Supreme Court New South Wales Medium Neutral Citation: R v O'Keefe [2021] NSWSC 6 Hearing dates: 11 January 2021 Date of orders: 12 January 2021 Decision date: 15 January 2021 Jurisdiction: Common Law Before: Davies J Decision: 1. The accused Sean David O'Keefe may adduce evidence of the conduct of the deceased referable to the alleged tendency of the deceased (a) to behave violently, including with the use of a knife and when under the influence of drugs; and (b) to act irrationally, including when under the influence of drugs, as described in paragraphs (i) to (iv), (vii) to (xiv) of the Tendency Notice dated 29 October 2020. 2. The first portion of evidence objected to on page 105 of the Master Audio/Visual Chronology is rejected. Catchwords: EVIDENCE – tendency evidence – criminal proceedings – murder – self-defence - tendency evidence concerning the deceased – evidence that deceased acted violently when under the influence of drugs – whether of significant probative value – whether link needs to be shown between facts concerning the defence and the prior behaviour of deceased – whether probative value outweighed by unfair prejudice Legislation Cited: Evidence Act 1995 (NSW) ss 97, 101, 135 Cases Cited: DSJ v R; NS v R [2012] NSWCCA 9 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 R v Bryce (No 2) [2014] NSWSC 498 R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286 The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 Category: Procedural rulings Parties: Crown Sean David O'Keefe (Accused) Representation: Counsel: C Taylor (Crown) R Pontello SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) The Defenders (Accused) File Number(s): 2019/111830 Judgment 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. 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: Me and my mates met up with these other cunts and had a fight and I went too far. I had to do it bro. He (the deceased) was a pedo mate, it had to be done, he was a bad person. I stabbed him, I had to do it. I had to protect myself mate. The tendency notice 1. 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: (a) To behave violently, including with the use of a knife and when under the influence of drugs; (b) To act irrationally, including when under the influence of drugs. 1. The tendency notice sets out the substance of the evidence which the accused intends to adduce as follows: (i) Between about October 2015 and 25 October 2018 at Campbelltown and elsewhere in New South Wales, the deceased began using crystal methylamphetamine or ice, which he would self-administer via injection. The name of the person who saw, heard or otherwise perceived that conduct is Christopher Phillips. (ii) Between about October 2017 and 25 October 2018 at Campbelltown and elsewhere in New South Wales the deceased increased his consumption of ice and began talking to himself. The name of the person who saw, heard or otherwise perceived that conduct is Christopher Phillips. (iii) Between about 25 August and 25 October 2018 the at Campbelltown and elsewhere in New South Wales deceased became increasingly violent with everyone. The name of the person who saw, heard or otherwise perceived that conduct is Christopher Phillips. (iv) Around 25 August 2018 at 5 Phillips Street, Campbelltown the deceased got into an argument with Christopher Phillips during which the deceased went into the kitchen and got a knife. The deceased walked out to the lounge ·room in possession of the knife. The names of each person who saw, heard or otherwise perceived that conduct are Christopher Phillips and Jamie Westwood. Full particulars of the conduct at (i)-(iv) are contained in the statement of Christopher Phillips dated 28 October 2018 at pages 616-618 of volume 2 of the prosecution brief of evidence. (v) About 2am on Wednesday, 24 October 2018 at an address known to police at Campbelltown, the deceased went into the kitchen of the premises, obtained possession of a knife, pointed it at Sonny Anderson and said, inter alia, "You're dead. You're dead. Do you know who I am? I am related to the Queen." The name of the person who saw, heard or otherwise perceived that conduct is Nicholas Smith. (vi) At the same time, date and place the deceased obtained possession of a broomstick and swung it five times at the head of Nicholas Smith, saying, inter alia, "My brother said I should kill you." The name of the person who saw, heard or otherwise perceived that conduct was Nicholas Smith. Full particulars of the conduct at (v)-(vi) is contained in the statement of Nicholas Smith dated 29 October 2018 at pages 6205-6208 of volume 1 of the prosecution brief of evidence. (vii) About 8:15pm on Friday, 14 September 2018 at an address at Campbelltown known to police, the deceased assaulted his mother by slapping her with the back of his left hand across the right side of her face, causing discomfort and a red mark. Cheryl Phillips saw, heard or otherwise perceived that conduct. Full particulars are contained in the New South Wales Police Facts Sheet H 68808903 attached to this Notice, marked "A". (viii) At about 10:00am on Thursday, 4 January 2018 in the common area of Pod 10, Metropolitan Remand and Reception Centre, Holker Street, Silverwater the deceased, in the company of at least one other, assaulted Danny Sullivan by kicking him when he was on the ground. Danny Sullivan, Aaron Simmons and Joel Tootill saw, heard or otherwise perceived that conduct. Full particulars are contained in the New South Wales Police Facts Sheet H 67166454 attached to this Notice, marked "B". (ix) At about 8pm on Wednesday, 20 December 2017 at an address at Campbelltown known to police, the deceased became involved in an argument with his mother, Cheryl Phillips, the deceased believing that his mother had thrown away his ice pipe. During this argument the deceased told his mother that she's dead and her dogs are dead. Whilst the argument was occurring a witness arrived at the front door of the premises and heard the deceased say "I'm gonna kill ya fucking dogs and you ya dog. Don't you go to sleep tonight." Cheryl Phillips and Cherie Copland saw, heard or otherwise perceived this conduct. Full