Citation: R v Shane Gregory Blackwell (No 2) [2011] NSWDC 188
Court: District Court of New South Wales
Date: 2 November 2011
Judge: Cogswell SC DCJ
Background
The accused was charged with maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. The prosecution alleged that, on 13 October 2007, the accused punched the complainant in the face with a glass in a Sydney public bar. The defence indicated a willingness to plead guilty to a lesser offence, with the central issue at trial being the accused's intent at the time of the incident.
The prosecution sought to call the hotel's publican as a witness. According to the publican's anticipated evidence, shortly after the incident he asked the accused, "Why would you do such a cowardly thing?" The accused reportedly replied, "I just wanted to." The defence objected to that exchange being admitted in evidence.
Legal Issues
- Whether the statement made by the accused to the publican should be excluded under s 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
- Whether the statement should be excluded under s 90 of the Evidence Act 1995 as an admission that it would be unfair to use, having regard to the circumstances in which it was made, including the accused's alleged intoxication
Decision
Issue 1: Section 137 (probative value versus unfair prejudice)
Cogswell SC DCJ held that the probative value of the evidence was high, given that the accused's intent was the central issue in the trial. His Honour noted that "unfair prejudice" under s 137 refers to damage to an accused's case in some unacceptable way, not merely evidence that is adverse. While the evidence was plainly prejudicial, the judge found no danger that it would operate unfairly or be misused.
His Honour also observed that s 137 concerns arise most acutely in jury trials, where jurors may misunderstand or misuse certain evidence. In a judge-alone trial, the court could weigh the evidence carefully and receive submissions from both parties on the appropriate weight to be given to it. The s 137 objection was rejected.
Issue 2: Section 90 (unfairness of admission)
The defence pointed to two features said to make it unfair to use the statement: the rhetorical or accusatory nature of the publican's question, which did not necessarily demand a reply; and the accused's significant intoxication at the time, supported by evidence that police considered him unfit for interview for several hours after his arrest.
Cogswell SC DCJ acknowledged that the accused was intoxicated to a significant degree. However, his Honour found that the accused had been taken to a nearby stairwell, was asked a direct question, and responded in a coherent and responsive manner. The exchange did not involve police questioning. In those circumstances, the court was not persuaded that it would be unfair to admit the statement, and the s 90 objection was also rejected.
Orders Made
- Objection overruled
Key Takeaways
- The District Court confirmed that "unfair prejudice" under s 137 of the Evidence Act 1995 means something beyond evidence that is merely adverse to the accused; it requires a danger that the evidence will be used in an unacceptable or improper way.
- In a judge-alone trial, the risk of evidence being misused or misunderstood is materially reduced, a factor that weighs against exclusion under s 137.
- Under s 90, a court may admit an admission made in circumstances of intoxication where the accused's response was nonetheless coherent and responsive to the question posed.
- The rhetorical or accusatory character of a question does not, of itself, render a responsive answer inadmissible as an admission; the overall circumstances of the exchange must be assessed.
- A delay before police interview, attributable to intoxication, does not automatically establish that the accused lacked the capacity to understand questions put by a non-police interlocutor at an earlier point in time.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 s 90, s 137
Cases
- Not stated