R v Dunbar (No 2)

Citation: R v Dunbar (No 2) [2025] NSWSC 1160
Court: Supreme Court of New South Wales — Common Law Division (Criminal)
Date: 22 May 2025
Judge(s): McNaughton J

Background

The accused, Mr Dunbar, has been charged with one count of murder arising from the fatal stabbing of Mr Shane Naylor on 7 January 2022 at Toongabbie, in western Sydney. The Crown alleges that the accused fatally stabbed the deceased following a series of disputes over property — including a ring, a wallet, and personal belongings — and in the context of a hostile relationship between the two men, both of whom had been in relationships with the same woman, Ms Erin Rogers.

A central issue at trial is identity: whether the Crown can prove beyond reasonable doubt that the accused was the person who inflicted the fatal stab wounds, given that another man, Mr Peter Henry — who had no connection to the accused — was also involved in a physical altercation with the deceased at around the time of his death.

As part of its case, the Crown seeks to rely on an alleged spontaneous admission made by the accused in the waiting room of Blacktown Hospital on the night of his arrest. The accused was being treated for head injuries at the time. The alleged admission — "Well I stabbed a man last night. He deserved it" — was said to have been made to a fellow patient. It was overheard by a junior police constable, Constable Jabbour, who was at the hospital guarding the accused. Critically, Constable Jabbour did not make a contemporaneous note, did not report the statement to colleagues, and only first disclosed and recorded it approximately two months later. She explained that she had been under the mistaken impression that an admission not made under caution was inadmissible, and also incorrectly believed it to be hearsay. No other person — including the patient to whom the comment was allegedly directed — gave evidence of having heard the statement.

The accused applied to exclude the alleged admission before trial, relying on three provisions of the Evidence Act 1995 (NSW): sections 90, 135, and 137.

Legal Issues

• Whether the alleged admission should be excluded under s 90 of the Evidence Act 1995 (NSW), which confers a discretion to exclude admissions where, having regard to the circumstances in which the admission was made, it would be unfair to the defendant to use it against him.
• Whether the alleged admission should be excluded under s 135, which provides a general discretion to exclude evidence if its probative value is substantially outweighed by the danger that it might be unfairly prejudicial, misleading, or confusing.
• Whether the alleged admission should be excluded under s 137, which requires mandatory exclusion of prosecution evidence in criminal proceedings if its probative value is outweighed by the danger of unfair prejudice to the defendant.
• More broadly, whether the circumstances surrounding the statement — the absence of any contemporaneous note, the two-month delay in reporting, the lack of corroboration, and Constable Jabbour's inexperience and mistaken understanding of the law — individually or collectively warranted exclusion.

Decision

McNaughton J refused the application and declined to exclude the alleged admission under any of the three provisions relied upon. His Honour delivered the decision orally on 22 May 2025, with this judgment providing the more detailed reasons.

Section 90 — Unfairness discretion: The court considered the circumstances in which the admission was allegedly made. The accused argued that the combination of factors — the constable's failure to note or report the statement, the two-month delay, the absence of corroboration from any other witness, and the accused's condition at the time (he was in hospital being treated for head injuries) — rendered it unfair to admit the evidence. While acknowledging these were legitimate concerns, McNaughton J found that these matters went to the reliability and weight of the evidence rather than to fundamental unfairness of the kind that would warrant exclusion under s 90. His Honour noted that the statement was alleged to have been made spontaneously and voluntarily, not in the course of any police questioning or interrogation.

Section 135 — General discretion: The court assessed whether the probative value of the admission was substantially outweighed by the danger of unfair prejudice, or the risk that it might be misleading or confusing. McNaughton J accepted that the evidence was probative — it was potentially a direct admission of guilt to the central issue at trial (identity). While the surrounding circumstances gave rise to questions about reliability, his Honour was not satisfied that the dangers substantially outweighed the evidence's probative value, particularly when appropriate jury directions could be given to mitigate the risk of unfair use.

Section 137 — Mandatory exclusion: Similarly, the court found that the probative value of the evidence was not outweighed by the danger of unfair prejudice. The evidence bore directly on the most contested issue in the case — whether the accused was the person who stabbed the deceased. McNaughton J indicated that the concerns raised by the defence — the delay in reporting, the lack of corroboration, and the constable's inexperience — were matters that could be fully and effectively tested through cross-examination before the jury and addressed through appropriate directions, including a direction under s 165 of the Evidence Act regarding the potential unreliability of the evidence.

His Honour's reasoning reflected the orthodox approach to the interplay between admissibility and weight: evidence is not to be excluded merely because it is contested or because its reliability is open to question, provided those questions can be adequately addressed through the adversarial process at trial.

Orders Made

• The application by the accused to exclude the alleged admission was refused.
• The Crown was permitted to lead the evidence of the alleged admission at trial.

Key Takeaways

• The Supreme Court reaffirmed that the distinction between admissibility and weight remains fundamental. Concerns about the reliability of evidence, including delayed reporting, absence of contemporaneous notes, and lack of corroborating witnesses, were held to go to weight rather than admissibility, and could be addressed through cross-examination and jury directions.

• Under s 90 of the Evidence Act 1995 (NSW), the discretion to exclude admissions requires more than doubts about reliability. McNaughton J held that the discretion was not enlivened merely because there were questions about a witness's recollection or professionalism, confirming that the focus of s 90 is on the circumstances in which the admission was made and whether it would be unfair to the accused to use it.

• In conducting the s 137 balancing exercise, the Court assessed whether the risk of unfair prejudice could be adequately mitigated by jury directions, including s 165 reliability warnings, before determining whether the mandatory obligation to exclude the evidence was engaged.

• A police officer's failure to follow proper recording and reporting procedures did not automatically render an overheard admission inadmissible. The Court acknowledged, however, that such failures may significantly reduce the weight a jury gives to the evidence and provide fertile ground for cross-examination at trial, even where exclusion is not ordered.

• Spontaneous admissions made to third parties (rather than admissions elicited during custodial questioning) attracted a different analysis under s 90. The voluntariness and spontaneity of the alleged statement were relevant to the fairness inquiry: a statement freely made without any police prompting was less likely to be regarded as unfairly obtained, even where the surrounding circumstances of its recording were problematic.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 90, 135, 137, 165

Cases:
- R v Em [2003] NSWCCA 374
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46