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Supreme Court 30 April 2015

R v Duffy (No. 4)

[2015] NSWSC 493

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

Citation: R v Duffy (No. 4) [2015] NSWSC 493
Court: Supreme Court of New South Wales
Date: 30 April 2015
Judge(s): Davies J

Background

The accused stood trial for murder. The Crown called a co-offender, Rachael Evans, as a witness. Ms Evans gave evidence-in-chief that conflicted in several significant respects with the accounts provided by two other Crown witnesses, a witness identified as XY and a witness named Scott Derbridge, as well as with the opinion of the forensic pathologist.

The Crown applied under s 38 of the Evidence Act 1995 (NSW) for leave to cross-examine Ms Evans on the basis that her evidence was "unfavourable" to the Crown's case. The accused opposed the application, arguing that the conflicts went only to credibility and did not amount to unfavourable evidence within the meaning of s 38.

  • Whether the evidence given by Ms Evans in-chief was "unfavourable evidence" within the meaning of s 38 of the Evidence Act 1995 (NSW), thereby entitling the Crown to seek leave to cross-examine its own witness.
  • Whether any forensic prejudice or unfair disadvantage to the accused arose from permitting cross-examination, particularly in relation to one contested area concerning an alleged statement made by Ms Evans before the killing.

Decision

Davies J identified seven discrete areas in which Ms Evans' evidence conflicted with other Crown evidence. These covered: the origin of the belt used in the killing; an alleged bottle injury to the deceased; who collected sheets from the bedroom after the death; a conversation at a park in Campbelltown; a statement allegedly made before the killing; Ms Evans' pre-killing conduct in the lounge room; and her motive for the killing. In each area, her account diverged materially from that of XY, Derbridge, or the forensic pathologist.

His Honour referred to principles applied earlier in the same trial when cross-examination of XY had been permitted, drawing on R v Le [2001] NSWSC 174 and R v SH [2011] ACTSC 198. Applying those principles, Davies J found that evidence which conflicted with other Crown witnesses and with expert opinion was unfavourable evidence for the purposes of s 38, even where the Crown had been obliged to call that witness as part of its prosecutorial responsibility.

The most contested area concerned the fifth category: Mr Derbridge's evidence that Ms Evans woke him and another person and said words to the effect that "they're going to kill Colleen now." The accused's counsel argued that the ambiguous use of indirect speech (whether Ms Evans said "we're" or "they're") created potential prejudice. Davies J noted that no objection had been taken to Derbridge's evidence at the time it was given, and no cross-examination of Derbridge had sought to clarify the point. When the Crown confirmed it intended to put to Ms Evans that she had said "we're going to kill Colleen now," Davies J concluded that this formulation would actually clarify the ambiguity in a manner favourable to the accused, not adverse.

Finding no forensic disadvantage or unfair prejudice to the accused in any of the seven areas, Davies J granted leave for the Crown to cross-examine Ms Evans under s 38 across all identified categories.

Orders Made

  • Leave granted to the Crown to cross-examine the witness Rachael Evans under s 38 of the Evidence Act 1995 (NSW) in respect of all seven identified areas of her evidence-in-chief.

Key Takeaways

  • Evidence given by a Crown witness that conflicts with the accounts of other Crown witnesses, or with expert opinion, can constitute "unfavourable evidence" within the meaning of s 38 of the Evidence Act 1995 (NSW), even where the conflicts go only to credibility.
  • The Supreme Court confirmed that the Crown's obligation to call witnesses as part of its prosecutorial duty does not preclude it from subsequently seeking leave to cross-examine those witnesses where their evidence proves unfavourable.
  • Principles drawn from R v Le [2001] NSWSC 174 and R v SH [2011] ACTSC 198 were applied to assess whether the Crown had established a basis for s 38 leave, consistent with their application earlier in the same trial.
  • Where a proposed line of cross-examination would clarify an ambiguity in a manner favourable to the accused rather than adverse, no forensic prejudice arises from permitting the questions.
  • Failure to object to potentially ambiguous evidence when it is first given, or to cross-examine the witness who gave it, is a relevant consideration when assessing whether later cross-examination on related topics causes unfair prejudice to the accused.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 38

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