R v Darcy

1. [1]

   The accused, Natasha Beth Darcy, is charged with the murder of her domestic partner, Mathew John Dunbar, at Walcha on 2 August 2017. She was arraigned on 1 November 2019 and pleaded not guilty.

2. [2]

   The Prosecution case is that the accused sedated Mr Dunbar and then staged his suicide by placing a plastic bag over his head, securing it with a length of elastic, and attached tubing to a helium cylinder piping helium into the secured bag, thus causing his death. She did this in order to obtain financial benefit under Mr Dunbar’s will.

3. [3]

   The accused denies murdering Mr Dunbar.

4. [4]

   The trial is listed to proceed before a jury on 31 March 2021. The Prosecution seeks a pre-trial ruling under s 97 of the Evidence Act 1995 (NSW) to permit tendency evidence to be led in its case against the accused.

5. [5]

   The accused opposes that course.

The proposed tendency evidence

1. [6]

   The Prosecution served its Tendency Evidence Notice on 20 December 2019. It seeks to prove tendencies on the part of the accused to act in a particular way and/or to have a particular state of mind in respect of her domestic partners, including sedation with prescription drugs and inflicting serious harm upon them with a view to obtaining a financial benefit or advantage.

2. [7]

   The substance of the asserted tendency evidence is contained in various statements of the accused’s former domestic partner, Colin Crossman, witnesses to events involving her previous domestic partner and statements of agreed facts relating to criminal charges in respect of the accused’s conduct in 2009 towards Mr Crossman.

3. [8]

   The Prosecution asserts that the tendency evidence bears upon various key facts in issue in the proceedings. These facts include that the accused intended to kill and did kill Mr Dunbar, that he was sedated by her on the night of the offence without his knowledge and that she set things up to look like suicide. The accused knew that she was the sole beneficiary of his will. She undertook multiple relevant and incriminating internet searches on her mobile phone and home computer prior to the murder, and performed internet searches on the deceased’s mobile phone, the latter to support the suicide ruse that she had created.

4. [9]

   The accused says that the tendency evidence should not be permitted to be led as the evidence does not support the tendencies contended for by the Prosecution, it does not meet the test of relevance, and is not of significant probative value. Even if it did meet the test for relevance and supported the tendencies suggested, and was found to be of significant probative value, it comprises a highly prejudicial and irrelevant narrative and its significant prejudicial effect is not outweighed by the evidence’s probative value.

Relevant Law

1. [10]

   Tendency evidence is defined in the Dictionary to the Evidence Act as “evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.”

2. [11]

   Tendency evidence is a species of circumstantial evidence. It invites the tribunal of fact to engage in a process of inferential reasoning from proof of a person’s tendency, to conclude that the person acted consistently with the tendency on an occasion the subject of a charge: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (“Hughes”) at [20].

3. [12]

   The tendency rule is contained in s 97 of the Evidence Act:

4. [13]

   Evidence sought to be adduced by the Prosecution for a tendency purpose about an accused is inadmissible unless the tests in both ss 97 and 101 of the Evidence Act are met. Section 101 relevantly provides:

5. [14]

   Evidence is relevant if it has the capability, if it is accepted, rationally to affect directly or indirectly the assessment of the probability of the existence of a fact in issue: s 55(1) of the Evidence Act; IMM v R (2016) 257 CLR 300; [2016] HCA 14 (“IMM”) at [38]-[39].

6. [15]

   “Probative value” is defined as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

7. [16]

   No question of the credibility or the reliability of the evidence can arise when determining relevance and probative value. The trial judge must proceed on the assumption that the jury will accept the evidence, and not enquire into the weight that it may ultimately be given. Credibility and reliability are properly matters left for the tribunal of fact: IMM at [52].

8. [17]

   “Significant probative value” means capacity rationally to affect the assessment of the probability of the existence of a fact in issue to a significant extent: Hughes at [16] and [40]; IMM at [46]. The evidence must be influential in the context of fact-finding: IMM at [46]. In a criminal trial, “... the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”: R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 (“Ford”), cited by the High Court in Hughes at [40].

9. [18]

   In Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [124], Simpson J said at [124]:

10. [19]

    In Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 the Court (comprising Bathurst CJ, Hoeben CJ at CL and Simpson JA) held at [359]-[360]:

11. [20]

    It is not necessary that tendency evidence bear a “striking similarity” or “underlying unity” with facts in issue in order to have significant probative value. The requisite degree of similarity between the tendency and charged conduct will depend upon the circumstances of the case: Hughes at [39]-[40].

12. [21]

    The majority (Kiefel CJ, Bell, Keane and Edelman JJ) in Hughes observed at [41]:

13. [22]

    In relation to the test in s 101(2) of the Evidence Act, the Court noted, obiter, in Hughes at [17] that:

14. [23]

    “Prejudicial effect” of evidence “... is concerned with the risk that the evidence will be misused by the jury in an unfair manner, such as by provoking some irrational, emotional or illogical response”: McPhillamy v R [2017] NSWCCA 130 per Meagher JA (in dissent but not relevantly).

