R v Jacobs (No 2)

[2013] NSWSC 943

Supreme Court

New South Wales

Case Title:	R v Jacobs (No 2)
Medium Neutral Citation:	[2013] NSWSC 943
Hearing Date(s):	11 -12 June 2013
Decision Date:	12 June 2013
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	The application for the exclusion of the evidence of Mr Allender with regard to the effect of methamphetamine on the accused is rejected.
Catchwords:	EVIDENCE LAW - evidence of presence of illicit substance in accused's body - opinion about effect of drug on accused - relevant to whether accused was person who committed the offence - whether danger of unfair prejudice outweighs probative value - evidence to be admitted
Legislation Cited:	Evidence Act 1995
Cases Cited:	Dupas v R [2012] VSCA 328; (2012) 218 A Crim R 507 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 R v XY [2013] NSWCCA 121
Category:	Procedural and other rulings
Parties:	Regina Michael Allan Jacobs
Representation
- Counsel:	Counsel: P Barrett (Crown) T Hoyle SC (defendant)
- Solicitors:	Solicitors: Solicitor for Public Prosecutions (Crown) Zahr Lawyers (defendant)
File Number(s):	2012/89001

JUDGMENT

1. Objection has been taken by defence counsel to the receipt of evidence from a pharmacologist as to the finding of methamphetamine in a blood sample taken from the accused shortly after the alleged offence. The expert, Mr Allender, whose statement of 23 November 2012 became voir dire exhibit M, has expressed the following opinion at page 9 of that statement:

   "Therefore, based on my specialised knowledge, and relying on the information supplied, I am of the opinion that at the time of the murder, the methamphetamine level present in the Accused, Michael JACOBS blood would have contributed to increased aggressive and/or risk-taking behaviour. However, he would have been well aware of his actions".

2. The objection requires resolution at this very early stage of the trial because the learned Crown Prosecutor will open tomorrow immediately after the jury is empanelled and he wishes to open that evidence to the jury.

3. The objection was originally founded on three bases, now two.

4. First, it is submitted that the evidence does not pass the test of relevance contained in s 55 of the Evidence Act 1995, to which I shall subsequently refer in this judgment as "the Act".

5. A further objection founded on s 138 of the Act was not pressed on reflection.

6. Secondly, pursuant to s 137 of the Act, it was submitted by defence counsel that I would exercise my evaluative judgment to determine that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.

Background

1. In order to understand the positions of the parties it is appropriate to outline the issues in the trial and the evidence proposed to be led. I have been informed of those matters from the Bar table. As well as that, a number of exhibits were received on the voir dire, and Detective Wright was examined briefly with regard to the s 138 question.

2. The Crown alleges that the accused murdered the deceased, a serving police officer, by shooting him in Tamworth on the morning of 2 March 2012. It is alleged that that occurred very shortly after the deceased sought to administer a random breath test to the accused. In answer to the natural immediate reaction as to why anyone would murder a police officer with regard to a random breath test, the Crown proposes to lead evidence that, in December 2011, the accused was believed by police to be a disqualified driver; that he was in truth a disqualified driver until September 2013; that the accused believed himself to be at least unlicensed as at December 2011; and that the police had warned the accused in December 2011 that if he were found committing a driving offence again he would be arrested and very likely bail refused.

3. Furthermore, the Crown seeks to lead evidence of the effect of methamphetamine found in the blood of the accused to bolster the proposition that the accused was indeed the shooter. In other words, as against the proposition that a person would be unlikely to murder a police officer to avoid perhaps one or two days bail refused, or even 1 or 2 months' imprisonment for driving whilst unlicensed, or 3 to 6 months' imprisonment for driving whilst disqualified, the Crown seeks to lead the evidence of the effects of the drug to prove that, indeed, the accused may well have committed such a disproportionate act.

