Citation: R v Darcy (No 4) [2021] NSWSC 683
Court: Supreme Court of New South Wales
Date: 4 May 2021
Judge(s): Lonergan J
Background
The accused stood trial for the murder of her domestic partner at Walcha on 2 August 2017. The Crown alleged she sedated the deceased with drugs including an animal sedative and caused his death by asphyxiation using a helium-filled plastic bag attached to his head, staging the death to appear as a suicide.
During the trial, letters written by the accused to a school friend, Ms Elderfield, came to light. The primary letters, sent around January 2020, contained what the Crown characterised as attempts to persuade Ms Elderfield to give false evidence at trial, including a detailed script for Ms Elderfield to follow and a financial inducement.
A later letter, sent eight days after the inducement letters, contained statements in which the accused expressed feelings of hopelessness, love for her children, and an inability to continue fighting. The admissibility of those emotional statements became the subject of this evidentiary ruling on day 21 of the trial.
Legal Issues
- Whether statements expressing hopelessness and concern for the accused's children, contained in a letter sent shortly after letters offering a bribe, were relevant within the meaning of s 55 of the Evidence Act 1995 (NSW).
- Whether those statements could provide an alternative explanation for the accused's post-offence conduct (the attempted bribe), beyond a simple consciousness of guilt, consistent with the principles in Edwards v R (1993) 178 CLR 193.
Decision
Issue 1: Relevance of the emotional statements
The accused did not contest the admissibility of the letters offering the inducement to lie. The dispute concerned whether the subsequent letter's emotional statements were relevant because they provided "state of mind context" for the earlier letters (at [9]). The accused argued the statements could show the jury that the bribe was motivated not by a realisation of guilt, but by an overwhelmed emotional state and concern for family (at [9]-[10]).
Lonergan J acknowledged that the relevant fact in issue was the accused's state of mind at the time she attempted to bribe Ms Elderfield (at [13]). The argument relied on the principle in Edwards v R that post-offence conduct should not automatically be taken as demonstrating only a consciousness of guilt, and on R v Xie for the proposition that this principle can apply, with adaptation, to post-offence conduct (at [10]).
Issue 2: Whether the statements met the s 55 threshold
The court rejected the submission. The statements were found to be too non-specific to provide any evidence of an alternative explanation for the accused's conduct in attempting to bribe a witness (at [15]). Lonergan J characterised the statements as nothing more than further manipulative communications designed to assist in persuading Ms Elderfield to lie, rather than a genuine account of an alternative motive (at [16]).
The statements therefore did not rationally affect the assessment of the probability of any fact in issue and failed to meet the test of relevance under s 55 of the Evidence Act 1995 (at [17]).
Orders Made
- The part of the accused's letter to Ms Elderfield sought to be adduced is inadmissible.
Key Takeaways
- Under s 55 of the Evidence Act 1995 (NSW), evidence is relevant only if it could rationally affect the assessment of the probability of a fact in issue; vague or non-specific statements do not clear this threshold merely because they are temporally connected to otherwise admissible conduct (at [12], [15]).
- The principle in Edwards v R that post-offence conduct should not be treated as automatically reflecting consciousness of guilt does not render all contextual statements admissible; the proposed evidence must still satisfy the relevance test (at [9]-[10], [15]).
- Statements expressing emotional distress or family concern were insufficient to constitute an "alternative explanation" for attempted witness interference where those statements lacked the specificity needed to rationally bear on the accused's motive (at [14]-[15]).
- The Supreme Court treated generalised appeals to sympathy in correspondence as incapable of providing probative context for post-offence conduct, distinguishing sentiment from evidence of an identifiable alternative motive (at [16]-[17]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) , s 55
Cases
- Edwards v R (1993) 178 CLR 193; [1993] HCA 63
- R v Xie [2017] NSWSC 63