R v Lupton (No 1)

[2022] NSWSC 33

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Lupton (No 1) [2022] NSWSC 33

Hearing dates:

19, 20 January 2022

Date of orders:

20 January 2022

Decision date:

20 January 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) The tendency evidence is not admissible.

(2) The text messages are admissible with the exception of items 87 to 90, 186 and all or part of 188.

Catchwords:

CRIMINAL LAW – evidence – tendency evidence – murder by stabbing – where accused arrested with knife the night before alleged murder – accused arrested with small blade at the time of his arrest after the murder – alleged tendency to possess knives – where issue in trial expected to be self defence and whether accused brought knife to the scene – whether evidence possesses significant probative value – whether unfair prejudice exceeds probative value

CRIMINAL LAW – evidence – text messages – whether evidence relevant to the accused’s state of mind – whether direction capable of curing any potential misuse of the evidence

Legislation Cited:

Evidence Act 1995 (NSW) s 97(1)(a)

Cases Cited:

Elomar v R [2014] NSWCCA 303

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

IMM v R (2016) 257 CLR 300; [2016] HCA 14

Category:

Procedural rulings

Parties:

Regina
Jay Lupton

Representation:

Counsel:
G Harrison (Regina)
A Webb (Lupton)

Solicitors:
Solicitor for the NSW DPP (Regina)
Legal Aid (Lupton)

File Number(s):

2020/00073934

ex tempore Judgment (revised)

1. The accused is charged with murder. His trial was listed last year but was delayed because of the COVID-19 lockdown and the need for the Court to vacate all jury trials. A pre-trial argument about the admissibility of certain evidence was listed to commence on 10 January 2022, but was delayed because two of the lawyers involved in the case tested COVID-19 positive and one of them was quite unwell.

2. The pre-trial argument commenced on Wednesday 19 January 2022, although the parties had provided some of the evidentiary material and written submissions in advance of the hearing. We lost the afternoon because an incident occurred at the gaol where Mr Lupton was, at least as far as we knew, taken from the AVL suite and those facilities we were told were locked down, but it turned out that was not the case. That was partly through the oral submissions of Mr Webb, who appears for Mr Lupton at the trial. The matter was then adjourned until this morning.

3. Meanwhile, in consultation with the parties, I determine that the empanelment process would occur on Friday that is tomorrow, 21 January 2022, at 11:30am at the Downing Centre.

4. The parties seek two rulings as to the admissibility of certain evidence. Those rulings are somewhat connected in a factual or evidentiary sense, although they raise distinct legal issues.

5. The first ruling is whether the prosecution may adduce tendency evidence concerning the accused's possession of knives shortly before and after the alleged murder.

6. The second issue concerns the admissibility of a large number of text messages involving the accused and other witnesses or persons to be mentioned in the course of the evidence. Those text messages are said to, and appear to, demonstrate that the accused was angry at a time proximate to the murder. The Prosecutor submits that they are relevant to the accused's state of mind at the time of the murder and to a number of issues in the trial. However, the Prosecutor specifically eschews reliance on the text messages to establish any relevant tendency.

7. An agreed tender bundle relevant to both issues was filed in advance and was ultimately marked as Exhibit VDA. The bundle included the indictment, a Prosecution Case Statement, the tendency notices, a schedule of text messages (not all of which are pressed), statements of the police officers who would give evidence relevant to Mr Lupton’s possession of knives as well as a typed record of interview, photographs of the aforementioned knives, certificates of conviction relating to the tendency evidence and a transcript of a body worn video.

8. There were two other prosecution exhibits tendered on the voir dire. Exhibit VDB was a further statement of Senior Constable Gairns (one of the proposed tendency witnesses whose first statement was included in the original tender bundle). Exhibit VDC was a small spring-operated implement or blade. Mr Lupton tendered two exhibits on the voir dire. Exhibit VD1 was a bundle of photographs of the crime scene, which I think forms part of the proposed prosecution case at the trial, and Exhibit VD2 was the Court Attendance Notice and associated facts sheet relating to a charge of possession of a knife.