particulars are contained within the New South Wales Police Facts Sheet H 66991254 attached to this Notice, marked "C'. (x) About 5:45am on Saturday, 8 April 2017 at 17 Lakeside Street, Currans Hill the deceased started verbally abusing Mirjana Pesut's husband whilst holding a conduit pipe in his hand. At about 1:30pm on the same date at the same place, Rebecca Stanley, heard the deceased yelling out "I'm gonna get him, I'm gonna get him, I'm gonna get him." About 45 minutes later Rebecca Stanley again heard the deceased shouting out "I'm gonna get him, I'm gonna get him." Mirjana Pesut and Rebecca Stanley saw, heard or otherwise perceived that conduct. Full particulars are contained within the New South Wales Police Facts Sheet H 6471679 attached to this Notice, marked "D". (xi) At about 6pm on Monday, 2 May 2016 at an address at Campbelltown known to police, Constantino SPATARO entered his bathroom and saw the deceased through the bathroom window standing about 50mm away. The deceased said "There she is, she's in there." The deceased started to get agitated and repeated himself over and over. Mr Spataro got dressed, went out to the deceased and said "There's no one in the bathroom, have a look." The deceased walked straight to the bathroom and once in there stated "This isn't the room." Mr Spataro asked the accused if he a look and then asked him to leave. About 10:50pm that same night Mr Spataro was getting ready for bed when he heard a noise coming from outside. He saw a sensor light was turned off and he saw the deceased crawling on his hands and knees with something in his hands. He telephoned 000. Constantino Spataro saw, heard or otherwise perceived that conduct. Full particulars are contained within the New South Wales Police Facts Sheet H 61500373 attached to this Notice, marked "E". (xii) At about 7:30pm on Sunday, 27 March 2016 at an address at Campbelltown known to police, the deceased held a large knife to his throat and stabbed himself numerous times in the leg. The deceased also abused police and made threats of self-harm by way of cutting himself and pouring petrol everywhere to burn the house down. The deceased also made serious threats to police while in possession of the large kitchen knife and police deployed a taser to subdue him. The names of each person who saw, heard or otherwise perceived that conduct are known to police. (xiii) At about 1:45pm on Monday, 28 March 2016 at 17 Lakeside Street, Currans Hill the accused threatened Mirjana Pesut yelling "I'm going to get you." Full particulars of the conduct at (xii) and (xiii) are contained within the New South Wales Police Facts Sheet H 60690672 attached to this Notice, marked "F". (xiv) At about 6:00pm on Saturday 8 November 2014 at William Mannix Avenue Currans Hill the deceased assaulted Conner Carruthers, who was walking home from a bus stop, by jumping out from behind some bushes, grabbing Mr Carruthers by his singlet and saying "You're fuck now cunt" and "I saw you and your little mates in my backyard perving on my wife." Conner Carruthers saw and heard that conduct, the full particulars of which are contained within the New South Wales Police Facts Sheet H 57086277 attached to this Notice, marked "G". 1. The asserted tendency evidence is said to bear upon the following facts in issue in the case: (a) Whether, on 25 October 2018, the deceased was affected by drugs; (b) Whether, on the same day, the deceased behaved irrationally; (c) Whether, on the same day, the deceased behaved violently; (d) Whether, on the same day, the deceased armed himself with a knife; (e) Whether, on the same day, the deceased threatened the accused, including with a knife. 1. Section 97(1) of the Evidence Act 1995 (NSW) provides: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless - (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks 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. 1. 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. 2. 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. 3. The Crown opposes the adducing of the evidence. Submissions 1. 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: The disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged, and submitted that this test was approved by the plurality in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [40]. 1. 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: The disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the defence. One of those elements was that the accused believed his conduct was necessary to defend himself, and another was that the accused's conduct was a reasonable response in the circumstances as he perceived them. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. In Hughes v The Queen the plurality said: [16] The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. … [40] …The test posed by s 97(1)(b) is as stated in Ford: "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible. [41] The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged. … [60] The force of the tendency evidence as significantly probative of the appellant's guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience. [61] As explained above, there are two matters which must be considered. The first matter, involving the extent to which the evidence supports a tendency, does not require that the evidence be considered "by itself". In the words of s 97(1), the evidence of either "conduct" or "a tendency" can be used to determine the tendency relied upon by "having regard to other evidence adduced or to be adduced". In other words, evidence of a tendency might be weak by itself but its probative value can be assessed together with other evidence. … [64] The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. … 1. In The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, the High Court said at [58]: In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true. 1. 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. 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: The disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the defence. 1. 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. 2. 