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Supreme Court 21 January 2021

R v Sharpe (No 2)

[2021] NSWSC 32

Homicide
EVIDENCE EXCLUSION OF EVIDENCE ACCUSED CHARGED WITH MURDER

Citation: R v Sharpe (No 2) [2021] NSWSC 32
Court: Supreme Court of New South Wales
Date: 21 January 2021
Judge: Bellew J

Background

The accused stood charged with the murder of a neighbour at Surfside, New South Wales on 13 April 2019. The sole issue at trial was whether the accused acted in self-defence or in defence of his father. The accused had been in custody for approximately 20 months by the time the matter came before the court in January 2021, with the trial listed to commence at Queanbeyan on 1 February 2021.

Central to this interlocutory application was a blood pattern analysis report prepared by Detective Senior Sergeant Greg Moon, a forensic specialist who had attended the crime scene on 14 April 2019. The report, which ran to dozens of paragraphs containing detailed expert opinions on bloodstain patterns, was not served on the accused's solicitor until 6 January 2021 and did not come to defence counsel's attention until 13 January 2021, less than three weeks before the trial date.

The accused moved to exclude the expert opinion evidence in the report, or in the alternative, to have the trial date vacated. The Crown was required by the court to file an affidavit fully explaining the circumstances that led to the delay in preparation and service of the report.

  • Whether the expert opinion evidence of Detective Moon should be excluded given the circumstances of its late service on the defence
  • Whether the delay in serving the report, and the failure by the Crown to adequately monitor its preparation, denied the accused a fair opportunity to properly meet the Crown case
  • Whether, if the evidence were admitted, a vacation of the trial date would be the appropriate remedy

Decision

Bellew J found the Crown's explanation for the delay wholly inadequate. The affidavit filed by the Crown solicitor fell well short of providing any proper explanation for the sequence of delays. An initial request for a DNA certificate necessary to complete the report was not made until ten months after Detective Moon attended the scene. When the DPP was advised in September 2020 that the report would be served within a week, three months passed before any further inquiry was made. The court described it as beggar belief that no follow-up occurred in those circumstances.

His Honour also found that even when the DNA certificate was received in September 2020, the DPP took no meaningful steps to ensure the report was finalised and served promptly. What occurred between the December 2020 inquiry and the eventual service of the report on 6 January 2021 was entirely unexplained on the evidence before the court.

The court reaffirmed the fundamental principle that an accused person is entitled to know the case against them in sufficient time before trial to obtain legal advice and, where necessary, retain an expert to respond to the Crown's evidence. Serving a lengthy forensic report less than a month before trial, with no adequate explanation for the delay, breached that principle significantly. One week was plainly insufficient to allow the defence to retain a competing expert.

Bellew J excluded the specified paragraphs of Detective Moon's report containing expert opinion evidence. Because the exclusion resolved the immediate problem, the trial date of 1 February 2021 was confirmed rather than vacated. The court expressed considerable concern about the conduct of the investigation and preparation of the case, observing that those involved had clearly not appreciated the fundamental importance of timely service of evidence.

Orders Made

  • The expert opinion evidence of Detective Senior Sergeant Greg Moon contained in specified paragraphs of his statement of 3 January 2021 is excluded
  • The trial date of 1 February 2021 at the Supreme Court sitting at Queanbeyan is confirmed
  • The matter is listed for further directions at 9:30 am on Friday 29 January 2021
  • The Crown is to file and serve a notice of motion and submissions in support by 4:00 pm on Monday 25 January 2021
  • The accused is to file any submissions in reply by 4:00 pm on Wednesday 27 January 2021
  • An order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) for the attendance of the accused by AVL

Key Takeaways

  • Bellew J excluded significant portions of a Crown expert report where it was served less than one month before trial with no adequate explanation for a delay of nearly two years since the expert first attended the crime scene.
  • The fundamental principle that an accused is entitled to know the Crown case in sufficient time to properly prepare a defence was central to the court's reasoning, and its breach in this case was characterised as significant.
  • A Crown affidavit filed to explain the delay was found to be inadequate, with the court drawing the inference that no meaningful follow-up inquiries were made during substantial gaps in the Crown's monitoring of the report's progress.
  • Late service of important Crown evidence does not automatically result in a vacation of the trial date. Where exclusion of the evidence resolves the prejudice to the accused, the court may maintain the trial listing.
  • The Supreme Court issued a clear warning that those responsible for preparing and serving evidence in criminal proceedings risk exclusion of that evidence if the process is approached in what the court described as an "entirely unsatisfactory and lackadaisical way."

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 77

Cases
- Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209
- R v Rice (No 4) [2014] NSWSC 1525
- R v Rogerson; R v McNamara (No 41) [2016] NSWSC 364
- R v Sharpe (No 1) [2020] NSWSC 1794