R v Sharpe (No 4)

[2021] NSWSC 51

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sharpe (No 4) [2021] NSWSC 51
Hearing dates:	5 February 2021
Date of orders:	5 February 2021
Decision date:	08 February 2021
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	Evidence admitted
Catchwords:	EVIDENCE – Accused charged with murder – Where Crown sought to tender evidence of a photograph establishing that knife used by the accused to stab the deceased was capable of fitting within the pocket of shorts worn by him at the time of the murder – Where photograph was objected to on the basis that its probative value was substantially outweighed by the danger that it might be misleading or confusing or be unfairly prejudicial – Evidence admitted
Legislation Cited:	Evidence Act1995 (NSW)
Cases Cited:	R v Lockyer (1996) 89 A Crim R 457
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)

1. The accused in this matter has pleaded not guilty to a charge of murder.  The Crown case is part way through and the principal issue is one of self‑defence, and/or the defence of another. There is no dispute that a knife was used by the accused to stab the deceased, nor is there any dispute that the stabbing caused the deceased's death.

2. On 28 January 2021, investigating police provided a statement to the Crown setting out the results of a number of investigations undertaken on that day in relation to the size of the knife.  Annexed to that statement were 4 photographs. I infer that this material was only served on those acting for the accused fairly recently.  This is yet another unfortunate example of material sought to be relied upon by the Crown being served on those acting for the accused at what might be described as the eleventh hour.  I have already observed in a previous judgment delivered in these proceedings[1] that such a practice is entirely unsatisfactory. That is particularly so in circumstances where the issue to which this evidence goes is certainly not a complicated one. Given that the alleged offence occurred almost two years ago, the matter could (and should) have been addressed far earlier.

   1. See generally R v Sharpe (No. 2) [2021] NSWSC 32

3. The statement sets out the fact that police measured the dimensions of the knife, and also measured the dimensions of the pocket of a pair of shorts worn by the accused at the time of the murder.  Based on this (and other) evidence, the Crown will invite the jury to infer that in light of the relative measurements of the pocket on the one hand and the knife on the other, the accused had the knife in his pocket at or about the time of the murder. In this respect, the Crown will seek to tender four photographs. The first two show the outside of the shorts.  The third shows the pocket from the inside of the shorts. The fourth shows the knife placed on top of the pocket. That last photograph makes it clear that the knife is at least capable of fitting within the confines of the pocket.

4. Mr Anderson of counsel, who appears on behalf of the accused accepted that he could not object to the evidence of the measurements of the knife and the pocket, nor to the tender of the first three photographs. However, he objected to the fourth photograph on the basis of s 135 of the Evidence Act1995 (NSW) which is in the following terms:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.

5. Mr Anderson’s objection was on the basis that the probative value of the photograph is substantially outweighed by the danger that it might be unfairly prejudicial to the accused[2] , or that the photograph might be misleading or confusing. [3]  In support of both of those objections, he submitted that the tender of the fourth photograph would give rise to a danger that the jury would treat it evidence of the fact that the accused had the murder weapon in his pocket at the time he attacked the deceased.

   2. Section 135(a).

   3. Section 135(b).

6. The Crown properly disavowed any intention to tender the photograph as evidence of the fact that the accused had the knife in his pocket at the relevant time. The Crown made it clear that it would rely on the photograph, along with the other evidence set out above, as evidence establishing that the knife fitted within the pocket of the shorts. The Crown will, in due course, invite the jury to draw an inference that the accused had the knife in the shorts at the time of the deceased’s murder.

7. Based on the evidence in the trial thus far, it seems to me that the Crown could not submit to the jury that the photograph is evidence of the fact that the accused had the knife in his pocket. 

8. Bearing in mind the basis of the tender, and even though there is no issue that the accused stabbed the deceased, I am of the view that the photograph has some probative value. Moreover, once the basis of its tender is understood, the objection raised by counsel for the accused largely falls away.  This is not a case where the probative value of the photograph is substantially outweighed by either of the factors which were relied upon.

9. In my view there would be no unfair prejudice to the accused if the photograph was tendered.  Unfair prejudice in this context refers to a danger that the jury may use the evidence in a manner which is not logically connected with the issues in the case. [4]   There is no such danger, bearing in mind the stated purpose of the tender. Moreover, I will direct the jury at the time of the tender of the photograph, in specific terms, that it is not evidence of the fact that the accused had the murder weapon in his pocket at any time.

   4. See for example R v Lockyer (1996) 89 A Crim R 457.

10. Similarly, I am not satisfied that the probative value of the photograph is substantially outweighed by the danger that it might be misleading or confusing.  There is nothing misleading or confusing about the photograph, or what it depicts. The Crown's purpose in tendering it will be made clear to the jury by the direction to which I have referred. 

11. For all of those reasons, I propose to admit the photograph into evidence.

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Endnotes

Decision last updated: 24 February 2021