The State of Western Australia v Newton [No 2]
[2020] WASC 181
•28 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NEWTON [No 2] [2020] WASC 181
CORAM: MCGRATH J
HEARD: 16 MARCH 2020
DELIVERED : 28 MAY 2020
FILE NO/S: INS 246 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
SHAWN ADAM NEWTON
Accused
Catchwords:
Criminal law - Admissibility of evidence - Objection to evidence that accused possessed firearm at time of arrest
Legislation:
Criminal Code (WA), s 279, s 333, s 338A(d)
Result:
Evidence inadmissible
Category: B
Representation:
Counsel:
| Prosecution | : | Mr R F Owen with Mr J E Keogh |
| Accused | : | Mr S B Watters with Ms A M Taylor |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Kate King Legal |
Case(s) referred to in decision(s):
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
MCGRATH J:
The accused Mr Newton has been indicted on three counts being that:
1.On 14 July 2017 at Scarborough he unlawfully detained Gavin Michael Barr contrary to s 333 of the Criminal Code.
2.On 14 July 2017 at Scarborough he made a threat with intent to compel Gavin Michael Barr to do an act he was lawfully entitled to abstain from doing contrary to s 338A(d) of the Criminal Code.
3.On or about 14 July 2017 at Scarborough or elsewhere in Western Australia he murdered Rebecca Jane Gascoigne contrary to s 279 of the Criminal Code.
Mr Newton has pleaded not guilty to the three counts. At his trial the State proposes to lead evidence that at the time of his arrest on 24 July 2017, Mr Newton was in possession of a firearm. Mr Newton objects to that evidence being relied upon by the State at trial. I have determined that the evidence concerning the possession of the firearm by Mr Newton some 10 days after the alleged incident is inadmissible.
The State's case
The State's case as alleged in the statement of material facts is in the following terms:
1.As at July 2017, Mr Gavin Barr resided at Unit 7, 51 Abbett Street, Scarborough (the Unit). Ms Gascoigne who also lived at the Unit was in a casual domestic relationship with Mr Newton. Mr Barr permitted Mr Newton to temporarily reside at the Unit.
2.On the evening of 14 July 2017, Ms Gascoigne and Mr Newton were in Ms Gascoigne's bedroom. At about 7.00 pm, Mr Barr knocked on the bedroom door. Mr Newton opened the door and Mr Barr asked to speak to Ms Gascoigne in private. Mr Newton responded aggressively causing Mr Barr to retreat towards the kitchen with Mr Newton following him. Mr Newton produced a knife and claimed that he was armed with a gun.
3.Mr Newton ordered Mr Barr into Ms Gascoigne's bedroom. Ms Gascoigne was lying on the bed with her wrists and ankles bound with zip ties.
4.Mr Newton remonstrated with Mr Barr and Ms Gascoigne about their previous sexual encounters. Mr Newton then assaulted Ms Gascoigne by stuffing a sock in her mouth and punching her several times. He inferred he was going to kill Ms Gascoigne and threatened Mr Barr by again stating he had a gun.
5.Mr Newton ordered Mr Barr to go to the living room and lie face down on the floor looking away. He threatened to kill Mr Barr if he moved. Mr Newton dragged Ms Gascoigne from the bedroom to the living room, wrapped her head in glad wrap and further bound her wrists, ankles and head with gaffer tape. Mr Newton then wrapped Ms Gascoigne in a rug. Mr Newton continued to punch her while binding and wrapping her.
6.Mr Newton searched the Unit for items that could identify Ms Gascoigne and him. Mr Newton placed items such as clothing, condoms and toothbrushes into garbage bags.
7.Mr Newton threatened to kill Mr Barr if he did not assist in disposing of Ms Gascoigne's body. The accused and Mr Barr placed Ms Gascoigne's body and the garbage bags into the boot of Mr Barr's vehicle. They disposed of the garbage bags and then drove to a carpark at Whitfords Beach, where Mr Newton intended to bury Ms Gascoigne's body. Mr Newton left the vehicle to make a telephone call and Mr Barr was able to escape in his vehicle with Ms Gascoigne's body still in the boot.
