R v Jacobs (No 8) [2013] NSWSC 949

Supreme Court New South Wales

Medium Neutral Citation: R v Jacobs (No 8) [2013] NSWSC 949 Hearing dates: 12 July 2013 Decision date: 15 July 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: Section 165 application refused. Catchwords: EVIDENCE LAW - application for a warning pursuant to s 165 of Evidence Act - admissions of the accused captured on covert listening device - whether evidence "may be unreliable" due to delirium - whether there are good reasons not to give warning - whether courts have special experience with admissions - no special experience with regard to delirium - application refused Legislation Cited: Evidence Act 1995 Cases Cited: GAR v R (No 3) [2010] NSWCCA 165 Oliveri v R [2011] NSWCCA 38 R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 R v Reardon [2002] NSWCCA 203 R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301 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 1Defence counsel has applied for a warning pursuant to s 165 of the Evidence Act 1995. The subject matter is the alleged admissions of the accused captured by the listening device on 1 April 2012. At my request defence counsel filed written submissions that delineate his position with precision. The application is founded upon s 165(1)(a) and (c). In short the expert evidence of Dr Oak, psychiatrist, is relied upon as showing that, certainly in the month between 2 March 2012 and 1 April 2012, and even on the latter date, the accused was suffering from delirium, which condition may have led him to say things that were divorced from reality, even if at first blush they appeared plausible. 2The Crown Prosecutor opposes the application. In written submissions he asserts that the preconditions for giving a warning have not been made out. That is said to be because the jury is perfectly capable of assessing all of the evidence on the topic, and there is nothing to suggest that the jury will be misled in its evaluation. Finally, he submits that the Court has no special appreciation of the likelihood of unreliability that would not be known to the jury. He referred to the decision of the Court of Criminal Appeal in R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301.