Supreme Court New South Wales Medium Neutral Citation: R v Duffy (No. 4) [2015] NSWSC 493 Hearing dates: 30 April 2015 Date of orders: 30 April 2015 Decision date: 30 April 2015 Jurisdiction: Common Law - Criminal Before: Davies J Decision: Leave to the Crown to cross-examine the co-offender on seven specified areas. Catchwords: EVIDENCE – criminal trial – murder – unfavourable evidence - application by Crown to cross-examine co-offender - prior inconsistent statement – evidence of co-offender conflicts with evidence from other Crown witnesses – whether evidence unfavourable Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v Le [2001] NSWSC 174 R v SH [2011] ACTSC 198; (2011) 6 ACTLR 1 Category: Procedural and other rulings Parties: Crown Micheal John Duffy (Defendant) Representation: Counsel: E Wilkins SC (Crown) J Trevallion (Defendant) Solicitors: Solicitor for Public Prosecutions (Crown) McGowan Lawyers (Defendant) File Number(s): 2012/175139 Judgment 1. The Crown applies under s 38 of the Evidence Act 1995 (NSW) to cross-examine the witness and co-offender Rachael Evans on the basis that evidence that she has given in-chief is unfavourable evidence. There are seven discrete areas in respect of which cross-examination is sought. 2. The first area relates to the issue of the belt used to kill the deceased. The evidence from Ms Evans was that the belt was on the end of the bed at the time she went into the bedroom with the witness XY intending at that stage to "smash" Colleen. She said that when she was in that bedroom at an earlier time that evening talking to Colleen the belt was not there. Her evidence that the belt was in the room when she entered it with the witness XY conflicts with the evidence that was given by the witness XY who said that when they were sitting in the lounge room of the guesthouse Rachael Evans went elsewhere and came back with the belt. XY said that Ms Evans sat with the belt in the living room playing with it and muttering to herself. It was that belt, according to the witness XY, that was taken into the bedroom by Rachael Evans. 3. The other evidence said to be inconsistent with Rachael Evans' evidence is the evidence of Mrs Green who said that there was no belt in the bedroom of the guesthouse when she and her husband left to go on holidays. The significance of that evidence for the present application is considerably weakened, however, by the fact that Rachael Evans herself says that the belt was not there earlier in the evening of the killing. 4. The second area relates to the injury that Rachael Evans says was caused to the deceased's head by XY hitting her on the forehead with a bottle. She says that when that happened the deceased's forehead was split in a way that caused it to bleed. That evidence is inconsistent with the evidence given by the witness XY who said that she was not even in the room at the time, let alone did not hit the deceased with the bottle. It is also, more significantly, inconsistent with the evidence of the forensic pathologist who said that there was nothing on the forehead of the deceased's body which would indicate that there was a laceration or an injury of the type described by Rachael Evans. 5. The third area of evidence relates to who collected the sheets from the bedroom where the deceased was killed. The evidence of Rachael Evans was that the witness XY collected the sheets some little time after the killing when at least Rachael Evans had taken the deceased's body to the shower and was washing it. That evidence is to be contrasted with the evidence of the witness XY who said that after she was effectively told to get out of the bedroom after the killing, she went and stood on the balcony and soon after the sheets were thrown over the balcony past her from the bedroom by Rachael Evans. 6. The fourth area concerns the conversation Mr Derbridge reported at the park at Campbelltown which is recorded at page 261 of the transcript. This was his evidence that had initially been provided in his final ERISP where he said that at the park Rachael Evans had said she wanted to kill Colleen, that the witness XY had said something similar and when Mr Derbridge was asked about Mr Duffy, he said, "He was in on it too" and said, "He [ie Duffy] went, 'Yeah, we will, we will and, yeah, they killed her'". The evidence given by Rachael Evans in-chief was that there was no conversation at the park about wanting to kill Colleen. 7. The fifth area concerns evidence given by Mr Derbridge (at T 204) that he and the witness XY were lying down in the second bedroom in the guesthouse when Rachael Evans came into the room and said they were going to kill her now. Rachael Evans gives no such evidence and denies having said anything of the sort. I will return to the detail of what was said presently. 8. The evidence from the witness XY was unclear about whether she was ever in that bedroom, although she seemed to accept, on balance, that it is possible that she was in that bedroom at some stage lying down. However, she did not give evidence consistent with Mr Derbridge's evidence in that regard. 