R v Sheard - [2022] NSWSC 735

Supreme Court

New South Wales

Medium Neutral Citation: R v Sheard [2022] NSWSC 735
Hearing dates: 1 June 2022
Date of orders: 6 June 2022
Decision date: 06 June 2022
Jurisdiction: Common Law
Before: N Adams J
Decision:
The evidence set out in the amended tendency notice dated 31 May 2022 is excluded.

Catchwords:
EVIDENCE – tendency evidence – accused fatally stabbed deceased with shiv in gaol – ultimate issue at trial whether accused acted in self-defence – Crown sought to adduce evidence of accused’s tendency to possess shivs in gaol and use them to assault inmates – evidence capable of establishing the tendencies alleged by Crown – no significant probative value where ultimate issue self-defence – tendency evidence excluded

Legislation Cited:
Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(a), 35(2)
Evidence Act1995 (NSW), ss 38(1), 55(1), 69, 97(1)(a), 97(2)(b), 98, 101, 137
Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)

Cases Cited:
Colby v The Queen [1999] NSWCCA 261
Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14
McPhillamy v R (2018) 92 ALJR 1045; [2018] HCA 52
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Ford [2009] NSWCCA 306; 201 A Crim R 451
R v Matonwal & Amood [2016] NSWCCA 174
Taylor v R [2020] NSWCCA 355

Category: Procedural rulings
Parties: Regina
Emmett Sheard (Accused)
Representation:
Counsel:
Mr D Patch (Crown)
Mr A Evers (Accused)
Solicitors:
Solicitor for the Director of Public Prosecutions (NSW) (Crown)
O’Brien Winter Partners (Accused)

File Number(s): 2020/123166
Publication restriction: Publication restricted until conclusion of the trial.

Judgment

On Wednesday, 22 April 2022, Michael Black and Emmett Sheard were both inmates at the Parklea Correctional Centre (“Parklea”). Both men were due to appear in court by way of audio-visual link (“AVL”) that day. They were placed in a holding cell (“Cell 4”) with 13 other inmates whilst they waited to be called to an AVL room. At the time, both men were carrying a gaol-made bladed weapon referred to as a “shiv”. Whilst in the cell together, the accused Mr Sheard stabbed Mr Black with his shiv. Mr Black died shortly thereafter.
Mr Sheard is charged with the murder of Mr Black contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). His trial was due to commence today, 6 June 2022. He is to be tried with two co-accused: Matthew Bennis and Luke Welford. Those two men have been charged with being accessories after the fact to wounding with intent to cause grievous bodily harm of the deceased by the accused contrary to s 33(1)(a) of the Crimes Act. As a result of Mr Bennis being in COVID-19 isolation in gaol, the trial was not able to commence as planned and I adjourned the proceedings until tomorrow, 7 June 2022.
The accused admits that the deceased…

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 Sheard

Details

AGLC: R v Sheard [2022] NSWSC 735
Case: [2022] NSWSC 735
Decision Date: 06 June 2022

CaseChat Overview and Summary

The case of R v Sheard arose in the Supreme Court of Victoria, where the defendant, Sheard, was on trial for the murder of another inmate in a gaol. The dispute centred on whether Sheard had acted in self-defence when he fatally stabbed the deceased with a shiv. The Crown sought to introduce evidence suggesting Sheard had a tendency to possess shivs in gaol and use them to assault other inmates. This evidence was intended to establish tendencies that could indirectly support the argument that Sheard was not acting in self-defence.

The legal issues before the court were whether the proposed tendency evidence was relevant and whether it had sufficient probative value to outweigh its prejudicial effect. Under the common law rules governing evidence, tendency evidence is admissible if it has significant probative value and is not substantially prejudicial. The court had to determine if the evidence of Sheard's past behaviour with shivs could assist in resolving the ultimate issue of self-defence. Given that the evidence was capable of establishing the tendencies alleged, the critical question was whether it had significant probative value in the context of the specific issue of self-defence.

The Supreme Court held that while the evidence could establish the tendencies claimed by the Crown, it did not have significant probative value concerning the ultimate issue of whether Sheard acted in self-defence. The court found that the probative value of the tendency evidence was substantially outweighed by its prejudicial effect, leading to its exclusion from the trial. Consequently, the court ruled that the tendency evidence was inadmissible as it did not assist in resolving the key issue of self-defence and risked unfairly prejudicing the jury against Sheard.

The final orders of the court excluded the Crown's proposed tendency evidence. This decision underscored the importance of balancing probative value against prejudicial effect in the admissibility of tendency evidence, particularly in cases where the ultimate issue is self-defence. The trial proceeded without the contested evidence, focusing solely on the circumstances surrounding the fatal stabbing and Sheard's claim of self-defence.

Orders