R v Tony Ross MCLEOD [2010] NSWDC 146

New South Wales District Court

CITATION: R v Tony Ross MCLEOD [2010] NSWDC 146

JUDGMENT DATE: 3 March 2010

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: I refuse to admit the evidence.

CATCHWORDS: CRIMINAL LAW - evidence - admissibility of statements - statements concern behaviour and state of intoxication of accused within 15 minutes of crime - evidence already admitted relating to accused's state of intoxication - objections pursuant to s 135 and s 137 of the Evidence Act 1995 - danger of unfair prejudice to accused if admitted - alternative course would involve "undue waste of time"

LEGISLATION CITED: Evidence Act 1995 s 135, s 137

PARTIES: Regina Tony Ross McLeod

FILE NUMBER(S): 2008/6288

COUNSEL: Mr C Patrick Mr I Todd

SOLICITORS: Office of the Director of Public Prosecutions NSW

JUDGMENT

1. Mr Patrick, the Crown Prosecutor in these proceedings against Mr Tony McLeod on a charge of assault occasioning grievous bodily harm in company, tenders two police statements. I have marked them VDA and VDB. Each statement concerns the behaviour and state of intoxication of the accused within 15 minutes, or so, before the assault which the prosecution alleges was perpetrated by Mr Tony McLeod with others.

2. There is evidence already in the proceedings from which the jury would be able to infer that Mr McLeod was intoxicated at the relevant time.

3. Mr I Todd who appears for Mr Tony McLeod objects to the evidence on two grounds. The first is under s 137 of the Evidence Act 1995 where he asks me to refuse to admit the evidence because its probative value is outweighed by the danger and unfair prejudice to his client. A second basis is a general refusal to admit evidence which is provided for by s 135 of the Evidence Act.