Citation: R v Sharpe (No 4) [2021] NSWSC 51
Court: Supreme Court of New South Wales
Date: 8 February 2021
Judge: Bellew J
Background
The accused stood trial for murder, having pleaded not guilty. The central issue at trial was whether the accused acted in self-defence or in defence of another person. There was no dispute that the accused stabbed the deceased with a knife, or that the stabbing caused the death.
During the trial, the Crown sought to tender four photographs taken following a police investigation conducted on 28 January 2021, almost two years after the alleged offence. Those photographs depicted the exterior of a pair of shorts worn by the accused at the time of the murder, the inside of the pocket, and a knife placed on top of the pocket to illustrate their relative dimensions.
The accused's counsel did not object to the first three photographs or to the evidence of measurements of both the knife and the pocket. The objection was confined to the fourth photograph, which showed the knife placed against the pocket in a way that demonstrated the knife was capable of fitting inside it.
Legal Issues
- Whether the fourth photograph should be excluded under s 135 of the Evidence Act 1995 (NSW) on the basis that its probative value was substantially outweighed by the danger of unfair prejudice to the accused under s 135(a).
- Whether the photograph's probative value was substantially outweighed by the danger that it might be misleading or confusing under s 135(b).
Decision
Bellew J admitted the photograph into evidence, declining to exercise the discretion to exclude under s 135. His Honour noted that the Crown was not tendering the photograph as direct evidence that the accused had the knife in his pocket at the time of the murder. Rather, it was tendered to establish that the knife was capable of fitting within the pocket, as a step towards inviting the jury to draw an inference about where the knife had been.
On the question of unfair prejudice, Bellew J applied the principle from R v Lockyer (1996) that unfair prejudice arises where there is a danger the jury will use evidence in a manner not logically connected with the issues in the case. His Honour found no such danger once the limited basis of the tender was understood. The Crown's disavowal of any intention to use the photograph as proof of actual possession was accepted as genuine, and the photograph's purpose was logically connected to the inference the Crown sought to draw.
His Honour was equally unpersuaded that the photograph was misleading or confusing. Taken on its own terms, the image was straightforward in what it depicted. Bellew J indicated he would direct the jury at the time of tender that the photograph was not evidence that the accused had the knife in his pocket at any relevant time, which would address any residual risk of misuse.
The judgment also included a pointed observation about the late service of the material. The Crown had served the photographs and the investigating officer's statement only shortly before they were sought to be tendered, nearly two years after the alleged offence. Bellew J described this as "yet another unfortunate example" of last-minute disclosure, referencing a prior judgment in the same proceedings, and noted that the issue was not a complicated one that required late investigation.
Orders Made
• The photograph is admitted into evidence
• The jury will be directed that the photograph is not evidence of the fact that the accused had the murder weapon in his pocket at any time
Key Takeaways
- Under s 135 of the Evidence Act 1995 (NSW), a court may exclude evidence only where its probative value is substantially outweighed by the danger of unfair prejudice, misleading content, or undue waste of time. The threshold is a demanding one.
- Unfair prejudice in this context refers specifically to the danger that a jury will use evidence in a manner not logically connected to the issues in the case, as confirmed by reference to R v Lockyer (1996).
- Where the Crown clearly identifies the limited purpose for which it tenders evidence, and the court proposes a contemporaneous jury direction reinforcing that limit, objections based on prejudice or confusion will carry less weight.
- A photograph demonstrating that a knife was capable of fitting within a pocket was held to have probative value as a step in an inferential chain, even where no party disputed that the accused had used the knife to stab the deceased.
- The Supreme Court again criticised the Crown's practice of serving potentially significant evidence at a late stage in proceedings, reiterating that such a practice is unsatisfactory, particularly where the subject matter could have been investigated and disclosed well before trial.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 135 (general discretion to exclude evidence)
Cases
- R v Lockyer (1996) 89 A Crim R 457
- R v Sharpe (No 2) [2021] NSWSC 32