R v Darcy - [2021] NSWSC 12

Supreme Court

New South Wales

Medium Neutral Citation: R v Darcy [2021] NSWSC 12
Hearing dates: 14, 15 and 22 May 2020
Date of orders: 15 January 2021
Decision date: 15 January 2021
Jurisdiction: Common Law
Before: Lonergan J
Decision:
The Prosecution may adduce the tendency evidence set out in its Notice of 20 December 2019 with the exception of:
(i) The evidence specified in (4a) of the Notice in relation to the serving of oysters kilpatrick to Colin Crossman, and
(ii) The tendency specified in (2d) of the Notice.

Catchwords:
EVIDENCE — tendency evidence — criminal proceedings — accused charged with murder — tendency rule — whether the evidence has significant probative value — whether unfair prejudice is suffered by the accused— tendency evidence combined with other evidence to be adduced at trial has significant probative value — directions to be given regarding the use of tendency evidence at trial — application granted with exceptions

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303
Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v R (2016) 257 CLR 300; [2016] HCA 14
McPhillamy v R [2017] NSWCCA 130
R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 219
R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306
R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209
R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164
The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40

Category: Procedural rulings
Parties: Regina (Crown)
Natasha Beth Darcy (Accused)
Representation:
Counsel:
B Hatfield (Crown)
J Manuell SC & N Broadbent (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Randall Legal (Accused)

File Number(s): 2017/349418
Publication restriction: Nil

Judgment

The accused, Natasha Beth Darcy, is charged with the murder of her domestic partner, Mathew John Dunbar, at Walcha on 2 August 2017. She was arraigned on 1 November 2019 and pleaded not guilty.
The Prosecution case is that the accused sedated Mr Dunbar and then staged his suicide by placing a plastic bag over his head, securing it with a length of elastic, and attached tubing to a helium cylinder piping helium into the secured bag, thus causing his death. She did this in order to obtain financial benefit under Mr Dunbar’s will.
The accused denies murdering Mr Dunbar.
The trial is listed to proceed before a jury on 31 March 2021. The Prosecution seeks a pre-trial ruling under s 97 of the Evidence Act 1995 (NSW) to permit tendency evidence to be led in its case against the accused.
The accused opposes that course.

The proposed tendency evidence

The Prosecution served its Tendency Evidence Notice on 20 December 2019. It seeks to prove tendencies on the part of the accused to act in a particular way and/or to have a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Darcy

Details

AGLC: R v Darcy [2021] NSWSC 12
Case: [2021] NSWSC 12
Decision Date: 15 January 2021

CaseChat Overview and Summary

In the case of R v Darcy, the accused faced a charge of murder in the Supreme Court of Victoria. The trial judge was called upon to determine the admissibility of specific evidence that the prosecution intended to present as tendency evidence. This evidence pertained to the accused's previous acts of violence towards the deceased. The accused argued that such evidence should be excluded as it would unfairly prejudice the jury against him.

The primary legal issue before the court was whether the tendency evidence proposed by the prosecution had sufficient probative value to outweigh any potential prejudicial effect on the accused. The court needed to assess whether the evidence, when considered in conjunction with other evidence to be presented at the trial, would significantly aid the jury in determining the accused's guilt or innocence. Additionally, the court had to ensure that appropriate directions would be given to the jury regarding the use of such evidence during the trial.

The court found that the tendency evidence, when combined with other evidence, had significant probative value and should not be excluded. However, it also acknowledged the potential for prejudice and ruled that specific directions must be given to the jury to mitigate any unfair prejudice. The court granted the application for the evidence to be admitted, subject to these conditions. Consequently, the trial proceeded with the evidence being presented, subject to the specified directions to the jury.

Orders