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. 3. 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]. 4. 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, …[S 97(1)(b)] is not to be applied as if it had been expressed in those terms. The omission of these familiar common law concepts is eloquent of the intention that evidence which may be significantly probative for the purposes of s 97(1)(b) should not be limited to evidence exhibiting the features so described. 1. 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. 2. 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: [22] In some cases the greater number of incidents and the differing nature of the confrontations would tell against the evidence of the incidents having the requisite capacity to satisfy s 97(1)(b). However, this is not such a case. In this case, the very disparate number of potential victims of the deceased, as revealed by the COPS entries, and the differing circumstances of the violent behaviour is capable of strongly supporting a contention that the evidence has the requisite capacity to affect the assessment of the existence of a fact in issue. In particular, it has the capacity to raise, at the very least, a reasonable possibility that the deceased found herself engaged in some form of violent confrontation with some person other than the accused in the days up to and the period immediately preceding her death. In making that finding, I reiterate, the Court is not making any final assessment of the effect of the evidence or the weight to be attached to it. 1. 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. 2. 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. 3. 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. 4. 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". 5. 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. 6. 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. 7. 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. 8. 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. 9. I note further that the final paragraph of Mr Smith's statement reads: 23. I do not know Jamie Phillips and I have never met the bloke. I do not know of Jamie Phillips' family or friends. That matter is not cured by the inadmissible hearsay in paragraph 22 of Mr Smith's statement, that one or other of Mr Anderson or Ms Lawrence said that the man who stayed in unit 9 was the deceased. Neither Mr Anderson nor Ms Lawrence gives evidence that they were present at the time the man concerned was in unit 9 to identify that man as the deceased. 1. 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. 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. So that the objections can be understood, it is necessary to set out the whole of the transcript of the conversation: [p.104] V.1 IBRAHIM ORFALI V.2 SEAN O'KEEFE START V.1 Two days after. V.2 You're in a coma? V.1 Yeah. My lungs collapsed. They drilled into my, broke through my rib cage. V.2 What was the charge? [p.105] V.1 Both, pardon? V.2 What was the charge? V.1 I had a fight with these two guys that tried to rob me for my tattoo kit. V.2 Yeah? V.1 And I fought back, and I hurt one of the guys, and he charged me. V.2 Your tattoos? V.1 Charged me that, I'm getting charged because, because I know self-defence. I've never, I didn't tell him that I knew self-defence, or some shit like that. V.2 Yeah. V.1 But - - - V.2 That's madness. What do you do? V.1 When I called the cops, and the cops came to me that night, I had a knife on me. That's the main charge. V.2 Yeah, yeah, I've always got one on me. Always. It's not for, like, any cunt in here. It's for when cunts...the one cunt. Yeah. Yeah. V.1 … V.2 It's for some cunts come runnin' on us. You know? Like, if someone runs in and fuckin' tries to rob her, you know? V.1 I got into a fight with three guys down at Liverpools. You know, that four storey…I've never actually stabbed anyone, but I know if I fuckin had to, I suppose if someone's comin' at V.2 you, you would, wouldn't ya? V.1 Yeah. V.2 I've never actually done it, you know? V.1 I've been thrown four storeys off a balcony. V.2 Yeah? I've been through the ringer, don't worry about that you know? I've been stabbed in the eye, I've been jumped, stabbed, I've been punched, hit with the rock in the sock. I've had all that. V.1 these cunts. V.2 That's what I mean. Like what do you do? what self defence did do then? V.1 Everyone is basically same in their life. Just the minor details, you know? V.2 Yeah. What self-defence? V.1 Self-defence? [p.106] V.2 What one? V.1 Um, Thai kickboxing. V.2 Muay Thai? V.1 Yeah. V.2 Fuck, can you teach me a couple of things? V.1 I wouldn't be able to. V.2 I know basics to boxing. V.1 The guy, the guy, the guy's dad that taught me, I'm good friends with him. V.2 Show us. Like, with the stance and that. V.1 ohh Fuck off bro. V.2 No, no, your tired ay… ah spewing, can I get your number? V.1 Yeah. END (The italicised sections were the two portions to which objection was taken.) 1. 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. 2. 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. 3. 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. 4. 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. 5. The second portion in the conversation objected to is said to be irrelevant as to issues in the present trial. 6. 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. 7. I would not uphold the objection to the second objected passage. 8. Accordingly, I make the following orders: 1. The accused Sean David O'Keefe may adduce evidence of the conduct of the deceased referable to the alleged tendency of the deceased (a) to behave violently, including with the use of a knife and when under the influence of drugs; and (b) to act irrationally, including when under the influence of drugs, as described in paragraphs (i) to (iv), (vii) to (xiv) of the Tendency Notice dated 29 October 2020. 2. The first portion of evidence objected to on page 105 of the Master Audio/Visual Chronology is rejected. ********** Amendments 18 February 2021 - Publication restriction removed 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: 18 February 2021