AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 15 January 2021

R v O’Keefe

[2021] NSWSC 6

Assault & violenceHomicide
EVIDENCE TENDENCY EVIDENCE CRIMINAL PROCEEDINGS MURDER SELF DEFENCE

Citation: R v O'Keefe [2021] NSWSC 6
Court: Supreme Court of New South Wales
Date: 15 January 2021
Judge: Davies J

Background

Three accused, including Sean O'Keefe, faced a murder trial arising from the fatal stabbing of the deceased at premises in Ambarvale, New South Wales on 25 October 2018. The Crown alleged the accused engaged in a sustained, coordinated assault on the deceased, causing multiple injuries including the stab wound that killed him. O'Keefe's alleged involvement included disposing of the body, forensic links to the killing, and admissions made to an acquaintance that included the statements "I stabbed him, I had to do it" and "I had to protect myself mate."

Self-defence was therefore a live issue for O'Keefe. In that context, he served a tendency notice seeking to adduce evidence that the deceased had a tendency to behave violently (including with a knife) and to act irrationally, particularly when under the influence of drugs including ice (crystal methamphetamine).

The evidence proposed covered fourteen specific incidents between 2014 and October 2018, drawn from police facts sheets and witness statements. These included the deceased threatening people with knives, assaulting family members and other individuals, making violent threats while apparently drug-affected, and erratic conduct involving delusions.

  • Whether the proposed tendency evidence concerning the deceased met the threshold of "significant probative value" under s 97 of the Evidence Act 1995 (NSW).
  • Whether, in a self-defence case, the accused must establish a factual link between the deceased's prior conduct and the specific circumstances of the alleged offence in order for the tendency evidence to be admissible.
  • Whether the probative value of the tendency evidence was outweighed by the danger of unfair prejudice under ss 101 and 135 of the Evidence Act.
  • Whether a statement made by O'Keefe to the effect that he "always" carried a knife was admissible as an admission, notwithstanding that it also constituted tendency evidence about O'Keefe himself.

Decision

Davies J allowed the bulk of the proposed tendency evidence about the deceased. His Honour was satisfied that the evidence of the deceased's violent and irrational conduct, particularly in the period leading up to the killing, had significant probative value in the context of O'Keefe's self-defence claim. The evidence of incidents in August and October 2018, including the deceased pointing a knife at another person just the night before the killing, was particularly significant given the temporal proximity to the offence.

On the question of whether a factual link was required between the deceased's prior conduct and the circumstances of the night in question, Davies J accepted that no such specific link needed to be demonstrated at the threshold admissibility stage. The tendency evidence was capable of supporting the inference that the deceased behaved violently on the occasion in question, which was directly relevant to O'Keefe's claim of self-defence.

Davies J excluded some of the proposed incidents, specifically paragraphs (v) and (vi) of the tendency notice, which described the deceased's conduct toward Sonny Anderson and Nicholas Smith in the early hours of 24 October 2018. The reasons for their exclusion are not fully set out in the available text, but the remaining twelve categories of conduct were permitted.

On the separate evidentiary question concerning O'Keefe's own recorded statement that he "always" had a knife on him, Davies J rejected the Crown's attempt to lead that statement as an admission. His Honour held that the word "always" made the statement inherently one of tendency, engaging s 97 of the Evidence Act. Because no tendency notice had been served by the Crown in respect of that statement, it was inadmissible regardless of its character as an admission.

Orders Made

  • The accused O'Keefe is permitted to adduce evidence of the deceased's conduct referable to the alleged tendency to behave violently (including with a knife and when under the influence of drugs) and to act irrationally (including when under the influence of drugs), as described in paragraphs (i) to (iv) and (vii) to (xiv) of the Tendency Notice dated 29 October 2020.
  • The first portion of evidence objected to on page 105 of the Master Audio/Visual Chronology is rejected.

Key Takeaways

  • Tendency evidence about a deceased person is governed by s 97 of the Evidence Act 1995 (NSW) in the same way as tendency evidence about any other person; the accused must satisfy the court that the evidence has significant probative value.
  • Where self-defence is raised, evidence of the deceased's prior violent conduct, particularly incidents close in time to the alleged offence, can satisfy the significant probative value threshold without the accused needing to establish a direct factual link between those prior incidents and the specific circumstances of the alleged offence.
  • A statement by an accused that he "always" carries a knife is tendency evidence within the meaning of s 97, and cannot be rendered admissible simply by characterising it as an admission; the absence of a tendency notice from the party seeking to lead it is fatal to admissibility.
  • Recorded conversations adduced into evidence should generally be assessed for relevance as a whole rather than excised passage by passage; the contextual integrity of a conversation ordinarily takes precedence over attempts to redact isolated portions.
  • The decision illustrates that tendency evidence in criminal proceedings can move in both directions: the accused may serve a tendency notice regarding the deceased, and the Crown may seek to rely on tendency evidence against the accused, each subject to the same statutory framework.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 101, 135

Cases:
- DSJ v R; NS v R [2012] NSWCCA 9
- 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) 92 ALJR 1045
- R v Bryce (No 2) [2014] NSWSC 498
- R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286
- The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40