R v Jones [2014] NSWSC 695

Supreme Court New South Wales

Medium Neutral Citation: R v Jones [2014] NSWSC 695 Hearing dates: 13 May 2014 Decision date: 13 May 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: Evidence allowed. Catchwords: CRIMINAL LAW - EVIDENCE - admissibility - proposed evidence received on voir dire by way of statement - whether evidence relevant - whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused Legislation Cited: Evidence Act 1995 (NSW), ss 55, 59, 65, 67, 137 Category: Interlocutory applications Parties: Regina Wayne Edward Jones Representation: Counsel: L Carr (Crown) C Watson (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Sydney Criminal Lawyers (Accused) File Number(s): 12/389477

EX TEMPORE Judgment 1HIS HONOUR: Objection has been taken to paragraph 26 of Crown voir dire exhibit A; namely, the statement of Leanne Margaret Cavers of 17 January 2013. Suffice it to say that that paragraph contains the proposed evidence of Ms Cavers, the sister of the deceased, with regard to a telephone call that she made between 10 and 12 December 2012. 2It is said by the witness that she heard a male "yelling and screaming", and then heard the deceased say "Go away, leave me alone." It is also said that the deceased sounded "scared and worried". 3Defence counsel has submitted that the evidence should be rejected, either on the basis that it does not pass the test of relevance contained in s 55 of the Evidence Act 1995 (NSW) ("the Act"); or, in the alternative, that it should be excluded pursuant to s 137 of the same Act. 4Although defence counsel originally notified that there could be an objection with regard to s 59 - the hearsay rule; s 65 - hearsay statements in criminal proceedings if maker not available; and s 67- notice to be given with regard to such evidence, on reflection that objection was not pressed by defence counsel, and accordingly I put it to one side. 5Mr Watson submitted that there are a number of aspects that would lead me to exclude the evidence on one or other basis. The first was a lack of clarity as to dates. The second was the proposition that the jury may wrongly, and unfairly prejudicially, jump to the conclusion that the male who was "yelling and screaming" was indeed the accused. The third was that the evidence is uncorroborated by phone records and the like. And the fourth was that in the circumstances he is simply unable to test the evidence, in the sense of exploring what was actually occurring at the other end of the telephone line. 6In other words, as I understand his submission, the proposition is that, whilst he may cross-examine Ms Cavers of course, he is not in a position to elucidate evidence as to what was actually occurring at the other end of that phone call. 7It seems to me in the circumstances of this case, in light of the evidence already admitted and the openings, that the evidence certainly passes the broad test of relevance contained in s 55 of the Act. 8As for the question as to whether or not the "probative value is outweighed by the danger of unfair prejudice to the accused", I accept that the evidence does not directly implicate the accused. Having said that, in the circumstances of the trial as I understand them thus far, I regard the evidence as not lacking in weight. 9As for the "danger of unfair prejudice", I do not regard that as particularly high. Whilst I accept that there is a possibility that the jury may jump to a conclusion (if I may use that expression), as I mentioned to defence counsel in argument, it will be perfectly open to him forcefully to explore, either by way of evidence or address, the proposition that there is no direct evidence whatsoever that the male heard on the other end of the telephone line was the accused. 10Furthermore, it seems to me that a lack of clarity as to dates is hardly a matter that gives rise to unfair prejudice. 11I hold the same view with regard to the fact that the evidence may be uncorroborated by phone records. 12Finally, the fact that the witness has said that the deceased "sounded scared and worried", has given me pause for thought. But again, I think that that is a matter that can be explored in cross-examination. And whether or not the witness, Ms Cavers, was really in a position to express that lay opinion in a way that carries probative weight can also be explored. I also think that there is force in the proposition of the Crown that the lay opinion evidence is being given not by an acquaintance of the deceased, but rather her sister. 13In the circumstances I am not satisfied that any aspect of paragraph 26 of the exhibit carries with it the proposition that its probative value is outweighed by the danger of unfair prejudice to the accused. Accordingly the evidence will be allowed.