R v Jacobs (No 8)

[2013] NSWSC 949

Supreme Court

New South Wales

Medium Neutral Citation:	R v Jacobs (No 8) [2013] NSWSC 949
Hearing dates:	12 July 2013
Decision date:	15 July 2013
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	Section 165 application refused.
Catchwords:	EVIDENCE LAW - application for a warning pursuant to s 165 of Evidence Act - admissions of the accused captured on covert listening device - whether evidence "may be unreliable" due to delirium - whether there are good reasons not to give warning - whether courts have special experience with admissions - no special experience with regard to delirium - application refused
Legislation Cited:	Evidence Act 1995
Cases Cited:	GAR v R (No 3) [2010] NSWCCA 165 Oliveri v R [2011] NSWCCA 38 R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 R v Reardon [2002] NSWCCA 203 R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301
Category:	Procedural and other rulings
Parties:	Regina Michael Allan Jacobs
Representation:	Counsel: P Barrett (Crown) T Hoyle SC (defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Zahr Lawyers (defendant)
File Number(s):	2012/89001

ex tempore Judgment

1. Defence counsel has applied for a warning pursuant to s 165 of the Evidence Act 1995. The subject matter is the alleged admissions of the accused captured by the listening device on 1 April 2012. At my request defence counsel filed written submissions that delineate his position with precision. The application is founded upon s 165(1)(a) and (c). In short the expert evidence of Dr Oak, psychiatrist, is relied upon as showing that, certainly in the month between 2 March 2012 and 1 April 2012, and even on the latter date, the accused was suffering from delirium, which condition may have led him to say things that were divorced from reality, even if at first blush they appeared plausible.

1. The Crown Prosecutor opposes the application. In written submissions he asserts that the preconditions for giving a warning have not been made out. That is said to be because the jury is perfectly capable of assessing all of the evidence on the topic, and there is nothing to suggest that the jury will be misled in its evaluation. Finally, he submits that the Court has no special appreciation of the likelihood of unreliability that would not be known to the jury. He referred to the decision of the Court of Criminal Appeal in R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301.

Determination

1. There is no need to recount in detail the contents of the transcript of the disc of the listening device product, the former of which is MFI 36 and the latter of which is Exhibit AO. Nor is it necessary to go through in detail the evidence of Dr Oak. It is enough to say that, on 1 April 2012, the accused said a number of things that, if accepted as true and reliable, are powerful evidence of his guilt. On the other hand, it is also the case that it is tolerably clear that on 1 April 2012 the accused either believed or had believed a number of things that were palpably untrue. One was that he had rescued a person from shark infested waters, having been shot five times. Another was that the deceased had been in the intensive care unit with him. A third was that he had shot himself.

1. Turning to the requirements of the section, it is the case that the characteristics of the evidence in question, that is that the things said could be admissions, and it is evidence the reliability of which may be affected by ill mental health, are explicitly enumerated in the section. It is also the case that to my mind the evidence "may be unreliable", to use the phrase that appears in the chapeaux of s 165(1).

1. However, there is a real question in my mind whether there are good reasons for not giving a warning in accordance with s 165(3). It could be said that the jury is perfectly well equipped to make an assessment of the reliability of the alleged admission, armed as they are with all the evidence in the trial; the disc; the transcript as an aide memoire; the evidence of the interlocutor, Ms Strudwick; some medical records of the accused; and, of course, the expert opinion of Dr Oak, who was one of the treating psychiatrists of the accused at the relevant time. She was examined, cross-examined and re-examined in detail.

1. It could be said the jury is in no worse a position than I am, or the special experience of the courts generally, to make an assessment of such evidence. In other words the courts have no special experience with regard to the effect of delirium upon the reliability of alleged admissions. In that regard I have considered the discussion in the judgments in R v Stewart, especially at [38], [74], [83] - [89] and [96] to [101].

1. I have also considered what was discussed in the decisions of the Court of Criminal Appeal of this State in R v Reardon [2002] NSWCCA 203 at [127] to [148]; R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 at [163] to [195]; GAR v R (No 3) [2010] NSWCCA 165 at [82] to [94]; and finally Oliveri v R [2011] NSWCCA 38 at [17] to [19].

1. There is substantial force in the proposition that the courts and I know nothing more than the jury about delirium and its effects, and how to judge a statement that could be unreliable as a result.

1. On the other hand, on further reflection, it could be said perhaps that the courts have a deeper experience and knowledge than ordinary citizens of admissions that at first blush appear to be reliable but in truth are not, at least in a general sense.

1. Two examples may suffice. For years courts suspected that alleged oral admissions were not in truth made, and yet jurors were prepared to act upon them. Separately, the courts do have special experience of persons who, for reasons of mental disturbance, confess to crimes that they have not in truth committed. Although those two examples are not directly analogous to the circumstances of this case it could be said, perhaps, that they are suggestive of a special experience on the part of courts in the area of admissions that at first blush may appear to any rational and careful analyst to be reliable, but in fact are not.

1. On reflection, however, I do not consider that those two examples are apt. The issue of alleged oral admissions is to do with the question of whether the words were said. Here, the question is the reliable use of the words that were, in the main, not the subject of dispute that they were said.

1. As for the second example, though more closely related to the circumstances of this case, it is in truth to do with persons who suffer from long-standing mental issues that lead them to confess deliberately to things they did not do. Here what is under consideration is an acute condition of the brain that led to hallucinations, delusions, false memories and therefore potential unreliability.

1. With regard to the specific question of the effects of delirium on the reliability of alleged admissions, I consider that the courts have no special knowledge, experience or expertise with regard to that question. Separately, and speaking for myself, certainly in my career as a Judge and an advocate I have not to my memory been involved in a trial, a sentence, or an appeal that gave rise to consideration of the issue.

1. Furthermore, the jury has the benefit of detailed expert evidence on the topic that was the subject of incisive questioning by both parties before the jury.

1. In short, although I consider that the evidence may be unreliable, and that it does fall within two sub-paragraphs of s 165(1) I consider that, pursuant to s 165(3), there are good reasons not to give the jury any warning pursuant to the section.

1. Accordingly the application is refused.

**********

Decision last updated: 16 July 2013