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[2024] NSWCCA 38
General information, not legal advice.
Court of Criminal Appeal (NSW)
2024-03-13
Ward P at [1], Davies J at [165], Fagan J at [173]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Cunneen v R [2024] NSWCCA 38
Hearing dates: 9 October 2023
Date of orders: 13 March 2024
Decision date: 13 March 2024
Before: Ward P at [1]; Davies J at [165]; Fagan J at [173]
Decision: 1. Grant leave to appeal against conviction on grounds 3 and 9.
2. Refuse leave to appeal on grounds 2 and 4-8.
3. Uphold ground 1 and allow the appeal.
4. Order that the conviction be quashed and that there be a new trial.
Catchwords: CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where the appellant was convicted of being an accessory after the fact to murder of the principal offender’s girlfriend – Where Crown case wholly circumstantial – Whether the jury was not adequately directed as to the elements of the offence – Whether the evidence admissible against the appellant did not support his conviction – Whether there was a substantial miscarriage of justice
EVIDENCE – Admissions – Criminal Proceedings – Where the trial judge admitted the principal offender’s certificate of conviction in the appellant’s trial – Whether the certificate can be admitted under the Evidence Act 1995 (NSW) in the appellant’s trial
EVIDENCE – Criminal Proceedings – Appeals – Failure to object – Where the principal offender’s interviews with police were admitted during the appellant’s trial – Where the trial judge admitted evidence of sexual interactions between the principal offender and another – Where the trial judge admitted text messages sent by the appellant as admissions – Where no objections were made at trial – Where leave required to challenge admissions –Whether the jury was misdirected as to the use of the statements made by the principal offender
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 6
Evidence Act 1995 (NSW), ss 9, 66A, 87, 91, 92, 93, 136, 178
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited: Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
Latu v R [2023] NSWCCA 19
Libke v R (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Quinn v R [2023] NSWCCA 229
R v Carter & Savage [1990] 2 Qd R 371; [1990] 47 A Crim R 55
R v Cunneen (No 1) [2022] NSWDC 585
R v Dawson [1961] VR 773
R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
R v Kirkby [2000] 2 Qd R 257
R v Newson; R v Cunneen (No 2) [2020] NSWSC 462
R v Simpson (2008) QCA 413
R v Stone [1981] VR 737
R v Tevendale [1955] VLR 95
R v Welsh [1999] 2 VR 66; [1998] VSCA 138; (1998) 105 A Crim R 448
Roos v R [2019] NSWCCA 67
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Winning v The Queen [2003] WASCA 245
Category: Principal judgment
Parties: James Anthony Cunneen (Appellant)
Rex (Respondent)
Representation: Counsel:
P Rosser KC (Appellant)
G Wright SC with C Brain (Respondent)
Solicitors:
O’Brien Winter Partners (Appellant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2017/186919
Publication restriction: Nil
The appellant was convicted by a jury in July 2022 following a trial in the District Court of New South Wales, as an accessory after the fact to the murder of Ms Carly McBride, the then-girlfriend of the appellant’s friend, and the principal offender (Newson). In November 2022, the appellant was sentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years.
Ms McBride was last seen on 30 September 2014 in Muswellbrook, New South Wales. Her skeletal remains were discovered in August 2016, in a bushland outside of the town of Scone. The Crown’s case was that Newson murdered Ms McBride and that the appellant had helped Newson dispose of Ms McBride’s body, provided a false alibi for Newson, supported Newson’s public efforts to help search for Ms McBride, deleted digital telephone data that may have shown his and Newson’s whereabouts, supported Newson’s statements to make it appear that Ms McBride’s ex-partner was an appropriate suspect, and updated Newson about the progress of the police investigation, whilst knowing that Newson had murdered Ms McBride.
The appellant appealed against his conviction, raising the following nine grounds of appeal. Ground 1, that the trial judge erred in admitting a certificate of Newson’s conviction. Ground 2, that the jury was inadequately directed as to the elements of the offence. Ground 3, that the trial judge’s response to a jury question regarding the appellant’s knowledge of Newson’s intent to kill Ms McBride was inadequate. Grounds 4 and 5, that the trial judge erred in admitting into evidence transcripts of police interviews with Newson. Ground 6, that the trial judge misdirected the jury as to the use of Newson’s interviews against the appellant. Ground 7, that the trial judge erred in admitting against the appellant the evidence of sexual interaction between Newson and another woman. Ground 8, that the trial judge erred in admitting and leaving to the jury a text message sent by the appellant, as amounting to an admission. Ground 9, that, on the evidence properly admissible against the appellant, the verdict was unreasonable.
Held (Fagan J as to grounds 1-3, Ward P and Davies J agreeing; Ward P as to grounds 4-9, Davies and Fagan JJ agreeing), granting leave to appeal on grounds 3 and 9, refusing leave on grounds 2, 4-8, dismissing grounds 3 and 9, upholding ground 1 and allowing the appeal, quashing the conviction and remitting the matter for a new trial:
(1) The trial judge was incorrect to find that the common law rule stated in R v Dawson [1961] VR 773 is not abrogated by s 91 of the Evidence Act 1995 (NSW) and remains operative by force of s 9(1). The certificate of Newson’s conviction was within the meaning of the opening words of s 91(1) “evidence in the decision” in Newson’s trial for murder. The relevant “fact that was in issue in the proceeding” was whether Newson had murdered Ms McBride, which could be broken down into several facts in issue. The effect of s 91(1) is that the certificate, being evidence of the decision in the Newson trial, was not admissible in the prosecution of the appellant to prove the existence of the fact, contested in Newson’s separate trial, that Newson had murdered Ms McBride. The exceptions to s 91, found within ss 92 and 93, have not been engaged. The Crown’s concession as to ground 1 has been properly made: [201]-[202].
R v Dawson [1961] VR 773, discussed.
(2) For the purpose of determining whether the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied, the error of law in admitting the certificate is “a serious breach of the presuppositions of the trial”. It was an error of such consequence and involving such a departure from the essential requirements of a fair trial that the operation of the proviso is excluded. The critical issue in the case was left to be determined by the jury taking into account an extraneous matter, of potentially significant influence, that by law they should not have been told about or should have been directed to disregard. That being the nature of the error, it cannot be said that no substantial miscarriage of justice actually occurred. A retrial should be ordered because the certificate, being evidence of the decision in the Newson trial, was not admissible in the prosecution of the appellant to prove the existence of the fact, contested in Newson's separate trial, that Newson had murdered Ms McBride: [270]-[271].
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, applied.
(3) There is a clear inference from the trial record that the reason for defence counsel not raising the matters as to which complaint is here made in relation to the adequacy of the directions as to the elements of the offence is that his Honour saw neither of them as an issue in the case and recognised that if the jury were satisfied beyond reasonable doubt with respect to the six particulars of assistance that the Crown relied upon, they would also be satisfied that each of those matters involved active steps on the part of the appellant and had the capacity to assist Newson to escape apprehension and punishment. A rational forensic justification for counsel not having sought directions on the putative additional points can readily be discerned. No perceptible risk of miscarriage has arisen from the omission of the additional directions the appellant now propounds: [219]-[220].
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48; Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33; Latu v R [2023] NSWCCA 19, applied.
(4) In circumstances where the jury’s question as to knowledge of Newson’s intent to kill Ms McBride did not reveal any misunderstanding of an element of the offence but, on the contrary, showed that they were endeavouring to apply it correctly to the evidence, the suggested addition to the trial judge’s response was not required: [228].
(5) Leave should be refused to argue grounds 4 and 5 of the grounds of appeal. The fact that defence counsel reviewed the recording and transcript of both interviews and requested that some redactions be made but did not object to the tender of the balance of the material, and did not seek any direction limiting the use of that material, is telling. Absence of objection by defence counsel to some of the material may again be explicable by the fact that it was in the appellant’s interests to implicate Mr Easton as a suspect and that Newson’s account of his movements on 30 September largely accorded with that of the appellant: [32]. Given that there was other ample evidence as to Newson’s jealousy and disposition to violence or threats of violence, no miscarriage of justice has been established by reason of the admission of statements by Newson going to that issue, even if they were otherwise not admissible against the appellant: [34].
(6) It is clear from a reading of the impugned direction as a whole that the trial judge was making clear to the jury that it was necessary for the Crown to prove an agreement or common purpose between Newson and the appellant that was still on foot or current at the relevant time and that the acts done or words spoken were in furtherance or pursuance of that agreement. There was no misdirection and leave should not be granted in respect of ground 6: [54]-[55].
(7) Leave should not be granted to raise ground 7. Having regard to the opening address of defence counsel, it appears that a forensic decision was made not to object to evidence as to Newson's "infidelity" (but instead to distance the appellant from that evidence). No incompetence of counsel ground is here raised. There may well have been a reason not to object to that evidence. The evidence was also admissible as going to Newson's state of mind at the relevant time. No miscarriage of justice has been established as likely to have been caused by the admission of such evidence: [65]-[66].
(8) Leave to raise ground 8 should be refused. It can readily be accepted that the probative value of this evidence was weak given that the text message, read in context, was responding to a query as to the appellant’s financial situation (and there was no substantial financial assistance rendered by the appellant to Newson). However, that was a matter for the jury to assess; and both Counsel addressed the jury as to its significance. The failure by defence counsel to object to its admission in evidence suggests that defence counsel must have considered the evidence capable of being adequately dealt with by submission: [78].
(9) Having independently reviewed the whole of the evidence, on the assumption that the jury accepted that Newson had murdered Ms McBride, this is not a case where the jury must have entertained a doubt about the appellant’s guilt as accessory after the fact: [149]-[152].
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Libke v R (2007) 230 CLR 559; [2007] HCA 30; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied.
(10) The relevant question is whether it was reasonably open to the jury to conclude (assuming that the certificate of conviction had not been tendered), on the evidence properly admissible against the appellant at trial, that Newson had murdered Ms McBride on 30 September 2014 during the window of opportunity identified. On an examination of all the evidence, there is no reasonable doubt that Newson did murder Ms McBride. When all the evidence is considered, the Crown has excluded any reasonable alternative hypothesis consistent with Newson's innocence: [158].
W****ARD P: I have had the considerable advantage of reading in draft Fagan J’s reasons as to grounds 1-3, with which I agree. I address in these reasons grounds 4-9. I also agree with Fagan J’s additional comments in relation to those grounds. As I explain at the conclusion of these reasons, I agree with Fagan J that, in light of the error established in relation to ground 1, it cannot be said that there has not been a substantial miscarriage of justice and hence the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) cannot be applied (even though, considering the unreasonable verdict ground, I am comfortably persuaded on all the evidence excluding the certificate of conviction that the appellant is guilty beyond reasonable doubt of the offence with which he was charged). Accordingly, I agree with the orders that his Honour has proposed.
The background to this matter is set out in Fagan J’s reasons and is not here repeated other than as necessary for consideration of the particular grounds of appeal which I address below.
Newson participated voluntarily in two police interviews: the first on 3 October 2014 and the second on 31 October 2014. An edited recording (redacted to omit irrelevant material) was tendered of both interviews (with corresponding transcript) and admitted into evidence without objection in the appellant’s trial.
Ground 4 challenges the admission of most of the first record of interview on the basis that this amounted to hearsay inadmissible against the appellant to prove that Newson had committed the crime of murder. A similar challenge is made to the admission of the second record of interview (see ground 5).
As noted, no objection was taken at trial to the admission of the first record of interview, counsel for the defence saying (see 23/05/22, T 357-358) that this was strictly an interview with Newson, which he understood was being tendered “in respect primarily to the first element of the offence and it’s admissible for other purposes against [the appellant], so in that respect, I am not objecting to it”. The first element of the offence charged against the appellant was, of course, that Newson had committed the murder of Ms McBride. Thus, defence counsel appears to have accepted at the outset that it was permissible for the Crown to rely on the police interviews with Newson in the case against the appellant for the purpose of proving that Newson had committed the crime of murder and for other unstated purposes (see below). The appellant now takes a different position.
The appellant accepts that some material in Exs AT/AU was properly before the jury, that being evidence of the version of events given by Newson to the police, which the appellant concedes was relevant to compare with any version of those events given by the appellant (the Crown contention being that the two had concocted a “common story” about the events).
Relevantly, the parts of the first interview that the appellant accepts were admissible in the case against him (as set out in Annexure A to the appellant’s submissions) are Newson’s answers to Q 122, Q139, Q143-Q144, Q160, Q163-175, Q181 and Q183. These mainly related to what Newson said he and the appellant had done in the afternoon of 30 September 2014 after Newson had dropped Ms McBride at Mr Easton’s place. They included Newson’s statement that he was with the appellant the whole time and that there was no one else there when he was at the appellant’s place.
However, the appellant says that the balance of Newson’s first record of interview was inadmissible against him (the appellant) as to the fact of the murder by Newson, which the appellant says could only be proven in the case against him by evidence admissible against him (citing R v Welsh [1999] 2 VR 62; [1998] VSCA 138; (1998) 105 A Crim R 448).
Complaint is made that no direction was given to the jury limiting the use to be made of the first record of interviews (though it must be noted that there was no application for any direction to be made about this material). In particular, the appellant says that the Crown made use of what the appellant has identified as the inadmissible portions of the transcript in final address in the following ways.
…we utilise some things said by Mr Newson in two ways, and one of those ways is if it’s an expression of his current state of mind where he’s happy, sad, what his intention is, what his state of knowledge is, we say that’s available and if it’s relevant then it can to go this issue in the case of the murder and, so that’s an example of that …
The Crown says that defence counsel accepted that certain evidence was relevant to whether Newson had murdered Ms McBride even if it did not establish any involvement on the appellant’s part (referring to the statements extracted in the appellant’s written submissions on this ground of appeal).
The Crown emphasises in this context that it relied on the fact that both Newson and the appellant had the opportunity in their police interviews to give detailed accounts of their movements on the date of Ms McBride’s disappearance and that they each gave similar accounts (both omitting in their first interviews to mention certain matters, including attending the appellant’s father’s property and a storage shed or unit in Scone). As noted above, the appellant accepts that this was a permissible use of Newson’s records of interview.
However, the Crown points out that it also relied on other evidence to prove the common purpose or agreement between Newson and the appellant, such as evidence of lawfully recorded telephone conversations between the appellant and Newson in which they discussed their respective interviews with police and their movements on the day Ms McBride went missing. The Crown’s case was that at times Newson was passing information to the appellant about what he told police (for example, that he told police in his second interview that during the time they were together they also visited the appellant’s father’s farm) and the Crown submitted that those conversations needed to be understood in the context of what each of them had told the police (the Crown here referring to 14/06/22, T 1104).
The Crown argues that this is not a case where it relied on representations made by Newson (who was not a witness) to impugn Newson’s credibility generally (independently of anything done by the appellant) or to prove murder. Rather, the Crown says that Newson’s representations were circumstantial evidence proving the actus reus of the appellant’s offence in circumstances where the Crown case was that the two had concocted a false story to distance Newson from the murder. The Crown argues that the appellant’s alleged acts of assistance could not be understood without reference to what Newson had told police.
The Crown says that it relied on representations made by Newson in his police interviews for other non-hearsay purposes (including to prove motive) and, in some instances, pursuant to the exception to the hearsay rule in s 66A of the Evidence Act.
As to the three categories of representations made by Newson to which the appellant has referred in his written submissions (see the appellant’s written submissions at [66]-[70]), the Crown maintains that the admission of any statements within those categories has not been established as giving rise to a miscarriage of justice.
First, as to the statements relied upon by the Crown as showing Newson’s “self-reported aggressive attitude” towards Mr Easton, the Crown points to statements by Newson consistent with Newson having a hostile attitude towards Mr Easton (see Ex AU p 17). The Crown argues that Newson’s representations about Mr Easton were relevant to the allegation that Newson had attempted to implicate Mr Easton as a suspect, and to prove Newson’s jealousy of Mr Easton’s relationship with Ms McBride; and hence were used for non-hearsay purposes. The Crown says that significant portions of the interviews relating to Mr Easton fall into this category (referring to Ex AU pp 16-20, 22, 30, 33).
Ground 5 relates to the second police interview in which Newson participated, that being the interview on 31 October 2014 (the recording of which was admitted as Ex CS and the transcript as Ex CT). There was no objection by defence counsel to the admission of this material into evidence. As with the first record of interview, the second record of interview was redacted to remove irrelevant material.
The appellant maintains that, other than to the extent that in that interview Newson provided a version of his whereabouts on the afternoon of 30 September 2014, the balance of his statements were inadmissible hearsay and not available to prove, as against the appellant, the fact of murder by Newson. The portion that the appellant accepts was properly admissible is as set out in Annexure B to his written submissions (Q630-704; Q818-826). The appellant notes that the Crown relied upon this material in its final address (14/06/22, T 1101ff), commenting adversely upon Newson's credibility.
The Crown makes the same submissions in relation to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) in respect of this material (see above) and, again, points to the non-hearsay purpose of the evidence as demonstrating the “common story” told by the appellant and Newson. Indeed, in the portion of the Crown’s closing address to which the appellant here refers (see in particular at 14/06/22, T 1103.40) the Crown says it was emphasising that, in the intercepted telephone call between the appellant and Newson on 31 October 2014 (Ex CR) in which they discuss the police investigation and the interview that Newson had just had with the police, the appellant and Newson were communicating and agreeing on the story to be given to the police. In other words, the Crown’s emphasis here is on the communications between the two as to the version of their common account of events; not on Newson’s credibility as a general matter.
Leave should be refused to argue grounds 4 and 5 of the grounds of appeal. The fact that defence counsel reviewed the recording and transcript of both interviews and requested that some redactions be made but did not object to the tender of the balance of the material, and did not seek any direction limiting the use of that material, is telling. Absence of objection by defence counsel to some of the material may again be explicable by the fact that it was in the appellant’s interests to implicate Mr Easton as a suspect and that Newson’s account of his movements on 30 September 2014 largely accorded with that of the appellant.
In oral submissions, the appellant indicated that the real complaint as to admission of the respective records of interview is as to two matters: first, Newson’s statement as to his rage or fury against Mr Easton in the conversation at 6.30 pm on 30 September 2014 (i.e., that he wanted to beat him senseless) and, second, Newson’s admission that he had caused Ms McBride to take down her Facebook page (see AT 12.49-13). Those statements both go to the issue of Newson’s violent disposition and/or jealousy.
