R v O’Keefe

1. [1]

   On 25 October 2018 the deceased Jamie Phillips was killed by a stab wound to the heart at premises in Defarge Way, Ambarvale, New South Wales. The Crown case alleges that there was an agreement between Barry Cavanagh, Nathan McIvor and Sean O’Keefe intentionally to cause grievous bodily harm to the deceased, and pursuant to that agreement death occurred. The alternative basis on which the Crown puts its case is that there was an agreement between the three accused to assault the deceased, that each foresaw the possibility that grievous bodily harm might intentionally be inflicted on the deceased in the course of the assault, and that each continued to participate in the assault. The Crown case alleges that the three accused engaged in a sustained physical assault upon the deceased resulting in a number of injuries including bruising, blunt force injuries, fractures and abrasions, as well as the stab wound to the heart which killed the deceased.

2. [2]

   The particular case against the accused O’Keefe is that he was involved in the dumping of the body, that forensic evidence implicated him in the killing, and that he made admissions to a friend of his known as witness C. The admissions included these:

The tendency notice

1. [3]

   The accused O’Keefe has served a tendency notice saying that he intends to adduce evidence of the character, reputation, conduct and/or tendency that the deceased had, to prove that he had a tendency to act in a particular way, namely:

2. [4]

   The tendency notice sets out the substance of the evidence which the accused intends to adduce as follows:

3. [5]

   The asserted tendency evidence is said to bear upon the following facts in issue in the case:

4. [6]

   Section 97(1) of the Evidence Act 1995 (NSW) provides:

5. [7]

   Because the tendency evidence sought to be led is tendency evidence about the deceased, s 101 of the Evidence Act has no relevance. However, s 135 must be considered if, in the first instance, the Court considers that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

6. [8]

   The defence case put forward by the accused O’Keefe is that he was responsible for inflicting the stab wound which killed the deceased, but that he did so in self-defence. The defence case is that on the night in question the deceased was substantially affected by crystal methamphetamine, and without warning, lunged at the accused O’Keefe whilst armed with a knife. A physical fight ensued. The accused O’Keefe took hold of a separate knife, and eventually used it to stab the deceased in self-defence.

7. [9]

   The Crown opposes the adducing of the evidence.

Submissions

1. [10]

   Mr Pontello, Senior Counsel for O’Keefe, submitted that the correct test for the purposes of s 97(1)(b) of the Evidence Act was what was stated in R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286 at [125] that:

2. [11]

   Senior Counsel submitted that, appropriately modified in the present case because the tendency evidence was sought to be adduced by the accused, the test was:

3. [12]

   Senior Counsel submitted that the tendency evidence has significant probative value. In the first place, in the absence of that evidence, the evidence that the accused O’Keefe proposes to give, that the deceased, a person completely unknown to him prior to 25 October 2018, threatened and subsequently attempted to attack him with a knife for no apparent reason, would seem on the face of it far-fetched and fanciful. In that way it was submitted the accused O’Keefe’s uncorroborated assertions as to what happened in that regard would no doubt be viewed by the jury with considerable circumspection, given O’Keefe’s interest in the outcome of the proceedings.

4. [13]

   In the same way, evidence by O’Keefe that the deceased was talking to himself and suggesting that he was related to the Queen would appear to be far-fetched and fanciful. Senior Counsel submitted that the prima facie improbability of all of that evidence becomes significantly less once it is known that the deceased, on prior occasions proximate in time to his altercation with the deceased, threatened police, threatened his nephew Christopher Phillips and a stranger Nicholas Smith with a knife, had a tendency to behave violently generally, and was heard to be asserting that he was related to the Queen at the time he threatened to kill Mr Smith.

5. [14]

   In relation to the evidence identified at (xii) above, it was submitted that the evidence that the deceased engaged in self-harm in March 2016 has significant probative value in providing a possible explanation for the multiple injuries observed during the post-mortem examination. Senior Counsel submitted that those injuries would no doubt be submitted by the Crown to be inconsistent with the accused defending himself.

6. [15]

   The Crown took an initial objection to the form of the evidence which the accused O’Keefe sought to adduce. The form of that evidence in relation to paragraphs (vii) – (xiv) consisted of police fact sheets in respect of offences for which the deceased had been charged. In addition, the Crown submitted that much of the evidence was hearsay evidence.

7. [16]

   The Crown submitted that, in assessing whether evidence has significant probative value, two interrelated but separate matters must be considered. The first matter is the extent to which the evidence supports the tendency, and the second is the extent to which the tendency makes more likely the facts making up the alleged conduct. The Crown submitted that, in essence, what the accused O’Keefe was seeking to prove was that the deceased armed himself with a knife and threatened O’Keefe with that knife. The Crown submitted that only the material in paragraphs (iv), (v), and (xii) concern the use of a knife by the deceased. The Crown submitted that the remaining incidents only tended to demonstrate in a broad and general way, that the deceased engaged in acts of violence at various times. The Crown submitted that, in that way, the evidence did not have significant probative value.

