R v Darcy (No 3)

[2021] NSWSC 594

Supreme Court

New South Wales

Medium Neutral Citation:	R v Darcy (No 3) [2021] NSWSC 594
Hearing dates:	30 April 2021
Decision date:	30 April 2021
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	The DVD taken on 18 November 2017 and observations of Mr Carey made on 18 November 2017 set out in his statement of 27 November 2017 regarding the chimney at Pandora are not admissible.
Catchwords:	EVIDENCE – discretions – exclusion of evidence – criminal proceedings – application in relation to admissibility of evidence – relevance – admissibility of DVD recording taken by police containing lay observational evidence – whether discretion to exclude should be exercised
Legislation Cited:	Evidence Act 1995 (NSW), ss 55, 56 and 135
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

1. An issue has arisen on day 20 of this murder trial as to whether a DVD recording and some lay observational evidence about creosote found in the chimney at Pandora on 18 November 2017, over three months after the night Mr Dunbar died, is admissible. Creosote is a tar-like by-product of the burning of wood.

2. The accused has been charged with the murder of her domestic partner, Mathew John Dunbar at Walcha on 2 August 2017. It is the Crown case that the accused faked the suicide of Mr Dunbar by sedating him with a cocktail of drugs, including an animal sedative that she obtained from a vet (Acepromazine) and that she attached a plastic bag to his head with elastic tied around his neck and pumped helium from a cylinder she had ordered into the bag, thus asphyxiating Mr Dunbar and causing his death.

3. She has given various accounts of what happened that night to the police in recorded interviews in August and November 2017. She says that the reason she found Mr Dunbar at about 2:00am was because when she opened the door to the wood stove, smoke came into the lounge room, activating smoke alarm(s) and she went to inform Mr Dunbar this had occurred.

4. The DVD recording, six minutes long, was taken by a police officer who was present on 18 November 2017 and includes some commentary by the SES volunteers who on 18 November 2017 climbed onto the roof to look into the chimney flue. The DVD shows the volunteers poking at and breaking up a black tar-like substance in the chimney after removing the flue cap.

5. The SES volunteers involved had also attended Pandora on the night Mr Dunbar died and observed certain things inside the house. There is no issue about that evidence being led however the Crown Prosecutor stated that he will not be showing the DVD or leading the evidence from the SES volunteer Mr Carey about his observations of the chimney on 18 November 2017.

6. The Crown Prosecutor submitted that evidence showing or talking about the appearance of the inside of the chimney on 18 November 2017 is irrelevant and therefore not admissible. There is no evidence at all regarding whether the fire was used in the intervening three and a half months or the rate of creation of the creosote.

7. Senior counsel for the accused Ms Manuell, submitted that the evidence is relevant because it has the potential to shed light on the truth of the accused’s account she gave to police about what happened in the house on the night Mr Dunbar died. The accused told the police in one or some of her ERISPs that when she opened the door to the fire to put in more wood, smoke came into the lounge room thus setting off the smoke alarm(s) and this is the reason why she went to talk to the accused and found him in bed, not breathing, with a bag over his head at about 2:00am on 2 August 2017.

8. Ms Manuell submitted that therefore, anything that showed that the chimney was “blocked”, supported the accused’s account and so met the test of relevance. She also submitted that the creosote was now “destroyed” and so there was no scope for the obtaining of expert comment about the state of the chimney.

9. On 30 April 2021, I ruled that the DVD and oral evidence about the inspection was not admissible as that evidence does not meet the test of relevance. These are my reasons for that ruling.

Decision

10. The test is relevance is set out in s 55 of the Evidence Act:

55   Relevant evidence

(1)  The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)  In particular, evidence is not taken to be irrelevant only because it relates only to—

(a)  the credibility of a witness, or

(b)  the admissibility of other evidence, or

(c)  a failure to adduce evidence.

11. As stated in s 56, evidence that is not relevant is not admissible:

56   Relevant evidence to be admissible

(1)  Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2)  Evidence that is not relevant in the proceeding is not admissible.

12. The fact in issue is whether on the night the deceased died, 1 to 2 August 2017, smoke emanated from the fire at about 2:00am and activated the smoke alarm(s) in the manner asserted by the accused.

13. I am of the view that nothing shown in the DVD about the state of the chimney three and a half months later could, if accepted, rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue in the proceedings.

14. The DVD and oral evidence amounts to no more than an observation three and a half months later of the inside of the chimney, with comments by a lay person that includes surmise and speculation by that person.

15. There was no expert evidence explaining how it was that the state of the chimney on 18 November 2017 could be used to reason – permissibly – that the chimney was in the same or similar state on 2 August 2017, thus providing a necessary connection between the observed state of the chimney in November 2017 and the assertion of smoke on 1 to 2 August 2017.

16. It does not make the fact in issue - the assertion by the accused that the smoke alarm(s) were activated by smoke - more probable than it would be without the evidence.

17. There was nothing that explained that the creosote, or the extent of the burnt material found in the chimney on 18 November 2017, meant that it was more likely, or even “more possible”, that smoke would have entered the lounge room when the door to the fire was opened on the night of 1 to 2 August 2017.

18. Even if the evidence was admissible, I would exercise my discretion to exclude the evidence under s 135 of the Evidence Act on the basis that its probative value - which is very weak - is substantially outweighed by the danger that it might be unfairly prejudicial to the Prosecution and that it is potentially misleading or confusing and would cause undue waste of time.

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Decision last updated: 16 July 2021