R v Newson; R v Cunneen (No 1)
[2019] NSWSC 875
•11 July 2019
Supreme Court
New South Wales
Medium Neutral Citation: R v Newson; R v Cunneen (No 1) [2019] NSWSC 875 Hearing dates: 11 July 2019 Decision date: 11 July 2019 Jurisdiction: Common Law Before: Ierace J Decision: The applications to discharge the jury are granted.
Catchwords: CRIME – application for discharge of jury – prejudicial and irrelevant evidence of historical sexual assault adduced in examination in chief – whether prejudice irreparable – application granted
Legislation Cited: Evidence Act 1995 (NSW), s 97
Category: Principal judgment Parties: Regina (Plaintiff)
Sayle Kenneth Newson (Accused)
James Anthony Cunneen (Accused)Representation: Counsel:
Solicitors:
L Carr SC (Crown)
P Massey (Accused Newson)
P Krisenthal (Accused Cunneen)
Office of the Director of Public Prosecutions (Crown)
Ramsland Laidler Solicitors (Accused Newson)
O’Brien Winter Partners (Accused Cunneen)
File Number(s): 2017/183274; 2017/186919
Judgment
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HIS HONOUR: The accused Sayle Newson is charged that he murdered Carly McBride, on 30 September 2014 at Muswellbrook. On that date, Ms McBride disappeared. Her skeletal remains were found 22 months later in bushland, approximately 50km from where she was last seen. An examination of her remains disclosed 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.
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As of the date of Ms McBride’s disappearance, Mr Newson had been in a relationship with her for approximately two months. The essence of the Crown case is that on the day she disappeared, in a fit of rage, Mr Newson killed her. The Crown contends that Mr Newson had a tendency to be overwhelmed by jealousy and possessiveness towards his partners, to a point of acting violently. As well, the Crown contends that he was regularly using the drug methylamphetamine at the time and that when he used drugs, he had a tendency to be aggressive or violent when angered. Mr Newson was alleged to be an enthusiast of Muay Thai, sometimes known as Thai kick boxing, that, as I understand the Crown case, involves applications of force that may be consistent with some or all of the fractures suffered by Ms McBride.
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James Cunneen is charged with being an accessory after the fact to the murder of Ms McBride, the case against him being that he assisted Mr Newson to convey Ms McBride’s body to the location where her remains were subsequently discovered. The case against both accused is circumstantial.
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Today is the thirty-first day of the trial, which has an overall estimate of three months. Counsel for both accused have made an application that the jury be discharged, in the light of evidence heard yesterday, that is said to be both highly prejudicial and irrelevant. The evidence concerned an incident said to have occurred at Narrabeen (“the Narrabeen evidence”). Although I directed the jury to disregard the evidence within minutes of it being adduced, it is submitted that the prejudicial effect of the evidence is incapable of being cured by a direction to the jury to disregard it. Mr Cunneen further submits that, alternatively, his trial proceed separately.
The background to the applications
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Prior to the empanelling of the jury, I heard an application by the Crown to rely upon certain evidence from a number of witnesses as tendency evidence, pursuant to s 97 of the Evidence Act 1995 (NSW). The evidence was not otherwise admissible. The Crown relied upon two separate tendency notices. One contended that Mr Newson, motivated by “jealousy and/or possessiveness” had acted towards various past partners in “a violent, controlling and jealous manner”. The other submitted that he had a tendency to “be aggressive or violent when drug affected” and to have a state of mind of “react[ing] with threats of violence, or expressed desire to inflict serious harm on others when angered”. There was a cross-over of material relied upon in both notices.
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In relation to the evidence of one such witness, the Crown sought to rely upon a series of events described in the witness’s statement. One such incident, encapsulated in a single paragraph of her statement, read as follows:
“I came up to Ballina, I was up here for a few weeks then went back to Mum and Dad’s. I had severe morning sickness, maybe this is why he left me alone. I remember a time in Narrabeen I went over to the house and Sayle was off his head, he had a gross cold sore on his mouth and he forced himself on me. I couldn’t stop him, I tried, it was the only time he ever did that. After it was over I ran to the car, when he realised he couldn’t stop me he began kicking the back panels of the car. I was in a relationship with a drug addict and I couldn’t stop him, so he would do whatever he wanted. That time, I could see he was off his face and something wasn’t right. He hadn’t slept, he had that cold sore and I couldn’t get away.”
