Citation: R v Jacobs (No 2) [2013] NSWSC 943
Court: Supreme Court of New South Wales
Date: 12 June 2013
Judge(s): Button J
Background
The accused stood trial for the murder of a serving police officer, allegedly shot in Tamworth on 2 March 2012 shortly after the officer attempted to administer a random breath test. The central issue in the trial was identification: whether the accused was the person who fired the shot, or whether it may have been someone else.
The Crown proposed to lead pharmacological evidence that methamphetamine was present in the accused's blood shortly after the alleged offence. The Crown's expert, a pharmacologist named Mr Allender, had expressed the opinion that the methamphetamine level present at the time of the murder would have contributed to increased aggressive and/or risk-taking behaviour in the accused, though the accused would have been well aware of his actions. The Crown sought to use this evidence to address the apparent improbability that a person would murder a police officer merely to avoid consequences for a driving offence.
Defence counsel objected to the evidence being admitted before opening addresses to the jury. The trial judge resolved the objection at that early stage because the Crown Prosecutor intended to open on the evidence the following morning.
Legal Issues
- Whether the pharmacological evidence met the relevance threshold under s 55 of the Evidence Act 1995
- Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995, requiring its exclusion
Decision
Issue 1: Relevance under s 55
Button J noted that the test under s 55(1) is deliberately broad: evidence is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue." The standard requires only that evidence could rationally affect probability, not that it would, and encompasses indirect as well as direct effects.
The judge held that the effects of methamphetamine on the accused were relevant to the identification issue. Because the Crown alleged the accused committed an act that was, on its face, bizarre, aggressive and almost irrational, evidence capable of explaining why a person might behave that way could rationally affect the jury's assessment of whether the accused was the shooter. The objection on relevance grounds was rejected.
Issue 2: Exclusion under s 137
Button J assessed probative value as the capacity of the evidence to advance the Crown case in the circumstances of this particular trial, consistent with the approach confirmed in R v XY [2013] NSWCCA 121. He regarded the probative value as quite high, given that the Crown needed to address the inherent improbability of the alleged conduct.
Defence counsel raised two forms of potential unfair prejudice: first, that the jury would learn the accused had taken an illegal drug associated with serious criminality; second, that the jury might "switch off" and reason simply that a person on drugs must have committed the violent act, without critically weighing the expert's evidence. Button J accepted there was some danger of unfair prejudice but found it did not outweigh the probative value. He noted that cross-examination, the potential calling of a defence expert, and an appropriate judicial direction would adequately address both forms of prejudice. The application to exclude the evidence was dismissed.
Orders Made
- The application for the exclusion of the evidence of Mr Allender with regard to the effect of methamphetamine on the accused was rejected.
Key Takeaways
- Under s 55 of the Evidence Act 1995, the relevance threshold is deliberately low: evidence need only be capable of rationally affecting, directly or indirectly, the probability of a fact in issue. The Supreme Court confirmed this standard applies even to the unusual use of drug-effects evidence to establish identity rather than mental state.
- Evidence of an accused's state of intoxication at the time of an alleged offence can, in appropriate circumstances, be relevant not to voluntariness or intention but to the question of whether the accused was the person who committed the act at all.
- Under s 137, probative value is assessed by reference to the evidence's capacity to advance the Crown case on the facts in issue at the particular trial, not its strength in the abstract.
- A combination of cross-examination, the availability of defence expert evidence, and a carefully framed judicial direction may be sufficient to counteract the danger of unfair prejudice arising from evidence of prohibited drug use, such that exclusion is not warranted.
- The decision does not establish any broad principle that drug-effects evidence is routinely admissible on identity. The outcome turned on the specific and unusual factual context of the case, where the Crown had to explain conduct of apparent extreme irrationality.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- 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