R v O’Keefe [2021] NSWSC 6

R v O’Keefe [2021] NSWSC 6

Tendency evidence describing the deceased’s violent and irrational conduct (including but not limited to conduct involving a knife and when under the influence of drugs), as set out in paragraphs (i)-(iv) and (vii)-(xiv) of the Tendency Notice, has significant probative value to facts in issue regarding the accused’s defence of self-defence. The evidence is not unfairly prejudicial and should not be excluded under s 135. However, specific evidence in paragraphs (v) and (vi) lacks sufficient identification of the deceased and is not admissible. The recorded statement by the accused that he 'always has a knife on him' is inadmissible as it constitutes tendency evidence and no proper notice...

Parties
Prosecution: Crown; Accused: Sean David O'Keefe
Jurisdiction
Australia
Judgment Date
15 January 2021
Procedural Posture
Criminal / Interlocutory Ruling on Admissibility of Tendency Evidence and Evidentiary Objections
Outcome
Evidence of the deceased’s violent and irrational conduct (except for incidents (v) and (vi)) may be adduced by the accused; first portion of objected recorded evidence rejected.
Legal Topics
Tendency Evidence, Admissibility of Evidence, Self Defence, Relevance and Probative Value, Procedural Rulings
Criminal Law Evidence Tendency Evidence Admissibility of Evidence Self Defence Relevance and Probative Value Procedural Rulings

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Parties

Crown

Prosecution

Sean David O'Keefe

Accused

Procedural Posture

Criminal / Interlocutory Ruling on Admissibility of Tendency Evidence and Evidentiary Objections

Legal Issues

  1. 1 Whether the accused may adduce evidence of the deceased’s violent and irrational conduct as tendency evidence in support of self-defence
  2. 2 Whether the identified tendency evidence has significant probative value per s 97(1)(b) Evidence Act 1995 (NSW)
  3. 3 Whether any evidence should be excluded on the basis of unfair prejudice (s 135 Evidence Act)

Ratio Decidendi

Tendency evidence describing the deceased’s violent and irrational conduct (including but not limited to conduct involving a knife and when under the influence of drugs), as set out in paragraphs (i)-(iv) and (vii)-(xiv) of the Tendency Notice, has significant probative value to facts in issue regarding the accused’s defence of self-defence. The evidence is not unfairly prejudicial and should not be excluded under s 135. However, specific evidence in paragraphs (v) and (vi) lacks sufficient identification of the deceased and is not admissible. The recorded statement by the accused that he 'always has a knife on him' is inadmissible as it constitutes tendency evidence and no proper notice...

Court Disposition

Evidence of the deceased’s violent and irrational conduct (except for incidents (v) and (vi)) may be adduced by the accused; first portion of objected recorded evidence rejected.

Orders

  • The accused Sean David O'Keefe may adduce evidence of the conduct of the deceased referable to the alleged tendency (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...
  • The first portion of evidence objected to on page 105 of the Master Audio/Visual Chronology is rejected.