R v Newson (No 1)

[2021] NSWSC 442

Supreme Court

New South Wales

Medium Neutral Citation:

R v Newson (No 1) [2021] NSWSC 442

Hearing dates:

8 April 2020

Decision date:

30 April 2020

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

Grant leave to the Crown to lead evidence of Witness A as tendency evidence in its case against the accused.

Catchwords:

EVIDENCE – tendency evidence – conduct – proof of tendency to have a particular state of mind – relevance to establishing motive – leave to lead certain ERISP evidence denied – leave to lead certain witness evidence granted

Legislation Cited:

Evidence Act 1995 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52

R v Newson; R v Cunneen (No 2) [2020] NSWSC 462

Category:

Procedural rulings

Parties:

Regina (Plaintiff)
Sayle Kenneth Newson (Accused)

Representation:

Counsel:
L Carr SC (Crown)
P Massey (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Ramsland Laidler Solicitors (Accused)

File Number(s):

2017/183274

Judgment

1. HIS HONOUR: This is an application to rely on tendency evidence made by the Crown pursuant to s 97 of the Evidence Act 1995 (NSW) (“the Act”) in respect of a forthcoming trial.

2. Sayle Newson (“the accused”) is charged with murdering Carly McBride (“the deceased”) on 30 September 2014 at Muswellbrook. The deceased was last seen on that date in a residential area of Muswellbrook. Her skeletal remains were found in bushland near Scone, 22 months later. An examination revealed various fractures that, according to forensic evidence, had been inflicted around the time she died and were associated with injuries that were capable of having caused her death.

3. At the time of the alleged offence, the accused was aged 37 and the deceased was aged 31. They had been in a relationship for approximately two months. The essence of the Crown case is that on that day, the accused attacked the deceased in a fit of jealousy, causing her death.

4. A trial of the accused, together with a co-accused, commenced before me and a jury on 23 May 2019, sitting at Newcastle (“the aborted trial”). The co-accused was James Cunneen, who was charged with being an accessory after the fact to the murder of the deceased, the case against him being that he assisted the accused to transport the deceased’s body to the location where her remains were subsequently discovered. The prosecution cases against both men were circumstantial in nature.

5. On Friday 12 July 2019, the jury were discharged, following inadmissible evidence from a witness being given at the hearing that was prejudicial against the accused to a point of not being curable by a direction to the jury to disregard it. A fair trial was no longer possible in those circumstances, at least in respect of the accused.

6. Shortly before the aborted trial commenced, I heard an application by the Crown seeking leave to rely on evidence of a tendency nature against the accused pursuant to s 97 of the Act, as set out in two tendency notices (“the first tendency application”). On 22 and 24 May 2019, I ruled that leave was granted to the Crown to lead certain parts of the material in each of the two notices, which I identified. I did not give reasons at that stage, and had not done so by the time that the trial aborted.

7. A commencement date of 4 May 2020 was set for a fresh trial. Whether my ruling in respect of the first tendency application continues to apply is subject to the provisions of s 130A(3) of the Criminal Procedure Act 1986 (NSW) (“the CPA”). That section relevantly provides:

“130A   Pre-trial orders and orders made during trial bind trial Judge

…

(3)   If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding.”

8. At a mention of this matter on 25 October 2019, I indicated to the parties that, pursuant to s 130A of the CPA, I was of the opinion that my rulings in respect of the first tendency application should be reconsidered. The hearing of the first tendency application was in less than ideal circumstances, the notices being significantly revised twice during the pre-trial hearing. That course was not opposed by any party.

9. A timetable for the filing of notices and submissions was set. However, on 27 March 2020, the trial date of 4 May 2020 was vacated, pursuant to a directive of the Chief Justice that jury trials be postponed, in view of the COVID-19 pandemic. The directive allows pre-trial applications to continue to be heard, so that when the postponement of jury trials is lifted, they may proceed expeditiously. The fresh tendency notices came before me for hearing on Wednesday 8 April 2020.

