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Supreme Court 12 June 2025

R v Dunbar (No 4)

[2025] NSWSC 1162

Homicide

Citation: R v Dunbar (No 4) [2025] NSWSC 1162
Court: Supreme Court of New South Wales — Common Law Division (Criminal)
Date: 12 June 2025
Judge(s): McNaughton J

Background

Mr Allan Dunbar stood trial for one count of murder, arising from the alleged stabbing of Mr Shane Naylor on 7 January 2022 at Toongabbie. The central contested issue at trial was identity — whether the Crown could prove beyond reasonable doubt that the accused was the person who stabbed the deceased.

Part of the Crown's case relied on CCTV footage recorded shortly after the stabbing, which allegedly showed the accused wearing a polo shirt with a large, dark bloodstain on the upper stomach area and further dark stains near the shirt pocket. When the accused was arrested approximately 45 minutes later — shirtless, with the polo shirt found nearby — the shirt showed only a faint stain in the stomach area. The Crown contended that the accused had washed the shirt because of a consciousness of guilt, believing the blood could incriminate him. The accused brought a motion seeking to limit the use of the staining evidence under s 136 of the Evidence Act 1995 (NSW), arguing that it should not be permitted to be used as evidence of consciousness of guilt.

The motion was prompted by the Crown's relatively late change in position. The Crown had previously indicated that consciousness of guilt would not be raised but reversed course after the Crown Prosecutor became aware of the CCTV footage showing the apparent change in the shirt's appearance. The accused argued that this late identification of the proposed use of the evidence created procedural unfairness, as there was no realistic opportunity to investigate the relevant circumstances — including potentially engaging an expert on variables in visual recordings or staining processes.

  • Whether the court should exercise its discretion under s 136 of the Evidence Act 1995 (NSW) to limit the use of evidence of staining on the accused's shirt, so that it could not be used as evidence of consciousness of guilt.
  • Whether the Crown's late identification of the consciousness of guilt use of already-served evidence created procedural unfairness amounting to unfair prejudice warranting a s 136 limitation.
  • Whether the absence of expert evidence on either side regarding the appearance of stains in CCTV footage and the properties of fabric affected the appropriateness of permitting the consciousness of guilt reasoning.

Decision

McNaughton J refused the accused's application. His Honour drew a careful distinction between the late service of expert evidence (as occurred in R v Sharpe (No 2)) and the late identification of a particular use of evidence that had already been served. The accused himself conceded this was not a case of evidence being served late but rather of "delayed identification of the particular use the prosecution seeks to make of the evidence." This concession, while fairly made, limited the force of the procedural unfairness argument.

Critically, McNaughton J observed that the Crown was not relying on any expert evidence regarding the visual properties of the CCTV footage or the staining processes. Instead, the Crown would simply invite the jury to compare the CCTV footage with the later appearance of the shirt and draw its own inferences. His Honour held that the matters at issue — the vagaries of light in different filming conditions, the appearance of blood on a common fabric such as a polo shirt, and how such fabric responds to rinsing — were "well within the province of common human experience." These were "quintessentially jury questions, informed by proper directions," and both parties were equally positioned to make submissions about them. There was no asymmetry created by one party having expert evidence of special status unavailable to the other.

His Honour also noted that the accused had put forward no evidence of even preliminary enquiries about obtaining expert assistance, despite having had some time since being notified of the Crown's changed position. Further, the accused's suggestion that continuity of the exhibit might be challenged sat uncomfortably with the concession elsewhere that the testing evidence could be led without objection.

Finally, and significantly, McNaughton J reasoned that granting the s 136 limitation would likely be more prejudicial to the accused than refusing it. A limitation would draw attention to the staining evidence and risk prompting the jury to speculate impermissibly — and would do so without the benefit of a carefully worded consciousness of guilt direction that would instruct the jury on the care required before inferring that post-offence conduct reflected guilt of the specific offence charged, as opposed to other explanations such as fear of being wrongly accused. In his Honour's view, this could cause unfairness to the accused and potentially cause the trial to miscarry.

Orders Made

  • The accused's application for a limitation on the use of the staining evidence under s 136 of the Evidence Act 1995 (NSW) was refused.

Key Takeaways

  • Late identification of evidentiary use is distinguishable from late service of evidence. The Supreme Court found that the Crown's delayed articulation of the reasoning it proposed to deploy (here, consciousness of guilt) did not automatically give rise to the same procedural unfairness concerns as the late service of an expert report, particularly where the underlying evidence had been available to both parties throughout the proceedings.

  • Where the Crown relies on observation and inference alone, a s 136 limitation may be unwarranted. McNaughton J held that the absence of expert evidence on both sides meant the evidentiary playing field remained level, allowing each party to make submissions to the jury on the same footing without any material of special status favouring one side.

  • Inferences drawn from everyday observations remain within the jury's province. The Supreme Court confirmed its reluctance to limit evidence where the reasoning invited by the Crown involved common human experience, such as the appearance of stains on fabric and the effects of lighting on video recordings, rather than specialist knowledge.

  • Limiting evidence under s 136 can produce counterproductive effects. McNaughton J recognised the counterintuitive possibility that restricting the use of particular evidence could actually highlight it for the jury, while simultaneously depriving the accused of the protection afforded by a proper consciousness of guilt direction.

  • General assertions of prejudice, unsupported by concrete evidence, carry limited weight in a s 136 application. No evidence was tendered of any actual enquiries into obtaining expert assistance, a factor that diminished the force of the accused's argument, particularly where the Crown was also proceeding without expert evidence on the contested issue.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 136

Cases:
- R v Dunbar (No 2) [2025] NSWSC 1160
- R v Sharpe (No 2) [2021] NSWSC 32