Supreme Court New South Wales Medium Neutral Citation: R v Newson; R v Cunneen (No 2) [2020] NSWSC 462 Hearing dates: 8 April 2020 Decision date: 30 April 2020 Jurisdiction: Common Law Before: Ierace J Decision: (1) James Anthony Cunneen is to be tried on the charge of accessory after the fact to murder, pursuant to s 349(1) of the Crimes Act 1900 (NSW), separately from Sayle Kenneth Newson, who is to be tried on the charge of murder pursuant to s 18(1)(a) of the Crimes Act 1900 (NSW). (2) The matter of R v Sayle Kenneth Newson is stood over to the Arraignments List on 1 May 2020, for the purpose of fixing a fresh trial date. (3) The matter of R v James Anthony Cunneen is stood over to 6 May 2020. Catchwords: CRIMINAL PROCEDURE – trial – separate trial application – prejudicial evidence implicating the applicant – separate trial granted Legislation Cited: Criminal Procedure Act 1986 (NSW) Cases Cited: R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep) R v Pham [2004] NSWCCA 190 Category: Procedural rulings Parties: Regina (Plaintiff) Sayle Kenneth Newson (Accused) James Anthony Cunneen (Accused/Applicant) Representation: Counsel: L Carr SC (Crown) P Massey (Accused Newson) P Krisenthal (Accused/Applicant Cunneen) Solicitors: Office of the Director of Public Prosecutions (Crown) Ramsland Laidler Solicitors (Accused Newson) O'Brien Winter Partners (Accused/Applicant Cunneen) File Number(s): 2017/183274; 2017/186919 Judgment 1. HIS HONOUR: This is an application made by way of a notice of motion, pursuant to s 21(2)(b) of the Criminal Procedure Act 1986 (NSW) ("the Act") for a separate trial by James Cunneen ("the applicant"), who is charged with being an accessory after the fact to the murder of Carly McBride ("the deceased"). 2. Sayle Newson is charged that he murdered the deceased on 30 September 2014 at Muswellbrook. She was last seen on that date in a residential area of Muswellbrook and her skeletal remains were found in bushland near Scone 22 months later. An examination revealed 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. 3. At the time of the alleged offence, Mr Newson was aged 37 and the deceased was aged 31. They had been in a relationship for approximately two months. The essence of the Crown case is that on that day, Mr Newson attacked her in a fit of jealousy, causing her death. 4. The applicant is charged that between 29 September 2014 and 24 April 2015, in Scone or elsewhere in New South Wales, he did receive, harbour, maintain and assist Mr Newson. 5. It is not disputed that the applicant and Mr Newson were friends and at the time of her disappearance, the applicant was residing in Muswellbrook. It is alleged that on that afternoon, he assisted Mr Newson to transport the deceased's body to the location where her remains were subsequently discovered. The prosecution cases against both accused are circumstantial in nature. 6. A trial of the two accused commenced before me and a jury, sitting at Newcastle on 23 May 2019 ("the aborted trial"). On 12 July 2019, the jury were discharged, following inadmissible evidence from a witness being given at the hearing that was prejudicial against Mr Newson to a point of not being curable by a direction to the jury to disregard it. A fair trial was no longer possible in those circumstances, at least in respect of Mr Newson. 7. Shortly before the aborted trial commenced, I heard an application on behalf of the applicant for a separate trial ("the initial application"). I rejected the application, but by the time the trial aborted, I had not handed down my reasons in a judgment. 8. A commencement date of Monday 4 May 2020 was set for the fresh trial. At a mention of this matter on 25 October 2019, counsel for the applicant, Mr Krisenthal, who was counsel for the applicant in the aborted trial as well, indicated he wished to bring a fresh application for a separate trial based on material that is additional to that which was relied upon for the first application. 9. A timetable for the filing of submissions was set. On 27 March 2020, the trial date of 4 May 2020 was vacated pursuant to a directive of the Chief Justice that jury trials be postponed, in view of the COVID-19 pandemic, and on 3 April 2020, I stood over the joint trial to the Arraignments List on 1 May 2020, for the fixing of a fresh date. The directive allows pre-trial applications to continue to be heard, so that when the postponement of jury trials is lifted, they may proceed expeditiously. The relevant legislative provisions and principles 1. Whether the court may depart from an earlier pre-trial ruling is governed by s 130A(3) of the Act, which provides: "130A Pre-trial orders and orders made during trial bind trial Judge … (3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding." 1. The legislative basis for separating trials is provided by s 21 of the Act, which provides: "21 Orders for amendment of indictment, separate trial and postponement of trial … (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment." 1. In