R v Sharpe (No 6)

[2021] NSWSC 152

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sharpe (No 6) [2021] NSWSC 152
Hearing dates:	9 February 2021
Date of orders:	9 February 2021
Decision date:	26 February 2021
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	Evidence excluded
Catchwords:	EVIDENCE – Exclusion of evidence – Accused charged with murder – No issue that the accused stabbed the deceased causing his death – Sole issue of self-defence and/or defence of his father – Where the Crown sought to adduce evidence of conversations between the accused and his father in which the accused gave an account of what had occurred – Where that account was inconsistent with and formed no part of the Crown case – Whether the probative value of the evidence was outweighed by the danger of unfair prejudice – Evidence excluded
Legislation Cited:	Evidence Act 1995 (NSW)
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

1. The accused in this matter pleaded not guilty to a charge of murder. There was no issue that the accused stabbed the deceased on multiple occasions causing his death, nor was there any issue that the accused acted with the necessary intention. It was the accused's case (and it was the sole issue in the trial) that in stabbing the deceased, he acted in self-defence, and/or the defence of his father with whom the deceased was engaged in a physical fight at the time.

2. In the course of the trial the Crown sought to tender to extracts from two conversations between the accused and his father which were recorded by way of a listening device, the first on 14 May 2019 (the first conversation) and the second on 18 May 2019 (the second conversation). The tender of that evidence was objected to by counsel for the accused and after hearing submissions, I excluded the evidence. I indicated at that time my reasons for doing so would be published in due course. Those reasons now follow.

3. The extract from the first conversation [1] was as follows:

   1. Exh A on the voir dire.

Accused:   Fuck fair enough yeah you fucking started me and then I just fucking pushed the cunt straight into that chair.

Father:    Yeah but we've. We've done nothing wrong.

Accused:    But see like how lucky are you? How lucky am I? Like with your hand… going for your fucking throat. But then you've done that. And I've been able. And because you've done that. You've just fucking fluked it. Like you weren’t drunk or anything. You just fluked it. And you've just tried to keep calm. And then I protected you by just getting that cunt out of there and unfortunately the cunt he had to die, had to die but like, how fucking lucky are you….Because I'm only little but… your dad. And you think your dad. That fucking strength comes out of nowhere.

Father:   … Smacked me. I hit the ground. And fuckin got back up. Fucking ripped the cunts… fucking. Had him on the ground.

Accused:    (laughing) Yeah. While he was on top of you, you were still punching the fuck out of him. I've never. I've never felt anything like that in my life Dad.

Father:    You shouldn't have to.

Accused:    But you know what I mean? As soon as you. As soon as I’ve like he’s…… As soon as I've seen that first bit of blood. I got the energy like… hey. And I was like gravity… and I'd never be able to… that strength but pick an eighty ninety kilo man up and throw the cunt halfway across the room and then just grab hold of him and…

Father:    Inaudible.

Accused:    But like. When you think that this dude is trying to kill your Dad and you and you go righto cunt. You’re going to do whatever you want to me. Cut me up whatever. But you're not going back in that shed you cunt. And then just throw him the fucker. And then just grab him and just throw him around. Like I probably only landed about two or three punctures on him.

Father:    Yeah.

accused:    But it was more just fucking grabbing hold of him and just throwing the cunt around. Like I remember even lifting him off the ground.

Father:    Year.

Accused:    See like a 70 kilo person shouldn't be able to lift a 90 kilo person up with their hands off the ground. I've got big arms but I’m not that strong. Like you said adrenaline… you know what I mean… off the ground… quite scary like… that far off the ground. Pick some cunt up… Yeah but I just. But like. Not many people. Like can pick up a ninety kilo man up off their feet and throw them. And then pick them back up off their feet and fucking……

4. The extract from the second conversation [2] was as follows:

   2. Exh D on the voir dire.

Accused:    Sit there and fucken judge me mate, just shut up.

Father:    No judging any more, mate.

Accused:    No, well you're just being a fuckwit mate, you're not the only one that's fucken seen a dead body cunt, I see it every day.

Father:    Hey, I know.

Accused:    I fucken covered in blood and shit.

Father:    Yep.

Accused:    Locked up 3 days.

Father:    Rightio.

