R v Duffy (No. 5)

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.

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.

The Crown then sought leave to have the witness refresh her memory from her statement. That was not opposed by Mr Trevallion.

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.

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.

The application was put on the basis of s 38(1)(b). Section 38(1) provides:

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.

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.

What the witness said in her statement to the police was relevantly this:

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.

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.

In those circumstances, I could not be satisfied that the preconditions in s 38(1)(b) were satisfied.

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].

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:

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.

For these reasons, leave is granted pursuant to s 38(1)(a) to cross-examine the witness concerning paragraphs 7-15 of her statement.