Citation: R v Jacobs (No 6) [2013] NSWSC 947
Court: Supreme Court of New South Wales
Date: 27 June 2013
Judge(s): Button J
Background
The accused stood trial for the murder of the deceased, who was shot on 2 March 2012. At the scene, police recovered a .38 calibre revolver containing unfired and fired cartridges, all of SPL manufacture. The accused was also shot at the scene and was hospitalised continuously thereafter.
During a second search of the accused's home on 27 March 2012, police found 27 unfired cartridges concealed in a sewer line. Twenty of those cartridges were .38 calibre SPL, matching the ammunition in the murder weapon. The remaining seven were of other common brands. DNA testing linked six cartridges to an unknown male, who was neither the accused nor the other person alleged to have been involved in the shooting.
The Crown sought to lead evidence of the ammunition's discovery. The contested question on the voir dire (a preliminary hearing to determine admissibility, conducted in the absence of the jury) was whether that evidence was admissible at trial.
Legal Issues
- Whether evidence of the unfired cartridges found at the accused's home was relevant under section 55 of the Evidence Act 1995 (NSW)
- If relevant, whether the evidence should nonetheless be excluded under section 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Issue 1: Relevance under section 55
Button J rejected the defence submission that the evidence was irrelevant. His Honour held that the discovery of a large number of cartridges of the same calibre and predominant manufacture as those in the murder weapon, at premises associated with the accused, could rationally affect the probability assessment of whether the accused possessed and fired the fatal firearm on 2 March 2012. The court distinguished the High Court decision in Driscoll v The Queen, where an unrelated "armoury" found at the accused's premises was held inadmissible. Here, the connection between the ammunition and the specific murder weapon was direct and specific.
Issue 2: Exclusion under section 137
Button J assessed the probative value of the evidence as very high. The ammunition matched the calibre and brand found in the murder weapon, and the connection to the accused's home was capable of substantially advancing the Crown case. His Honour accepted the defence's points that the accused was hospitalised when the ammunition was found and that another person directed its concealment, but considered those factors went to weight rather than admissibility.
On the question of prejudice, the court acknowledged the evidence might lead the jury to view the accused as moving in criminal circles with access to firearms. However, Button J found this prejudice was not great, because the evidence bore directly on the murder weapon itself rather than on collateral criminal conduct. Applying the evaluative balancing exercise required by section 137, his Honour was affirmatively satisfied that probative value outweighed the danger of unfair prejudice, so section 137 was not engaged.
The Crown Prosecutor confirmed he would not lead evidence of the intercepted telephone conversation or the manner in which the ammunition was concealed. The court noted that if defence counsel chose to adduce such contextual evidence, that choice would not, of itself, render the Crown's evidence unfairly prejudicial.
Orders Made
- The evidence of the ammunition, in the form foreshadowed by the Crown Prosecutor, is admitted.
Key Takeaways
- Under section 55 of the Evidence Act 1995, ammunition found at an accused's premises can be relevant where it matches the calibre and manufacture of ammunition in the alleged murder weapon, even without direct scientific evidence linking the accused to that ammunition.
- The High Court's decision in Driscoll v The Queen does not preclude admission of ammunition evidence in all cases; the critical distinction is whether the ammunition connects specifically to the weapon used in the alleged offence, rather than constituting a general unrelated armoury.
- A section 137 balancing exercise requires the court to assess probative value affirmatively against the danger of unfair prejudice; a high connection between the evidence and a central issue at trial can sustain admission even where some prejudicial effect is acknowledged.
- Factors such as the accused's absence from the premises when the items were found, and another person's role in concealing them, did not, in this case, reduce the probative value of the evidence to the point where exclusion was warranted.
- Where a Crown Prosecutor narrows the proposed evidence to exclude particularly prejudicial material, that refinement is relevant to the section 137 analysis.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- R v Cook [2004] NSWCCA 52
- Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517
- R v XY [2013] NSWCCA 121