R v Dunbar (No 10)

This judgment is a revised version of a judgment I delivered orally during the course of the trial.

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.

The accused applies to adduce further evidence in relation to the credibility of an important witness, Mr Peter Henry, after he had concluded giving evidence. He was initially regarded by the police as a person of interest in the investigation of the murder of Mr Naylor, having 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.

Earlier, during the course of Mr Henry giving evidence, I ruled that evidence including portions of a transcript of a police interview in relation to a sexual assault offence which occurred in 1998, and in relation to which Mr Henry had additional initially lied to police, could be put to Mr Henry in cross-examination. This was in the context of the Crown having adduced evidence of Mr Henry's criminal history, including the 1998 sexual assault, for the purpose of helping to explain why Mr Henry was not fully frank with police when he came to interact with them in 2022 in relation to Mr Naylor's death.

Pursuant to my ruling on 9 July 2025, counsel for the accused attempted to cross-examine Mr Henry on information he provided to police during interviews about the sexual assault: R v Dunbar (No 7) [2025] NSWSC 1165. It can be noted that Mr Henry was at times a recalcitrant and difficult witness. He was in the witness box for many days, both in chief and in cross-examination.

In summary, Mr Henry indicated he could remember little about the sexual assault prosecution, what he had told the police, and what occurred in court given it was so long ago. He refused to listen to a 1999 recording of a police interview where he had initially denied having sexual intercourse with the victim at all. At a point during his evidence, Mr Henry put his fingers in his ears and made it clear that he did not want to revisit that part of his life.

The Crown indicated that it would concede the accuracy of a portion of the transcript of the interview. A portion of the transcript was shown to the witness and tendered. Mr Henry still said he could not remember and could not accept that he had made the denial saying “I don’t accept anything because I don’t know”. It was put to him by counsel for the accused that he was trying to avoid difficult questions by feigning memory loss. He maintained that he could not recall and did not want to be reminded of what happened. Counsel for the accused submitted that Mr Henry should have to listen to the recording of the 1999 interview as it would make the accused’s submission that his absence of memory was unbelievable more powerful.

During the course of Mr Henry’s cross-examination, I ruled that the audio recording of the sexual assault interview should not be played to Mr Henry. My reasons were that the jury already had had ample opportunity, over many days, to assess the witness’s credibility, very little would be gained by playing it and it would potentially derail the trial, given the volatility of the witness. I permitted counsel for the accused to put to Mr Henry what he had said in his evidence in chief in this trial concerning his sentence for sexual intercourse without consent in 2001 being: “Yeah, there’s a lot of circumstances with that”. I also ruled that other specific portions of transcripts relating to the sexual assault prosecution concerning his evolving responses to that allegation could be put to the witness and tendered. This was facilitated by the Crown agreeing that certain portions of transcript from 1999 were accurate.

At the conclusion of Mr Henry’s evidence, there was further argument about other evidence counsel for the accused wished to tender in relation to Mr Henry’s credibility. Agreement was not able to be reached between counsel for the accused and the Crown.

As counsel for the accused set out in their written submissions on this voir dire, it was not the bare contradiction relied upon, rather that the content of Mr Henry’s past denials of the earlier offences was similar to the denials relied on by the Crown in this trial. For example, in relation to the earlier sexual assault offence he had falsely stated to police "you know, if I did it I would tell you I would never deny it." The accused also relied upon the attempt to provide information to police to incriminate another person.

Because there was no relevant agreement, counsel for the accused proposed to tender further portions of material from Mr Henry's interviews on 29 June 1999 and 2 September 1999, that is in addition to what was already in evidence, as well as evidence from his sentencing proceedings on 2 August 2001; a portion of statements of two witnesses; and the certificate of DNA results. Counsel for the accused also proposed to tender the audio recordings of extracts of 29 June 1999 and 2 September 1999.

In their written submissions counsel for the accused contended that the proposed evidence was required because the current evidence was deficient in the following ways:

Counsel for the accused submitted that the bare fact of a conviction was inadequate and misleading, as it is possible for a person to enter a plea of guilty whilst maintaining their innocence. Counsel for the accused contended that this was open on the current evidence, particularly given Mr Henry has asserted that he had told the truth in the past and it has not been accepted. Counsel for the accused submitted that it was necessary to confirm that Mr Henry gave evidence that he admitted sexual intercourse with the victim after initially denying it.

I agree that this material is broadly relevant to Mr Henry’s credibility, and that attempts were made to put the material to him during the course of his evidence but he was highly uncooperative. The problem with the extent of this whole body of proposed evidence is that some of it goes into a great deal of detail, going beyond what is required in relation to the credibility point. In my view, s 135(c) of the Evidence Act 1995 (NSW) is enlivened in relation to some of the proposed evidence. In other words, the probative value of some of the evidence upon which counsel for the accused wishes to rely is substantially outweighed by the danger that the evidence might cause or result in undue waste of time. Further, to the extent to which the proposed evidence covers the 1998 sexual offending in some detail, I am of the view that the probative value of that portion of the evidence is substantially outweighed by the danger that the evidence may be unfairly prejudicial given the nature of the sexual assault offending.

Counsel for the accused acknowledged that the DNA certificate was not admissible without the agreement of the Crown, and given no agreement is forthcoming it cannot be admitted. [I note the following the oral delivery of this judgment the Crown agreed to the tender of the DNA evidence.]

I am also of the view that the audio recordings would add little to the transcripts, especially in light of the fact that the material emanates from 1998, now more than 26 years ago, when the witness was 19 years old. I refuse to admit that evidence, that is the audio recordings, pursuant to s 135(c) of the Evidence Act.

Accordingly, in order to allow the accused to put the further matters going to Mr Henry's credibility before the jury I made the following rulings:

I also admit the evidence as indicated in the accused’s bundle of statements of Mr Shannon Paul Cooney and Mr Dean McGarry. I note that a large part of their statements have been redacted or crossed through, and therefore it is only a small portion of those.