REGINA v. WILLOUGHBY [2000] NSWSC 751

New South Wales Supreme Court

CITATION : REGINA v. WILLOUGHBY [2000] NSWSC 751 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70082 of 1999 HEARING DATE(S) : Monday 31 July 2000 JUDGMENT DATE : 31 July 2000

PARTIES : REGINA v. WILLOUGHBY, Leyton Terence Matthew JUDGMENT OF : Greg James J at 1

COUNSEL : Crown: D. Arnott Accused: W. Terracini, SC./G. Newton SOLICITORS : Crown: S.E. O'Connor Accused: W.H. Parsons & Associates CATCHWORDS : Criminal law - trial - evidence - tendency evidence - effect on trial - necessity for notice - application to dispense with notice - prejudice curable by adjournment, discharge and costs - undertaking by Crown to pay costs thrown away LEGISLATION CITED : Evidence Act 1995 DECISION : Jury discharged.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

No. 70082 of 1999

GREG JAMES, J. AND A JURY OF 11 MONDAY 31 JULY 2000

REGINA v. LEYTON TERENCE MATTHEW WILLOUGHBY JUDGMENT (On discharge of jury - see p.260 of transcript) 1 HIS HONOUR: At what was almost the end of the Crown case, application was made by the Crown to call evidence of the use on the preceding night to the alleged day of the killing by the accused of a mobile telephone. That evidence was led to establish he was the user of the mobile phone which rang through to directory assistance seeking the Botany Police telephone number at the time at which the eye witness to the killing said he saw the assailant apparently using a mobile phone. 2 There had been evidence in the proceedings of the various times during which that phone had been used on that evening and on the day of the killing. There was evidence from which it was sought to prove that the accused exclusively used the phone. That evidence had reached the point at which I had expressed the view that the evidence could be accepted by a jury as proving that the accused habitually, if not exclusively, used the mobile phone himself. 3 The evidence that it is now sought to elicit was provided to the defence at or before committal and since, including at and prior to trial. It is evidence that the accused used the mobile phone and a voice answering system in the process of trading in marijuana, at least with one couple. 4 No notice had been given by the Crown to the defence of the use of that material as tendency evidence within s.97 of the Evidence Act 1995. Until now, its use was apparently contemplated to show calls with the accused proximate to the relevant time, not for the purpose of those calls. It is submitted that the purpose is relevant to whether the accused would permit others access to the phone. 5 In a sense, it is not tendency evidence but is evidence of the use of a tool of crime such as to enable the identification of the accused with the person using the mobile phone at the scene of the killing and thus to prove him to be the assailant. 6 I have thought better to consider it as tendency evidence for the purpose of dealing with the Crown's application. 7 Since the fate of that application has already been communicated by me to counsel following argument in the absence of the jury, I am concerned with, in these reasons, summarising what has occurred. Although neither counsel requires the reasons in extenso, they do require the summary for what background it affords for the possible enforceability of the undertaking that I am advised will be given in consequence of the Crown's attitude to a discharge application by the defence, recognising the rulings I would make as to the admissibility of the evidence. 8 This is a circumstantial evidence case which critically turns on identifying the assailant. The evidence now under consideration, when taken in conjunction with the other evidence in the case including:-