R v Sharpe (No 6)

The accused in this matter pleaded not guilty to a charge of murder. There was no issue that the accused stabbed the deceased on multiple occasions causing his death, nor was there any issue that the accused acted with the necessary intention. It was the accused's case (and it was the sole issue in the trial) that in stabbing the deceased, he acted in self-defence, and/or the defence of his father with whom the deceased was engaged in a physical fight at the time.

In the course of the trial the Crown sought to tender to extracts from two conversations between the accused and his father which were recorded by way of a listening device, the first on 14 May 2019 (the first conversation) and the second on 18 May 2019 (the second conversation). The tender of that evidence was objected to by counsel for the accused and after hearing submissions, I excluded the evidence. I indicated at that time my reasons for doing so would be published in due course. Those reasons now follow.

The extract from the first conversation [1] was as follows:

The extract from the second conversation [2] was as follows:

It was the Crown's overall submission that the evidence was highly probative because the conversations incorporated accounts by the accused of what had occurred at the time of the deceased’s death. The Crown submitted that such accounts were relevant to, and probative of, the issue of whether the accused reasonably believed that it was necessary for him to act as he did.

Counsel for the accused pointed out that both conversations were recorded a substantial period after the relevant events, and were therefore not evidence of the state of mind of the accused at that time. Counsel further submitted that there was a clear danger of unfair prejudice arising from the conversations, and that their contents were misleading and confusing. In advancing these submissions counsel pointed out that the Crown case is (and has always been) that the accused stabbed the deceased, and that it had never been any part of the Crown case that the accused had picked the deceased up and thrown him across a room in the course of the altercation between them.

I took the view that there was considerable merit in the submissions of counsel for the accused. The Crown case against the accused was that he repeatedly stabbed the deceased to death. It was no part of the Crown case that the accused acted towards the deceased in the manner which was the subject of his discussion with his father. Moreover, evidence given in the trial by Dr Pokorny, a Forensic Pathologist, disclosed nothing in the way of injuries inflicted upon the deceased which might have been consistent with the incident described by the accused in the two conversations.

In those circumstances, accepting that the evidence is relevant, I concluded that its probative value was limited. I further concluded that any probative value that the evidence might have had was substantially outweighed by the danger of unfair prejudice to the accused, mandating its exclusion pursuant to s 137 of the Evidence Act 1995 (NSW). In particular, I concluded that there was a considerable risk that if the evidence were admitted it would have done nothing other than portray the accused in an unfavourable light, in circumstances where what he described in terms of his altercation with the deceased formed no part of the Crown case against him, and was inconsistent with expert evidence upon which the Crown relied.

It was for these reasons that I excluded the evidence.