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Supreme Court 29 April 2015

R v Duffy (No. 2)

[2015] NSWSC 474

Homicide
EVIDENCE CRIMINAL TRIAL MURDER UNFAVOURABLE WITNESS PRIOR INCONSISTENT STATEMENTS APPLICATION BY CROWN TO CROSS

Citation: R v Duffy (No. 2) [2015] NSWSC 474
Court: Supreme Court of New South Wales
Date: 29 April 2015
Judge: Davies J

Background

The accused stood trial for murder. The Crown called a witness, Mr Derbridge, who had pleaded guilty to being an accessory after the fact to murder and had undertaken at his own sentencing to give evidence consistent with a detailed account he had provided to police in an ERISP (Electronically Recorded Interview with Suspected Person) on 12 July 2013.

In that 2013 ERISP, Mr Derbridge told police that the accused had been present at a park in Campbelltown when co-offenders expressed an intention to kill the deceased, and that the accused had joined in that agreement. However, in his evidence in chief at trial, Mr Derbridge said the accused was not present during those conversations, placing the accused instead at a nearby table with the deceased while the threats were made elsewhere.

The Crown applied under section 38 of the Evidence Act 1995 (NSW) for leave to cross-examine Mr Derbridge as an unfavourable witness on the basis that he had made prior inconsistent statements. Defence counsel opposed the application, arguing the evidence was not unfavourable to the Crown and that it should in any event be excluded under section 137 of the Act.

  • Whether the Crown was entitled to cross-examine its own witness, Mr Derbridge, under section 38 of the Evidence Act 1995 (NSW) on the basis of prior inconsistent statements.
  • Whether the prior inconsistent statement evidence (specifically, the accused's alleged participation in planning the killing) had sufficient probative value to be admitted.
  • Whether the probative value of that evidence was outweighed by the danger of unfair prejudice to the accused, requiring exclusion under section 137 of the Evidence Act 1995 (NSW).
  • Whether, in assessing probative value for the purposes of section 137, the court should take into account credibility or reliability concerns about the witness.

Decision

Davies J granted the Crown's application under section 38, permitting cross-examination of Mr Derbridge on his prior inconsistent statements. The court identified two specific inconsistencies: first, and most significantly, whether the accused was present when the co-offenders expressed their intention to kill the deceased; and second, the location where those conversations took place. Mr Derbridge's 2013 ERISP placed the accused at the park and described him as joining in the agreement to kill, while his trial evidence excluded the accused from the scene entirely.

On the section 137 exclusion argument, the court applied the approach in Regina v Shamouil [2006] NSWCCA 112, which holds that in assessing whether probative value is outweighed by unfair prejudice, a court should assess probative value on the assumption that the jury accepts the evidence, without conducting an inquiry into credibility or reliability. Davies J noted that this approach had been followed in R v XY [2013] NSWCCA 121, notwithstanding that the Victorian Court of Appeal had declined to apply it in Dupas v The Queen [2012] VSCA 328.

The court found that the 2013 ERISP account carried significant probative value as evidence that the accused had participated in planning the killing. Davies J rejected the suggestion that admission of the evidence caused unfair prejudice, noting that evidence being unwelcome to an accused is not the same as unfair prejudice. The court accepted that any emotional impact on the jury would be minimal in the context of the case as a whole, and that no mechanism for misuse of the evidence had been identified.

The court also acknowledged that Mr Derbridge's multiple inconsistent accounts would inevitably place his credibility and reliability in issue at trial, and that the absence of corroborating evidence on this point was more likely to assist the accused than harm him. Even allowing for some degree of legitimate prejudice, Davies J concluded that the probative value of the evidence far outweighed any unfair prejudice.

Orders Made

• The Crown's application under s 38 was acceded to, permitting the admission of evidence contained in the July 2013 ERISP.

Key Takeaways

  • Under the Shamouil approach, confirmed by the NSW Court of Criminal Appeal in R v XY, a court assessing probative value under section 137 of the Evidence Act 1995 (NSW) does not weigh credibility or reliability considerations; it assumes the jury will accept the evidence, provided it is fit to be left to the jury.
  • Evidence being damaging or unwelcome to an accused does not, without more, constitute "unfair prejudice" for the purposes of section 137. A specific mechanism by which the jury might misuse the evidence is required to engage the exclusionary discretion.
  • Where a Crown witness gives trial evidence materially inconsistent with a prior police interview, the Crown may seek leave under section 38 to cross-examine that witness on the prior inconsistent statement, even absent a broader claim of unfavourability.
  • The Supreme Court expressly applied the NSW position in Shamouil and R v XY, and noted that the conflicting Victorian approach in Dupas does not represent the law in New South Wales.
  • Significant inconsistencies in a witness's various accounts go to weight and credibility for the jury to assess; they do not, of themselves, deprive prior statements of probative value sufficient to warrant exclusion at the admissibility stage.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), sections 38 and 137

Cases:
- Regina v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
- R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363
- Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507