9. Two sets of written submissions by both counsels were marked as MFIs VD1, 2, 3 and 4.

10. To understand the relevance of the evidence the prosecution seeks to adduce and understand the objections to that evidence, it is necessary to state, in very broad terms, the case of each party.

11. The prosecution case, as set out in its case statement, is that the accused was in what might be described as an “on again off again” relationship with a witness, Sherie O'Neill, who lived in the premises where the alleged murder occurred. The couple had a young (that is, nine-year-old) child living at those premises. There were others living at the premises and a number of other people used to visit from time to time. It is common ground between the parties that there was a good deal of drug use, specifically methylamphetamine use, by some of the occupants of the premises and those visitors to which I have made passing reference. Sherie O'Neil had also been in a relationship with a man called Joshua Sparkes, and she had a sister, Amy O'Neill, and Amy O'Neill in turn had a boyfriend. The deceased, Hady Jaouhara, was part of this group that would visit the premises.

12. The prosecution case is that late on 23 February 2020, at about 11:45pm, Mr Lupton went to the premises and, without any apparent provocation, stabbed Mr Jaouhara. Mr Jaouhara died of a single stab wound that penetrated his chest and passed through an artery, a lung and the pericardium. It is the prosecution case that the accused attended the premises carrying the knife and this was the knife that was used to kill Mr Jaouhara. The evidence the prosecution seeks to adduce places that event in context.

13. The tendency evidence is said to be relevant to Mr Lupton’s state of mind and intention and, perhaps more importantly, to bear upon the question of whether he brought the knife to the premises.

14. The prosecution case is that Mr Lupton was angry. The cause of his anger was complex and multifaceted. Part of the anger concerned his relationship with Sherie, with whom he had recently resumed some kind of relationship or contact. It is said that Mr Lupton was jealous of Joshua Sparkes because Joshua and Sherie had been spending time together.

15. Mr Lupton was also aware that the deceased had an interest in Sherie O'Neill. The prosecution case statement says that Mr Jaouhara had told another member of the group, Blake Mooney, that he wanted to marry Sherie and that he had her telephone number stored in his own telephone contacts section as "Sherie beauty". Sherie had told people that she found the deceased to be “creepy”.

16. Another aspect of the anger arose from Mr Lupton's concerns for his nine-your-old daughter and the fact that, as he saw it, the premises were being used as a kind of drug den. He expressed concerns that the welfare authorities might take his daughter into care.

17. There is a deal of other evidence, to which objection is not taken, as to the accused's conduct in the days leading up to the stabbing. In particular, there is expected to be evidence of an altercation a week or so before the killing, during which the accused punched Mr Jaouhara while the latter was sitting in his car. He took the car key, refused to return it, and then scratched the word "dog" into the duco of the bonnet of the car. The accused told Mr Jaouhara that he did these things because Sherie had told him that he called her "Sherie beauty" in his contacts and found the deceased to be creepy. A witness, Sjon Bayes, is expected to give evidence about that incident.

18. The defence case, as described in argument, is that Mr Lupton acted in self-defence. I was told that he made an offer to plead guilty to manslaughter based on excessive self-defence and that this offer was not accepted. Accordingly, there will be no issue at the trial that he committed this stabbing. However, there is an issue as to precisely where the stabbing occurred. The prosecution case is that it happened in the backyard, while the accused's case is that it occurred inside the house. The accused also denies bringing the knife to the premises. I gather his case is that he found it somewhere on the premises. I further understand the murder weapon, as the prosecution would describe it, has never been located. It is anticipated there is to be some evidence of Mr Lupton washing the knife as he departed the premises.

19. That is probably sufficient detail of the case and issues to turn to the evidentiary controversies themselves. I will deal first with the tendency evidence.

Tendency Evidence

20. The prosecution seeks to adduce two pieces of evidence that it asserts is admissible to establish a tendency in the accused to be in possession of knives. That is how it is framed in the tendency notice. In argument, the Prosecutor clarified that this did not refer to “possession” in a legal sense, but rather, that it was to be suggested that the accused carried knives on his person, or that he had a tendency to do so.

