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District Court 18 May 2022

R v Cunneen (No. 1)

[2022] NSWDC 585

HomicidePublic order & justice offences
ACCESSORIAL LIABILITY

Citation: R v Cunneen (No. 1) [2022] NSWDC 585
Court: District Court of New South Wales
Date: 18 May 2022
Judge: Mahony SC DCJ

Background

The accused faced a charge of being an accessory after the fact to murder. The Crown alleged that, following the murder of a woman by her partner in September 2014, the accused assisted the principal offender over a period of nearly three years by helping dispose of the body, providing a false alibi, supporting the offender's public search for the deceased, deleting digital data, and relaying information about the police investigation.

The principal offender had been separately tried and convicted of murder by a jury in June 2021. To prove the foundational element of the accessory charge, namely that the principal offence was actually committed by the principal offender, the Crown sought to tender a Certificate of Conviction under s 178 of the Evidence Act 1995.

The accused opposed the tender, relying principally on s 91 of the Evidence Act 1995, which generally prevents the use of a court finding or certificate of conviction as evidence of the facts on which it was based. In the alternative, the accused argued that even if admissible in principle, the evidence should be excluded under ss 135 and 137 of the Evidence Act as unfairly prejudicial.

  • Whether a well-established common law rule, holding that proof of the principal offender's conviction is admissible as prima facie evidence on the trial of an accessory, survives in New South Wales following the enactment of the Evidence Act 1995.
  • Whether s 91 of the Evidence Act abrogates that common law rule by precluding the use of a certificate of conviction to prove the facts underlying it.
  • If admissible, whether the Certificate of Conviction should nonetheless be excluded under s 135 or s 137 of the Evidence Act on the grounds of unfair prejudice.

Decision

The common law rule survives s 91

The court accepted the Crown's submission that a distinct common law rule applies specifically to accessory trials. The rule, described in cases such as R v Dawson and accepted across multiple Australian jurisdictions, provides that proof of the principal offender's conviction is admissible as prima facie (not conclusive) evidence that the principal offence was committed by that person. The court distinguished this rule from the general common law prohibition in Hollington v Hewthorn on using a third party's conviction as proof of the underlying facts in unrelated proceedings.

The court found that s 91 of the Evidence Act was directed at abrogating the Hollington v Hewthorn rule, which had its origins in civil litigation. The Australian Law Reform Commission materials that preceded the Uniform Evidence legislation made no mention of the accessory-specific rule, and s 91 does not expressly override it. The court concluded that the legislature did not intend to abrogate the common law rule applicable to accessory trials.

The court noted that the rule had been confirmed or applied in Victoria, Queensland, and other jurisdictions, and that nothing in the Evidence Act's text or history displaced its operation in New South Wales. The fact that the principal offender in this case was convicted after a jury trial, rather than by guilty plea as in some of the leading authorities, did not alter the analysis. An outstanding appeal by the principal offender was also found to be irrelevant, as the conviction stood unless and until overturned.

Discretionary exclusion refused

The court declined to exercise its discretion to exclude the Certificate under s 135, finding that its probative value was not substantially outweighed by any danger of unfair prejudice, confusion, or misleading effect. The court noted that the evidence was prima facie only, that the accused would retain the opportunity to cross-examine the principal offender and challenge all other evidence, and that clear jury directions would address the certificate's limited weight and the Crown's continuing onus to prove all elements beyond reasonable doubt. The court also rejected the argument under s 137, finding that limb did not apply on the facts.

Orders Made

  • The Crown was permitted to adduce the Certificate of Conviction into evidence, as amended to omit irrelevant matters.

Key Takeaways

  • A long-established common law rule holds that, on the trial of an accessory after the fact, proof of the principal offender's conviction is admissible and constitutes prima facie evidence that the principal offence was committed by that person. The District Court confirmed this rule applies in New South Wales.
  • Section 91 of the Evidence Act 1995 does not abrogate the accessory-specific rule. The court found that s 91 was aimed at the broader Hollington v Hewthorn prohibition applicable in civil proceedings, and the ALRC materials underpinning the Uniform Evidence legislation did not address or intend to displace the accessory rule.
  • The prima facie character of the evidence is significant: the accused retains the full right to challenge every element of the principal offence, including the manner, timing, and intent accompanying the death. The certificate does not conclusively establish those facts.
  • Where appropriate jury directions are available, the risk of unfair prejudice from admitting a certificate of conviction in accessory proceedings will not necessarily outweigh the evidence's probative value for the purposes of ss 135 and 137 of the Evidence Act.
  • That the principal offender's conviction followed a contested jury trial, rather than a guilty plea, did not distinguish the operation of the common law rule. Similarly, a pending appeal by the principal offender did not affect admissibility, as the conviction remained on foot.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 91, 92, 93, 135, 137, 178
- Civil Procedure Act 2005 (NSW), s 99
- Jury Act 1977 (NSW), s 68C
- Crimes Act 1900 (NSW), s 18(1)(a)

Cases
- Hollington v Hewthorn [1843] KB 587
- R v Dawson [1961] VR 773; (1960) 106 CLR 1
- R v Carter & Savage [1990] 47 A Crim R 55
- R v Welsh (1998) 105 A Crim R 448; [1998] VSCA 138; [1999] 2 VR 66
- R v Simpson [2008] QCA 413
- R v Kirkby (2000) 2 Qd R 257; (1998) 105 A Crim R 323
- R v Muriniti (2018) 97 NSWLR 991
- R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509
- R v BD (1997) 94 A Crim R 131
- Gall v R [2015] NSWCCA 69