Citation: R v Lupton (No 1) [2022] NSWSC 33
Court: Supreme Court of New South Wales
Date: 20 January 2022
Judge(s): Hamill J
Background
The accused faced trial for murder following the fatal stabbing of the deceased at residential premises in the early hours of 24 February 2020. The prosecution alleged the accused attended the premises in a state of anger, carrying a knife, and stabbed the deceased without provocation. The accused's position was that he acted in self-defence and that he did not bring the knife to the scene, claiming he found it on the premises.
The accused had an "on again off again" relationship with a woman who lived at the premises. The prosecution alleged his anger stemmed from jealousy over her prior relationship with another man, his concerns that the deceased had a romantic interest in her, and worry that drug use at the premises might lead to welfare authorities removing his young daughter from her care.
Before empanelment, the parties sought two pre-trial rulings on the admissibility of certain evidence: first, whether the prosecution could adduce tendency evidence about the accused's possession of knives; and second, whether a large number of text messages demonstrating the accused's anger in the period leading up to the alleged murder were admissible.
Legal Issues
- Whether evidence of the accused being found with a knife the night before the alleged murder, and with a small blade at the time of his arrest after the murder, was admissible as tendency evidence under s 97(1)(a) of the Evidence Act 1995 (NSW)
- Whether the tendency evidence possessed significant probative value and whether any unfair prejudice outweighed that value
- Whether the text messages were relevant to the accused's state of mind and admissible for that limited purpose
- Whether a judicial direction would be sufficient to cure any risk of misuse of the text message evidence
Decision
Tendency evidence: excluded
The prosecution sought to establish a tendency for the accused to carry knives on his person, relying on two episodes: his arrest the evening before the murder (when a knife was seized from him) and his arrest after the murder (when a small blade was found on him). Hamill J identified that the central issue in the trial would be whether the accused brought the knife to the scene, and considered whether the tendency evidence possessed significant probative value to that question as required by s 97(1)(a) of the Evidence Act 1995 (NSW).
His Honour ultimately excluded the tendency evidence. The ruling is delivered ex tempore without extended written reasons on this point, but the conclusion was that the evidence did not meet the admissibility threshold, or that the prejudicial effect outweighed its probative value. As a consequence, text messages at items 87 to 90 (which related to the accused being arrested with a knife the night before the offence) were also excluded, since admitting them would have introduced the same material through a different evidentiary route.
Text messages: largely admissible
The prosecution tendered a large schedule of text messages to establish the accused's angry state of mind in the period leading up to the stabbing. The messages revealed the accused's jealousy, his threatening behaviour towards associates of the woman with whom he had a relationship, and his erratic conduct. Hamill J was satisfied the messages were relevant to the accused's intentions, his reasons for attending the premises, and the jury's assessment of the self-defence claim.
His Honour accepted there was some potential for misuse. One message (item 185) contained an ambiguous threat to stab a person, and two others (items 186 and 188) referenced the accused expressing indifference to police and to spending the rest of his life in gaol. Hamill J excluded items 186 and all or part of 188 on the basis that their prejudicial effect outweighed probative value. The remaining messages, including item 185, were admitted on the basis that an appropriate jury direction as to the limited use of the evidence (going to state of mind and anger, not tendency) would be sufficient to prevent misuse.
Orders Made
- Tendency evidence excluded
- Text messages admissible, with the exception of items 87 to 90, item 186, and all or part of item 188
- The parties directed to determine whether item 188 can be edited to remove the prejudicial portion, with liberty to seek a further ruling if needed
Key Takeaways
- Tendency evidence about possession of a knife before and after an alleged stabbing was excluded where it failed to satisfy the significant probative value threshold under s 97(1)(a) of the Evidence Act 1995 (NSW), particularly given the risk of unfair prejudice in a trial where self-defence was a live issue.
- Excluding tendency evidence can have a flow-on effect on other evidence: the court also excluded text messages that would have introduced the same facts through a different evidentiary pathway.
- Text messages demonstrating an accused's anger and threatening behaviour in the period before an alleged offence may be admissible as evidence of state of mind, even where individual messages contain potentially prejudicial content, provided the prosecution does not rely on them to establish tendency.
- Under the Evidence Act 1995 (NSW), a judicial direction can, in appropriate circumstances, cure the risk that a jury will misuse emotionally charged evidence, including a threat to stab someone, provided the direction clearly limits the purpose for which the evidence may be used.
- Where a specific piece of evidence is too prejudicial even for a limiting direction, partial editing of that evidence (rather than wholesale exclusion) may be an available option, subject to any further ruling by the court.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 97(1)(a) (tendency evidence)
Cases
- Elomar v R [2014] NSWCCA 303
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v R (2016) 257 CLR 300; [2016] HCA 14