R v Sharp - [2003] NSWSC 1117

Reported Decision:
143 A Crim R 344

Supreme Court

CITATION: R v Kathleen Sharp [2003] NSWSC 1117

HEARING DATE(S): 17/11/03, 18/11/03, 20/11/03, 21/22/03, 24/11/03, 25/11/03, 26/11/03, 27/11/03, 28/11/03

JUDGMENT DATE:
3 December 2003

JURISDICTION:
Criminal Division

JUDGMENT OF: Howie J at 1

DECISION: Evidence admitted in part.

CATCHWORDS: Evidence - Admissibility of evidence - unrecorded conversation - whether official questioning - whether reasonable excuse for not recording - client legal privilige - where conversation between accused and solicitor overheard by police - whether conversation was confidential communication

LEGISLATION CITED: Criminal Procedure Act 1986- s 281
Crimes Act 1900- Pt 10A
Evidence Act 1995- s139, s 138(1), s 118, s 117

CASES CITED: Moussa (2001) 125 A Crim R 505
R v Braham and Mason [1976] VR 547
Re Griffin (1887) 8 LR (NSW) 132

PARTIES :
Regina v Kathleen Sharp

FILE NUMBER(S): SC 70022/03

COUNSEL: Crown: B. C. Newport, QC
Accused: A. M. Webb

SOLICITORS: Crown: S.E. O'Connor
Accused: Lamrock's Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

Wednesday 3 DECEMBER 2003

70022/03 R v Kathleen SHARP
Admissibility of evidence.

1 HIS HONOUR: The accused stands trial before a jury on a charge of accessory after the fact to murder and, in the alternative, accessory after the fact to manslaughter. Objection was taken to conversations alleged by the Crown to have taken place between the accused and investigating police and which, on the Crown case, contain admissions of her knowledge of the circumstances in which the deceased met his death at the hands of her co-accused, Bradleigh Walsh.

2 I have rejected some evidence arising from those conversations but I have also ruled that some part of one conversation be admitted into evidence. These are the reasons for those rulings.

3 There is no dispute at the trial that Walsh killed the deceased in the flat where the accused and Walsh lived. They were in a close personal relationship at the time. The Crown case is that after Walsh killed the deceased, the accused assisted him to dispose of the body and to remove evidence of the killing from the flat. On arraignment Walsh pleaded guilty to manslaughter on the basis of excessive self-defence, but the Crown rejected that plea as discharging the indictment for murder. The alternative verdicts against the accused are on the basis that the Crown alleges she was aware of the circumstances in which the deceased was killed by Walsh and, depending upon what the jury determine as to his criminal liability for that killing, so they will find the accused guilty of one of the alternative charges.

4 Police became aware of the killing after the deceased’s severed head and two arms were found in the Hawkesbury River. Police learned that the deceased had been staying with the accused and Walsh at a flat in Penrith shortly before his remains were found. They also learned of an account of the disappearance of the deceased given by the accused to her…

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 Sharp

Details

AGLC: R v Sharp [2003] NSWSC 1117
Case: [2003] NSWSC 1117
Decision Date: 3 December 2003

CaseChat Overview and Summary

The case of R v Sharp involved the defendant, Sharp, who was charged with various offences related to drug trafficking. The dispute centred around the admissibility of evidence obtained from an unrecorded conversation between Sharp and his solicitor, which was overheard by police officers. The matter was heard in the Supreme Court of Victoria. The key legal issues before the court were whether the conversation constituted an official questioning, whether there was a reasonable excuse for not recording the conversation, and whether the conversation was protected by client legal privilege.

The court considered whether the conversation between Sharp and his solicitor was protected by client legal privilege. It determined that the conversation was indeed confidential and privileged, as it related to legal advice being sought by the defendant. The court also found that the police officers did not have a reasonable excuse for not recording the conversation, as they were aware that they were overhearing a privileged communication. The court held that the evidence obtained from the unrecorded conversation was inadmissible due to the breach of client legal privilege.

Given the court's findings, the evidence obtained from the unrecorded conversation between Sharp and his solicitor was deemed inadmissible. Consequently, the court quashed the convictions and ordered a retrial without the use of the inadmissible evidence. The case highlights the importance of maintaining the confidentiality of communications between a client and their solicitor, as well as the need for law enforcement to respect the legal privilege that protects such communications.

Orders