New South Wales Supreme Court 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 Ahern v The Queen (1988) 165 CLR 87 Landini v State of NSW [2007] NSWSC 259 CASES CITED : R v Macraild (NSWCCA, unreported, 18 December 1997) R v Watt [2000] NSWCCA 37 Tripodi v The Queen (1961) 104 CLR 1 Regina Adam Jones PARTIES : Samuel Jones Elizabeth Jean Jones Lydia Jones Adam Samuel Jones FILE NUMBER(S) : SC 2006/2009; 2006/2010; 2006/2011; 2006/2012; 2006/2007 J Pickering (Crown) D Price (Adam Jones) (Accused) COUNSEL : D Stewart (Samuel Jones) (Accused) G Whitehead (Elizabeth Jones) (Accused) C Watson (Lydia Jones) (Accused) W Terracini SC/J Trevallion (Adam Samuel Jones) (Accused) S Kavanagh (Solicitor for Director of Public Prosecutions) Conaghan Hunter P/L (Adam Jones) SOLICITORS : 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 between the two of them the following morning. At that point the respective families then parted company. 5 The Crown maintains that contact was then made by mobile phone at about 11.30 pm with Sam Jones Snr who, at the time, was living with his wife Elizabeth Jones at the Parklea caravan park. The call to them was made by either their son Adam Jones Snr or by Lydia Jones. In any event the Crown case is that Sam Jones Snr and Elizabeth Jones travelled to Tuggerah Village caravan park from Parklea arriving there at about 12.30 am. Adam Jones Snr's brother, Sam Jones Jnr, also travelled to the Central Coast from Parklea. The Crown case is that a number of other persons arrived at the park for what was anticipated to be a fight. The Crown case is that it would appear from the mobile phone records that Sam Jones Jnr was responsible for recruiting those other persons. 6 Prior to the arrival of these people, Ellen Smith said that she observed both her husband Adam Jones Jnr and Adam Jones Snr gather together various weapons, including a baseball bat. Ellen Smith said that Lydia Jones told her that "it will be a fair fight". Ellen Smith gave evidence that she asked Sam Jones Snr to intervene but he told her, she said, that it was "out of [my] hands". 7 At approximately 1.20 am a group of between 8 to 10 people were observed by members of the Smith family to attack the deceased and Noah Smith Snr in the vicinity of the amenities block. Those persons were armed with various weapons which included axes, machetes, swords, knives and metal bars. The four members of the Jones family accused of murder have been identified as being part of the group which participated in the fatal attack. 8 Whilst the attack was taking place, Sam Jones Jnr, is alleged to have had a handgun which he used in order to keep members of the Smith family at bay. The Crown case is that Noah Smith Snr was attacked when he went to the deceased's assistance. A post-mortem examination revealed that the deceased had sustained 18 sharp force injuries to his head and body, including the fatal blow which penetrated his lung. The pathologist, who conducted the post-mortem, expressed the opinion that the injuries were caused by a variety of sharp instruments and blunt objects. Noah Smith Snr sustained a 20 cm laceration, which ran from his neck and down his back, as well as other injuries. 9 After the attack, Ellen Smith observed Adam Jones Snr run back to his caravan. He was covered in blood and was carrying a machete. Her husband, who was with him, was carrying a Samurai sword which had blood on the blade. Ellen Smith then observed Lydia Jones wipe blood from the weapons which her husband and father in law had been carrying. She then saw her remove those items from the caravan. She saw that Lydia Jones then left them outside the caravan where they were subsequently located by police The four persons accused of murder left the scene and returned to Parklea. 10 Later that day Adam Jones Snr handed himself into police. He gave a version of events in which he suggested that he had been set upon by the deceased and members of his family and that he had struck the deceased in self-defence. He maintained that no other member of his family had been involved in the altercation with the Smith family. The following day, Elizabeth Jones told police that she had not been at the caravan park on the night in question. She was arrested on 15 October. Sam Jones Snr and Adam Jones Jnr went to Queensland where they were arrested on 26 October. Adam Jones Jnr also raised the issue of self-defence and told police, amongst other things, that he had gone to the assistance of his father who had been attacked by members of the Smith family. Lydia Jones was arrested in December 2005. 11 In essence, the Crown case is that the four persons accused of murder together with Sam Jones Jnr, who eluded police and remains at large, and a number of unidentified persons, participated in a joint criminal enterprise, the purpose of which was to attack the deceased intending thereby to kill him or to inflict grievous bodily harm upon him, and also to attack Noah Smith Snr with the intention of wounding him. Lydia Jones, as I have said, is alleged to have acted as an accessory after the fact to the murder of William Smith by her husband. 