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Supreme Court 11 June 2025

R v Dunbar (No 3)

[2025] NSWSC 1161

Homicide

Citation: R v Dunbar (No 3) [2025] NSWSC 1161
Court: Supreme Court of New South Wales — Common Law Division (Criminal)
Date: 11 June 2025
Judge(s): McNaughton J

Background

The accused, Mr Dunbar, was charged with one count of murder arising from the fatal stabbing of the deceased, Mr Shane Naylor, on 7 January 2022 at Toongabbie. The central issue at trial was identity — whether the Crown could prove beyond reasonable doubt that it was the accused who stabbed the deceased. The accused and the deceased had a history of animosity, reportedly connected in part to a woman, Erin Rogers, who had been in intimate relationships with both men at different times.

A few days before the jury trial was due to commence, the accused filed a notice of motion seeking to exclude the evidence of a witness referred to as "RS838" — a registered source (informant) with NSW Police. RS838 was prepared to give evidence that the accused had, the day before the killing, spoken about the deceased being stabbed, described plans for how to enter the deceased's house, and expressed his determination not to leave Sydney without Erin Rogers. The accused sought exclusion of this evidence under section 137 of the Evidence Act 1995 (NSW), arguing that its probative value was outweighed by the danger of unfair prejudice, primarily arising from significantly deficient police disclosure practices concerning RS838's relationship with police.

It was common ground that the evidence was relevant. The dispute centred on whether the acknowledged problems with disclosure — including poor cross-referencing of RS838's registration numbers and inadequate recording of police contacts with the source — created a danger of unfair prejudice sufficient to warrant exclusion.

  • Whether the evidence of RS838, a registered police source, regarding an alleged admission by the accused the day before the killing should be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice.
  • Whether the NSW Police's poor disclosure record — including deficient cross-referencing of the source's registration details and incomplete Contact Advice Reports — gave rise to a danger of unfair prejudice warranting exclusion.
  • Whether the probative value of the evidence was diminished because the alleged plan described by the accused differed from the actual circumstances of the killing.
  • Whether a s 165 direction (unreliable evidence warning) could adequately address any residual unfairness.

Decision

McNaughton J dismissed the accused's application and admitted the evidence of RS838.

On disclosure deficiencies: His Honour acknowledged that disclosure in the matter had been "significantly less than ideal," but found no evidence of deliberate non-disclosure. The problems arose from systemic failures within NSW Police, including poor cross-referencing systems that meant it took time for police to realise RS838 was registered under two different numbers, and a failure to create Contact Advice Reports for each interaction with the source as required. However, McNaughton J was not persuaded that the past failings gave rise to an overwhelming inference that significant undisclosed material remained outstanding. Once the cross-referencing problem was identified, there was no indication that further relevant information had been missed. His Honour expressed hope that these systemic failures would be rectified.

On probative value: McNaughton J found the evidence to be "clearly highly probative." The fact that the accused was allegedly discussing the deceased being stabbed the day before the deceased was in fact stabbed — and that the accused was, on any view, in close proximity to the deceased on the day of the stabbing — gave the evidence significant weight. The argument that the probative value was low because the actual killing did not precisely match the described plan was rejected; the divergence between the plan and the execution did not rob the evidence of its high probative value.

On unfair prejudice: Applying the principles from R v Chase (a pseudonym), his Honour distinguished between evidence that is merely prejudicial because it is inculpatory, and evidence that carries a danger of unfair prejudice through extraneous inflammatory factors. He found no danger of unfair prejudice, and certainly not at a level that outweighed the evidence's probative value. The key aspects of RS838's relationship with police — multiple contacts over many years, with information provided in the hope of personal benefit — had been disclosed and were available for cross-examination. Further, RS838's credit could be attacked on the additional basis that he too had been in a relationship with Erin Rogers, giving him a potential motive to be untruthful. McNaughton J also noted the evidence was potentially partly exculpatory, as RS838's account suggested the deceased had other enemies with motives to cause harm.

On safeguards: His Honour confirmed that a direction under s 165 of the Evidence Act could be given to warn the jury that the evidence may be unreliable, to identify the matters that may cause unreliability, and to urge caution. While s 165 expressly refers to prison informers, its definition is inclusive and would cover a witness in RS838's position. The defence also had ample scope for effective cross-examination of both the witness and police officers involved.

Orders Made

  • The accused's application to exclude the evidence of witness RS838 under s 137 of the Evidence Act 1995 (NSW) was dismissed.
  • The evidence of RS838 was admitted at trial, subject to the availability of a s 165 direction if sought.

Key Takeaways

  • The Supreme Court held that poor police disclosure does not automatically render evidence inadmissible under s 137, finding that the deficiencies in this case were systemic rather than deliberate and that, once the cross-referencing problem was identified, the critical aspects of the source's relationship with police had been adequately disclosed.

  • Registered source evidence withstood the s 137 challenge because its probative value was high: the alleged admission was made the day before a killing that closely matched its subject matter (a stabbing), and the accused was near the scene, giving the evidence significant probative value even though the killing did not unfold exactly as described.

  • Under s 165 of the Evidence Act, the availability of a judicial warning about unreliable evidence (covering informant-type witnesses beyond the express category of prison informers) served as an important counterweight to prejudice concerns, supporting the Court's decision to admit the evidence.

  • McNaughton J identified NSW Police record-keeping for registered sources as a systemic concern, remarking on inadequate cross-referencing systems, incomplete Contact Advice Reports, and the possibility that informants may be registered under multiple identifiers.

  • Following R v Chase, the distinction between prejudicial and unfairly prejudicial evidence remained critical to the s 137 inquiry. Where the prejudicial effect flowed naturally from the inculpatory nature of the evidence and no inflammatory extraneous factors existed, the Court held that exclusion was not warranted.

Legislation and Cases Referenced

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

Cases:
- R v Chase (a pseudonym) [2018] NSWCCA 71
- R v Dunbar (No 2) [2025] NSWSC 1160