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. 3. The second piece of evidence is related. It is a statement from the man James Green. He is the person about whom, on the prosecution case, Mr Brown expressed concern. He is the person with whom, on the Crown case, Mr Brown thought that Ms White was having a relationship. The evidence proposed to be led from Mr Green concerns a telephone call he received some weeks before the alleged assault. It was a telephone call from Mr Brown and the account given by Mr Green is that Mr Brown accused him of "sleazing onto Julie". Mr Green also said that or claimed that Mr Brown had said that his relationship with Ms White "had not been as good since Julie started working" at a particular business where Mr Green employed Ms White. 4. Those two pieces of evidence - Mr Holles will argue to the jury - demonstrate that there was a motive for Mr Brown sexually assaulting Ms White. The motive centres upon jealousy over Mr Brown's impression that there was a relationship between Ms White and Mr Green. 5. Mr Scragg objects on various bases to this evidence being led. His primary point concerns the relevance of the evidence to an argument proposed to be put by Mr Holles about motive. Mr Scragg said he came into the case without any knowledge that motive was to be relied upon. The first he knew of the statement by Mr Green was when he was handed a copy of it yesterday morning. That is acknowledged by Mr Holles who also became aware of it at a late stage. 6. Mr Scragg points to the statement made by Ms White which contains material suggesting that there was some jealousy on the part of his client concerning Mr Green but Mr Scragg argues that there is nothing in her statement or in the Crown brief to suggest that anything had occurred between the confrontation at the hotel, which was between 11 and midnight, and the alleged sexual assault at around 9 in the morning. The evidence, he says, is consistent with Mr Brown wanting to re-engage in the relationship they formerly had. He says that he is taken by surprise and that had he known that the Crown would rely upon motive then he would have taken certain procedural steps, including issuing a subpoena to Mr James Green, regarding documents and interviewing a person with whom it is said that his client was having a conversation at the hotel on the night in question. 7. Mr Scragg argues under s 137 of the Evidence Act 1995 that the probative value is extremely low and that the jury may well misuse the evidence. Under s 135 of the same Act he argues that amongst other things the evidence would lead to an undue waste of time because the evidence would distract the jury's consideration, or at least the course of the trial, from the focus on a single issue, namely whether the sexual encounter which is admitted by both parties was with or without Ms White's consent. Mr Scragg points out that Mr Holles did not open on the question of motive. Mr Holles argues that he did not open on the question of motive because it was a controversial issue. 8. Mr Scragg argues that it is one thing to say that the motivation for the sexual assault was in the context of re-establishing a relationship with his former partner. It is quite another to say that it was in some way connected with feelings that his client had amounting to jealousy. 9. Mr Holles argues that motive has always been a part of the case and it is apparent from the references in Ms White's statement to jealousy exhibited by Mr Brown. He further argues that the events constituting the alleged sexual assault cannot be divorced from what happened at the hotel some hours earlier. 10. I propose to exclude the evidence so far as it relates to any alleged motive. To my mind the connection is not sufficiently strong between the alleged assault at 9am on the morning and the argument some hours before at the hotel. There is nothing in between which suggests that the exhibition of jealousy which the Crown says occurred was still driving Mr Brown when the admitted sexual intercourse occurred the following morning. 11. In addition I am concerned that a case which has been opened to the jury, for understandable reasons, based upon a clear issue of consent may be diverted into areas concerning motive and issues which may not be directly related to the central issue in the case. 12. I am also concerned about the fact that Mr Scragg may have wished to take some procedural steps beforehand in order to prepare himself for running this case on this basis. 13. I therefore would, in the exercise of my discretion under s 135 of the Evidence Act, refuse to admit the evidence as it relates to motive because its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time. Also, I do not propose to allow it to be led because the accused has not had notice or sufficient notice of a specific intention to rely upon a particular topic, namely motive. 14. Mr Holles argues that the evidence which Mr James Green can give regarding the telephone conversation is relevant not only to motive but also because it corroborates Ms White in an important respect. Ms White will say it is anticipated that her relationship with Mr Brown continued physically after the separation. That physical relationship however stopped according to her when she found out about the telephone call which Mr Brown is said to have made to Mr Green. That telephone call was on 22 July 2008. The alleged sexual assault was on 3 August 2008. 15. Mr Scragg has opened, indicating to the jury that it will be claimed that there was a sexual relationship between 22 July and 3 August 2008. That I understand will be denied by Ms White. 16. It seems to me that the evidence of the telephone call is relevant to that issue and important. Limited to that topic it does not have the same risk of undue waste of time and I propose to allow the evidence of the telephone call to be led from Mr Green relevant only to the issue of the time that sexual relations between the parties ceased. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.