District Court New South Wales Medium Neutral Citation: R v Cunneen (No. 1) [2022] NSWDC 585 Hearing dates: 9 May 2022 Date of orders: 10 May 2022 Decision date: 18 May 2022 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Crown application to tender Certificate of Conviction of third party granted. Catchwords: Accessorial liability; admissibility of Certificate of Conviction of principal offender of a felony; whether Evidence Act 1995 abrogates a common law rule. Legislation Cited: Evidence Act 1995 Civil Procedure Act 2005 Jury Act 1977 Cases Cited: Gall v R [2015] NSWCCA 69 Hollington v Hewthorn [1843] KB 587 R v BD (1997) 94 A Crim R 131 R v Carter & Savage [1990] 47 A Crim R 55 R v Dawson [1961] VR 773; (1960) 106 CLR 1. R v Kirkby (2000) 2 Qd R 257; (1998) 105 A Crim R 323 R v Muriniti (2018) 97 NSWLR 991 R v Simpson (2008) QCA 413 R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 R v Welsh [1998] 105 A Crim R 448; [1998] VSCA 138; [1999] 2 VR 66 Texts Cited: J D Heydon AC QC, Cross on Evidence (LexisNexis, 13th ed, 2022) Category: Procedural rulings Parties: Department of Public Prosecutions (Crown) James Anthony Cunneen (Accused) Representation: Counsel: A. Robertson (Crown) R. Cavanagh (Accused) File Number(s): 2017/186919 Publication restriction: Nil. Judgment Introduction 1. The accused James Anthony Cunneen is charged that between 29 September 2014 and 22 June 2017 at Scone and elsewhere in the State of New South Wales, he was an accessory after the fact to the murder of Carly McBride by her partner Sayle Newson at Muswellbrook on 30 September 2014. 2. The Crown proposes to tender a Certificate of Conviction of Newson, pursuant to s 178 of the Evidence Act 1995 which confirms that after a trial that took place between 29 March 2021 and 24 June 2021, Newson was convicted of the offence of murder pursuant to s 18(1)(a) of the Crimes Act 1900 on 24 June 2021. 3. The Crown relied on a bundle of documents which became Exhibit A on the voir dire. It included the Crown written submissions, the Certificate of Conviction pursuant to s 178 of the Evidence Act 1995 which the Crown proposed to alter by omitting certain irrelevant material, together with a number of authorities referred to in the Crown submissions and extracts from various Australian Law Reform Commission reports, which are relevant to the question to be determined. 4. The Crown application was opposed by the accused who relies principally on s 91 of the Evidence Act 1995, and alternatively, in the event that submission is not accepted, on ss 135 and 137 of the Evidence Act 1995 to exclude the evidence as being unfairly prejudicial to the accused. 5. On 10 May 2022, I ruled that the Certificate of Conviction was admissible. These are my reasons for doing so. The Crown's submissions 1. The Crown case is that between 1.30pm and 2.30pm on 30 September 2014, Newson physically assaulted the deceased with the relevant intent, causing her death. Although the precise manner in which he inflicted the injuries is unknown, the deceased suffered significant blunt force injuries to her head, causing her death. It is the Crown case that Newson soon afterwards enlisted the accused who helped him dispose of the deceased's body that day and then assisted him in the following ways: 1. Provided a false alibi for Newson and himself. 2. Did certain acts designed to make it appear that Newson was not involved in the murder, such as supporting Newson's public efforts to search for the deceased and posting to social media about her disappearance. 3. Did acts designed to make it appear that another person was an appropriate suspect, by supporting statements made by Newson to that effect. 4. Deleting digital data which may have tended to show the whereabouts of the phones of Newson and the accused in the relevant period, including 30 September 2014. 5. Updating Newson about the progress of the police investigation and being updated by him. 1. The Crown contends that neither the general common law concerning the inadmissibility of certificates of conviction of third parties (the rule in Hollington v Hewthorn [1843] KB 587) nor s 91 of the Evidence Act 1995 applies. Rather, the Crown relies upon the common law rule that upon the trial of an accessory, proof of the conviction of the alleged principal offender is admissible and constitutes prima facie evidence that the principal offence was effected by him. 2. The Crown relies principally on the following authorities. In R v Dawson [1961] VR 773, Dawson and Mckay were jointly indicted, Mckay for house breaking and stealing and Dawson for being an accessory after the fact to Mckay's felony. On arraignment, Mckay pleaded guilty and was remanded for sentence. Dawson pleaded not guilty and during the trial the Crown called evidence before the jury that Mckay, when arraigned, had pleaded guilty to the felony charged against him. On appeal, one ground relied on by Dawson was that whilst there was evidence that the felony had been committed, there was no evidence that Mckay had committed it. That argument was rejected by the Court of Appeal which stated, referring to the evidence of Mckay's plea at 774.2: "For it is a rule long established that upon the trial of a person on a charge of having been an accessory to the commission of a felony, proof of the conviction of the alleged principal offender is admissible, and constitutes prima facie evidence that the felony was committed by him." 1. Whilst Dawson successfully appealed to the High Court on another issue, the common law rule was not discussed (see (1960) 106 CLR 1). 