8. [17]

   The Crown submitted that even if the evidence was found to have significant probative value the Court should exercise the discretion provided in s 135 to exclude the evidence on the basis that it may be unfairly prejudicial to the Crown, and that in any event it was likely to lengthen the trial and require the jury to consider whether each of the asserted incidents occurred, particularly in circumstances where the deceased was not able to provide his version of the events alleged.

Legal principles

1. [18]

   In Hughes v The Queen the plurality said:

2. [19]

   In The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, the High Court said at [58]:

3. [20]

   What was said in Bauer at [58] was reinforced in McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 at [31], at least where the tendency evidence relates to sexual misconduct by the accused with a person or persons other than the complainant. The Crown sought to rely on Bauer at [58] and McPhillamy at [31] by analogy, submitting that the various victims of the alleged violence by the deceased set out in the tendency notice should be seen for present purposes as equivalent to persons other than the accused O’Keefe in the present matter.

Determination

1. [21]

   The significant cases dealing with tendency evidence concern sexual offences where the tendency evidence sought to be led relates to the accused (IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; Hughes; Bauer; McPhillamy). I accept that the test stated in Ford can be appropriately modified as Senior Counsel for O’Keefe suggests so that it reads:

2. [22]

   As far as it can be ascertained from the material on the present application, the relevant facts are that the deceased, who had been acting irrationally at least by claiming that he was related to royalty a few hours before the act, produced a knife and assaulted, or sought to assault, O’Keefe. Before this assault the deceased had consumed large quantities of methamphetamine and some cannabis.

3. [23]

   In my opinion the tendency evidence sought to be relied upon by O’Keefe, with the exception of that contained in paragraphs (v) and (vi) of the tendency notice, should be permitted to be adduced.

4. [24]

   As to the Crown’s objection concerning the form of the evidence, the approach the Court must take when forming a view about whether the evidence should be adduced is for the Court to take the proposed evidence at its highest: Bauer at [69]; DSJ v R; NS v R [2012] NSWCCA 9 at [72]. The present ruling does not, therefore, prevent objection being taken at a later time by the Crown to the actual evidence being adduced in accordance with the leave which has been given: R v Bryce (No 2) [2014] NSWSC 498 at [15] and [23].

5. [25]

   Whilst I generally accept the Crown’s approach in a case such as the present in pointing to an analogy between the other sexual complainants in McPhillamy at [31] and Bauer at [58] and the other victims of conduct of O’Keefe, when establishing the “link” or “common feature” between the earlier conduct and the facts sought to be established by the accused O’Keefe concerning the manner of the deceased’s death, one must not fall into the trap deprecated by the High Court in Hughes at [34] of seeking to find “underlying unity”, “pattern of conduct” or “modus operandi” in the conduct. As the High Court said,

6. [26]

   In any event, where the tendency concerned is behaving violently and/or irrationally including when under the influence of drugs, a sufficient link or common feature is demonstrated in the present case with the deceased’s conduct at the time of his death.

7. [27]

   In R v Bryce (No 2) Beech-Jones J was dealing with a similar application in relation to a deceased behaving aggressively and violently in more than 20 separate incidents. His Honour said:

8. [28]

   In my opinion, and being mindful of the different enquiry in that case, what is said by Beech-Jones J is applicable in the present case. The accused O’Keefe does not assert that the violent behaviour was confined to occasions where a knife was used or produced, and the violent and irrational behaviour was not confined to occasions where proof was available that the deceased was under the influence of drugs. Nevertheless, the timing of all of the incidents relates to periods when, on the evidence of Christopher Phillips, the deceased had a drug problem, first from cocaine and subsequently from methamphetamine.

9. [29]

   It is the differing circumstances of the incidents that point to the significant probative value of the evidence which affects the assessment of the probability of the existence of the facts in issue to a significant extent. The evidence clearly supports a tendency of the deceased to act violently in a variety of situations. It also supports a tendency for the deceased to act irrationally, including when under the influence of drugs. It may be accepted that only two of the events for which leave will be given involved a knife, but the tendency is said to be violence including with the use of a knife.

10. [30]

    When the elements of the defence include establishing that the deceased, when under the influence of drugs, produced and used, or attempted to use, a knife to assault the accused O’Keefe, the evidence sought to be adduced makes more likely those facts and elements. That is the more so if there is evidence that the accused O’Keefe was a stranger to the deceased. The Crown’s evidence from the autopsy is that the deceased had very high levels of methamphetamine in his blood at the time of his death.

