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

SUPREME COURT OF QUEENSLAND

CITATION:

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

PARTIES:

R
v
LOCHLAN-LEE BRETT BELFORD
and
RAYMOND JOHN BOUND

FILE NO/S:

234 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application to exclude evidence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

16 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2009

JUDGE:

Applegarth J

ORDER:

Mr Belford is not permitted to cross-examine Dr Mahoney in relation to the contents of the drug analysis certificate

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – WITNESSES – CROSS-EXAMINATION – DISALLOWANCE OF QUESTIONS – where an accused sought to adduce evidence by cross-examination concerning a co-accused’s positive blood test result for cannabis – where the co-accused submits that the evidence is of no probative value and is prejudicial to him and to a fair trial – where the evidence is of slight probative value – whether the Court has a discretion to exclude and should exclude the evidence

Lobban v The Queen [1995] 1 WLR 877, cited
R v Bound [2009] QSC 344, related/applied
R v Carranceja (1989) 42 A Crim R 402, cited
R v Darrington and McGauley [1980] VR 353, considered
R v Hartley (2007) 3 NZLR 299, considered
R v Randall [2004] 1 All ER 467, cited
R v Roughan & Jones (2007) 179 A Crim R 389; [2007] QCA 443, applied
R v Su [1997] 1 VR 1, applied

COUNSEL:

V A Loury for the Crown
M A Green for Mr Belford
D MacKenzie for Mr Bound

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown
Legal Aid for Mr Belford
Walker Pender solicitors for Mr Bound

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?

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QSC 428
Decision Date: 16 December 2009

CaseChat Overview and Summary

The case of R v Belford and Bound (No 2) involved two defendants who were jointly charged with drug-related offences. The matter came before the court to determine the admissibility of certain evidence concerning a drug test result of one of the accused. The crux of the dispute was whether the trial judge should permit cross-examination about the co-accused's positive blood test for cannabis, and if so, whether such evidence should be excluded due to its potential prejudicial effect on the accused and the fairness of the trial.

The legal issues before the court encompassed the scope of cross-examination in criminal trials, particularly in relation to the probative value of the evidence and its potential to cause unfair prejudice to the accused. The court was tasked with determining whether the evidence in question was of slight probative value, and if so, whether the court has the discretion to exclude such evidence under the common law rules of evidence.

In ruling on the matter, the court found that the evidence of the co-accused's positive blood test for cannabis was of slight probative value. The court considered the potential for the evidence to cause unfair prejudice to the accused, both in terms of prejudicing the jury against the accused and in terms of affecting the fairness of the trial. The court concluded that, in this instance, the prejudicial effect of the evidence outweighed its probative value. Therefore, the court exercised its discretion to exclude the evidence from being adduced during cross-examination. The court's decision was guided by the principles of ensuring a fair trial and preventing evidence that might unfairly prejudice the accused.

The final orders of the court were that Mr Belford is not permitted to cross-examine Dr Mahoney in relation to the contents of the drug analysis certificate. This decision was made in the interests of maintaining a fair trial and protecting the rights of the accused.

Orders

Orders of the court

Mr Belford is not permitted to cross-examine Dr Mahoney in relation to the contents of the drug analysis certificate

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Belford & Bound (No 2) [2009] QSC 428
PARTIES:	R v LOCHLAN-LEE BRETT BELFORD and RAYMOND JOHN BOUND
FILE NO/S:	234 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application to exclude evidence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	16 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	16 December 2009
JUDGE:	Applegarth J
ORDER:	Mr Belford is not permitted to cross-examine Dr Mahoney in relation to the contents of the drug analysis certificate
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – WITNESSES – CROSS-EXAMINATION – DISALLOWANCE OF QUESTIONS – where an accused sought to adduce evidence by cross-examination concerning a co-accused’s positive blood test result for cannabis – where the co-accused submits that the evidence is of no probative value and is prejudicial to him and to a fair trial – where the evidence is of slight probative value – whether the Court has a discretion to exclude and should exclude the evidence Lobban v The Queen [1995] 1 WLR 877, cited R v Bound [2009] QSC 344, related/applied R v Carranceja (1989) 42 A Crim R 402, cited R v Darrington and McGauley [1980] VR 353, considered R v Hartley (2007) 3 NZLR 299, considered R v Randall [2004] 1 All ER 467, cited R v Roughan & Jones (2007) 179 A Crim R 389; [2007] QCA 443, applied R v Su [1997] 1 VR 1, applied
COUNSEL:	V A Loury for the Crown M A Green for Mr Belford D MacKenzie for Mr Bound
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Legal Aid for Mr Belford Walker Pender solicitors for Mr Bound