R v Adam NEWBOLD [2008] NSWSC 942

New South Wales Supreme Court

CITATION : R v Adam NEWBOLD [2008] NSWSC 942

HEARING DATE(S) : 9 September 2008

JUDGMENT DATE : 10 September 2008

JUDGMENT OF : Fullerton J

DECISION : Paragraphs 32 and 33.

CATCHWORDS : CRIMINAL LAW - sentence - conceal serious offence - assault occasioning actual bodily harm - mitigating factors - assistance to the authorities - s 10 and s 10A Crimes (Sentencing Procedure) Act

Bail Act 1978 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986

CATEGORY : Principal judgment

PARTIES : The Crown Adam Newbold (Offender)

FILE NUMBER(S) : SC 2008/2836

COUNSEL : S De Silva (Crown) P Marr (Offender)

SOLICITORS : Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

FULLERTON J

10 SEPTEMBER 2008

2008/2836 R v ADAM NEWBOLD

REMARKS ON SENTENCE

1 HER HONOUR: On 25 August 2008 the Crown presented an indictment against Michael Kutschera and Adam Newbold. The indictment charged one count of murder contrary to s 18(1) of the Crimes Act 1900, the particulars of which being that on 21 July 2007 at Muswellbrook in the State of New South Wales they murdered Lucas Gleeson. 2 Michael Kutschera applied for a separate trial on the basis that in a joint trial highly prejudicial and inadmissible material would be productive of a real risk that the Crown case against him would be made immeasurably stronger and that an unfair trial would result. That evidence comprised a record of interview where Mr Newbold identified him as the driver of the vehicle which was deliberately driven at and over the deceased and which resulted in his death. 3 For the purposes of considering that application I viewed the record of interview in its entirety. Over the course of the interview which commenced at 11.23am and concluded at 1.35pm on 21 July 2007, Mr Newbold gave a detailed account of the order and sequence of his movements from the evening of the 20 July 2007 and into the early morning hours of the 21 July 2007 leading up to his arrest shortly after 3.30am that morning. 4 In considering whether to grant the application for separate trials it was neither necessary nor appropriate for me to express any view as to whether or not the exculpatory account he gave to police in so far as his involvement in the death of the deceased was concerned was true, accurate or reliable. Suffice to say that in my published judgment (R v Kutschera; R v Newbold, Supreme Court of New South Wales, 26 August 2008) I expressed the view that were his account to be viewed by the jury as true, or even possibly true, there was a certain risk that they would import into their consideration of the guilt of Kutschera wholly inadmissible and prejudicial evidence which even the most carefully crafted and emphatically delivered directions to the jury could not guard against. It was for those reasons that I granted Kutschera a separate trial. 5 I also directed that Mr Newbold's trial follow immediately upon the resolution of Kutschera's trial and, in order to preserve the integrity of the proceedings generally, I directed that there be no publication of the pre-trial proceedings or their outcome. 6 The only evidence in the Crown case contradicting Mr Newbold's account to police to the effect that rather than being jointly responsible for the death of the deceased he was an unwilling witness to the killing, came from Tony Matthews who claims to have identified Mr Newbold as a passenger in the car as it drove over the deceased in the course of two discrete driving manoeuvres. Even in advance of being called as a witness in Kutschera's trial, in my assessment the various accounts Tony Matthews gave to police were less than compelling. Having heard him give evidence I regard his reliability generally as undermined by his level of intoxication and his evidence identifying Mr Newbold as the passenger undermined by the compromised circumstances in which the identification was made. 7 In circumstances where Mr Newbold's opportunity to have joined with Kutschera in obtaining access to the car and driving it at the deceased was on the Crown case scant to say the least, my own independently held view at the time at separating the trials (although not at the time expressed) was that the case against Mr Newbold was weak and that the very high probability favoured his account being in fact truthful, accurate and reliable such that were to have been I invited by defence counsel to give a Prasad direction at the end of the Crown case in his trial I would in all likelihood have done so. 8 After publishing my judgment on the application for separate trials, and without opposition from the Crown, I released Mr Newbold to bail being satisfied in accordance with s 9C of the Bail Act 1978 that the circumstances were sufficiently exceptional to justify a grant of bail on the most relaxed of conditions.