R v Sharpe

Supreme Court of NSW|2020-12-10|Before: Bellew J

INTRODUCTION

Daniel Sharpe (the accused) has pleaded not guilty to an indictment alleging that on 13 April 2019, at Surfside in the State of NSW, he murdered Andrew Peter Drake (the deceased). The accused's trial is fixed to commence before the Court sitting in Queanbeyan on 1 February 2021.
Counsel for the accused has taken objection to a discrete part of the evidence upon which the Crown seeks to rely. This judgment deals with the resolution of that issue.

THE CROWN CASE

On the afternoon of Saturday 13 April 2019, the accused and his father, David Sharpe, were drinking and listening to music at their home in Surfside. The deceased, and his sister Penny Drake, were at their parents' house which bordered part of the premises occupied by the accused and his father.
The deceased and his sister were having dinner, during which they could hear music playing at the accused's residence. At about 11pm they went over there to socialise.

THE ISSUE IN THE TRIAL

There is no dispute that stab wounds were inflicted by the accused, nor is there any dispute that those stab wounds caused the deceased's death. The principal, if not sole, issue in the trial is whether, in acting as he did, the accused was acting in defence of another person, namely his father.

THE EVIDENCE

The evidence which is the subject of the present application is sought to be adduced by the Crown principally from the witness Glenn Martin. Mr Martin lived with his girlfriend, Saadia Kornman, at premises near those of the accused and his father. Mr Martin provided a statement to police which he said that having gone with Ms Kornman to the accused's premises on the evening of the murder, he saw the following: [1] I observed Dave's son holding something down by his side. It was on the left-hand hip down towards the ground. It looked like a short version of a shotgun. He lifted it up with both hands. He pointed it towards us and directed more towards me. He didn't have it for very long and then I heard Saadia having a laugh with Dave. I think he then thought we weren't there to cause an issue and he put it back down by his side and then was moving it around. He was resting it up on his shoulder at one point.
Mr Martin went on to say: [2] Saadia and Dave continued to talk for a few minutes. I watched where Dave's son went whilst they talked. He walked back into the shed and then reappeared seconds later. He was holding a 'Bowie' type knife in his left hand. It was a wide blade. I thought it was a hunting knife and looked to have a pretty solid handle. It was at least 12 inches in length. He was moving it back and forth and I could tell he was agitated. He just looked like he was wired up and ready to go. I just got the feeling he wanted to use it. If I went in that yard, he would have went me without a doubt. He was standing still just move [sic] the knife back and forth. He wasn't swinging it, he was just moving it from side to side.
Ms Kornman also provided a statement to the police from which it is evident that she did not observe the matters to which Mr Martin referred. Ms Kornman said: [3] Glenn and I returned home and as we were walking up the driveway Glenn asked me if I had seen what Dave's son was doing while we were talking to Dave. I said I hadn't paid much attention to him, and Glenn told me that the son looked to be pointing a gun at us while we were talking to Dave and that he had also had a large knife waving it around. We discussed the noises that we've heard in the past and the possibility that the loud bangs we had previously heard were possibly gunfire.
At this point, three matters should be noted.
Firstly, neither Mr Martin nor Ms Kornman have given oral evidence on this application. I am asked to determine the application by reference to the statements which have been tendered.
Secondly, there are significant parts of the statement of Mr Martin which are plainly in an inadmissible form.
Thirdly, I am asked to determine the admissibility of two distinct parts of Mr Martin's evidence. The first is his observation that the accused was holding something down by his left-hand side towards the ground, which looked like a short version of a shotgun, which he then lifted up with both hands and pointed towards Mr Martin and Ms Kornman. The second is his observation that he saw the accused holding in his left hand, and later moving back and forth and side to side, a "Bowie" type knife with a wide blade and a solid handle, which was at least 12 inches in length and which Mr Martin thought was a hunting knife.

Submissions of the Crown

The Crown submitted that the evidence of Mr Martin was admissible on one of two bases.
The first was by operation of what was referred to as the "O'Leary principle", [4] on the basis that the evidence formed part of the one transaction, or part of a connected series of events including the alleged murder, without which the murder could not be properly understood. The Crown submitted that the fact that the accused was in an aggressive and hostile state of mind earlier in the evening, towards people who posed no threat to him, was clearly relevant, and formed part of a continuum of events which included the murder of the deceased. It was submitted that, absent the evidence, the jury would be considering the question of whether the accused acted in defence of his father in "an artificial factual vacuum"
The second was that the observations of Mr Martin constituted evidence of the accused's state of mind at or about the time of the alleged murder. In that regard, the time which elapsed between Mr Martin's observations and the killing of the deceased was approximately one hour. The Crown submitted that the observations made by Mr Martin were sufficiently proximate to the deceased's murder to permit an inference to be drawn as to the accused's state of mind at the relevant time.
During oral submissions before me, the Crown accepted that the relevance of Mr Martin's observations of the accused in possession of the rifle were somewhat tenuous. However, the Crown forcefully pressed for the admission of the evidence of Mr Martin's observations regarding the accused's possession of the knife.
If I concluded that the evidence was relevant and admissible, the Crown submitted that there was no warrant for its exclusion under s 137 of the Evidence Act 1995 (NSW) (the Act). This, in the Crown's submission, was particularly the case in light of the careful directions that could be given to the jury explaining the basis on which the evidence was tendered, and the use to which the evidence was able to be put.

