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Court of Criminal Appeal 6 March 2024

Newson v R

[2024] NSWCCA 33

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION APPEALS APPEAL AGAINST CONVICTION APPEALS

Citation: Newson v R [2024] NSWCCA 33
Court: Court of Criminal Appeal
Date: 06 March 2024
Judge(s): Ward P (at [1]); Wilson J (at [394]); Fagan J (at [405])

Background

The appellant was convicted by jury on 24 June 2021 of the murder of his then girlfriend. The Crown's case was that the appellant killed the deceased on 30 September 2014 in Muswellbrook, New South Wales, and disposed of her body that same afternoon at Owens Gap, approximately 17 kilometres from Scone. The deceased's skeletal remains were discovered in bushland in August 2016, almost two years after her disappearance.

The Crown case was wholly circumstantial. It alleged the appellant intercepted the deceased as she walked to a nearby McDonald's after visiting her daughter's father, killed her in a fit of jealous rage, and drove with a close friend to the disposal site before attending McDonald's in Scone at approximately 4.40pm. The deceased's cause of death was blunt force trauma to the head, with expert evidence identifying 23 fractures to the skull and face, 13 fractures to the body, and evidence of severe and repeated force.

On 17 December 2021, the appellant was sentenced to 27 years imprisonment with a non-parole period of 19 years and 9 months. He appealed both conviction and sentence on multiple grounds.

Legal Issues

  • Whether tendency evidence from the appellant's later partner regarding his jealous and possessive behaviour was admissible under ss 97 and 101 of the Evidence Act 1995 (NSW), given the tendency did not extend to physical violence against the person
  • Whether the failure to give a dedicated inferences direction to the jury (in a wholly circumstantial Crown case) constituted a miscarriage of justice
  • Whether the trial judge erred in disallowing cross-examination of a key Crown witness about alleged dishonest conduct in dealings with Centrelink
  • Whether the trial judge was obliged to leave manslaughter by unlawful and dangerous act as an alternative verdict
  • Whether the verdict of guilty of murder was unreasonable or unsupported by the evidence
  • Whether the sentencing judge erred in finding an intention to kill rather than an intention to cause grievous bodily harm
  • Whether the sentencing judge erred in characterising the offence as slightly above mid-range in objective seriousness
  • Whether the sentence was manifestly excessive

Decision

Ground 1: Admissibility of tendency evidence

The Court upheld the admission of the tendency evidence. Ward P held that the evidence of the appellant's jealous and controlling behaviour towards his later partner, including smashing phones and monitoring her contact with other men, had significant probative value in establishing his tendency to act aggressively when motivated by jealousy (at [124]). That probative value was not diminished by the absence of evidence of direct physical violence against that partner. The Court found the probative value substantially outweighed the prejudicial effect, particularly when considered alongside other evidence of jealousy including text messages and police interview admissions, and given that appropriate jury directions were given (at [126]). Ground 1 was dismissed.

Ground 2: Failure to give a dedicated inferences direction

The Court accepted that, on the balance of the evidence, a conventional standalone inferences direction was not given to the jury, despite the trial judge having clearly intended to do so (at [152]). However, the Court found no miscarriage of justice resulted. The trial judge had given a proper circumstantial evidence direction, repeatedly referred to the need for care in drawing inferences, and directed the jury to consider alternative explanations (at [152]-[154]). Wilson J added that jury directions need not take any particular sequential or dedicated form; the substance of the direction was communicated in multiple contexts throughout the summing up (at [395]). Ground 2 was dismissed.

Ground 3: Disallowance of cross-examination on Centrelink dealings

The Court found no error in the trial judge's refusal to permit cross-examination of the key Crown witness about whether he had failed to disclose financial support from his family to Centrelink. Ward P held that the proposed questioning lacked a proper evidentiary basis, and that any alleged failure to disclose informal family support to Centrelink could not rationally affect the witness's credibility on the issues relevant at trial, such as when the deceased left his house and the circumstances of events the following morning (at [182]-[183]). There was no evidence that Mr Easton had in fact been dishonest with Centrelink, and no suggestion his conduct was criminal. Ground 3 was dismissed.

Ground 4: Failure to leave manslaughter as an alternative verdict

This ground divided the Court. Ward P and Wilson J (majority) found that manslaughter by unlawful and dangerous act was not a viable alternative verdict. The medical evidence established that significant force was applied on at least two separate occasions, one to the head and one to the body, and this was inconsistent with conduct falling short of the requisite intent for murder (at [211]). Wilson J reasoned that inflicting a further severe blow upon an already incapacitated victim takes the conduct beyond an unlawful and dangerous act, with intent to cause at least grievous bodily harm being inherent (at [401]).

