assert any legal duty on the accused to assist the deceased or enquire about her welfare. However, the accused was not a stranger or uninvolved bystander. He had been engaged in sexual activity with the deceased immediately before the co-offender's actions began. In that context, the failure to enquire carried meaningful probative value on the question of whether he was encouraging and assisting the killing. The court found this probative value was not outweighed by the danger of unfair prejudice, particularly given that appropriate jury directions would address the limits of the evidence.

On the onus of proof point, the court rejected the submission that admitting this evidence reversed the burden of proof. Evidence that invites explanation does not, by that fact alone, shift the onus onto the accused. The jury would be directed that the accused bore no obligation to explain his conduct, and that the evidence could not be used as proof of bad character.

Orders Made

No formal orders were made in this decision. The ruling was that question 259 and its answer should not be excluded from the tendered ERISP.

Key Takeaways

  • A defendant's denial, in a police interview, of having enquired about a victim's welfare can be admissible as circumstantial evidence of participation in a joint criminal enterprise, even where no legal duty to enquire existed.
  • Probative value is assessed in context: the Supreme Court emphasised that the accused's prior intimate involvement with the deceased distinguished him from an uninvolved bystander, making his failure to enquire a relevant, rather than merely prejudicial, piece of evidence.
  • Ambiguity in the phrasing of a police interview question does not automatically render an answer inadmissible. Where surrounding questions make the intended temporal or factual scope reasonably clear, ambiguity alone will not produce unfair prejudice.
  • Evidence that invites an accused to offer an explanation does not, without more, reverse the onus of proof. The court confirmed the jury must be directed that the accused carries no obligation to explain or say anything.
  • Where evidence risks misuse by a jury, such as reasoning from bad character rather than legitimate inference, the appropriate remedy is a careful direction rather than exclusion, provided the probative value is not outweighed by the danger of unfair prejudice.

Legislation and Cases Referenced

Legislation: Not specified in the judgment.

Cases: Not specified in the judgment.