Accused:    You're in an (sic) out straight to hospital, perfect.

Father:    Yeah, great.

Accuse:   You’re not the only one dealing with shit at the moment.

Father:    Yeah. You didn't have to put that fuckwits hat on your head did yah?

Accused:    What hat?

Father:    His hat.

Accused:    I don't own his fucking hat.

Father:    I said the other day I picked it up and put it on me fucken head.

Accused:   It was probably, he didn't have a hat on.

Father:    Yeah he did.

Accused:   That was her hat.

Father:    Nuh, her hat was it? With all the ducks, red ducks and that shit on it like the…

Accused:    Yeah, I think so, yeah, but he didn't have a hat on at all.

Father:   Right.

Accused:   But you weren't the one that actually physically ended somebody's life dad.

Father:    Yeah, I know but no one did.

Accused:    I don't want to talk about it.

Father:   No one did, righty oh?

Accused:    I just don't want to talk about it.

Father    Neither do I, shit.

Accused:    Dad you don't need to carry on, that's what I'm saying.

Father:    But, but, what happened, mate.

Accused:    I don't care about that, I'm saying you've just got to relax and you've got to stop carrying on to me dad.

Father:    Righty oh.

Accused:    Look I know you're going through a lot but you didn't push and punch the fuck out of some cunt until his lights faded out of his eyes.

Father:   Righty oh.

Accused:   You didn't have the cunt on the ground going die cunt, die cunt, die cunt.

Father:   Righty, well, righty oh..

Accused:   Alright so just relax, that's all I'm asking you just to be nice and pleasant like I'm trying to be, alright.

Father:    Yeah.

Accused:    That's all I fucken want.

Father:    All good.

Accused:    I love you dad

Father:    I love you too, mate, I'm just…

Accused:    Right you've just got to be happy, I'm happy. You understand I'm trying to (incomprehensible) things happened.

Father:    Yeah I know.

Accused:    But at the end of the day I was protecting you Dadda, and it's like you gotta understand like shit that I've had to see and what I had to do, and like, you've got to understand that sort of point of view as well, I know its hard sometimes.

…

Father:    Hear that fucken thing clickin again, mate.

Accused:    Oh shut up.

Father:    Oh, mate, who’s (sic) the bloke with fucken half a hand, rightio?

Accused:   Who’s (sic) the cunt that punched someone to death.

Father:      You.

5. It was the Crown's overall submission that the evidence was highly probative because the conversations incorporated accounts by the accused of what had occurred at the time of the deceased’s death. The Crown submitted that such accounts were relevant to, and probative of, the issue of whether the accused reasonably believed that it was necessary for him to act as he did.

6. Counsel for the accused pointed out that both conversations were recorded a substantial period after the relevant events, and were therefore not evidence of the state of mind of the accused at that time. Counsel further submitted that there was a clear danger of unfair prejudice arising from the conversations, and that their contents were misleading and confusing. In advancing these submissions counsel pointed out that the Crown case is (and has always been) that the accused stabbed the deceased, and that it had never been any part of the Crown case that the accused had picked the deceased up and thrown him across a room in the course of the altercation between them.

7. I took the view that there was considerable merit in the submissions of counsel for the accused. The Crown case against the accused was that he repeatedly stabbed the deceased to death. It was no part of the Crown case that the accused acted towards the deceased in the manner which was the subject of his discussion with his father. Moreover, evidence given in the trial by Dr Pokorny, a Forensic Pathologist, disclosed nothing in the way of injuries inflicted upon the deceased which might have been consistent with the incident described by the accused in the two conversations.

8. In those circumstances, accepting that the evidence is relevant, I concluded that its probative value was limited. I further concluded that any probative value that the evidence might have had was substantially outweighed by the danger of unfair prejudice to the accused, mandating its exclusion pursuant to s 137 of the Evidence Act 1995 (NSW). In particular, I concluded that there was a considerable risk that if the evidence were admitted it would have done nothing other than portray the accused in an unfavourable light, in circumstances where what he described in terms of his altercation with the deceased formed no part of the Crown case against him, and was inconsistent with expert evidence upon which the Crown relied.

9. It was for these reasons that I excluded the evidence.

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Endnotes

Decision last updated: 03 March 2021