The Tendency Notice and substance of the tendency evidence

1. [24]

   The Notice served on 20 December 2019 specified the following tendencies of the accused to act in a particular way and/or to have a particular state of mind:

2. [25]

   The substance of the tendency evidence which the Prosecution intends to adduce is contained in various documents that were specified in the Notice. The tendency evidence is focused on various acts of the accused in 2009 that led to criminal proceedings and ultimately negotiated pleas of guilty in respect of some but not all of the conduct in question. The conduct was the subject of police investigation and the tendency evidence comprises statements by the accused’s former partner, Colin Crossman, his colleagues, police who investigated the conduct and other documents verifying aspects of the investigation.

3. [26]

   The tendency evidence – if accepted – comprises the following:

4. [27]

   The key similar features asserted in the Prosecution case are as follows:

Submissions

1. [28]

   In respect of category (2a), senior counsel for the accused argued that the acrid oysters kilpatrick given to Mr Crossman could in no way be seen to be an act done with the intention of inflicting serious harm. I agree and will not permit that evidence to be led.

2. [29]

   The striking to the head of Mr Crossman with a hammer is argued to bear no resemblance to the act of sedating and asphyxiating Mr Dunbar with helium gas. Senior counsel for the accused submitted that there is no feature of or about the offending which links the two matters together and so, on the application of what the High Court said in The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 (“Bauer”) at [58], there is not significant probative value, particularly given this is a different victim.

3. [30]

   A parallel was sought to be drawn to cases of sexual assault where there are multiple complainants as distinct from a single complainant. There needs to be a particular or unusual feature or sufficient temporal connection.

4. [31]

   In my view there are particular and unusual features in the circumstances of the tendency evidence relied upon in the tendencies specified in (2a), (b) and (c) of the Notice, having regard to the Prosecution case. To the extent that what the High Court said in Bauer is directly applicable in a murder case, the considerations articulated in Bauer are in my view well-satisfied.

5. [32]

   It was also argued by senior counsel for the accused that the somewhat bizarre circumstances of the tendency evidence would likely divert the jury from a proper consideration of the evidence or may be used to infer some kind of generalised homicidal intent against domestic partners which is highly prejudicial to the accused and cannot be cured by direction.

6. [33]

   I do not accept this submission. Whilst the material is clearly prejudicial, it is of significant probative value. It does not matter that the precise methodology of the infliction of harm is different. The tendency identified is directed to the carrying out of an act performed by the accused on Mr Crossman and alleged regarding Mr Dunbar with the intention to cause serious harm. The circumstances of the acts make the intention to cause serious harm self-evident. It is up to the jury to decide what evidence they accept or reject. The proper use of the evidence can be dictated by direction. The probative value of that evidence significantly outweighs any prejudicial effect it may have.

7. [34]

   With respect to the sedating of Mr Crossman and setting fire to the house, it is asserted by senior counsel for the accused that “sedation” is too vague and there is no evidence of intention to harm Mr Crossman and so there is no significant probative value and s 101 should apply. The levels of the drugs found in Mr Crossman are argued to be minor and that there may be confusion or unwillingness on the part of Mr Crossman to acknowledge what he had taken as opposed to, as the Prosecution asserts, surreptitiously administered by the accused. He was clearly affected by carbon monoxide poisoning as expected and as found in the pathology testing. The inference that drugs other than the alprazolam were administered by the accused is unavailable.

8. [35]

   I disagree. Mr Crossman was an ambulance officer who would be well familiar with the requirement to be specific and clear regarding what he understood he had ingested. Carbon monoxide poisoning and its effects in no way explains the presence in his blood and urine of the other substances.

9. [36]

   The submission is made by senior counsel for the accused in relation to tendency (2c) that financial or other advantage is not sufficiently defined. I reject that submission. On the contrary, benefits under insurance policies or employee benefits schemes, or property or gifts under a will are clearly the “other advantage(s)” referred to and are clearly and specifically nominated in the evidence sought to be tendered. Its probative value is significant in my view and substantially outweighs any prejudicial effect on the accused. There is stark similarity in that the benefits identified to flow are dependent on the death of the victims – Mr Crossman in 2009 and Mr Dunbar in 2017.

10. [37]

    The submissions made on behalf of the accused in respect of tendency (2d) in the Notice I accept. The searches specified as having been made prior to the January 2009 events involving Mr Crossman are interesting but do not satisfy the description of “research(ing) the means of effecting such conduct by searching the internet.” The conduct upon which the Prosecution relies as relevant to Mr Crossman did not involve poisoning. It involved assault and setting the bedroom on fire after sedating him.

11. [38]

    The Prosecution argued in its written submissions in reply dated 12 May 2020 that there is a requirement to view the four identified tendencies in combination: Hughes at [40]-[41] and that the Prosecution is entitled to rely on all the identified evidence in its context to establish the relevant tendencies.