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The paragraph was relied upon in both tendency notices. My ruling, in respect of both, allowed a part of the evidence reflected in the paragraph to be used for a tendency purpose was as follows:
“Paragraph (19), but only in relation to the witness referring to being pursued as she ran to the car and the accused then kicking the back panels of the car.”
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As is apparent, the balance of the paragraph included material which constituted an allegation that Mr Newson perpetrated a criminal act of sexual intercourse without consent on her. Although I have not yet handed down my reasons, I rejected its use as tendency evidence because I considered that its probative value did not outweigh its prejudicial effect: s 101(2) of the Evidence Act.
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Yesterday afternoon, the Crown led the witness through the relevant parts of her statement. Neither accused objected to certain agreed parts of the witness’s statement being led, so as to avoid the witness inadvertently giving evidence that was prejudicial and irrelevant, which I note was a sensible course. However, in that process, the Crown inadvertently put to the witness the parts of the paragraph that I had previously ruled to be inadmissible. The witness agreed with the offending propositions that were put to her as follows:
“Q. And there was an occasion at a location in Narrabeen you went to a house in that area and Mr Newson was present and he’d been using drugs, correct?
A. Correct.
Q. And he had what you described as ‘a gross cold sore on his mouth and he forced himself on me’, correct?
A. Correct.
Q. ‘I couldn’t stop him. I tried. It was the only time he ever did that,’ correct?
A. Correct.
Q. ‘After it was over, I ran to the car,’ and when he realised that he couldn’t stop you from doing that, he began kicking the back panels of that motor vehicle, correct?
A. He kicked the back panel once.”
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Shortly afterwards, counsel for Mr Cunneen raised the matter in the absence of the jury. I invited all counsel to consider their position overnight, and in the meantime, I brought the jury back into court, directed them to disregard the prejudicial evidence, and the trial continued. Counsel have now brought these applications.
Consideration
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A relevant factor in considering the applications is the extent to which there is otherwise evidence of a prejudicial nature in the trial, that casts the accused in an adverse light. An appropriate question to ask is whether, in the particular circumstances of this trial, the damage done is so significant, given the unavoidable prejudicial material that is already in evidence and still to come.
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There is such material, including Mr Newson’s drug-taking, him supplying the deceased with illegal drugs and initiating sexualised behaviour involving others, in circumstances that many would consider highly inappropriate. None of that material has been the subject of denial in cross-examination of relevant witnesses on behalf of Mr Newson. Equally though, none of that evidence involves Mr Newson committing an act against a former partner of such a serious criminal nature against her will.
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Some such material has prompted me to remind the jury that they are to consider such evidence dispassionately, and effectively to refrain from being judgmental about the morality of the accused’s behaviour.
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Similarly, there is prejudicial material properly before the jury concerning Mr Cunneen, particularly concerning the use and supply of illegal drugs.
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In relation to this application, the Crown and both accused rely on the existence of other prejudicial material in the trial for opposite purposes. The Crown submits that the jury has thus far appeared to take on board directions in respect of the other prejudicial material, and there is no reason to think they did not do so with the direction to disregard the Narrabeen evidence.
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The accused submit that there is a cumulative effect, as I have already outlined. Counsel for Mr Cunneen also submits that the prejudicial effect of the Narrabeen evidence is as relevant to his case as it is to Mr Newson’s, in that an element of the “accessory after the fact” charge is that the jury must be satisfied that Mr Newson murdered Ms McBride, so in that way, the prejudice against Mr Newson works against his client as well.
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Separately, there is evidence that the two accused were friends at the time, so that there is a risk of the Narrabeen evidence affecting the jury’s view of Mr Cunneen, to the extent that they form an adverse view of Mr Newson, if they are unable to put it out of their minds.
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I have come to the view that it is unrealistic to expect a jury to put the Narrabeen evidence out of their minds when deliberating on their verdict and that it adds to that existing prejudicial evidence in a way that, in my opinion, tips the scale; the accused’s right to a fair trial is irreparably damaged. Accordingly, with considerable reluctance given the duration of the trial so far, I accede to the applications in respect of both accused.
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Accordingly, the applications to discharge the jury are granted and when the jury convenes tomorrow morning it will be discharged.
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Decision last updated: 22 March 2023
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