Section 55 - submissions

1. Senior counsel for the accused made it clear that the issue in the trial is whether the Crown can prove beyond reasonable doubt that the accused was the shooter, or whether it may have been another person. He also informed me that there will be no fall-back position along the lines of: even if the jury is satisfied beyond reasonable doubt that the accused was the shooter they, nevertheless, would not be satisfied that all of the elements of murder had been made out. He submitted that the question of intoxication was not relevant to the real issue in the trial. It is not a case, he submitted, where intoxication could be used to inculpate or exculpate with regard to voluntariness, or intention or some other mental element. He submitted that it is extremely rare for the state of intoxication of an accused person to be used in order to establish that he or she was the offender. There was an element of "bootstrapping", he submitted, in the approach sought to be adopted by the learned Crown.

2. The Crown Prosecutor submitted that the evidence of the effect of the drug goes to make it more likely that, in the unusual circumstances of this case, the accused was the shooter. In particular, he submitted that the evidence goes to address the inherent unlikelihood of the accused behaving in the way alleged by the Crown. He submitted that the evidence is not analogous to tendency evidence or bad character evidence led to establish that an accused is generally impetuous or prone to violence. Such evidence, he submitted, is always founded on the behaviour of an accused on other occasions. Here, he submitted, the evidence goes directly to the state of mind of the accused on the very occasion that founds the count in the indictment.

Section 55 - determination

1. The test contained in s 55(1) of the Act is as follows:

   "The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding."

2. It can be seen at once that the test in the sub-section is broad. It speaks of "could rationally affect" as opposed to "would rationally affect". It speaks of "indirect" as well as "direct" effect. And it speaks of "probability" of the existence of a fact in issue, as opposed to "certainty" of the existence of such a fact.

3. In light of the issue having been identified as being who was the shooter, in circumstances where the Crown alleges that the accused did something bizarrely risky, aggressive and almost irrational, I consider that the effects upon the accused of the methamphetamine that he had ingested are relevant to the determination of that issue.

4. It follows that I respectfully reject the objection founded on s 55 of the Act.

Section 137 - submissions

1. Senior counsel for the accused submitted that the evidence is in truth nebulous. He focussed on pages 7 and 8 of the statement that became voir dire exhibit M. He submitted that the expert was and is in no position to express an opinion as to whether the drug was ingested orally, intravenously or nasally. Nor can the expert say when the drug was ingested. Accordingly, he submitted, the witness cannot say with precision what the effect, if indeed there had been any effect at all, on this particular accused at the particular time would have been. The expert knows nothing, for example, about any tolerance that the accused may have had with regard to the effects of the drug.

2. In all of the circumstances, defence counsel submitted that the probative value of the evidence, on analysis, is very low.

3. As against that, he submitted that there are two forms of unfair prejudice that must be considered.

4. The first was the fact that the jury will know that the accused had ingested an illegal drug associated with serious criminality.

5. The second, and upon which defence counsel placed more emphasis, was the proposition that, once hearing the evidence, the jury would "switch off", as it were, and not consider the details of that evidence, including its weaknesses, when given by the expert. The jury would simply say, he submitted, that the accused was on drugs and he must have done this violent act.

6. Finally, he submitted that there are many other pieces of discrete evidence against the accused and, in the scheme of things, the evidence does not really add much to the Crown case.

7. The Crown Prosecutor submitted that the evidence is probative, and that evaluation of its strengths or weaknesses generally are questions for the jury and not for me.

8. He submitted that the problem of general prejudice relied upon by defence counsel with regard to drug use could be dealt with by way of careful and appropriate presentation of the evidence, along with a firm direction by me.

9. As for the particular prejudice identified by defence counsel, he submitted that there would be no reason for the jury to behave in that way. Defence counsel could cross-examine, call his own expert evidence, if he wished, and address, and there is nothing to suggest that the jury would not be receptive to those processes.

