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Supreme Court 8 July 2025

R v Dunbar (No 7)

[2025] NSWSC 1165

Homicide
TRIAL HEARING EVIDENCE ADMISSIBILITY CREDIBILITY EVIDENCE

Citation: R v Dunbar (No 7) [2025] NSWSC 1165
Court: Supreme Court of New South Wales — Common Law Division (Criminal)
Date: 8 July 2025
Judge(s): McNaughton J

Background

The accused, Mr Dunbar, faces a single count of murder arising from the alleged fatal stabbing of the deceased at Toongabbie on 7 January 2022. The central contested issue at trial is the identity of the person who inflicted the fatal wound. The Crown alleges the accused stabbed the deceased — a man towards whom the accused had demonstrated animosity — and then fled the scene.

A key Crown witness, Mr Peter Henry, was himself initially treated by police as a person of interest in the murder investigation. He had been involved in an altercation with the deceased around the time of death and subsequently left the scene and attempted to avoid police attention. Mr Henry's account of events is plainly significant to the Crown case, and his credibility is squarely in issue.

This judgment deals with a pre-trial (or mid-trial) application by the accused to cross-examine Mr Henry in greater detail about his criminal history. The Crown had already led evidence of Mr Henry's criminal history in general terms, reportedly to explain why Mr Henry was initially untruthful when formally interviewed by police — the suggested explanation being that past negative experiences with police made him reluctant to be frank. The accused argued he should be permitted to probe the criminal history more deeply to challenge the witness's credibility.

  • Whether the accused should be permitted to cross-examine Mr Henry in more detail about specific matters on his criminal history, including a 1998 sexual assault conviction where Mr Henry demonstrably lied to police before being confronted with DNA evidence.
  • Whether the evidence the accused sought to adduce fell within the exception to the credibility rule under s 103 of the Evidence Act 1995 (NSW) — that is, whether it "could substantially affect the assessment of the credibility of the witness."
  • Whether any of the proposed cross-examination material constituted tendency evidence rather than credibility evidence.
  • What limitations, if any, should be placed on the scope and manner of the cross-examination.

Decision

McNaughton J permitted the accused to cross-examine Mr Henry on specific aspects of his criminal history, finding the evidence satisfied the threshold in s 103 of the Evidence Act 1995 (NSW).

The accused advanced several justifications for the more detailed cross-examination. First, the Crown had characterised Mr Henry's criminal history in terms favourable to his credibility — including a suggestion that he had not been in serious trouble for a long time — and the accused argued the jury should be able to assess the actual seriousness of his more recent offending. Second, Mr Henry had misrepresented aspects of his own history, including telling both an undercover operative and the deceased's girlfriend that he had been in jail for the last 10 years (which was inaccurate). Third, Mr Henry had told an undercover operative that he had previously been convicted of offences he did not commit or because associates had implicated him — assertions the accused wished to challenge. Finally, and most specifically, the accused pointed to Mr Henry's 1998 sexual assault conviction, where Mr Henry had twice denied to police that he had sexual intercourse with the victim, only admitting to it after DNA results made denial untenable.

His Honour found the 1998 sexual assault matter was particularly appropriate for cross-examination, as it demonstrated a specific prior instance of Mr Henry lying to authorities when confronted with serious allegations — directly relevant to his credibility in the present proceedings. However, McNaughton J encouraged defence counsel to be disciplined and brief, noting Mr Henry had already been in the witness box for many days and the jury already had a substantial body of material going to his credibility.

On one aspect, the Court rejected a submission that some of the criminal history material went to a propensity to disrespect women (framed as tendency evidence in connection with an alleged incident of sexually harassing behaviour towards another person). His Honour held that characterisation was not made out. The remainder of the material was properly classified as credibility evidence under s 103, and McNaughton J was satisfied it could substantially affect the assessment of Mr Henry's credibility.

His Honour also imposed a practical limitation: because the criminal history material available to the accused had not been sourced from court files, it was not known whether Mr Henry had accepted the agreed facts at the time of his sentencing. Accordingly, counsel was directed not to put those facts as proven facts in cross-examination.

Orders Made

  • The accused was granted leave to cross-examine Mr Henry on specific aspects of his criminal history, including the circumstances of his 1998 sexual assault conviction.
  • The submission that certain evidence constituted tendency evidence (propensity to disrespect women) was rejected.
  • The remaining evidence was ruled admissible as credibility evidence under s 103 of the Evidence Act 1995 (NSW).
  • Defence counsel was directed not to put facts derived from non-court-file sources as proven facts.

Key Takeaways

  • Under s 103 of the Evidence Act 1995 (NSW), the threshold for cross-examination on credibility requires a careful, contextual analysis. Where the Crown led a witness's criminal history in general terms to bolster credibility, the Supreme Court found that the door was opened for the opposing party to explore that history in greater detail, particularly where a pattern of demonstrable dishonesty with authorities could substantially affect the jury's credibility assessment.

  • Prior instances of lying to authorities can constitute powerful credibility evidence. The 1998 sexual assault matter was admitted not because of the nature of the offence itself, but because Mr Henry's documented dishonesty during the investigation directly bore on how the jury should evaluate his truthfulness in the current proceedings.

  • In granting leave for the expanded cross-examination, McNaughton J nonetheless policed its boundaries. His Honour encouraged brevity and discipline, acknowledging jury fatigue and the quantity of credibility material already before the jury, and issued case-management directions accordingly in the context of a lengthy trial.

  • Tendency and credibility evidence must be clearly distinguished when seeking to adduce criminal history material. The Court rejected the attempt to characterise some of the evidence as going to a "propensity to disrespect women," holding that the purpose for which evidence is tendered must be precisely identified, as the applicable legal tests differ.

  • Source limitations on criminal history material were held to restrict the permissible scope of cross-examination. Where the underlying facts were not drawn from court records, there remained uncertainty about what the witness actually admitted at sentencing, and counsel could not present such facts as established propositions.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 102, 103

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