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. Background 5I turn to the background of issue two. The central issue in this trial is whether the accused or a Mr Price murdered the deceased by shooting him. Defence counsel has declined to be more specific with regard to the precise position that he or the evidence may put forward for the jury's consideration. Accordingly, I proceed to resolve the question of admissibility on the simple basis that the issue in the trial is who was the shooter or rather, to put it more accurately, whether the Crown can prove beyond reasonable doubt that the accused was the shooter. 6Found at the scene of the shooting on 2 March, 2012 was a .38 calibre revolver with five chambers in its cylinder. Four chambers were loaded, two with unfired cartridges and two with fired cartridge cases. Beneath the hammer of the firearm was a fired cartridge case. All the cartridges were of .38 calibre and all were of SPL manufacture. It was a projectile fired from that firearm that caused the death of the deceased. 7A thorough search of the home of the accused was conducted on 2 and 3 March 2012. A holster was found on that occasion that is also the subject of objection. At the request of the parties I will, if necessary, deal with that objection separately from this judgment. 8The accused was himself shot at the scene and almost died. He was hospitalised for some time. The evidence is that, prior to 27 March 2012, he had no conversation with Ms Strudwick. 9The evidence given by Ms Strudwick today is that at some time between 2 March 2012 and 27 March 2012, and about one week before the latter date, she found a box hidden in the corner of the garage, and formed the opinion that it could contain ammunition. About a week later, that is on 27 March 2012, Ms Strudwick became aware that a search warrant was to be executed at the home. She requested Ms Sampson, who was with her, to telephone James Strudwick. Ms Sampson did so, and to state the contents of voir dire exhibit Q succinctly, Ms Strudwick used Ms Sampson as a conduit to order Mr Strudwick to hide the box of ammunition in a toilet, having removed it from a handbag. 10On the same day, the police executed the second search warrant at the premises, and as part of that process excavated part of the yard of the premises. There they found in a sewer line, in a box, a quantity of 27 unfired cartridges. They were all of .38 calibre. Twenty of the 27 were of SPL manufacture; that is, of the same calibre and brand of ammunition as was found to be contained in the fatal weapon. The other seven cartridges were of Federal and Winchester manufacture. All are common brands of ammunition. 11Later, all of those unfired cartridges were examined for the presence of DNA. Twenty-one of the 27 returned no profile. Six returned the profile of a single unknown male. It is noteworthy that that man was neither the accused nor Mr Price. Submissions - s 55 Evidence Act 1995 12The Crown Prosecutor at first sought to tender the evidence of the telephone call seeking to have the ammunition hidden in the toilet, and to have it led against the accused in this trial. On reflection, he made it clear that he would be content if the evidence with regard to the ammunition were simply as follows: (1)Ms Strudwick found the box of ammunition in the garage of the premises about a week before 27 March 2012. (2)On 27 March 2012 the police found the box of ammunition (with the characteristics that I have described a moment ago) at the general location of the premises. (3)As a result of a telephone intercept of a conversation of other persons, not the accused, the search of 27 March 2012 was conducted. (4)The box of ammunition, prior to its finding by Ms Strudwick, was neither in the possession of, nor present to the knowledge of, Ms Strudwick or Mr Strudwick. 13To be clear then, the Crown Prosecutor informed me he would not seek to put into evidence the evidence of the intercepted conversation, nor that the ammunition had been found secreted in a sewer. 14Defence counsel submitted that the evidence is irrelevant and, therefore, does not pass the test of admissibility contained in s 55 of the Evidence Act 1995. His ancillary position was that if it is relevant it should be excluded pursuant to the well-known evaluative judgment contained in s 137 of the Evidence Act. 15With regard to the first question, namely relevance, he submitted the evidence is simply too general. In truth, he submitted, there is no evidence to link the accused to that ammunition. He referred to the decision in Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, in which the High Court of Australia held that the finding of an "armoury", including ammunition, in premises associated with the appellant, who was facing a charge of murder alleged to have been committed with a separate firearm, was simply inadmissible. Determination - s 55 Evidence Act 16I respectfully reject the submission of defence counsel that the evidence is irrelevant. There is no need for me to recite the test contained in s 55 of the Evidence Act. It is enough to say that I consider that the evidence of the finding of a number of cartridges of the same calibre and manufacture as those found in the murder weapon at premises associated with the accused some weeks after the shooting, that is a week before 27 March 2012, and on 27 March 2012, certainly could rationally affect the assessment of the probability that the accused possessed the firearm on 2 March 2012 and fired it, thereby murdering the deceased. Submissions - s 137 Evidence Act 17Turning to his ancillary position with regard to s 137, senior counsel submitted that the probative value of the evidence is not high. He invited attention to the evidence and the agreed facts on the voir dire to the effect that: the ammunition was found on each occasion quite some time after the accused was no longer living at the home because he was hospitalised; and that no scientific evidence linked the accused to the unfired cartridges and, indeed, there was some scientific evidence linking an unknown male person to those cartridges. He invited attention to the fact that the manufacturer, and no doubt the calibre, of the ammunition is common. He emphasised that a number of persons had access to the home, not excluding the garage. Finally, he submitted that on 27 March 2012, it was Ms Strudwick who knew where the ammunition was, namely, in the handbag in which she had placed it, and it was she who was directing her own son, through her associate, to hide it, and that there is no evidence to implicate the accused in those actions on 27 March 2012. 