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Supreme Court 30 April 2015

R v Duffy (No. 3)

[2015] NSWSC 481

Homicide
EVIDENCE CRIMINAL TRIAL MURDER UNFAVOURABLE EVIDENCE APPLICATION BY CROWN TO CROSS EXAMINE WITNESS

Citation: R v Duffy (No. 3) [2015] NSWSC 481
Court: Supreme Court of New South Wales
Date: 30 April 2015
Judge: Davies J

Background

The accused stood trial for murder. Three key witnesses were all criminally involved in the events: a co-offender, a second Crown witness named Scott Derbridge, and a third witness referred to as XY. Each had given accounts of what occurred on the night of the killing at a residential property.

The Crown faced a problem common to cases with multiple criminally implicated witnesses: their accounts conflicted with one another. Specifically, Derbridge and the co-offender gave evidence that XY was present in the bedroom at the time the deceased was killed. XY, in her evidence in chief, said she was not present during the killing and only entered the room afterwards.

The Crown applied under section 38 of the Evidence Act 1995 (NSW) for leave to cross-examine XY on two matters: her presence in the bedroom during the killing, and where exactly she was standing when she entered the room after the killing.

  • Whether XY's evidence that she was not in the bedroom at the time of the killing was "unfavourable" to the Crown within the meaning of section 38 of the Evidence Act 1995 (NSW), entitling the Crown to seek leave to cross-examine her.
  • Whether XY had made a prior inconsistent statement about her position in the room when she entered it after the killing, justifying leave to cross-examine on that basis.
  • Whether granting leave would cause forensic disadvantage to the accused.

Decision

On the prior inconsistent statement issue (the second matter), there was little contest. A walkthrough recording made at the premises showed XY indicating she had been standing at the foot of the bed next to the co-offender after entering the room. Her evidence in chief placed her only a few steps inside the door, near a cupboard. Davies J accepted that, while the statement was somewhat equivocal, it was capable of being read as inconsistent with her in-court evidence. Leave was granted on this basis.

On the first matter, the Crown argued that XY's denial of presence in the bedroom was unfavourable because it conflicted with the accounts of Derbridge and the co-offender, and with what the accused himself had said in interviews. Davies J accepted this characterisation. The Crown was obliged to call XY knowing her evidence on this point would conflict with that of other Crown witnesses, and without the ability to cross-examine her, the Crown could not meaningfully invite the jury to prefer the other witnesses' accounts.

Davies J applied the broad construction of "unfavourable" endorsed in R v Le [2001] NSWSC 174, where McClellan J held that a broad meaning ensured the jury could come to an informed view about Crown evidence. Davies J also drew on R v SH [2011] ACTSC 198, where Refshauge J indicated that the ability to test evidence inconsistent with the charges laid is properly available to the Crown.

The accused's counsel argued that the Crown had not opened its case on the basis that XY was present during the killing, and that granting leave would remove a forensic advantage the defence intended to exploit. Davies J was not persuaded. The accused's counsel could not identify any specific forensic disadvantage, and the defence remained free to cross-examine XY as vigorously as it chose. The Crown asking the questions first did not remove any forensic advantage from the accused.

Orders Made

• Leave is granted to the Crown to cross-examine the witness about her evidence regarding whether she was present in the room at the time of the killing

Key Takeaways

  • Under section 38 of the Evidence Act 1995 (NSW), "unfavourable" is to be given a broad meaning: evidence that conflicts with the accounts of other Crown witnesses, and which prevents the Crown from inviting the jury to prefer those other accounts, can qualify as unfavourable.
  • Where a Crown witness gives evidence inconsistent with that of other Crown witnesses, the situation is not one of the Crown "picking and choosing" accounts but rather one of the Crown presenting a coherent case by being able to test conflicting evidence.
  • A prior inconsistent statement recorded during a premises walkthrough, showing a witness in a different position than she described in court, was sufficient to ground a cross-examination application even where the recording was characterised as somewhat equivocal.
  • Forensic disadvantage to an accused must be identified with some specificity: a general concern about the order of questioning was held insufficient to defeat a Crown application for leave under section 38.
  • The Supreme Court confirmed that the accused's opportunity to cross-examine vigorously on the same subject matter is a relevant consideration when assessing whether granting leave under section 38 would cause any real prejudice.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), section 38

Cases
- R v Le [2001] NSWSC 174 (McClellan J)
- R v SH [2011] ACTSC 198; (2011) 6 ACTLR 1 (Refshauge J)