2. The Crown also relied on R v Carter & Savage [1990] 2 Qd R 371; [1990] 47 A Crim R 55, in which case the rule described in Dawson was held to represent the law in Queensland. 3. The Crown also relied on R v Welsh (1998) 105 A Crim R 448; [1998] VSCA 138; [1999] 2 VR 66. In that case, the Court of Appeal in Victoria examined in detail the common law rule, its history, its acceptance in various jurisdictions and its limits. Ultimately, the Court concluded that the rule should continue to be applied in Victoria unless and until overruled by the High Court of Australia. 4. The Crown also referred to the Queensland case of R v Simpson (2008) QCA 413, in which the rule was recognised. In that case, the appellant had been charged with procuring a burglary by her son and another, Millsom. The son gave evidence in the trial but Millsom did not, although the Crown led evidence that he had pleaded guilty. At [40] White J said: "It is a fundamental principle that the conviction of the third party is ordinarily inadmissible as evidence of the facts on which it was based (R v Kirkby [2000] 2 Qd R 57). This is not to be confused with the rule that upon the trial of an accessory, proof of the conviction of the alleged principal offender is admissible and constitutes prima facie evidence that the crime was effected by him…" 1. With respect to s 91 of the Evidence Act, the Crown referred to well established principles of statutory construction. It was submitted that s 91 applies to both civil and criminal proceedings, however, it was significant that its genesis appears to have been the rule in Hollington v Hewthorn, which involved a civil case. 2. The Crown relied on a number of extracts from reports of the Australian Law Reform Commission in respect of the Uniform Evidence Bill. It submitted that in the various reports, no mention was made of the rule identified in Dawson. It was further apparent that exceptions were preserved in relation to both civil and criminal matters being the exceptions subsequently enacted in s 93 of the Evidence Act. Ultimately the Crown submitted that the rule in Dawson was a rule which was not intended by the legislature to be abrogated, and that s 91 does not expressly override the rule identified in Dawson. The Crown submitted that the common law rule is limited in scope to a small class of offences (namely, accessorial liability). Further, the rule is not conclusive and it was expected that the accused would challenge every aspect of the first element of the charge before the court, namely, when, where and how the deceased's death came about, and, if by deliberate human intervention, whether the requisite intention accompanied any such acts. The Crown's oral submissions 1. In his oral submissions, the Crown identified that Welsh had been decided before the promulgation of the Evidence Act in Victoria in 2009. The Crown also referred to the decision of the Court of Appeal in R v Muriniti (2018) 97 NSWLR 991, which involved an application by successful litigants for the solicitor for the unsuccessful party to pay their costs pursuant to s 99 of the Civil Procedure Act 2005. The solicitor argued that he, having not been a party to the appeal, was not bound by the findings made by the court in the earlier proceedings and relied on s 91 of the Evidence Act to submit that the successful litigants could not rely on the court's finding in the appeal proceedings. 2. The court held that the exercise of the court's jurisdiction to order costs under s 99 of the Civil Procedure Act did not involve the institution of fresh proceedings and therefore s 91 of the Evidence Act was not engaged and had no application. Further, the court held that it would have been an abuse of the court's process for a solicitor to be permitted to challenge findings made in substantive proceedings. Basten JA construed ss 91, 92 and 93 and in the context of whether the Evidence Act could be read as undermining the inherent power of the court to prevent an abuse of its processes, referred to s 9 of the Evidence Act. 3. The Crown also addressed a number of submissions made by the accused in his outline of written submissions. In [7], the accused had submitted that Dawson could be distinguished on the basis that the co-accused pleaded guilty. Here, Mr Newson had pleaded not guilty and the jury conviction was still subject to appeal. In response, the Crown referred to the Victorian Court of Appeal's decision in Welsh at p. 464 where Brooking JA, in referring to comparable decisions in other jurisdictions noted that the rule in Dawson had been accepted in numerous jurisdictions, and in a case from Arkansas, namely, Terry v State 149 Ark 462, the fact that the time for appealing or applying for a new trial had not expired when the record was tendered did not prevent its reception. 4. In response to the accused's submission at [11], relying on ss 135 and 137 to alternatively exclude the evidence on the basis that it was unfairly prejudicial to the accused, the Crown submitted that the Certificate of Conviction constituted only prima facie evidence of Newson's conviction of murder and did not significantly alter the Crown case. The Crown submitted the certificate would have the benefit of preventing the jury from undertaking research into Newson's conviction and whilst it would narrow the issues in the trial, the Crown would still lead all the available evidence admissible against the accused, which meant that the trial was not significantly shortened as a result of it. The Crown submitted that the defence would therefore still be able to test the evidence and submit to the jury that the Crown had not proved beyond reasonable doubt either the murder of Carly McBride or that the perpetrator was Newson. Further, the issue of proving specific intent for murder was extant and the Crown's circumstantial case was relevant to what the accused did to assist Newson, and whether the accused was aware that Newson had the necessary intent to commit the crime of murder. Further, it was submitted that in the Victorian and Queensland cases cited above, neither Court of Appeal had ruled the evidence of conviction as being prejudicial evidence which should be excluded. The accused's submissions 1. The accused relied on a written outline of submissions in which it noted that the case brought by the prosecution against the accused was entirely circumstantial. The submission responded to the six ways in which the Crown allege the accused assisted Newson, refuting each allegation. 