R v Duffy (No. 1) [2015] NSWSC 444

R v Duffy (No. 1) [2015] NSWSC 444

Question 259 and its answer were admissible because, in the context of the surrounding ERISP questions and the events in the bedroom, the accused's failure to enquire about the deceased's welfare was relevant to whether he encouraged and assisted the co-offender as part of a joint criminal enterprise to kill the deceased. Any ambiguity about timing did not create unfair prejudice, and any risk of impermissible reasoning could be addressed by directions. The probative value was not outweighed by unfair prejudice, and admission did not reverse the onus of proof.

Jurisdiction
Australia
Judgment Date
21 April 2015
Procedural Posture
Criminal Proceeding Involving Charges of Murder, Alternatively Accessory After the Fact to Murder, and Breaking and Entering a Dwelling House and Committing a Serious Indictable Offence, Alternatively Stealing in a Dwelling House / Procedural Ruling on Whether Question 259 and Its Answer in the Accused's ERISP Should Be Excluded
Outcome
Question 259 and its answer in the accused's ERISP should not be excluded.
Legal Topics
['murder' 'joint Criminal Enterprise' 'erisp' 'probative Value' 'unfair Prejudice' 'onus of Proof']
['criminal Law' 'evidence'] ['murder' 'joint Criminal Enterprise' 'erisp' 'probative Value' 'unfair Prejudice' 'onus of Proof']

Case Brief

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Procedural Posture

Criminal Proceeding Involving Charges of Murder, Alternatively Accessory After the Fact to Murder, and Breaking and Entering a Dwelling House and Committing a Serious Indictable Offence, Alternatively Stealing in a Dwelling House / Procedural Ruling on Whether Question 259 and Its Answer in the Accused's ERISP Should Be Excluded

Legal Issues

  1. 1 ["Whether question 259 and its answer in the accused's ERISP were ambiguous and therefore misleading or confusing" "Whether the probative value of the accused's denial that he enquired about the deceased's welfare was outweighed by the danger of unfair prejudice" 'Whether admission of the question and answer would permit impermissible reasoning based on a supposed duty to assist or bad character' 'Whether admission of the question and answer would reverse the onus of proof']

Ratio Decidendi

Question 259 and its answer were admissible because, in the context of the surrounding ERISP questions and the events in the bedroom, the accused's failure to enquire about the deceased's welfare was relevant to whether he encouraged and assisted the co-offender as part of a joint criminal enterprise to kill the deceased. Any ambiguity about timing did not create unfair prejudice, and any risk of impermissible reasoning could be addressed by directions. The probative value was not outweighed by unfair prejudice, and admission did not reverse the onus of proof.

Court Disposition

Question 259 and its answer in the accused's ERISP should not be excluded.

Orders

  • ['Question 259 and its answer should not be excluded from the ERISP.']