Fagan J dissented. His Honour concluded that the evidence was not definitive as to the number of blows or the use of a weapon, and that on the expert evidence there remained a reasonable possibility that the fatal head injury was caused by a single punch causing the deceased to fall and strike her head on the ground (at [424]). His Honour held that where the jury might have entertained a reasonable doubt about specific intent, the evidence supporting the murder charge was coextensive with evidence capable of establishing an unlawful and dangerous act, and the jury should have been directed accordingly (at [417]). Fagan J would have allowed the appeal and ordered a retrial (at [441]). The majority position prevailed and Ground 4 was dismissed.

Ground 5: Unreasonable verdict

Conducting an independent assessment of the whole of the evidence, Ward P was satisfied beyond reasonable doubt of the appellant's guilt. The Court found the evidence established that the deceased was killed in Muswellbrook, that the appellant had both opportunity and motive, that the body was found in an area the appellant later admitted knowing well and had hunted, and that his conduct before and after the disappearance was consistent with knowledge of the deceased's death (at [289]-[301]). The alternative hypothesis that the deceased's former partner was responsible was excluded beyond reasonable doubt (at [299]). Ground 5 was dismissed.

Ground 6: Sentencing judge's finding of intention to kill

The Court found no error in the sentencing judge's conclusion that the appellant intended to kill the deceased. The finding was open on the evidence, given the severity and nature of the injuries, the appellant's extensive martial arts training and knowledge of his own physical capabilities, and the significant disparity in size between the appellant and the deceased (at [339]). The fact that the Crown's closing address at trial had framed the case primarily on an intention to cause grievous bodily harm did not preclude the sentencing court from finding a more serious intent, as a sentencing court is not bound by the submissions of either party (at [340]). Ground 6 was dismissed.

Ground 7: Assessment of objective seriousness

The Court found no House v The King error in the sentencing judge's assessment that the offence fell slightly above the mid-range of objective seriousness. Ward P confirmed the distinction between objective seriousness of the offence and moral culpability of the offender as separate but related concepts, and held that the appellant's history of childhood sexual abuse, while reducing his moral culpability, did not reduce the objective seriousness of the offence itself (at [368]), consistent with the approach in DS v R; DM v R (2022) 109 NSWLR 82. The Court held the finding was well open to the sentencing judge having regard to the severity of the attack, the domestic violence context, the intention to kill, and the callous disposal of the body (at [364]). Ground 7 was dismissed.

Ground 8: Manifest excess

The Court found the sentence was not manifestly excessive. Having regard to the brutal nature of the murder, the domestic violence context, the disposal of the body, the absence of remorse, and the applicable comparable cases, the sentence could not be characterised as unreasonable or plainly unjust (at [390]). The Court noted that the sentencing judge had already made a generous reduction for reduced moral culpability arising from childhood sexual abuse and a finding of special circumstances (at [390]). Ground 8 was dismissed.

Orders Made

  • Leave to appeal against conviction (where necessary) and against sentence is granted
  • Appeals against both conviction and sentence are dismissed

Key Takeaways

  • Tendency evidence establishing a propensity for jealousy and aggressive controlling behaviour in intimate relationships can have significant probative value in a murder prosecution, even where the tendency conduct did not extend to physical violence against the person, provided the probative value substantially outweighs the prejudicial effect under s 101 of the Evidence Act 1995 (NSW) (at [124]-[126]).

  • A failure to give a dedicated standalone inferences direction in a circumstantial case will not necessarily constitute a miscarriage of justice where the substance of the direction is conveyed throughout the summing up in multiple contexts; there is no rule of law requiring jury directions to be given in a particular sequential or dedicated form (at [152]-[154], [395]).

  • Cross-examination of a witness on alleged dishonest conduct is not permissible as credibility evidence under s 103 of the Evidence Act 1995 (NSW) where the proposed questioning lacks a proper evidentiary foundation and the alleged conduct is not rationally connected to the witness's credibility on the issues that matter at trial (at [182]-[183]).

  • Manslaughter by unlawful and dangerous act will not be a viable alternative verdict in a murder case where the medical evidence, taken as a whole, establishes that the force applied was only consistent with an intention to cause at least grievous bodily harm; however, Fagan J in dissent confirmed that where the evidence leaves open a reasonable possibility that specific intent is not proved, the trial judge is obliged to leave the alternative regardless of the positions taken by counsel (at [211], [417]-[418]).