21. The first piece of evidence on that subject concerns a police search of the accused the day before the murder. The evidence of this search comes from Senior Constable Simon Gairns. Initially, his statement on 23 February 2020 was tendered. As I have said, that was part of the original agreed tender bundle which was Exhibit VDA. An issue was foreshadowed or raised as to the lawfulness of the search. In a nutshell, I understand that Mr Webb would have contended that the circumstances did not give rise to a reasonable suspicion justifying a search of either the vehicle or particularly Mr Lupton himself. Therefore, it was to be submitted the search was an illegal or improper one and not authorised by the terms of the relevant legislation.

22. In response to that suggestion, or in any event, the officer produced a second statement, this dated 17 January 2022. He also produced over 200 pages of intelligence reports and like documents said to have informed the belief he said he had that justified the search.

23. The officer was available to be cross-examined, however, at the beginning of the argument the Prosecutor suggested that, before the Court embarked on the evidence concerning the issue of the lawfulness or propriety of the search, it was appropriate to consider the first issue raised by s 97 of the Evidence Act, that is, whether the tendency evidence, if proved and accepted, possessed significant probative value. After initial reluctance, I decided to adopt that approach before requiring the officer to give evidence relevant to the lawfulness of the search.

24. The evidence of Mr Gairns would establish that the accused was in a vehicle that was stopped by police at about 11.30pm on 22 February 2020, that is, about 24 hours before the stabbing. The police decided to search the accused and he was asked if he had any drugs, which he denied. He was then asked, "Is there anything sharp?" Mr Lupton tapped his pockets and said, "Oh, shit, I've got a little one in my pocket. I forgot I had it." The police took possession of what was described as a "small black foldable knife". There is a photograph of the knife in Exhibit VDA:

25. The knife has since been destroyed and there was no other evidence of its precise dimensions. The accused, when interrogated about his possession of that item, said words to the effect that he “likes knives” or that he “collects knives”, or both.

26. The second piece of evidence came from the date of the accused's arrest for murder, that is 6 March 2020. On that day he was found to be in possession of a spring-loaded blade within a clear cylinder. That item was photographed and was around 8 centimetres in length before the blade protruded. The knife was tendered in evidence and then returned to the prosecutor. The blade was around, perhaps, 2 centimetres in length and less than half a centimetre in width. A photograph of the knife was also included in Exhibit VDA:

27. The accused was also in possession of drugs.

28. Mr Webb indicated in argument that his instructions were that the blade was used to scrape or clean an ice pipe in which methylamphetamine was smoked. There was no evidence that he was in possession of such a pipe when he was arrested, but his explanation for the presence of the knife is neither here nor there. I accept the joint position of the parties that there will be a lot of evidence of ice use in the trial, and I do not understand Mr Webb to suggest that the reason for his possession of the blade, if accepted - that is, to use it as part of his drug habit - would give rise to a relevant unfair prejudice in the context of other evidence to be adduced at the trial.

29. The prosecutor submitted that the evidence has significant probative value because of the anticipated dispute as to whether the accused brought the knife with him or found a knife at the premises when he found it necessary on his case to act in self-defence. I accept that this issue does give the evidence more probative value than it would otherwise have had. Whether it rises to the level of having significant probative value is a question of evaluation.

30. As the High Court said in the case of Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [42]:

“Unlike the common law which preceded 97(1)(b), the statutory words do not permit a restrictive approach to whether probative value is significant, however, the open-texted nature of an inquiry into whether ‘the Court thinks’ that the probative value of the evidence is ‘significant’ means that it is inevitable that reasonable minds might reach different conclusions.”

31. The process of reasoning involved when tendency evidence is adduced, as explained by Simpson J, as she then was, in Elomar v R [2014] NSWCCA 303, in passages which were later cited with approval by Gageler J in IMM v R (2016) 257 CLR 300; [2016] HCA 14 at para 104. Simpson J put it this way, at 253:

“Tendency evidence is evidence tended to establish that a person has or had a tendency to act in a particular way or to have a particular state of mind. It is evidence that is tendered in order to provide the foundation for an inference that, because the person has or had that tendency, it is more likely that he or she behaved in a particular way or had a particular state of mind at a time or in circumstances relevant to the issues in dispute.”

