R v Sharpe (No 5) - [2021] NSWSC 52

Supreme Court

New South Wales

Medium Neutral Citation: R v Sharpe (No 5) [2021] NSWSC 52
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 in part

Catchwords:
EVIDENCE – Tendency evidence - Accused charged with murder – Defence of self-defence or defence of another – Where counsel for the accused sought to adduce evidence of previous instances of violence on the part of the deceased as tendency evidence – Objection by Crown – Whether evidence had significant probative value – Effect of time lapse between some of the instances relied upon and the deceased’s murder – Evidence admitted in part

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9
El‑Haddad v R (2015)88 NSWLR 93; [2015] NSWCCA 10
Galea v Farrugia [2013] NSWCA 164
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) 361 ALR 13
The Queen v Bauer(a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Reeves (a pseudonym) v R (2013) 41 VR 275; [2013] VSCA 311
R v Lockyer (1996) 89 A Crim R 457

Texts Cited:
Oxford English Dictionary
Macquarie Dictionary

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 the murder of Andrew Drake (the deceased). There is no issue that the deceased died as a consequence of being stabbed by the accused. The stabbing occurred, on the accused’s case, following an altercation between the deceased and the accused's father. The accused asserts that he needed to intervene in that altercation in order to protect his father. It is part of the accused’s case that his father was attacked by the deceased with a knife.
By an amended tendency notice dated 25 January 2021 counsel for the accused seeks to elicit evidence of three particular matters on the basis that such evidence demonstrates a tendency on the part of the deceased to be violent and unpredictable. Before I come to the precise terms of that notice, it is appropriate that I set out the following passage of defence counsel's opening address to the jury: [1]

What happens over the next few moments, perhaps no more than 30 seconds, maybe a minute, this is where the dispute in this case lies. There is no doubt that David Sharpe had his left hand badly slashed with a knife, and he lost enormous amounts of blood, both inside and outside the shed. He lost some skin which fell onto…

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 5)

Details

AGLC: R v Sharpe (No 5) [2021] NSWSC 52
Case: [2021] NSWSC 52
Decision Date: 08 February 2021

CaseChat Overview and Summary

The case of R v Sharpe (No 5) involved the accused, Sharpe, who was charged with murder. The defence sought to adduce evidence of previous instances of violence on the part of the deceased as tendency evidence to support a claim of self-defence or defence of another. The Crown objected to the introduction of this evidence, arguing that it did not have significant probative value. The legal issue before the court was whether the evidence of the deceased's previous acts of violence was admissible under the tendency evidence provisions of the Evidence Act.

The court considered the probative value of the evidence and the potential prejudice to the accused. It noted that the evidence had to be relevant to an issue in the case and had to have significant probative value. The court also considered the time lapse between some of the instances of violence and the murder. It found that some of the evidence was too remote in time and did not have significant probative value. However, the court admitted some of the evidence as it was relevant to the issue of self-defence and had significant probative value.

The court held that evidence of the deceased's previous acts of violence could be admitted if it was relevant to an issue in the case and had significant probative value. The court found that some of the evidence was too remote in time and did not have significant probative value, while other evidence was relevant and had significant probative value. The court admitted the relevant evidence and left it to the jury to determine its weight. The accused was ultimately found not guilty of murder but guilty of manslaughter.

Orders