Citation: R v Newson (No 1) [2020] NSWSC 463
Court: Supreme Court of New South Wales
Date: 30 April 2020
Judge(s): Ierace J
Background
The accused stood charged with murdering the deceased, a woman with whom he had been in a relationship for approximately two months, at Muswellbrook on 30 September 2014. The deceased was last seen that day after visiting her young son and was never found alive. Her skeletal remains, bearing fractures consistent with injuries capable of causing death, were discovered in bushland near Scone approximately 22 months later.
The Crown case was circumstantial and centred on the proposition that the accused attacked the deceased in a fit of jealousy and possessiveness. An earlier trial before Ierace J was aborted in July 2019 after a witness gave inadmissible evidence so prejudicial to the accused that it could not be cured by a jury direction. A fresh trial was then scheduled, prompting the Crown to seek leave afresh to lead tendency evidence against the accused.
The court reconsidered its earlier tendency ruling in light of the less than ideal circumstances in which the original hearing had taken place, noting the tendency notices had been significantly revised twice during that first pre-trial hearing.
Legal Issues
- Whether evidence from a subsequent intimate partner (Witness A) satisfied the requirements for admission as tendency evidence under s 97 of the Evidence Act 1995 (NSW), including the "significant probative value" threshold in s 97(1)(b).
- Whether an excerpt from the accused's own ERISP (electronically recorded interview with police) satisfied the same requirements for admission as tendency evidence.
- Whether the probative value of Witness A's evidence substantially outweighed any prejudicial effect on the accused, as required by s 101(2) of the Act.
Decision
Issue 1: Relevance of Witness A's evidence and the ERISP excerpt
The court found both items of proposed tendency evidence relevant to a fact in issue, namely whether the accused was aggressive and controlling towards the deceased, motivated by jealousy and possessiveness, and therefore capable of having inflicted bodily harm with intent to cause grievous bodily harm (at [32]). Each item could rationally affect the probability assessment of that fact by tending to establish motive (at [32]).
Issue 2: Significant probative value of Witness A's evidence
Ierace J held that Witness A's evidence carried significant probative value (at [34]). The similarities between her account of the accused's jealous and controlling behaviour during their 2017 relationship and the Crown's account of his behaviour towards the deceased were sufficient, including his controlling access to her phone and his argument with the deceased the day before her disappearance about men contacting her (at [34]). Witness A's observation that the accused's behaviour worsened with methamphetamine use was also relevant, given the Crown's case that the accused used the drug multiple times during the drive to Muswellbrook on the day the deceased disappeared (at [34]).
Issue 3: Significant probative value of the ERISP excerpt
The court rejected the ERISP excerpt as tendency evidence, finding it lacked significant probative value for three reasons: the reference to jealousy driving him "insane" did not necessarily indicate aggression or control towards his then-partner; the events described pre-dated the deceased's death by 14 to 16 years, significantly reducing any relevance; and the passage lacked sufficient detail to be of assistance (at [35]). The court noted this rejection was only for tendency purposes and did not determine the excerpt's admissibility for other purposes (at [36]).
Issue 4: Probative value versus prejudicial effect for Witness A's evidence
The court acknowledged that Witness A's evidence was prejudicial, portraying the accused as capable of highly irrational jealous behaviour, including destroying approximately 30 mobile phones in a four-month relationship (at [37]). However, the prejudicial effect was ameliorated by Witness A's own account that the accused never directed violence at her personally and that she was scared on only one occasion (at [38]). The court was satisfied that the probative value substantially outweighed the prejudicial effect, as required by s 101(2) of the Act (at [40]).
Orders Made
- Leave granted to the Crown to lead evidence of Witness A as tendency evidence in its case against the accused.
Key Takeaways
- Under s 97(1)(b) of the Evidence Act 1995 (NSW), tendency evidence must possess "significant probative value," a threshold that requires the evidence to do more than meet the basal test of relevance; it must be capable of significantly bearing on proof of the fact in issue, consistent with the approach in McPhillamy v The Queen (at [29]-[34]).
- Tendency evidence from a partner in a subsequent relationship was found to have significant probative value where similarities existed between that partner's account of the accused's jealous and controlling conduct and the Crown's account of the accused's conduct towards the deceased (at [34]).
- A reference to jealous feelings in a relationship 14 to 16 years before the events in question, coupled with an absence of detail and no clear inference of aggression or control, was insufficient to meet the significant probative value threshold for tendency purposes (at [35]).
- The prejudicial effect of tendency evidence portraying highly controlling behaviour was treated as materially reduced where the witness herself described the violence as directed at objects rather than her person, and where her account of feeling frightened was limited to a single occasion (at [37]-[38]).
- Where a trial has been aborted, a court may reconsider earlier pre-trial rulings on tendency evidence under s 130A(3) of the Criminal Procedure Act 1986 (NSW), particularly where the original hearing was conducted in less than ideal circumstances (at [8]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
- Criminal Procedure Act 1986 (NSW)
Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
- R v Newson; R v Cunneen (No 2) [2020] NSWSC 462