9. The sixth area which the Crown seeks simply to ask Ms Evans, rather than to put it as a positive proposition to her, is that shortly before she went into the bedroom when the deceased was killed, she was sitting in the lounge saying, "I'm going to do it, I'm not going to do it" and was debating with herself in a low voice. That was the evidence of the witness XY. 10. Finally, the Crown wishes to cross-examine Ms Evans concerning her motive for having killed the deceased. Her evidence-in-chief was that she did not know why she had killed her. The Crown wishes to put to her that a motive for the killing was jealousy arising from Ms Evans' past relationship with Mr Duffy. There was evidence that the deceased was interested in Mr Duffy and they had had sex during the course of that evening. 11. The application is opposed by Mr Trevallion of counsel for the accused. He says that the evidence affects only the credibility of the witness and does not amount to unfavourable evidence within the meaning of s 38 of the Act for that reason alone. He particularly opposes cross-examination relating to the fifth area concerning Mr Derbridge's evidence of what Ms Evans said before the killing. 12. Earlier in the trial an application was made by the Crown under s 38 to cross-examine the witness XY. In my reasons for judgment in permitting that cross-examination, I drew attention to a passage in the judgment of McClellan CJ at CL in R v Le (2001) NSWSC 174 at [15] and a passage in the judgment of R v SH [2011] ACTSC 198; (2011) 6 ACTLR 1 at [35] by Refshauge J. In that judgment I considered that those statements of principle justified the leave to the Crown to cross-examine that witness. 13. It seems to me that there is nothing different in principle from what is being sought in the present case. This is one of a number of Crown witnesses who were present at or about the time of the killing. The evidence of this witness is not on all-fours with the other two significant witnesses, that is, the witness XY and the witness Scott Derbridge. Further, the evidence of the witness Rachael Evans in relation to the injury said to have been caused by being struck by the witness XY is inconsistent with the expert opinion of the forensic pathologist. Nevertheless, the Crown was obliged to lead this evidence as part of its responsibility in properly prosecuting the case. 14. In that sense it seems to me that the evidence in the seven categories that have been identified is unfavourable evidence within the meaning of s 38. No particular prejudice or disadvantage has been pointed to by the accused if the Crown was permitted to cross-examine this witness under s 38 except in relation to the fifth matter. To understand the prejudice alleged it is necessary to set out what appears in the transcript at that point of Mr Derbridge's evidence. 15. The transcript originally read: Q. What happened then? A. Rachael ‑ after me and Monique went to sleep Rachael came in, woke us up, saying that, "They're going to kill Colleen now". Subsequently counsel agreed that the evidence of Mr Derbridge involved the use of indirect speech and that the transcript should read: A. Rachael ‑ after me and Monique went to sleep Rachael came in, woke us up, saying that they're going to kill Colleen now. 1. Significantly, no objection was taken by Counsel for the Accused to the evidence being given in that form, that is, by the use of indirect speech. Nor was Mr Derbridge cross-examined in attempt to show that what was said by Ms Evans was "We're going to kill Colleen now". However, Mr Trevallion, in opposing the s 38 application in relation to this evidence, submitted that it was never made clear by Mr Derbridge whether he was suggesting that Ms Evans was saying "We're" meaning Ms Evans and perhaps some other person unnamed, or "They're" which would necessarily exclude her but likely include the accused. If the latter was meant the statement was hearsay and should not be allowed. 2. The use of the term "We're" was significantly different because it was Ms Evans' evidence that it was XY who wanted to "smash" the deceased and had asked for Ms Evans' assistance in that regard. If prejudice arose to Mr Duffy by questions asked about this matter it arose when Mr Derbridge gave his evidence and no objection was taken to it. However, when I sought clarification from the Crown about what precise question she intended to put to Ms Evans concerning Mr Derbridge's evidence, she said that she intended to put that Ms Evans came into the room and said "We're going to kill Colleen now". She was not going to put that Ms Evans said "They're going to kill Colleen now". 3. In those circumstances, not only would cross-examination about that matter not be prejudicial to Mr Duffy but the question to be put would clarify Mr Derbridge's ambiguous evidence in favour of the accused. There is, therefore, no forensic disadvantage nor unfair prejudice to the accused by granting leave under s 38 on this part of the evidence. 4. Otherwise, I regard the evidence in the other areas as unfavourable evidence. For those reasons, leave is granted. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2015