R v Adam NEWBOLD

PARTIES : The Crown Adam Newbold (Offender)

COUNSEL : S De Silva (Crown) P Marr (Offender)

SOLICITORS : Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

1 HER HONOUR: On 25 August 2008 the Crown presented an indictment against Michael Kutschera and Adam Newbold. The indictment charged one count of murder contrary to s 18(1) of the Crimes Act 1900, the particulars of which being that on 21 July 2007 at Muswellbrook in the State of New South Wales they murdered Lucas Gleeson. 2 Michael Kutschera applied for a separate trial on the basis that in a joint trial highly prejudicial and inadmissible material would be productive of a real risk that the Crown case against him would be made immeasurably stronger and that an unfair trial would result. That evidence comprised a record of interview where Mr Newbold identified him as the driver of the vehicle which was deliberately driven at and over the deceased and which resulted in his death. 3 For the purposes of considering that application I viewed the record of interview in its entirety. Over the course of the interview which commenced at 11.23am and concluded at 1.35pm on 21 July 2007, Mr Newbold gave a detailed account of the order and sequence of his movements from the evening of the 20 July 2007 and into the early morning hours of the 21 July 2007 leading up to his arrest shortly after 3.30am that morning. 4 In considering whether to grant the application for separate trials it was neither necessary nor appropriate for me to express any view as to whether or not the exculpatory account he gave to police in so far as his involvement in the death of the deceased was concerned was true, accurate or reliable. Suffice to say that in my published judgment (R v Kutschera; R v Newbold, Supreme Court of New South Wales, 26 August 2008) I expressed the view that were his account to be viewed by the jury as true, or even possibly true, there was a certain risk that they would import into their consideration of the guilt of Kutschera wholly inadmissible and prejudicial evidence which even the most carefully crafted and emphatically delivered directions to the jury could not guard against. It was for those reasons that I granted Kutschera a separate trial. 5 I also directed that Mr Newbold's trial follow immediately upon the resolution of Kutschera's trial and, in order to preserve the integrity of the proceedings generally, I directed that there be no publication of the pre-trial proceedings or their outcome. 6 The only evidence in the Crown case contradicting Mr Newbold's account to police to the effect that rather than being jointly responsible for the death of the deceased he was an unwilling witness to the killing, came from Tony Matthews who claims to have identified Mr Newbold as a passenger in the car as it drove over the deceased in the course of two discrete driving manoeuvres. Even in advance of being called as a witness in Kutschera's trial, in my assessment the various accounts Tony Matthews gave to police were less than compelling. Having heard him give evidence I regard his reliability generally as undermined by his level of intoxication and his evidence identifying Mr Newbold as the passenger undermined by the compromised circumstances in which the identification was made. 7 In circumstances where Mr Newbold's opportunity to have joined with Kutschera in obtaining access to the car and driving it at the deceased was on the Crown case scant to say the least, my own independently held view at the time at separating the trials (although not at the time expressed) was that the case against Mr Newbold was weak and that the very high probability favoured his account being in fact truthful, accurate and reliable such that were to have been I invited by defence counsel to give a Prasad direction at the end of the Crown case in his trial I would in all likelihood have done so. 8 After publishing my judgment on the application for separate trials, and without opposition from the Crown, I released Mr Newbold to bail being satisfied in accordance with s 9C of the Bail Act 1978 that the circumstances were sufficiently exceptional to justify a grant of bail on the most relaxed of conditions.