11. [31]

    In relation to unfair prejudice, the Crown appeared to suggest that the lack of an appropriate “link” between the various events not only went to the issue of significant probative value but also pointed to unfair prejudice to the Crown. The Crown submitted further that the evidence sought to be adduced would be unfairly used by the jury “in the sense that would appeal to an emotional component”.

12. [32]

    I do not consider that there is any unfair prejudice to the Crown. It is difficult to see how the jury could misuse the evidence, or how evidence that the deceased was a violent person who consumed large quantities of drugs (the latter being something that other evidence to be led by the Crown shows in any event) has any more of an emotional component than the circumstances of the murder. I accept that there is some prejudice in that the deceased is not able to offer his account of the events alleged, but it is not without some significance that some of the charges brought against him resulted in convictions or at least findings that the events occurred sufficiently to place him on bonds. That prejudice is a long way from substantially outweighing the probative value which I have found is significant.

13. [33]

    I do not consider that there is any basis for an exercise of discretion to refuse the adducing of the evidence on the basis that such evidence will lengthen the trial. Evidence of this type is often adduced by agreed facts, and that has been identified as a possibility in the present case. Even if that does not occur, such a consideration does not outweigh the significant probative value of the evidence.

14. [34]

    The evidence contained in paragraphs (v) and (vi) is in a different category. It seems to me that there is no evidence to justify the identification of the person Mr Smith describes in his statement as the deceased, nor does the evidence demonstrate that the matters described by Mr Smith took place on the occasion described by Sonny Anderson and Jammie Lawrence in their statements contained in the police notebook. Mr Smith’s description of what occurred is completely different from what Mr Anderson and Ms Lawrence describe. The events described by Mr Smith were said to have occurred on the night of 23 October 2018 (two days before the deceased died) whereas the incident described by Ms Lawrence was said by her to have occurred about two weeks before the deceased was killed.

15. [35]

    Mr Anderson refers to Mr Smith requiring the deceased to leave his (Mr Anderson’s) unit because Mr Smith did not realise the deceased was staying with him. However, Mr Smith’s evidence was that Mr Anderson and Ms Lawrence lived in unit 10, and he found the man in unit 9.

16. [36]

    I note further that the final paragraph of Mr Smith’s statement reads:

17. [37]

    This evidence, taken at its highest, does not establish that the man to whom Mr Smith refers is the deceased.

Admissibility of recorded conversation

1. [38]

   The Crown proposes to tender a Master Audio/Visual Chronology which sets out the various recordings from telephone intercepts and surveillance devices employed in relation to the deceased’s murder. The parties have largely agreed on the evidence to be adduced in this regard. A dispute is unresolved in relation to a conversation between the accused O’Keefe and Ibraham Orfali recorded on 6 November 2018. It appears on pages 104 to 106 of the Master Audio/Visual Chronology.

2. [39]

   So that the objections can be understood, it is necessary to set out the whole of the transcript of the conversation:

3. [40]

   The Crown sought to tender the first portion to which objection was taken as an admission by the accused O’Keefe. The Crown submitted that the statement, “I’ve always got one on me”, is an admission. Mr Pontello SC submitted that that portion of the statement was inadmissible tendency evidence.

4. [41]

   The statement is an admission because it is a previous representation adverse to O’Keefe’s interest in the outcome of the proceeding. However, if the statement is otherwise inadmissible by some rule or prohibition in Pt 3.6 of the Evidence Act, the fact that it is tendered only as an admission will not mean that it is otherwise admissible.

5. [42]

   Section 97 makes inadmissible “evidence of the character, reputation or conduct of a person, or a tendency that a person has or had”, unless certain matters set out in s 97(1) are satisfied. The Crown has not served a notice in writing of its intention to adduce the evidence.

6. [43]

   In my opinion, a statement by a person that he always has in his possession (“on me”) a knife is necessarily evidence of the tendency of that person to act in a particular way. The word “always” makes such a tendency clear. In that way, the statement, although an admission, is inadmissible under s 97.

7. [44]

   The second portion in the conversation objected to is said to be irrelevant as to issues in the present trial.

8. [45]

   It is frequently the case that recorded conversations put into evidence contain material which is irrelevant to the issues at a trial. However, it is not satisfactory to endeavour to redact such conversations to include only the obviously relevant portions. Frequently, the context of the conversation will be relevant. The proper test is not whether any particular part of a recorded conversation is relevant to the issues but whether the conversation, regarded as a whole, is relevant.

9. [46]

   I would not uphold the objection to the second objected passage.

10. [47]

    Accordingly, I make the following orders: