R v Duffy (No. 2)

These are my reasons for acceding to the Crown’s application to be permitted to cross-examine Scott Derbridge in relation to evidence that the accused had said, prior to the murder, that he also wanted to kill the deceased.

In his evidence in chief on 24 April 2015 Mr Derbridge gave the following evidence in connection with this issue.

Mr Derbridge first participated in an ERISP on 9 May 2012. During this interview he did not reveal anything about the murder. Instead, he told a false story concocted by the co-offender Rachael Evans that another group of people had turned up at the property and that the deceased was alive when Derbridge and his group left the property.

He participated in a second ERISP on 12 July 2013 where he revealed a full account of what happened. During the course of that ERISP he was being asked about what happened after the deceased’s murder. He said as follows:

Mr Derbridge pleaded guilty to being an accessory after the fact to murder. At his sentencing hearing before Judge Maiden SC he undertook to give evidence against the accused consistent with what he had informed the police in his ERISP of 12 July 2013.

In the light of the evidence given by Mr Derbridge last Friday where he said that Duffy was not around when both Rachael and XY said that they wanted to kill Colleen, the Crown applied under s 38 Evidence Act 1995 (NSW) based on prior inconsistent statements in two respects. The first and most important was as to the accused’s presence when the comments were made by Rachael and XY. The second basis was where the conversations were said to have taken place.

Mr Derbridge also gave evidence at the sentence hearing for Rachael Evans on 31 October 2014. The evidence he relevantly gave about this issue was this:

Based on the ERISP of 12 July 2013 the Crown expected that the evidence that would be given by Mr Derbridge was that the conversation speaking of an intention to kill the deceased took place at the park in Campbelltown and that the accused was present and joined in the agreement to kill the deceased. By contrast, Mr Derbridge’s evidence in chief in the present trial is that the threats were made by Rachael and XY when they had gone clothes shopping with Mr Derbridge in Queen Street, Campbelltown when the accused remained at the park with the deceased and the person described as Nozzy.

The Crown bases the application not on any unfavourability in any particular way but on the basis that the witness has made a prior inconsistent statement.

Mr Trevallion of counsel for the accused opposed leave being given on two bases. First, he said that the evidence could not be characterised as being unfavourable to the Crown. Secondly, he submitted that the evidence should be excluded under s 137 of the Evidence Act 1995 (NSW). By that he meant that evidence of what appeared in the ERISP involving Mr Duffy’s joining in the desire to kill the deceased should not be permitted to be given.

Mr Trevallion said also that the matter was connected with the issue of whether or not he sought a Basha enquiry in relation to the evidence of Mr Derbridge. Such an enquiry had been foreshadowed (along with a similar enquiry in relation to the evidence of XY) but the application was abandoned after information was provided by the Crown following a conference between the Crown and Mr Derbridge shortly before the trial commenced. The information apparently provided by Mr Derbridge at that conference, and subsequently provided to the defence, was that the conversation about planning to kill the deceased took place on two separate occasions, once at the park and once on the train to Picton, and on neither occasion was the accused present. On the basis of that information Mr Trevallion saw no need for a Basha enquiry in relation to Mr Derbridge’s evidence.

In that regard Mr Trevallion also drew attention to what Mr Derbridge said in his third ERISP of 16 June 2014 as follows:

Mr Trevallion submitted that what was contained in the ERISP of 12 July 2013 was ambiguous and equivocal and that was clarified in the ERISP of 16 June 2014. There was, therefore, no need to introduce the evidence in the July 2013 ERISP.

Mr Trevallion submitted that the material in the ERISP of July 2013 had only a very low probative value because of the number of times Mr Derbridge had been asked about the issue and the different answers that he had given. Mr Trevallion submitted that there would be unfair prejudice because of the possible emotional effect that the evidence would have on the jury in having evidence of preplanning involving the accused where there is no other evidence of this in the case.

In my opinion the Crown’s application should be acceded to because what was contained in the July 2013 ERISP was a prior inconsistent statement to the evidence given in chief by Mr Derbridge. The statement is a significant one because the Crown believed on the basis of Mr Derbridge’s undertaking to give evidence against both Ms Evans and the present accused that the evidence would be consistent with that ERISP. In that sense the evidence given by Mr Derbridge in omitting this significant matter was unfavourable to the Crown in any event.

I do not consider that the evidence in the ERISP is ambiguous or equivocal. The evidence in the ERISP is clear as to the accused’s involvement in the intention to kill the deceased. Certainly, however, the evidence when taken with the other evidence of Mr Derbridge including his evidence in chief and what is contained in his 2014 ERISP might be thought to involve difficulties relating to his credibility and reliability.

In Regina v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 Spigelman CJ (with whom Simpson and Adams JJ agreed said:

This view was followed in R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 at [66]-[67], [86], [162], [175], [194]-[197] and [215] notwithstanding that the Victorian Court of Appeal in Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507 declined to follow Shamouil.

I consider that the evidence contained in the 2013 ERISP has significant probative value as evidence that the accused had with Rachael and XY planned to kill the deceased. I do not consider that there is any unfair prejudice to the accused by its being admitted. It is obviously evidence that the accused would rather be excluded but that is not the test for unfair prejudice.

I do not consider that the jury is likely to misuse the evidence. Seen in the context of the facts in this case it is difficult to see that any emotional effect on the jury from the evidence would be more than minimal. Apart from its emotional effect it was not suggested how the evidence might be misused.

It is clear that Mr Derbridge’s reliability, and maybe his honesty, will be in issue because of the large number of inconsistent accounts he has given in relation to this issue. The fact that there is no other evidence supporting Mr Derbridge on this point is likely, if anything, to work in the accused’s favour. However, even if there is some legitimate prejudice to the accused, which is difficult to see, I am of the opinion that the probative value of the evidence far outweighs any unfair prejudice.

For those reasons I acceded to the Crown’s application under s 38.