Citation: Newson v R [2024] NSWCCA 33
Court: NSW Court of Criminal Appeal
Date: 6 March 2024
Judges: Ward P; Wilson J; Fagan J
Background
The appellant was convicted by jury in June 2021 of the murder of his then girlfriend, whose skeletal remains were discovered in bushland near Scone, NSW, in August 2016. She had last been seen on 30 September 2014. The Crown's case was wholly circumstantial: the appellant, motivated by jealousy after the deceased visited her former partner that day, killed her and later disposed of her body in bushland outside Scone.
In December 2021, the appellant was sentenced to 27 years' imprisonment with a non-parole period of 19 years and 9 months.
The appellant sought leave to appeal against both conviction and sentence, raising five grounds on conviction and three on sentence.
Legal Issues
Conviction appeal:
- Whether tendency evidence of the appellant's jealousy-driven aggression was admissible, given the risk of prejudice
- Whether the trial judge's failure to give a dedicated "inferences" direction (in addition to a circumstantial case direction) amounted to a miscarriage of justice
- Whether the defence should have been permitted to cross-examine the deceased's former partner about alleged dishonest conduct (as part of an alternative-culprit theory)
- Whether the trial judge erred in declining to leave manslaughter by unlawful and dangerous act as an alternative verdict
- Whether the verdict was unreasonable
Sentence appeal:
- Whether the sentencing judge erred in finding the appellant intended to kill (rather than merely intending to cause grievous bodily harm)
- Whether the objective seriousness of the offence was correctly assessed as mid-range
- Whether the sentence was manifestly excessive
Decision
Tendency evidence (Ground 1 — unanimously dismissed)
The Court confirmed the relevant test: tendency evidence is admissible where its probative value is significant, and there is no requirement for "striking similarities" or closely similar behaviour. The tendency evidence here, demonstrating the appellant's propensity for jealousy-driven aggression, had strong probative force directly relevant to the Crown's theory of the killing. That probative value substantially outweighed the prejudicial effect, including the fact that the prior conduct did not involve physical violence.
Inferences direction (Ground 2 — unanimously dismissed)
Although the trial judge failed to give a conventional, standalone "inferences" direction, the Court found no miscarriage of justice. The trial judge had, in substance, conveyed the necessary caution about drawing inferences repeatedly and across multiple contexts within the summing-up. Wilson J observed that a jury direction need not follow a particular format or appear as a "dedicated" section; what matters is whether the substance of the direction was conveyed in terms the jury could comprehend and apply.
Cross-examination of the former partner (Ground 3 — unanimously dismissed)
The trial judge correctly excluded the proposed line of cross-examination regarding whether the deceased's former partner had failed to disclose family financial support to Centrelink. That conduct bore no rational connection to any motive to harm the deceased and could not affect the witness's credibility on the issues relevant at trial.
Manslaughter as alternative verdict (Ground 4 — majority dismissed, Fagan J dissenting)
This ground divided the Court. The majority (Ward P and Wilson J) held that manslaughter by unlawful and dangerous act was not a viable alternative on the evidence: the medical evidence showed at least two significant blows had been delivered, the second after the deceased had already been incapacitated. Applying that force was inconsistent with an absence of intent to cause serious bodily harm or death. Wilson J identified three features reinforcing the trial judge's decision: the forensic evidence of sequential blows, the appellant's background as an experienced martial artist, and the stance taken by defence counsel at trial.
Fagan J dissented, concluding the trial judge should have left manslaughter to the jury. His Honour reasoned that the evidence the Crown relied upon to prove the acts causing death was largely coextensive with evidence capable of supporting an unlawful and dangerous act finding, should the jury not accept the specific intent required for murder. Fagan J would have allowed the conviction appeal, quashed the conviction, and ordered a retrial.
Unreasonable verdict (Ground 5 — unanimously dismissed)
Having conducted an independent review of the trial evidence, the Court was satisfied beyond reasonable doubt of the appellant's guilt. The Court also found that the deceased's former partner was excluded as a viable alternative culprit.
Sentence appeal (all three grounds — unanimously dismissed)
The sentencing judge's finding of an intention to kill was held to be open on the evidence. The force applied could not sensibly be reconciled with an absence of intent to cause at least serious bodily harm. The Court also drew a clear distinction between objective seriousness and moral culpability: the appellant's history of childhood sexual abuse, accepted as reducing his moral culpability, did not reduce the objective seriousness of the offence. The mid-range objective seriousness finding was upheld. The sentence was found not to be manifestly excessive, given the brutality of the killing, the domestic relationship context, the callous disposal of the body, and the absence of remorse.
Orders Made
- Leave to appeal against conviction and sentence granted
- Appeal against conviction dismissed (Ward P and Wilson J; Fagan J dissenting)
- Appeal against sentence dismissed (unanimously)
Key Takeaways
- Tendency evidence does not require "striking similarities" between the prior conduct and the charged offence; significant probative value is sufficient, and the absence of physical violence in prior conduct does not necessarily diminish that value.
- A failure to give a "dedicated" standalone inferences direction will not constitute a miscarriage of justice where the substance of the direction is conveyed to the jury in clear terms across the summing-up as a whole.
- The Court of Criminal Appeal confirmed that objective seriousness and moral culpability are distinct concepts; a sentencing factor that reduces moral culpability (such as a history of childhood abuse) does not automatically reduce the objective seriousness of the offence.
- In dismissing the manslaughter alternative ground, the majority held that where medical evidence demonstrates sequential blows of significant force, the conduct is inconsistent with the absence of intent required to support a manslaughter-only direction.
- Fagan J's dissent highlights that the duty to leave an alternative verdict rests with the trial judge independently of the positions taken by counsel, and that the question of when manslaughter must be left in a murder trial remains a source of genuine appellate difficulty.
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
Key cases:
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- James v The Queen (2014) 253 CLR 475; [2014] HCA 6
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37
- Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385
- Geraghty v R [2023] NSWCCA 47
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37