R v Newson (No 4) [2021] NSWSC 1723

Supreme Court New South Wales

Medium Neutral Citation: R v Newson (No 4) [2021] NSWSC 1723 Hearing dates: 25 May 2021 Decision date: 23 June 2021 Jurisdiction: Common Law Before: Ierace J Decision: No orders made. Catchwords: CRIMINAL PROCEDURE – Trial – Case management – Notice of alibi – Where notice not tendered by accused – Whether Crown should be permitted to rely on notice Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 146A, 150 Evidence Act 1995 (NSW), s 87 Cases Cited: R v McKinney; R v Judge (Court of Appeal (NSW), 1 July 1993, 6 September 1993, unrep) R v Newson; R v Cunneen (No 2) [2020] NSWSC 462 Category: Procedural rulings Parties: Regina Sayle Kenneth Newson (Accused) Representation: Counsel: L Carr SC (Crown) C Watson (Accused)

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Ramsland Laidler Solicitors (Accused) File Number(s): 2017/183274

Judgment 1. HIS HONOUR: The accused, Sayle Newson, is charged with the murder of Carly McBride on 30 September 2014 in Muswellbrook in the State of New South Wales. Briefly stated, the Crown case is that the accused and Ms McBride were in a romantic relationship. On 30 September 2014, at about 12.30pm, the accused dropped off Ms McBride at the home of a former partner who was the father of a child born to her. The father had custody of the child, and Ms McBride was being dropped off for an access visit. Ms McBride's former partner said that she left the premises at around 2:00pm on that date, which is the last reported sighting of her. Her remains were found on 7 August 2016 in bushland about 25m off Bunnan Road, which runs between Scone and the township of Bunnan, at a point approximately 17km north-west of the Scone township. 2. The accused later told police that he had spent his time during the access visit by firstly driving to McDonalds in Muswellbrook and then visiting a friend, James Cunneen, who also resided in Muswellbrook, in whose company he remained until at least 5:30pm. The accused told police that during that period, he and Mr Cunneen drove to a rural property ("the farm"), which is about 4km south-east of Scone, then visited McDonalds in Scone and drove back to Muswellbrook. 3. The accused was arrested and charged with the murder of Ms McBride on 19 June 2017. Three days later, Mr Cunneen was arrested and charged with being an accessory after the fact to the murder of Ms McBride, the Crown case being that he assisted the accused in disposing of the deceased's body. The Crown alleged that Mr Cunneen and the accused were engaged in a joint criminal enterprise in disposing of Ms McBride's body off Bunnan Road. 4. The accused and Mr Cunneen were jointly arraigned at trial before me and a jury of 15 on 23 May 2019. The day prior, 22 May 2019, I granted leave to the accused to file an alibi notice out of time. The terms of the alibi notice were as follows: "… at his trial [the accused] will adduce evidence that on the afternoon of 30 September 2014 he attended [an address in] Muswellbrook, then to McDonalds Restaurant Muswellbrook. He then attended [a different address in] Muswellbrook. He then attended the property at [an address in] Scone. From the property at [that address in] Scone he proceeded to the storage sheds in Hayes Street Scone. After spending time at these premises he then attended McDonalds at Scone before returning to Muswellbrook." 1. The alibi notice was signed by the accused's solicitor. It contained an element that had not previously been admitted by the accused, namely, that following the visit to the farm, he had travelled to the storage sheds in Hayes Street, Scone ("the storage sheds"). Certain anticipated evidence in the Crown case, which was principally admissible against Mr Cunneen but pursuant to the joint criminal enterprise also admissible against the accused, was that Mr Cunneen had told police that he and the accused had driven from the farm to the storage sheds, and that the storage sheds were linked to Mr Cunneen. 2. On 12 July 2019, the jury was discharged. The trial did not start afresh until 29 March 2021, the delay being due to the impact of the Covid-19 pandemic on the availability of trial court facilities in Newcastle. 3. On 30 April 2020, I acceded to an application made on behalf of Mr Cunneen that his trial proceed separately from that of the accused: R v Newson; R v Cunneen (No 2) [2020] NSWSC 462. 4. The second trial of the accused commenced with his re-arraignment on 29 March 2021. He was represented by the same solicitor and barrister who had appeared for him in the first trial. At the end of the first week, counsel for the accused withdrew, consequent upon a significant health issue. The accused's solicitor was able to brief fresh counsel and I adjourned the trial for two weeks to enable him to prepare. The trial then resumed. 5. On 7 May 2021, the Crown indicated that it did not intend to call Mr Cunneen to give evidence in the Crown case, but it had advised the defence that, if required, it would call Mr Cunneen to make him available for cross-examination. The defence had notified the Crown that it did not require Mr Cunneen to be called and that it would not be calling him in the defence case. 6. At the same time, the Crown informed the Court that the defence had not served a fresh alibi notice and that it was contemplating seeking a direction pursuant to s 146A of the Criminal Procedure Act 1986 (NSW), namely, to make comment to the jury on the alleged failure of the defence to tender an alibi notice pursuant to s 150 of that Act. 7. On 18 May 2021, the defence provided written submissions to the effect that it considered that the alibi notice it had filed on 20 May 2019 had not expired, so that