Supreme Court New South Wales Medium Neutral Citation: R v Darcy (No 5) [2021] NSWSC 768 Hearing dates: 04 May 2021 Date of orders: 04 May 2021 Decision date: 04 May 2021 Jurisdiction: Common Law Before: Lonergan J Decision: The evidence of police officers McGinty and Stuart regarding the position of the seats in the utility is admissible. Catchwords: EVIDENCE – opinion evidence - exceptions – lay opinion Legislation Cited: Evidence Act 1995 (NSW) ss 76, 78, 135 and 137 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. Objection has been taken to evidence sought to be led by the prosecution regarding observations made by two police officers on 2 August 2017 as to the position of the seat in the utility in the shed at Pandora. On 4 May 2021 I ruled that the evidence was admissible. These are my reasons. 2. The prosecution case against the accused is that she murdered Mathew Dunbar, the owner of the property Pandora, by faking his suicide on the night of 1 to 2 August 2017. She did this, it is alleged, by ordering a helium cylinder and attaching that cylinder by a hose to a plastic bag tied over the head of the deceased whilst he lay in his bed having been covertly sedated by her, and that she turned on the helium causing his death. 3. The utility in the shed had been used on 1 August to collect the helium cylinder whilst the accused and the deceased were in Armidale for, amongst other things, a medical appointment regarding the deceased's leg. 4. There is an issue in the trial regarding who last drove the utility. 5. The accused is a very short woman and the deceased is reported to have been very tall, over six feet three inches. 6. The accused gave two different versions to the police, in the days after the death of the deceased as to who put the utility away in the shed that evening, first saying it was the deceased who had put it away, and then saying it was her who did so. 7. The relevance of the utility is that the helium cylinder (about 20kgs in weight) was strapped to the back of the utility. The jury may well draw inferences about its transport into the house and by whom, in circumstances where the jury needs to consider carefully and exclude as a reasonable possibility that the deceased died by his own hand. 8. At the time this argument took place already in evidence was a photograph of the position of the seat (Exhibit AG photograph 19). 9. The evidence in issue is as follows. In the statement of DSC Graham McGinty 9 August 2017: "[7] I noticed that the driver's seat was positioned very close to the steering wheel and I could not have been able to sit in the driver's seat unless I moved the driver's seat to the rear to create space to get in the vehicle…. The passenger side seat was positioned to the rear which would provide sufficient leg room for a taller person…." In the statement of Constable John Stuart dated 15 August 2017: "[4] I immediately observed the driver's seat to be positioned very close to the steering wheel. I made a comment to DSC McGinty to the effect of "Not even I would fit in there". 1. Complaint is made that there is no evidence in the prosecution brief of the spatial dimensions of the driver's seat, the distance between the back of the driver's seat and the steering wheel or pedals or the distance between the front passenger seat and the glovebox and footwell wall or the measurements of the accused's weight and girth as at 1 August 2017. It is also noted that photograph 19 does not show the position of the driver's seat relative to the passenger's seat. 2. Objection is taken to the evidence on the basis that it is inadmissible opinion evidence precluded by s 76 of the Evidence Act 1995 (NSW), and it is not subject to any relevant exception and does not meet the criteria to be admissible under s 78 as evidence of lay opinion. 3. As a fall-back position it was argued that the evidence should be excluded under s 135 and or 137 of the Evidence Act, because it is misleading or confusing or lacks probative value and in the absence of precise measurements, there is a risk of speculation. 4. Section 76 of the Evidence Act provides: 76 The opinion rule (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. (2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. 1. Section 78 of the Evidence Act provides: 78 Exception: lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. 1. The Crown Prosecutor submitted that s 78 has a role to play in avoiding convoluted and unnecessary exercises such as measuring distances or requiring experts to be called to give evidence about something a person saw or perceived. No proper basis has been raised by the accused as to why the evidence should be rejected or its use limited under ss 135 and 137. 2. I agree with the Crown Prosecutor's submissions. Observations by attending police officers about what they saw and perceived regarding the position of the seats in the utility is an unexceptional application of the s 78 exception to s 76 of the Evidence Act. 3. There is no requirement to convert to an expert evidence issue, a simple everyday observation of seat positions in a vehicle. 4. The evidence of the police observations is simply and understandably expressed and is necessary to understand the position of the seats in the utility as observed by them on that day and it is admissible under s 78 as an exception to the opinion rule. 5. The probative value of the evidence is not substantially outweighed by any danger the evidence might be unfairly prejudicial to the accused, or be misleading or confusing, or cause undue waste of time: (s 135). On the contrary it is simple, clearly expressed, saves time and its probative value is high. The probative value of the evidence is not outweighed by any danger of unfair prejudice to the accused: (s 137). 6. The evidence is admissible. ********** Amendments 20 July 2021 - Par 9: line 4, corrected "rea" with "rear" Par 18: line 1, replaced the word "undertake" with "understand" Par 19: line 2, removed the word "a" before the word "cause" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 July 2021