18Furthermore, he submitted that the danger of unfair prejudice is high. If the jury were to hear this generalised evidence, he submitted, they would come to regard the accused as not only part of the drug-taking milieu of Tamworth and a person who repeatedly flouts the law by committing driving offences, but also as a person who moves in circles where firearms and ammunition are available. He also submitted that the fact that, if the evidence were admitted, the accused could be placed in what he described as a conundrum as to whether or not to place the evidence underlying the telephone intercept before the jury, was itself a prejudicial result of the admission of the evidence. 19In short, Mr Hoyle submitted that the test in s 137 is made out and, therefore, that section requires me to refuse to admit the evidence. Determination - s 137 Evidence Act 20There is force in the submissions of defence counsel. It is true that there is no direct link between the accused and the ammunition found in the garage a week before 27 March 2012, and at the home on 27 March 2012. But the absence of scientific evidence is not determinative of the probative value of the evidence. The fact is that the ammunition was found in the home that was occupied by the accused at the time of the shooting; that all of the ammunition is the same calibre as the revolver itself; and that the substantial majority of the ammunition is of the same manufacturer as the cartridges found in the revolver at the scene of the shooting. 21It seems to me that the decision in Driscoll v The Queen can be distinguished on the facts. Indeed, the evidence that was the subject of complaint in Driscoll v The Queen would in all likelihood nowadays be excluded as bad character evidence pursuant to s 110 of the Evidence Act, or not pass the tendency test contained in s 101 of the same Act. To my mind, the evidence here constitutes a much more specific link to the count in the indictment than the evidence of the other items tendered in Driscoll v The Queen. Of course, with regard to the evaluation in s 137, every case will turn on its own facts. 22Secondly, it is true that it was Ms Strudwick who sought to have the ammunition hidden, not the accused. There is no evidence that he was even aware of the effort she was making on 27 March. But, in light of the Crown Prosecutor's concession, there is no need for me to analyse that evidence of the telephone intercept in any detail, including with regard to technical and difficult questions arising under s 59 of the Evidence Act and the definition of a "representation" in the dictionary of that Act. The real link that is alleged between the accused and the ammunition is the evidence of Ms Strudwick revealed today: that on about 20 March 2012 she located the box containing the ammunition in the garage of the premises in which the accused was living, and to which he had access. 23Furthermore, it is not the case that, for example, there is evidence that the ammunition was obtained after the shooting by someone such as Ms Strudwick or her brother Mr Paul Kelly, who visited the home on occasion. In that sense, the .38 calibre SPL ammunition cannot be geographically or temporally severed from the accused or the murder weapon. The evidence is that the box was found in the garage no great time after the shooting. As well as that, the state of the evidence is simply that subsequently on 27 March 2012, the ammunition was in a handbag hanging on the door handle of the bedroom that up until 2 March 2012 was shared by the accused and Ms Strudwick, and was on that day moved to the toilet of the home. As I have said, the evidence revealed today is that it was Ms Strudwick who located the ammunition in the garage of the premises and moved it to the second location of the handbag. 24It is also true that the ammunition was not located during the extensive search of 2 and 3 March 2012. But on the evidence I consider that the ammunition is connected to the garage, to the home, and to Ms Strudwick, and thereby to the accused and to the revolver found along with him at the scene of the shooting. 25In short, I assess the probative value of the evidence of the finding of a large amount of ammunition at the home of the accused of the same calibre and manufacture as that found in the murder weapon as very high. I say that even accepting the evidence on the voir dire that the ammunition was not found during the initial search on 2 and 3 March 2012; that the accused was in hospital as at 20 March 2012 and 27 March 2012; and, finally, that on the latter date it was moved to the location in which it was found by someone else on the orders of someone else. In short, I consider the capacity of the evidence to advance the Crown case is substantial: see R v XY [2013] NSWCCA 121 at [66]. 26It is true that the evidence has some prejudicial effect. It may lead the jury to consider that the accused is part not merely of the drug scene of Tamworth but also of a general group of criminals who have access and perhaps resort to firearms. But the prejudice to my mind is not great, in the sense that the evidence relates to proof of a connection between the home of the accused and the murder weapon itself. It is not like a situation where, for example, what is tendered is a separate firearm, whether or not similar to the murder weapon, or an armoury, as in Driscoll v The Queen. 27Making an evaluative judgment with regard to the probative value of the evidence and the danger of unfair prejudice arising from its admission, I am affirmatively satisfied that the probative value is not outweighed by the danger of unfair prejudice. Indeed, I am satisfied that the former outweighs the latter. It follows that s 137 is not engaged. 28As I have said, the Crown Prosecutor indicated that the details of the telephone intercept will not be led by him before the jury. Whether defence counsel wishes to adduce evidence about the circumstances of the movement and concealment of the ammunition is, of course, a matter for him. The fact that defence counsel may feel it appropriate to adduce evidence of that kind does not, to my mind, give rise to the kinds of issues discussed by Simpson J in the decision of R v Cook [2004] NSWCCA 52. Merely because defence counsel may consider that evidence can or should be explained or neutralised by the adduction of other evidence does not mean that the original evidence has a prejudicial effect. 29In short, the evidence in the form foreshadowed by the Crown Prosecutor is allowed. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2013