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Supreme Court 5 May 2015

R v Duffy (No. 5)

[2015] NSWSC 528

Homicide
EVIDENCE CRIMINAL TRIAL MURDER UNFAVOURABLE EVIDENCE WITNESS MAKES STATEMENT TO POLICE

Citation: R v Duffy (No. 5) [2015] NSWSC 528
Court: Supreme Court of New South Wales
Date: 5 May 2015
Judge(s): Davies J

Background

This decision arises from a murder trial in which the Crown called a witness, referred to here as the civilian witness, who had given a detailed statement to police in June 2012. That statement described a late-night meeting with the accused and another person, during which a conversation allegedly took place about the sale of firearms referred to as "gats."

When called to give evidence, the witness recalled the general occasion but said she could not remember the specific conversation recorded in paragraphs 7 to 15 of her police statement. After being shown the statement to refresh her memory, she acknowledged her signature but said her memory was not revived, apart from one detail about the other person "carrying on about Monique."

The Crown applied for leave under section 38 of the Evidence Act 1995 (NSW) to cross-examine its own witness about the contents of that statement.

  • Whether the preconditions under section 38(1)(b) were satisfied: specifically, whether the witness was failing to make a genuine attempt to give evidence about matters she could reasonably be supposed to know.
  • Whether the witness's inability to remember the contents of her prior police statement constituted "unfavourable evidence" under section 38(1)(a).
  • How section 32(3) of the Evidence Act, dealing with memory-refreshing documents, interacted with the Crown's application.

Decision

Davies J declined to grant leave on the basis of section 38(1)(b), which requires that a witness not be making a genuine attempt to give evidence. Several features pointed against that conclusion. The witness had not claimed a blanket inability to remember; she gave some unprompted recollection of the occasion before being shown the statement, and after reading it she recalled an additional detail. Crucially, the witness had also indicated willingness to answer questions despite the potential for self-incrimination, having declined to invoke section 128 of the Evidence Act. The court was not satisfied the precondition of a failure to make a genuine attempt had been established.

However, Davies J found that the witness's inability to recall the conversation recorded in her statement amounted to unfavourable evidence for the Crown under section 38(1)(a). The court drew support from section 32(3) of the Act, which permits a witness who has used a document to try to revive memory to read relevant portions aloud as evidence. Where a witness has used a prior statement in that way and memory remains unrevived, the Crown Prosecutor is correspondingly entitled, under section 38, to put the contents of that statement to the witness in cross-examination.

Leave was accordingly granted on the section 38(1)(a) ground, permitting the Crown to cross-examine the witness about paragraphs 7 to 15 of her police statement.

Orders Made

  • Leave granted pursuant to section 38(1)(a) of the Evidence Act 1995 (NSW) to cross-examine the witness about paragraphs 7 to 15 of her police statement.

Key Takeaways

  • A failure of memory, standing alone, does not necessarily satisfy the "not making a genuine attempt to give evidence" test under section 38(1)(b), particularly where the witness has provided some recollection and has otherwise cooperated with the process.
  • Unfavourable evidence under section 38(1)(a) can include a witness's inability to recall matters recorded in a prior statement, even where the witness is not being deliberately evasive.
  • Under section 32(3) of the Evidence Act, a witness who has used a document to try to revive memory may read relevant portions into evidence; the Supreme Court confirmed that this provision supports a corresponding entitlement for the calling party to use those contents in cross-examination under section 38.
  • The willingness of a witness to give potentially self-incriminating evidence, without invoking section 128, is a relevant consideration when assessing whether that witness is making a genuine attempt to give evidence.
  • This decision is a discrete evidentiary ruling within a larger murder trial; its conclusions are specific to the facts and procedural posture before the court and do not purport to resolve broader questions of law.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 32(3), 38(1)(a), 38(1)(b), 128

Cases:
- R v Duffy (No. 3) [2015] NSWSC 481