2. The accused submitted that the purpose of the tender of the Certificate of Conviction was to establish prima facie evidence that the principal offence was effected by Newson. It was submitted there was no requirement for the jury to consider whether a prima facie case has been made out and further, the certificate did more than suggest a prima facie case had been made out by stating that Newson was convicted and what sentence he received. 3. The accused submitted that the Crown must prove the following beyond reasonable doubt: 1. That the crime of murder was committed by Sayle Newson. It was submitted that it was for the jury considering the case of Mr Cunneen to be satisfied beyond reasonable doubt that Newson murdered Carly McBride. In a circumstantial case like this, the requirement should be regarded as an intermediate fact or set of facts requiring proof beyond reasonable doubt before the jury could proceed to consider the remaining four elements. 1. That James Cunneen intentionally assisted Newson. 2. That at the time of that assistance, James Cunneen was aware of all of the essential facts and circumstances that give rise to the precise offence committed by Newson, relying on Gall v R [2015] NSWCCA 69. 3. That the accused with that knowledge, intentionally assisted Newson in the manner alleged by the Crown. 4. That the accused gave that assistance so that Newson could escape arrest, trial or punishment for the offence committed by him. 1. The accused relied on s 91 of the Evidence Act to exclude the evidence of the conviction of Newson for murder. It was submitted the tendering of the Certificate of Conviction for the purpose of showing a prima facie case potentially causes consideration of the existence of facts in issue to be circumvented. It was submitted the jury would be required to see that Newson had been convicted by a jury on the same or similar facts that they were considering, and that a jury had already decided the Crown had proved its case beyond reasonable doubt on this point. 2. The accused submitted that Dawson's case could be distinguished on the basis that in that case the co-accused pleaded guilty. Here, Newson had pleaded not guilty and his case was still subject to appeal. Similarly, in Carter & Savage, the principal had pleaded guilty. 3. The accused submitted that the other authorities relied on by the Crown either did not assist or could be distinguished. 4. The accused submitted that tendering the Certificate of Conviction "is misleading and confusing in that the onus of proof is on the prosecution to prove its case beyond reasonable doubt and this requires consideration of those matters which it relies on to prove the elements of murder." It was submitted that the probative value of the certificate would be substantially outweighed by its misleading and confusing effect. This would divert the attention of the jury from its task and "may be even more consequential than encouraging them to read media reports about the case". It was submitted the probative value of the evidence is outweighed by the danger of unfair prejudice to Mr Cunneen, relying on s 135 of the Evidence Act, and that its probative value is outweighed by the danger of unfair prejudice to the defendant, pursuant to s 137. Here, there was a real risk that the evidence would be misused by the jury in an unfair way, relying on R v BD (1997) 94 A Crim R 131. 5. The accused also relied on R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 and submitted that the evidence would provoke an irrational, emotional or illogical response and therefore fall into the category of being unfairly prejudicial. Finally, it was submitted that the admission of the Certificate of Conviction had the potential to damage the defence case in an unacceptable way, that is, "by focusing attention on a previous conviction that relates directly to what needs to be proved beyond reasonable doubt. The evidence of conviction has a real possibility of being given more weight than it deserves." 6. Finally, it was submitted that no common law rule of exception exists in New South Wales and that s 91 of the Evidence Act excludes the tendering of the Certificate of Conviction. The accused's oral submissions 1. In his oral submissions, counsel for the accused submitted that the jury first needs to decide whether the crime of murder was committed by Newson. If not so satisfied, the case stops at that point. In a circumstantial evidence case this would constitute a broken link in the chain. It was submitted that the focus of the jury must be on that issue. That focus was diverted where there is evidence of a fact that another jury has convicted Newson of that offence. 2. Counsel submitted that the Certificate of Conviction had the potential to divert the jury from its proper focus in the case, even with directions as to the standard of proof beyond reasonable doubt. 