R v Dunbar (No 3)

“Then Alan [who is the accused] began the conversation about Shane and Erin” [Shane being the deceased and Erin being Erin Rogers, the then girlfriend of the deceased and, as I said, the previous intimate partner of RS838 and the accused]. He continues "He" - being the accused - "was telling me about a drug dealer, Sue and her son, Shane" - that being the deceased - "stood over just recently and robbed from them of drugs and cash. He said" [that being the accused] “The people they ripped off were known dealers and connected with bikies and Alan was gloating in a way that appeared something was going to happen to Shane and then mentioned the words that he (Shane) was going to get stabbed. He also did the stabbing motion and showed us. Alan said he knows the people and that he was going to get him stabbed and that it was going to be a set-up. He said that he was going to get 'got'. When he made those comments me and my mate Phil said, 'Don't worry about it, just move on, it's not worth it', Alan wouldn't listen. He seemed to be very committed in getting Shane stabbed." [I am not sure the Crown will be leading that particular sentence] "He made comments in how to get in the house which windows and doors to get in and how to get around the dog ‘Rosie’ to overcome the obstacles. Both Phil and I told him that it wasn't worth it as you could end up dead or in gaol. He said, 'I'm not leaving Sydney without Erin'“ [he, being the accused]. "Alan ate some of our pizza and after this he went back over to the mission as he had an appointment there as well.”

9. It is conceded that this evidence is relevant. The objection is under s 137 of the Evidence Act. I keep in mind at the outset that a direction can be given, should I admit the evidence, pursuant to s 165 of the Evidence Act.

10. The accused’s application is primarily, but not solely, based on the poor disclosure by the prosecution authorities. I have no doubt that the disclosure in this matter has been significantly less than ideal. I do not find that there has been a deliberate lack of disclosure. The only relevance of my observation that the disclosure in this matter has been significantly less than ideal is that if I had found it had been so poor as to lead to an overwhelming inference that the past failings of disclosure meant that there is a danger that there was some significant material that has not been disclosed which would have a significant effect on the trial, specifically the position of the accused in relation to this witness, I would exclude the evidence of this witness. I am not of the view that the position rises to that.

11. In my view what appears to have happened is that New South Wales Police have, first of all, inadequate recordkeeping systems, including cross-referencing systems in relation to registered sources. From my presiding over various applications in relation to subpoenas issued for this trial, it appears that it took some time for the police to realise that RS838 was also registered under a different number. That caused some real problems in disclosure. It is to be hoped that this systemic failure will be rectified in the light of this matter, and also in light of [another matter – currently restricted] where I was the presiding judge.

12. There is also poor recordkeeping, it would appear on the basis of the evidence, in relation to recording each contact with a registered source. What is meant to happen is that a Contact Advice Report should be made in relation each contact by the relevant police officer. This does not appear to have occurred.

13. The first question is, then, does this past lack of disclosure caused by poor cross-referencing, mean that there remains a danger of unfair prejudice which outweighs the probative value of the evidence. In my view the answer is no. There is no indication, now the problem relating to poor cross-referencing has been identified, that there is any further information which has been missed.

14. Another question is does the poor recordkeeping of the police officers dealing with RS838, who failed to make a record of every contact with that witness mean that there is a danger of unfair prejudice which outweighs the probative value of the evidence. In my view, again the answer is no. These are matters which can be explored in cross-examination. There is no inherently sinister inference which flows from the poor record keeping which means there is something amiss in relation to RS838.

15. It is further submitted by the accused that the probative value of RS838’s evidence is not particularly high, because although the accused allegedly talked of the deceased being stabbed the day before the killing of the deceased, the circumstances of the killing were not in line with the alleged plans of the accused. It was said, as I have set out, that there was going to be some sort of a set-up and somehow the deceased was going to be stabbed, but not necessarily that it was the accused who was going to do the stabbing. It is said therefore that the probative value is not high. Otherwise, it is said only to reveal animosity by the accused towards the deceased and evidence of such animosity is readily available from other parts of the case.

16. However, in my opinion, evidence that the accused was allegedly talking about the deceased being stabbed in any way on the day before the deceased is stabbed, and, on the day of the stabbing, the accused is, on any view, in close proximity to the deceased, is clearly highly probative. The fact that a plan was talked about the day before which did not come into being exactly the way planned, but the deceased is nevertheless stabbed, does not rob it of high probative value.

17. Then I must look at whether or not the high probative value of the evidence is outweighed by the danger of unfair prejudice pursuant to s 137 of the Evidence Act. I make the obvious observation that all inculpatory evidence is prejudicial. The question is whether there is a danger of unfair prejudice and, further, whether the probative value of the evidence is outweighed by that danger.

18. In the case of R v Chase (a pseudonym) [2018] NSWCCA 71, Basten JA (Johnson and Campbell JJ agreeing) observed, "A common prejudicial effect arises where the evidence is of a kind likely to inflame the jury who may consciously or subconsciously determine the case adversely to the accused on the basis of extraneous factors".

19. The question is whether or not there are extraneous factors which create an unfair prejudice, as opposed to prejudice simply because evidence is inculpatory of the accused. In my view there is no danger of unfair prejudice, and certainly not of a level which outweighs the probative value of the evidence.

20. It is clear from the material that will be before the jury, and is available to the accused, that RS838 is a witness who has provided police with information on more than one occasion. It is also clear that he has provided information with the potential that it will be of some advantage to him. That, I note in passing, is hardly a surprising position for people with long criminal records who assist police. That is a point that can be well made in cross-examination and address.

21. That he has potentially more contacts with the police than has been revealed does not change this position materially for the better or worse. Even if it be the case, as contended for on behalf of the accused, that the full extent of the relationship of RS838 with the New South Wales Police has not been disclosed, in my view the critical aspects of that relationship have been disclosed: that is he has had multiple contacts with New South Wales Police over a period of many years and he has offered to assist with a view to some sort of benefit for himself more than once.

22. I also observe that it is potentially the case that some of the account of RS838 could be regarded as exculpatory of the accused given that it appears from the account that the deceased had more than one enemy who had a motive to want to cause the deceased's death.

23. I further note that not only can the relationship of the police with RS838 properly be the subject of effective cross-examination and address, there is another complicating factor in terms of him being believed by the jury. That is his credit can be attacked on the basis that he, along with the accused and indeed the deceased, had been in a relationship with Ms Erin Rogers and that would give him potentially another reason not to be telling the truth.

24. I also would be able, as I mentioned before, and certainly would be prepared to give, the jury a direction under s 165 of the Evidence Act. That section includes in the definition of "unreliable witnesses", prison informers but it is an inclusive definition and it would certainly cover a witness in the position of RS838. I am able to, if asked, give a direction to warn the jury that the evidence may be unreliable, inform the jury of the matters that may cause it to be unreliable and warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

25. I am of the view that there is plenty of scope for cross-examination of both the police and the witness RS838 in relation to contacts with police, the less than ideal history of disclosure, the seeking of some sort of advantage by the witness as a result of his evidence and his previous intimate relationship with a woman who was associated both with the deceased and the accused.

26. Finally, I am not persuaded that the poor disclosure record causes procedural unfairness of a type which would render the calling of this witness unfair. Again, I note the points to be made can already be made by the accused before the jury. If, which is a slightly different point, it is contended that the accused is disadvantaged by the time that they have been taking to try to obtain disclosure to the point where they cannot start the trial today, that would mean that they would be wanting to make an application for an adjournment of the trial. I do not understand that that application is being made, indeed it would appear that the accused would wish to have the trial commence.

27. In all the circumstances, I allow the evidence of witness RS838.

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