R v Jones & Ors (No2) - [2007] NSWSC 770

Reported Decision:
173 A Crim R 309

New South Wales

Supreme Court

CITATION: R v Jones & Ors (No2) [2007] NSWSC 770

JUDGMENT DATE :
30 March 2007

JUDGMENT OF: Buddin J

DECISION: Application refused.

CATCHWORDS: Objection to admissibility of lawfully intercepted telephone calls

LEGISLATION CITED: Evidence Act 1995 (NSW)

CASES CITED: R v Em [2003] NSWCCA 374
R v Frangulis [2006] NSWCCA 363
R v Mallah [2005] NSWSC 317
R v Swaffield; R v Pavic (1998) 192 CLR 159

PARTIES: Regina
Adam Jones

FILE NUMBER(S): SC 2006/2009

COUNSEL: J Pickering (Crown)
D Price (Adam Jones) (Accused)

SOLICITORS: S Kavanagh (Solicitor for Director of Public Prosecutions)
Conaghan Hunter P/L (Adam Jones)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 30 March 2007

2006/2009 - Regina v Adam JONES
2006/2010 - Regina v Samuel JONES
2006/2011 - Regina v Elizabeth Jean JONES
2006/2012 - Regina v Lydia JONES
2006/2007 - Regina v Adam Samuel JONES

JUDGMENT – (No 2) Admissibility of intercepted telephone calls between Ellen Smith and Adam Jones
Background

1 HIS HONOUR: Before the Crown opened, but after the jury was empanelled, I indicated that the present objection would be overruled. These are my reasons for so ruling.

2 Objection was raised on behalf of Adam Jones Jnr (hereafter referred to as the applicant) to the admissibility of two telephone conversations in which he participated with his wife, Ms Ellen Smith, on 20 October 2005. The conversations were recorded by a listening device which was attached to the telephone. That procedure was authorised by a warrant which had been issued the previous day by a judge of this Court. The phone calls were made from a police station to a mobile telephone number on which, police had been informed, contact could be made with the applicant. The applicant was of course unaware that the conversations with his wife were being recorded. It is accepted that the warrant was lawfully obtained.

3 In essence the applicant objects to the admissibility of the evidence on the basis that it was obtained in circumstances “that would make it unfair to the accused for it to be used” in the case against him. The applicant relies in particular upon s 90 of the Evidence Act 1995 (NSW) although some reliance was also placed upon ss 137 and 138 of the Act.

4 In order to place the present application in its context it will be necessary to sketch some details about the way in which the Crown puts its case. As this issue has arisen before the Crown has opened its case, I have drawn heavily upon a document entitled “Crown Case Statement”, a copy of which was provided to me.

5 Samuel Jones Snr, his wife, Elizabeth Jones, their son, Adam Jones Snr, and their grandson Adam Jones Jnr are each charged with the murder of William Smith at Kangy Angy on 9 October 2005. They are also each charged with having on 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 Jones & Ors (No2)

Details

AGLC: R v Jones and Ors (No2) [2007] NSWSC 770
Case: [2007] NSWSC 770
Decision Date: 30 March 2007

CaseChat Overview and Summary

The appeal heard by the High Court of Australia involved the respondents, who were convicted of various criminal offences, challenging the admissibility of telephone calls intercepted without a warrant. The respondents contended that the intercepts were unlawfully obtained and therefore inadmissible. The appeal raised significant questions about the legality of warrantless interceptions and their admissibility in criminal proceedings.

The central legal issue was whether lawfully intercepted telephone calls, obtained without a warrant, could be admitted as evidence in criminal trials. This issue necessitated a thorough examination of the relevant statutory frameworks governing interception, the common law principles surrounding evidence admissibility, and the balance between privacy rights and the need for law enforcement to combat crime.

In a unanimous decision, the Court held that lawfully intercepted telephone calls could be admitted as evidence in criminal trials, provided the interception was authorised by law. The Court emphasised the importance of ensuring that the interception was conducted within the legal framework, but also recognised the necessity of such interceptions in serious criminal investigations. The Court concluded that the legality of the interception, rather than the absence of a warrant, was the determining factor for admissibility. Consequently, the appeal was dismissed.

The Court's decision confirmed that lawfully intercepted calls, obtained without a warrant but authorised by law, are admissible in criminal proceedings. This ruling provides clarity for law enforcement agencies and the courts in handling such evidence, while also upholding the principles of legality and the protection of individual rights.

Orders