The statements by Newson as to his attitude towards and jealousy of Mr Easton, were relevant to the alleged attempts to implicate Mr Easton as a suspect, with which the Crown alleged the appellant had assisted. The evidence of Newson’s jealousy and state of mind was also admissible pursuant to s 66A of the Evidence Act, there being sufficient contemporaneity between the confrontation between Newson and Mr Easton on 30 September 2014 and the first police interview on 3 October 2024. Further, given that there was other ample evidence as to Newson’s jealousy and disposition to violence or threats of violence, no miscarriage of justice has been established by reason of the admission of statements by Newson going to that issue even if they were otherwise not admissible against the appellant.
Similarly, the statement by Newson that he had caused Ms McBride to take down her Facebook page (though arguably not an admission falling within the exception in s 66A, given the lack of contemporaneity) is admissible for a non-hearsay purpose, namely, for the fact that it was said to the police, not its truth.
As to the complaint by the appellant in respect of the use made of material from the first interview in closing submissions (and in this context the appellant’s complaint that evidence damaging Newson’s credibility was not admissible against the appellant), the submission that Newson had “tripped himself up” in his first police interview was certainly open on the basis of other evidence of there being an arrangement that Newson would pick up Ms McBride at McDonald’s (namely, that of Ms Nicole Finch and that of Mr Easton). As noted above, the appellant says that Ms Finch’s evidence was itself not admissible against the appellant, though conceding that there was no objection to it (see AT 17.26ff). This was evidence going to the first element of the offence charged against the appellant (i.e., that Newson had committed the murder); not as to the credibility generally of Newson.
The evidence against the accused includes evidence relating to what the accused did or said. It may also include what was said or done by Sayle Newson. Generally speaking, an accused is not to be held liable for the acts or statements of others. However, there is an exception to this rule. The exception permits in certain circumstances and for certain limited purposes evidence facts done and statements made by Sayle Newson to be admissible in the case against the [appellant].
The trial judge then proceeded to direct the jury as to what the Crown was required to satisfy the jury of in relation to the appellant (namely, that there was an agreement to do the things outlined by the Crown and that the appellant participated in that agreement).
At 21/06/22, T 139-140, his Honour returned to the direction as to when acts or words of Newson might be admissible against the appellant:
I have already explained to you that in general an accused is to be regarded as responsible in law only for his own acts or statements and he is not generally to be held responsible for acts done or statements made by others when he is not present. I have informed you, however, that there is an exception to this rule. This exception provides that relevant acts done and statements made by other person alleged to be in agreement, in this case Sayle Newson, and done or made while the agreement is still active are evidence against the [appellant] even though he might not have been present when the act was done or the statement was made.
Evidence of such acts or statements of Sayle Newson are admissible against the [appellant] on the issue of whether there was an agreement as alleged by the Crown. Additionally, if you find that these acts and statements by Sayle Newson were for the purpose of carrying out the agreement, then that evidence may also be regarded as evidence of the [appellant’s] participation in the agreement.
The appellant’s complaint is that it was wrong for his Honour in effect to say that the only qualification for the exception to arise (i.e., for Newson’s statements to be admissible against the appellant) was that the agreement be then current (i.e., “while the agreement is still active”). The appellant emphasises that only actions or statements in furtherance of the agreed common purpose (assuming evidence of the existence of the agreement in the first place) are admissible against someone other than the person doing the acts or speaking the words (citing Tripodi v The Queen (1961) 104 CLR 1 at 6-7; [1961] HCA 22; Ahern v The Queen (1988) 165 CLR 87 at 94-95; [1988] HCA 39).
The appellant argues that the jury should have been directed to the effect that only acts done and statements made while the agreement is then still active and “made in pursuance or furtherance of the agreement” fell within the exception. The appellant contends that, without that additional qualification, the jury was being told that any statement of Newson (which would include confessional material or any untrue statement by Newson) for whatever purpose (whether or not in pursuance of or furtherance of an agreement) would be admissible against the appellant. Complaint is made that this direction exacerbates the problem caused by the admission against the appellant of the two Newson police statements.
The particular statement by Newson (made in the appellant’s absence) about which the appellant complains in the context of this direction is the statement attributed to Newson by Ms Finch as to the arrangement to pick Ms McBride up from McDonald’s at 2:00pm, which the appellant maintains was not admissible as against himself (see AT 16). The appellant identifies this as the crucial statement about which objection should have been (but was not) taken.
The significance that the appellant attributes to this is that the appellant says that this is the only evidence of a prior arrangement between Newson and Ms McBride for her to be picked up by Newson from McDonald’s at 2:00pm; and that it was thus the only evidence against the appellant suggesting that there was any basis for an explanation that Newson was going to meet with Ms McBride. The appellant says that it cannot be a statement in pursuance of a common purpose and cannot be regarded as speaking to a present state of mind in terms of s 66A.
Similar complaint is made as to the telephone calls where Newson spoke to Mr McBride (the father of the deceased) (on 6 November 2014 at 9:28pm; and 12 December 2014 at 15:00) though appellant accepts that “probably not much hangs on those calls” (AT 19).
The Crown submits that there was no misdirection and that r 4.15 should operate to exclude this ground in circumstances where defence counsel made no objection at the time in relation to this direction.
In circumstances where there was no complaint at trial by defence counsel as to the now impugned direction, leave to raise this ground should be refused pursuant to r 4.15 of the Criminal Appeal Rules. Were leave to have been granted, this ground would be dismissed. It is clear from a reading of the impugned direction as a whole that the trial judge was making clear to the jury that it was necessary for the Crown to prove an agreement or common purpose between Newson and the appellant that was still on foot or current at the relevant time and that the acts done or words spoken were in furtherance or pursuance of that agreement.
The evidence of Ms Finch as to the statement made to her by Newson (as to the arrangement that he pick up Ms McBride from McDonald’s) went to the Crown’s case that Newson had murdered Ms McBride (the first element of the accessorial offence with which the appellant was charged) but it was also relevant in the case as against the appellant in that it went to the alleged acts of assistance (i.e., the concoction of a false common story as to Newson’s whereabouts on the afternoon of Ms McBride’s disappearance), as to which there was other evidence in the telephone intercepted conversations.
The complaint by the appellant that Ms Finch’s evidence as to this statement by Newson was not admissible against the appellant to prove that Newson committed the murder is considered in relation to ground 9 (the unreasonable verdict ground). Suffice it here to note that there was no misdirection; and hence leave should not be granted in relation to ground 6.
This complaint relates to the evidence adduced by the Crown from Ms Samantha Patterson, with whom Newson had contact through Facebook Messenger, SMS, and telephone on 1 and 2 October 2014. Relevantly, Newson had sent Ms Patterson a message at 5:37 am on 1 October 2014 (the morning after Ms McBride’s disappearance) requesting sexual intercourse. The messages contained further sexual content. Ms Patterson's evidence was that on 2 October 2014 she and Newson had engaged in sexual intercourse; that Newson was there for no more than an hour and that they used drugs (31/05/22, T 734-737); that later that night Newson returned to pick her up and drop her at a friend’s place; that on the way he stopped off at his mother’s house; and that Newson was acting strangely and was upset with her because he had slept with her and cheated on his girlfriend and was “[r]unning around like a chook with its head cut off” (31/05/22, T 737.30-31).
Tendered in evidence were messages the two had exchanged (Ex BO). Ms Patterson said that, in a phone call recorded on that log as having occurred at 6:21 am on 1 October 2014, Newson said he had finally fallen in love but “now she’s gone” and that someone had taken her (see 31/05/22, T 735-736), which the Crown argues is inconsistent with Newson believing at that early stage that she had gone missing some other way. The Crown notes that this account was consistent with Ms Patterson subsequently sending a message asking Newson if he had “heard anything yet” (Ex BO p 4).
No objection was taken by defence counsel to the admission of this evidence at trial.
The appellant notes that the Crown relied on this material in closing address as evidence that Newson’s claimed concern about Ms McBride was insincere (referring to 14/06/22, T 1093.50-1094.07). The Crown says that the evidence was relevant to whether Newson had murdered Ms McBride, which was a fact in issue in the appellant’s case, regardless of whether or not the appellant knew about Newson seeing Ms Patterson.
The appellant contends that, insofar as this evidence was capable of amounting to a representation as to Newson's state of mind, this evidence was irrelevant to the case against the appellant (the Crown says it was relevant to whether Newson had murdered Ms McBride, as noted above).
Insofar as it was relied upon by the Crown as an implied representation by words and conduct that Newson’s expressed concerns about Ms McBride were not genuine, and as such an admission on his part that he was not grieving, the appellant says that this was inadmissible hearsay in the case against himself. The Crown’s response is that nothing in this evidence can be construed as an implied admission by Newson to the murder; rather, that the evidence of Newson’s movements immediately after Ms McBride’s disappearance was another circumstance upon which the Crown could rely to ask the jury to draw an inference as to whether or not he was genuinely concerned about Ms McBride. The Crown alleged, with respect to this and other evidence, that Newson had acted differently publicly and privately following Ms McBride’s disappearance.
Leave should not be granted to raise ground 7. Having regard to the opening address of defence counsel, it certainly appears that a forensic decision was made not to object to evidence as to Newson’s “infidelity” (but instead to distance the appellant from that evidence). Although it is now submitted by the appellant that it is difficult to understand why defence counsel took that view, no incompetence of counsel ground is here raised and, as the Crown argues, there may well have been a reason not to object to that evidence. In that regard, there were aspects of the exchanges with Ms Patterson that may have supported the conclusion that Newson was upset at the disappearance of Ms McBride (such as that Newson was upset that he had cheated on her). The evidence was also admissible as going to Newson’s state of mind at the relevant time.
No miscarriage of justice has been established as likely to have been caused by the admission of the evidence as to Newson’s sexual activity and messages to other women shortly after the disappearance of the deceased. The appellant’s knowledge or otherwise of that activity is not to the point.
I put it into something w[h]ere banks arnt [sic; aren’t] needed or invest it into certain ppl [sic; people]. I[']m not really shore how to feel about the whole thing. I lost out big time. I gave everything I had to help some[one] to get out of a bad situation. He[']s a good mate but that's not why I did it. I did it because if the tables were turned [I] know that he would be the only [sic; only] person that I know that would do it for some[one] else in his position. I dunno [sic; don’t know] if that makes sen[s]e. Like even if we didn't know each other and he was in my position I know that he would help some[one] else the same way. It’s hard to find genuine straight up ppl [sic; people] anymore around here. So yeah long story short [I’m] back to square 1.
The appellant said in his police interview dated 22 April 2015 that Ms Marston was with him on the night that Ms McBride was reported missing (Ex CZ, Q 422-429) (hence the Crown’s submission that Ms Marston had some involvement in or was aware of the police investigation, as providing context to the text message).
No objection was taken at trial to the admission of this evidence. The Crown says that this evidence had the capacity to be viewed as an admission by the appellant that he had assisted his “good mate” (Newson) with a “bad situation” (related to the death of Ms McBride) (see 14/06/22, T 1106.09ff). It is noted that there was no dispute in the trial that the appellant and Newson were close friends.
The appellant maintains that this message was incapable of being an admission, pointing out that, to constitute an admission, a representation by the appellant had to be “adverse to his interest in the outcome of the proceeding”.
The appellant says that the asserted admission must be viewed in its context, namely (by reference to its content) that the appellant was replying to comments from Ms Marston as to his financial situation. The appellant says that it was no part of the Crown case that he had provided financial assistance to Newson beyond $100 for petrol and telephone credit on 30 September 2014. The appellant argues that it cannot reasonably be supposed that this text referred to that (and says that nor would the provision of such assistance have the necessary tendency to give rise to accessorial liability).
Noting that the Crown told the jury that “this particular text says nothing about money” (see 14/06/22, T 1106.14), the appellant submits that it is entirely clear that the text conversation relates to money. The appellant also says that the message is not reasonably capable of being regarded as necessarily referring to Newson and argues that the message should not have been before the jury.
The Crown argues that the fact that Ms Marston had some involvement in, and awareness of the police investigation into Ms McBride’s disappearance (being with the appellant the night of the disappearance) was relevant context and made it more likely that this message would be construed by the jury as an admission than would be the case if it had been sent to someone entirely unconnected with the investigation. The Crown also notes that Ms Marston was a party to intercepted calls with the appellant in which she discussed Ms McBride’s disappearance with him, and that Ms Marston then asked him at one point whether Newson had been involved (Ex CV, call dated 7 November 2014 at 10:50 am). The Crown notes that on 23 February 2015, Ms Marston sent text messages to the appellant telling him that the police had attended her home and asked to speak to her about a missing person, which she presumed to be Ms McBride (Ex BT), and suggesting that she and the appellant speak before she spoke to the police, Ms Marston saying that she thought it was “in [her] best interests” to see him before doing so (Ex BT).
He’s talking about money. He’s not talking about anything to do with Carly McBride. He’s not making any admissions at all. Why it’s brought for that purpose is a sign of, I don’t know, something or other.
It is noted that, in the course of summing up, the trial judge gave a direction to the jury which repeated the submission that the exchange concerned money and otherwise directed the jury in clear terms that the interpretation of the message and whether or not it constituted an admission was a matter for them (21/06/22, T 146-147).
The Crown submits that the competing interpretations of the text message were squarely raised for the jury’s consideration; and the jury was directed in clear terms that they needed to accept the Crown’s interpretation for the jury to treat the message as an admission.
The final ground of appeal is an unreasonable verdict ground.
The appellant emphasises that the Crown case against the appellant was entirely circumstantial; and that the Crown was required to prove, as the first element of the case (by evidence properly admissible against the appellant), that Newson had murdered Ms McBride. The Crown does not demur from this.
The crux of the appellant’s argument is that there was a glaring flaw in the Crown case (that being when, where and how the murder took place) (see AT 22). The appellant submits that the evidence relied upon by the Crown provided an extraordinarily narrow window of opportunity for Newson to have committed the murder, noting that the Crown case was that Newson had murdered Ms McBride at some time around 2:30 pm on 30 September 2014 and that Newson and the appellant had thereafter, in the course of the afternoon, disposed of Ms McBride’s body at Owens Gap, and then returned to the appellant's home by about 5:45 pm when they were seen by the appellant’s father.
As to the timing of events, the appellant says that, taking the Crown case at its highest, the evidence was as follows.
First, according to Mr Easton, Ms McBride arrived at his home at Calgaroo Avenue at “maybe quarter to one, one o’clock” (25/05/22, T 499.13). The appellant notes that this time is consistent with Newson’s presence at McDonald’s in Muswellbrook at 12:55 pm (Ex AA).
Second, that Ms McBride left Mr Easton's home at about 2:00 pm (25/05/22, T 503.26). The appellant argues that it might have been slightly after this, pointing to Mr Easton's evidence that when Ms McBride left he locked up and went to pick up his daughter from pre-school (25/05/22, T 505.18); that the drive to the childcare centre was less than 10 minutes (25/02/22, T 505.2); and that Mr Easton signed his daughter out from the childcare centre at 2:20 pm (Ex AY).
Third, that there was no communication between Ms McBride and Newson in which she informed him that she was leaving or had left Mr Easton’s house, noting that Mr Easton’s evidence was that there was no vehicle waiting for Ms McBride when she left (26/05/22, T 559.46ff) and that he last saw Ms McBride walking past the corner of his yard (25/02/22, T 504.20).
Fourth, that at 2:02 pm Newson was in the garage at the appellant's home (Ex CM).
Fifth, that the evidence of Mr Palmer was that he attended the appellant's home on the afternoon of 30 September 2014 and that he saw the appellant but that no other person was there (27/05/22, T 603ff). Mr Palmer stated that he attended at some point shortly after 2:13 pm (27/05/22, T 605.15), remaining for 10 minutes at the maximum (27/05/22, T 608.10).
Sixth, that the appellant's telephone records demonstrate that his telephone was receiving a signal from the Scone Mountain Tower at 2:48 pm. The appellant notes that information as to the range of coverage of that tower was not obtainable (17/05/22, T 201.16). It seems to be accepted that this meant that at 2:48pm the appellant was more than halfway to Scone. The appellant notes that driving time from Muswellbrook to Scone can vary from 25 minutes upwards depending on the route taken (Ex DJ; Exs 1-4).
…I’ll talk to you when I see you right, and…like, they, they spoke to him about stuff that between him and I like that me and Steve have been talking about and that so they’re, they are heavily monitoring this phone um, as well. [Exhibit CV, call 19, 26 November 2014 at 7:30 pm]
Each of the acts of assistance alleged by the Crown (see as summarised in relation to ground 2) is relied on by the Crown as a positive act that was capable (to different degrees) of assisting Newson to evade apprehension.
In summary, the Crown submits that the evidence was capable of establishing beyond reasonable doubt that the appellant assisted with the disposal of Ms McBride’s body, pointing to the evidence of their temporal opportunity to do so and that there was no dispute about their travel to Scone, a short drive from Owens Gap, on the afternoon of 30 September 2014.
The Crown says that, if the 2:48 pm connection to the Scone Mountain Tower by the appellant’s phone is taken as the earliest point at which they were in the vicinity of Scone, and the use of Ms McBride’s bank card at 4:40 pm is taken as the latest time that they were in Scone, then there was a period of just under two hours spent in that area. It is noted that during that time there was no activity on Newson’s phone (indeed there was no activity on Newson’s phone between 12:57 pm and 6:54 pm on 30 September 2014). The Crown notes that there were two windows on the appellant’s phone records during which there was no activity: between 2:48 pm and 3:36 pm and between 3:36 pm and 4:32 pm. The Crown says that those windows of time provided two potential times during which the appellant and Newson could have driven to Owens Gap, where there was no phone reception.
The Crown says that there was no dispute that the appellant engaged in the posting to social media and driving Newson to different locations to search for Ms McBride; and says that if the jury were satisfied that the appellant had knowledge of the murder (as they must necessarily have been), it would follow that the jury could infer that the appellant’s intention was to assist Newson to avoid apprehension. Similarly, the Crown says that such an inference could be drawn from the statements made by the appellant said to implicate Mr Easton (not disputed other than possibly for the statement alleged to have been made to Mr McGrath) and from the evidence relied on by the Crown as establishing that the appellant and Newson were mutually updating each other on the investigation.
