R v Jacobs (No 2) [2013] NSWSC 943

Supreme Court New South Wales

Medium Neutral Citation: R v Jacobs (No 2) [2013] NSWSC 943 Hearing dates: 11 -12 June 2013 Decision date: 12 June 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: The application for the exclusion of the evidence of Mr Allender with regard to the effect of methamphetamine on the accused is rejected. Catchwords: EVIDENCE LAW - evidence of presence of illicit substance in accused's body - opinion about effect of drug on accused - relevant to whether accused was person who committed the offence - whether danger of unfair prejudice outweighs probative value - evidence to be admitted Legislation Cited: Evidence Act 1995 Cases Cited: Dupas v R [2012] VSCA 328; (2012) 218 A Crim R 507 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 R v XY [2013] NSWCCA 121 Category: Procedural and other rulings Parties: Regina Michael Allan Jacobs Representation: Counsel: P Barrett (Crown) T Hoyle SC (defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Zahr Lawyers (defendant) File Number(s): 2012/89001

Judgment 1Objection has been taken by defence counsel to the receipt of evidence from a pharmacologist as to the finding of methamphetamine in a blood sample taken from the accused shortly after the alleged offence. The expert, Mr Allender, whose statement of 23 November 2012 became voir dire exhibit M, has expressed the following opinion at page 9 of that statement: "Therefore, based on my specialised knowledge, and relying on the information supplied, I am of the opinion that at the time of the murder, the methamphetamine level present in the Accused, Michael JACOBS blood would have contributed to increased aggressive and/or risk-taking behaviour. However, he would have been well aware of his actions". 2The objection requires resolution at this very early stage of the trial because the learned Crown Prosecutor will open tomorrow immediately after the jury is empanelled and he wishes to open that evidence to the jury. 3The objection was originally founded on three bases, now two. 4First, it is submitted that the evidence does not pass the test of relevance contained in s 55 of the Evidence Act 1995, to which I shall subsequently refer in this judgment as "the Act". 5A further objection founded on s 138 of the Act was not pressed on reflection. 6Secondly, pursuant to s 137 of the Act, it was submitted by defence counsel that I would exercise my evaluative judgment to determine that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.