R v Jones & Ors (No2) [2007] NSWSC 770

R v Jones & Ors (No2) [2007] NSWSC 770

The application to exclude the intercepted telephone conversations was refused because the court found no unfairness to the accused in their admission. The accused had voluntarily participated, was not overborne, had sent a message he wanted to speak, and similar accounts had been given previously. Ellen Smith, though arguably acting as a police agent, acted with autonomy and was not following police-supplied scripts. The evidence did not sustain that the fairness of the trial would be compromised or that the probative value was outweighed by prejudice; thus, exclusion was not warranted under ss 90, 137, or 138 of the Evidence Act 1995 (NSW).

Jurisdiction
Australia
Judgment Date
30 March 2007
Procedural Posture
Criminal / Interlocutory Application (admissibility of Evidence Before Trial Opening)
Outcome
Application refused
Legal Topics
['admissibility of Intercepted Communications' 'unfairness Discretion (s 90 Evidence Act 1995 (nsw))' 'public Policy Discretion (s 138 Evidence Act 1995 (nsw))' 'probative/prejudicial Balancing (s 137 Evidence Act 1995 (nsw))']
['criminal Law' 'evidence'] ['admissibility of Intercepted Communications' 'unfairness Discretion (s 90 Evidence Act 1995 (nsw))' 'public Policy Discretion (s 138 Evidence Act 1995 (nsw))' 'probative/prejudicial Balancing (s 137 Evidence Act 1995 (nsw))']

Case Brief

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Procedural Posture

Criminal / Interlocutory Application (admissibility of Evidence Before Trial Opening)

Legal Issues

  1. 1 ['Whether the recorded telephone conversations between Adam Jones and Ellen Smith should be excluded as evidence under sections 90, 137, or 138 of the Evidence Act 1995 (NSW) due to unfairness or public policy.']

Ratio Decidendi

The application to exclude the intercepted telephone conversations was refused because the court found no unfairness to the accused in their admission. The accused had voluntarily participated, was not overborne, had sent a message he wanted to speak, and similar accounts had been given previously. Ellen Smith, though arguably acting as a police agent, acted with autonomy and was not following police-supplied scripts. The evidence did not sustain that the fairness of the trial would be compromised or that the probative value was outweighed by prejudice; thus, exclusion was not warranted under ss 90, 137, or 138 of the Evidence Act 1995 (NSW).

Court Disposition

Application refused

Orders

  • ['The application to exclude the intercepted telephone conversations from evidence is refused.' 'Agreed redactions to the second conversation and directions to the jury regarding use of the material to be given at a suitable time.']