R v Belford (No 2)[2009] QSC 428

SUPREME COURT OF QUEENSLAND

[1] An issue has arisen concerning the proposed cross-examination of a Crown witness with a view to establishing that a test of a blood sample taken from Mr Bound at 1.00 pm on 7 January 2008 was positive for cannabis.  Mr MacKenzie of counsel for Mr Bound objects to this course on the ground that the evidence is of no probative value and has the potential to prejudice the fair trial of his client, and prejudice the fair trial because of the late emergence of this evidence.  The issues that arise for consideration are:

1.Is the evidence that is sought to be led from the Crown witness admissible at the instance of Mr Belford?

2.If so, does the Court have a discretion to exclude the evidence?

3.If so, should the evidence be excluded?

4.If not, what should be done to avoid the alleged prejudice, and, in particular, should a separate trial be ordered or other directions be made?

Is the evidence admissible at the instance of Mr Belford?

[2] The evidence is reflected in a certificate that recorded the result of the analysis to be as follows:

“∆9 tetrahydrocannabinol (THC)-      0.003 mg/kg

11-nor ∆9 tetrahydrocannabinol-9-carboxylic acid*-   0.042 mg/kg”

Mr Green of counsel proposed to cross-examine Dr Mahoney about this test result.  From his conferences with Dr Mahoney, a Crown witness and a Forensic Medical Officer, it is acknowledged that Dr Mahoney could not give any evidence about when the cannabis was consumed.  In particular, the test result gave no indication as to how recent the use may have been.  It did not prove use on the night of 6 January 2008, let alone use at any particular time on that evening.  Despite these limitations on the evidence, it was submitted to be corroborative of Mr Belford’s evidence that Mr Bound consumed cannabis with Mr Belford on the night in question, and therefore to be independent evidence of Mr Bound’s presence at the Rising Sun Hotel at about the time of the assault.

[3] At its highest, the evidence is consistent with cannabis use by Mr Belford and Mr Bound in company that night.  It is equally consistent with consumption by Mr Bound of cannabis some time earlier.  Still, it provides some support to Mr Belford’s account of Mr Bound’s presence and of their smoking cannabis after the assault.

[4] I note in passing that the prosecution did not call this evidence and did not do so because of what the learned Crown prosecutor described as its “marginal relevance” to the Crown case.  That, however, is not the issue.  The issue is its probative value to Mr Belford. 

[5] Mr MacKenzie of Counsel on behalf of Mr Bound submits that there is no dispute that Mr Belford and Mr Bound smoked cannabis proximate to the time of the assault.  He further observes that there is no dispute that Mr Bound was present in the room at a time proximate to the assault.  I note in this regard that there is substantial evidence that places Mr Bound at the Rising Sun Hotel on the night in question at a time proximate to the assault. 

[6] The evidence does not come close to proving when any cannabis was consumed.  For example, it does not support the conclusion that it was smoked between 8.00 pm and midnight.

[7] In the circumstances, the probative value to Mr Belford’s case of this evidence can fairly be described as minimal.

Does the Court have a discretion to exclude the evidence?

[8] Counsel for Mr Belford accepted that the Court has a discretion to exclude such evidence.  In a pre-trial ruling given on 2 November 2009 I stated:[1]

“[54]If evidence is admissible at the instance of an accused in a case such as this in relation to the character of a co-accused, for instance because it is relevant to the nature of their relationship, or is probative of the co-accused’s credit or otherwise rationally affects the probable existence of a fact in issue, the discretion to exclude it due to its prejudicial effect on the co-accused is constrained by the need to accord the accused a fair trial.  In R v Roughan v Jones it was accepted that certain prejudicial evidence might have been excised without compromising proof of the relationship between the two accused.  However, where admissible evidence cannot be excluded without compromising the fair trial of a co-accused who wishes to rely upon it in his or her defence, it may be necessary to order separate trials.” (citations omitted) 

