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Supreme Court 23 June 2021

R v Newson (No 4)

[2021] NSWSC 1723

Homicide
CRIMINAL PROCEDURE TRIAL CASE MANAGEMENT NOTICE OF ALIBI WHERE NOTICE NOT TENDERED BY ACCUSED

Citation: R v Newson (No 4) [2021] NSWSC 1723
Court: Supreme Court of New South Wales
Date: 23 June 2021
Judge(s): Ierace J

Background

The accused stood trial for the murder of a woman whose remains were found in bushland in regional New South Wales almost two years after she was last seen. The Crown case was that the accused had been in a romantic relationship with the deceased and was responsible for her death. The accused had previously told police he spent the afternoon of the relevant day visiting a friend and travelling between locations in Muswellbrook and Scone.

Prior to the first trial in 2019, the accused's solicitor filed an alibi notice (with leave granted out of time) that described the accused's movements that afternoon. Significantly, the notice included a visit to storage sheds in Hayes Street, Scone, which the accused had not mentioned in his police interviews. The first trial was discharged, and the second trial commenced in March 2021, complicated further by a change of counsel mid-trial due to a health issue.

The evidentiary dispute arose when the Crown sought to tender the alibi notice in its own case. The accused had by then indicated he would not give evidence. The Crown argued the notice was admissible as an admission made with authority under the Evidence Act, and that it filled an otherwise empty gap in the Crown's evidence about the accused's presence at the storage sheds.

  • Whether an alibi notice signed by a solicitor on behalf of an accused could be tendered by the Crown as an admission under s 87(1)(a) and (b) of the Evidence Act 1995 (NSW).
  • Whether s 150(6) of the Criminal Procedure Act 1986 (NSW) established sufficient authority for the solicitor's representation to bind the accused.
  • Whether tendering the notice would unfairly prejudice the accused, particularly given he had decided not to give evidence and had not mentioned the storage sheds to police.
  • Whether the contents of the notice could give rise to a "consciousness of guilt" direction.

Decision

The Crown's primary argument was that the alibi notice constituted a "previous representation" amounting to an "admission" under the Evidence Act, on the basis that the solicitor had authority under s 150(6) of the Criminal Procedure Act to make the representation on the accused's behalf. The Crown sought to use it as affirmative evidence of the accused's visit to the storage sheds, for which there was no other evidence in the Crown case.

Ierace J raised a concern about the Crown's approach, observing that the primary purpose of an alibi notice is prosecutorial disclosure: it alerts the Crown to the accused's claimed whereabouts so that the Crown can investigate and prepare rebuttal evidence. The judge drew a contrast with the earlier Court of Appeal decision in McKinney; Judge, where the Crown had tendered an alibi notice to address the contingency of a departure from a pre-trial alibi claim. In the present case, by contrast, the tender appeared unrelated to any alibi issue and was instead aimed at filling an evidentiary gap in the prosecution's own case.

The defence raised two distinct prejudice arguments. First, the notice was drafted on the assumption the accused would give evidence, and tendering it after he had decided not to testify was potentially unfair. Second, the accused's silence about the storage sheds in his police interviews might generate an inference of consciousness of guilt.

The parties ultimately resolved the dispute without requiring a formal ruling on admissibility. They agreed that the jury would be informed, by reference to the notice's contents (without calling it an alibi notice and omitting the introductory words indicating an intention to call evidence), that the accused's solicitor had advised the Director of Public Prosecutions of the accused's movements on the relevant afternoon. The Crown also accepted that the storage sheds evidence could not be used to support a consciousness of guilt inference, given that nothing incriminating was found there and the sheds were known to contain prohibited drugs and unlawful firearms belonging to a co-accused, providing an alternative reason for the accused's silence.

Orders Made

No orders were made in this decision.

Key Takeaways

  • An alibi notice filed under s 150 of the Criminal Procedure Act 1986 (NSW) and signed by a solicitor carries a statutory presumption of authority under s 150(6), raising a real question as to whether it may constitute an admission under s 87 of the Evidence Act 1995 (NSW) and be tendered by the Crown.
  • The Supreme Court identified a meaningful distinction between tendering an alibi notice to address a departure from a pre-trial alibi claim (as occurred in McKinney; Judge) and tendering it to plug an evidentiary gap in the Crown's case where alibi is not the operative issue.
  • The primary function of an alibi notice, as the court noted, is disclosure to the prosecution to enable investigation of the accused's claimed whereabouts, rather than to create evidence that the Crown may deploy affirmatively.
  • Where an accused has decided not to give evidence after an alibi notice was filed in anticipation of testifying, tendering the notice may carry specific prejudice that courts will be prepared to weigh.
  • The absence of incriminating material at premises referred to in an alibi notice, combined with an alternative explanation for the accused's silence about those premises, may preclude the notice's contents from supporting a consciousness of guilt direction.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 146A, 150 (including s 150(6))
- Evidence Act 1995 (NSW), s 87

Cases:
- R v McKinney; R v Judge (Court of Appeal (NSW), 1 July 1993, 6 September 1993, unrep)
- R v Newson; R v Cunneen (No 2) [2020] NSWSC 462