10. On that date, being Wednesday 8 April, I also heard an application by Mr Cunneen for a separate trial. I have granted that application, and accordingly, the accused’s fresh trial will be of him alone: R v Newson; R v Cunneen (No 2) [2020] NSWSC 462.

11. The Crown served two tendency notices on the accused titled “TN A” and “TN 1”, both dated 6 March 2020. They were in similar terms to those relied upon at the first tendency hearing. On 3 April 2020, the Crown indicated it would not proceed with TN 1, leaving only TN A for consideration (“the tendency notice”).

The tendency notice

12. The tendency notice identifies the tendency sought to be proved, as follows:

“The tendency sought to be proved is to have a particular state of mind, namely jealousy and possessiveness toward significant intimate female partners, and to act in a particular manner, namely to be aggressive and controlling towards such partners when motivated by jealousy or possessiveness.”

13. The Crown contends that the accused had demonstrated a tendency in his intimate relationships, both before and after his relationship with the deceased, to be overwhelmed by jealousy and possessiveness, to the point of acting violently, although not inflicting actual physical violence on the partner’s body.

14. The Crown case is that on the morning of 30 September 2014, which was a Tuesday, the accused drove the deceased in his vehicle from Buff Point on the Central Coast to Muswellbrook, so that she could visit one of her two children, a three-year-old boy, who resided with the boy’s father, Andrew Easton. It was arranged between them that the accused would drop the deceased off at Mr Easton’s home, which was in a residential street of Muswellbrook, and she would re-join him afterwards.

15. Mr Easton’s evidence in the aborted trial was to the effect that the deceased arrived at his home at about 12:45pm. Her son was not there, as he was at pre-school. They chatted, had coffee and a cigarette and went through some belongings he still had in storage from their time as a couple. She abruptly departed on foot after an hour or so, saying that she was going to be picked up at a McDonalds nearby. Mr Easton saw her walk away from the house in a direction consistent with the most direct walking route to that McDonalds. She was not seen again.

16. The accused told police that after dropping the deceased off at Mr Easton’s home, he briefly visited McDonalds and then waited at the residence of Mr Cunneen in Muswellbrook, who was a friend. When the accused had not received a phone call from the deceased, he visited Mr Easton, who told him she had left earlier that afternoon. He looked for her at McDonalds, where he showed patrons her photograph, and drove around Muswellbrook looking for her, to no avail. He reported her missing to police that night.

17. The issue in the trial is whether the accused killed the deceased, and in particular, in the context of the Crown case, whether he was so overcome by jealousy and possessiveness that he was determined to cause her grievous bodily harm or kill her. The Crown case statement includes the following:

“The injuries inflicted upon the deceased are consistent with the deceased having suffered a significant blunt force attack. Newson was trained in both kickboxing and Muay Thai, had a history of jealous and aggressive behaviour, hadn’t slept for several days and was under the effects of methylamphetamine on 30 September [2014].”

18. The accused partook in two extensive electronically-recorded interviews with police (“ERISPs”). He maintained that he enjoyed a loving, caring relationship with the deceased, in which she was able to feel safe and protected, and that he was not jealous of others or possessive of her. He conceded that he had been jealous in a relationship 14 years before which caused its demise, but that he had learned to overcome such feelings.

The relevant legislative provisions

19. The relevant sections of the Act are as follows:

“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.

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.

…

97   The tendency rule

(1)   Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless–

(a)   the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)   the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2)   Subsection (1) (a) does not apply if:

(a)   the evidence is adduced in accordance with any directions made by the court under section 100, or

(b)   the evidence is adduced to explain or contradict tendency evidence adduced by another party.

…

101   Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2)   Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3)   This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4)   This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.”

The material relied upon as tendency evidence

20. The material that is sought to be tendered as evidence of the contended tendency is identified as two witness statements, a text message exchange between the deceased and the accused, three questions and answers from the two ERISPs of the accused and an excerpt from a recording of an intercepted telephone conversation between the accused and another person.