12 The case advanced on behalf of each of the accused can also be briefly stated. Adam Jones Snr and Adam Jones Jnr admit by their pleas of guilty to manslaughter that they were not only present at the time of the fatal incident but also that they participated in the events which preceded it. They each maintain however that they did not intend to kill or inflict grievous bodily harm upon the deceased. They also maintain that although they were acting in self-defence at the time, an issue which they each raised in their interviews with police, they acknowledge that their actions were not reasonable and indeed that they were excessive in all the circumstances. They also contend that they were acting under provocation. Similarly they accept some responsibility for having inflicted injuries upon Noah Smith Snr and accordingly they pleaded guilty to an offence which is an alternative to count 4, namely malicious wounding. 13 So far as Sam Jones Snr is concerned, he admits that he was present at the scene of the fatal incident but his case is that he was not in any way involved in striking the deceased. His case, which essentially emerges from the evidence given by Michael Bennett of conversations which he had with Sam Jones Snr, is that his participation was limited to an altercation with Noah Smith Snr by whom he said he was assaulted. In respect of that incident he relies upon self-defence. The case advanced on behalf of Elizabeth Jones, which emerges from her record of interview, is that she was not present at the scene of the fatal incident and accordingly bears no responsibility for what occurred to either the deceased or to Noah Smith Snr. 14 The Crown submits that the evidence is admissible pursuant to s 87(1)(c) of the Evidence Act which is in the following terms: S 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: … (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. 15 In essence the Crown contends that the conversations in which Sam Jones Jnr participated "were in furtherance of the joint criminal enterprise that he was involved in" together with the four persons accused of murder and about four other unidentified males. 16 It is common ground that s 87 merely reproduces the common law relating to the admissibility against an accused person of the declarations of another person or persons with whom he was acting in a joint criminal enterprise: see R v Macraild (NSWCCA, unreported, 18 December 1997); R v Watt [2000] NSWCCA 37. In Tripodi v The Queen (1961) 104 CLR 1, the High Court said that: [w]here the case for the prosecution is that in the commission of the crime a number of men acted in pre-concert, reasonable evidence of the pre-concert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others. (at 7) 17 See also Ahern v the Queen (1988) 165 CLR 87. 18 The Crown points to a number of matters in seeking to establish that the representations made by Sam Jones Jnr during the phone calls were made "in furtherance of a common purpose" that he was engaged in with others. It submits that the evidence upon which it relies amounts to "reasonable evidence of pre-concert". The Crown submits that the inference is available that the initial argument prompted Adam Jones Snr to seek assistance from other family members. A chart of mobile phone calls made that evening by various members of the Jones family was tendered by the Crown without objection and is an exhibit in the trial (Exhibit AK). It shows that a phone call was made from the mobile phone owned by Adam Jones Snr at 11.29 pm to the mobile phone owned jointly by Sam Jones Snr and Elizabeth Jones. The call lasted 19 seconds. They were of course residing at Parklea Caravan Park at the time. At 11:32 pm the phone owned by Louisa Jones made two calls, lasting 2 seconds and 1 second respectively, to her husband, Sam Jones Jnr. They too were also living at Parklea Caravan Park at the time. It is not clear whether contact was actually made. Nor is there any evidence as to why it was necessary for them to be in contact by phone. 19 At 11:38 pm the phone owned by Sam Jones Snr and Elizabeth Jones contacted the phone owned by Lydia Jones. That call lasted three minutes and thirty seconds. At 11:48 pm the boom gates for Parklea Caravan Park reveal that the swipe card owned by Sam Jones Snr and Elizabeth Jones was used to exit the caravan park. From the phone records, it is possible to infer that Sam Jones Snr (at least) then travelled to the Tuggerah Village Caravan Park and that he arrived there at about 12.30 am. Sam Jones Snr does not dispute that he did so. The case put on behalf of Elizabeth Jones is that she never left Parklea. The Crown contends that she travelled to Tuggerah Village with her husband. 20 The phone records, the Crown contends also suggest, that Sam Jones Jnr arrived at the caravan park a short time later. It would seem reasonably clear that he travelled there independently of his parents (if indeed both of them were there). 21 The Crown also relies upon the evidence given by Ellen Smith that she observed Adam Jones Snr and Adam Jones Jnr assembling weapons in the area outside Adam Jones Snr's caravan. The evidence does not make it clear as to precisely when that occurred but it seems that it was after the initial argument but before the other persons arrived. The Crown also relies upon her evidence that she then saw Sam Jones Snr arrive and speak to Adam Jones Snr in the vicinity of his caravan. She observed that he was in the company of Sam Jones Jnr and another man whom she did not recognise. 22 The Crown also relies upon the conversations which Ellen Smith had with Lydia Jones and Sam Jones Snr. It should be noted however that Ellen Smith admitted that she had not seen Sam Jones Snr carrying a weapon either at the time he arrived, or at the time at which she had seen him leave the vicinity of Adam Jones Snr's caravan just prior to the fatal incident. 