Citation: R v Newson; R v Cunneen (No 1) [2019] NSWSC 875
Court: Supreme Court of New South Wales
Date: 11 July 2019
Judge: Ierace J
Background
The first accused faced a charge of murder arising from the disappearance of his partner on 30 September 2014. Her skeletal remains were found 22 months later in bushland approximately 50 kilometres from where she was last seen. The Crown case was broadly circumstantial: it alleged the accused killed the deceased in a fit of rage driven by jealousy, possessiveness, and drug-affected aggression.
The second accused faced a charge of being an accessory after the fact to the murder, on the basis that he helped convey the body to the location where it was later found. By day 31 of a trial estimated to run three months, the Crown had led a substantial body of tendency evidence concerning the first accused's conduct towards former partners.
One witness was called to give evidence about a number of incidents. Before trial, Ierace J had ruled on two tendency notices under s 97 of the Evidence Act 1995 (NSW) and had specifically excluded part of the witness's statement that described an alleged sexual assault, finding its prejudicial effect outweighed its probative value. During examination in chief, Crown counsel inadvertently led the excluded evidence in full, and the witness confirmed the account.
Legal Issues
- Whether the inadvertent adduction of previously excluded and highly prejudicial evidence of an alleged sexual assault rendered the accused's right to a fair trial irreparably damaged.
- Whether a direction to the jury to disregard the evidence was sufficient to cure the prejudice.
- Whether, in the alternative, the second accused should be granted a separate trial.
Decision
Ierace J had directed the jury to disregard the Narrabeen evidence within minutes of it being led, but both accused submitted this direction was insufficient to cure the damage. The Crown argued the jury had thus far heeded earlier directions about other prejudicial material and there was no reason to expect a different outcome here.
The court acknowledged there was already a significant body of prejudicial material properly before the jury, including evidence of drug use, drug supply, and sexualised conduct. However, the court drew a clear distinction between that material and the Narrabeen evidence: none of the properly admitted material involved the accused committing a serious criminal act against a former partner against her will.
The court accepted the second accused's submission that the prejudice was equally relevant to his case. Because the accessory charge required the jury to first be satisfied that the first accused committed murder, any prejudice undermining a fair assessment of the first accused's culpability infected the case against the second accused as well.
Ierace J concluded it was unrealistic to expect the jury to put the Narrabeen evidence out of their minds during deliberations, and that it added to the existing prejudicial material in a way that tipped the balance against a fair trial. The applications to discharge the jury were granted in respect of both accused, though the court expressed considerable reluctance given the length of the trial already completed.
Orders Made
- The application to discharge the jury was granted in respect of both accused.
- The jury was to be discharged when it convened the following morning.
Key Takeaways
- Where previously excluded prejudicial evidence is inadvertently placed before a jury, a direction to disregard it will not automatically suffice; the court must assess whether the damage to the accused's right to a fair trial is irreparable in light of all circumstances.
- The Supreme Court drew a meaningful distinction between prejudicial material that had been properly admitted and a one-off disclosure of a serious criminal allegation that had been specifically ruled inadmissible. The latter carried a qualitatively different risk of unfair prejudice.
- A cumulative effect can arise where inadmissible evidence is added to a body of existing prejudicial material. Even if the jury had previously heeded directions to disregard other evidence, the combined weight may still render a fair trial impossible.
- Prejudice to one accused in a joint trial can flow through to a co-accused where the co-accused's charge is structurally dependent on findings about the first accused's conduct.
- Under s 101(2) of the Evidence Act 1995 (NSW), tendency evidence must be excluded where its probative value does not outweigh its prejudicial effect. The court here confirmed that ruling before trial, and the subsequent inadvertent adduction of that evidence directly triggered the discharge application.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 97 (tendency evidence) and s 101(2) (requirement that probative value outweigh prejudicial effect)
Cases cited: No cases were cited in the judgment.