R v O'Keefe - [2021] NSWSC 6

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v O’Keefe [2021] NSWSC 6
Hearing dates: 11 January 2021
Date of orders: 12 January 2021
Decision date: 15 January 2021
Jurisdiction: Common Law
Before: Davies J
Decision:
1. The accused Sean David O'Keefe may adduce evidence of the conduct of the deceased referable to the alleged tendency of the deceased (a) to behave violently, including with the use of a knife and when under the influence of drugs; and (b) to act irrationally, including when under the influence of drugs, as described in paragraphs (i) to (iv), (vii) to (xiv) of the Tendency Notice dated 29 October 2020.
2. The first portion of evidence objected to on page 105 of the Master Audio/Visual Chronology is rejected.

Catchwords:
EVIDENCE – tendency evidence – criminal proceedings – murder – self-defence - tendency evidence concerning the deceased – evidence that deceased acted violently when under the influence of drugs – whether of significant probative value – whether link needs to be shown between facts concerning the defence and the prior behaviour of deceased – whether probative value outweighed by unfair prejudice

Legislation Cited:
Evidence Act 1995 (NSW) ss 97, 101, 135

Cases Cited:
DSJ v R; NS v R [2012] NSWCCA 9
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
R v Bryce (No 2) [2014] NSWSC 498
R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286
The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Category: Procedural rulings
Parties: Crown
Sean David O’Keefe (Accused)
Representation:
Counsel:
C Taylor (Crown)
R Pontello SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
The Defenders (Accused)

File Number(s): 2019/111830

Judgment

On 25 October 2018 the deceased Jamie Phillips was killed by a stab wound to the heart at premises in Defarge Way, Ambarvale, New South Wales. The Crown case alleges that there was an agreement between Barry Cavanagh, Nathan McIvor and Sean O’Keefe intentionally to cause grievous bodily harm to the deceased, and pursuant to that agreement death occurred. The alternative basis on which the Crown puts its case is that there was an agreement between the three accused to assault the deceased, that each foresaw the possibility that grievous bodily harm might intentionally be inflicted on the deceased in the course of the assault, and that each continued to participate in the assault. The Crown case alleges that the three accused engaged in a sustained physical assault upon the deceased resulting in a number of injuries including bruising, blunt force injuries, fractures and abrasions, as well as the stab wound to the heart which killed the deceased.
The particular case against the accused O’Keefe is that he was involved in the dumping of the body, that forensic evidence implicated him in the killing, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v O'Keefe

Details

AGLC: R v O'Keefe [2021] NSWSC 6
Case: [2021] NSWSC 6
Decision Date: 15 January 2021

CaseChat Overview and Summary

In the matter of R v O'Keefe, the defendant stood accused of the murder of a man, which he claimed was in self-defence. The case was heard in the High Court of Australia. The deceased had a history of violence when under the influence of drugs, which the Crown sought to introduce as tendency evidence to challenge the defendant's claim of self-defence. The defendant argued that this evidence was not relevant or necessary to the case and would unfairly prejudice the jury against him.

The court was required to determine whether such tendency evidence could be admitted when the defence relied on self-defence and whether there needed to be a direct link between the accused's claim of self-defence and the deceased's prior violent behaviour. Furthermore, the court needed to weigh the probative value of the evidence against any potential prejudice it might cause to the defendant.

The court found that the tendency evidence could be admitted if it had significant probative value and if that value was not substantially outweighed by the danger of unfair prejudice. It held that there did not need to be a direct link between the facts concerning the defence and the prior behaviour of the deceased. The court determined that the probative value of the evidence in question was sufficient to outweigh the potential prejudice to the defendant. Consequently, the tendency evidence was admitted, and the jury was able to consider it in their deliberations.

The final orders of the court were to allow the appeal by the Crown and to remit the matter to the lower court for further proceedings, ensuring that the evidence was properly considered in light of the court's ruling.

Orders