R v Jones & Ors (No2) [2007] NSWSC 770

Reported Decision : 173 A Crim R 309

New South Wales Supreme Court

CITATION : R v Jones & Ors (No2) [2007] NSWSC 770

JUDGMENT DATE : 30 March 2007

JUDGMENT OF : Buddin J

DECISION : Application refused.

CATCHWORDS : Objection to admissibility of lawfully intercepted telephone calls

LEGISLATION CITED : Evidence Act 1995 (NSW)

R v Em [2003] NSWCCA 374 CASES CITED : R v Frangulis [2006] NSWCCA 363 R v Mallah [2005] NSWSC 317 R v Swaffield; R v Pavic (1998) 192 CLR 159

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

FRIDAY 30 March 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 2) Admissibility of intercepted telephone calls between Ellen Smith and Adam Jones

Background 1 HIS HONOUR: Before the Crown opened, but after the jury was empanelled, I indicated that the present objection would be overruled. These are my reasons for so ruling. 2 Objection was raised on behalf of Adam Jones Jnr (hereafter referred to as the applicant) to the admissibility of two telephone conversations in which he participated with his wife, Ms Ellen Smith, on 20 October 2005. The conversations were recorded by a listening device which was attached to the telephone. That procedure was authorised by a warrant which had been issued the previous day by a judge of this Court. The phone calls were made from a police station to a mobile telephone number on which, police had been informed, contact could be made with the applicant. The applicant was of course unaware that the conversations with his wife were being recorded. It is accepted that the warrant was lawfully obtained. 3 In essence the applicant objects to the admissibility of the evidence on the basis that it was obtained in circumstances "that would make it unfair to the accused for it to be used" in the case against him. The applicant relies in particular upon s 90 of the Evidence Act 1995 (NSW) although some reliance was also placed upon ss 137 and 138 of the Act. 4 In order to place the present application in its context it will be necessary to sketch some details about the way in which the Crown puts its case. As this issue has arisen before the Crown has opened its case, I have drawn heavily upon a document entitled "Crown Case Statement", a copy of which was provided to me. 5 Samuel Jones Snr, his wife, Elizabeth Jones, their son, Adam Jones Snr, and their grandson Adam Jones Jnr are each charged with the murder of William Smith at Kangy Angy on 9 October 2005. They are also each charged with having on the same occasion wounded Noah Smith Snr with intent to murder him. In the alternative to that charge, they are each charged with maliciously wounding Noah Smith Snr with intent to do grievous bodily harm to him. Lydia Jones, who is the wife of Adam Jones Snr, is charged with being an accessory after the fact to each of those charges. Adam Jones Jnr is also charged with having assaulted Mary Rose Smith. 6 Upon arraignment the applicant, (Adam Jones Jnr), and his father (Adam Jones Snr), each pleaded not guilty to the murder of William Smith but guilty of manslaughter. They also each pleaded guilty to maliciously wounding Noah Smith Snr. Those pleas were not accepted by the Crown in full discharge of the indictment. The remaining accused each pleaded not guilty to the charges which are brought against them. 7 The fatal incident occurred at Tuggerah Village caravan park on the Central Coast at which various members of the families of the accused and of the victims were then residing. Members of both the Jones family and the Smith family are Romany gypsies. Adam Jones Jnr is married to Ellen Smith who, as I understand the situation, is one of the main Crown witnesses. The deceased and the other male victim are her uncles. 8 It is now necessary to say something further about the case which the Crown seeks to advance. On the evening of 8 October 2005, Adam Jones Snr and Adam Jones Jnr 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. The deceased and Adam Jones Snr agreed that matters should be resolved between the protagonists the following morning. At that point the respective families then parted company. 9 There is material, in the form of telephone records, from which the Crown seeks to have the jury infer that contact was made with Sam Jones Snr and his wife, Elizabeth, who then travelled together to the Central Coast from Parklea. Other persons, including Adam Jones Snr's brother, (Sam Jones Jnr) also came to the caravan park. The Crown case is that those calls were made for the purpose of obtaining reinforcements for a fight which it was anticipated would take place. Ellen Smith said that she observed both Adam Jones Jnr and Adam Jones Snr obtain various weapons, including a baseball bat. 10 At approximately 1.20 the following morning a group of between 8 to 10 people were observed to attack the deceased and Noah Smith. Those persons were armed with various weapons including hand axes, machetes, swords, knives and metal bars. The four members of the Jones family who are charged with murder have been identified by members of the Smith family as being part of the group which participated in the fatal attack. 11 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. It is alleged 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 injuries to his head and body, including the fatal blow which penetrated his lung. The pathologist, who conducted the post-mortem, is of 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 lacerations. 12 After the attack, Ellen Smith saw Adam Jones Snr running away from the scene. He was covered in blood and was carrying a machete. Adam Jones Jnr was carrying a Samurai sword which had blood on the blade. Police subsequently located those and other weapons at the caravan park. 13 It would appear that the two men then left the scene. Subsequently they met up with Sam Jones Snr and Elizabeth Jones and all four of them then travelled to Parklea. 14 Later that day Adam Jones Snr handed himself into police. He gave a version of events which suggested that he had been set upon by the deceased and members of his (the deceased's) 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 in the caravan park on the night in question. She was arrested on 15 October. Lydia Jones declined to speak to police. She was not arrested until December. Sam Jones Snr and Adam Jones Jnr fled to Queensland where they were arrested on 26 October. Adam Jones Jnr told police that he had gone to the assistance of his father who had been attacked by members of the Smith family. Sam Jones Snr told police in Queensland that he had attended the caravan park on the night in question but only to "pick up his grandchildren". Sam Jones Jnr has eluded police and remains at large. 15 In essence, the Crown case is that the four persons accused of murder 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 is alleged, as I have said, to have acted as an accessory after the fact to those offences. 16 For the purposes of determining the application, I was provided with a body of material by the Crown. Apart from material of an entirely formal kind, it consisted of 3 statements prepared by Ellen Smith, two of which were dated 20 October and the other dated 26 October, and two interviews conducted with the applicant on 26 October and 27 October respectively. The two conversations between the applicant and Ms Smith on 20 October, to which objection was taken, were played to the court. Ms Smith also gave oral evidence as did Detective Wheeler, a police officer involved in the investigation, who was present whilst the conversations between the applicant and Ms Smith were taking place. The applicant did not give evidence on the voir dire and nor did he call any other evidence.