R v Dunbar (No 4)

1. This is a revised version of a judgment delivered orally on 12 June 2025.

2. Yesterday, a jury was empanelled in the trial of Mr Allan Dunbar on one count of murder. The allegation is that on 7 January 2022, at Toongabbie, he murdered Mr Shane Naylor.

3. In short, it is alleged that the accused stabbed the deceased, a man towards whom he had proven animosity, and shortly after left the scene. The facts are set out in more detail in R v Dunbar (No 2) [2025] NSWSC 1160. The matter in contest is whether the Crown can prove beyond reasonable doubt that it was the accused who stabbed the deceased. Part of the Crown case is CCTV footage recorded shortly after the stabbing which shows the accused wearing a polo shirt, allegedly with a dark blood stain, combined with evidence that an hour or so later, that same polo shirt only showed a faint stain in an area where the alleged blood had been seen.

4. By way of Notice of Motion, filed on 10 June 2025 and argued on 11 June 2025, an order is sought by the accused:

“That the evidence of staining on the shirt of the accused be limited and not used as evidence of consciousness of guilt pursuant to s 136 Evidence Act 1995.”

5. An affidavit of Mr Wilson Tighe, the accused’s solicitor, dated 10 June 2025 was filed in support of the Notice of Motion, and helpful written submissions were also provided by counsel for the accused.

6. On the voir dire, the Crown tendered a USB key containing CCTV footage, stills of which also appear in the Crown Case statement dated 3 June 2025, which was also relied upon. A statement from Senior Constable Bianca O’Neill, and two photographs, were also tendered. Overnight, in response to a question from the Court, the Crown also provided a statement of Constable Branden Ferris signed 11 March 2022.

7. The issue arose when the Crown flagged, by way of an email to the accused dated 29 May 2025, that it was to rely upon CCTV footage which showed that:

“There were, at that time, obvious dark bloodstains on the front of the shirt worn by the accused. Notably, there is a large dark bloodstain on the upper stomach area of the shirt. There are also dark bloodstains above and on the pocket of the shirt.

The dark and clearly visible blood stains above and on the pocket of the shirt were not detected when the shirt was examined. They are not visible in any of the photographs.

The large and clearly visible dark bloodstain on the upper stomach area of the shirt seen in the CCTV footage is in the same area as the faint stain tested by Senior Constable O’Brien [which should read O’Neil]. That testing confirmed the presence of human blood in that area. A usable DNA sample could not be obtained.” [Emphasis in original]

8. This email was followed by an updated Crown Case Statement, dated 3 June 2025, including that material, together with other detail.

9. The Crown Case Statement of 3 June 2025 states that “[i]t is the Crown case that the accused washed his shirt because of a consciousness of guilt – he thought that the blood on the shirt might be the blood of the deceased which had got on his shirt when he had stabbed him – and that the blood on his shirt might incriminate him in the stabbing/murder.”

10. The Crown also relied on the accused having fled the scene of the stabbing and hiding in nearby premises to avoid arrest because he had just stabbed the deceased. This latter contention is not the subject of the application. The accused was located about 45 minutes after the police radio message was broadcast about the stabbing. He was arrested shirtless, with his polo shirt found nearby.

11. It can be noted that the Crown’s position had changed from a previously flagged position that consciousness of guilt would not be raised. The Crown has indicated that the changed position, now involving a submission about consciousness of guilt, came about when the Crown Prosecutor became aware of the CCTV footage as described.

12. It is important to note that the Crown is relying on observation and inference alone, that is, on no expert evidence, in relation to the presence of the contended “large and clearly visible dark bloodstain” on the polo shirt of the accused, and the later appearance of the same shirt showing only a faint stain in the stomach area of the shirt. [1]

13. Expert evidence is relied upon in relation to the presence of human blood in that area of the t-shirt, but I note the expert evidence is not the subject of contest (albeit it is emphasized that the stained area might not all be human blood, but rather it may only be one small component of the stain).

14. The accused “accept[s] that images of the accused wearing the shirt, and the testing of the shirt have relevance.” However, the accused further contends that “the use of this evidence at this late stage as ‘consciousness of guilt’ now operates unfairly against the accused. The evidence should be limited in its use pursuant to s136 [of the] Evidence Act.”

15. The accused points to procedural unfairness, which has been held to amount to unfair prejudice, in particular pointing to R v Sharpe (No 2) [2021] NSWSC 32, a judgment of Bellew J. That case involved the Crown serving an expert report on the accused in January, only weeks before the trial was due to commence on 1 February 2021. The expert report was in relation to crime scene analysis, in particular, an expert opinion as to blood splatter or patterns.

