R v Jones & Ors (No4)

[2007] NSWSC 1154

CITATION:	R v Jones & Ors (No4) [2007] NSWSC 1154
JUDGMENT DATE :	4 April 2007
JUDGMENT OF:	Buddin J
DECISION:	Objection upheld.
CATCHWORDS:	Objection to parts of lawfully intercepted telephone conversations
CASES CITED:	R v Blick (2000) 111 A Crim R 326
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

4 April 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 4) Objection to parts of recorded conversations between Ellen Smith and Adam Jones on 20 October 2005

1 His Honour: I have previously overruled an objection made on behalf of the accused Adam Jones Jnr concerning the admissibility of two phone conversations (between him and his wife, Ellen Smith) which were recorded by way of a listening device. I have been informed that in consequence of that ruling, counsel for Adam Jones Jnr and the Crown have agreed to edit out two separate portions of those conversations. They cannot however agree about one other aspect of the conversation which accordingly falls to me to determine.

2 The part of the conversation which is in dispute is in the following terms:

“Ellen Smith: You’ll have a hard job to do anything because if the gavvers get hold of you, you’re going down for a very long time.

Adam Jones: Yeah, I know, I believe about 12 years.

Ellen Smith: Yeah, probably, no, I think 12 years would be too light for you,………..you know.”

3 The Crown submits that the material to which I have just referred is relevant and thus admissible because it is capable of being treated by the tribunal of fact as constituting an admission.

4 It is submitted on behalf of the accused that the material should be excluded pursuant to s 137 of the Evidence Act which is in the following terms:

Section 137
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.

5 The test to be applied is uncontroversial: R v Blick (2000) 111 A Crim R 326 (at pars 19-20).

6 In my view Ms Smith’s remark that “12 years would be too light for you” is of no probative value whatsoever. Her opinion about the length of any sentence which the accused should receive is entirely irrelevant to the proceedings. In any event, it is far from clear what could have informed such a view, given that she was not a direct eyewitness to the fatal incident and could not therefore have known precisely what the accused had done.

7 It is true that in some circumstances an accused person’s view as to the penalty that he or she is likely to receive may be capable of amounting to an admission because it may indicate an awareness of the nature and seriousness of their conduct. In the present context however, I am of the view that the balance of the conversation is also of little, if any, probative value. The views which are expressed by the participants in the conversation are entirely speculative because it is unlikely in the extreme that either of them would have any real appreciation of current sentencing patterns for offences of homicide in this State. The reference to 12 years is itself ambiguous because it is entirely unclear as to whether it is a reference to the likely head sentence or the non-parole period. In considering this aspect of the conversation, I have had regard to evidence given on the voir dire in the course of which Ms Smith admitted that she was endeavouring to provoke the accused during the conversation.

8 On the other hand, a discussion about the appropriate sentencing outcome, and particularly one which is as specific as the present discussion is, is capable of giving rise to the danger of unfair prejudice. That consideration assumes particular significance in the present case because the applicant has pleaded guilty to manslaughter, a fact which in itself constitutes an admission of significant wrongdoing. There are also, it may be noted, other admissions by the accused to similar effect. A discussion about the length of any sentence is capable of distracting the jury from its proper task in considering whether the appropriate verdict for this accused is murder or manslaughter. If this material was to be introduced into evidence, it is entirely conceivable that the the jury would embark upon an exercise of endeavouring to decide whether a sentence of 12 years was more appropriate for the offence of murder or for manslaughter. At the very least they are likely to engage in speculation about the matter. That would be an entirely inappropriate exercise given that the question of sentence is simply not a matter which is of any concern to them.

9 Accordingly I uphold the objection.

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