I noted by reference to Cross on Evidence[2] that there are some authorities to the effect that there is no such discretion.  However, dicta in R v Roughan & Jones[3] accepted that evidence can be excluded.  Those observations were made in the context of evidence admitted as part of the Crown case.  However, there is no suggestion that the discretion to exclude that was recognised by the Court of Appeal was not constrained by the effect of exclusion on the case of a co-accused.  There is substantial Australian authority that recognises such a discretion.  In R v Darrington and McGauley[4] the Full Court of the Supreme Court of Victoria recognised such a discretion to exclude admissible evidence tendered by one of two or more accused jointly charged with an indictable offence and tried together.  The freedom of a co-accused to meet the charge against him by “all legitimate and relevant means” was said to be subject to discretionary control by the trial judge.[5]  Jenkinson J, with whom Young CJ agreed, stated that the probative value, rationally considered, may be assessed by the trial judge[6]

“as slight enough to justify, in my opinion, subordination of the interest of the accused who seeks to utilize that particular means of defence to those other interests which the system of trial of criminal issues by jury is designed to serve.” 

The existence of the discretion to exclude was further recognised in R v Carranceja.[7]  It was more recently confirmed by the Court of Appeal of the Supreme Court of Victoria in R v Su,[8] which recognised a discretion to exclude material “which may have a limited relevance to the case of the accused who wishes to lead it, if the corresponding prejudice to the trial and to the interests of other accused wholly outweighs its probative value”.  That said, an exceptional case would be required before a trial judge could exclude “relevant and probative and admissible evidence bearing upon the guilt or innocence of an accused person who wanted to lead such evidence on the basis that such evidence would or might prejudice the interests of the other accused”.[9]

[9] I acknowledge that there is authority in the Privy Council and the House of Lords to the effect that the discretionary power to exclude relevant evidence which is tendered by the prosecution, if its prejudicial effect outweighs its probative value, does not apply to the position as between co-accused.[10]  The New Zealand authority of R v Hartley[11] is an example of the proposition that relevant evidence in a statement should not be edited out for the sake of a co-accused and, in effect, that if statements made were relevant to the defence of the maker, they could not be excised. 

[10] In the light of the Australian authority, and the acknowledgment that a discretion to exclude exists, I conclude that a discretion to exclude evidence of the present kind exists.  However, the exercise of that discretion is governed by the necessity to accord a co-accused a fair trial.  Admissible and probative evidence that an accused person wishes to lead should be admitted, save in exceptional circumstances.  Those circumstances include circumstances in which the probative value of the evidence is so slight, or where the material has a limited relevance to the case of the accused person who wishes to lead it, and leading it would prejudice the trial and the interests of the co-accused to such an extent that the prejudice outweighs the slight probative value of the evidence. 

Should the evidence be excluded?

[11] The probative value of the evidence is slight.  Its introduction is likely to prejudice the trial.  Unfortunately, the certificates were not provided to the accused until Monday and this did not provide any opportunity for Mr Bound’s counsel or those who instruct him to explore the issue.  Mr MacKenzie of Counsel says, and I accept, that the introduction of this evidence may necessitate the recalling of witnesses and open up issues in relation to the testing of the sample and the significance of the results.  It will also have the potentially prejudicial effect of focusing the jury’s attention on Mr Bound’s alleged drug use.  Mr Bound is prejudiced by the late disclosure of this evidence.  That late disclosure is through no fault of Mr Belford or his advisers.  However, this does not alter the prejudice to Mr Bound or the prejudice to the fair conduct of the trial that will arise by the need for detailed consideration and potentially protracted testimony relevant to the drug testing and its significance. 

[12] I conclude that the evidence that is sought to be led in the form of the certificate has a limited relevance to the case of Mr Belford and “the corresponding prejudice to the trial and to the interests of the other accused wholly outweighs its probative value.”[12]  The probative value of the evidence is slight enough to justify its exclusion in order to not prejudice the trial and the fair trial of Mr Bound.  I do not consider that the exclusion of the evidence will jeopardise the fair trial of Mr Belford.  The evidence is of marginal relevance and of no real probative value.  The prejudice to Mr Bound of having to deal with this evidence at this late stage is significant.  The probative value of the evidence in placing Mr Bound at the hotel at about the time of the assault is so slight as to justify its exclusion because of the prejudice to the trial and to the fair trial of Mr Bound.

[13] For these reasons, I ruled late yesterday afternoon that Mr Belford would not be permitted to cross-examine Dr Mahoney in relation to the contents of the certificate.  It was convenient to then allow Dr Mahoney to give and complete his evidence.  These are my reasons for that ruling.