R v Darcy (No 4)

[2021] NSWSC 683

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Darcy (No 4) [2021] NSWSC 683

Hearing dates:

4 May 2021

Date of orders:

4 May 2021

Decision date:

04 May 2021

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

The part of the accused’s letter to Ms Elderfield sought to be adduced is inadmissible.

Catchwords:

EVIDENCE – relevance –

Legislation Cited:

Evidence Act 1995 (NSW), s 55

Cases Cited:

Edwards v R (1993) 178 CLR 193; [1993] HCA 63

R v Xie [2017] NSWSC 63

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. The accused is 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 (Acepromazine) that she obtained from a vet, 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.

2. An issue has arisen on day 21 of this trial regarding the relevance of some parts of correspondence the accused had in early 2020 with a school friend Ms Elderfield.

3. The correspondence between them began in 2014 with Facebook messages. After the arrest of the accused in November 2017, Ms Elderfield visited the accused in gaol a few times and they exchanged letters.

4. The relevant letters to be placed into evidence by the Crown were sent by the accused around January 2020 and can shortly be described as attempts to persuade Ms Elderfield to give false evidence to assist the accused at trial. The first letter included a detailed plan of what Ms Elderfield would need to say, how she could explain why it had taken her so long to tell authorities what she knew and the name of the accused’s solicitor and how to explain to the solicitor why Ms Elderfield was only contacting her two and a half years after events.

5. The letter also contained this inducement:

1. “Once I am found not guilty, which would be pretty much assured if you help me, then I automatically get the inheritence (sic) Mat wanted the children and I to have. I would be willing to give you $20,000…”

6. There was a follow up letter sent by the accused to Ms Elderfield dated 2 January 2020 which stated amongst other things:

“In my last letter I offered you some money to help me and I just wanted to say I’m sorry if the amount I offered you offends you. I’m very generous with my friends, Mathew taught me that and I can give you as much as you need…”

7. In a letter sent 8 days later to Ms Elderfield, the accused stated, amongst other things: “…I feel so hopeless. I love my kids and I don’t want to leave them but I just don’t know how much more I can fight…”.

8. These letters from the accused to Ms Elderfield were provided by Ms Elderfield to the DPP whilst the trial was in progress in April 2021.

9. The accused does not (and could not) object to the letters offering the bribe being tendered in evidence but Mr Broadbent for the accused submits that that part of the subsequent letter set out in para 7 is also relevant because it provides state of mind context for the earlier letters. He argued that hat excerpt would demonstrate to the jury that they should not assume that the attempted bribe was made only as a result of a realisation of guilt and a fear of the truth”: Edwards v R (1993) 178 CLR 193; [1993] HCA 63 (“Edwards”), but as a result of other considerations, namely her owerwhelmed emotional state and concern for her family.

10. Mr Broadbent argued that those statements in the letter was the type of evidence contemplated in R v Xie [2017] NSWSC 63 (“Xie”) at [496] where the Court noted that the principles in Edwards v The Queen could apply, with appropriate adaptation, to post offence conduct.

11. The Crown Prosecutor submitted that the statements are not relevant and are no explanation at all for sending the letters offering the inducement to lie, and are just an attempt to get sympathy from Ms Elderfield by referring to her predicament concerning her family.

Decision

12. Only relevant evidence is admissible, and as set out in s 55 of the Evidence Act 1995 (NSW), 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.

13. The fact in issue is the accused’s state of mind in and around January 2020 when she attempted to bribe Ms Elderfield to give false evidence.

14. The relevance of the declarations of “love for my kids” and “feeling so hopeless” and “can’t fight anymore” is said to provide evidence that there is some motive or factor other than a consciousness of guilt that led to the offer being made.

15. The fatal problem with this submission is that the sentiments expressed in the letter are so non-specific that they provide no evidence at all of any alternative explanation for this post offence conduct.

16. It is nothing more than another fatuous manipulative statement forwarded to Ms Elderfield by the accused to further her attempt to persuade her to lie to police to assist her in her murder trial, in return for a large sum of money.

17. It does not meet the test of relevance and is not admissible.

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Amendments

20 July 2021 - Inserted Catchwords on Cover sheet

Decision last updated: 20 July 2021