R v Jacobs (No 6) [2013] NSWSC 947

Supreme Court New South Wales

Medium Neutral Citation: R v Jacobs (No 6) [2013] NSWSC 947 Hearing dates: 26 - 27 June 2013 Decision date: 27 June 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: The evidence in the form foreshadowed by the Crown Prosecutor is allowed. Catchwords: EVIDENCE LAW - evidence of unfired cartridges located at home of accused - unfired cartridges found whilst accused in hospital - unfired cartridges of same calibre as ammunition found at scene - majority of unfired cartridges of same make as ammunition found at scene - whether evidence relevant - whether probative value of evidence outweighed by danger of unfair prejudice - evidence to be admitted Legislation Cited: Evidence Act 1995 Cases Cited: R v Cook [2004] NSWCCA 52 Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 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

EX TEMPORE Judgment 1A voir dire was conducted yesterday and today. It was originally directed towards resolving three issues. 2The first was to permit defence counsel to understand the evidence that would be given by three Crown witnesses who had neither given statements about certain subject matter nor been interviewed about it. That goal has been achieved and need not be discussed further by me in this judgment. 3The second was to determine the admissibility of evidence that a quantity of ammunition was found at the home of the accused some weeks after the shooting, after which he was continuously in hospital gravely ill. It has been revealed today that the proposed evidence would also include evidence from Ms Strudwick to the effect that she found the box containing that ammunition in the garage of the premises after 2 March 2012 and about a week before 27 March 2012. It is also proposed that evidence would be led from Ms Strudwick and her son, Mr James Strudwick, that neither of them possessed, or indeed had any knowledge of, that box containing ammunition. The issue of the admissibility of that evidence remains for resolution by me in this judgment. 4The third original issue was whether, if that subject matter of the ammunition is admissible, the Crown could lead evidence of an intercepted conversation between Ms Strudwick, the romantic partner of the accused at the time, her associate Ms Monica Sampson, and Mr James Strudwick. Because of the refinement of issues during argument and the approach adopted on reflection by the Crown Prosecutor, that third issue does not require resolution by me. However, the evidence of that conversation was placed before me on the voir dire, and accordingly I have taken it into account in determining the second issue.