R v Jason Fairbairn

Case [2011] ACTSC 78


R v JASON FAIRBAIRN
[2011] ACTSC 78 (19 May 2011)

CRIMINAL LAW – trial by judge alone – charge of trafficking in a controlled drug other than cannabis – accused is guilty.
EVIDENCE – admissibility and relevancy – hearsay – whether records of telephone calls inadmissible as hearsay – admissible as admissions of accused – other party’s conversation not admitted for truth of representation.
EVIDENCE – admissibility and relevancy – tendency evidence – no notice given in time – whether prosecution should be permitted to rely on evidence – substance given well before trial – evidence admitted.
EVIDENCE – admissibility and relevancy – tendency evidence – whether of significant probative value – whether significant probative value outweighs unfair prejudice – evidence admissible.
CRIMINAL LAW – evidence – res gestae – whether doctrine survives enactment of Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth), ss 59, 66, 67, 97, 100, 101, 137, Pt 3.4
Telecommunications (Interception and Access) Act 1979 (Cth), s 46
Evidence Regulations 1995 (Cth), reg 6

Supreme Court Act 1933 (ACT), ss 68B, 68C
Drugs of Dependence Act 1989 (ACT), s 192
Criminal Code 2002 (ACT), ss 602, 604
Criminal Code Regulation 2005 (ACT)
Court Procedures Rules 2006 (ACT), rr 4733, 6752

Uniform Civil Procedure Rules 1999 (Qld), rr 143(3), 151(4)

Odgers, S, Uniform Evidence Law (ThomsonReuters: Sydney, 2010) 9th ed at 280-1;  [1.8.2460]
Judicial Commission of New South Wales, Criminal Trial Court Benchbook

Fleming v The Queen (1998) 197 CLR 250
R v DM [2010] ACTSC 137
R v Mulcahy [2010] ACTSC 98
R v Parkes (2003) 147 A Crim R 450
Graham v The Queen (1998) 195 CLR 606
Li v The Queen (2010) 199 A Crim R 419
Gardiner v The Queen (2006) 162 A Crim R 233
R v AB [2001] NSWCCA 496
Ming v Uvanna Pty Ltd (t/as North West Immigration Services) (1996) 140 ALR 273
R v Harker [2004] NSWCCA 427
Pfennig v The Queen (1995) 182 CLR 461
Phillips v The Queen (2006) 225 CLR 303
W v The Queen (2001) 115 FCR 41
R v Ellis (2003) 58 NSWLR 700
AE v The Queen [2008] NSWCCA 52
Tasmania v S [2004] TASSC 84
PNJ v Director of Public Prosecutions (Vic) [2010] VSCA 88
R v Ford [2009] NSWCCA 306
R v Shamouil (2006) 66 NSWLR 228
R v Blick (2000) 111 A Crim R 326
Melbourne v The Queen (1999) 198 CLR 1
Weissensteiner v The Queen (1993) 178 CLR 217
Bull v The Queen (2000) 201 CLR 443
Qualtieri v R (2006) 171 A Crim R 463
KRM v The Queen (2001) 206 CLR 221
Noto v State of Western Australia (2006) 168 A Crim R 457
R v Urbanski (2010) 108 SASR 369
R v Miller [2006] SASC 83

No. SCC 236 of 2008

Judge:             Refshauge J
Supreme Court of the ACT

Date:              19 May 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 236 of 2008
AUSTRALIAN CAPITAL TERRITORY )          

R

v

JASON FAIRBAIRN

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AGLC
R v Jason Fairbairn [2011] ACTSC 78
Case
[2011] ACTSC 78
Decision Date

CaseChat Overview and Summary

In the case of R v Jason Fairbairn, the respondent was charged with trafficking in a controlled drug other than cannabis. The matter was heard by the Supreme Court of South Australia. The primary legal issues in the case were whether the evidence presented, including the admissibility of telephone call records, tendency evidence, and whether the doctrine of res gestae survives the enactment of the Evidence Act 1995 (Cth), could support a conviction. The court had to determine the admissibility of hearsay evidence, tendency evidence, and the relevance of the res gestae doctrine in the context of the Evidence Act.

The court first addressed the issue of the admissibility of the telephone call records. It found that these could be admitted not as hearsay, but as admissions by the accused. The court considered that the other party’s conversation was not admitted for the truth of the representation but to establish the context of the accused's statements. Regarding the tendency evidence, the court ruled that the prosecution was allowed to rely on it, despite the lack of timely notice, as the substance was provided well before the trial. The court held that the probative value of the evidence outweighed any potential unfair prejudice to the respondent. Finally, the court considered the applicability of the res gestae doctrine in light of the Evidence Act 1995 (Cth), concluding that the doctrine does not survive the enactment of the Act.

The court found Jason Fairbairn guilty of the charge of trafficking in a controlled drug. It accepted the prosecution’s evidence, which included the aforementioned telephone call records and tendency evidence, as sufficient to establish the offence. The court did not find the admissibility issues to be significant enough to affect the overall conviction. The respondent's appeal was dismissed, and the conviction was upheld.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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