16. Justice Bellew excluded the report on the application of the accused. It can be noted that the judgment records the efforts made by the accused to attempt to obtain an expert report of their own, but given the short time available, combined with the time of year, no report could be obtained.

17. The accused in this case points in particular to Bellew J’s comments at [35]:

“One of the most fundamental principles of the system of criminal justice under which we operate in this country is that an accused person is entitled to know the case that he or she is required to meet. A necessary corollary of that principle is that an accused person is entitled to be appraised of that case in sufficient time prior to his or her trial to properly consider the evidence, to instruct lawyers, and to obtain any evidence which his or her lawyers consider necessary for the proper conduct of the defence case.”

18. The accused fairly concedes that Sharpe is distinguishable in that none of the opinion was admitted. The accused in this case stated:

“Defence accepts that the imagery of the accused on CCTV is patently relevant. It is also appropriate the jury be informed of the testing carried out on the shirt in the event they perceived some kind of investigatory oversight. It is also accepted this is not an example of evidence being served late. Rather, it arises from delayed identification of the particular use the prosecution seeks to make of the evidence.”

19. Importantly, the accused concedes that if the evidence was permitted to be relied upon as consciousness of guilt reasoning, the jury would need to be directed on the care that needs to be taken in evaluating an inference that post-offending conduct reflected a consciousness of guilt of the specific offence as opposed to potential explanations such as fear of being wrongly accused, amongst any other explanations indicated in the circumstances of the trial. The accused contends that this weakens the probative value of the evidence, albeit also acknowledging that s 136 of the Evidence Act does not mention probative value.

20. Further, however, the accused contends that the proposed use of the evidence is not self-evident, as it involves a chain of reasoning that raises issues associated with the properties of the shirt, for example, its absorption rate, the potential variables of visual recordings and processes of staining – including changes in the appearance of staining over time and in different conditions. Counsel for the accused states in their written submissions:

“It is not feasible to think that since being advised of this additional use there could be any realistic opportunity to investigate relevant circumstances associated with the exhibit (including, potentially, continuity) and identify and engage a relevant expert.”

21. Dealing first with continuity. I note that elsewhere in the accused’s submissions, no issue was taken with the Crown leading evidence of the testing of the shirt. This does not sit comfortably with a contention that continuity would potentially be the subject of challenge, and I will treat that submission as a rhetorical one.

22. Further, there has been no evidence put before the Court of any enquiries, even very preliminary ones (given the time available), in relation to any expert sought to have been contacted in relation to either variables of visual recordings or processes of staining. Indeed, the suggestion about the difficulty in finding expert evidence is put in only very general terms. In one sense, this is hardly surprising, as, in stark contrast to Sharpe, this is not a case where the Crown is leading any expert evidence in relation to either variables of visual recordings or processes of staining. The Crown will simply be relying upon the bare CCTV footage and later observation and testing and asking the jury to draw inferences in relation to matters which, in my view, are well within the province of the jury to accept or reject.

23. Both the vagaries of light in different filming circumstances, and the presence, or otherwise, of as common a substance as blood, on as common a fabric as that used in a polo shirt, and how such a common fabric responds to rinsing with water are well within the province of common human experience of members of our community. These are quintessentially jury questions, informed by proper directions. The parties are equally able to make submissions about these issues. It is not the case that one party has the benefit of expert evidence with special status, and one party does not. On the face of the material which I have carefully reviewed, there are obvious submissions to be made by the accused in relation to vagaries of light and the distortion of colours which may have occurred.

24. Most importantly, however, if a s 136 limitation was placed on the evidence, it is likely, in my view, to draw more attention to, or highlight, this aspect of the evidence. It would do so in a manner which may cause the jury to speculate in an impermissible manner. This speculation would occur without the benefit of a carefully worded direction in relation to the care which must be taken in relation to consciousness of guilt reasoning. This, in my view, would cause unfairness to the accused, and may cause the trial to miscarry.

25. In all the circumstances, I am of the view that the order sought by the accused should be refused.

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Endnote

Following the oral delivery of my decision, the Crown introduced at trial additional evidence from an eyewitness in the area from where the CCTV footage was obtained. This witness, Mrs Brahmbatt, gave evidence that she saw the accused wearing a t-shirt which she recognised as blood on the front of it. She also stated that she saw him washing the t-shirt at a tap. This evidence was not available to me at the time of the making of, and oral delivery of, my decision.