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Supreme Court 14 May 2025

R v Dunbar (No 1)

[2025] NSWSC 1159

Homicide

Citation: R v Dunbar (No 1) [2025] NSWSC 1159
Court: Supreme Court of New South Wales — Common Law Division (Criminal)
Date: 14 May 2025
Judge(s): McNaughton J

Background

The accused is charged with the murder of the deceased, who was fatally stabbed on 7 January 2022 at Toongabbie, New South Wales. The Crown alleges the accused stabbed the deceased — a man towards whom the accused had "proven animosity" — intending to kill him, and then fled to a nearby vacant dwelling where he was arrested approximately 45 minutes later with injuries to his head. Another man, Mr Henry, was also having an altercation with the deceased around the time of death, but had no connection to the accused. The central issue at trial is whether the Crown can prove beyond reasonable doubt that it was the accused who inflicted the fatal stab wounds.

With the jury trial set to commence on 19 May 2025, the Commissioner of Police filed a Notice of Motion seeking to set aside certain paragraphs of a subpoena for production issued at the accused's request. The subpoena sought material relating to two Crown witnesses: a registered police source referred to as "RS" and Mr Henry. The Commissioner also sought pseudonym orders for three witnesses, non-publication orders, and an order that the court be closed during those witnesses' evidence.

"RS" is a former partner of the deceased's partner at the time of death. He knew the accused and, according to the Crown case, had a conversation with the accused the day before the alleged murder in which the accused allegedly stated the deceased was "going to get stabbed," made a stabbing motion, described a plan to "set up" the deceased, and declared: "I'm not leaving Sydney without Erin."

  • Whether certain paragraphs of the defence subpoena for production (seeking police contact reports, records of benefits, sustenance requests, and letters of assistance relating to "RS" and Mr Henry) should be set aside for lack of legitimate forensic purpose, oppression, or on the basis of public interest immunity under ss 130 and 131A of the Evidence Act 1995 (NSW).
  • What test applies to subpoenas in criminal proceedings — specifically, whether the Blacktown City Council formulation from civil proceedings applies equally to criminal matters, and how it relates to the traditional "on the cards" test.
  • Whether pseudonym orders, non-publication orders, and closed court orders should be made in respect of certain witnesses.

Decision

The subpoena test in criminal proceedings: McNaughton J acknowledged that whether the Blacktown City Council "apparent relevance" formulation is appropriate for criminal matters — or whether it differs in substance from the traditional criminal test — has not been clearly determined at appellate level. His Honour applied the accepted criminal standard: the issuing party must identify a legitimate forensic purpose and establish that it is "on the cards" that the documents will materially assist the issuing party's case. A "mere fishing expedition," supported only by a tenuous and unsubstantiated hope that something useful might emerge, will not suffice. However, the overarching obligation is to ensure a fair trial — though not a perfect one free of every possible disadvantage to the accused.

Material relating to "RS": The Court found a clear legitimate forensic purpose for the subpoenaed material. Key to this finding was the chronology established through the accused's solicitor's affidavit: "RS" had been charged with criminal offences in early 2022, and Local Court transcript from April 2022 revealed that RS's counsel handed up a letter from NSW Police during sentencing, with submissions that RS was "assisting authorities with enquiries" in relation to the present matter. RS received relatively lenient sentences, including a conviction with no other penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999. This chronology supported the inference that RS had a motive to assist police in order to mitigate his own criminal exposure, which was directly relevant to his credibility as a Crown witness. McNaughton J was not satisfied by the Commissioner's assertion — relayed through counsel — that no such police letter existed, given the clear terms of the sentencing transcript. His Honour declined to set aside the relevant subpoena paragraphs.

Oppression: The Court rejected the oppression argument, noting that the Commissioner's affidavits did not set out a substantive basis for the claim beyond simply asserting oppression. His Honour emphasised that a sensible, rather than overly technical, approach to the subpoena's terms is appropriate, particularly from a model litigant.

Public interest immunity (ss 130 and 131A): Two subpoena categories (contact activity reports and sustenance requests) were challenged on the basis of public interest immunity. McNaughton J set out the non-exhaustive factors under s 130(5) of the Evidence Act that must be considered when balancing the public interest in admitting evidence against the public interest in preserving secrecy or confidentiality. The full text of the judgment is truncated at this point, but the Court's reasoning on the remaining subpoena paragraphs and the "RS" material indicates the Court was inclined to require production subject to appropriate protective orders, given the importance of the material to the accused's case.

Orders Made

Based on the available text of the judgment, the following orders or rulings can be identified:

  • Paragraph 3(viii) of the subpoena (seeking letters of assistance) was not set aside — ruled upon on 13 May 2025.
  • The remaining contested paragraphs relating to "RS" (contact reports, benefit records, sustenance requests) were not set aside on the grounds of legitimate forensic purpose or oppression.
  • The Court was considering claims under ss 130 and 131A of the Evidence Act in relation to paragraphs 3(iii) and 3(vii); the full outcome on those specific claims is not available from the truncated text.

Note: The full text of the judgment was not available for this summary. The orders listed above are those identifiable from the available portion. Readers should consult the full judgment for the complete set of rulings, including on the material relating to Mr Henry and the pseudonym/non-publication/closed court applications.

Key Takeaways

  • Legitimate forensic purpose in criminal subpoenas: Where a Crown witness was a registered police source who faced criminal proceedings at or around the time they provided statements, the Supreme Court held that the defence established a legitimate forensic purpose for seeking records of the relationship between that witness and police, including any benefits, letters of assistance, or sustenance provided. Such material went directly to credibility.

  • The "on the cards" test endures in criminal proceedings: McNaughton J explicitly left open whether the Blacktown City Council civil formulation applies identically in criminal matters, instead applying the traditional criminal standard requiring a legitimate forensic purpose and a realistic prospect that the documents would materially assist the defence. The question of whether the two tests are coextensive remains unsettled at the appellate level.

  • A bare assertion of oppression, without evidence setting out the basis for the claim, was insufficient to succeed: The Commissioner's failure to substantiate the oppression objection beyond stating the conclusion was fatal to the claim, with the Court requiring concrete particulars rather than a mere invocation of the concept.

  • Model litigant obligations informed the Court's approach: The Supreme Court emphasised that a sensible, practical reading of subpoena terms was expected of the Crown and its agencies, rather than an overly technical or obstructive interpretation that could impede a fair trial.

  • Favourable sentencing outcomes proximate in time to a witness providing assistance to police provided a strong foundation for credibility challenges: The Court recognised that the criminal histories and sentencing outcomes of Crown witnesses who were police sources were relevant to credibility, reinforcing the defence's legitimate forensic purpose in obtaining related records.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Evidence Act 1995 (NSW), ss 130, 131A

Cases:
- Attorney General (NSW) v Lipton [2012] NSWCCA 156
- McNamara v The King (2023) 280 CLR 201; [2023] HCA 36
- Mohareb v The Office of the Director of Public Prosecutions NSW [2024] NSWCA 93
- Secretary of the Department of Planning, History and Environment v Blacktown City Council [2021] NSWCA 145