R v Shepherd

[2022] ACTSC 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Shepherd

Citation:

[2022] ACTSC 16

Hearing Date:

3 February 2022

DecisionDate:

3 February 2022

Before:

Mossop J

Decision:

See [34]

Catchwords:

CRIMINAL LAW – EVIDENCE – Advance ruling application under s 192A of the Evidence Act 2011 (ACT) – admissibility of photo board evidence – evidence sought to be excluded under ss 135 or 137 of the Evidence Act – witness identifies accused by describing accused’s relationship to another person but not by name – three weeks later identifies the accused on a photo board and supplies his name – no evidence as to how the name was discovered – no evidence of name being discovered using social media – not appropriate to make advance ruling where witness likely to give relevant evidence at trial

CRIMINAL LAW – EVIDENCE – Advance ruling application – admissibility of admissions in telephone calls – defendant knew calls were recorded and spoke voluntarily – no unfairness to the defendant under s 90 of the Evidence Act – consideration of unfair prejudice – calls had high probative value – probative value of the evidence was not outweighed by the danger of unfair prejudice – telephone conversation evidence admissible

Legislation Cited:

Corrections Management Act 2007 (ACT), s 103

Court Procedures Act 2004 (ACT), s 76(3)
Criminal Code 2002 (ACT), s 310

Evidence Act 2011 (ACT), pt 3.9, ss 90, 135, 137, 192A

Parties:

The Queen (Crown)

Jesse Shepherd (Accused)

Representation:

Counsel

S Saikal-Skea (Crown)

C Brain (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Boxall Legal (Accused)

File Number:

SCC 220 of 2021

MOSSOP J:

Introduction

1. The accused, Jesse Shepherd, is facing a single count of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (CC2021/7081). His trial is due to commence on 28 March 2022. He has applied for advance rulings pursuant to s 192A of the Evidence Act 2011 (ACT) in relation two categories of evidence. The first category is evidence of a conversation which took place on 23 July 2021 between police and one of the victims of the robbery, in which the victim identified the accused from a photo board prepared by police and identified the accused by name. The second category involves three telephone calls between the accused and his mother, which took place while the accused was detained at the Alexander Maconochie Centre (AMC), and the associated evidence of an officer in charge of the prison. The Crown says certain admissions were made in these calls. Two of the calls took place on 16 July 2021 and one of them took place on 20 July 2021. By the time of the hearing of the application, the Crown had indicated that it did not wish to rely upon the 20 July 2021 conversation and, as a consequence, the scope of the dispute had narrowed.

The Crown case

1. The Crown case is that on 1 July 2021 at about 10:10pm, the accused and an unknown male robbed…