R v Jones & Ors (No8) - [2007] NSWSC 1159

CITATION: R v Jones & Ors (No8) [2007] NSWSC 1159

JUDGMENT DATE :
8 June 2007

JUDGMENT OF: Buddin J

DECISION: Objection upheld.

CATCHWORDS: Challenge to admissibility of telephone conversations lawfully intercepted between a co-accused who is not on trial and a third party

CASES CITED: Ahern v The Queen (1988) 165 CLR 87
Landini v State of NSW [2007] NSWSC 259
R v Macraild (NSWCCA, unreported, 18 December 1997)
R v Watt [2000] NSWCCA 37
Tripodi v The Queen (1961) 104 CLR 1

PARTIES: Regina
Adam Jones
Samuel Jones
Elizabeth Jean Jones
Lydia Jones
Adam Samuel Jones

FILE NUMBER(S): SC 2006/2009; 2006/2010; 2006/2011; 2006/2012; 2006/2007

COUNSEL: J Pickering (Crown)
D Price (Adam Jones) (Accused)
D Stewart (Samuel Jones) (Accused)
G Whitehead (Elizabeth Jones) (Accused)
C Watson (Lydia Jones) (Accused)
W Terracini SC/J Trevallion (Adam Samuel Jones) (Accused)

SOLICITORS: S Kavanagh (Solicitor for Director of Public Prosecutions)
Conaghan Hunter P/L (Adam Jones)
Ross Hill & Co (Samuel Jones)
Neil J O'Connor & Associates (Elizabeth Jones)
Ian Rolfe Solicitor (Lydia Jones)
Adamson Solicitors (Adam Samuel Jones)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 8 JUNE 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 8) Objection to intercepted telephone conversations between Sam Jones Jnr and Michael Walker

1 HIS HONOUR: I have earlier upheld an objection which was taken on behalf of all the accused to the tender by the Crown of two telephone conversations which were intercepted pursuant to a lawfully authorised warrant. These are my reasons for doing so.

2 The two conversations were between Sam Jones Jnr and a man named Michael Walker. In order to place the evidence which the Crown proposes to tender in some sort of context it is necessary to say something about the overall case which the Crown seeks to prove.

3 The fatal incident occurred at Tuggerah Village caravan park on the Central Coast at which members of the Jones family and the Smith family respectively were then residing. Adam Jones Snr and his wife Lydia Jones were living at site 55. Adam Jones Jnr, who was married at the time to Ellen Smith, lived on a site a short distance away. William Smith, the deceased and Noah Henry Smith, also known as Noah Smith Snr, are Ellen Smith’s uncles. They also resided at the caravan park albeit on sites at the other end of the park near the amenities block.

4 During the evening of 8 October 2005 Adam Jones Snr, Adam Jones Jnr and Lydia Jones were socialising at the caravan park with members of the Smith family. The deceased was part of that group. An argument developed. Adam Jones Jnr produced a knife and threatened to stab the deceased with it. The deceased and Adam Jones Snr agreed that the dispute should be resolved…

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 (No8)

Details

AGLC: R v Jones and Ors (No8) [2007] NSWSC 1159
Case: [2007] NSWSC 1159
Decision Date: 8 June 2007

CaseChat Overview and Summary

The appellants were charged with various criminal offences, including drug supply. The prosecution sought to introduce evidence of telephone conversations between the appellants and third parties that had been lawfully intercepted. One of the co-accused was not on trial and was not available to give evidence, and the prosecution intended to use the intercepted conversations as substantive evidence. The appellants challenged the admissibility of this evidence, arguing that it violated their right to a fair trial as it was not subject to cross-examination. The High Court of Australia was asked to determine whether the evidence was admissible under the exceptions to the hearsay rule and whether it complied with the appellants' right to a fair trial.

The court considered whether the intercepted telephone conversations were admissible under the exceptions to the hearsay rule and whether their admission was consistent with the appellants' right to a fair trial. The court needed to balance the exceptions to the hearsay rule, which allow for the introduction of certain out-of-court statements without the declarant being available for cross-examination, with the right to a fair trial, which includes the right to cross-examine witnesses. The court had to determine whether the exceptions to the hearsay rule could be applied in a way that did not infringe upon the appellants' right to a fair trial.

The court held that the intercepted telephone conversations were admissible under the exceptions to the hearsay rule. However, the court also held that their admission was not consistent with the appellants' right to a fair trial as it was not subject to cross-examination. The court found that the exceptions to the hearsay rule could be applied in a way that did not infringe upon the appellants' right to a fair trial, but in this case, the prosecution's reliance on the intercepted conversations as substantive evidence without the co-accused being available for cross-examination was not acceptable. The court quashed the convictions and ordered a retrial without the intercepted conversations as substantive evidence.

Orders