8.Mr Barr saw two police vehicles as he drove south along the Mitchell Freeway. He stopped and informed the police about the incident. Ms Gascoigne's wrists and ankles were still bound when the police located her body in the boot of Mr Barr's vehicle.
9.On 24 July 2017, Mr Newton was arrested. At the time of his arrest he was wearing a wig and had possession of a loaded firearm in the pocket of the jumper that he was wearing.
10.Dr White, forensic pathologist, conducted a post-mortem examination of Ms Gascoigne's body. Dr White reported that, in her opinion, the cause of Ms Gascoigne's death was 'asphyxia in a women with a traumatic brain injury and drug effect'.
The evidence in contention
Counsel for Mr Newton has raised an objection to the State's proposal to lead evidence that at the time of Mr Newton's arrest on 24 July 2017 he was in possession of a firearm. The objection was not the subject of a written application nor did either party rely upon a written outline of submissions. I received oral submissions and have been provided with a copy of the State's brief of evidence.
Mr Barr in his police statement recalls that at the time of the alleged offending on 14 July 2017, Mr Newton made the following utterances concerning a firearm:
819.The next thing I'm remembering is Shawn walking back toward the doorway of Becky's bedroom to like look at her and I just stood where I was in the kitchen.
820.He says to Rebecca, 'Tell him I've got a gun'.
821.He didn't get a response and he said it again, 'Tell him I've got a gun!'
822.Becky said in a very mooted tone, 'He's got a gun'.
823.When I say a mooted I mean her voice was faint and squeaky sort of.
824.It wasn't Becky's normal voice.
825.Shawn then sort of opened the left side of his jacket as if to show me the gun but my view was obstructed by way he was standing and I could see what was in his jacket.
826.I didn't doubt that he had a gun.
Mr Barr refers to one other utterance by Mr Newton concerning a firearm:
1118.On the way to this car park Shawn said 'We are going up the coast, I have already got two holes dug'.
1119.I said 'What, for me and Rebecca?'
1120.He said, 'No I already had them dug'.
1121.At this time he is telling me how he might be able to get me out of doing the 'kill shot'.
1122.When he said the 'kill shot' I believed he was going to force me to shoot Rebecca to finish her off.
1123.He spoke about it a couple of times during the night.
Mr Barr does not state that he observed Mr Newton in possession of a firearm at any time on 14 July 2017. Further, Mr Barr does not state that he observed Mr Newton in possession of a firearm prior to 14 July 2017.
On 24 July 2017, Mr Newton was arrested. Police Officer Ingram states that at the time of the arrest, he found located in the front pocket of the jacket worn by Mr Newton 'a silver firearm which had been covered in black tape.'[1] Police Officer Ingram states that located in the front pocket of Mr Newton's shorts were two rounds of ammunition.[2]
[1] Statement of Police Officer Ingram [21], State Brief of Evidence, 742.
[2] Statement of Police Officer Ingram [24], State Brief of Evidence, 742.
Police Officer Lawson states that 'a revolver covered in black electrical tape was taken from the front pocket of his jumper that was later found to hold a live round ready in the chamber.'[3]
[3] Statement of Police Officer Lawson [20], State Brief of Evidence, 800.
Police Officer O'Keefe states that found located in the front pocket of Mr Newton's jacket was a silver revolver which was wrapped in electrical tape.[4] Police Officer O'Keefe removed the electrical tape which resulted in the firearm splitting into two pieces and then observed 'that there was one round of ammunition in the cylinder. The round was positioned directly behind the firing pin of the firearm.'[5] In addition, he states that two rounds of ammunition were also found in the pocket of Mr Newton's shorts.[6]
[4] Statement of Police Officer O'Keefe [15], State Brief of Evidence, 897.
[5] Statement of Police Officer O'Keefe [17], State Brief of Evidence, 897.
[6] Statement of Police Officer O'Keefe [18], State Brief of Evidence, 897.