3. Counsel informed the court that he had made enquiries about the appeal in the matter of Newson and had been informed that the appeal is underway, notwithstanding that the 12-month period for an appeal to be lodged expires on 24 June 2022. 4. Counsel submitted that the Certificate of Conviction does not end the potential for jurors to research the matter of Newson, but rather that it would encourage such online searches. 5. Finally, in the event that the court did not accept the submissions on behalf of the accused, the evidence should be excluded pursuant to s 135 and 137 of the Evidence Act 1995 for the reasons outlined above. Determination 1. The following relevant provisions of the Evidence Act 1995 must be taken into account in determining the admissibility of the Certificate of Conviction of Newson in this trial: "9 Application of common law and equity (1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment. (2) Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following— (a) admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court, (b) the operation of a legal or evidential presumption that is not inconsistent with this Act, (c) a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding. 91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. 92 Exceptions (1) Section 91 (1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove— (a) the death, or date of death, of a person, or (b) the due execution of a testamentary document. (2) In a civil proceeding, section 91 (1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction— (a) in respect of which a review or appeal (however described) has been instituted but not finally determined, or (b) that has been quashed or set aside, or (c) in respect of which a pardon has been given. (3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section. 93 Savings This Part does not affect the operation of— (a) a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation, or (b) a judgment in rem, or (c) the law relating to res judicata or issue estoppel. 178 Convictions, acquittals and other judicial proceedings (1) This section applies to the following facts— (a) the conviction or acquittal before or by an applicable court of a person charged with an offence, (b) the sentencing of a person to any punishment or pecuniary penalty by an applicable court, (c) an order by an applicable court, (d) the pendency or existence at any time before an applicable court of a civil or criminal proceeding. (2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court— (a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question, and (b) stating the time and place of the conviction, acquittal, sentence, order or proceeding, and (c) stating the title of the applicable court. (3) A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate. (4) A certificate given under this section showing the pendency or existence of a proceeding is also evidence of the particular nature and occasion, or ground and cause, of the proceeding, if stated in the certificate. (5) A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate. (6) In this section— acquittal includes the dismissal of the charge in question by an applicable court. applicable court means an Australian court or a foreign court." 1. It is clear that s 178 of the Evidence Act is a mechanical provision for evidence to be given by certificate and does not relate to the admissibility of the certificate. 2. I am persuaded that the common law rule that upon the trial of an accessory, proof of the conviction of the alleged principal offender is admissible and constitutes prima facie evidence that the principal offence was effected by him, applies in New South Wales. This rule is an exception to the general common law rule that the conviction of a third party is ordinarily inadmissible as evidence of the facts on which it was based. Further, the rule is restricted to accessorial liability to the commission of a felony. 3. The rule is recognised in Cross on Evidence, 13th Edition at [5210]. The learned author goes on to state "but the rule does not make admissible against the accessory evidence which is otherwise not admissible against the accessory", citing R v Welsh (supra). 4. It is surprising that the issue has not been litigated in this jurisdiction before. However, on the basis of the authorities referred to above including Dawson and Carter & Savage, I am satisfied that it formed part of the common law applicable in New South Wales at the time of passing of the Evidence Act 1995. I am further satisfied that s 9 of the Evidence Act applies here, to the effect that the Act does not affect the operation of the common law rule, by abrogating it expressly or by necessary intendment. 5. I am persuaded that on the basis of the materials provided by the Crown from the Australian Law Reform Commission Reports No. 25 and No. 26, that the common law rule in Dawson was not considered by the Commission in its recommendations. 6. Whilst the common law rule is of limited application as set out above, it has considerable utility in cases of accessorial liability and is underpinned by policy matters such as the need for finality in litigation by not having such matters completely relitigated. The common law rule is founded on a legal presumption that everything in the former proceeding was "rightly and properly transacted" but the presumption must give way to facts "manifestly and clearly proved", and so the Certificate of Conviction will not be conclusive – see R v Kirkby (2000) 2 Qd R 257; (1998) 105 A Crim R 323 per McMurdo P at p 326. These policy considerations are not insignificant. 