32. Later at 360 her Honour said:

“The process of reasoning is:

•   On an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way.

•   It can, therefore, be concluded or inferred that the person had a tendency to act in that way.

•   By reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency.”

33. In Hughes, the High Court also discussed at [41] the two matters relevant to an assessment of the probative value of tendency evidence. These passages were set out in the Prosecutor’s helpful written submissions (at [19]-[20]):

“The majority in Hughes (HCA) said, at [41]:

The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.”

“Striking similarity is not a necessary pre-condition for admissibility. As was said in Hughes (HCA) at [39]:

Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue.”

34. The evaluation is to be undertaken by reference to the other evidence expected to be given in the case of the party relying on the tendency evidence: see s 97(1)(a) of the Evidence Act 1995 (NSW). Some of that other evidence was detailed in the Prosecutor’s submissions at [42]:

“That evidence includes:

i.   The accused was upset that the deceased had Sherie O’Neill’s number stored as “Sherie Beauty” (CCS [9] & [14]);

ii.   Thirteen days before the stabbing the accused threatened to stab the deceased (and others) if his daughter ended up in care (CCS [10] & Number 3 in Table);

iii.   One to two weeks before the stabbing the accused punched the deceased and scratched the word “DOG” on the bonnet of his car. The accused said he did this because Sherie O’Neill told him her name was saved in the accused’s phone as, “Sherie Beauty” and the deceased seemed like a creep (CCS [11]-[15]);

iv.   After the above incident the deceased avoided the accused (CCS [16]);

v.   At 9.05am on the day of the stabbing the accused sent a message to Sherie O’Neill, part of which read, “u really think I care what happens to me I can do jail with a breeze” (Number 120 in Table);

vi.   At 10.59am on the day of the stabbing the accused sent a message to Sherie O’Neill telling her how angry he was (CCS [21] & Number 170 in Table);

vii.   At 12.16pm on the day of the stabbing the accused sent a message to Sherie O’Neill threatening to kill her sister’s boyfriend and stab her sister to death (CCS [21] & Number 185 in Table);

viii.   At 12.16pm on the day of the stabbing the accused sent a message to Sherie O’Neill saying he did not care about the police (CCS [21] & Number 186 in Table);

ix.   At 12.22pm on the day of the stabbing the accused sent a message to Sherie O’Neill saying nothing was “putting fear” in him, and he was prepared to spend the rest of his life in gaol (CCS [21] & Number 188);

x.   When in the backyard of the property with the deceased, the accused told him not to go anywhere (CCS [33]);

xi.   Immediately after the stabbing the accused washed the knife, which is described as having a 10 to 15 centimetre blade and fled the scene (CCS [36]-[37]);

xii.   At 12.19am, shortly after the stabbing, the accused sent three messages to Charleen O’Brien saying, “I did something”, “U know what I’m saying”, and “Dipped dipped someone” (CCS [45] & Numbers 327, 331 & 332);”

35. Of the items enumerated in paragraph [42] of the Prosecutor's submissions, a number are subject to the second and different objection, those being items (v)-(ix) and (xii). This is why I said at the outset that the two evidentiary issues are interrelated.

36. I have concluded that the evidence does not possess significant probative value (s 97) and, further, that the danger of unfair prejudice outweighs any probative value that it does possess (s 101).

35. The prosecutor specifically eschews any suggestion that the accused had a tendency to stab people or that it could prove that, or that the tendency evidence upon which reliance was to be placed, could establish that. It is one thing to establish that a person likes, carries or collects knives. It is a different thing to establish that a person might produce one in a fight or argument.

36. While I accept that the issues in this trial, especially the factual dispute as to how the accused came by the weapon that was used to stab Mr Jaouhara, gives the evidence more probative value than it would ordinarily have, I cannot conclude it has significant probative value as tendency evidence in the particular circumstances of the case.

