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

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.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jacobs (No 8)

Details

AGLC: R v Jacobs (No 8) [2013] NSWSC 949
Case: [2013] NSWSC 949
Decision Date: 15 July 2013

CaseChat Overview and Summary

In the matter of R v Jacobs (No 8), the case involved the accused, Jacobs, who was subject to a covert listening device that captured admissions made by him. The legal issue before the court was whether the evidence obtained from the covert listening device was unreliable due to the accused's delirium, and whether a warning under section 165 of the Evidence Act should be given to the jury. The court also had to consider whether there were good reasons not to give such a warning and whether the court had special experience with admissions made by an accused who was delirious.

The court considered that there was no special experience with regard to delirium that would enable it to assess the reliability of the evidence captured on the covert listening device. While delirium could impact the reliability of an accused's admissions, the court found that it was not in a position to determine the extent of this impact. Furthermore, the court found that there were no good reasons not to give a warning to the jury. The court held that it was important to ensure that the jury was aware of any potential unreliability in the evidence, and that this could be achieved through the appropriate warning.

Accordingly, the application for a warning pursuant to section 165 of the Evidence Act was refused. The court found that the evidence obtained from the covert listening device could be admitted, but that a warning should be given to the jury to alert them to the potential unreliability of the evidence due to the accused's delirium. This decision highlights the importance of ensuring that juries are properly informed of any potential unreliability in evidence, and the need for careful consideration of the factors that may impact the reliability of such evidence.

Orders