21. At the hearing of the application, the Crown indicated that it would only rely upon one of the two excerpted witness statements and one answer from one of the ERISPs. The other material, absent the other witness statement, was admissible in any event, being the accused’s own words as to his feelings towards the deceased. The other witness statement was not pressed, given its absence of specificity of the context of alleged acts of aggression by the accused as to whether they were in fact prompted by jealousy and possessiveness.

Witness A’s statement

22. The remaining statement to be considered is of a partner to the accused in 2017, which was subsequent to the deceased’s disappearance (“Witness A”). She stated that she and the accused discussed the idea of a relationship before it began:

“… I told him that I have a lot of male friends and I don’t really have a lot of female friends. I just seem to get on better with guys. But I told him that I wasn’t going to change and that he would have to accept that. He said he understood that I had male friends and seemed to accept it.”

23. The relationship appears to have started shortly after Valentine’s Day 2017, and continued until the date of the accused’s arrest, four months later. Witness A stated that when they became “a serious couple”, the accused became jealous of the “male associates” in her life. He did not like her talking to men, to a point that she offered him access to her Facebook Messenger and texts in order to satisfy him that she wasn’t “up to anything behind his back”, and later offering to delete her Facebook account and Facebook Messenger “for him”. If she received a text message, he would pick up the phone and read the message. If it was from a male, he would question her about him, sometimes leading to an argument. If he could not find anything on the phone to “back up how he was feeling”, he would smash the phone or throw it out of a window, causing her to go through “at least 30 mobile phones” in the time she was in a relationship with him and to only buy cheap replacement phones. She recalled that he smashed one of her phones on his forehead. She noted that “the more he used the drug Ice, the more paranoid he became and the more he would break my phones.”

24. The witness stated that the accused never directed any violence towards her or stood over her to intimidate her, and that “the only time I started to get scared was after he smashed my room up twice”. She said, “it was like he was fucking pissed with himself because he knew deep down it was all in his fucking head”.

25. I note that the Crown case includes a passage from one of the accused’s ERISP interviews in which he said that the day before the deceased’s disappearance, he had an argument with her concerning men contacting her. He told her:

“… either you put a stop to this right now or I’m going to put a stop to it. I’ll go through your phone and … go and see each, each person, each guy in there.”

26. According to the accused, she then “cancelled” her Facebook on the spot, and he “got real fucking angry” and left. The accused stated that the deceased “cancelled” Facebook even though “she lives off Facebook” and was intending to change her mobile phone number the following day, being the day of her disappearance.

ERISP interview excerpt

27. The part of one of the accused’s ERISP interviews that is relied upon (“the ERISP excerpt”) is as follows:

“I ruined a relationship with the mother of my child through jealousy and it drove me insane … and I taught myself over the years to not be jealous and … if you give a woman everything she wants anyway there’s no reason to be jealous …”

28. The accused has one child who was born in April 2000, being 14 years before the deceased disappeared. The Crown case is that the accused’s relationship with that witness ended around the time of the child’s birth and that his reference is to that relationship between 1998 and 2000.

The accused’s submissions

29. The focus of the submissions of counsel for the accused was on the evidence of Witness A. He submitted that Witness A’s statement is not relevant to a fact in issue in the trial, because she has not alleged that the accused’s possessive and controlling behaviour manifested in violence perpetrated on her person, whereas the fact in issue is whether the accused perpetrated violence upon the deceased. Reliance was placed on the majority judgment in McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 at [27], [30] and [32] (Kiefel CJ, Bell, Keane, Nettle JJ), to the effect that for evidence to be admitted as tendency evidence, it must do more than “meet the basal test of relevance”. In order to have significant probative value, it must be capable of significantly bearing on proof of the fact in issue, and that the evidence of Witness A did not meet that test. Rather, it dangerously left the impression that “he was the kind of person who was more likely to have committed the offences”.

Consideration

30. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority (French CJ, Kiefel, Bell and Keane JJ) set out the sequence of steps to be taken when assessing the admissibility of evidence pursuant to s 97(1) of the Act. Their Honours noted that the threshold issue for all proposed evidence is relevance, pursuant to ss 55(1) and 56(1) of the Act and stated, at [37]:

“Before that question may be answered, it is necessary to identify the purpose or purposes for which the evidence is tendered. The identification of its purpose may have important consequences, especially in areas such as opinion evidence and tendency evidence.”

