R v Newson; R v Cunneen (No 1) [2019] NSWSC 875

Supreme Court New South Wales

Medium Neutral Citation: R v Newson; R v Cunneen (No 1) [2019] NSWSC 875 Hearing dates: 11 July 2019 Decision date: 11 July 2019 Jurisdiction: Common Law Before: Ierace J Decision: The applications to discharge the jury are granted. Catchwords: CRIME – application for discharge of jury – prejudicial and irrelevant evidence of historical sexual assault adduced in examination in chief – whether prejudice irreparable – application granted Legislation Cited: Evidence Act 1995 (NSW), s 97 Category: Principal judgment Parties: Regina (Plaintiff) Sayle Kenneth Newson (Accused) James Anthony Cunneen (Accused) Representation: Counsel: L Carr SC (Crown) P Massey (Accused Newson) P Krisenthal (Accused Cunneen)

Solicitors: Office of the Director of Public Prosecutions (Crown) Ramsland Laidler Solicitors (Accused Newson) O'Brien Winter Partners (Accused Cunneen) File Number(s): 2017/183274; 2017/186919

Judgment 1. HIS HONOUR: The accused Sayle Newson is charged that he murdered Carly McBride, on 30 September 2014 at Muswellbrook. On that date, Ms McBride disappeared. Her skeletal remains were found 22 months later in bushland, approximately 50km from where she was last seen. An examination of her remains disclosed various fractures that, according to forensic evidence, had been inflicted around the time she died and were associated with injuries that were capable of having caused her death. 2. As of the date of Ms McBride's disappearance, Mr Newson had been in a relationship with her for approximately two months. The essence of the Crown case is that on the day she disappeared, in a fit of rage, Mr Newson killed her. The Crown contends that Mr Newson had a tendency to be overwhelmed by jealousy and possessiveness towards his partners, to a point of acting violently. As well, the Crown contends that he was regularly using the drug methylamphetamine at the time and that when he used drugs, he had a tendency to be aggressive or violent when angered. Mr Newson was alleged to be an enthusiast of Muay Thai, sometimes known as Thai kick boxing, that, as I understand the Crown case, involves applications of force that may be consistent with some or all of the fractures suffered by Ms McBride. 3. James Cunneen is charged with being an accessory after the fact to the murder of Ms McBride, the case against him being that he assisted Mr Newson to convey Ms McBride's body to the location where her remains were subsequently discovered. The case against both accused is circumstantial. 4. Today is the thirty-first day of the trial, which has an overall estimate of three months. Counsel for both accused have made an application that the jury be discharged, in the light of evidence heard yesterday, that is said to be both highly prejudicial and irrelevant. The evidence concerned an incident said to have occurred at Narrabeen ("the Narrabeen evidence"). Although I directed the jury to disregard the evidence within minutes of it being adduced, it is submitted that the prejudicial effect of the evidence is incapable of being cured by a direction to the jury to disregard it. Mr Cunneen further submits that, alternatively, his trial proceed separately.