9 Despite the Crown opening Kutschera's trial on the basis that he and Mr Newbold were engaged in a joint criminal enterprise to murder the deceased (a position which I fully accept the Crown Prosecutor quite properly opened having regard to the evidence and the inferences available to be drawn from the evidence as he saw them) during the course of the trial I was informed that the Director of Public Prosecutions had been invited by defence counsel to review his decision to present an indictment against Mr Newbold for murder by actually viewing the ERISP. It was counsel's view that, together with the detailed account given by Mr Newbold, his demeanour during the course of the record of interview, and the animation with which he persistently denied various propositions put to him by interrogating police, were matters properly to be taken into account by the Director in considering whether or not to proceed against him for murder. 10 I am not aware as to whether or not the record of interview was viewed for this purpose and I am not aware of any particular view that may have been reached by the Director as to the weight of evidence in the Crown case to justify proceeding with the murder charge. Suffice to say that I was notified on 8 September 2008, that the Director had resolved to accept pleas of guilty to comparatively minor charges in full discharge of an indictment charging Mr Newbold with murder and to call Mr Newbold as a witness in Kutschera's trial. 11 Since the presentation of Kutschera's case to that point had been cast on the express basis that the Crown would not call Mr Newbold, I discharged the jury. This was not met with any resistance from the Crown. Kutschera's trial is listed to recommence before me today. I anticipate the fresh indictment will contain one count of murder with Kutschera named as the only offender. 12 Mr Newbold was re-arraigned before me yesterday. He entered a plea of not guilty to murder and not guilty to a charge of affray pursuant to s 93C(1) of the Crimes Act. He pleaded guilty to a charge that on 21 July 2007, knowing or believing that Kutschera had murdered Lucas Gleeson, he failed, without reasonable excuse, to bring information which may have been of material assistance in securing the apprehension and prosecution of Kutschera to the attention of a member of the police force, that information being that Kutschera was the driver of a vehicle that had run over and caused the death of the deceased. That charge is laid pursuant to s 316(1) of the Crimes Act and, on indictment, carries a maximum penalty of 2 years. It is a matter that was susceptible to summary disposition under Table 1 of the Criminal Procedure Act 1986. 13 He also pleaded guilty to a charge of assaulting Lucas Gleeson and thereby occasioning him actual bodily harm contrary to s 59(1) of the Crimes Act, a charge which on indictment carries a maximum penalty of imprisonment for 5 years. It is also an offence susceptible to summary disposition under Table 2 of the Criminal Procedure Act. 14 The facts upon which it is agreed that sentence is to be passed in respect of the charge of assault occasioning actual bodily harm are as follows: About 2.30 am on 21 July 2007 Mr Newbold left the Railway Hotel at Muswellbrook in the company of numerous patrons and headed in the direction of Sydney Street. At that time he was in the company of Michael Kutschera who resided at 98 Sydney Street.

After walking for some minutes he arrived at the intersection of Maitland and Sydney Streets which is an intersection controlled by traffic control signals. He waited for a green "walk" signal and was soon thereafter approached by a group of people including Tony Matthews Brogan Barnes Orre Davison and the deceased.

A verbal dispute broke out between the two groups of men. Newbold was assaulted by one of the men and Mr Kutschera was assaulted by Mr Matthews and others. Mr Newbold ran away from the area chased by Davison and Brogan. He hid on a veranda of a nearby house for several minutes waking the occupants of that house.

He left his hiding place walked back in the direction he had come from at which time he saw the deceased standing on the footpath of Sydney Street near a tire dealership. Mr Newbold argued with the deceased and they physically struggled with each other in the course of which Mr Newbold punched the deceased and pushed him forcefully to the ground causing him to connect heavily with the concrete. As a result the deceased was lying on a concrete in a barely conscious state. 15 It is this latter course of conduct that constitutes the charge of assault occasioning actual bodily harm. It is agreed that the actual bodily harm is constituted by a head injury of some unspecified kind which was occasioned when the deceased's head impacted with the concrete of the footpath causing a lapse of consciousness. The evidence is unclear as to the duration of any loss of consciousness. On any view it could not have been for longer than a minute or two before which a vehicle driven by Kutschera drove up onto the footpath and over the body of the deceased resulting his almost immediate death. Mr Newbold left the scene in the front passenger side of the vehicle and was driven away from the scene. He was driven to Mr Kutschera's home a relatively short distance away where he got out of the car and remained. According to Mr Newbold Mr Kutschera then left the scene for a brief period and upon his return informed Mr Newbold he had driven over the deceased a second time. The offender then ran from Mr Kutschera's place to his own home where he was met shortly thereafter by Mr Kutschera. 16 It is of fundamental importance to the sentence proceeding, no less than for Mr Newbold as the person to be sentenced, to emphasise that he bears no criminal responsibility of any kind for the death of the deceased, it being no part of the Crown case on sentence that he had prior knowledge of Kutschera's intention to obtain and use his motor vehicle for the purpose of driving it at the deceased, much less that he agreed with him that that should occur. In fact I accept, without reservation, that Mr Newbold was nothing other than an unwilling witness to the killing of the deceased by Kutschera and, moreover, that it was a matter of sheer happenstance that he was in the company of the deceased at that time at all. 17 I also accept that his horror at witnessing the incident was genuine in the moment and that it was expressed with spontaneous emotion on repeated occasions throughout the record of interview when he gave the police a graphic description of what he had seen. I also accept that the horror of the night is the product of nightmares that are persistent and continuing. 18 The facts relating to the second count of conceal serious offence are, in summary, as follows: Mr Newbold and Kutschera returned to where the deceased had been run over where uniformed police arrived at the scene at about 3.30am by which time the deceased had been confirmed dead by attending ambulance officers. The police spoke with Mr Matthews at the scene who informed them of the fight he had witnessed between the deceased and Mr Newbold before the deceased was run over by the vehicle.

