Citation: R v Dunstall (No 3) [2018] NSWSC 1481
Court: Supreme Court of New South Wales
Date: 4 October 2018
Judge: Button J
Background
The accused stood trial on a single count of murder. The Crown alleged he shot the deceased in the head at a bushland lookout above Kiama in June 2014, after luring him there as part of an elaborate cannabis supply fraud. On the Crown's case, the accused had fraudulently represented to two buyers that he could arrange the purchase of a large quantity of cannabis from Canberra, collected upfront payments of $45,000, and used internet-sourced photographs of a cannabis crop to bolster the false story. The deceased was said to have been killed because he had discovered the ruse.
The accused denied any involvement in the murder. In his recorded police interview, he accepted there had been discussions about a cannabis supply arrangement but maintained his participation was genuine and that he received no upfront fees. He also offered an innocent explanation for the internet photographs.
Before the trial commenced, the Crown sought to adduce tendency evidence from two other alleged victims, referred to as Mr Duck and Mr Fadel. Both involved allegations that the accused had fraudulently represented goods as available for sale through him as an agent, supported the deception with photographs, and extracted payments when no genuine transaction existed.
Legal Issues
- Whether the tendency evidence relating to the Duck allegation and the Fadel allegation had significant probative value for the purposes of s 97 of the Evidence Act 1995 (NSW)
- Whether that probative value substantially outweighed the potential prejudicial effect on the accused, as required by s 101 of the Evidence Act 1995 (NSW)
- Whether any discrete parts of the two tendency allegations raised separate concerns under s 137 of the Evidence Act 1995 (NSW)
Decision
Button J conducted a voir dire (a preliminary hearing on admissibility, held outside the presence of the jury) and ruled that both tendency allegations were admissible. His Honour found the evidence had significant probative value, chiefly because of the substantial similarities between what the tendency witnesses alleged and what was alleged in the Crown's murder case.
The core of the reasoning was that the cannabis allegation, viewed in isolation, was extremely difficult to accept. The proposition that the accused would brazenly pretend to serious drug operators that he could arrange a multi-hundred-thousand-dollar cannabis deal when no cannabis existed at all was, as His Honour put it, almost literally incredible. The tendency evidence made the allegation considerably more plausible by showing it as part of a pattern of audacious, and perhaps compulsive, fraudulent conduct rather than a wholly implausible one-off event.
Similarly, the accused's alleged use of internet-sourced images to deceive the buyers appeared bizarre when considered alone. The tendency evidence, which included a comparable use of photographs to sustain deceptions in the truck fraud, provided a meaningful context that made the behaviour more comprehensible to a tribunal of fact.
His Honour accepted that receiving the tendency evidence carried genuine potential for prejudice. However, he concluded that the significant probative value of both allegations substantially outweighed that potential prejudicial effect, satisfying the tests in ss 97 and 101 of the Evidence Act. Button J flagged that certain discrete parts of the two allegations may give rise to further admissibility questions under s 137, leaving those to be resolved between the parties as the trial progressed.
Orders Made
• Evidence regarding both tendency allegations tendered by the Crown was admitted in the trial.
Key Takeaways
- Under ss 97 and 101 of the Evidence Act 1995 (NSW), tendency evidence tendered by the Crown must have significant probative value that substantially outweighs any prejudicial effect on the accused before it may be admitted.
- The Supreme Court found that strong thematic and structural similarities across multiple alleged fraud episodes can together constitute significant probative value, even where each episode might carry limited weight in isolation.
- Where a Crown allegation would otherwise appear implausible or bizarre on its own, tendency evidence showing a comparable pattern of behaviour can reduce that implausibility and thereby increase probative value.
- Probative value is assessed in the context of the full case, including the defence's position and the issues genuinely in dispute at trial, not merely by examining the tendency evidence in a vacuum.
- Button J left outstanding questions about discrete parts of the tendency evidence to be resolved during trial under s 137, illustrating that a single admissibility ruling on tendency evidence need not resolve every subsidiary question about individual components of that evidence.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 97, 101, 137
Cases
- 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