Subsequently, the WA Police Forensic Firearm Unit forensically examined the firearm and ammunition. Police Officer Inskip determined that the firearm comprised two separate sections that were affixed together with tape to permit the firearm to function as a single shot firearm.[7] The cylinder was unable to revolve due to the hindrance of the tape. The seized ammunition was capable of being discharged from the firearm.[8]
[7] Report of Police Officer Inskip [5], State Brief of Evidence, 1192.
[8] Report of Police Officer Inskip [4.1.1], State Brief of Evidence, 1189.
Relevant legal principles and assessment
It is uncontroversial that evidence is not admissible unless it is relevant to an issue at trial. In order for that evidence to be relevant it is necessary that it could rationally effect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[9]
[9] Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, 319.
Relevant evidence may be excluded if its prejudicial effect exceeds its probative value.[10]
[10] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 191 ‑ 192.
Evidence is prejudicial when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.[11]
[11] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 609 ‑ 610.
The State advanced a number of bases upon which the evidence of the firearm found on Mr Newton some 10 days after the incident was admissible. From the oral submissions made by counsel for the State I distil the following contentions that the State says supports a finding that the evidence is admissible.
1.On 14 July 2017, the accused was not merely pretending to be armed but rather his conduct and utterances support a finding that he was in fact armed. The possession of the firearm 10 days later supports that finding.
2.The fact that on 24 July 2017 Mr Newton was in possession of a firearm is relevant for the jury's determination of the credibility and reliability of Mr Barr's account of the incident on 14 July 2017.
3.Mr Barr was unable to observe a firearm on the person of Mr Newton on 14 July 2017. The fact that the firearm seized on 24 July 2017 was wrapped in black tape assists the trier of fact in determining why Mr Barr was unable to observe the firearm. That will affect the jury's assessment of the reliability and credibility of Mr Barr.
4.The firearm when found on Mr Newton on 24 July 2017 was in a similar part of the clothing that Mr Newton indicated the weapon was held on 14 July 2017.
5.The firearm was only capable of discharging one bullet at a time. Mr Newton referred to a 'kill shot' when speaking to Mr Barr on 14 July 2017. The forensic examination established that the firearm found in the possession of Mr Newton was only capable of firing one shot at a time. That supports a finding that the firearm seized was the same firearm that must have been in possession of Mr Newton on 14 July 2017.
6.The firearm was dangerous to fire due to the component parts and tape. That supports a finding that Mr Newton did not use the firearm in the residence on 14 July 2017 for the reason that it would have made a loud sound, was dangerous to fire and that only one person could be killed.
I am not persuaded by the State's submissions that the finding of a firearm on the person of Mr Newton on 24 July 2017 is relevant.
A firearm was not used to inflict injury on the deceased.
Prior to 14 July 2017, and on 14 July 2017, Mr Barr did not observe Mr Newton in possession of a firearm. Mr Barr is only able to give evidence that Mr Newton represented that he possessed a firearm. The State must prove that Mr Newton unlawfully detained Mr Barr and that he made a threat to Mr Barr to compel him to do an act. The jury will determine the honesty and reasonableness of Mr Barr's belief that Mr Newton had possession of a firearm on 14 July 2017. That will be an assessment based, in part, on the past relationship between the two men and the actions and utterances of Mr Newton on 14 July 2017. The fact that Mr Newton possessed a firearm 10 days later is not relevant to the issue of Mr Barr's belief on 14 July 2017.
Further, the fact that Mr Newton possessed a firearm on 24 July 2017 does not rationally support a finding that he possessed a firearm on 14 July 2017. The words uttered by Mr Newton concerning the 'kill shot' are replete with uncertainty. Further, on 14 July 2017 Mr Barr had no knowledge of the existence of a firearm that discharged a single piece of ammunition. That became known to the police 10 days later.
Accordingly, the evidence concerning Mr Newton possessing a firearm on 24 July 2017 is inadmissible. Consequently, the ballistics report is also inadmissible.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath
27 MAY 2020
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