it applied to the second trial as well. 8. In written submissions in reply filed on 23 May 2021, the Crown did not pursue that issue further. However, the Crown changed tack and advised that it sought "to tender the Notice of Alibi in these current trial proceedings", submitting that it was admissible pursuant to ss 87(1)(a) and (b) of the Evidence Act 1995 (NSW), which provides as follows: "87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that— (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority …" 1. The Crown submitted that the alibi notice is a "previous representation" as defined in the Dictionary, Pt 1 of the Evidence Act; that is, it is a representation made otherwise than in the course of giving evidence in the proceeding in which the evidence of the representation is sought to be adduced. Further, it is an "admission" as defined in the Dictionary, Pt 1, since it was made by a person who is a party to a proceeding including a defendant in criminal proceedings and is adverse to the person's interest in the outcome of the proceedings. 2. The Crown relied on s 150(6) of the Criminal Procedure Act as to the accused's authority of the alibi notice. It provides: "150 Notice of alibi … (6) Any notice purporting to be given under this section on behalf of the accused person by his or her Australian legal practitioner is, unless the contrary is proved, to be taken to have been given with the authority of the accused person." 1. The Crown submitted that the relevance of the alibi notice was that it was evidence that the accused had gone to the storage sheds on the afternoon of 30 September 2014. There was no other evidence to that effect. I note that the sheds were not searched by police until 12 September 2016 and nothing of an incriminating nature in relation to the murder charge was located. 2. On 20 May 2021, the defence advised the Crown that it did not intend to call the accused to give evidence in the trial. 3. The Crown opened to the jury that the accused and Mr Cunneen had gone to the storage sheds that afternoon and the jury had been taken there on a view of relevant locations in the Scone area, which took place in the first week of the trial, while the accused was represented by his former counsel. The Crown noted that no complaint had been made by counsel then appearing for the accused to the reference to the storage sheds in the Crown's opening or to the visit to the storage sheds as part of the view. 4. By way of authority to the effect that an alibi notice could be tendered in the Crown case, the Crown relied on of R v McKinney; R v Judge (Court of Appeal (NSW), 1 July 1993, 6 September 1993, unrep), in which Wood J noted with approval certain circumstances in which the Crown had tendered an alibi notice in its case: "The alibi notice was tendered before the close of the Crown case, at a time when the Crown did not know whether the alibi witnesses would be called. The purpose of the tender was to meet the contingency of there being a departure from the implicit suggestion pre trial that the accused had an alibi, and would by evidence from independent witnesses establish it." 1. The defence responded to the Crown's application by written submissions dated 24 May 2021 and the parties made oral submissions on the following day. In the context of oral submissions, I expressed to the Crown a concern that the primary purpose of an alibi notice is to give disclosure to the prosecution and investigating authorities of the accused's whereabouts at a particular time, so that in the event that he or she advanced evidence of those whereabouts in the defence case, the Crown would not be taken by surprise. In particular, the investigating authorities would have had an opportunity to make inquiries so that the Crown would be in a position to lead evidence in rebuttal of the alibi, in the Crown case. I noted that the relevance of the tender of the alibi notice in McKinney; Judge was at least related to the issue of alibi, whereas in this case, it seemed to be unrelated to alibi; it was to fill an evidentiary gap in the prosecution case. 2. The defence submitted that it would be prejudiced in the alibi notice going into evidence because its terms anticipated that the accused would give evidence, which the accused had since decided not to do. As well, it may lead to a "consciousness of guilt" direction, since the accused had not mentioned his attendance at the storage sheds in his police interviews. 3. In the course of oral submissions, it became apparent that the parties were able to resolve their dispute, on the basis that the notice would not be tendered as such, but rather, the jury would be informed that the accused's solicitor had advised the Office of the Director of Public Prosecutions prior to the trial of the accused's movements on the afternoon of 30 September 2014. The content of the alibi notice, after (and not including) the words "At his trial [the accused] will adduce evidence that" would be read, and the communication would not be referred to as an alibi notice. Further, the Crown accepted that the evidence was not amenable to being used as consciousness of guilt, on the following two bases: nothing incriminating in relation to the disappearance of Ms McBride was found in the storage sheds and the authorities were aware that on 30 September 2014, prohibited drugs and unlawfully-possessed firearms were being kept there by Mr Cunneen, thereby providing an alternative explanation as to why the accused had not mentioned their visit to the sheds to police in relation to the investigation of Ms McBride's disappearance. 4. On that basis, the parties resolved the issue and a judgment on the admissibility of the alibi notice was not required.