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Supreme Court 21 July 2025

R v Dunbar (No 10)

[2025] NSWSC 1168

Homicide
ADMISSIBILITY CREDIBILITY OF WITNESS

Citation: R v Dunbar (No 10) [2025] NSWSC 1168
Court: Supreme Court of New South Wales — Common Law Division (Criminal)
Date: 21 July 2025
Judge(s): McNaughton J

Background

The accused, Mr Dunbar, stands trial on one count of murder. The Crown alleges that on 7 January 2022, at Toongabbie, he stabbed and killed Mr Shane Naylor, a person towards whom the accused had demonstrated animosity. The central issue at trial is identification — specifically, whether the Crown can prove beyond reasonable doubt that it was the accused who stabbed the deceased.

A key witness in the trial is Mr Peter Henry, who was initially treated by police as a person of interest in the murder investigation. Mr Henry had been involved in an altercation with the deceased at the time of his death and subsequently left the scene, making efforts to avoid police attention. His credibility was therefore a significant live issue at trial.

This judgment concerns an application by the accused, made after Mr Henry had finished giving evidence, to tender additional material going to Mr Henry's credibility. That material related to a 1998 sexual assault offence for which Mr Henry had been convicted, and in particular his pattern of initially lying to police during the investigation of that earlier offence — a pattern the defence argued was strikingly similar to his conduct when dealing with police in 2022 regarding Mr Naylor's death.

  • Whether further documentary and audio evidence relating to Mr Henry's prior sexual assault prosecution — including police interview transcripts, sentencing hearing transcripts, witness statements, and audio recordings — should be admitted after the witness had concluded his evidence, for the purpose of impeaching his credibility.
  • Whether the probative value of the proposed evidence was substantially outweighed by the danger that it might cause undue waste of time or be unfairly prejudicial, engaging the discretionary exclusion under s 135 of the Evidence Act 1995 (NSW).
  • Whether the audio recordings of 1999 police interviews added sufficient value beyond the transcripts to warrant admission.

Decision

McNaughton J accepted that the proposed body of evidence was "broadly relevant" to Mr Henry's credibility. His Honour noted that the defence had attempted to put the material to Mr Henry during cross-examination, but the witness had been "highly uncooperative" — at one point placing his fingers in his ears and refusing to listen to the audio recording of his 1999 police interview. The Crown had led evidence of Mr Henry's criminal history, including the 1998 sexual assault conviction, to explain why Mr Henry had not been fully frank with police in 2022. The defence sought to go further, arguing that the content of Mr Henry's earlier false denials to police bore a striking similarity to the denials the Crown relied upon in the present murder trial. For example, Mr Henry had falsely told police investigating the sexual assault: "you know, if I did it I would tell you I would never deny it." The defence also pointed to Mr Henry's attempt in the earlier matter to provide information implicating another person.

However, McNaughton J found that the full extent of the proposed evidence went into "a great deal of detail, going beyond what is required in relation to the credibility point." His Honour held that s 135(c) of the Evidence Act was enlivened in two respects. First, the probative value of some of the proposed evidence was substantially outweighed by the danger of undue waste of time. Second, to the extent the evidence covered the 1998 sexual offending in detail, its probative value was substantially outweighed by the danger of unfair prejudice given the nature of the offending.

The audio recordings of the 1999 police interviews were refused entirely. His Honour reasoned they would add little to the transcripts, particularly given that the material was more than 26 years old and the witness had been 19 at the time. A DNA certificate was initially ruled inadmissible without Crown agreement, though the Crown subsequently agreed to its tender following the oral delivery of the judgment. Ultimately, McNaughton J admitted carefully selected portions of the two police interview transcripts, specified pages from the 2 August 2001 sentencing proceedings, and small redacted portions of two witness statements — while excluding the majority of the sentencing transcript and other material that went into excessive detail about the underlying sexual assault offence.

Orders Made

  • Selected portions of the ERISP transcript of 29 June 1999 (page 16) admitted.
  • Selected portions of the ERISP transcript of 2 September 1999 (up to question and answer 39, with redactions of the victim's name) admitted.
  • Specified pages and passages of the 2 August 2001 sentencing hearing transcript admitted; the majority of the transcript excluded.
  • Small portions of the statements of two witnesses (Mr Cooney and Mr McGarry) admitted.
  • Audio recordings of the 1999 police interviews refused admission under s 135(c) of the Evidence Act 1995 (NSW).
  • The DNA certificate was initially refused but subsequently admitted after the Crown agreed to its tender.

Key Takeaways

  • Credibility evidence relating to prior offending must be carefully calibrated. McNaughton J held that even where prior conduct is broadly relevant to a witness's credibility, the volume and detail of the proposed evidence must not go beyond what is necessary to make the credibility point, and scrutinised the proposed material to identify only the most probative portions.

  • Section 135 of the Evidence Act remains a powerful gatekeeping tool in criminal trials. The Supreme Court's decision illustrated how the discretion to exclude evidence on grounds of undue waste of time (s 135(c)) and unfair prejudice (s 135(a)) can operate in tandem to limit the scope of credibility evidence, even where relevance is accepted.

  • A witness's uncooperative behaviour in the witness box does not automatically open the door to unlimited further evidence. Although Mr Henry's recalcitrance made it difficult for the defence to put its case, the Court weighed that behaviour against the risk of the trial being derailed and held that it did not entitle the defence to tender everything it wished.

  • Where transcripts adequately captured the relevant content, the audio recordings were refused. The age of the recordings and the limited additional value they would provide over agreed transcripts were key factors in the Court's refusal to admit them.

  • Early resolution of evidentiary disputes between the parties can avoid unnecessary argument and delay. The DNA certificate was initially inadmissible without Crown agreement, but that agreement was ultimately forthcoming, highlighting the practical benefit of cooperative case management.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 94, 135

Cases:
- R v Dunbar (No 2) [2025] NSWSC 1160
- R v Dunbar (No 7) [2025] NSWSC 1165