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. 4. Mr Patrick argues that the evidence contained in the two statements point to the state of mind of the accused and to his state of intoxication shortly before the alleged assault, or rather shortly before the assault in which it is alleged the accused participated. 5. Mr Todd argues that the evidence concerning the level of intoxication is evidence from which the jury may be able to infer or would be asked to infer that his client was in a disinhibited state and more likely to behave violently. He points out that there is evidence available to him and to the Crown to the effect that his client at the hotel - to which the police were called who gave statements which are tendered by Mr Patrick - behaved in a way where he was trying to subdue a potentially violent situation. 6. Mr Todd points out that he would need to consider asking the Crown to lead such evidence or to lead such evidence himself. Such evidence may be, he said, controversial. He also points out that a further prejudice is an inference which the jury may draw that the reason for the police being called to the hotel was connected with the behaviour of his client and his companions. That inference, I am informed, would be substantially correct. Nevertheless Mr Patrick would attempt to lead the evidence in a way which would not include a reference to that connection. Mr Todd also points out that the statements contain evidence about his client and companions behaving in a boisterous manner. 7. I propose to refuse to admit the evidence in its entirety. The first reason is that there is in my opinion a danger of unfair prejudice to Mr Tony McLeod in this evidence being led. I think it would be difficult to avoid the jury inferring that there may be some connection between the police attending the hotel and the behaviour of Mr Tony McLeod and his companions. The second reason is that they may well infer or draw a similar inference from the observations made by the police. 8. One answer to that unfair prejudice is, as Mr Todd suggested, the leading of evidence concerning his client's behaviour at the hotel. That to my mind would result in what s 135 calls "an undue waste of time". 9. I do not say that by way of criticism of either party. I say it in this context. The issues in this case, because of the competence of both counsel, have been clear and readily identifiable. It focuses on the behaviour of the accused at a particular point of time. The jury have a good deal of evidence, including CCTV footage and witnesses about his behaviour at that time. The trial, in my opinion, is one which should focus on the evidence at that particular stage. To my mind venturing into collateral evidence about his behaviour a short time beforehand, which is itself controversial - namely whether he was behaving in a boisterous and drunken way so as to attract the police or whether he was behaving as a peacemaker - would given, the issues in this trial, result in an undue waste of time. 10. For those reasons and relying on both s 137 and 135 of the Evidence Act, I refuse to admit the evidence which would be given consistent with VDA and VDB. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.