Submissions of the accused

Mr Anderson of counsel, on behalf of the accused, submitted that the evidence was not relevant. Whilst accepting that the so-called O'Leary principle formed part of the law of evidence, he submitted that the facts of that case were substantially different from those in the present case, and that the application of the principle was to be considered in that light.
Counsel submitted that in all of the circumstances, the evidence of the applicant's conduct observed by Mr Martin was not relevant to any issue in the trial, and was not properly regarded as part of an inseparable sequence of events so as to render it admissible. It was submitted that beyond his observations of the accused holding a rifle and a knife, Mr Martin gave no admissible evidence of the accused exhibiting any behaviour consistent with the subsequent stabbing of the deceased.
Counsel submitted that the fact that the observations of Mr Martin were relatively close in time to the deceased's murder did not, of itself, mean that the evidence was relevant and admissible. He submitted that the mere acts of holding a rifle and holding a knife were substantially different to what had ultimately occurred.
In the event that I came to the conclusion that the evidence was admissible, counsel submitted that it ought be excluded under s 137 of the Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused. Counsel submitted, in particular, that there was a significant risk that the jury would misuse the evidence if it were admitted.

Consideration

In considering the admissibility of the evidence it is appropriate to go firstly to the decision of the High Court in O'Leary. It is accepted that the O'Leary principle remains part of the law of evidence in this state and has not been abolished by the Act. [5]
The victim in that case was an employee at a timber camp who, along with other employees, had taken part in what was referred to as a "drunken orgy" which had commenced on a Saturday morning and had continued until late that night. At about midnight, the victim retired to his cubicle, which was a short distance from a cubicle occupied by the appellant. In the early hours of the following morning, the victim was found dying. Medical examination following his death established that he had been struck on the head 8 or 9 times with a bottle, after which kerosene was poured over him and his clothes set on fire. There was evidence that shortly before the discovery of the victim, the appellant had a bottle in his possession. A pullover belonging to the appellant was also found close to the victim's cubicle.
The appellant was found guilty of the murder of the victim. At his trial, evidence was admitted that at various times leading up to the victim's death, he had violently assaulted other employees. Some of those assaults were unprovoked. All consisted of brutal blows to the head. There was also evidence that during the preceding afternoon the appellant had aimed a blow at the victim.
The majority of the Court [6] held that the evidence was admissible. The judgments of Latham CJ and Dixon J (as his Honour then was) are particularly instructive in respect of the basis upon which that determination was made.
Latham CJ observed that the evidence was evidence of facts and matters which formed constituent parts or ingredients of a transaction which explained, or made intelligible, the course of conduct which had been pursued by the appellant. [7]
Dixon J said: [8] Without … evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.
I was referred, in the course of submissions, to other cases in which the operation of the principle had been considered, one of which was R v Serratore. [9] In that case, the victim was a 20 year old university student who had been in a relationship with the appellant which had extended over a period of four to five years (with several interruptions) prior to her death. The Crown adduced evidence of the relationship, and its violent nature, they being important circumstances relied upon by the Crown in support of its case. A significant part of the evidence relied upon by the Crown concerned conversations between the appellant and a witness which had taken place five months prior to the murder, in the course of which the appellant had asked the witness to help him kill the deceased. That evidence was admitted by the trial judge. The Court of Criminal Appeal found that there was no error in his Honour having done so, and observed that the conversations in question were: [10] … an integral part of the setting of fear that the deceased her found herself in … Specifically, they occurred at the time of a serious deterioration and eventual but not final split in the relationship of the deceased and the appellant.
In my view, bearing in mind the primary basis on which the Crown submitted that the evidence was admissible, what occurred on the two occasions observed by Mr Martin cannot properly regarded as part of a connected series of events which, along with the murder, should be viewed as one transaction. The actions of the accused with the rifle and the knife are essentially isolated acts. This is not a case where, if the evidence were excluded, the evidence of the murder would be presented (as Dixon J postulated in O'Leary) as an "unreal, and not very intelligible" event.
Further, simply because these observations were made at a relatively short time prior to the murder does not strengthen the Crown's position, much less render the evidence admissible. In this regard, the Crown relied on the judgment in Serratore and pointed to the fact that in that case, the relevant events had taken place some five months prior to the death of the deceased. However, the rationale for the admission of the evidence in that case will be clear from that passage of the Court's judgment to which I have referred. The facts in Serratore, and those in the present case, are completely distinguishable.
Similarly, in my view, the evidence is not relevant on the basis that it establishes that the accused had an aggressive and hostile state of mind shortly prior to the deceased's murder. Such a submission overstates the conclusions which can be properly drawn from the observations of Mr Martin. What Mr Martin saw was the accused holding the two items in question. Whilst I accept that there is some evidence of the accused pointing the rifle towards Mr Martin at one stage, that is, as I have said, an isolated event unaccompanied by any act of aggression. Moreover, its nature is considerably removed from, and different to, the allegations giving rise to the deceased's murder. In terms of the accused's possession of the knife, Mr Martin described the accused "mov[ing] the knife back and forth… [not] swinging it, … just moving it from side to side". However one interprets that observation, any act of the accused with the knife which was observed by Mr Martin was similarly unaccompanied by any outward expression of aggression or hostility.
For those reasons, I am not satisfied the evidence is relevant and it will be excluded.

Endnotes

At [13].
At [15].
At [12].
See O'Leary v R (1946) 73 CLR 566; [1946] HCA 44
R v Adam (1999) 106 A Crim R 510; [1999] NSWCCA 189.
Latham CJ; Rich, Starke Dixon and Williams JJ.
At 575.
At 577.
[2001] NSWCCA 123.
At [39]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2021

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