ABSTRACT
Cross-examination of a co-defendant is not governed solely by s 1(3)(iii) of the 1898 Act. An advocate for one defendant may need to bring out matters to the discredit of another defendant in support of his own case, both during examination-in-chief and during cross-examination. This is permissible, provided the judge is satisfied that the matters covered are relevant. Once satisfied of this, the judge has no discretion to exclude the evidence. For example, in R v Miller,74 a decision at first instance, three defendants (Miller, Mercado and Harris) were charged with conspiracy to evade customs duties on the importation of nylon stockings. Mercado’s defence was that he had not been concerned in the illegal importations. He said that Harris, one of his employees, had posed as Mercado and used Mercado’s office for the illegal transactions. In order to establish that it was Harris, and not Mercado, who had been involved, counsel for Mercado wanted to prove that Harris had been in prison during a period when the illegal importations had been suspended. Devlin J held that, in the light of Mercado’s defence, the evidence was relevant and admissible. He said that a judge had no discretion to exclude defence evidence that prejudiced another defendant on the basis that its prejudicial effect outweighed its probative worth.
