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Supreme Court 23 June 2025

R v Dunbar (No 5)

[2025] NSWSC 1163

Homicide
EXAMINATION

Citation: R v Dunbar (No 5) [2025] NSWSC 1163
Court: Supreme Court of New South Wales — Common Law Division (Criminal)
Date: 23 June 2025
Judge(s): McNaughton J

Background

The accused, Mr Dunbar, is charged with murder. The Crown alleges that he fatally stabbed the deceased, Mr Naylor, with the intention of killing him, and then left the scene. Approximately 45 minutes later, the accused was arrested in a nearby vacant and unfurnished dwelling with injuries to his head. He was subsequently taken to hospital for treatment while under arrest. The broader factual background of the case was set out in an earlier ruling, R v Dunbar (No 2) [2025] NSWSC 1160.

During the trial, a voir dire arose concerning the accused's wish to cross-examine a Crown witness, Ms Tegan Grant, using two recorded phone calls she had made. Ms Grant is the partner of Mr Peter Henry, who appears to be another witness of some significance. The first call was to the Department of Communities and Justice Housing (dated 23 February 2022) and the second was to a Federal NDIS provider (dated 9 February 2022), in which Mr Henry also participated. The defence argued that the calls were relevant to the nature of Ms Grant's relationship with Mr Henry, her willingness to lie on his behalf, and her general preparedness to mislead government departments to obtain housing and other assistance.

The Crown opposed the use of the calls, arguing that — aside from allegations of domestic violence by Mr Henry against Ms Grant — the material was not relevant and did not meet the threshold under s 103 of the Evidence Act 1995 (NSW) for substantially affecting the assessment of the witness's credibility.

  • Whether two recorded phone calls made by the Crown witness Ms Grant to government agencies were admissible for use in cross-examination at trial.
  • Whether the phone calls were relevant to the nature of the relationship between Ms Grant and Mr Henry.
  • Whether the content of the phone calls could "substantially affect the assessment of the credibility of the witness" within the meaning of s 103 of the Evidence Act 1995 (NSW), thereby permitting cross-examination as to credibility.

Decision

McNaughton J ruled that the evidence contained in the two phone calls should be admitted for use in cross-examination of Ms Grant.

His Honour found that the calls shed light, at a relevant time, on the nature of the relationship between Ms Grant and Mr Henry, as well as the willingness of each of them to lie for the other. This was relevant context for the jury's assessment of her evidence at trial.

On the question of credibility under s 103, McNaughton J acknowledged the Crown's argument that lying to a government department is qualitatively different from giving false evidence in a murder trial under a solemn undertaking. However, his Honour held that the appropriate statutory test is whether the evidence could — not would — substantially affect the assessment of the witness's credibility. He concluded that this threshold was met, having regard to the matters set out in s 103(2) of the Evidence Act. His Honour observed that Ms Grant was an important Crown witness being put forward as a witness of truth, and the jury would be assisted by having her evidence tested against the content of these calls. Ultimately, it would be open to the jury to draw its own conclusions about the weight of the material.

Orders Made

  • The evidence of the two phone calls was admitted for use in cross-examination of the witness Ms Grant.

Key Takeaways

  • Under s 103 of the Evidence Act, the applicable threshold is "could," not "would": McNaughton J emphasised that the question is whether the evidence could substantially affect the assessment of a witness's credibility, a lower bar than requiring that it would do so.

  • Prior dishonesty in a non-curial context can satisfy the credibility threshold: The Supreme Court found that a witness's recorded lies to a government department, although qualitatively different from giving false evidence under oath, were capable of meeting the test for admissibility on the credibility issue where the witness was being put forward as truthful on a contested matter.

  • Relationship dynamics between witnesses provided a separate basis for admissibility: Beyond credibility, the phone calls were also found relevant to illuminating the nature of the relationship between Ms Grant and Mr Henry, offering independent grounds for the evidence to be admitted.

  • Distinctions between types of dishonesty go to weight, not admissibility: His Honour acknowledged that the jury may well distinguish between lying to a government department and lying in court proceedings, but held that this evaluative task belongs to the jury rather than operating as a barrier to the evidence being placed before them.

  • Where the Crown relies on a witness's truthfulness as central to its case, greater scope exists for the defence to test that credibility: The Court indicated that presenting a witness as a witness of truth on a contested matter invites closer scrutiny, widening the range of extrinsic evidence the accused may deploy in cross-examination.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 103 (credibility evidence in cross-examination)

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