R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep), his Honour said, at 4-5: "Briefly, the relevant principles are that: (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial. … Obviously enough, all manner of prejudice may be surmised which, if it arises, would not result in such positive injustice. In my opinion, an applicant for a separate trial must demonstrate that there is a real risk (as opposed to a remote possibility) that there will arise in a joint trial prejudice of the type which – if it arises – would result in positive injustice to him." (emphases in original) 1. In R v Pham [2004] NSWCCA 190, Adams J (Spigelman CJ agreeing) considered, at [39], the meaning of "immeasurably" in the context of point (3) in Middis: "Two phrases in this summary need some explanation. In ordinary speech, 'immeasurably' usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant 'significant, though incommensurable'. The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to 'positive injustice'. Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence." The application 1. The Crown case is that on the morning of 30 September 2014, which was a Tuesday, Mr Newson drove the deceased in his vehicle from Buff Point on the Central Coast to Muswellbrook, so that she could visit one of her two children, a three year old boy, who resided with the boy's father, Andrew ("Drew") Easton. It was arranged between them that Mr Newson would drop the deceased off at Mr Easton's home, which was in a residential street of Muswellbrook, and she would re-join him afterwards. 2. Mr Easton's evidence in the aborted trial was to the effect that the deceased arrived at his home at about 12:45pm. Her son was not there, as he was at pre-school. They chatted, had coffee and a cigarette and went through some belongings he still had in storage from their time as a couple. She abruptly departed on foot after an hour or so, saying that she was going to be picked up at McDonalds. Mr Easton saw her walk away from the house in a direction consistent with the most direct walking route to McDonalds. She was not seen again. The Crown case is that Mr Newson killed the deceased in a fit of rage when, or shortly after, they met up on her return from visiting Mr Easton. 3. Mr Newson told police that after dropping off the deceased at Mr Easton's home, he briefly visited McDonalds and then waited at the applicant's residence. When Mr Newson had not received a phone call from the deceased, he visited Mr Easton who told him she had left earlier that afternoon. He looked for her at McDonalds, where he showed patrons her photograph, and drove around Muswellbrook looking for her, to no avail. He reported her missing to police that night. 4. The hearing in respect of the notice of motion came before me on Wednesday 8 April 2020. The fresh application is based on the same material as the earlier application, together with additional material which is annexed to an affidavit in support of the notice of motion, sworn by the applicant's solicitor, Kristy Winter, on 9 December 2019. 5. Before I turn to the contents of Ms Winter's affidavit, I note that much of the evidence that was the subject of concern to the applicant and relied upon for the initial application is no longer part of the Crown case, as I understand it, against Mr Newson. 6. The nature of that material was evidence to be called in the case against Mr Newson that reflected adversely on Mr Newson's character and thus, it was submitted, by dint of their close friendship, on the applicant's character as well. Although the evidence was not admissible against the applicant and would be subject to a direction to the jury to disregard it in their deliberations on his case, it was submitted that a jury would have difficulty complying with that direction and they would inevitably draw an adverse inference against the applicant's character. 7. The evidence of that nature that remains in the Crown case includes two recorded interviews ("ERISPs") of Mr Newson, in which it might be thought his own words portrayed him as a person who was prone to jealousy and inclined to thoughts of reacting with extreme physical violence to perceived wrongs by others. In addition, the Crown case still includes the evidence of a partner of Mr Newson in the period after the deceased's death, concerning what she effectively alleges to be his jealous and controlling disposition, leading to displays of aggression and destruction of property. 8. There is other material which, in the applicant's submission, is strongly indicative of Mr Newson's guilt in a manner which impermissibly implicates the applicant. 9. Following the discovery of the deceased's remains, police intercepted a phone call between Mr Newson and the deceased's father, in which Mr Newson claimed to have heard that somebody was in possession of the deceased's hands. Police had not publicly revealed that the deceased's skeletal remains did not include the bones for her hands, which, presumably, had been removed by animals. It was submitted that an available inference in the Crown case was that Mr Newson could only have known that the hand bones were missing if he had visited the remains, leading to the inference that he knew where the remains were, because he had placed the body there. 