Supreme Court New South Wales Medium Neutral Citation: R v Duffy (No. 5) [2015] NSWSC 528 Hearing dates: 5 May 2015 Date of orders: 05 May 2015 Decision date: 05 May 2015 Jurisdiction: Common Law - Criminal Before: Davies J Decision: Leave to the Crown to cross-examine Cathy Adamson on paragraphs 7 to 15 of her statement of 4 June 2012 Catchwords: EVIDENCE – criminal trial – murder – unfavourable evidence – witness makes statement to police – witness unable to recall some of the events in the statement – whether making a genuine attempt to give evidence Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v Duffy (No. 3) [2015] NSWSC 481 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 seeks leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine the witness Cathy Adamson in relation paragraphs 7 to 15 of her police statement. 2. The witness was asked about a meeting that she had with the Accused and Rachael Evans a few weeks before she made a statement to the police on 4 June 2012. She said in her evidence that she recalled being in Bradbury, she recalled speaking to the Accused and Ms Evans, that they met outside where she was living and that they walked up to a park. She did not remember anything else. 3. The Crown then sought leave to have the witness refresh her memory from her statement. That was not opposed by Mr Trevallion. 4. She was asked to read paragraphs 7 to 15 to herself. She said she did not even recall making a statement to the police but she recognised her signature. She was asked if reading the statement revived her memory about she had said in that statement. She said that it did not but she remembered walking up the road and "Rachael carrying on about Monique". The statement contained a reference in paragraph 9 to Rachael talking about Monique. 5. The witness was again asked if reading the paragraphs of the statement enabled her to remember what happened but she said that she did not. In those circumstances the Crown made application under s 38. 6. The application was put on the basis of s 38(1)(b). Section 38(1) provides: 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. 1. The Crown asserted that the witness might reasonably be supposed to have knowledge about the meeting concerning the guns but was not making a genuine attempt to give that evidence. The basis for asserting that she was not making a genuine attempt was simply that the events were said to be unusual, namely, the request to see if she could sell the guns, and the fact that the police statement was made only a matter of three to four weeks after the meeting took place. 2. Mr Trevallion did not oppose the leave being given under s 38 but submitted that the only basis which had been established was that the evidence of the witness was unfavourable evidence. 3. What the witness said in her statement to the police was relevantly this: 7. About 3 or 4 weeks ago I received either a phone call or a text message from Duffy just before midnight. This occurred days prior to my appointment at the First Care Medical Centre in Bradbury. I cannot remember the date. He asked me to meet up with him. I told him to meet me in Bradbury and he asked me if I had any fits on me. When I say fits I am referring to syringes. I told him that I only had old ones. I told him that I would leave now. 8. My partner and I left home and walked along The Parkway Bradbury, past the Bradbury Hotel and met up with Rachael and Duffy who were walking towards us. It took us about a ten minute walk to meet them. 9. At the time Rachael and I were not talking because of a previous incident where she had made a nasty comment about my son. Rachael appeared happy as she was smiling and did not have a care in the world. She was off her face meaning she had been using drugs. I noticed that her pupils were huge. However to me she was more than just off her face. There was some big joke I did not know about and she kept mentioning 'Monique Monique'. When she stated this she kept looking at Duffy and giggling. 10. I hugged and kissed Duffy when I saw him. Duffy appeared buggered and told that he had been doing heaps of walking. 11. I describe Rachael as wearing a white knitted beanie on her head, her hair was out from underneath the beanie, bright red hair, she was wearing makeup, a fawn brown leather jacket with a triangular collar, long sleeved, tight fitted, with stud buttons and a zipper, long black tights and brown sandals/thongs with blue stones. 12. I describe Duffy as wearing a dark jackets (sic) and dark pants. I cannot describe him any further. 13. Rachael was carrying two bags, one bag was in her left hand and the other bag on her right should (sic), as I could see the strap around her should (sic) and she had her hand around the strap. The bags appeared full to me as the bags had shape to them meaning they were full to the brim. The bags were not her usual bag as she usually has a black Harley Davidson bag. 14. Duffy was carrying two bags, one over his right shoulder with his hand around the strap and the other bag in his left hand. I believe one of those bags belonged to Rachael. I do not remember the bags he was carrying to be bulky. 15. I remember having a conversation with them when we met. One of them asked if I knew anybody who was interested in any 'gats'. I know 'gats' to mean guns. I said, "Yeah why?" Rachael said, "We got a couple." I said, "Bullshit". I looked at Duffy and he said, "Yeah." When he stated this he rolled his right shoulder, the same shoulder that had a bag strap over it He stated, "A long one". When he stated this he moved his hand down his left leg. This meant to me he was talking about a long gun like a shotgun or rifle. 1. A number of matters suggested to me that it could not be demonstrated that the witness was not making a genuine attempt to give evidence. First, she did not simply keep stating that she did not remember anything about the event. Before she was shown the statement she gave evidence that she recalled the occasion and that they met outside where she lived and walked up to the park. 2. Secondly, after having been shown the statement she additionally remembered that Rachael had been "carrying on about Monique" as a result of reading that in the statement. Thirdly, because of her alleged involvement in the sale of the guns I raised with counsel and subsequently the witness the issue of self-incrimination and s 128 of the Evidence Act. The witness could have claimed that the evidence would tend to incriminate her with the result that the procedure in s 128 would have needed to be followed. She did not do that and indicated that she was prepared to give evidence. 3. In those circumstances, I could not be satisfied that the preconditions in s 38(1)(b) were satisfied. 4. However, the evidence that she gave to the Crown was that she could not remember the conversation beyond the evidence she had given because her memory was bad. That evidence was unfavourable evidence. I referred to the discussion of the broad nature of the term "unfavourable evidence" in R v Duffy (No. 3) [2015] NSWSC 481 at [8]-[9]. 5. That an inability to remember facts contained in a previous statement might constitute unfavourable evidence tends to be supported by s 32(3) of the Act which provides: If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. 1. In the present case the witness has used her statement to try to revive her memory about a fact, namely the conversation that took place at the meeting she had with the accused and Ms Evans a few weeks before her statement was made. In those circumstances the witness is, with leave, entitled to read aloud as part of her evidence so much of the statement as relates to that fact. In the same way, the Crown Prosecutor is entitled in cross-examination under s 38 to put what is contained in the statement to the witness in an endeavour to obtain the witness's agreement that the facts recorded actually took place. 2. For these reasons, leave is granted pursuant to s 38(1)(a) to cross-examine the witness concerning paragraphs 7-15 of her statement. ********** 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