R v Sharpe (No 5)

The accused in this matter has pleaded not guilty to the murder of Andrew Drake (the deceased). There is no issue that the deceased died as a consequence of being stabbed by the accused. The stabbing occurred, on the accused’s case, following an altercation between the deceased and the accused's father. The accused asserts that he needed to intervene in that altercation in order to protect his father. It is part of the accused’s case that his father was attacked by the deceased with a knife.

By an amended tendency notice dated 25 January 2021 counsel for the accused seeks to elicit evidence of three particular matters on the basis that such evidence demonstrates a tendency on the part of the deceased to be violent and unpredictable. Before I come to the precise terms of that notice, it is appropriate that I set out the following passage of defence counsel's opening address to the jury: [1]

Against that background the amended tendency notice is partly in the following terms:

The COPS entry in respect of the first incident reads in part as follows:

No charges were laid against the deceased as a consequence of that incident.

The COPS entry in relation to the second incident reads in part as follows:

Again, no charges were laid against the deceased as a consequence of that incident.

The third incident, which is obviously the most recent in time, occurred on 9 March 2019. That was only a matter of approximately 5 weeks prior to the deceased’s death. The context in which it occurred appears in a statement of Nina Garcia, the deceased’s former partner, who was working at the Royal Mail Hotel in Braidwood at the time. It is apparent that in the period leading up to the evening of 9 March 2019 the deceased and Ms Garcia had an argument, following which the deceased repeatedly sought to speak with Ms Garcia when she was working at the hotel. In the face of his persistence, Ms Garcia asked the deceased to go home. The deceased reacted to these circumstances by suddenly smashing a plate glass window of the hotel from the street front with his fist, causing it to shatter inwards. The incident is depicted on CCTV footage, which shows staff inside the hotel understandably becoming alarmed at what occurred.

Section 97 of the Evidence Act 1995 (NSW) (“the Act”) is in the following terms:

Although the Crown made reference to the notice being served at a relatively late stage, no specific reliance was placed upon s 97(1)(a). Accordingly, the issue for determination is whether or not the evidence, either wholly or partly, will have significant probative value, either by itself or in combination with other evidence. The term "probative value" is defined in the Dictionary to the Act as meaning:

In this context, the term “significant” means "important” or “of consequence". [3]

Counsel for the accused accepted that the first two incidents were remote in time. He also accepted that none of the three incidents involved the deceased using a knife. Nevertheless, he submitted that the key issue in dispute between the parties in the present incident was that of self-defence and/or the defence of another. It was submitted that in these circumstances, the conduct of the deceased in each of the three incidents was significantly probative of the reason why the accused asserts that he was forced to act in the manner in which he did, and stab the deceased.

Counsel further submitted that the evidence demonstrated that what had occurred on the night of the deceased’s murder was not, in terms of the deceased’s alleged behaviour, an isolated incident, and that it further demonstrated that the deceased was a person with a temper who had the capacity to behave violently, absent any degree of provocation. It was submitted that if the jury remained unaware of this evidence, it may be more difficult to accept the accused's assertion that it was the deceased who first attacked the accused’s father, and that anything he (i.e. the accused) did was in response to that attack.

The Crown submitted that none of the incidents supported the asserted tendency. The Crown emphasised that the first two incidents occurred a long time ago, and in particular contexts which were far removed from the circumstances of the present case. In terms of the first incident, the Crown pointed to the fact that the deceased had reacted to being provoked. In terms of the second, the Crown submitted that the deceased had acted in self-defence. The Crown also pointed out that the deceased was not charged with any offence arising out of either incident. As far as the third incident was concerned, the Crown again sought to distinguish it from the circumstances of the present case. It was submitted, in particular, that the deceased’s act of breaking the window had occurred in the context of what might be neutrally described as a domestic dispute, and that, like the first two incidents, did not involve the use of a knife. The Crown went so far as to submit that the third incident was not violent in nature.

As I have said, the sole issue for determination concerns the probative value of the evidence. In assessing the probative value of the evidence, I must assume that if it is admitted, the jury will accept it. [4]

There are a number of factors which may, in a given case, be relevant to an assessment of the probative value of proposed tendency evidence. They include the issue to which the evidence is relevant, the number of occasions of particular conduct that are relied upon, the time lapse between each occasion, any geographic connection between the alleged conduct, and the degree of specificity of the conduct or alleged tendency. [5] That said, a close similarity between the incidents is not essential for the evidence to be admitted as tendency evidence. [6] Moreover, a single instance of conduct may, in a given set of circumstances, have sufficient probative value to come within the terms of s 97 of the Act [7] That said, I recognise that in a case where limited instances of conduct are relied upon as tendency evidence, considerable care must be taken before the evidence is admitted. [8] Necessarily, the assessment of probative value of evidence of this kind requires the consideration of two separate factors. The first is the extent to which the evidence is supported by the tendency, and the second is the extent to which the tendency makes more likely the facts making up the charge. [9]

I have set out above those passages from the opening address of counsel for the accused to demonstrate what is in fact in issue in the present case. It is by reference to that issue that the probative value of the evidence must be determined.

The first and second incidents are obviously remote in time. They occurred in specific contexts, far removed from that in which the deceased was murdered. The deceased’s conduct in the first incident appears to have arisen in response to a degree of provocation, whilst his conduct in the second appears to have been in the nature of an act of self‑defence. In my view, a combination of all of those factors leads to the conclusion that the evidence of those two incidents has limited probative value. It follows that the test in s 97 of the Act is not met in respect of the evidence of either incident.

However, the third incident falls into an entirely different category. First and foremost, that incident is not remote in time. It occurred a matter of weeks prior to the deceased’s death. Secondly, whilst I accept that it did not involve the use of a knife, I am unable to accept the Crown’s submission that it was not violent. The Macquarie Dictionary defines the term “violent” as:

The Oxford English Dictionary defines the term as:

On any definition, and indeed on any common sense view, what the deceased did in smashing the hotel window with his fist was a wanton display of gratuitous violence. The fact that it did not involve the use of a knife does not alter the inherently violent nature of the deceased’s conduct. I acknowledge, in view of the conclusions I have reached in respect of the first and second incidents, that the third represents a single instance of conduct which is sought to be relied upon as tendency evidence. However, as I have noted, there is authority for the proposition that a single incident may be capable of constituting evidence of a relevant tendency. Whether it does so will depend on the facts and circumstances of the particular case. In my view, the facts and circumstances of the present case as I have outlined them, particularly the accused’s case that it was the sudden violence of the deceased towards his father which caused him (the accused) to act as he did, support the admission of evidence of the third incident as tendency evidence.

For all these reasons, I have come to the view that the evidence of the third incident meets the test in s 97 of the Act. I propose to admit it as tendency evidence. The jury will be directed in due course as to how that evidence is to be treated in the course of their deliberations.