A shirt time later Constable Smith saw Mr Newbold and Mr Kutschera walking in the middle of Sydney Street toward the crime scene. Constable Lea informed Newbold that he was under arrest "for further questioning about a hit and run incident that had occurred this morning". Mr Newbold responded "What do you mean, I don't know what you're talking about."

At the time of this exchange Mr Newbold was standing in the presence and hearing of Kutschera. He was thereafter removed to a caged police truck where he became emotional and distressed. He said to Constable Smith "I will tell you what happened". They then recorded what Mr Newbold said to them in the following terms:

"There was this Lucas guy, he is a friend of my girlfriend. This Lucas guy, he had a go at me. Five black fellows come up and one of them hit me. I ran to a house up there. They tackled me to the ground. I ran back, I tried to run back there. I jumped the fence and the house ad a white lattice and I knocked on the door and I hid. I can show you if you want."

He then pointed in the direction of Sydney Street where the house was located. He then noticed that the deceased was on the footpath and said "that Lucas?" he began then to sob uncontrollably and said, "we had a fight". He was then asked by Constable Smith about a car involved in the incident and replied, "please don't tell him I told you, he knows the bikies and they will hurt my family. The car is a silver Nissan Patrol four-wheel drive. There's a sticker on the rear. His name is Mick, everyone calls him Osama because he looks like Osama Bin Laden."

He then started to cry uncontrollably. Constable Lea then asked him who the driver of the car was at the time he replied that the driver was Kutschera and he offered to show the police where the car was. He said he was not in the car at the time and that he only got into the car afterwards. Kutschera was arrested by police at his home without incident at about 9 am that morning. 19 I accepted the plea of guilty to the charge of conceal serious offence despite Mr Newbold's expressed fears to police that Kutschera would hurt him or his family, which it might be inferred was also operating on his mind were he to have contacted police and informed them of what he had seen. It is the Crown case that he could have and should have either gone to the police station directly from Kutschera's house before Kutschera drove back to the scene for the second driving manoeuvre, or after he ran from Kutschera's house and before Kutschera came to his house presumably with the intention of preventing him from alerting police. That said, on any view the act of concealment was of short duration, in my estimation no longer than half an hour given that he volunteered the very information he is charged with concealing when he was arrested. The gravamen of the criminality in his conduct, in my view, is his return to the scene with Kutschera and his initial denial when told he was under arrest for questioning about a hit and run incident. 20 In all the circumstances (and without recourse to s 21A of the Crimes (Sentencing Procedure) Act 1999) I consider that the offending constituted by both offences is of the lowest order of objective criminality comprehended by the sections under which the charges are laid.

21 I am compelled to add that I have persisting doubts as to whether the charge of conceal serious offence, or a charge of assault occasioning actual bodily harm, would ever have been preferred against Mr Newbold were police to have taken the view that he was in fact telling them the truth and were they to have offered him the opportunity to sign a witness statement against Kutschera. While I accept that this was not a view that commended itself to police either on the 21 July 2007 or as the investigation proceeded, the simple fact is that Mr Newbold spent 400 days in custody as a remand prisoner facing a murder charge - a charge which he denied on the night of his arrest, that he has persistently denied throughout successive arraignments and a denial that the Crown ultimately accepts as true. 22 I acknowledge, of course, that our system of criminal justice has as its pinnacle the jury system as the established mechanism by which the guilt of those charged with serious indictable offences is determined. Nonetheless, the responsibility for ensuring that only those against whom a positive case of guilt can be mounted ought to be put to their trial rests first with the investigating police and then with prosecuting authorities in the independent exercise of their statutory powers. In my view, the need for judgments made at the point of arrest and charge to be reviewed on an ongoing basis and well in advance of trial is essential, especially where the person arrested and charged voluntarily participates in a recorded interview and gives an exculpatory account that is neither inherently improbable nor, in the context of other evidence, plainly untenable. In my view this case falls squarely into that category. 23 Mr Newbold is a man who has no relevant criminal record. He is currently 24 years of age and, until he was bail refused in respect of the charge of murder, he had not spent any time in prison. 24 At the time of his arrest he was working full-time in the motor trade installing mufflers for a small business in Muswellbrook. He was hopeful of commencing an apprenticeship after having left school at year 10 and having worked in various semi-skilled jobs since that time. He was also the father of a young son with whom I understand he enjoyed a very close relationship. He was also in a stable relationship with the child's mother who was due to deliver their second child within weeks of his arrest. At the time of his arrest I accept that he was genuinely committed to supporting his partner and his children by honest and hard work. 25 As a result of his incarceration his relationship with his former partner has been severed (it would seem at her initiation) and he has lost contact with her and his children. His suffering and loss over the last year is of untold measure. In addition, as an inevitable consequence of his arrest and incarceration he lost his job, his tools of trade and the immediate prospect for his future advancement. 26 Since his release to bail he is in receipt of Centrelink benefits although he has been unable to apply for full-time work with the present proceedings pending and has, in any event, been reluctant to do so having regard to the fact that it was only on Monday of this week that he learnt that the Director of Public Prosecutions was no longer intending to prosecute him for murder. The stress and uncertainty to which he has been subjected is also of untold measure. 27 Mr Newbold gave evidence before me that he told the truth to police in his record of interview, that he has told the truth in an induced statement he gave to police a week ago and that he is willing to give evidence in accordance with what he has told police as a witness in Kutschera's trial. That is a matter which I propose to take into account on the question of sentence in accordance with s 23 of the Crimes Sentencing Procedure Act. In compliance with s 23(2) of the Act I regard the significance and utility of his assistance as considerable, that his account is in fact truthful, complete and reliable and, notwithstanding the fact that the offer to give assistance was made more than 12 months after the deceased's death, it is nevertheless timely given that he was at all times, until very recently, being treated as a co-accused at trial and not as a person whose assistance might be sought. 28 Since I do not propose to impose any period of imprisonment in respect of either charge I do not have to take into account whether or not Mr Newbold will suffer harsher custodial conditions as a consequence of his assistance. I need only note that he has served over 12 months as a remand prisoner which in all the circumstances is a punishment he has suffered and a punishment which was wholly unwarranted. 29 Section 21A of the Crimes (Sentencing Procedure) Act requires me to take into account both aggravating and mitigating and other factors material to the sentencing exercise. I am also mindful of the purposes of sentencing to which s 3A of the Crimes (Sentencing Procedure) Act refers. 30 I am satisfied that none of the 21 individual aggravating features under s 21A(2) of the Act are made out in the present case. By contrast, I am satisfied that there are matters mitigating the offending constituted by each of the counts to which pleas of guilty have been entered. I am satisfied that the offending was not part of a plan or organised criminal activity and, so far as the assault occasioning actual bodily harm to the deceased is concerned, I am satisfied that while the offence was committed in circumstances that do not amount to provocation at law the offending has to be seen in the context of the fact that Mr Newbold was himself was the victim of an assault at the deceased's hands in the immediately preceding incident. I also accept that although Mr Newbold's pleas of guilty were not early in a strictly temporal sense, the offence of conceal serious offence was at all times the subject of inclusion on a section 166 Certificate under the Crimes (Sentencing Procedure) Act.

31 I am satisfied that at the time of the offending not only that Mr Newbold had no significant record but that he was in all respects a person of good character. I am satisfied that he is unlikely to re-offend and that he has by his plea of guilty, by his conduct on the morning he was arrested and by his attitude and demeanour throughout the course of the proceedings before me, accepted full responsibility for his actions and that he deeply and lastingly regrets placing himself in a situation where, by association with Kutschera, he has himself committed criminal offences and being witness to the criminal conduct of another that has resulted in the loss of life.

32 In respect of the charge of conceal serious offence I propose to utilise the provisions s 10 of the Crimes (Sentencing Procedure) Act. Accordingly, without proceeding to conviction, I find Mr Newbold guilty of that offence and direct that the charge be dismissed. In reaching that conclusion I have had regard to his character, antecedents, age and the extenuating circumstances in which the offence was a committed, in particular, that he was a witness to a horrifying event for which he bore no criminal responsibility, that he was, in a notional sense at least, subject to Kutschera's influence in the aftermath of the killing and that the offence was of very short duration. 33 In respect of the offence of assault occasioning actual bodily harm I convict Mr Newbold but dispose of the sentence proceeding without imposing any penalty in accordance with the provisions of s 10A of the Crimes (Sentencing Procedure) Act. I have utilised the power under this section having reached the positive conclusion that even were the matter to have proceeded by way of a plea of guilty, the alternatives to full-time imprisonment would have been utilised since s 5 of the Crimes (Sentencing Procedure) Act provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Since Mr Newbold has served over 12 months on remand in respect of an offence he did not commit, I do not propose to utilise other sentencing alternatives. In particular, I am not satisfied that the imposition of a good behaviour bond or a community services order is warranted. **********

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