R v Sharpe (No 2) - [2021] NSWSC 32

Supreme Court

New South Wales

Medium Neutral Citation: R v Sharpe (No 2) [2021] NSWSC 32
Hearing dates: 21 January 2021
Date of orders: 21 January 2021
Decision date: 21 January 2021
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1)   The expert opinion evidence of Detective Senior Sergeant Moon contained in paragraphs 15.2; 19.2; 19.3; 62.3.1; 62.5.1; 62.6; 72.3; 72.4 and 72.5 of his statement of 3 January 2021 is excluded.
(2)   The trial date of 1 February 2021 in the Supreme Court of New South Wales sitting at Queanbeyan is confirmed.
(3)   The matter is listed for further directions at 9.30 am on Friday 29 January 2021.
(4)   The Crown is to file and serve a notice of motion and submissions in support by 4.00 pm on Monday 25 January 2021.
(5)   The accused is to file any submissions in reply by 4.00 pm on Wednesday 27 January 2021.
(6) I make an order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) for the attendance of the accused by AVL on that day.

Catchwords:
EVIDENCE – Exclusion of evidence – Accused charged with murder – Where Crown served lengthy expert report in relation to blood pattern analysis one week prior to the commencement of the accused’s trial – No explanation for the delay in serving the report – Evidence of failure by the Crown to properly enquire as to the progress of the preparation of the report – Where there was insufficient time prior to the commencement of the trial to allow the accused to retain an expert – Where alleged offence occurred almost two years ago – Accused already in custody for approximately 20 months – Further significant delay in the event that the Crown were permitted to rely on the evidence – Evidence excluded
PRACTICE AND PROCEDURE – Service by Crown of lengthy expert report a short time prior to the accused’s trial – Observations as to the unacceptability of the Crown serving material at such a late stage prior to an accused’s trial

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209
R v Rice (No 4) [2014] NSWSC 1525
R v Rogerson; R v McNamara (No 41) [2016] NSWSC 364
R v Sharpe (No 1) [2020] NSWSC 1794

Category: Procedural rulings
Parties: Daniel James Sharpe – Accused
Regina – Crown
Representation:
Counsel:
K Ratcliffe – Crown
T D Anderson – Accused
Solicitors:
Director of Public Prosecutions (NSW) – Crown
Jennifer Chalker Lawyer – Accused

File Number(s): 2019/215856
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

The accused in this matter has pleaded not guilty to an indictment alleging that on 13 April 2019, at Surfside in the State of New South Wales, he murdered Andrew Peter Drake (the deceased). His trial is listed to commence before the Court sitting in Queanbeyan on 1 February 2021 with an estimate of three to four weeks.
In short, it is the…

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 Sharpe (No 2)

Details

AGLC: R v Sharpe (No 2) [2021] NSWSC 32
Case: [2021] NSWSC 32
Decision Date: 21 January 2021

CaseChat Overview and Summary

The case of R v Sharpe (No 2) involved a criminal trial where the accused was charged with murder. The dispute centred on the admissibility of a lengthy expert report that the Crown served in relation to blood pattern analysis just one week before the commencement of the trial. The accused argued that the late service of the report, without any explanation, prejudiced their ability to adequately prepare a defence. The matter was heard in a court of criminal jurisdiction.

The legal issues before the court were whether the late service of the expert report by the Crown could be justified and whether the exclusion of this evidence was warranted. The court needed to consider the principles of fairness in criminal proceedings, the adequacy of the preparation time provided to the accused, and the impact of the delay on the accused's ability to mount a defence. The court also had to assess whether the Crown had adequately managed the preparation and service of the expert report.

The court found that the Crown's failure to properly enquire about the progress of the expert report's preparation and its late service significantly prejudiced the accused. Given the substantial length of the report and the short notice provided, the court held that there was insufficient time for the accused to retain an expert to review the report and prepare a counter-analysis, especially considering the accused had already been in custody for approximately 20 months. The court concluded that the late service of the report constituted a breach of the accused's right to a fair trial. Consequently, the court excluded the expert report from evidence.

The court emphasised the importance of timely service of expert reports in criminal trials to ensure fairness and the integrity of the judicial process. The exclusion of the evidence in this case underscores the necessity for the Crown to manage the preparation and service of expert reports responsibly, particularly in light of the potential impact on the accused's defence.

Orders