37. Further, in view of the other evidence to be led by the prosecution, including evidence that the accused had previously threatened to stab the victim and had assaulted him, there is a risk, in spite of the clearest of directions, that the jury might misuse the evidence and reason that an accused is the type of person liable to produce a knife in the course of an altercation. I am not able to accept the Prosecutor's submission that the directions could be fashioned in such a way that would prevent the jury or some of its members from misusing the evidence; nor do I think the jury could compartmentalise the evidence of tendency to possess (rather than to use) a knife in the way suggested by the learned Prosecutor from the evidence that he had threatened to stab Mr Jaouhara and, if it is admitted, other people in the weeks or days leading up to the incident.

38. For those reasons, which are by necessity very brief, I reject the tender of the tendency evidence.

Admissibility of Text Messages

41. I move then to the text messages. I have come to a contrary conclusion about most of the text messages. Mr Webb categorised the text messages into what he described as “tranches” based essentially on their subject matter. More fundamentally, the messages fell into pre-offence and post-offence conduct or statements.

42. I have found it easy to resolve the admissibility of the post-offence messages to which objection is taken. Those are items 331 and 332 in the bundle of text messages. Those two messages have to be considered in light of the text message numbered 327. The text message at 327 states, with the author being Mr Lupton himself to someone called Charlene O'Brien, "I did something." Moments later, with the same time stamp on this document, he wrote, "You know what I'm saying” and “dipped dipped someone". Those statements, given their timing and the events we know occurred shortly before, are capable of amounting to an admission.

43. It is true that the accused will admit the stabbing in the way that the trial is conducted, but that does not make the evidence inadmissible or prevent the prosecution from proving its case by, amongst other things, the text messages apparently sent by the accused. I am unable to identify any unfair prejudice in the evidence and the evidence is admissible.

44. Contrary to Mr Webb's submissions, the messages and exchanges before the offence are also relevant. In particular, the jury will be able to use that evidence as demonstrating the accused's state of mind. The messages subject to objection are all around the time of the stabbing or in the days leading up to it. They demonstrate the extent of Mr Lupton's anger with Sherie O'Neill and the various causes of that anger. They are relevant to his intentions and purposes in attending the premises, and are capable of bearing upon the jury's rational assessment of Mr Lupton's intentions and also its consideration of the issue of self-defence. I might set that out in more particularity and detail in due course. ^[1]

    1. I decided not to do so.

45. The evidence is capable of establishing, at least indirectly, why the accused may have been acting aggressively, including towards the deceased, and may throw light on his assertion that he acted in self-defence. They show that he was behaving, it seems, irrationally; taking Sherie's car at one stage, threatening her friends and relatives.

46. There is, I accept, some potential for misuse especially the evidence at item 185, where Mr Lupton makes a threat to stab either the sister or her boyfriend; it is ambiguous which or whom. However, in the absence of the complicating evidence of him being found with the knife the day before and then again later on arrest, I am satisfied that the jury can be directed as to the limited use of the evidence, that is, going to the accused's state of mind and anger at the time of the incident. I am satisfied the jury will be capable of obeying such directions without using the evidence as tendency evidence or in some other irrational or prejudicial way.

47. I would, however, exclude the references in 186 to the accused "not caring about the coppers" and, at 188, “not caring about spending the rest of his life in gaol”. The potential prejudice of that evidence outweighs any probative value that it may have. It would be a matter for the parties to determine whether 188 in particular can be edited in such a way as that offending part is removed, or whether the whole text message will go. If they need me to make a further ruling on that issue, I will do so.

48. I will also exclude, as a corollary to my ruling on the tendency evidence, items 87 to 90 which concern Mr Lupton being arrested the night before the offence and having a knife seized from him.

49. The rulings I make are that:

1. The tendency evidence is excluded.

2. The text messages are admissible with the exception of items 87 to 90, 186 and all or part of 188.

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Endnote

Amendments

31 January 2022 - Catchwords amended.

Decision last updated: 21 February 2024