R v Dunbar (No 8)

This judgment is an expanded version of a judgment delivered orally on 9 July 2025.

The Accused, Mr Dunbar, faces an indictment containing one count of murder. The allegation is that on 7 January 2022, at Toongabbie, he murdered Mr Shane Naylor.

In short, it is alleged that the accused stabbed Mr Naylor, a man towards whom he had proven animosity, and then shortly after left the scene. The matter in contest is whether the Crown can prove beyond reasonable doubt that it was the accused who stabbed the deceased.

A number of applications have been made by the accused in relation to a witness, Mr Peter Henry, of which this is one. Mr Henry is a very important witness. He was initially regarded by the police as a person of interest in the investigation of the murder of Mr Naylor, having also been involved in an altercation with the deceased at the time of his death, and then having left the scene and made attempts to stay away from the attention of police. A more detailed account of the facts of this matter can be found in R v Dunbar (No 2) [2025] NSWSC 1160.

The accused wishes to cross-examine Mr Henry in relation to his having had an affair. The accused contends that the brief of evidence includes statements from both Mr Henry and Ms Tegan Grant (his partner) that Mr Henry had an affair, and that Ms Grant also refers to the fact that there was an unplanned pregnancy arising from the affair.

The accused submits that he needs to refute the claim that Mr Henry's denials to Ms Grant that he (Mr Henry) stabbed the deceased can be relied upon, as is sought to be done by the Crown. This, it is argued, depends heavily on an evaluation of the relationship between Mr Henry and Ms Grant. The accused submits that it is relevant to the jury assessing the reliability of Mr Henry's denials to Ms Grant, and it may be perceived as contradicting Mr Henry's insistence that his conduct was motivated by concern for his family.

After receiving written submissions from counsel for the accused, and hearing argument, I determined that I would not allow that line of questioning. These are more detailed reasons for coming to that decision.

The accused argues that whether Mr Henry involved himself in an affair adds a further important circumstance to the nature of their relationship. The accused argues that:

it indicates circumstances where Mr Henry has been prepared to keep information from Ms Grant, and there is information that the affair was only likely exposed because of an unexpected pregnancy;

it shows additional experience of Mr Henry managing information given to Ms Grant in relation to important issues (in addition to that already in evidence from Mr Henry's mother and the conversation with the undercover operative); and

the fragility in the relationship because of the affair heightens Mr Henry's incentive to minimise his involvement and knowledge as to what occurred on 7 January 2022.

The Crown opposed the line of questioning being put on the basis of s 135 and also s 41(1)(b) of the Evidence Act 1995 (NSW), on the basis the evidence would be unduly humiliating. The Crown further argued that the probative value of the evidence is very low. Rather than the Crown relying principally on the nature of the relationship, it was argued that the spontaneity of the utterances made by Mr Henry on the listening devices were more significant to the Crown case than anything else.

The Crown further submitted that the evidence may be misleading because of undue weight being given to the evidence by the jury, or that they may make a moralistic judgment that Mr Henry is somehow an inherently unreliable person because of his infidelity.

In my view, the major problem with this proposed line of questioning is that there are no details as to when or how long the so-called "affair" was. Indeed, it was clarified in the course of oral argument that the reference in the recordings was to "cheating" rather than an "affair", and that the conduct occurred sometime in 2016. Further, this line of questioning was not put to Ms Grant.

I concluded that the line of questioning should not be allowed. The probative value was very low given how remote in time the conduct apparently occurred, and there is no information as to whether it involved more than one encounter. It was not put to Ms Grant, which was appropriate if this was to be relied upon as going to the fragility of their relationship. There is also a significant amount of evidence already before the jury which shows that the relationship was “on and off again”. In my view, pursuant to s 135 of the Evidence Act, the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Crown, be misleading, or result in an undue waste of time.