  • Objective seriousness of the offence and moral culpability of the offender are separate but related sentencing concepts; a finding that an offender's moral culpability is reduced due to a causally connected personal history does not automatically reduce the court's assessment of the objective seriousness of the offence itself, consistent with DS v R; DM v R (2022) 109 NSWLR 82 (at [365]-[368]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22A
- Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6
- Evidence Act 1995 (NSW), ss 55, 56, 97, 101, 101A, 102, 103
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Beavan v The Queen (1954) 92 CLR 660; [1954] HCA 41
- Blackwell v Regina [2011] NSWCCA 93
- BM v R [2019] NSWCCA 223
- Bugg v Day (1949) 79 CLR 442; [1949] HCA 59
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Bullard v The Queen [1957] AC 635
- Camilleri v R [2023] NSWCCA 106
- Carbone v R [2020] NSWCCA 318
- Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
- Carney v R; Cambey v R [2011] NSWCCA 223
- Cherry v R [2017] NSWCCA 150
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Clarke v R [2023] NSWCCA 170
- Dansie v The Queen (2002) 274 CLR 651; [2022] HCA 25
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- Evans v R [2023] NSWCCA 11
- Fisher v R [2021] NSWCCA 91
- Fuller v R [2022] NSWCCA 203
- Geraghty v R [2023] NSWCCA 47
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Greenaway v R [2021] NSWCCA 253
- Guo v The Queen [2020] NSWCCA 40
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- House v The King [1936] HCA 40
- Hughes v The Queen (2017) 263 CLR 338
- Imnetu v The Queen [2006] NSWCCA 203
- James v The Queen (2014) 253 CLR 475
- Kelley v R [2021] NSWCCA 173
- King v R [2015] NSWCCA 99
- Kramer v R; R v Kramer [2023] NSWCCA 152
- Lane v R (2013) A Crim R 321; [2013] NSWCCA 317
- LB v R [2011] NSWCCA 220
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Magro v R [2020] NSWCCA 25
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59
- Mulato v R [2006] NSWCCA 282
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Nguyen v The Queen [2016] NSWCCA 5
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Paterson v R [2021] NSWCCA 273
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
- Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7
- R v AA [2017] NSWCCA 84
- R v AH (1997) 42 NSWLR 702
- R v Aldridge (1990) 20 NSWLR 737
- R v Bikic [2002] NSWCCA 227
- R v Burns [2003] NSWCCA 30
- R v De Beyer [2017] NSWSC 1700
- R v Eaton [2023] NSWCCA 125
- R v Fang (No. 4) [2017] NSWSC 323
- R v Ford [2009] NSWCCA 306
- R v Hachem [2023] NSWSC 535
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Isaacs (1997) 41 NSWLR 374
- R v JD [2018] NSWCCA 233
- R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385
- R v Latu (No 3) [2019] NSWSC 951
- R v Lloyd [2022] NSWSC 906
- R v Lumsden [2003] NSWCCA 83
- R v MacDonell (NSWCCA, 8 December 1995, unreported)
- R v Mobbs [2005] NSWCCA 371
- R v Morabito (NSWCCA, 10 June 1992, unreported)
- R v Newson (No 1) [2021] NSWSC 442
- R v Newson (No 5) [2021] NSWSC 1661
- R v Newson; R v Cunneen (No 1) [2019] NSWSC 875
- R v Newson; R v Cunneen (No 2) [2020] NSWSC 463
- R v Pilley (1991) 56 A Crim R 202
- R v Primmer [2020] NSWCCA 50
- R v PWD [2010] NSWCCA 209
- R v Rae [2001] NSWCCA 545
- R v SK; SK v R [2011] NSWCCA 292
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Wood [2018] NSWSC 1855
- Roos v R [2019] NSWCCA 67
- Ross v The King (1922) 30 CLR 246
- Rossall v R [2021] NSWCCA 200
- Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Skocic v R [2014] NSWCCA 225
- Tepania v R [2018] NSWCCA 247
- Thàbo Meli & Ors v R [1954] 1 All ER 373
- The Queen v Baden Clay (2016) 258 CLR 308; [2016] HCA 35
- The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37
- TL v The Queen [2020] NSWCCA 265
- Tomlinson v R [2022] NSWCCA 16
- Varley v R (1976) 12 ALR 347; (1976) 51 ALJR 243
- Wang v R [2021] NSWCCA 282
- Waters v R [2007] NSWCCA 219
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
- Wood v R [2019] NSWCCA 309
- Xu v R [2023] NSWCCA 93
- Yaman v R [2020] NSWCCA 239