R v McCormick

[2011] NTSC 22

R v McCormick [2011] NTSC 22

PARTIES:   The Queen

v

McCormick, John Reece

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:   20923110

DELIVERED:   28 March 2011

HEARING DATES:   22 March 2011

JUDGMENT OF:   KELLY J

CATCHWORDS:

R v Sandford, (1994) 72 A Crim R 160 (NSW CCA)

REPRESENTATION:

Counsel:

Plaintiff:   P Usher

Defendant:   T Berkley

Solicitors:

Plaintiff:   Director of Public Prosecutions

Defendant:   Robert Welfare

Judgment category classification:    C

Judgment ID Number:   KEL11007

Number of pages:   4

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v McCormick [2011] NTSC 22

No. 20923110

BETWEEN:

THE QUEEN

Plaintiff

AND:

JOHN REECE MCCORMICK

Defendant

CORAM:     KELLY J

REASONS FOR DECISION

(Delivered 28 March 2011)

1. The accused is charged with (among other things) attempting to supply cannabis to Leon Chester. 

2. Police had the Darwin River site where the events in question are said to have taken place under surveillance.  Their evidence is that Chester was waiting at the Darwin River site on 10 July 2009 when McCormick arrived there.  McCormick parked near Chester, they had a brief conversation, and then McCormick walked into the bush carrying a folded (or scrunched up) blue bag.  He returned about 10 to 15 minutes later according to one police witness – 5 to 10 minutes later according to another – carrying 4 x 1 lb bags of cryo-vaced cannabis in the blue bag.   He was walking back towards where the cars were parked and Chester was waiting, but was apprehended by police before he got there.  Several cashes of cannabis were found by police in the area, one the day before, and two (close together) on the day of the arrest.

3. The Crown wishes to lead evidence that $5,000.00 was seized by police from the car of the alleged intended customer, Leon Chester.

4. Mr Berkley for the defence has objected to this evidence being called.  

5. It can hardly be said that the evidence is not relevant and, therefore, prima facie, admissible.  It has logical probative value.  That is to say, the existence of a substantial amount of money in the cars of the alleged intended customer at the time and place in question tends to make the Crown case (that he was there to purchase cannabis from the accused) more likely.  Taken in conjunction with other evidence led by the Crown (including recordings of intercepted telephone conversations between Chester and the accused, the presence of cannabis in the possession of the accused, and the caches of substantial amounts of cannabis in the near vicinity) this evidence is capable of supporting an inference that the accused was intending to supply cannabis to Chester on the day he was arrested.

6. Mr Berkley for the defence has applied to have this evidence excluded on the ground that its prejudicial effect outweighs its probative value.

7. In R v Sandford[1] Hunt CJ at CL said (at 178):

   “Despite an apparently unshakeable misconception to the contrary on the part of some members of the legal profession, the mere fact that evidence tendered by the Crown is of little weight by itself does not require its rejection under this head of judicial discretion.  Nor will evidence be excluded where the only prejudice which it causes is that it establishes (or tends to establish, or assists in establishing) the guilt of the accused.  The Christie discretion to exclude evidence is usually directed to evidence which, although not itself probative (or only slightly probative) of guilt, is also probative of some other matter which may wrongly be regarded by the jury as probative (or strongly probative) of guilt – for example, propensity: Scott and Barnes [1989] AC 1242 at 1256-1257; (1989) 89 Cr App R 153 at 159-160; Masters (1992) 26 NSWLR 450 at 479; 59 A Crim R 445 at 472-473.”

8. In my view, the evidence is relevant, and its probative force is not outweighed by its prejudicial effect.  Indeed, I do not think the evidence itself has any prejudicial effect – other than that (in the words of Hunt CJ in Sandford) it tends to establish or assists in establishing the guilt of the accused. 

9. Mr Berkley also says that it would be unfair to allow the Crown to lead this evidence when it is not intending to call Chester.  The unfairness arises, he says, because in those circumstances he is unable to cross examine Chester to attempt to rebut the inference which the Crown will ask the jury to draw from the presence of the money (ie that it would have been used to purchase cannabis).

10. I do not think that the failure of the Crown to call the alleged customer to give evidence renders it unfair for the Crown to adduce this evidence.  It is open to defence counsel to submit to the jury that they should not infer that the money in question was going to be used to buy cannabis, in the absence of any evidence from Chester or anyone else that that was its purpose.  It is also open to defence counsel to make comment upon the failure to call Chester, and it may be appropriate for a direction in relation to the failure of the Crown to call him as a witnesses to be given.  Ultimately, it will be up to the jury whether they are prepared to draw the conclusion which the Crown urges upon them from the whole of the circumstantial evidence in the case, including the evidence of the money found in Chester’s car.  Excluding this evidence would deprive the jury of a relevant part of the picture and is, in my view not required in the interest of fairness.

[1] (1994) 72 A Crim R 160 (NSW CCA).