10. In short, he submitted that my evaluative judgment pursuant to s 137 of the Act does not call for exclusion.

Section 137 - determination

1. A five judge bench of the New South Wales Court of Criminal Appeal, in R v XY [2013] NSWCCA 121, very recently considered s 137 in light of the recent decision of the Victorian Court of Appeal in Dupas v R [2012] VSCA 328; (2012) 218 A Crim R 507, which declined to follow the decision of the New South Wales Court of Criminal Appeal in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 and a number of subsequent decisions of that Court. Four of five judges in R v XY held that the approach taken in R v Shamouil is correct. In other words, the proposition that questions of credit and reliability are not for me to determine remains binding upon me.

2. Section 137 of the Act is as follows:

   "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

3. The definition of "probative value" contained in the Dictionary of the Evidence Act is as follows:

   "probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

4. That definition speaks of "extent". As Basten JA said in R v XY at [66], it is appropriate to consider, in light of that definition, the capacity of the evidence to advance the Crown case.

5. Hoeben CJ at CL expressly agreed with that approach.

6. In determining the probative value of the evidence, I respectfully adopt the approach taken in R v XY of assessing the capacity of the evidence under objection to advance the Crown case.

7. Whether the Crown case may have other bases and be, as a result, strong is not, in my respectful opinion, to the point.

8. In light of the issue identified in the trial and the background that I have summarised, I consider that the probative value of the evidence is quite high. Without it, any tribunal of fact would wonder why any person would do what is alleged. With it, some explanation is provided.

9. It is true that the evidence suffers from the deficiencies identified by defence counsel. On the other hand, the opinion ultimately expressed is firm, at least on its face. The witness was not cross-examined on the voir dire. That approach was seemingly correct, because it is for the jury and not for me to determine what approach it takes to the assessment of the evidence.

10. In short, as I have said, I consider that the probative value of the evidence is quite high.

11. Turning to the second part of the test, it is true that it will be prejudicial for the jury to hear that the accused, on at least one occasion, ingested a prohibited drug. On the other hand, senior counsel for the accused very fairly informed me that the evidence in the trial will inevitably show that the accused was a heroin user and moved within the heroin milieu of Tamworth. In that sense, the extra prejudice of there being evidence of use of methamphetamine may be less than it would be if there were no evidence whatsoever of the use of illicit drugs.

12. During discussion, I formulated a draft direction for the purposes of argument. I shall not repeat it because it is reflected in the transcript. I indicated that, subject to any contrary submission of the Crown Prosecutor, I would be content to give such a direction, and indeed would listen receptively to any submission of defence counsel as to its amendment or supplementation.

13. Although raising in a criminal trial the fact that an accused used a prohibited drug is of concern and could lead to some prejudice that is unfair, and could lead to the danger of unfair prejudice, on careful reflection I do not consider that the test in the section has been made out, on the general basis identified by senior counsel for the accused, in favour of exclusion.

14. Turning to the particular basis, I am less persuaded that unfair prejudice will arise in that regard, or indeed the danger of unfair prejudice. Although it is possible, I do not think it likely that the jury would be so overawed by the subject matter of prohibited drugs as to become incapable of assessing the strengths and weaknesses of the evidence of the witness. Again, assisted by an appropriate direction, if sought, I consider that the jury would be quite capable of making a fair assessment of the true weight of the evidence of the expert without being deflected from that task by the prejudicial nature of the subject matter. Again, I do not, as a matter of evaluative judgment, consider that the evidence must be excluded, on the particular basis, pursuant to the section.

15. In summary then, I consider that the evidence passes the low test of relevance in s 55 of the Act. As for s 137, I have assessed the probative value of the evidence with regard to its capacity to advance the Crown case, and regard it as quite high in the circumstances of this trial. Although there is a danger of unfair prejudice in light of the subject matter of the use of prohibited drugs, I do not consider that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. Accordingly, the evidence will not be excluded pursuant to s 137.

16. It follows that the Crown Prosecutor may open upon the evidence tomorrow morning.

Order

1. I make the following order: The application for the exclusion of the evidence of Mr Allender with regard to the effect of methamphetamine on the accused is respectfully rejected.

   **********