31. The purpose is identified by the tendency that is alleged. Therefore, the first step is to assess whether each proposed item of evidence is relevant to that purpose; whether it has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue by being relevant to the formulated tendency. In that assessment, considerations of credibility and reliability are sidelined.

32. I consider both Witness A’s evidence and the ERISP excerpt to be relevant to a fact in issue, namely, whether the accused, motivated by jealousy and possessiveness, was aggressive and controlling towards the deceased as his intimate female partner, and therefore admissible, in terms of ss 55 and 56 of the Act. Both items of evidence could rationally affect the assessment of the probability of the existence of the fact in issue as to whether he inflicted bodily harm upon the deceased with the intention of at least causing her grievous bodily harm, by tending to establish a motive.

33. The next stage is to consider whether the evidence has “significant probative value” pursuant to s 97(1)(b) of the Act. In relation to the meaning of “significant” in this context, the majority said in IMM at [46]:

“Cross on Evidence suggests that a ‘significant’ probative value is a probative value which is ‘important’ or ‘of consequence’. The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.”

34. I consider Witness A’s evidence to have significant probative value. There are similarities between Witness A’s description of the accused’s behaviour towards her and in her presence, motivated by his jealousy and possessiveness, and in the alleged nature of the accused’s jealous and controlling behaviour towards the deceased, in her being pressured the day before to “cancel” her Facebook and the accused threatening to “go through [the deceased’s] phone and … see … each guy in there”. Witness A’s observation that the accused’s behaviour worsened when he used methylamphetamine is also relevant. The Crown case statement states that, on the morning of the deceased’s disappearance, during the drive from the Central Coast to Muswellbrook, the accused “stopped and used methylamphetamine several times”.

34. In my opinion, the behaviour described in the ERISP excerpt does not have significant probative value, for three reasons. Firstly, the reference to his jealousy driving the accused “insane”, does not necessarily infer it prompted him to be either aggressive or controlling towards his then-partner. Secondly, his behaviour in a different relationship 14-16 years before the events in question significantly reduces, if not eliminates, its relevance, because of the potential for a change in his behaviour in the intervening period. Thirdly, the passage is so bereft of detail as to be of no assistance.

35. However, my decision to reject it for a tendency purpose should not be understood as a rejection of it for all purposes, and, at this stage, I do not understand it to be the subject of an objection by the accused for other purposes.

36. The next step in relation to the evidence of Witness A, is, pursuant to s 101(2) of the Act, a determination of whether I am satisfied that the probative value of Witness A’s evidence substantially outweighs any prejudicial effect it may have on the accused. There is no doubt that the evidence has a prejudicial effect; it portrays the accused as jealous and possessive to the point of highly irrational behaviour, such as slamming one of the witness’s phones against his forehead with such force so as to destroy it. Even if the witness’s claim that he smashed 30 of her phones over the course of their four-month relationship is an exaggeration, it still suggests sustained and determined controlling behaviour by him over that period of time.

37. The prejudicial affect is ameliorated by the witness’s insistence that she believed the accused’s anger was not directed against her and, in her words, he “never directed any violence towards me or stood over me to intimidate me”. On only one occasion did she “[start] to get scared”.

38. As I have already noted, part of her anticipated evidence is that the accused’s behaviour worsened with his use of the drug methylamphetamine (“ice”). I do not consider that the reference to his use of methylamphetamine would be prejudicial, since there is a body of other evidence in the prosecution case to the effect that the accused was a frequent user of that drug.

39. I am of the opinion that the probative value of Witness A’s evidence substantially outweighs any prejudicial effect it may have on the accused.

Orders

41. Accordingly, I make the following order:

1. Grant leave to the Crown to lead evidence of Witness A as tendency evidence in its case against the accused.

**********

Decision last updated: 23 March 2023