R v Michael BROWN (No 3)* [2010] NSWDC 346

New South Wales District Court

CITATION: R v Michael BROWN (No 3)* [2010] NSWDC 346

JUDGMENT DATE: 16 June 2010

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: I reject the tender

CATCHWORDS: CRIME - jury trial - sexual intercourse without consent - accused and complainant formerly in relationship and have child - objection to tender of interim family law orders - credibility of complainant challenged - inferences made from terms of orders - no indication of final outcome of family law proceedings - prejudicial with very slight probative value

Crimes Act 1900 s 61I LEGISLATION CITED: Evidence Act 1995 s 137 Family Law Act 1975

PARTIES: Regina Michael Brown

FILE NUMBER(S): [2010] NSWDC 345

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

JUDGMENT

1. The Crown Prosecutor has tendered three documents in these proceedings. I marked them on the voir dire VDA, VDB and VDC because Mr Scragg, counsel for Mr Brown, has objected to the tender of the documents. In the course of argument, Mr Holles withdrew the tender of exhibits VDA and VDB. There remained the tender of VDC which was a form of orders made by the [place] Local Court under the Family Law Act 1975.

2. This case concerns an alleged sexual assault. The parties were formerly in a relationship. The prosecution case through the complainant is that the accused, as the former partner of the complainant, sexually assaulted her without her consent. The accused admits the sexual activity but denies that it was without consent. The parties share an infant child.

3. Mr Scragg has been cross-examining the complainant. One of the topics of his cross-examination was the removal by the complainant of the child from New South Wales to Queensland some months after the alleged sexual assault. He cross-examined her in areas which involved the fact that she removed the child, whom she told and whom she did not tell. He also cross-examined her about the fact that the Australian Federal Police were directed to return the child which was in fact returned to her custody and he cross-examined her on the proposition that the reason that she went to Queensland was that she wanted nothing further to do with the complaint which she had made against Mr Brown.