7. Kirkby was not a case of accessorial liability. The appellant was convicted of an offence of procuring another person to commit the offence of grievous bodily harm. The person who committed the offence was convicted, and his conviction was proved by tendering a Certificate. However, he was not called as a witness as the Crown regarded him as unreliable. The Court of Appeal held that the trial Judge was in error in admitting the Certificate of Conviction in the case of a procurer. McMurdo P identified the question for determination in that case was whether the conviction of a co-offender who committed the actual acts constituting the offence pursuant to s 7(1)(a) of the Criminal Code was admissible on the trial of the procurer, pursuant to s 7(1)(d) of the Criminal Code. The President extensively reviewed the authorities and recognised the exception to the general rule of evidence that the conviction of a third party is inadmissible as evidence of the facts on which it is based, confirmed in Dawson and Carter & Savage as a long established rule that on a charge of having been an accessory to the commission of a felony, proof of the conviction of the alleged principal offender is admissible, and constitutes prima facie evidence that the felony was committed by him. Having reviewed the authorities, and noting that the rule in Hollington v Hewthorn had been statutorily abolished in respect of civil offences (s 79 of the Evidence Act), the President confirmed that the one exception to the rule in Hollington v Hewthorn in Queensland was that evidence of the conviction of the principal offender is admissible on the trial of an accessory after the fact, as held in Carter & Savage. The Court allowed the appeal and ordered a new trial. 8. In Muriniti, the Court of Appeal held that the rules of evidence as set out in the Evidence Act could not be read as undermining the inherent power of a court to prevent an abuse of its processes. After referring to s 9 of the Evidence Act, Basten JA said at [24]: "The precise scope of the phrase 'a principle of or rule of common law or equity in relation to evidence' is uncertain. Similarly, where the Evidence Act applies to proceedings (which must include the present proceedings) and makes a statement of universal application, subject to waiver, should it be understood to 'provide otherwise'? The Evidence Act should not be understood as a special kind of statute. For example, it does not enjoy some quasi-constitutional status…" 1. The common law rule is necessarily confined to cases of accessorial liability and is therefore limited in its application. I find that the Australian Law Reform Commission did not consider it, and that s 91 of the Evidence Act does not abrogate it either expressly or by necessary intendment. 2. Further, the Certificate constitutes prima facie evidence of the conviction of the principal for murder. Here, Mr Newson will be called by the Crown as a witness and may be cross-examined. The onus does not shift from the Crown in proving beyond reasonable doubt that he committed the murder of Carly McBride. 3. Moreover, the common law rule cannot be distinguished on the basis that Newson was convicted after pleading not guilty and following a trial by jury, on the basis that the principals in Dawson and Carter & Savage both pleaded guilty to the principal offence. That does not alter the fact of conviction as certified. Nor does the fact of an appeal being lodged by Newson, as the conviction stands unless and until it is overturned on appeal. 4. Given the prima facie nature of the Certificate, I find that its probative value is not substantially outweighed by any danger that the evidence might be either unfairly prejudicial to the accused or could be misleading or confusing. I further find that its probative value is not outweighed by the danger of unfair prejudice to the accused. The jury will be given clear directions about the Certificate of Conviction, the weight of the evidence and the onus of proof on the Crown, and the accused will have the opportunity to cross-examine Newson and test all other admissible evidence in the trial. Those directions will ensure that the jury will be directed that the Crown has the onus of proving beyond reasonable doubt all of the elements of the charge, the prima facie nature of the Certificate of Conviction so as to ensure there is no irrational, emotional or illogical response to it. As it is well settled that jurors are expected to follow trial directions, they are unlikely to place undue weight on the Certificate of Conviction, or have their focus diverted from their task to determine the issues in the trial on the evidence. Nor am I persuaded that the admission of the Certificate of Conviction would lead to an increased likelihood of juror misconduct by way of research into the conviction of Mr Newson. The jury will be given clear directions on the prohibition on its members making any inquiry, pursuant to s 68C of the Jury Act 1977 and will be reminded of that prohibition throughout the trial. For those reasons, I decline to exercise my discretion to exclude the evidence under s 135 of the Evidence Act and further find that s 137 of the Evidence Act does not apply. 5. For the above reasons, I find that the common law rule does apply in New South Wales and the Certificate of Conviction may be tendered by the Crown as prima facie evidence of the conviction of Sayle Kenneth Newson for the offence of the murder of Carly Dawn McBride. Order 1. I hereby order the Crown be allowed to adduce the Certificate of Conviction, as amended to omit irrelevant matters, into evidence. ********** 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: 25 November 2022