Citation: R v Sharpe (No 5) [2021] NSWSC 52
Court: Supreme Court of New South Wales
Date: 8 February 2021
Judge: Bellew J
Background
The accused stood trial for the murder of the deceased, Andrew Drake. It was not in dispute that the accused stabbed and killed the deceased. The accused's case was that he intervened in an altercation between the deceased and his father, acting to defend his father from what he perceived as an ongoing knife attack by the deceased.
Defence counsel sought to adduce tendency evidence under section 97 of the Evidence Act 1995 (NSW) to demonstrate that the deceased had a tendency to be violent and unpredictable. The tendency notice relied on three prior incidents involving the deceased: an alleged assault outside a hotel in Batemans Bay in 2008, an alleged assault in Braidwood in 2014, and an incident in March 2019 in which the deceased smashed a plate glass window of a hotel with his bare fist, approximately five weeks before his death.
The Crown objected to all three incidents being admitted. The central question was whether each incident, alone or in combination with other evidence, carried significant probative value as required by section 97.
Legal Issues
- Whether the three incidents in the tendency notice individually or collectively satisfied the requirement of "significant probative value" under section 97(1)(b) of the Evidence Act 1995 (NSW)
- Whether the time elapsed between the earlier incidents and the deceased's death diminished their probative value to a point where admission was not warranted
- Whether a single incident of prior violent conduct can constitute admissible tendency evidence
Decision
Bellew J considered the probative value of each of the three incidents in turn. The first incident, from 2008, involved the deceased punching a man who had allegedly grabbed him by the throat during an evening at a hotel in Batemans Bay. No charges were laid. The second, from 2014, involved the deceased admitting to hitting a person once, again claiming self-defence. No charges followed that incident either. His Honour accepted defence counsel's concession that both of these incidents were remote in time and concluded they did not carry significant probative value. Neither was admitted.
The third incident, from 9 March 2019, stood on different footing. Approximately five weeks before the deceased's death, the deceased reacted to being asked to leave a hotel by his former partner by suddenly smashing a large plate glass window from the street with his fist. The incident was captured on CCTV footage. Bellew J characterised this conduct as a "wanton display of gratuitous violence," noting that the absence of a knife did not diminish its inherently violent nature.
His Honour acknowledged that a single incident can, depending on the particular facts, be capable of constituting evidence of a relevant tendency. In this case, the accused's defence rested centrally on his perceived need to respond to the sudden and violent behaviour of the deceased toward his father. That context made evidence of the deceased's capacity for sudden, unprovoked violence directly relevant to a fact in issue. The third incident was accordingly found to meet the section 97 threshold of significant probative value.
The Court admitted the third incident as tendency evidence and indicated that appropriate directions to the jury would be given in due course. The first and second incidents were not admitted.
Orders Made
• Evidence of the third incident is admitted as tendency evidence under s 97 of the Act
• The jury will be directed as to how that evidence is to be treated in their deliberations
Key Takeaways
- Under section 97 of the Evidence Act 1995 (NSW), tendency evidence is admissible only where the court is satisfied it will have "significant probative value," meaning the evidence must be important or of consequence to a fact genuinely in issue at trial.
- Temporal remoteness is a relevant factor in assessing probative value. The Supreme Court excluded two incidents from 2008 and 2014 on the basis that the time elapsed between those incidents and the events at trial materially reduced their capacity to rationally affect the assessment of the tendency alleged.
- A single prior incident can constitute admissible tendency evidence. Whether it does so turns on the facts and circumstances of the particular case, including the nature of the conduct and how it connects to the issues actually in dispute.
- Where a self-defence case turns on the accused's perception of the deceased's sudden violence, evidence of a prior episode of sudden, unprovoked violence by the deceased carries particular relevance to that issue, even where the prior episode did not involve the same kind of weapon alleged in the charged offence.
- The absence of prior charges or convictions arising from the tendency incidents did not, of itself, prevent those incidents from qualifying as tendency evidence.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 97, 100
Cases
- DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9
- El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10
- Galea v Farrugia [2013] NSWCA 164
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- McPhillamy v The Queen [2018] HCA 52; (2018) 361 ALR 13
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- Reeves (a pseudonym) v R (2013) 41 VR 275; [2013] VSCA 311
- R v Lockyer (1996) 89 A Crim R 457