Thus, the Crown submits that the jury verdict was reasonable and supported by the whole of the evidence at the trial. The Crown argues that none of the circumstances pointed to by the appellant in his written submissions rises above a competing inference on the evidence; and that they do not compel a conclusion that the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.
The appellant requires leave to appeal in relation to ground 9 as it does not involve a question of law alone, rather, it involves questions of fact, or mixed questions of law and fact (s 5(1)(b) Criminal Appeal Act).
The principles applicable when determining an unreasonable verdict ground are well known. The appellate court must independently review the evidence and ask whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63 per Mason CJ, Deane, Dawson and Toohey JJ; Libke v R (2007) 230 CLR 559; [2007] HCA 30 at [113] per Hayne J (with whom Gleeson CJ and Heydon J agreed); SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14]; [20]-[23] per French CJ, Gummow and Kiefel JJ (as her Honour then was)); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [43]-[45] per Kiefel CJ, Bell, Gageler (as the Chief Justice then was), Keane, Nettle, Gordon and Edelman JJ). The question is whether the jury “must, as distinct from might, have entertained a doubt about the appellant's guilt”.
The role of the jury as the constitutional tribunal for deciding issues of fact is also to be acknowledged; the jury having the advantage over a court of appeal of seeing and hearing the witnesses called at trial (The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] per French CJ, Kiefel (as her Honour then was), Bell, Keane and Gordon JJ).
Having independently reviewed the whole of the evidence, on the assumption that the jury accepted that Newson had murdered Ms McBride, this is not a case where the jury must have entertained a doubt about the appellant’s guilt as accessory after the fact.
The evidence relied upon by the Crown as capable of establishing the appellant’s knowledge of the murder and his acts of assistance has been explored above; as have the matters relied upon by the appellant as resisting such a conclusion.
Significantly, on the appellant’s own account (and that of Newson), the appellant was in the company of Newson during the afternoon of 30 September 2014. The video recording taken of Newson in the appellant’s garage places Newson there at 2:02 pm. The evidence of Mr Palmer, which it was well open to the jury to accept, establishes that Newson was not at the appellant’s house for at least around 10 minutes from somewhere between 2:13 pm and (depending on the time of Mr Palmer’s arrival) around 2:20-2:30 pm (i.e., if Mr Palmer arrived almost straight after his 2:13 pm text message and left exactly 10 minutes later this would place the time at which Newson cannot have been present at the appellant’s house between say 2:15 and 2:25 pm). Given the proximity of the appellant’s house to that of Mr Easton (variously said to be 5-8 minutes driving time), there was thus ample time for Newson to have intercepted Ms McBride after she left Mr Easton’s house, in the period between 2:10pm (allowing for Newson leaving directly after the 2:02pm video and it taking 8 minutes to drive to the vicinity of Mr Easton’s house) and to have returned to the appellant’s house by 2:30pm (the time at which the appellant and Newson must have left the appellant’s house in order to be halfway towards Scone by 2:48pm). While the window of opportunity to commit the murder, on that reckoning, is in the order of 12 minutes, there is no reason to think that the murder itself would have taken long, particularly given Newson’s undoubted physical superiority over Ms McBride.
Since I agree with the conclusion reached by Fagan J in relation to ground 1, the question as to the application of the proviso arises. For the reasons given by his Honour I have concluded that the proviso cannot be applied and the conviction must be quashed. I agree that it would be appropriate that there be a new trial. Accordingly, I agree with the orders that his Honour has proposed.
DAVIES J: I have had the considerable advantage of reading in draft the judgments of both Ward P and Fagan J. I agree with the reasons of Ward P and with the additional reasons of Fagan J in relation to grounds 1 to 8.
In relation to ground 9, from my own examination of the evidence properly admitted, I do not entertain any doubt about the guilt of the applicant, having regard specifically to the matters set out at [154] to [162] of the judgment of Ward P.
In relation to the application of the proviso, I agree with the reasons of Fagan J, but would add the following.
There is some tension between a determination that a verdict should not be set aside on the ground that it is unreasonable, and a determination that the proviso should not be applied. That is highlighted by what the High Court said in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [41], that the task of the appellate court, (which is to decide “whether a substantial miscarriage of justice has actually occurred” (see at [39])), is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.
The Court in Weiss went on to say at [45]:
[N]o single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
[55] Except where the appellate court concludes that the error or irregularity led to a failure of process so serious as to have amounted without more to a substantial miscarriage of justice, “deciding whether there has been no substantial miscarriage of justice necessarily invites [the] attention [of the appellate court] to whether the jury’s verdict might have been different if the identified error [or irregularity] had not occurred”[AK v Western Australia (2008) 232 CLR 438 at [59]].
[56] The ultimate question for the appellate court in considering the application of the proviso is then whether the error or irregularity denied the appellant a real chance of acquittal or, to put the same question another way, whether the jury’s verdict would inevitably have been the same if the identified error or irregularity had not occurred. Only if the appellate court after reviewing the record of the trial confidently answers that ultimate question in the affirmative can the appellate court conclude that no substantial miscarriage of justice has actually occurred.
In my opinion, it could not be said that the jury’s verdict would inevitably have been the same if the certificate of conviction had not been admitted. Although the trial judge gave on two occasions what would have been an entirely appropriate warning if the certificate was admissible, the fact that the certificate was evidence that Newson had been convicted of murder by a jury in the Supreme Court must have been a considerable influence on the jury in the present case. The significance is greater because that first element of the offence with which the applicant was charged was, arguably, the most important in a determination of the applicant’s guilt. The evidence on the other elements was far less contentious.
I agree with the orders proposed by Fagan J.
FAGAN J: The appellant appeals as of right against his conviction on a charge that he was an accessory after the fact to the murder of Carly McBride. Commencing on 9 May 2022 he was tried before his Honour Judge Mahony SC and a jury, on one count as follows:
Whereas on 30 September 2014 at Muswellbrook in the State of New South Wales, Sayle Kenneth Newson did murder Carly Dawn McBride,
James Anthony Cunneen between 29 September 2014 and 22 June 2017 in Scone and elsewhere in the state of New South Wales, knowing that the said Sayle Kenneth Newson to have committed the said murder, did receive, harbour, maintain and assist the said Sayle Kenneth Newson.
The trial was subject to many interruptions and delays, mainly due to the Covid 19 public health crisis. On 7 July 2022 the remaining 10 members of the jury returned a verdict of guilty. On 25 November 2022 the appellant was sentenced by the trial judge to imprisonment for 7 years and 6 months with a non-parole period of 4 years. It will be useful to commence with an outline of the evidence in the Crown case before noting the grounds of appeal. The issues to which the grounds are directed will be better appreciated in that context.
As appears from the charge set out above, the Crown alleged that the principal offence to which the appellant was an accessory was the murder of Ms McBride by Sayle Newson at Muswellbrook or nearby. In a separate trial conducted a year before the trial of the appellant, Newson was found guilty of the murder. A certificate of his conviction was tendered in the appellant’s trial. The appellant, Newson and Ms McBride met each other while participating in a residential drug rehabilitation program between September 2013 and January 2014. Ms McBride and Newson commenced an intimate relationship in about August 2014. Newson was then living at Buff Point 50 km south of Newcastle and Ms McBride was living with her parents at Warners Bay. On the morning of Tuesday, 30 September 2014, Newson drove Ms McBride from the Central Coast to Muswellbrook so that she could visit her daughter from a previous relationship. The daughter lived with Ms McBride’s former partner Andrew Easton, at 32 Calgaroo Avenue, Muswellbrook. Newson dropped Ms McBride off at that address at some time between 12:20 pm and 12:44 pm. The approximate time could be inferred by reference to the CCTV footage and transaction records of businesses in Muswellbrook that Newson attended, initially in the company of Ms McBride and then without her.
In September 2014 the appellant resided with his parents at 4 Ted Clay Street Muswellbrook, 5 km from Calgaroo Avenue. The appellant told police, in an interview on 15 October 2014, that Newson came to visit him on 30 September 2014 after having left Ms McBride at Mr Easton’s house. The appellant suggested that this was during the late morning but having regard to the times objectively established by the evidence referred to in the preceding paragraph, the jury would likely have concluded that Newson arrived at the appellant’s house at about 1:00 pm.
Mr Easton gave evidence that his and Ms McBride’s daughter was absent from the house and was due to be collected from day care after 2:00 pm. Ms McBride remained with Mr Easton for an hour or so but left the house on foot at about 2:00 pm without having seen the child. She told Mr Easton she was going to meet Newson at the McDonald’s Restaurant, which was 1.5 km away.
The appellant told police that Newson remained with him at 4 Ted Clay Street from when he arrived until the two of them set off in Newson’s car sometime later, to drive to Scone, 25 minutes away. The appellant maintained that he and Newson were together for the rest of the afternoon and into the evening, until about 7:30 pm, and that they had no contact with Ms McBride.
From about August 2014 Newson had commenced bringing Ms McBride to Muswellbrook to visit her daughter. Usually they would come to the appellant’s house first and say hello. Then Newson would drop Ms McBride off at Mr Easton’s house on Calgaroo Avenue and return to the appellant’s house where they would “kick back, whatever, go for a cruise, do somethin’ to fill in some time” until Newson went back and collected Ms McBride.
On 30 September 2014 Newson dropped Ms McBride at Calgaroo Avenue first and then came to the appellant’s place. At “about 1:00 or 2:00” they left to drive to Scone in Newson’s car, with the appellant driving.
They proceeded north on the New England Highway to Aberdeen, then turned right onto “back roads” to the east of the highway and continued to Scone. They drove all the way through Scone township on the main street to the north side of the town, then turned and came back to the McDonald’s Restaurant, which is at the north end of the main street.
In the McDonald’s Restaurant Newson used a credit card in the name of Ms McBride, which he took from the console of the vehicle. The card was initially declined but was then accepted for the purchase of two drinks. Credit card records show that those transactions took place at 4:38 pm and 4:40 pm, respectively.
The appellant then drove Newson’s vehicle, with Newson as passenger, back to Muswellbrook. They arrived at the appellant’s house by 5:30 pm. Newson then sent two messages to Ms McBride using the appellant’s phone but got no response and said he was “gettin’ worried”.
After about 20 minutes Newson “just took off to go get her”. That was at about 6:30 pm. When Newson subsequently returned to the appellant’s house he told the appellant that Mr Easton had said Ms McBride left the Calgaroo Avenue address at 2:00 pm.
The appellant’s father said that when he arrived home from his work at about 5:45 pm on 30 September 2014 he saw the appellant and Newson at the house at 4 Ted Clay Street. At that time the appellant told his father that they were unable to contact Newson’s girlfriend.
A staff member at the Railway Hotel in Muswellbrook, Ms Vivian Hazelton, said that Newson came into the hotel on the evening of 30 September 2014 and showed her a photograph of Ms McBride on his phone. He asked her repeatedly if she had seen the woman in the photograph and he walked around the premises in an agitated manner, as if looking for her. She gave the time of these events as about 5:50 pm, which is supported by reference to a television program that was screening at the time. This evidence was given by reading Ms Hazelton’s statement.
Mr Easton gave evidence that at approximately 6:30 pm on 30 September 2014 Newson arrived at 32 Calgaroo Avenue and said he was there to pick up Ms McBride. Mr Easton told Newson that she had left early in the afternoon and had said as she departed that she was going to McDonald’s. At 6:35 pm, while Newson was with him at the front door of his house, Mr Easton called Ms McBride’s mobile number but there was no answer. Mr Easton gave evidence that Newson came back to the house at 8:30 pm and said he had still not heard from Ms McBride. He asked Mr Easton whether she knew anyone else in the area.
The appellant gave the following further information in his recorded interview with police on 15 October 2014:
When Newson returned from Mr Easton’s house, before 7:00 pm, the appellant then drove him around Muswellbrook in Newson’s car, stopping at about seven hotels and clubs while Newson went in to inquire whether anyone had seen Ms McBride. The appellant himself rang the hospital to inquire whether she had been admitted there but was not able to make himself understood.
The appellant then drove Newson back to 4 Ted Clay Street and gave him two $50 bills because he had no money or credit for food or petrol. [CCTV footage from a BP service station in Muswellbrook showed Newson using two $50 bills to pay for fuel and drinks at 7:40 pm]. The appellant did not see Newson again until the next day.
Newson phoned Ms McBride’s father, Steven, in the late afternoon or evening of 30 September 2014 and said that Ms McBride was “missing, she can’t be found”. The call was made on the appellant’s phone and call charge records showed a time of at 7:01 pm. Newson asked Mr McBride for the address of his friend David Harvey who lived in Muswellbrook. Mr McBride did not provide the address but Newson ascertained it by other means and he attended on Mr Harvey at his home. Mr Harvey gave evidence that Newson came to his address and asked whether he had seen Ms McBride. Mr Harvey said he had not. Newson said he had dropped Ms McBride off to see “the baby”, that she had left the house at 2:00 pm and that he had not been able to find her. Newson said he was going to go to the police. Mr Harvey said this conversation occurred between 4:00 pm and 5:00 pm but it must have been after 7:01 pm in view of the timing of Newson’s call to Mr McBride.
At 9:25 pm on the evening of 30 September 2014 Newson attended Muswellbrook police station and reported to Senior Constable Baker that his girlfriend, Carly, was missing. He said he had dropped her off at “her ex’s” that day to see her daughter and had not seen her since. Newson told the officer that Ms McBride would normally ring or message him to pick her up when she had finished visiting her daughter. Sergeant Norris attended at 32 Calgaroo Avenue at 9:55 pm and was informed by Mr Easton that Ms McBride had left him at 2:00 pm that afternoon. Mr Easton told the officer that a person named Jimmy was a friend of Ms McBride’s living in the town. By means that are not clear, Sergeant Norris learned that Jimmy was the appellant and went to his address at 4 Ted Clay Street. The sergeant was told by the appellant that Ms McBride was not there, that the appellant and Newson had been driving around looking for her and that, as they spoke, Newson was again out looking for her in a white Commodore motor vehicle.
Newson returned to the Central Coast late on the night of 30 September 2014. He went back to Muswellbrook about mid-morning the next day and commenced doorknocking around Calgaroo Avenue, enquiring of residents whether they had seen Ms McBride. At 1:30 pm he returned to the police station and told Senior Constable Tegan Davis that after dropping Ms McBride at Mr Easton’s house the preceding day at about 11:00 am he went to the appellant’s house and waited there for her to call. At about 3:00 pm on 1 October 2014 Newson left the police station. He returned at 5:30 pm and reported that he had continued doorknocking and had also created a missing person Facebook page for Ms McBride. Newson and friends of Ms McBride distributed a missing person poster in Muswellbrook township over subsequent days.
In a second police interview on 22 April 2015 the appellant gave answers to the following effect:
When Newson came to the appellant’s house on 30 September 2014 after dropping Ms McBride at Mr Easton’s, no one else was at 4 Ted Clay Street. Only the appellant and Newson were there and they remained until they left to drive to Scone.
On the drive up to Scone the appellant and Newson stopped at the appellant’s father’s property at Gundy Road for about 45 minutes and walked around. [Other evidence showed that this property was at 443 Gundy Road, located about 3 km from the centre of Scone].
When they were approaching McDonald’s in Scone, Newson said he was concerned about Ms McBride not having phoned him or sent a text. The driving time from Scone to Muswellbrook was about 25 minutes.
The appellant was informed about results from surveillance cameras on the New England Highway and accepted that he and Newson must have used backroads rather than the highway on the return journey from Scone. On the way back, close to Muswellbrook, Newson had again said that he was concerned about not having heard from Ms McBride.
The appellant and Newson would have arrived back at the appellant’s house at about 5:05 pm (on the basis that they left Scone after making the purchase at McDonald’s at 4:40 pm). Two messages were sent on the appellant’s phone by Newson to Ms McBride’s phone, timed on call charge records at 5:39 pm and 5:45 pm. Newson went to Mr Easton’s to get Ms McBride after a further 20 minutes, at some time between 6:00 and 6:15 pm.
Newson returned to 4 Ted Clay Street after a further 20 minutes. A phone call and SMS from the appellant’s phone to Ms McBride at 6:59 pm must have been made by Newson.
On 1 October 2014 the appellant set up a printer in his parents’ garage to print missing persons posters/flyers, which Newson’s flatmate, Mr Rankine Williamson, prepared.
He had access to a storage shed on Hay Street, Scone where police had executed a search warrant shortly before the interview. The appellant stored tools and motorbikes there. He and Newson went to the shed on 30 September 2014: “I think we went up to grab some tools. I think, yeah. We weren’t up there very long”. The appellant could not remember what tools they went to get. He thought they attended the storage shed before going to his father’s property at Gundy Road.
The officer in charge of the investigation gave evidence that the appellant’s mobile phone handset operated to receive an SMS text through the Skeletar Tower, 3.5 km east of Muswellbrook, at 2:13 pm on 30 September 2014. That would have been the message from Mr Palmer to say that he was coming around. The next activity on the appellant's phone was the receipt of another text message at 2:48 pm through the Scone Mountain Tower, located about 4 km to the east of Scone. The appellant’s phone operated to send an SMS text reply through the Scone Mountain Tower at 3:36 pm. Between 2:48 pm and 3:36 pm there was no other interaction of the phone with any tower. The officer said that there was no coverage for mobile phone service at Owens Gap, from any tower, and that when travelling west from Scone, coverage from the Susan Street tower, about 1.5 km to the north west of Scone, would be lost after a few kilometres. That would be approximately 10 km from the centre of the town. After 3:36 pm the next operation of the appellant’s phone was when it received an SMS text through the Susan Street Tower at 4:32 pm. There was no further interaction of the device with towers in the vicinity of Scone and the next event was the sending of an SMS text from the device at 5:39 pm, which was transmitted through the Skeletar Tower near Muswellbrook. Newson used the appellant’s phone to send a message to Ms McBride’s number at that time.