12. [39]

    This is of course a reasonable submission as far as it goes, but it does not get over the problem that the research on the internet leading up to January 2009 does not correlate to the acts that are said by the Prosecution to have been done with the intention to inflict serious harm upon Mr Crossman. That part of the tendency notice must therefore fail on that basis.

Probative value of the evidence – consideration and conclusion

1. [40]

   There is no issue about the notice given by the Prosecution of its intention to adduce the evidence, so the first issue I must determine (after relevance – s 55) is whether or not the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the Prosecution, have significant probative value: s 97(1).

2. [41]

   If I decide that it does, I must then consider the further restrictions upon the admission of the evidence which are imposed by s 101 of the Evidence Act. This entails a requirement to assess both the probative value of the evidence and the possibility of its prejudicial effect having regard to the issues in the case: R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209 (“PWD”) at [63].

3. [42]

   There is no requirement that there be a striking pattern of similarity between the conduct established by the evidence said to constitute the tendency and the conduct which is alleged against the accused: Ford at [38] and [125], and PWD at [64]-[65]. However the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.

4. [43]

   The prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue as required by s 55, and, for example, have an emotional, irrational or illogical response to it, or by giving it more weight than it deserves. This is an obvious risk in this case given the somewhat bizarre nature of the acts asserted (and in some respects effectively admitted) to have been carried out by the accused in 2009, and the elaborate and macabre plan asserted by the Prosecution to be the way the accused brought about the death of Mr Dunbar in 2017.

5. [44]

   I must decide whether the probative value of the evidence in issue substantially outweighs any prejudicial effect that it may have: (R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319). In doing so, I need to consider (and articulate) the prejudicial effect the evidence may have and consider whether it can be ameliorated by directions which I must assume the jury will follow. If the evidence satisfies the test in s 101, there is no need to consider exclusion under s 137: Ford at [59].

6. [45]

   There is in my view a high degree of similarity between the tendency evidence sought to be led set out in (2a), (b) and (c) of the Notice and the Prosecution case sought to be made. The knowledge and/or apprehension on the part of the accused of the availability to her of significant sums of money if her partner dies, the mix of sedatives found in both Mr Crossman and Mr Dunbar, the steps taken by her to deliberately inflict serious harm on her partner are specific and peculiar matters.

7. [46]

   In respect of category (2a) of the proposed tendency evidence, I have concluded that the evidence regarding the accused serving and internet searching “oysters kilpatrick” cannot be led. “Acrid” oysters does not fit within tendency (2b) “to sedate her partner with prescription or other drugs or poisons”, or (2a) “to act with the intention of inflicting serious harm on her partner.” “Acrid” means unpleasantly bitter or pungent. There is no evidence that the “acrid” nature of the oyster tasted but spat out by Mr Crossman was caused by a poison or drug, or that the accused knew there was anything wrong with the oyster(s). To that extent, I accept the submissions of senior counsel for the accused that that conduct does not support tendency (2a) or (2b).

8. [47]

   The lapse of time between the asserted tendency conduct can be relevant to an assessment of the probative value of the evidence: R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164 at [36]. The time lapse between the December 2008/January 2009 events involving Mr Crossman and Mr Dunbar’s circumstances in 2017 was submitted by senior counsel for the accused to be an important disqualifying feature.

9. [48]

   I am not satisfied that is right. It is the combination of the prospect of significant financial gain, a co-habiting and vulnerable victim and the controlling role in respect of domestic circumstances as a means by which to administer sedatives and the deliberate actions seriously harming her partners that combine to demonstrate a high level of specific similarity. I am required to take the Prosecution case at its highest and not assess the way the jury will accept, reject or weigh the evidence. The fact that it is some five years from 2009 before the accused got to know Mr Dunbar (and two years after she splits from Mr Crossman), followed by a further two and a half to three years before the events the subject of the prosecution occur, does not make the tendency evidence too remote.

10. [49]

    This is particularly so given the unusual nature of the similarities in the combination of features of the proposed tendency evidence and the combination of features of the Prosecution case involving Mr Dunbar.

11. [50]

    I am persuaded that the other evidence proposed to be led, (excluding the evidence about oysters kilpatrick and the tendency specified in (2d) of the Notice) is relevant: (s 55), and of significant probative value having regard to other evidence to be adduced in the Prosecution case: s 97(1).

12. [51]

    Whilst the prejudicial effect is clear, I accept the Prosecution’s submission that the other evidence specified in the Notice is highly specific and shows a strong similarity to the conduct in issue in the trial. In my view its probative value outweighs any prejudicial effect it may have on the accused (s 101).

13. [52]

    Conventional directions will be given to emphasise that the evidence cannot be used to reason that the accused is a person of bad character and must not be used to punish the previous conduct or to substitute it for the charged conduct. Such directions will manage any potential unfair prejudice.

Orders

1. [53]

   I make the following order: