R v Shane Gregory BLACKWELL (No 2) [2011] NSWDC 188

District Court New South Wales

Medium Neutral Citation: R v Shane Gregory BLACKWELL (No 2) [2011] NSWDC 188 Decision date: 02 November 2011 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Objection overruled Catchwords: CRIME - judge alone trial - maliciously inflict grievous bodily harm with intent to do grievous bodily harm - incident occurred at hotel - objection by defence to evidence of publican - question asked of accused and his response - probative value of evidence is high - no danger of unfair prejudice to the accused - not unfair to use accused's answer as an admission Legislation Cited: Evidence Act 1995 s 90, s 137 Category: Procedural and other rulings Parties: Regina Shane Gregory Blackwell Representation: Mr L Lungo for the Director of Public Prosecutions Mr P Dunn QC for Mr Blackwell Ms L Gerber for the Director of Public Prosecutions Mr R Hudson (OBH Law) for Mr Blackwell File Number(s): 2008/10926

Judgment 1. In this case Shane Gregory Blackwell is being prosecuted for the crime of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. The events occurred on 13 October 2007 in a public bar in Sydney. The prosecution case is that Mr Blackwell punched the victim Daniel Ward in the face with a glass which caused Daniel Ward grievous bodily harm. 2. Mr P Dunn QC, who appears for Mr Blackwell, has indicated that his client is prepared to plead guilty to an alternative and less serious offence and that the primary issue in this prosecution concerns the intent involved at the time. 3. Mr L Lungo who appears as Crown Prosecutor is calling a witness, Malcolm McGuinness, the publican of the hotel. If he gives evidence in accordance with a statement which was tendered on this application, it is anticipated that Mr McGuinness will say that he asked Mr Blackwell after the event " Why would you do such a cowardly thing?" Mr Guinness, it is anticipated, would give evidence that Mr Blackwell replied to him "I just wanted to. " 4. Mr Dunn QC objects to that evidence being led. His objection is on two bases. Both involve the Evidence Act 1995. 5. The first is an objection under s 137 of the Evidence Act . That provision requires me to refuse to admit evidence " adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice " to an accused person. 6. In my opinion, the probative value of this evidence is high, given the issue which I have indicated. The meaning of unfair prejudice in s 137 has been described by the higher courts as meaning damage to an accused's case in some unacceptable way. Clearly the evidence is prejudicial to Mr Blackwell but it must be prejudicial in a sense that it may be used unfairly or wrongly against him. 7. To my mind there is no danger of unfair prejudice to Mr Blackwell in the admission of this evidence. The evidence can be weighed up by me as the judge trying the case and I can take into account submissions by both counsel as to the weight which I should give it. Section 137 is often used in the context of a jury trial where a jury may misunderstand the significance of evidence and misuse it. 8. Mr Dunn QC's alternative basis for excluding the evidence was s 90 of the Evidence Act . That section provides me with a discretion to " refuse to admit evidence of an admission " if it is tendered by the prosecution and " having regard to the circumstances in which it was made, it would be unfair " to an accused person to use the evidence. 9. Here Mr Dunn QC refers to equivocal nature of the question. It would appear to be a rhetorical question which did not necessarily require an answer - or even an accusation. In addition Mr Dunn QC points to his client's intoxication at the time. There has been a good deal of evidence produced so far in this trial to the effect that his client was significantly affected by alcohol. Indeed it is anticipated that evidence will be forthcoming that when Mr Blackwell was arrested and taken to the police station, the police there regarded him as not fit for interview for some hours because of his intoxication. 10. Mr Dunn QC pointed to evidence from other witnesses which suggested that his client was not at all sober nor communicative so far as speaking was concerned. He points to his client's perception of what he was being asked and what he argues would be the unfairness to his client for the evidence to be used. 11. Mr Lungo argues that the fact that the interview with the police was delayed by some time does not reflect upon Mr Blackwell's ability to understand the question. Mr Lungo points out that the answer which it is said Mr Blackwell gave was responsive to the question even though, as I said, the question may have been more along the lines of an accusation or a rhetorical question. 12. In my opinion this is not a case where I would refuse to admit the evidence of the admission. The circumstances of the admission being made did involve evidence about Mr Blackwell being intoxicated to a significant degree. Nevertheless, he was in a situation so far as the evidence was concerned where he had been led out of the main bar and was seated in a nearby stairwell. He was asked a direct question and, as Mr Lungo said, responded in a coherent and responsive way. He was not being questioned by police officers at the time. 13. In my opinion it would not be unfair for Mr Blackwell for this evidence to be used and the application is rejected.