Citation: R v Jacobs (No 8) [2013] NSWSC 949
Court: Supreme Court of New South Wales
Date: 15 July 2013
Judge: Button J
Background
The accused stood trial for a serious criminal offence. Prosecutors relied, in part, on admissions the accused had made on 1 April 2012, captured by a covert listening device. Those admissions, if accepted as true and reliable, amounted to powerful evidence of guilt.
Defence counsel raised a significant complication: a treating psychiatrist, Dr Oak, gave expert evidence that the accused had been suffering from delirium during the relevant period, from 2 March 2012 through to 1 April 2012. The delirium had produced hallucinations, delusions, and false memories, including beliefs that the accused had rescued someone from shark-infested waters after being shot five times, that the deceased had been in hospital with him, and that he had shot himself.
The defence applied for a warning to the jury under section 165 of the Evidence Act 1995, asking the court to direct the jury that the admissions may be unreliable. The Crown opposed the application.
Legal Issues
- Whether the admissions captured on the listening device constituted evidence that "may be unreliable" for the purposes of section 165(1) of the Evidence Act 1995, specifically under paragraphs (a) and (c)
- Whether, even if the preconditions under section 165(1) were satisfied, there were "good reasons" under section 165(3) not to give the warning
- Whether courts possess special experience or expertise regarding the effect of delirium on the reliability of admissions, beyond what a jury could assess for itself
Decision
Issue 1: Whether the evidence "may be unreliable"
Button J accepted that the admissions fell within two sub-paragraphs of section 165(1) and that the evidence "may be unreliable." The combination of the expert psychiatric evidence and the observable content of the recorded statements, including statements reflecting demonstrably false beliefs, satisfied that threshold.
Issue 2: Whether good reasons existed not to give the warning
His Honour turned to section 165(3), which permits a court to decline to give a warning where there are good reasons to do so. Button J concluded that such good reasons existed in this case. The jury had access to the recording itself, a transcript as an aide-memoire, evidence from the person present during the conversation, relevant medical records, and the detailed expert opinion of Dr Oak, who was cross-examined thoroughly by both parties before the jury.
Issue 3: Whether courts have special experience regarding delirium and admissions
This was the central question in the reasoning. Button J acknowledged the argument that courts possess special experience with admissions that appear reliable but are not, drawing on two examples: historic judicial scepticism about alleged oral admissions, and experience with false confessions arising from mental disturbance. However, his Honour rejected both analogies as inapt.
The first example concerns whether words were actually said, not whether words that were said can be relied upon. The second concerns deliberate false confessions arising from long-standing mental conditions, which is materially different from the acute brain condition causing delusions at issue here. With respect specifically to delirium and its effects on the reliability of admissions, Button J found that courts hold no special knowledge, experience, or expertise beyond that of the jury. He noted that, in his own experience as judge and advocate, he had never previously encountered a case raising this precise issue.
Orders Made
- Section 165 application refused.
Key Takeaways
- Under section 165(3) of the Evidence Act 1995, a court may decline to give an unreliability warning even where the preconditions in section 165(1) are satisfied, provided good reasons exist for not doing so.
- Button J held that courts do not possess special knowledge or expertise regarding the effect of delirium on the reliability of admissions, which distinguishes this issue from some other categories of potentially unreliable evidence.
- The availability of comprehensive evidence before the jury, including expert psychiatric testimony subject to detailed cross-examination, was a significant factor in the finding that a warning was not required.
- A distinction was drawn between judicial experience with false confessions arising from chronic mental illness, which involves deliberate false statements, and delirium-induced unreliability, which involves an acute condition affecting perception and memory in a qualitatively different way.
- The decision confirms that the court's general experience with unreliable admissions does not automatically extend to every sub-category of mental or medical condition that might affect the reliability of a statement.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- 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