R v Michael BROWN (No 2)* [2010] NSWDC 345

New South Wales District Court

CITATION: R v Michael BROWN (No 2)* [2010] NSWDC 345

JUDGMENT DATE: 9 June 2010

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: I refuse to admit the evidence as it relates to motive. I propose to admit the evidence relevant to the issue of time.

CATCHWORDS: CRIME - jury trial - sexual intercourse without consent - objection by Defence to two pieces of evidence proposed to be led by Crown - first demonstrates motive - relevance - Defence submission that probative value of evidence is low and jury may misuse the evidence - submission that leading evidence would lead to undue waste of time - notice of motive and forensic decisions made - second demonstrates motive and corroborates complainant on time - limited to second purpose

LEGISLATION CITED: Crimes Act 1900 s 61I Evidence Act 1995 s 135, s 137

PARTIES: Regina Michael Brown

FILE NUMBER(S): 2009/1939

COUNSEL: Mr FDL Holles for the Director of Public Prosecutions Mr G Scragg for the offender

JUDGMENT

1. Mr Scragg who appears for the accused in this case, Michael Brown, has objected to evidence proposed to be led by the Crown Prosecutor Mr Holles. This is a case where the prosecution alleges that the accused sexually assaulted a person without her consent and knowing that she was not consenting.

2. The evidence which Mr Holles proposes to lead falls into two categories. One is a conversation between the alleged victim of the assault and Mr Brown at a hotel the night before the morning of the alleged assault. The topic of the conversation broadly can be said to relate to rumours concerning a relationship between the alleged victim and another man. It becomes important to point out that Mr Brown, the accused, and Ms White, the alleged victim, were themselves in a long term relationship and indeed had a child. The events which are the subject of this trial are said to have occurred after the relationship broke down. Mr Holles will argue that Mr Brown's concern about a relationship between Ms White and another man provided a motivation for the alleged sexual assault which is said to have occurred around 9am the following morning.