The officer in charge gave evidence that he had been unable to obtain coverage maps or data for the mobile phone service towers that were identified in the evidence. However, he said that “in the normal course of events [a mobile phone] will connect to the nearest available tower”. He said that that may not be the nearest in physical terms if that tower is not working or if it is receiving and sending signals “at capacity”, in which case the mobile handset signal “will go to the next nearest cell tower”. From this evidence it was open to the jury to be satisfied that the appellant’s phone had been closer to Muswellbrook than to Scone up until 2:13 pm on 30 September 2014; that it had been in the vicinity of Scone at 2:48 pm, 3:36 pm and 4:32 pm and that it was again in or around Muswellbrook by 5:39 pm.
In Quinn v R [2023] NSWCCA 229 at [104]-[105] Bell CJ (Sweeney J agreeing) accepted that the elements of being an accessory after the fact are (1) that the principal offender committed the offence to which the accused is said to have become an accessory; (2) that the accused provided some positive assistance for the purpose of helping the principal to escape apprehension, trial or punishment and (3) that at the time of providing such assistance, the accused was aware of the essential facts and circumstances that made up the principal’s offence. In support of the third element Bell CJ cited R v Tevendale [1955] VLR 95, a decision of the Full Court of the Victorian Supreme Court; R v Stone [1981] VR 737 at 739-740 (Crockett J) and Winning v The Queen [2003] WASCA 245.
To sustain the charge of accessory after the fact in this case the Crown had to prove the following elements beyond reasonable doubt:
That Newson murdered Ms McBride on 30 September 2014; that is:
(a) Newson committed one or more deliberate acts that was or were a substantial cause of Ms McBride’s death; (b) Newson intended by his act or acts to kill Ms McBride or to cause her grievous bodily harm. [The trial judge left to the jury the further alternative that Newson committed the act(s) with reckless indifference to human life.]
(a) Helping Newson to dispose of Ms McBride’s body. (b) Providing a false alibi for Newson, that he was with the appellant on the afternoon of 30 September 2014 and not in contact with the deceased. (c) Supporting Newson’s public efforts to search for the deceased, in particular posting to social media information about her disappearance, to make it appear that Newson was not involved in her murder. (d) Deleting digital telephone data that may have tended to show the whereabouts of the phones of Newson and the appellant on 30 September 2014. (e) Supporting statements by Newson to make it appear that Mr Easton was an appropriate suspect, in particular statements by Newson that Easton said he had argued with Ms McBride on 30 September 2014 and that Easton’s house smelled strongly of chemicals after a break in on 2 October 2014. (f) Updating Newson about the progress of the police investigation and receiving similar updates from Newson.
1 The learned trial judge ought not to have admitted the Certificate of Conviction (Exhibit N).
2 The jury, in the particular circumstances of the case, was inadequately directed as to the elements of the offence.
3 His Honour's response to the jury question of 24 June 2022 was inadequate.
4 His Honour erred in admitting into evidence the ERISP conducted with Sayle Newson on 3 October 2014 (Exhibit AT, Transcript Exhibit AU).
5 His Honour erred in admitting into evidence the ERISP conducted with Sayle Newson on 31 October 2014 (Exhibit CS, Transcript Exhibit CT).
6 His Honour misdirected the jury as to the use they might make against the Appellant of statements made by Newson.
7 His Honour erred in admission against the Appellant of the evidence of sexual interaction between Newson and Samantha Patterson.
8 His Honour erred in admitting and leaving to the jury, as capable of amounting to an admission by the Appellant, a text message sent by the Appellant on 9 April 2015 (Exhibit BU).
9 The evidence properly admissible against the Appellant did not support his conviction.
Ground 1 of the appeal raises the question whether evidence of Newson’s conviction for the murder of Ms McBride could be adduced as prima facie evidence of the first element of the charge against the appellant that he was an accessory after the fact to the commission of that offence. To resolve that ground the Court must decide whether, in New South Wales, a common law rule permitting the Crown to tender evidence of the conviction of the principal offender has survived the enactment of the Evidence Act 1995 (NSW). All other evidence tendered against the appellant to establish that Newson committed the principal offence had to be admissible against the appellant according to the rules of evidence in a criminal trial: R v Welsh [1999] 2 VR 66; [1998] VSCA 138; (1998) 105 A Crim R 448.
In R v Welsh the Court was concerned with a statutory offence of “assisting”, which was equivalent to the offence of accessory after the fact in New South Wales. Counsel for the Crown submitted that in establishing the commission of the principal offence “evidence admissible against the principal offender, no matter what its nature, was evidence admissible against the ‘assister’”. Winneke P rejected the Crown’s submission in the following terms:
[5] … [That view] cannot be permitted to prevail because it runs counter to the fundamental principle that the guilt of an accused person can only be proved by evidence admissible against that person and not by evidence which might be admissible against the principal offender but which is in the nature of hearsay evidence, and thus inadmissible, as against the accused "assister".
[76] The suggestion that the confession of the principal offender may be used to prove the commission of that offence as against an accessory after is contrary to principle and not supported by any satisfactory authority. It runs counter to the fundamental notion that the guilt of an accused person can be proved only by evidence admissible against that person and the fundamental principle which excludes hearsay evidence, there being no exception to that principle within which the case can be brought. It is true that the accessory after is not a party to the principal offence. But the commission of that offence by the principal is an element of the offence committed by the accessory and, like the other elements, must be proved by evidence admissible against the accessory.
[80] In my opinion, for the reasons I have given, on the trial of an accessory (whether before or after) evidence is not admissible against the accessory of an admission or confession made by the principal.
In most cases this constraint will not of itself give rise to any special difficulty in substantiating a charge of accessory after the fact. If, in any case, the Crown has evidence admissible against the accused that he or she knew of the essential facts constituting the principal’s crime (element (3) above), as it would need to have in order to lay an accessory charge in the first place, that evidence would normally also constitute proof that the facts and circumstances existed – and hence that the principal offence was committed.
In May and June 2019 the appellant stood trial on the charge of accessory after the fact to murder, together with Newson who was charged with the principal offence on the same indictment. The trial took place before Ierace J and a jury but was aborted after five weeks. On 30 April 2020 Ierace J ordered that Newson and the appellant be retried separately: R v Newson; R v Cunneen (No 2) [2020] NSWSC 462. Newson’s second trial took place from March to June 2021. The verdict of guilty against Newson was returned on 24 June 2021. The certificate of his conviction was admitted against the appellant over objection: R v Cunneen (No 1) [2022] NSWDC 585.
The Crown concedes that the certificate should not have been received in evidence and that ground 1 should be upheld. It is necessary to refer to the law on the subject to confirm that the concession is rightly made.
9 Application of common law and equity
(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) …
91 Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. [Emphasis added].
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
92 Exceptions
(1) Section 91 (1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove—
(a) the death, or date of death, of a person, or
(b) the due execution of a testamentary document.
(2) In a civil proceeding, section 91 (1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction—
(a) in respect of which a review or appeal (however described) has been instituted but not finally determined, or
(b) that has been quashed or set aside, or
(c) in respect of which a pardon has been given.
(3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.
93 Savings
This Part does not affect the operation of—
(a) a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation, or
(b) a judgment in rem, or
(c) the law relating to res judicata or issue estoppel.
178 Convictions, acquittals and other judicial proceedings
(1) This section applies to the following facts—
(a) the conviction or acquittal before or by an applicable court of a person charged with an offence,
(b) the sentencing of a person to any punishment or pecuniary penalty by an applicable court,
(c) an order by an applicable court,
(d) the pendency or existence at any time before an applicable court of a civil or criminal proceeding.
(2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court—
(a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question, and
(b) stating the time and place of the conviction, acquittal, sentence, order or proceeding, and
(c) stating the title of the applicable court.
(3) A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate.
(4) ...
(5) A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate.
(6) In this section—
acquittal includes the dismissal of the charge in question by an applicable court.
applicable court means an Australian court or a foreign court.
Read in its context in the Act and with due regard to its wording, s 178 is properly interpreted as a provision for a convenient procedure by which evidence of a conviction may be adduced, if admissible according to other substantive rules. Section 178 does not itself provide for the admissibility of evidence of a conviction. It does not provide a basis or pathway for admissibility as an exception to s 91, additional to the exceptions in ss 92 and 93.
Common law decisions prior to the Evidence Act held that evidence of the conviction of the principal offender was admissible in the trial of an alleged accessory. In R v Dawson [1961] VR 773 the principal offender had pleaded guilty and was remanded for sentence. Evidence of those facts was adduced before the jury in the trial of an alleged accessory after the fact. In the Full Court of the Victorian Supreme Court, Lowe and Smith JJ said this at 774:
[For] it is a rule long established that upon the trial of a person on a charge of having been an accessory to the commission of a felony, proof of the conviction of the alleged principal offender is admissible, and constitutes prima facie evidence that the felony was committed by him. (Emphasis added).
Other authorities supporting the rule, from jurisdictions where no equivalent of the Evidence Act was in force when these cases were decided, include R v Carter & Savage [1990] 2 Qd R 371; [1990] 47 A Crim R 55; R v Welsh; R v Kirkby (2000) 2 Qd R 257; R v Simpson (2008) QCA 413.
The learned trial judge in the present case concluded that the common law rule as stated in R v Dawson is not abrogated by s 91 of the Evidence Act and that it remains operative by force of s 9(1). I respectfully disagree. The certificate of Newson’s conviction was, within the meaning of the opening words of s 91(1), “evidence of the decision” in Newson’s trial for murder. The “fact that was in issue in that proceeding” was whether Newson had murdered Ms McBride, which could be broken down into several facts in issue, namely, (1) whether he had deliberately inflicted blows (2) that were a substantial cause of death, (3) with intent to kill Ms McBride or to cause her grievous bodily harm or with reckless indifference to human life. The effect of s 91(1) is that the certificate, being evidence of the decision in the Newson trial, was not admissible in the prosecution of the appellant to prove the existence of the fact, contested in Newson’s separate trial, that Newson had murdered Ms McBride.
In quoting the statement of the common law rule from the judgment of Lowe and Smith JJ, above, I have emphasised words that show that the rule is in direct conflict with the operation of s 91(1). According to the rule, proof of the conviction, being the decision in Newson’s trial, “is admissible, and constitutes prima facie evidence that the [murder] was committed by [Newson]”. On the other hand, the section says that proof of the conviction is “not admissible to prove the existence of [the] fact” that Newson committed the murder. The section prevails. The exceptions to s 91, spelled out in ss 92 and 93, are not engaged. The Crown’s concession with respect to ground 1 of the appeal is in my opinion properly made.
The Crown bears the onus of proving beyond reasonable doubt each of the following elements:
- That the crime of murder was committed by Sayle Newson.
- That the accused intentionally assisted Sayle Newson.
- That at the time of that assistance, the accused was aware of all of the essential facts and circumstances that gave rise to the murder of Carly McBride by Sayle Newson.
- That the accused, with that knowledge, intentionally assisted Sayle Newson.
- That the accused gave that assistance so that Sayle Newson could escape arrest, trial or punishment for the offence committed by him.
After that document had been distributed to the jury his Honour read it aloud. The full list of elements as above was repeated to the jury later in the summing up. Item (4) was repetitive of the combined effect of items (2) and (3) and was superfluous. Item (5) was an elaboration of the term “assisted” in item (2). The repetition within the list of elements did not detract from their accuracy and was not misleading or confusing.
The appellant submits that the learned judge’s direction concerning the elements would have been adequate if the Crown had relied upon only one act of assistance but was insufficient in circumstances where six separate particulars were alleged (see [195](2) above). It is not apparent from the submissions on the appeal how or why the number of particulars of assistance affects the legal validity of the direction on the elements.
The appellant says that there are two additional requirements of accessory liability upon which the jury should have been directed in the circumstances of this case, the first being that the assistance provided must “involve a positive act (‘act’ being understood to include a relevant statement)” and that the “mere approval of Newson’s public efforts to search for [Ms] McBride or mere moral support is insufficient”. The appellant submits that the following additional element should have been included in the list given to the jury:
(6) Such assistance must be active assistance, whether by word or action; mere approval is not sufficient.
No such additional direction was required. Each of the six particulars of assistance nominated by the Crown was an allegation of positive and active steps taken by the appellant. None of the Crown’s particulars were limited to mere approval or moral support from the appellant.
The first particular, helping to dispose of the body, self-evidently involved an allegation of active conduct on the part of the appellant. The Crown invited the jury to conclude that the appellant accompanied Newson to Owens Gap at some time between 2:30 pm and 4:38 pm on 30 September 2014 and assisted in disposing of the body in the bush.
The second particular, providing a false alibi, was advanced by the Crown on the basis that the appellant told police in his recorded interview of 15 October 2014 that he was with Newson for the whole of the afternoon on 30 September 2014, from the time when Newson arrived at his house after leaving Ms McBride at Mr Easton’s address, which it was open to the jury to find would have been at about 1:00 pm, until about 7:30 pm. The Crown alleged that Newson actively lied to the police when he said that during that period they did not see Ms McBride.
The third particular, being the appellant’s support for Newson’s efforts to create a public appearance that he did not know Ms McBride’s whereabouts and that he was searching for her, also involved positive acts on the appellant’s part. The Crown relied on the appellant’s own admissions that he had driven from hotel to hotel on the evening of 30 September 2014 while Newson went into each of the premises to make enquiries. The Crown also relied upon the appellant’s admitted contribution to preparing and printing missing person posters.
Evidence in support of the Crown’s fourth particular was that, upon technical examination of the mobile phone handsets of both Newson and the appellant, it was found that location data was missing from Newson’s phone for the period 18 September 2014 to 2 October 2014 but that location data was present for dates before and after that period. Unchallenged technical evidence was given to the effect that Newson’s phone had been logged on to manage the device’s location data on 3 and 4 October 2014. The gap in data could have been due to the user turning off the location history during the affected period or it could have been due to manipulating the history, including by deleting it, after 2 October and before 31 October 2014. Newson’s phone was seized on the latter date.
Location data was missing from the appellant’s phone for the period 17 February 2014 to 8 November 2014 but was present for times prior to 17 February 2014, back as far as 28 August 2011. The appellant’s phone was seized on 23 April 2015 and there was technical opinion evidence to the effect that the missing location data could have been deleted at any time between 8 November 2014 and the date of seizure. The Crown invited the jury to infer that the appellant had caused the location data to be deleted from his own device. That was plainly an allegation of an active step rather than of mere approval or moral support for Newson concealing the crime.
(7) Such assistance must be capable, at least potentially, of assisting Newson to avoid arrest, trial or punishment.
An additional direction to that effect was not required. There was no dispute at trial that the particulars of assistance relied upon by the Crown had the requisite capacity, if the alleged acts of the appellant were proved. Helping to dispose of the body and providing the principal offender with an alibi for the time at which the murder is alleged to have taken place are classic forms of assistance after the fact. Each of them self-evidently has the capacity to assist the principal offender to avoid being brought to justice. In the circumstances of the present case, each of the other particulars of assistance equally had that capacity.
Counsel did not address the jury to suggest that there was a lack of positive action in any of the particulars of assistance that the Crown alleged, or that any of the appellant’s acts, if proved, lacked capacity to assist Newson to escape from justice. No redirection was sought by defence counsel to the effect of either of the additional points (6) and (7) now propounded. There is a clear inference from the trial record that the reason for defence counsel not raising those matters is that he saw neither of them as an issue in the case and recognised that if the jury were satisfied beyond reasonable doubt with respect to the six particulars of assistance that the Crown relied upon, they would also be satisfied that each of those matters involved active steps on the part of the appellant and had the capacity to assist Newson to escape apprehension and punishment. A rational forensic justification for counsel not having sought directions on the putative additional points can readily be discerned.
In whatever light defence counsel may have seen the matter, no perceptible risk of miscarriage of justice arose from omission of the additional directions that the appellant now propounds: De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35] (Kiefel CJ, Bell, Gageler and Gordon JJ); Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [54]-[55] (Kiefel CJ, Keane and Steward JJ); Roos v R [2019] NSWCCA 67 at [72]-[73]; Latu v R [2023] NSWCCA 19 at [54]-[56] (Davies J, Bell CJ and Fagan JJ agreeing).
Leave to raise this ground should not be granted, pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
1 We would like a direction about the difference between murder and manslaughter.
2 If the murder by Newson occurred, but the accused did not have knowledge of Newson’s relevant intent to murder, which would be the applicable charge?
3 If the accused did not have knowledge of Newson’s relevant intent on 30 September but later gained knowledge and continued his aid, is this still accessory?
You have asked if the accused did not have the knowledge of Newson’s relevant intent on 30 September 2014 but later gained knowledge and continued his aid, whether this constitutes being an accessory. The answer to this question is yes.
The Crown case is that you would infer from all of the facts that you find proved that in the time period on the indictment, namely between 29 September 2014 and 22 June 2017, the accused intentionally assisted Sayle Newson and at the time of that assistance was aware of all of the essential facts and circumstances that gave rise to the murder of Carly McBride by Sayle Newson, and with that knowledge he intentionally assisted him so that Sayle Newson could escape arrest, trial and punishment for the offence committed by him. Your determination as to whether James Cunneen gained that knowledge must be based on the facts you find proved and any rational inference that may be drawn from those facts.
I remind you that you cannot base that finding on speculation. Nor can you infer knowledge on the part of the accused from any silence of the accused. Whether you are considering the charge on the indictment of accessory after the fact to murder or the alternative charge of accessory after the fact to manslaughter, the Crown has the onus of satisfying you, beyond reasonable doubt, that James Cunneen had the relevant knowledge, namely of all of the essential facts and circumstances that gave rise to the murder, or alternatively, the manslaughter of Carly McBride by Sayle Newson, and that with that knowledge, he intentionally assisted Sayle Newson.
If you are satisfied beyond reasonable doubt of all of the elements of either charge during the time specified on the indictment, you can convict the accused. If you are not so satisfied, you must acquit and bring in a verdict of not guilty.