10. If the jury drew this inference, it directly implicated the applicant, but in an impermissible way, since the evidence of what he said to the deceased's father was not admissible against the applicant. The applicant conceded that there is an abundance of evidence that, on the afternoon of the deceased's disappearance, the applicant and Mr Newson were together. There is also a body of evidence and admissions to the effect that they travelled in the applicant's vehicle to the Scone area the same afternoon. Therefore, if the jury were satisfied, on the basis of Mr Newson's reference to the deceased's hands, that he had put her body there on the afternoon of the date of her disappearance, the applicant was implicated. 11. Ms Winter's affidavit has annexed to it the transcript of an earlier intercepted phone call between Mr Newson and the deceased's father, in which Mr Newson referred to the last people known to have seen the deceased (the earlier intercepted phone call). He referred to the deceased's former partner as "Drew". The applicant was known as "Jimmy". Mr Newson said: "… reality is there's the last three people who seen her: that's me … Drew, and fuckin' (pause) – well me and Drew, yeah? Me, Drew … and Jimmy, okay? … Now, I'm pretty sure they've cancelled me and Jimmy out … Now there's Drew. I don't think they've cancelled Drew out, alright." 1. The applicant's case is that he did not see the deceased on the day of her disappearance. Accordingly, the effect of this evidence, which is inadmissible against the applicant, is to contradict that crucial aspect of his case. Further, given that the Crown case is that Mr Newson killed the deceased when or shortly after they met up after her visit to Mr Easton's residence, it potentially implicates the applicant, at least as a witness, in her murder by Mr Newson. Consideration 1. I do not consider that Witness A's evidence reflects on the character of the applicant. She does not suggest that the applicant was aware of Mr Newson's behaviour, and it is well-known that domestic violence may occur in a relationship without persons who are close to the perpetrator having knowledge or suspicion of it. 2. The evidence of Mr Newson's reference to the deceased's hands is concerning, but not to the extent that I would entertain a doubt as to the fairness of the trial of the applicant, when the jury is appropriately directed. 3. The evidence of the earlier intercepted phone call is of a different character. In my opinion, it would be impossible for many jurors to put out of their minds entirely the reference to "Jimmy", and its implications for what he knew or observed that afternoon. Although the jury could disregard the evidence in its superficial effect, there is a real danger that it would sub-consciously infect the weight they give during their deliberations to the admissible evidence against the applicant. 4. I will therefore grant the application for a separate trial. 5. On 23 August 2018, the Chief Justice granted an exemption to the Director of Public Prosecutions, pursuant to s 128(2) of the Act, to present an indictment against the applicant in this Court, rather than in the District Court, which is where such a charge would otherwise be presented. His Honour the Chief Justice stated: "The exemption is given on the basis of your undertaking to withdraw the indictment against [the applicant] from the Supreme Court and re-file it in the District Court in the event this Court makes an order that [the applicant] be tried separately from the charge of murder against Sayle Kenneth Newson referred to in Count 1 of the draft indictment." 1. As I noted earlier, on 3 April 2020, I stood over the joint trial to the Arraignments List on 1 May 2020, for the fixing of a fresh date for the joint trial. I will vacate that order, and instead, stand over Mr Newson's matter for the original purpose, and the applicant's matter to Wednesday 6 May, on which date there is already listed before me a release application pursuant to s 49 of the Bail Act 2013 (NSW). Following the determination of that application, the Director of Public Prosecutions may withdraw the indictment against the applicant. 2. For those reasons, I make the following orders: (1) James Anthony Cunneen is to be tried on the charge of accessory after the fact to murder, pursuant to s 349(1) of the Crimes Act 1900 (NSW), separately from Sayle Kenneth Newson, who is to be tried on the charge of murder pursuant to s 18(1)(a) of the Crimes Act 1900 (NSW). (2) The matter of R v Sayle Kenneth Newson is stood over to the Arraignments List on 1 May 2020, for the purpose of fixing a fresh trial date. (3) The matter of R v James Anthony Cunneen is stood over to 6 May 2020. ********** 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: 22 March 2023