23 Finally, the Crown relies upon the evidence of the eyewitnesses to the fatal attack upon the deceased and the attack upon Noah Smith Snr. It was against that background that the Crown sought to tender the two phone calls made by Sam Jones Jnr. 24 As I have said, the Crown submits that Adam Jones Snr made the initial call in order to enlist the support of his parents. Its case is that he was aware at that time that the Smith family outnumbered his family and so that he realised that he needed reinforcements. As I understand the argument, it is submitted that he was aware that his parents being in their 60s could provide only limited assistance, and accordingly he wanted someone else to enlist additional support. 25 It may be observed that Sam Jones Jnr made more than 20 calls on his mobile phone between 11:36 pm and 1:12 am which is, as best as can be estimated, just before the fatal incident began. During that sequence of calls he contacted Michael Walker at 11.49 pm. The following conversation took place: SJ: I need…can you round up a couple of, a few of the boys for me, I need some help ASAP MW: Whereabouts mate? SJ: Kangy Angy. MW: What's up mate? SJ: I'm. I'm just about to get into a fucking, get it on with these cunts down here, you know. 26 He made a second call at 12.01 am to Michael Walker. During the course of that call he ended up speaking to another person whom I will refer to as FS. They had the following conversation: SJ: I'm just, I've got about half a dozen to…up to ten fellas right. I've gotta go up there and I've get them straightaway at Kangy Angy Caravan Park. So… FS: Okay mate. We're about an hour away. SJ: Oh yeah. I'm just on me way up there now. I'll be there with, within an hour you know. So if, if you can get there you know it'd be good. But its up to youse, you know what I mean. FS: Well have you got anyone else? SJ I'm just trying to ring everyone else, I don't know if I can get hold of em or not you know. 27 And then a little later during the same conversation Sam Jones Jnr again spoke to Michael Walker and said: SJ: Hello, Yeah I need your help Mick ASAP. U'm I've got a half dozen fellas. 28 It is common ground that those calls reveal Sam Jones Jnr endeavouring to get support from other persons to attend the caravan park for the purpose of engaging in what he anticipated was to be a fight. The question however is whether each of the four accused have lent their authority to those representations so as to render them admissible against each of them. 29 In determining that question, it is important to recall the precise nature of the common purpose or joint criminal enterprise which the Crown alleges. It is that each of the accused is a party to, and participated in, a joint criminal enterprise to attack the deceased with the intention of killing him or of inflicting grievous bodily harm upon him. 30 There can be little doubt that there is evidence, upon which the jury would be entitled to act, that such a joint criminal enterprise existed at the time of the attack upon the deceased. Indeed it may well have been formed prior to that point in time. The critical question however is whether that common purpose existed at the time when the two impugned phone calls were made. 31 To put the issue another way – for the representations to have been made by Sam Jones Jnr in furtherance of the common purpose then the common purpose must have existed at the time that they were made: see generally Landini v State of NSW [2007] NSWSC 259 per Hall J (at par 24). 32 In the circumstances I am unable to conclude that, at the time the calls were made, there is reasonable evidence of the common purpose which was identified by the Crown. That is not to say, I repeat, that the common purpose identified was not formed at a later point in time. Such an occasion may have arisen when all the parties arrived at Tuggerah Village. It may be that they then took the opportunity to discuss what was then to occur. 33 One of the difficulties in determining what, if any, agreement had been reached at the time the calls were made, is that there is no evidence of any direct communication between Adam Jones Snr, who was the person on the spot, and Sam Jones Jnr, who made the calls which are the subject of the objection. Any communication between them (if indeed there was any) must then necessarily have been indirect making the task of drawing any reasonable inference from it all the more difficult. That difficulty is compounded by the fact that Adam Jones Jnr and Elizabeth Jones are even further removed from any line of communication. It is also to be recalled that the Crown seeks to rely upon the conversations in respect of each and every one of the accused. That in turn gives rise to its own difficulties since the issues in the case differ as between the various accused. Whereas Adam Jones Snr and Adam Jones Jnr each concede that they were ultimately a party to the joint criminal enterprise identified by the Crown, the other accused strenuously deny that they were at any stage. 34 In short, I am not satisfied, on the balance of probabilities, that the pre-conditions of s 87(1)(c) have been met and it was for these reasons that I rejected the tender of the two phone calls. 35 Various arguments were addressed upon the question of whether or not the calls should be excluded pursuant to either or both ss 135 and 137. However given the conclusion which I have reached, it is unnecessary to decide those issues. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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