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." 1. 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. 2. 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. 3. 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. 4. 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").