R v Dunstall (No 3) [2018] NSWSC 1481

Supreme Court New South Wales

Medium Neutral Citation: R v Dunstall (No 3) [2018] NSWSC 1481 Hearing dates: 3 & 4 September 2018 Date of orders: 04 September 2018 Decision date: 04 October 2018 Jurisdiction: Common Law Before: Button J Decision: Tendency evidence admitted. Catchwords: CRIMINAL LAW – admission of tendency evidence – tendered by prosecution – statutory test – application of test to evidence on voir dire Legislation Cited: Evidence Act 1995 (NSW), ss 55, 97, 101 Cases Cited: IMM v the Queen [2016] HCA 14, (2016) 257 CLR 300 The Queen v Bauer (a pseudonym) [2018] HCA 40 Adams v R [2017] NSWCCA 215 Category: Procedural and other rulings Parties: Regina Glen Roland Dunstall Representation: D Scully (Crown) J Stratton SC (Accused)

Solicitors: Director of Public Prosecutions (Crown) Voros Lawyers (Accused) File Number(s): 2015/141328 Publication restriction: Nil

Judgment

Introduction 1. At the conclusion of a voir dire with regard to the admissibility of tendency evidence, conducted before the arraignment of Mr Glen Dunstall (the accused) on a count of murder before a jury panel, I delivered the following brief judgment: "I do think the proposed tendency evidence, with regard to what I call the Duck allegation and the Fadel allegation, when seen in the context of the other evidence foreshadowed in the Crown case statement and the accused's interview, and in the context of each other, has significant probative value. I say that, chiefly because of the substantial similarities and other connections between what is alleged by witness A, witness, B, Mr Duck, and Mr Fadel to be acts and statements of the accused. As well, while I do accept that the receipt of the evidence may have a prejudicial effect on the accused, I consider that the probative value of the evidence significantly [sic] outweighs any prejudicial effect it may have. Accordingly, the evidence of each allegation will be admitted in the trial for a tendency purpose or purposes. Having said that, I do think that some discrete parts of the two allegations may give rise to s 137 considerations. I shall leave it to the parties to resolve those questions and, if there are any outstanding aspects, we will resolve them as the trial unfolds, and the better course may be for the Crown not to open tomorrow on any such contested discrete aspects. I will provide more reasons, as foreshadowed, later for my ruling." 1. This judgment constitutes those expanded reasons.