Citation: R v Sharpe (No 6) [2021] NSWSC 152
Court: Supreme Court of New South Wales
Date: 26 February 2021
Judge(s): Bellew J
Background
The accused faced a charge of murder. There was no dispute that he had stabbed the deceased on multiple occasions, causing death, and that he had acted with the requisite intention. The sole issue at trial was whether the accused had acted in self-defence or in defence of his father, who was engaged in a physical altercation with the deceased at the time.
During the trial, the Crown sought to tender extracts from two conversations between the accused and his father, recorded by a listening device on 14 May 2019 and 18 May 2019. In those conversations, the accused gave an account of the incident that included descriptions of picking up and throwing the deceased across a room, and of punching the deceased until he died.
The accused's counsel objected to the tender of that evidence. Bellew J heard submissions on the voir dire (a preliminary hearing to determine the admissibility of evidence) and excluded both extracts, later publishing these reasons explaining why.
Legal Issues
- Whether the recorded conversations between the accused and his father were relevant and probative on the question of self-defence
- Whether the probative value of the conversations was substantially outweighed by the danger of unfair prejudice to the accused, warranting exclusion under s 137 of the Evidence Act 1995 (NSW)
Decision
The Crown argued the conversations were highly probative because they contained the accused's own account of events, which bore on whether he had a reasonable belief that his actions were necessary. The accused's counsel countered that the conversations were recorded well after the events in question, and therefore could not establish the accused's state of mind at the relevant time. Counsel also submitted that the contents were misleading, confusing, and gave rise to a real danger of unfair prejudice.
Bellew J accepted that the evidence was relevant, but concluded its probative value was limited. This was because the accused's description of his conduct, including throwing and punching the deceased, formed no part of the Crown's own case against him. The Crown case was confined to the stabbing.
Critically, the forensic pathologist, Dr Pokorny, had given evidence at trial that disclosed no injuries on the deceased consistent with the conduct the accused described in the conversations. The account given in the recordings was therefore not only outside the Crown case but was also inconsistent with the Crown's own expert evidence.
Bellew J concluded that any probative value the conversations may have had was substantially outweighed by the danger of unfair prejudice. Admitting the evidence would risk portraying the accused unfavourably based on conduct that the Crown did not allege and that the physical evidence did not support. Section 137 of the Evidence Act therefore mandated exclusion.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a court must exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant.
- The Supreme Court found that an accused's own out-of-court account of an incident may carry limited probative value where the account describes conduct that forms no part of the Crown case and is inconsistent with the Crown's expert evidence.
- Unfair prejudice arose here because admitting the recordings risked the jury forming an adverse view of the accused based on conduct that was never alleged against him at trial.
- The timing of the recordings, made well after the relevant events, was a relevant factor in assessing their probative value, particularly on the question of the accused's state of mind at the time of the incident.
- Evidence may be excluded even where it is technically relevant, if the dangers associated with its admission outweigh the contribution it could properly make to the fact-finding process.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137
Cases cited: None cited in the judgment.