R v Dunbar (No 7)

This is a revised version of a judgment delivered orally on 8 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.

An application is made on behalf of the accused in relation to a witness: Mr Peter Henry. The accused seeks to question Mr Henry in more detail in relation to his criminal history. Evidence about his criminal history, in general terms, has already been adduced by the Crown.

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 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 submits that the Crown has sought to rely on the criminal history in general terms to bolster Mr Henry's credibility, that is, to account for the initial lack of frankness when first formally interviewed by the police (even though he was providing an induced statement). That is, that Mr Henry lied because, effectively, he had been betrayed by police in the past.

The accused relies on s 103 of the Evidence Act 1995 (NSW), which provides that the credibility rule (set out in s 102 of the Evidence Act) does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. The accused submits that the evidence sought to be adduced by the accused is in response to a number of matters, including the Crown’s submission that he has not been in serious trouble for a very long time and it should be for the jury to determine the seriousness of his more recent offending; that he has misrepresented how long he was in jail for when he said (erroneously) he was in jail for the last 10 years to both the undercover officer and to the deceased’s girlfriend; and to counter the suggested reason as to why he initially lied to the police in this matter, given all that happened in the past was that he was prosecuted for offences he had committed. The accused also wishes to adduce evidence to show that Mr Henry lied to the undercover operative in relation to aspects of his criminal history when he asserted that in the past he had got into trouble for offences even though he did not do it, or because his friends ran him down. There are other matters relied upon by the accused which are apparent from the oral argument.

One of the matters on Mr Henry’s criminal history is a conviction for sexual assault in 1998 in relation to which he was interviewed on two occasions and later gave evidence in court on a contested facts hearing on sentence. He lied in the first two interviews. That is, he stated in each of those interviews that he had never had sexual intercourse with the victim. He only admitted to having had sexual intercourse after DNA results made it practically impossible to deny the fact.

I am of the view that it is appropriate to allow questions to be put in cross-examination in relation to that issue, although I would encourage counsel for the accused to be as disciplined and brief as possible because Mr Henry has been in the witness box for a long time (many days) and the jury, whilst they would be assisted, in my view, by further evidence in relation to Mr Henry, already have quite a lot at their disposal going to his credibility.

Apart from the sexual assault matter, the form of criminal history material available to the accused is not from the court files and therefore it is not known to what extent, if any, the agreed facts they have obtained were accepted by Mr Henry at the time of sentencing.

In summary, I am of the view that it is appropriate that counsel for the accused has an opportunity to question Mr Henry in relation to matters on his criminal history, as long as it is not suggested that the facts that are being put are proven facts; and I am sure that Mr Brock would not do that.

Finally, I note that I considered whether the evidence would constitute tendency evidence. So far as it was suggested that some of the evidence went to a propensity to disrespect women (in light of a suggestion that he had more recently behaved in a sexually harassing manner to Erin Rogers) I rejected that submission. The remainder of the material I agree is credibility evidence pursuant to s 103 of the Evidence Act, and I am satisfied that it could substantially affect Mr Henry’s credibility.