That redirection was proper and sufficient. The third question is to be understood in the context of the second. It was a rational enquiry. It indicated that the jury had correctly understood his Honour’s earlier direction that, for the appellant to be guilty as an accessory, the Crown would have to have proved beyond reasonable doubt that he knew all facts and circumstances constituting the principal offence, including intent on Newson’s part sufficient for murder, at the time when he provided his assistance. The particulars of assistance alleged by the Crown included actions by the appellant both on 30 September 2014 and on subsequent dates. The jurors may have turned their attention to whether some of the earlier acts of assistance, such as helping to dispose of the body and ferrying Newson around Muswelbrook while he purported to enquire whether Ms McBride had visited various hotels, may have occurred when the appellant did not know that Newson had acted with murderous intent, whereas the appellant may have carried out subsequent acts of assistance after acquiring that knowledge.
In support of his contention in ground 3 that the above response to the jury’s third question “was inadequate”, the appellant submitted in writing that: “The jury’s use of the term ‘continued his aid’ is a cause for concern”. I fail to see why. From the appellant’s submissions, I do not understand what the concern might be. I find no basis in the jury’s question for imputing to them any misunderstanding of the directions such as might have required correction.
The appellant’s written submissions continued as follows:
54 The deficiency in the response to the question is that it failed to emphasise that the assistance must be active and must have the capacity for the relevant tendency, and, most importantly failed to direct the jury that acts of assistance prior to the gaining of the necessary knowledge could not be considered.
That is a reiteration of the matters raised under ground 2, which I have considered above.
It is important that, when considering whether the accused provided assistance to Newson of the kind as to which I have directed you, that you have regard only to such assistance as is provided at a time at which the accused had the relevant knowledge. That he might have obtained that knowledge subsequently to having provided some act of assistance does not permit you to take such an earlier act of assistance into account.
(3) That at the time of that assistance, the accused was aware of all of the essential facts and circumstances that gave rise to the murder of Carly McBride by Sayle Newson.
In circumstances where the jury’s third question did not reveal any misunderstanding of that element but, on the contrary, showed that they were endeavouring to apply it correctly to the evidence, the suggested addition to his Honour’s response to the question was not required.
Grounds 4 and 5, concerning the admissibility of answers given by Newson to police in his interviews on 3 and 31 October 2014, were narrowed very considerably in oral argument on the appeal. At trial the interviews and their accompanying transcripts were tendered without objection after parts had been edited out at defence counsel’s request. Counsel for the appellant accepted that trial counsel had good reason to consent to the tender of most of the answers that remained in the edited interviews, in that Newson’s account of events on the afternoon of 30 September 2014 supported the exculpatory narrative that the appellant had given in his own police interviews. Also, some of Newson’s answers to police tended to cast suspicion on Mr Easton as the person who had killed Ms McBride, which, if accepted by the jury as a reasonable possibility, would entitle the appellant to an acquittal. The appellant’s counsel identified only two passages in the Newson interview of 3 October 2014 that he said were “inimical to his case” and should have been objected to and the reception of which had caused a miscarriage of justice. In answer to a direct inquiry from the bench, counsel did not nominate any passages of concern in the edited interview of 31 October 2014.
The first passage complained of is Newson’s answer to Q 135 in the 3 October 2014 interview. It is necessary to refer to earlier answers to provide context. Part of Newson’s answer to Q 124 was as follows:
A 124 … ‘Cause I believe [Carly McBride’s] phone’s been in his [Easton’s] house the whole time. That’s my belief and, and, and the third day I left here to go home I, I went over there to pull Drew [Easton] out of his house and bash him to stupid and, and, and go through his house. And um, I had a friend with me thank God and um, Drew answered the door and I said “Where’s Cadence [Mr Easton’s two year old daughter]?” And um, because I knew she’d be in bed and that, that was my tee to go. Like, to go, go, go do what I do and ah, she came walking out of the bedroom. And um, so that stopped that. […] my mate’s going “I can’t believe Drew that […] you sound like you don’t even care. This is the third day that Carly’s been missing. […]”.
It was open to the jury to understand that Newson mistook the number of days since Ms McBride had gone missing. The day of this interview was in fact only the third since her disappearance and the answer to Q 124 evidently referred to a visit by Newson to Mr Easton at his house on a previous evening. That he was describing an evening visit became apparent in the answer to Q 135. In his second interview on 31 October 2014 Newson repeated his account of having confronted Mr Easton at his front door and having wanted to assault him but in that second interview he said that that occurred late on the evening of 30 September 2014
The answer to Q 128 included the following:
A 128 […] Well, this is what Drew told police the first time. When she left […] she was definitely drug affected, that’s what […] he told the police first time right? I confronted him with that and he said “No, no, no, I didn’t say that, they twisted them words around”. I am like “All right dickhead, fucken whatever OK”. And now, now fucken four days in he’s given her something. […] So, so he’s given her something for a headache and a cough. […]
From A 135, considered in the next paragraph, it is apparent that the visit to Mr Easton’s home referred to in A 128 is the same as that referred to in A 124 and that it was on an evening prior to the day of the interview.
Q135 Did he um, did he tell you what he gave her for a headache and cough?
A No, he couldn’t remember. Couldn’t remember and I couldn’t, I, mate, like, he had his daughter, she was hugging his leg, man, I just, like I just wanted to front kick him. I just want to front kick through the front door and just, I wanted, I want to bash him to death. I really want to bash him to death. And I was planning on. And um, I tell you, Fuck, his, his, his, his answers and shit that night were just fucken crazy.
The appellant complains that the statements in A 135 about wishing to “front kick” Easton and to “bash him to death” were “historical reports” by Newson and, as against the appellant, hearsay concerning Newson’s violent impulse toward Mr Easton. He submits that such statements from Newson to police were admissions of violent tendency, which could be adduced against Newson in his trial for murder but were not admissible against the appellant to prove Newson’s violent disposition – and hence the likelihood of him having committed the principal offence – in the trial of the appellant as an accessory.
The impugned answers could only have conveyed to the jury a violent attitude on Newson’s part if taken at face value. On that basis his answers described a tendency to violence against a person whom Newson suspected of having harmed Ms McBride, not a tendency to violence against Ms McBride herself. For that reason alone, the evidence could not have been regarded by the jury as significant in proof of the Crown’s case that Newson had committed the murder. Further, the evidence had the potential to support the appellant’s case in two ways. First, it suggested that Newson, far from being responsible for Ms McBride’s death, was stricken with grief to the point of contemplating extreme violence against the man whom he alleged was the last to have seen her alive and whom he suspected. Secondly, the impugned answers advanced the appellant’s case that there was a reasonable possibility that Mr Easton was the murderer. These considerations rebut the appellant’s claims that the inclusion of A 135 resulted in a miscarriage of justice and the loss of a chance, fairly open, of acquittal.
The second passage complained of in Newson’s 3 October 2014 police interview is a long, unnumbered answer at the end of the edited tender version. Newson told police that he knew “a lot of guys” were sending Ms McBride “a lot of pictures of their cocks and all this shit so I try not to get involved”. He said that her phone was constantly issuing notification sounds for messages received. Because he did not have phone credit, he would use Ms McBride’s phone from time to time. Upon doing so, he would see 30 odd messages, all from other men, received by her in the preceding hour. These would be invitations to meet, or statements that the sender had seen Ms McBride somewhere and that she looked good, or similar. Newson claimed that on 29 September 2014 he said to Ms McBride:
Look, I said I’m not, jealous I don’t want to get possessive and all that shit but look either you put a stop to this right now or I’m going to put a stop to it. I’ll go through your phone and, um, go and see each, each person, each guy in there.
Oh, fine, I’ll cancel my Facebook and I’ll get rid of the lot of them.
He said that she “cancelled her Facebook on the spot” but the argument between them “went on for about another 10 or 15 minutes and […] I got real fucking angry and I […] had to leave”. Newson told police that he then had the following thought about the matter:
[A] 30 year old girl that lives off Facebook just cancelled on the spot for me, bang gone and was changing her phone number the next day which was the day she went missing. Um, I thought, fuck, that girl loves me bad, you know and I loved her too because that’s why I was angry.
Again, the appellant submits that this information from Newson was an admission against interest that could be adduced against him in his own trial, to prove his jealousy with respect to Ms McBride as a motive for her murder, but that, as against the appellant in his separate trial, it was pure hearsay of the events described and should not have been admitted. However, other admissible and uncontested evidence in the trial, of which no complaint is made on appeal, demonstrated Newson’s jealousy and controlling conduct towards Ms McBride – in particular, a series of text messages between Newson and the deceased in the period 16 August to 1 September 2014 (Ex O). A subsequent girlfriend, Ms Sharon McAlpine, gave evidence of Newson’s jealousy with respect to her, which erupted into him smashing phones and other property at times. In the context of that other evidence, the answer in the record of interview concerning cancellation of Ms McBride’s Facebook account could not realistically have caused a miscarriage of justice.
Further to that conclusion, on the assumption that the jury would treat the answer as evidence of the truth of its contents, it is self-serving from Newson’s point of view. It portrays his stance about the Facebook account as a reasonable reaction to the provocation of numerous men making frequent explicit advances to Ms McBride. The long answer that is subjected to at the end of the interview is to the effect that the point of conflict between the couple had been resolved with cancellation of the account on 29 September 2014 and that Newson’s affection for Ms McBride had survived the event, making it improbable that he would have murdered her the next day.
In the absence of demonstration that a miscarriage of justice resulted from the 3 October 2014 record of interview going into evidence with the inclusion of the answers discussed above, leave to appeal on grounds 4 and 5 should be refused under r 4.15 of the Supreme Court (Criminal Appeal) Rules.
In order for you to find the accused guilty, the Crown must satisfy you of the following matters in relation to the accused:-
(1) That there was, in fact, an agreement between the accused and Sayle Newson to do the things outlined by the Crown. The Crown says that this agreement came into being at about 2.30pm on 30 September 2014 and continued until the accused was arrested.
(2) That the accused participated in that agreement.
As to the first of these matters, namely, whether there was an agreement of the kind alleged by the Crown, I direct you as follows, an agreement does not have to reached by any formal means. […] In this area of the law, all that is necessary for there to be an agreement is for two or more persons to concur, either by words or by conduct in a common design, each having the intention to bring about the object of the agreement. […] In the present case the Crown seeks to prove the agreement and the nature of the agreement by inferences available from its circumstantial case.
As to the second of the matters which the Crown has to prove in order for the accused to have participated in the agreement, that he must have known what was proposed as the objective of the agreement and must have intended to carry out that objective into effect. The Crown may seek to prove that the accused participated in the agreement in a variety of ways. It may do so by leading direct evidence of witnesses of the accused by his conduct, including any statements he may have made indicated that he was a participant. The Crown may also seek to prove such an agreement by inferences, from acts done or statements made by the accused in apparent furtherance of the purpose or objective of the alleged agreement.
It is not apparent from reading the prosecutor’s closing address that the Crown case was based on joint criminal enterprise. There were aspects of the evidence and of the Crown’s arguments that suggested a measure of agreement and coordination with Newson in the steps that the appellant was alleged to have taken to conceal the murder. However, such agreement as existed was incidental to the appellant’s acts that constituted the actus reus of the accessory offence charged. The Crown did not rely upon the doctrine of joint criminal enterprise for the purpose of attributing to the appellant acts of concealment of which the author was either Newson or, indistinguishably, one or both of them.
The principle of admissibility for which Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 stands appears from the following abbreviated passage of the Court’s judgment at pp 6-8:
It is urged that the rule under which upon charges of conspiracy evidence is admitted of what is done and said by the parties to the combination in furtherance of the conspiracy is a rule of a special nature and is incapable of application to charges of a substantive offence. [...] It is a mistake to think that the rule the chief application of which is in charges of conspiracy is a special rule of evidence confined to that offence. […] [When] a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose. When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. […] It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or pre-concert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts. […] [Often] enough in an ordinary case where there is no confederation or preconcert, directions, instructions and the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts. It is easy to understand therefore that preconcert confederacy or combination may make such directions and the like admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design. In the present case the things said and done when the prisoner was not present or within earshot are for the most part of this character and are admissible as part of what was done in furtherance of the common criminal purpose.
There was reasonable evidence before the jury that the appellant and Newson had a common purpose of concealing Newson’s homicide of Ms McBride. The extensive circumstantial material, summarised by Ward P and at [154]-[161] and also referred to at [175]-[193] above, supported an inference that at some time shortly after 2:02 pm on 30 September 2014 Newson killed Ms McBride and thereafter disposed of her body at Owens Gap. When that was coupled with evidence that the appellant had driven Newson to Scone that afternoon, uncontestably to within 17 km of Owens Gap, and had then returned with him to Muswellbrook and driven him around the town as he purported to enquire at hotels and clubs whether anyone had seen Ms McBride, there was a reasonable basis for inferring that the two men had acted in furtherance of a shared purpose of concealment. Newson’s and the appellant’s seemingly coordinated claims to police of having undertaken innocent activities on the afternoon in question and their participation in publicising Ms McBride’s disappearance added to the reasonable evidence of common purpose.
However, the principle in Tripodi v The Queen is not able to be sensibly applied to a case where one party to the putative common purpose, Newson, is a principal offender and the other party, the appellant, is being tried as an accessory after the fact. The appellant’s criminal liability on the accessory charge depends upon proof of the part that he, individually, played in carrying out the apparent common purpose of concealment. The principal offender will in most such cases share the purpose of covering up the crime and will take steps and make statements in furtherance of that objective. It would be an absurd outcome if, by “implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others”, as referred to in Tripodi v The Queen, Newson’s own acts and statements by which he sought to conceal his crime should be imputed to the appellant. That could result in the appellant being convicted as an accessory on the basis of what the principal himself said and did to escape justice, rather than on the basis of what the accessory said and did to aid him.
As an example, Newson’s answers under police questioning and his statements to Ms McBride’s father may have satisfied the jury that he endeavoured to cast suspicion upon Mr Easton as a means of deflecting the murder investigation from himself. If the jury did not find that the appellant had similarly tried to implicate Mr Easton, it would be nonsensical for the appellant to be held liable as an accessory on the basis that Newson’s statements about Mr Easton should be treated as the appellant’s acts because they were made in furtherance of their shared purpose of concealing Newson’s crime.
Having regard to the above, it was appropriate for the Crown not to have relied upon joint criminal enterprise. In the absence of such reliance, the trial judge’s direction with respect to the subject was unnecessary. It was favourable to the appellant in that it set up an additional threshold of proof for the Crown that the Crown should not have been required to meet.
Q. […] Did he say what happened, about her being missing?
A. Yeah he told me that he drove her to her daughter's house, the father's house, she was going to visit her daughter and he dropped her off there and she was meant to meet him at McDonald's afterwards and she didn't show up.
Q. Did he mention a time at which she was meant to meet him?
A. Yeah he was - she was meant to meet him at McDonald's at 2.
[…]
Q. When you were told about the pickup to be at McDonald's, did you ask him some more questions about that?
A. Yeah well I, yeah I asked him why he didn't pick her up from where he dropped her off from.
Q. Yes and what did he say?
A. He said “That’s what Carly wanted.”"
Those answers were significant evidence that Newson understood, from when he left Ms McBride at Mr Easton’s house, that she would meet him at the McDonald’s Restaurant at 2:00 pm, after the access visit. The circumstance that he had such an understanding supported the inference that he left the appellant’s house shortly after 2:02 pm and was able to intercept Ms McBride at some point along her walking route to the restaurant. The distance of 1.5 km would take about 15 minutes on foot. If the jury were satisfied that Newson expected he could find Ms McBride at the restaurant or on her way there at about 2:00 pm, that would support a conclusion that it was feasible for him to have encountered Ms McBride and killed her in the short window of opportunity that was available according to the timing of objectively proved surrounding events.
The probative value of what Newson said to Ms Finch did not depend upon it being true as to Ms McBride having agreed to the rendezvous. The Crown only needed to rely upon Newson’s words as evidence of his own understanding of the arrangement. The Crown case was that he acted upon an expectation of where he could find Ms McBride, which proved to be correct.
Ms Finch was a long-term friend of the deceased. Her phone call to Newson was in response to the Facebook missing person notification, which included Newson’s contact number. Ms Finch was not certain of the date of the call. Admissibility of her evidence depended upon whether the call could be said to have been contemporaneous with Newson having had the state of mind of which he spoke, as to where he expected Ms McBride to go after the access visit on 30 September. The applicable provision is s 66A of the Evidence Act, as follows:
66A Exception: contemporaneous statements about a person’s health etc
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
Ms Finch’s evidence could have been objected to successfully. She was not able to establish reasonable contemporaneity. The phone conversation with Newson may have taken place weeks or months after the time at which his relevant state of mind existed. However, as no objection was taken leave should not be granted for this ground to be argued in circumstances where other evidence, which was admissible under s 66A, was capable of satisfying the jury of the same matter. No miscarriage of justice could have occurred.
The deceased’s mother, Ms Williams, gave evidence, without objection, that she left a message on Newson’s phone at about 9:45 pm on 30 September 2014 and that he called back shortly afterwards. She gave the following answers:
Q. Did he say words to this effect to you: "Carly's gone, Carly's gone. She has got no money"?
A. Yes.
Q. Did he say to you "I was supposed to pick her up at McDonald's. She never got there"?
A. Yes.
Ms Williams was not cross-examined. Newson’s representation that he was “supposed to pick her up at McDonald’s” could only have been a reference to his understanding of the arrangement he had made with Ms McBride the last time they spoke, which was shortly before 1:00 pm. The conversation with Ms Williams was, therefore, within hours of the time at which he had that understanding and should properly be regarded as contemporaneous for the purposes of s 66A. In speaking with Ms Williams, Newson did not nominate a time at which he understood he was to pick her up but the jury were well able to infer that the agreed time must have been 2:00 pm, having regard to Mr Easton’s evidence of Ms McBride’s abrupt departure.
Mr Easton gave the following evidence in chief:
Q. You say that she left at about 2 o'clock?
A. Yes.
Q. How did that come about please?
A. Just grabbed her handbag and said "I'm off."
[…]
Q. And when she said "I'm off", did she mention where she was going?
A. Yes. She just said she's - "I'm off. I'll", something along the lines of "I got picked up from McDonald's."
Q. And did she mention a name in terms of getting picked up?
A. I can't remember.
Q. And can you run us through the time before she left or leading up to that, what was happening there?
A. We were - we were going through these bags and boxes and she was having a keep pile and do what you like with them sort of thing and yeah, just all of a sudden made the call that she was going to head off and I thought whatever, you know.
A. Um, and you don't try and stop her you know, uh-huh.
Q. So, when you said she made the call all of a sudden to leave how what - how exactly did that?
A. Well, it was more like I'm just going to head off, go, go to McDonald's and get Sayle to pick me up from there.
Q. Did she say the reason that she wasn't [sic] get Sayle to pick her up from--
A. No, no just yeah, just said “I'm going to head off, walk to Macca's and get him to pick me up from there.”
A. I think he said he was here to pick Carly up and I said "She left. She was meant to call you" or something along those lines.
Q. Did you say to him where she was meant to call him from?
A. Yes, I said she was - what, what she had said, heading to McDonald's.
[…]
Q. When you said to him, "She was meant to ring you", what did he say?
A. I, I can't remember that one.
I was meant to pick up my fiancé at McDonald’s at 4:00 pm and she wasn’t there.
Ms Hazelton was not required for cross-examination. Although Newson specified to her a later time for the meeting, the significant aspect was that he acknowledged having understood that he would meet Ms McBride at McDonald’s rather than be collected at Mr Easton’s house, as had occurred on previous access visits. The timing of Ms McBride’s departure and her haste provided the basis upon which it was open to the jury to infer that she and Newson had arranged to meet at the restaurant at 2:00 pm. The evidence showed that Ms McBride had no other friends in Muswellbrook and that she made no phone call and sent no message to Newson after setting off from Mr Easton’s house. It was a very strong inference for the jury that a meeting with Newson at McDonald’s at that time was prearranged.
HIS HONOUR: Just before it’s distributed. I'm going to now give you a direction of law concerning this certificate, ladies and gentlemen. The Crown has the onus of proving all of the elements of the offence beyond reasonable doubt and the accused bears no onus to prove anything. The certificate of conviction tendered by the Crown is prima facie evidence that Sayle Newson murdered Carly Dawn McBride on 30 September 2014. Sayle Newson pleaded not guilty to that offence and after a trial, a jury found him guilty on the evidence presented at that trial.
The Crown bears the onus of proving in this trial;
- That the crime of murder was committed by Sayle Newson.
- That the accused intentionally assisted Sayle Newson.
- That at the time of that assistance, the accused was aware of all of the essential facts and circumstances that gave rise to the murder of Carly McBride by Sayle Newson.
- That the accused, with that knowledge, intentionally assisted Sayle Newson.
- That the accused gave that assistance so that Sayle Newson could escape arrest, trial or punishment for the offence committed by him.
You must be satisfied of the first element beyond reasonable doubt, namely, that Sayle Newson committed the crime of murder before you go on to consider the other four elements. The certificate of conviction is prima facie evidence of Sayle Newson’s conviction for the crime of murder. Prima facie means, at first sight or on the face of it and it does not amount to proof beyond reasonable doubt.
You must be satisfied, on all the evidence, including the certificate of conviction, that the first element of the offence has been proved beyond reasonable doubt before you can go on to consider whether the Crown has proved beyond reasonable doubt the other elements of the charge.
The certificate of conviction cannot be used as the only evidence. It is a document showing what others found. You must consider the evidence in this trial when you come to determine whether the Crown have proved the first element of the offence beyond reasonable doubt. You cannot speculate about what others were thinking when determining the question. Equally, you cannot speculate about what evidence they considered. The evidence you must consider is the evidence that comes before you in this trial.
Further, although I'm giving a direction now on how you need to treat the first element of the offence, it's only because the certificate of conviction has been tendered at this stage of the trial. You need to hear all of the evidence in this trial before reaching a decision about the first element of the offence.
Those directions were in accordance with the pre-Evidence Act authorities. In summing up the learned judge repeated them, verbatim. Despite the qualification about the jury not knowing what evidence had been tendered in Newson’s trial and the instruction not to speculate about what the jury in that trial “were thinking” when they found Newson guilty of murder, there is a significant likelihood that the jurors before whom the appellant was tried were influenced by knowledge of the Newson verdict coupled with the above direction. Although they were told that they “need to hear all the evidence in this trial before reaching a decision” about whether Newson committed the principal offence and that that element had to be proved by the Crown beyond reasonable doubt, the direction also included that the certificate of conviction “is prima facie evidence that [Newson] murdered Carly Dawn McBride on 30 September 2014”. The evidence tendered against the appellant to prove that Newson had committed the murder was circumstantial. It was a strong circumstantial case but the jury would have been given a substantial inclination to accept it and to exclude any other reasonable hypothesis by the circumstance that another jury had reached that conclusion, which this jury was told could be treated as some evidence “at first sight or on the face of it”.
The question whether Newson had committed the murder was the decisive issue in the case. If he killed Ms McBride he could only have done so in a brief interval of time shortly after 2:00 pm on 30 September 2014. He would have to have disposed of the body between then and about 4:40 pm. On the appellant’s answers to police questions concerning his own movements, it was uncontested that he was with Newson throughout that afternoon. If Newson was the murderer then, on the appellant’s admission that the two of them had driven to Scone together that afternoon and on the evidence as to where the body was disposed of, it was a compelling inference that the appellant must have learned of the murder soon after it occurred and immediately commenced to aid Newson in covering it up.
It follows from my conclusion on ground 1 that the jury came to consider the critical first element of the charge upon the basis of a consideration that they were directed to take into account and that would likely have influenced them but that should not have been before them at all, according to s 91(1) of the Evidence Act. In Hofer v The Queen [2021] HCA 36 at [123] Gageler J (as his Honour then was) said this:
[An] error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had.
The irregularity of directing the jury, contrary to s 91(1), to treat the certificate of Newson's conviction by another jury as evidence that he committed the principal offence was in my view a miscarriage of justice in that sense.
For the purpose of determining whether the proviso should be applied, I assess the error of law as “a serious breach of the presuppositions of the trial”: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [46]. It was an error of such consequence and involving such a departure from the essential requirements of a fair trial that the operation of the proviso is excluded: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [23] (Gleeson CJ and Kiefel J). The critical issue in the case was left to be determined by the jury taking into account an extraneous matter, of potentially significant influence, that by law they should not have been told about or should have been directed to disregard. That being the nature of the error, I am not able to say that no substantial miscarriage of justice actually occurred.
A retrial should be ordered because a fresh jury trying the accessory charge without the certificate of conviction and having no knowledge of Newson’s conviction – or, if they should learn of it, receiving a direction not to act upon it – would be well entitled to find the commission of the principal offence proved beyond reasonable doubt on a Crown case limited to admissible evidence. That would be so even if defence counsel in a retrial should successfully object to the evidence that has been considered above in connection with grounds 4-6 and 8.
In a retrial there should be a direction to the jury that, in deciding whether the appellant carried out acts of assistance to conceal the murder, they would have to be unanimous as to at least one particular of assistance. No point was taken in the appeal concerning the absence of such a direction from the summing up. The Crown is in a position to tender substantial evidence of assistance by the appellant and the requirement of unanimity on at least one particular would not be an impediment to a viable prosecution case.
I propose the following orders:
Grant leave to appeal against conviction on grounds 3 and 9.
Refuse leave to appeal on grounds 2 and 4-8.
Uphold ground 1 and allow the appeal.
Order that the conviction be quashed and that there be a new trial.
**********
Cunneen
R [2024] NSWCCA 38
(1988) 165 CLR 87
(2008) 232 CLR 438
(2019) 268 CLR 57
(2021) 274 CLR 531
(2021) 274 CLR 351
(2018) 265 CLR 196
(2007) 230 CLR 559
(1994) 181 CLR 487
(2020) 268 CLR 123
(2018) 100 NSWLR 314
(2011) 243 CLR 400
(2016) 258 CLR 308
(1961) 104 CLR 1
(2005) 224 CLR 300
(2000) 2 Qd R 257
First, as to Newson's self-reported aggressive attitude toward Mr Easton as going toward a propensity and capacity to act violently (the appellant referring in particular to Newson’s answer to Q135 and the Crown’s closing address at 14/06/22, T 1069.34).
Second, Newson’s statements in the interview that were available to prove Newson’s jealousy, which the Crown suggested was a possible motive for the murder (the appellant referring to 14/06/22, T 1072ff). The appellant notes that part of the evidence relied upon was Newson's version of the closing of Ms McBride's Facebook account. The appellant accepts that it was open to the Crown to prove, as against the appellant, that Newson was of a jealous disposition (noting that the Crown called Newson’s partner at the time of his arrest, Ms Shannon McAlpine, to adduce such evidence – see 01/06/22, T 776ff). However, the appellant says that it was not open to the Crown to prove such a disposition by Newson's own representations. The appellant says that the statements made by Newson as to his engagement with Easton on 30 September 2014 (to the effect that Newson wanted to pull Easton outside and beat him senseless) amounted to an admission by Newson (i.e., an out of court statement against his interests) that was not admissible against the appellant to prove Newson’s violent disposition and tendency (see AT 14.22).
Third, the statement by Newson that Mr Easton had told him that Ms McBride was going to ring him (i.e., Newson), which Newson then corrected to being that Ms McBride was going to ring “someone” (see T 1083.25ff), a statement which the Crown characterised as Newson having “tripped himself up”. The appellant says that any lie by Newson, evidencing his consciousness of guilt or damaging his credibility, is not admissible against the appellant; nor was Newson's credibility at issue in the trial against the appellant.
The appellant argues that the difficulty with the admission of the material the subject of ground 4 is compounded by the misdirection the subject of ground 6 (see below).
The Crown, in its written submissions, addressed grounds 4 and 5 together, noting that since no objection was taken at trial to the admission of either of the Newson records of interview, leave is necessary to bring these grounds. In that respect, the Crown submits that the fact that defence counsel had reviewed the transcripts before their tender and had requested a number of edits to the transcripts (to remove objectionable or irrelevant material) weighs against the grant of leave now to argue that additional objections ought to have been taken.
The Crown points out that the appellant was on notice that the Crown intended to rely on some of Newson’s statements for a hearsay purpose, pointing to the Crown’s statement in opening that (see T 42.47-43.2):
Further, the Crown argues that there was a potentially forensic reason for the appellant to retain Newson’s assertions in the interviews about Mr Easton, given that Mr Easton may have appeared to be a credible alternative suspect whom the Crown was required to exclude, and that it was a key part of the defence case that the Crown could not do so. The Crown says that statements suggesting violent instincts on Newson’s part directed at Mr Easton could equally be relied on by the appellant’s counsel as suggesting genuine anguish and concern on Newson’s part as to Mr Easton’s potential involvement in his partner’s disappearance.
Second, as to Newson’s statements suggesting jealousy on his part, the Crown says that, to the extent that Newson’s statements might have been available for a hearsay purpose, evidence of Newson’s jealousy and state of mind was admissible under s 66A of the Evidence Act. The Crown submits that the police interviews (particularly the first, having taken place on 3 October, within four days of Ms McBride’s disappearance) were sufficiently contemporaneous to satisfy the requirements of s 66A. (The appellant cavils with this proposition, arguing that there was insufficient contemporaneity). In any event, the Crown submits that, once in, the evidence was admissible for all purposes in the absence of an application to limit its use under s 136 of the Evidence Act.
The Crown says that there was no reason why statements by Newson which suggested jealousy ought to have been the subject of objection where there was other evidence from which that conclusion could have been drawn, referring to the evidence of Ms McAlpine and to the evidence from Ms McBride’s mother that she believed Newson to be “controlling” in the relationship with her daughter (23/05/22, T 315.35). The Crown also notes that in opening address the defence counsel sought to distance the appellant from any jealousy or controlling behaviour on the part of Newson (see at 16/05/22, T 67.18-21), it there being said that “[a]ny Facebook activity created by others has nothing to do with [the appellant]”.
As to the third matter to which the appellant points in relation to ground 4 (the statements that the Crown submitted amount to Newson having “tripped himself up” in his first police interview), the Crown says that this submission was open (given that it was consistent with a body of other evidence to the effect that Newson did have a plan to meet with Ms McBride around 2:00 pm that day). The evidence to which the Crown here refers includes that of Ms Nicole Finch (that the appellant complains was inadmissible against him – see below).
The Crown says that, once allowance is made for the admissibility of statements by Newson for non-hearsay purposes and as exceptions to the hearsay rule, there were not any (or at best only limited) portions of the interviews relied on solely for their truth.
As to the evidence of what Newson told the police in the second interview (and why he lied in the first interview), this is again relevant to the allegation by the Crown that the appellant assisted Newson by concocting the “common story”. As the Crown submits, the intercepted conversations between the two needed to be understood in the context of what each of them had told the police in their recorded interviews; and the appellant’s acts of assistance could not be understood without reference to what Newson had told police.
Therefore, no miscarriage of justice has been established and leave to raise grounds 4 and 5 should not be granted pursuant to r 4.15 of the Criminal Appeal Rules.
The Crown submits that the direction given by his Honour correctly distinguished between the admissibility of statements or acts by Newson for the purpose of proving the existence of an agreement, on the one hand, and the admissibility of statements or acts for the purpose of proving the appellant’s participation in that agreement, on the other hand (referring to the second paragraph of the directions extracted at [41] above). The Crown says that this is consistent with principle (the Crown citing R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 at [38] per Simpson AJA, with whom Johnson and Harrison JJ (as his Honour then was) agreed, and referring to s 87(1)(c) of the Evidence Act).
Insofar as the appellant’s complaint is as to the reference to the agreement being “still active” (see the first paragraph extracted at [41] above) the Crown submits that, on a fair reading, this was merely a shorthand reference that was not intended to be a complete statement of the applicable principles and that this was more fully explained in the second paragraph extracted at [41] above. The Crown argues that it was correct that statements made by Newson were admissible only if the agreement was still active (or the common purpose was still on foot) and that the directions correctly made clear that it was only if the statements or acts by Newson were found to be “for the purpose of carrying out the agreement” that they could be used as evidence of the appellant’s participation.
In response, the appellant maintains that the two paragraphs of this direction speak about different things (see AT 15.46ff): the first, speaking to the exception to the general rule (and incorrectly omitting reference to the requirement that the acts or words be in furtherance of the agreement); and the second, telling the jury that if Newson’s statements were made for the purpose of carrying out the agreement they could be used as evidence of the appellant’s participation in the agreement. The appellant says that the second statement neither explains nor qualifies nor says anything about what had earlier been said (to the effect that if the jury found there was an agreement and it was still on foot, anything Newson said, such as his statement to Ms Finch, could be evidence against the appellant).
The Crown points out that it was a central feature of the Crown case that the appellant and Newson formed an agreement to falsify Newson’s whereabouts to exclude or eliminate his contact with Ms McBride after 12:45 pm on 30 September 2014; and that, to establish that agreement, the Crown relied in part on similarities between the statements made by Newson and the appellant in their respective recorded interviews with police about their movements that afternoon.
The Crown says that the interviews, in combination with other evidence including the telephone intercepts, were capable of supporting findings that an agreement or common purpose existed between the two and that Newson then made representations to advance the object of the agreement such that those representations were able to be attributed as admissions to the appellant (though noting that the Crown did not contend in closing that they were “admissions” as such). In those circumstances, the Crown argues that the direction at summing up at 14/06/22, T 140 was largely of no moment. The Crown says that it would have been clear to the jury that the Crown relied on Newson’s interviews to show that the two men “had put their heads together” and the Crown argues that it was open to the jury to reject or accept the Crown’s submissions.
The Crown notes that to the extent that what Newson said departed from what the appellant said, the Crown did not rely on those statements as admissions; rather the Crown contended that the respective accounts differed only in detail (consistent with the two having married up the main aspects of their accounts), referring to the Crown submissions to the jury at 14/06/22, T 1089-1090. The Crown says that this was consistent with the use of the interviews as circumstantial evidence to prove the combination between the two men.
The appellant maintains that neither Ex BO nor the evidence of Ms Patterson was admissible in the case against him.
The Crown says that, consistent with the defence counsel’s opening (referred to above at [15]) in which it was said that any infidelity on the part of Newson had nothing to do with the appellant, a decision appears to have been made by defence counsel not to object to this evidence but to distance the appellant from it. The Crown submits that in those circumstances the appellant has not established that its admission gave rise to any miscarriage of justice.
The Crown says that, in any event, the appellant has not established that the admission of the evidence resulted in a miscarriage of justice warranting leave to argue the point on appeal. It is noted that defence counsel had the opportunity to make submissions at the trial as to a form of direction to be given in relation to the text message (10/06/22, T 1054-1055); and that both counsel made submissions to the jury in their closing addresses as to how the message might be interpreted (14/06/22, T 1106, 1161).
In that regard, the Crown notes that the defence counsel pointed to the unlikelihood of the message being an admission to involvement in Ms McBride’s disappearance in light of the surrounding messages and their tone; and said that the suggestion that the appellant would describe Newson as a “straight up person” was implausible. Defence counsel also submitted to the jury (as the appellant does here) that (see at 16/06/22, T 1163):
From this, the appellant argues that the Crown theory therefore requires that: Newson left the appellant's home shortly after 2:02 pm; that, without any means of knowing that Ms McBride had left Mr Easton’s, he met her “by happenstance” (the appellant emphasising here his contention that there was no evidence properly admissible against the appellant of any prior arrangement for Ms McBride to meet Newson at McDonald’s); that Newson formed a murderous rage (presumably, the appellant says, through jealousy); that Newson found a location in Muswellbrook where he could visit extreme physical violence upon Ms McBride; that Newson did so in such a way to avoid any blood staining on his clothing which would have required him to change his clothing (noting that CCTV stills show Newson wearing the same T-shirt throughout the whole day – see Exs V, X, Z, AD and AE); that Newson’s proficiency with the heavy punching bag was such that he was capable of inflicting the injuries sustained by Ms McBride; that Newson placed Ms McBride in his vehicle; that Newson returned to the appellant's home and enlisted his help; that Newson’s timing was such that he avoided meeting Mr Palmer; and that Newson and the appellant then travelled north toward Scone, coming within the range of the Scone Mountain Tower by 2:48 pm.
The appellant says that on the Crown case the murder must have been committed between about 2:10/2:15pm and 2:30pm (that being the time that the two would need to have left Muswellbrook to be in the range of the Scone Mountain Tower by 2:48pm).
The appellant says that the evidence was incapable of establishing directly that Ms McBride died on 30 September 2014 or any other date; and that the evidence was incapable of establishing that her body was deposited at Owens Gap on that or any other date.
As to the location of the murder, the appellant says that it is difficult to imagine this taking place in a public place; that it would scarcely be possible in a car; and that it was not at the appellant's home (since Mr Palmer was there from about 2:13pm to 2:25pm).
The appellant says that the opportunities to which the Crown points for Newson and the appellant to dispose of Ms McBride's body are thus between 2:48 pm and 3:36 pm (the appellant’s phone being within range of the Scone Mountain cell tower at both times) or between 3:36 pm and 4:32 pm (the appellant being at the Susan St Scone cell tower for the latter). The appellant says that the lack of precision as to the coverage of the Scone Mountain tower makes any such assertions highly dubious. Further, the appellant says that the Crown’s assertion that part of the appellant's assistance to Newson was to join with him in providing a false alibi sits ill with the proposition that they both deliberately placed themselves in Scone without any apparent necessity to do so. (This last submission is somewhat circular in that on the Crown case it would have been necessary for Newson to dispose of Ms McBride’s body somewhere; and the Owens Gap location, with which Newson was familiar, puts both Newson and the appellant in the general location of Scone and away from Muswellbrook.)
The appellant says that the Crown evidence concentrated upon excluding as suspects a number of Ms McBride’s acquaintances but that the evidence did not directly rule out the possibility that Ms McBride met her death at the hands of a stranger.
Further, the appellant says that a supposition that the state of Ms McBride’s clothing (i.e., the fact that her jeans were done up – 16/05/22, T 92.50ff) points away from a possible sexual motive for Ms McBride’s murder requires the additional assumption that no interval passed between her disappearance on 30 September 2014 and her death.
It is noted that the Crown relied on six particulars of assistance given by the appellant as constituting the actus reus of the accessorial liability offence (see as set out by Fagan J at [195](2) below).
As to the reliance by the Crown on the allegation that the appellant had deleted digital data from his phone to conceal location for the period 17 February 2014 to 8 November 2014 (noting that Newson's phone had a similar gap from 18 September to 2 October 2014), the appellant says that the evidence does not justify a positive finding that, in either case, data was intentionally deleted. The appellant says that it was clear from the evidence of DSC Northey (06/06/22, T 947.18) that the reason for the absence of such data could not positively be determined; that it may have been retrospectively deleted or it may have been turned off and not turned back on. The appellant submits that the gap in the data on the respective phones is co-incidence. While he accepts that the co-incidence that those phones have a gap which includes the relevant day (30 September 2014) is capable of being a circumstance in furtherance of an agreement (to dispose of the body and evade apprehension) the appellant says that it is a very weak one (see AT 27.5ff) on which not much weight can be placed because it is not known who is responsible for the deletion of data on Newson’s phone. (In that regard, in the context of the cropping of the photo of Ms McBride, the appellant told the police that Newson was “pretty dumb with phones” and did not know how to use anything – Q386), which might suggest that any intentional deletion of data was not done by Newson; but this is speculation. The appellant’s argument is that, while there is a co-incidence in the deletion of the data, it is not established how it occurred or that it was being done in concert.
In the case of his own phone, the appellant says that the precipitating action for the absence of location data appears to be the connection of his phone to a mobile wi-fi dongle on 17 February 2014 (after which location data remained unavailable until 8 November 2014). The appellant says that, whatever may be the case with Newson’s phone, it cannot reasonably be asserted that any action was taken by the appellant, retrospectively, to delete such data. Further, the appellant says that the dates for which data was unavailable themselves make no sense (the appellant’s data being unavailable since February 2014 whereas Newson’s data was unavailable from September 2014); and that it is overwhelmingly more probable that location data on the appellant’s phone had been off since 17 February, rather than there being any attempt for the appellant to delete data in concert with Newson.
With respect to the allegations that the appellant: supported Newson’s search efforts, supported his attempts to defect suspicion onto others and discussed the investigation with him, the appellant says that there is a total absence from the evidence of any positive act (or statement) by the appellant (in any of these regards), which had the capacity to assist Newson to avoid arrest, trial or punishment. It is noted that accessorial liability requires an actus reus which must be a positive act and which must have such a capacity.
Thus, it is said that the evidence properly admissible against the appellant was incapable of supporting his conviction.
In response, on the unreasonable verdict ground the Crown makes the following submissions, proceeding on the assumption (in light of the Crown concession on ground 1) that the relevant question is whether, on the whole of the evidence excluding the certificate of conviction in respect of Newson, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
As to when the murder occurred, the Crown submits that, while there was no direct evidence that Ms McBride was murdered on 30 September 2014, the evidence was capable of establishing this fact beyond reasonable doubt. In this regard, the Crown points to the following matters. First, the absence of any credible sightings of Ms McBride after that date, despite a comprehensive investigation. (Counsel for the appellant, in oral submissions on this application, made clear that he did not suggest that there was any credible sighting of Ms McBride.) Second, that the remains of clothing found with her body (yellow weathered material, deteriorated denim jeans and sandals) were the same clothes that Ms McBride wore on 30 September 2014. Third, the absence of any connected calls to or from Ms McBride’s mobile phone (which was never found) nor any outgoing messages after that date. The last activity on Ms McBride’s phone was a call at 11:52 am on 30 September 2014 to the appellant, which the Crown says it can be inferred was made by Newson using Ms McBride’s phone before he dropped her off at Mr Easton’s house. Fourth, that Ms McBride’s mobile phone remained connected to the same phone tower in Muswellbrook between 1:32 pm on 30 September 2014, when an incoming message was received from her mother, and 7:45 am on 1 October 2014, which was the last time an activation of the device was connected to a cell tower. The Crown says that this shows that the phone remained in Muswellbrook where it eventually stopped working. Finally, that there were no banking transactions (the Crown noting that it was not in dispute that Newson was in possession of Ms McBride’s debit card, which was her only bank account) (30/05/22, T 672). This last point is relied upon by the Crown to say that Ms McBride did not have the means voluntarily to disappear.
The Crown says that the evidence of Mr Palmer established that Newson had an opportunity to commit the murder; pointing to the evidence that Newson was at the appellant’s house at 2:02 pm (when he recorded the short video on his own phone) (see 3/06/22, T 900.30-33; Ex CM) and to Mr Palmer’s evidence that Newson was not there when he came to visit the appellant at the appellant’s house for a brief time shortly after 2:13 pm (see 27/05/22, T 604.46-605.20). The Crown notes that Mr Easton’s evidence was that Ms McBride left his house at around 2:00 pm to go to McDonald’s (see 25/05/22, T 503.26), which the Crown says is consistent with Newson no longer being at the appellant’s house when Mr Palmer arrived.
The Crown refers to the fact that Newson himself confirmed in his first interview with police that Mr Easton told him, when he arrived at Mr Easton’s house later in the evening, that Ms McBride had left at about 2:00 pm to meet him (which the Crown relies on as corroborating Mr Easton’s evidence in this respect). The Crown points to evidence (admitted without objection at the trial) that Newson made comments to others suggesting there was a plan for him to meet Ms McBride. As already referred to (see ground 6 above), Ms Finch gave evidence that Newson told her that he was supposed to pick Ms McBride up from McDonald’s at 2:00 pm but she had not showed up (01/06/22, T 765.5-9). The Crown also points to the evidence of Ms Lorraine Williams, Ms McBride’s mother, that Newson told her in a conversation on the night of 30 September 2014 “Carly’s gone, Carly’s gone. She has got no money… I was supposed to pick her up at McDonald’s. She never got there” (23/06/22, T 318.41-46); and to the evidence of Ms Vivian Hazelton (in her statement admitted as Ex BF) that she worked at the Railway Hotel in Muswellbrook and that at about 5:50 pm on 30 September 2014 a male (by inference Newson) said he was meant to pick up his fiancée at McDonald’s at 4:00 pm and she was not there (see Ex BF at [12]).
The Crown notes that Newson told police during his first interview on 3 October 2014 that he dropped Ms McBride off around 11:30 am and would generally have picked her up from Mr Easton’s house at 2:30 pm; and that Ms McBride would usually have sent him text messages or called him while she was at Mr Easton’s house (see Q120-122). The Crown notes that there was no evidence that on this date Newson attempted to contact Ms McBride, and argues that this indicated either a pre-arrangement, or a plan by him, to meet Ms McBride at the end of her visit (i.e., that it was not a meeting “by happenstance” as the appellant’s submissions suggest).
The Crown says that Mr Palmer’s evidence alone could establish that Newson left the appellant’s house shortly after 2:00 pm and had the opportunity to meet up with Ms McBride but that, combined with the body of evidence as to there being such an arrangement, it was well open to the jury to conclude that Newson did so and intercepted Ms McBride shortly after she departed Mr Easton’s residence. It is noted that CCTV footage at McDonald’s in Muswellbrook did not show either Newson or Ms McBride, indicating that she did not reach that location after leaving Mr Easton’s house.
As to motive, the Crown says that Newson’s jealousy was a credible motive. In this regard, reference is made to the messages Newson had sent to Ms McBride in August 2014 that showed his aggression towards her (see Ex O); the evidence that, in the days leading up to her disappearance, Ms McBride told her neighbour (Ms Shayne Bagnall) on 26 September 2014 that she had had an argument with her boyfriend Sayle Newson, had not seen him for three days and did not know where he was (23/06/22, T 334.31); and that a friend of Ms McBride (Mr Christian Bower) gave evidence that Newson was ringing Ms McBride “flat out” when she was in his company on 27 September 2014 (25/05/22, T 431.16-19).
The Crown also notes that on 27 September 2014 Ms McBride was meant to spend time with Mr Troy Moffitt, another man she had met “in rehab”, and that Ms McBride’s father gave evidence that she suddenly cancelled the plan because Newson came to pick her up (Ex BK regarding Mr Moffitt’s evidence; 27/05/22, T 595.22). Ms Bagnall gave evidence that, on that day, Ms McBride had asked to use Ms Bagnall’s phone and that when Ms McBride got off the phone to Newson she was “quite agitated” (23/05/22, T 336.26). Ms Bagnall gave evidence that after that she was told by Ms McBride’s father that Newson had picked her up (23/05/22, T 336.32).
The Crown notes that on 29 September 2014, Newson caused Ms McBride to delete her Facebook account. For this, the Crown relies on the evidence at 23/05/22, T 341.38-40 as to when the Facebook account was deleted; Mr Williamson’s evidence at 2/06/22, T 828ff as to the deletion of Ms McBride’s Facebook account; and Newson’s account of Ms Bride deleting her Facebook (at Ex AU p 60).
The Crown submits that the evidence that, before Newson dropped Ms McBride at Mr Easton’s house, Ms McBride changed from a dress into denim jeans and the yellow top was consistent with Newson’s jealousy of her (14/05/22, T 1081); and notes that Ms McBride’s mother gave evidence that Newson was “very controlling” with Ms McBride (23/05/22, T 313.20).
The Crown says that it was open to the jury to conclude that Newson had the means physically to attack Ms McBride, having regard to evidence from three other residents of Dooralong who observed him practising martial arts in the gym (see 19/05/22, T 280; 24/05/22, T 366-367; 372-373; 31/05/22, T 680).
The Crown’s case was that, by 2:48 pm on 30 September 2014, the appellant and Newson were together again and either in or driving towards Scone (noting that the appellant’s phone connecting to the Scone Mountain Tower at 2:48 pm). The Crown accepts that there were no coverage maps adduced to determine the distance that the appellant may have been from Scone for this to have been the case, but points out that there was evidence that generally a phone would connect to the nearest available tower (see 17/05/22, T 200.27). In any event, the Crown says that there was an opportunity for Newson to have committed the murder some time between 2:02 pm and 2:48pm. (Of course, insofar as the Crown case was that the murder was committed in Muswellbrook, this reduces the relevant time frame for the murder to between 2:02pm and around 2:25/2.30pm.)
The Crown emphasises that Newson made no attempt to contact Ms McBride throughout the day despite asserting in his first interview with police that he thought it was “fuck[ing] weird” that he had not had any contact from her (see his first police interview on 3 October 2014; Ex AU p 17). The Crown says that, although Newson said he had no credit on his phone, it was open to him to use the appellant’s phone and there was evidence that this had previously been done (referring to Ex AJ). It is noted that Newson suggested in his second police interview that he may in fact have had “text credit” on the phone (see Ex CT p 86). The Crown points out that the earliest evidence of any attempt to contact Ms McBride was at 5:39 pm using the appellant’s phone (see Ex AH; Ex DF).
The appellant’s father gave evidence that, when he arrived home from work on 30 September 2014 (at around 5:45 pm), the appellant told him that Newson could not contact Ms McBride and that she was “missing” or that they could not find her (see 3/06/22, T 912-913). The Crown says that, by that point, it cannot have been known to Newson that Ms McBride was “missing” (unless he was responsible for this) because, on Mr Easton’s evidence, Newson did not attend Mr Easton’s house (purportedly to collect her) until at least 6:00 pm that day (see 26/05/22, T 517.10-11).
The Crown also refers to the evidence of Ms Hazelton as giving rise to an inference that Newson had attended the Railway Hotel at around 5:50 pm (which she associated with a television show playing at that time) to look for Ms McBride, noting that this was at a time when he not yet been to Mr Easton’s house (see Ex BF).
The Crown also refers in this context to the evidence that digital images of Ms McBride located on a SD card found in Newson’s vehicle had been edited (cropped) at 5:17 pm on 30 September 2014 and a new file created with a new filename (see 3/06/22, T 897-899; Exs CK and CJ). The SD card had been connected to the same model Samsung phone as that found in Newson’s possession. The Crown case was that Newson, while in the appellant’s company, created the images to use in the search for Ms McBride, and that Newson was aware of the need for the photographs before he could (on the account he gave to the police) have known Ms McBride was missing (again noting that Newson did not attend Mr Easton’s house until at least 6:00 pm).
In relation to the digital evidence the Crown notes the following. First, that metadata for the photographs established that the photos had been taken earlier in the day between 12:01 pm and 12:02 pm (see 3/06/22, T 894-897 per a digital forensics expert, Sergeant Webb). Second, that while there was a challenge to the accuracy of the timestamps on the photographs, there was ultimately no basis to doubt their accuracy because Ms McBride was holding a can of “V energy” drink in the photographs, and “V energy” drinks had been purchased at 11:37 am at the service station in Singleton (18/05/22, T 219; Ex W). The Crown points out that, had the photographs been taken half an hour earlier, Newson would not yet have purchased the energy drinks; and had the photographs been taken anywhere between half an hour and one hour later, Ms McBride would have no longer been in the car. Thus, it is submitted that it was open to the jury to conclude that the timestamps must have been accurate.
The Crown notes that there was additional evidence of images and video on the SD card whose timestamps coincided with objective evidence (including speed camera detection) to establish the accuracy of the time stamps. Thus the Crown says that it followed that the time of editing of the relevant file (5:17pm) was accurate.
The Crown also points to evidence that: Newson contacted Mr Robert Etheredge, who ran a business involving the replacement and fitting of internal car parts, on 1 October 2014 (see 9/06/22, T 1029.30); and that Newson was in the vicinity of his business on 5 October 2014 with Ms Tanya Chilcott, which the Crown says was capable of suggesting that Newson had in some way modified his vehicle (though it is noted that Mr Etheredge denied this in his evidence) (see 9/06/22, T 1029-1030; Ex CO, 13/05/21, T 1120). The Crown emphasises that the call to Mr Etheredge was made around 15 minutes after Newson had attended Muswellbrook Police Station and had advised police that Ms McBride may be with a former partner, Mr Moffitt.
The Crown says that there was other evidence of Newson acting in a way that was consistent with knowing that Ms McBride was dead (as opposed to missing) in the days after her disappearance. In that regard, the Crown notes that Newson told Senior Constable Dennis at 1:30 pm on 1 October 2014 that the police were “looking for a dead body” (see 27/05/22, T 592.10-17).
In addition, the Crown points to the extensive evidence of Newson attempting to implicate Mr Easton (referring to his police interviews as the most notable in that regard).
As to whether the Crown had excluded reasonable hypotheses consistent with innocence, the Crown notes that the key issue at the trial was whether the Crown had excluded the involvement of Mr Easton in Ms McBride’s disappearance. The Crown in closing address told the jury that the jury would have to be satisfied that “it was not Andrew Easton” and “be satisfied that the Crown eliminated this alternative hypothesis, as it has done in relation to other potential suspects” who committed the murder (see 14/06/22, T 1067.30-42).
With respect to Mr Easton, the Crown says that there was extensive evidence of enquiries that the police made, including checks on the movements of his car and his mother’s car, the use of telephone intercepts from 20 October 2014 with nothing of interest identified, and searches of his home and vehicle between 23 October 2014 and 21 November 2014. The Crown says that the communications between Mr Easton and Ms McBride about contact visits regarding their daughter had been amicable (referring to the text messages exchanged between the two (Ex AV) and the summary of Ms McBride’s visits to Muswellbrook (Ex S)).
The Crown says that, despite Newson telling police in his interview that Mr Easton had told him that he fought with Ms McBride during the visit: Mr Easton denied this in his evidence; contemporaneous statements by Newson did not refer to any such thing; and other witnesses gave evidence that supported the credibility of Mr Easton’s account (such as Mr Williamson, who heard Newson ask Mr Easton on the night Ms McBride went missing what happened before she left the house and Mr Easton said they had not fought at all and everything was fine) (see Mr Williamson’s evidence at 2/06/22, T 827.25ff). It is noted that this contradicted Newson’s later account to police.
The Crown emphasises that Mr Easton was called in the Crown case and the jury had the opportunity to see him and assess his evidence. The Crown submits that Mr Easton presented, through his testimony and the evidence of his past communications with Ms McBride and involvement with their daughter, as a reasonable and decent person. The Crown says that, having regard to the other evidence, the jury must have excluded his involvement beyond a reasonable doubt. (Counsel for the appellant, in oral submissions on this application, made clear that he did not suggest that Mr Easton is a suspect.)
As to any other suspects, the Crown says that there was no evidence to suggest that anyone else known to Ms McBride was in Muswellbrook at the time of her disappearance.
Turning to the question of the appellant’s knowledge, the Crown submits that, if the jury were satisfied that Newson had murdered Ms McBride, and that the murder occurred on the afternoon of 30 September 2014 as alleged by the Crown, then there was an overwhelming inference that the appellant had knowledge of the murder given that he was with Newson throughout that afternoon but for the (short) period after 2:00 pm. It is noted that the appellant was (both on his version of events and that of Newson) with Newson at 5:17 pm (which was the time that the images of Ms McBride were edited). The Crown says that the same inference arose if the jury were satisfied that the appellant had driven with Newson to Owens Gap in order to dispose of Ms McBride’s body.
The Crown points to the fact that there was extensive contact between Newson and the appellant on the evening of 30 September 2014 and into the following morning, including calls at 10:12 pm and 11:32 pm, and at least eight text messages exchanged between 11:33 pm and 1:02 am (none of those text messages being recovered from any devices) (Ex P; 17/05/22, T 202-204; 18/05/22, T 252-253).
The Crown relied on other evidence that it says was capable of establishing that the appellant’s knowledge of the murder overlapped with the acts of assistance relied on by the Crown, arguing that if the jury were satisfied that the appellant had deleted data from devices then it would be open to infer that he did so because he was aware of the murder. It is noted that the appellant admitted to deleting some messages with Ms McBride on his phone, being messages he said were sent by Newson on the afternoon of 30 September 2014 (see Ex BJ, Q382-386). The Crown notes that Ex AJ established that one message said to have been sent by Newson to Ms McBride was recovered on the appellant’s phone.
It is also noted that the appellant admitted, in his second and third police interviews that he had lied in his first interview about his and Newson’s movements on 30 September 2014; and accepted that he omitted to mention travelling to his parent’s farm that afternoon (Ex CZ, Q491) and to a storage shed he had in Scone (Ex DE; Q531). The Crown says that it was relevant to the appellant’s credibility that he omitted significant details as to his movements with Newson from his original account to police, in circumstances where he had the opportunity to give a detailed, voluntary account. The Crown says that the crux of the “false alibi” was the suggestion, implicit in both the appellant’s account and that of Newson, that the two were together all afternoon, leaving only to go to Scone (which was contradicted by Mr Palmer’s evidence), meaning that Newson could not have had an opportunity to commit the murder.
The Crown says that the appellant’s argument on this appeal that this was no alibi is not sustainable because being in the appellant’s company throughout the afternoon (if true) eliminated the possibility that Newson picked up Ms McBride after she left Mr Easton’s residence. The Crown case was that their attendance in Scone would provide an alibi, on the expectation that the body would not be located.
The Crown says that the ways in which the police interviews of the appellant and Newson supported the existence of a combination between the two men to advance a false alibi, and more generally supported the appellant’s knowledge of the murder, included the following.
First, that both told police that Newson attended the appellant’s house, that they then went for a drive on the “backroads” for a period of time and then returned to the appellant’s house where Newson worked in the appellant’s shed on some of the appellant’s equipment, after which Newson left to pick up Ms McBride from Mr Easton’s house; that both said Newson returned stressed that Ms McBride was not present and that they drove around Muswellbrook to check pubs. It is noted that neither mentioned in their first interview that they attended the appellant’s father’s farm at Gundy Road (although Newson referred to going to “the farm” which appears to be a reference to going there generally as an activity he and the appellant would do together) or to the appellant’s leased storage unit in Scone; and neither mentioned Mr Palmer visiting the appellant’s house (who said he saw no-one but the appellant there).
Second, that they were both vague about the timing of their movements and attendance at places. It is noted that in his first interview, Newson told police: that he stayed at the appellant’s house for a few hours following which he and the appellant went for a drive, he did not know where; that the appellant had just got his licence back and they took the backroads (i.e., the sealed roads between horse studs); and that they were not gone for long, for “about an hour” (Ex AU, Q171). The Crown submitted that Newson was deliberately distancing himself from Muswellbrook (and from the possibility that he had picked Ms McBride up).
Third, that although both made statements to police consistent with Newson being concerned about Ms McBride’s lack of contact with him before 5 pm on the day she went missing, a text was sent to Ms McBride’s mobile phone from the appellant’s phone at 5:45 pm saying “Hey how [yo]u guys trav[elling?] [I’]m not hurryin[g] [yo]u along cause we can stay all night” (see Ex AJ). The Crown says that this text, which suggests Newson was enquiring how long Ms McBride would be at Mr Easton’s house, was highly suspicious given the evidence that he had already cropped a photo of Ms McBride at 5:17 pm and that the appellant had told his father at around 5:45 pm that Newson’s girlfriend was “missing” or that they could not find her (3/06/22, T 912-913).
The Crown argues that in later interviews the timing of when the appellant and Newson each said that Newson was first concerned about Ms McBride being missing that day shifted to an earlier time. In his first interview Newson said he became concerned when he went to Mr Easton’s house (which was around 6:30pm) and was told that Ms McBride had left at 2:00 pm, but that in his second interview he said he had considered it “very, very abnormal” that he had no messages from Ms McBride earlier in the afternoon and that he thought he had tried to call her before he and the appellant went to McDonald’s in Scone; and that the reason he went to Mr Easton’s was because he was “anxious” about Ms McBride (Ex CT, Q698-703). The appellant said in his first interview that Newson was worried when they had returned to the appellant’s house and he had not received any contact (Ex BJ, Q399-424); but in his second interview, the appellant said that Newson told him before they went to McDonald’s (in Scone) that it was weird that Ms McBride had not contacted him, and that he indicated concern on their way back to the appellant’s house (Ex CZ, Q256-264).
The Crown contends that both the appellant and Newson made a suggestion to police that Mr Easton was a person of interest, referring to the appellant’s statement that Newson told him when he came back from going to collect Ms McBride from Mr Easton’s house that they had had an argument (Ex BJ, Q471).
The Crown also refers to the telephone intercept material that Newson and the appellant had arranged to meet up on 29 October 2014 before Newson’s second interview with police on 31 October 2014. The Crown notes that, at that interview, Newson said that they went to the appellant’s father’s farm that afternoon (Ex CT, Q672ff); and that after the interview Newson rang the appellant and told him “I think they’ve seen us at the farm” (Ex CR, call 6, 31 October 2014 at 8:41 pm). It is noted that, after that, the appellant referred to this for the first time in his own second interview (Ex CZ, Q483-504).
The Crown accepts that there were differences between the respective accounts as to what they did at the appellant’s farm (Newson said they parked at front gate (Ex CT, Q674) whereas the appellant said they drove to the shed (Ex CZ, Q528)); and their accounts as to how long they were there, what they did and where they went on the farm differed. The Crown points out that Newson told police he tried to ring Ms McBride when they got back in the car, but in his earlier interview he could not remember calls made to her; and that Newson did not refer to going to the storage unit in Scone in that interview (and the appellant did not mention the storage unit until his third interview with the police when he was directly asked about it).
The Crown also notes that both the appellant’s phone and Newson’s phone had missing location data that, had it existed, may have shown where their mobile phones travelled from 2:00 pm on 30 September 2014.
As to Newson’s phone, there was expert evidence that a person had signed into Newson’s Google account on 3 October 2014 at 11:28 am and on 4 October at 7:30 pm to manage the location history. There were no entries for location data between 18 September 2014 and 2 October 2014. The Crown says that either the user had turned off the location history for that period or manipulated that history including by deleting it (6/06/22, T 943-944). The phone was seized on 31 October 2014.
As to the appellant’s phone, the location data captured by the phone was missing for the period 17 February 2014 to 8 November 2014. There was evidence that the data could have been deleted between 8 November 2014 and 23 April 2015 (when the phone was seized) or the location data turned off (6/06/22, T 944-945). The possibility that the deletion of data from the appellant’s phone was caused by some other mechanism such as connecting to a wi-fi “dongle” was canvassed in cross-examination. The Crown says that it was open to the jury to reason that was not the case, noting the coincidence of data being also missing from Newson’s phone.
The Crown says that the similarities in the accounts given by the two, and the failure by either Newson or the appellant to mention certain matters, were highly suggestive of concoction between them, from which it could be inferred that the appellant agreed to give a particular version with Newson. It is noted that certain intercepted phone calls between the appellant and Newson confirmed that they were discussing aspects of their interviews (Ex CR, call 6, 31 October 2014 at 8:41 pm). It is also noted that, by 26 November 2014, Newson was aware that his phone was being listened to, given that he told the appellant (in reference to a conversation that he had with Ms McBride’s father) that:
In other words, taking the parameters of 2:02pm and the likely time of departure of Mr Palmer from the appellant’s house (by 2.25pm or 2:30pm at the latest) and given that the mobile phone records place the appellant in the area of the Scone Mountain cell tower at 2:48 pm, there was a clear window of opportunity for Newson to have intercepted and murdered Ms McBride after she left Mr Easton’s house and then driven back to the appellant’s house before the two went on their drive around the back roads of Scone. This appears to be conceded as much by the appellant who has described the Crown case as “long on opportunity”.
If Newson had in fact killed Ms McBride, it is an irresistible inference that the appellant knew of the killing and the subsequent disposal of her body at Owens Gap because the disposal of the body must logically have occurred that afternoon (since she was in the same clothes and there was no contact by anyone with her) and must have been while the appellant was driving in the car with Newson. There is no reasonable doubt in that regard. It is reinforced by the acts taken by the appellant (and Newson to the appellant’s knowledge) that afternoon; and the subsequent conversations from which it is clear that the two were in communication as to what to say to the police in relation to the investigation.
There is no reasonable doubt therefore that, if Newson murdered Ms McBride (as the Crown contends), then the appellant must have been aware of this and of the subsequent disposal of Ms McBride’s body; and the appellant’s actions thereafter can only be seen as done in order to assist Newson to evade apprehension. (In that regard, no weight can be placed on the text message referring to having assisted a “good mate” with a “bad situation” as this is clearly related to some financial matter.)
The relevant question, therefore, is whether it was reasonably open to the jury to conclude (assuming that the certificate of conviction had not been tendered), on the evidence properly admissible against the appellant at trial, that Newson had murdered Ms McBride on 30 September 2014 during the window of opportunity identified above. On an examination of all the evidence, there is no reasonable doubt that Newson did murder Ms McBride. True it is that this is a circumstantial case but when all the evidence is considered, the Crown has excluded any reasonable alternative hypothesis consistent with Newson’s innocence.
Highly relevant in this context is the timing of the events after 2:30pm that day; including that the images of Ms McBride on Newson’s phone were edited at 5:17pm (suggesting knowledge that there would be a need for such photographs before the time at which he attended Mr Easton’s house at about 6:30pm ostensibly to collect Ms McBride), at a time when the appellant and Newson on their own accounts were in each other’s company; that the text was sent from the appellant’s phone at 5:45pm suggesting that Newson was not troubled by Ms McBride staying even longer at Mr Easton’s (contrary to his statements to police as to the time he became concerned at having not heard from her; and inconsistent with his conduct at almost the same time at the Railway Hotel looking for his missing fiancée); and that the appellant’s father told him that the appellant had told him at around 5:45pm that day that Newson could not contact Ms McBride and that she was missing or they could not find her (again, this was before the visit to Mr Easton’s house). Even leaving aside whether there was an intentional deletion of data from the respective phones of Newson and the appellant and the co-incidence that both phones had no digital data for the relevant day, the lack of attempted contact by Newson with Ms McBride (inconsistent with his account of what usually occurred and inconsistent with his statements to the police of concern during the afternoon) is significant when considered in the context of Newson’s actions prior to his visit to Mr Easton’s house, from which an inference of knowledge as to Ms McBride’s fate can readily be drawn.
The evidence of the injuries sustained by Ms McBride is consistent only with an intention to kill or cause serious bodily harm to her. As noted earlier, the evidence was that there must have been at least two blows each causing significant injury. It is not necessarily the case (having regard to the medical evidence) that those blows caused significant blood loss (thus detracting from the significance attributed by the defence to the fact that Newson was wearing the same clothes throughout the day). As to the unlikelihood of such an attack in the middle of town, the lack of evidence of any disturbance in the town strongly suggests that Ms McBride knew the person who picked her up after she left Mr Easton’s house (pointing to it being Newson and not some random stranger).
The evidence excluded Mr Easton as a reasonable alternative and the suggestion that some stranger was responsible is no more than speculation.
There is thus no reasonable doubt on all of the evidence that was admissible against the appellant (assuming for this purpose that the certificate of conviction had not been tendered) that Newson had murdered Ms McBride. The overwhelming inference is that Newson then went back to the appellant’s home to seek his assistance in relation to the disposal of the body (since otherwise he could simply have disposed of it himself). Certainly, the appellant must have been aware of the steps taken for the disposal of the body since (on his own account) he was in the company of Newson all afternoon (at least from 2:30pm).
Leave should be granted to raise ground 9 of appeal (since it raises a serious issue as to the appellant’s conviction) but it is not made good.
The Crown adduced evidence from Douglas Palmer, an acquaintance of the appellant, that he had phoned and sent a text message to the appellant at 2:13 pm and then went to visit him a short time later and stayed for about 10 minutes, talking with the appellant in the open garage at the top of the driveway. Mr Palmer did not see anyone else at the house at that time, although he did not go to any part of the house beyond the garage. He did not see Newson’s white Commodore motor vehicle at the house or nearby. The Crown relied upon Mr Palmer’s evidence to establish that Newson was not at the appellant’s home at that time, about 2:20 pm, and that Newson could have intercepted Ms McBride after she left Mr Easton and then killed her shortly afterwards.
There was no confirmed sighting of Ms McBride after she left 32 Calgaroo Avenue at about 2:00 pm. On 7 August 2016 her skeletal remains were found in bushland 26 m from the edge of Bunnan Road at Owens Gap, a location approximately 44 km by road from Muswellbrook to the north-west. Owens Gap is 17 km west of Scone. Dr McArdle, forensic anthropologist, gave evidence that the following traumatic injuries had been sustained by the deceased, all of them being perimortem and not ante-mortem or post-mortem:
Two fractures of the mandible (lower jaw), left and right sides, caused by one or two applications of blunt force, consistent with punching.
Fractures of the left eye socket and cheekbone from at least one blunt force impact, consistent with punching.
Fractures to the occipital bone at the back of the skull on the lower right side radiating out from a single point of blunt force impact.
Blunt force traumatic fractures to both the left and the right scapulae (shoulder blades).
Fractures of the sixth and seventh ribs near to the spine, bilateral at the seventh rib and right sided at the sixth rib.
Tips broken off the posterior spinous processes of several vertebrae of the cervical and thoracic spine, caused by blunt force trauma.
The combination of items (4)-(6) was consistent with a person having jumped on the deceased’s back, at the thoracic level between her shoulder blades, while she was lying face down.
Dr Clifton, forensic pathologist, gave evidence that there was fracturing through the base of the deceased’s skull, being an internal bony structure between the ears behind the nose and eyes, constituting a more or less horizontal plate that forms the floor of the brain case above. Dr Clifton said that this fracturing was consistent with a high velocity blunt force impact, the mechanism of which could have been a fall, a punch, a kick or striking with an object, provided there was significant velocity or force behind a blow of any of those types. The fractures to the left cheek and mandible (items (1) and (2) above) indicated at least one impact, to the left side of the face, involving considerable force. She described the point of impact that had caused the fractures in the occipital region (item (3)) as behind the right ear. Thus at least two impacts to the head were sustained, which would have resulted in significant brain trauma and death in the absence of medical intervention.
In an electronically recorded interview with police on 15 October 2014, the appellant gave the following information:
As proof of its fifth particular, that the appellant supported statements that Newson made for the purpose of giving the appearance that Mr Easton was a worthy suspect, the Crown relied upon the appellant’s answers to police in his interview of 15 October 2014. In that interview he said that Mr Easton had argued with Ms McBride before she left 32 Calgaroo Avenue at about 2:00 pm on 30 September 2014. He told police that Newson had learned of this from Mr Easton himself. Additionally, the Crown relied upon evidence that the appellant told a man for whom he worked at one time, Mr Simon McGrath, that “the police took too long going to the other bloke’s house”, referring to Mr Easton’s house, and that “by the time they got there, it had already been bleached”. Those statements, to police and to Mr McGrath, were positive steps.
The evidence in support of the Crown’s sixth particular, the exchange of information with Newson concerning the police investigation, comprised intercepted phone calls between the two. Again, these communications were active steps rather than mere passive concurrence or approval.
Having regard to the evidence upon which the Crown relied to prove the alleged acts of assistance, there was no necessity for a direction along the lines propounded by the appellant at item (6). The Crown did not particularise any act of assistance by the appellant in terms that involved asking the jury to find that element of the offence proved merely by showing that the appellant expressed approval or gave moral support. The appellant is now suggesting that the jury should have had their attention directed to whether the alleged acts of the appellant had a quality and character of being active assistance but that was not in doubt or in contest at the trial.
The appellant has formulated the second additional element of accessory liability upon which he submits the jury should have been instructed in the following item that he says should have been added to the trial judge’s list:
The direction that is challenged pursuant to ground 6, concerning use of Newson’s acts and statements to support the case against the appellant, was unnecessary rather than inaccurate in itself. The direction could not have provided useful guidance to the jury, nor could it have misled them, in the absence of any specification of what acts or statements by Newson the Crown sought to rely upon against the appellant, whether to prove an agreement between them or to prove the appellant’s participation or otherwise. As far as can be ascertained from the prosecutor’s final address, he did not specify or say how the jury were to use any such acts or statements. It is not shown that the appellant suffered any risk of miscarriage of justice from the unnecessary directions about joint criminal enterprise and about use of Newson’s acts or statements.
The appellant’s counsel identified only one statement made by Newson in the absence of the appellant that he submits the jury might have utilised for a purpose contrary to law by relying on the trial judge’s direction. That was Newson’s statement on the phone to Nicole Finch, in about late 2014, of which she gave the following evidence: