R v Darcy (No 7)

[2021] NSWSC 740

Supreme Court

New South Wales

Medium Neutral Citation:	R v Darcy (No 7) [2021] NSWSC 740
Hearing dates:	07 May 2021
Date of orders:	08 May 2021
Decision date:	08 May 2021
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	Evidence of the “instant messages” between the deceased and BL in 2017, and AA in 2010, is not relevant in the proceedings and is not admissible
Catchwords:	EVIDENCE – relevance – admissibility of evidence - admissibility of various text messages between the deceased and male persons – evidence is not relevant and so not admissible
Legislation Cited:	Evidence Act 1995 (NSW) ss 55 and 56
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, argued on day 24 of the trial, as to the admissibility of a series of instant messages sent from and to the deceased’s iphone between the deceased and BL, a male person, in 2017 and between the deceased and AA, a male person, in 2010.

3. These messages appeared in the material downloaded from the deceased’s iphone as part of the police investigation.

4. The Crown does not propose leading evidence of those texts and argues that the messages are irrelevant as they shed no light at all on any fact in issue in the proceedings. Taken at their highest, the messages indicate that in 2010 and 2017, the deceased had flirted by text with male persons. Whether the deceased did so and the nature of his contact with these men is not a fact in issue in this trial, nor is the deceased’s sexuality a fact in issue in this trial.

5. Mr Broadbent on behalf of the accused argued that the deceased’s sexuality and sexual identity is a matter which is before the jury and the jury is entitled to consider to whom and when he discussed or did not discuss his sexuality. He argued that it was a relevant issue particularly given the evidence by Ms Hoy about her brother in law Craig Hoy who was gay and had told her some things that suggested the deceased and Craig Hoy, who suicided in April 2017, were close.

6. It was also somewhat more faintly submitted by Mr Broadbent, that the messages also provide context to something said by the accused to police who attended Pandora on 13 June 2017 in response to a concern about the deceased who had left the premises upset with a gun on that day, to the effect that he was “attention seeking” and that she “just thought he was having one of his poofter hissy fits”.

7. That last submission can be put to one side as the only issue to which that matter goes is that the accused’s nasty comment appears to be evidence of a homophobic attitude on her part which is not an issue before the jury in this trial.

8. For the reasons that follow I ruled on 8 May 2021 that the messages were not relevant and therefore were not admissible.

9. The test for relevance is set out in s 55 of the Evidence Act 1995 (NSW):

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.

10. 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.

11. There was evidence in the trial that the deceased had at least one relationship with a male and a number of relationships with women. None of the relationships were long term.

12. His best friend Lance Partridge knew this and had discussed these matters with the deceased. He offered the view that Mathew “only had one relationship with a male and it wasn’t successful. He wasn’t gay”.

13. There was no evidence that the deceased had any issues about his sexuality or that they formed the basis of any psychological difficulties he had experienced in the past. When treated for depression in the past he told his counsellor of difficulties with a past girlfriend and issues in his relationship with his adoptive mother.

14. There was no evidence of a psychological or psychiatric nature that indicated that his sexuality was in any way an issue for the deceased, such that it might be relevant to any reason he may have wanted to kill himself.

15. Much was sought to be made of a vague and drunken exchange Mr Craig Hoy had with his sister-in-law in 2014, but that material was inconclusive in terms of whether the deceased had any relationship with Mr Craig Hoy or had himself articulated any shared difficulties specifically about being a gay man in a small country town. There was evidence that Mr Craig Hoy may well have had difficulties of that kind and that those difficulties may have not been discussed openly with those around him, and although it is not clear on the evidence available in this trial, there is at least a possibility that these matters had a role in Mr Hoy’s suicide in April 2017.

16. To the contrary, the deceased discussed his sexuality openly with those to whom he was close – his best friend Lance Partridge, his friend Sally Heazlett. Nothing was said to his GP or any treating doctor or counsellor about those personal matters being any trigger for depression or emotional difficulty.

17. An assumption that simply because a person – here the deceased – chooses to explore his sexuality and to have sexual relationships with both men and women, that he must therefore be psychologically or psychiatrically suspect, or depressed, or ill in some other way, must be, and is, firmly rejected.

18. To argue as the accused does, that the deceased must have been “hiding” distress caused by his sexuality, is nothing more than the baseless assertion of a person who harbours hackneyed, ill-informed and small-minded homophobic opinions such as the one shared by the accused with police on 13 June 2017 referred to in para [6] of this judgment.

19. The fact or content of any flirtatious messaging with men engaged in by the deceased in 2010 or 2017 does not meet the test for relevance in this trial.

20. Whether the deceased was gay, bisexual, heterosexual or uncertain about his sexuality is not a fact in issue in this trial.

21. The reasonable possibility that the deceased died by his own hand is an issue in this trial, but given the absence of any expert or other evidence connecting as a matter of fact, any psychological or psychiatric distress on the part of the deceased associated with his sexuality, there is no relevance at all to this material.

22. The messages are not relevant and are not admissible.

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Decision last updated: 16 July 2021