New South Wales District Court CITATION: R v Gene David SCORRINGE [2009] NSWDC 422 JUDGMENT DATE: 15 April 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: The application is refused. CATCHWORDS: CRIMINAL LAW - jury trial - application by defence for complainant to give evidence in open court - special reasons in the interest of justice - very high test LEGISLATION CITED: Criminal Procedure Act 1986 s 291(3), s 306I COUNSEL: Ms C Dobraszczyk Mr L Brasch SOLICITORS: NSW Director of Public Prosecutions Legal Aid Commission of NSW JUDGMENT 1. The Crown Prosecutor tendered a voicemail message and Mr Brasch who appears for the accused objected to the tender. The evidence is that the voicemail message was received on 11 March 2007 at 6.45pm. The voicemail message was left by the complainant in these proceedings on the voicemail message service of her boyfriend's phone. The voicemail message was left when the complainant was in hospital having alleged that she was sexually assaulted an hour or so beforehand by the accused. There are other voicemail messages to which Mr Brasch does not take exception. The latest of those voicemail messages was just over an hour before the controversial voicemail message. 2. The message which Mr Brasch objects to is short. The transcript of the message reads, "Hey baby its me [x[ I really need you here… I can't do this on my own love you bye". 3. Ms Dobraszczyk who appears as Crown Prosecutor tenders that evidence and argues that it is admissible on three bases. The first basis is that it is similar to evidence of distress exhibited by a complainant in sexual assault proceedings. The second basis is that it is evidence which is an essential part of a transaction and close to the time of the alleged crime. The third basis is that it is evidence relevant to the relationship between the complainant and her boyfriend. 4. Mr Brasch objects to the relevance of the evidence. As well he asserts that the evidence is hearsay. Thirdly, he argues that the evidence should be excluded under s 137 of the Evidence Act 1995. 5. I deal first with the second basis of argued admissibility by Ms Dobraszczyk. She relied upon the decision of the NSW Court of Criminal Appeal in R v Adam (1999) 106 A Crim R 510. In that judgment the court referred to a basis of admissibility of the kind relied upon by Ms Dobraszczyk in the following terms at [20]: " It was also submitted that the evidence was admissible under the principle in O'Leary (1946) 73 CLR 566, that the conduct of the appellant Richard Adam formed an integral part of a 'transaction' consisting of connected events…." The reference to O'Leary is developed in [23] where the Court quoted from the judgment of Sir Owen Dixon in that case. The passage quoted is this: " Without (the evidence in question) the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude, and therefore to implicate him in the resulting homicide." 6. I am not convinced that the voicemail message being tendered in this case is so integral to the events which occurred beforehand - which are claimed to amount to sexual assaults - that those events could not be properly understood without the voicemail evidence. I reject that basis for the tender. 7. In pressing her submission that the evidence is relevant in a way analogous to distress being corroborative in sexual assault cases including demeanour and reaction of the complainant, Ms Dobraszczyk referred to the Court of Criminal Appeal's decision in R v Grattan [2005] NSWCCA 306. The Court in that case at [122] referred to the well accepted principles set out by the Full Court of the Supreme Court of Victoria in R v Flannery [1969] VR 586 noting that "before the evidence could be admitted it was necessary to determine whether it is a reasonable inference from the evidence that a causal connection exists between the matter of complaint alleged and the distressed condition". 8. Mr Brasch acknowledges the relevance of the call in question but argues that its probative value is no more than slight. There is in this case evidence of earlier complaint which is not objected to. He also referred to the time gap of about an hour between the events and this telephone call. 9. So far as the time gap is concerned I am not satisfied that it is so significant as to render the evidence irrelevant. In Grattan at [123] the Chief Judge at Common Law with whom Simpson and Rothman JJ agreed said: "To my mind, the passing of two months since the happening of a potential traumatic event is an insignificant time. Distress could accompany the retelling of events months or even years after they occurred depending on the nature of the events and their impact on the victim." I do not regard in this case a gap of one hour as sufficient to render the evidence irrelevant. 10. But Mr Brasch argues that I should exclude the evidence under s 137 of the Evidence Act because its probative value, which as I said he argues is slight, is outweighed by the danger of unfair prejudice to his client. The unfair prejudice, he argues, is that the evidence would evoke sympathy in the jury which would lead to a process of reasoning not logically connected with the issues in the trial. 11. I can appreciate his point and there may well be a tendency for the evidence to evoke sympathy, but it is not unusual that evidence of this kind being relied upon to demonstrate distress of a person who claims to be the victim of a crime would produce feelings of sympathy in those who hear the evidence. In those circumstances the prejudice generated, if at all, in my opinion is not unfair. In the exercise of the balancing required by the section I do not regard the probative value as outweighed by any danger of unfair prejudice. I should add that for abundant caution I would entertain an application to direct the jury about an emotional response to the evidence. I do not know which way I would rule but I mention it now so that the parties may consider whether such a direction would be appropriate. 12. The third basis for Ms Dobrasczcyk's tender of the evidence is that it points to the relationship between the complainant and her boyfriend. This case is a retrial after a jury failed to reach a verdict on a previous occasion. I understand from what I am told that an issue in the previous cross-examination of the complainant arose concerning the precise nature of the relationship between the complainant and her boyfriend. Arguments were put about the nature of that relationship. 13. Mr Brasch acknowledges the force of that argument but once again falls back upon s 137. For the reasons already given I do not regard the probative value of the evidence as being outweighed by any danger of unfair prejudice. The probative value - given the issues which are said to arise in cross-examination on the previous occasion - is obviously of some significance. 14. Finally Mr Brasch's overall objection to the evidence is that it is hearsay evidence. The hearsay rule is contained in s 59(1) of the Evidence Act. It provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably supposed that the person intended to assert by the representation. When the tendered message is examined it seems to me that the only fact which it could reasonably be supposed the caller - who is the complainant - intended to assert was that "it's me, [x]". I understand that that is not in dispute. In any event the complainant was called to give evidence on the previous occasion and in my opinion that means that s 66 of the Evidence Act applies so that the hearsay rule does not apply. 15. As to the balance of the message, in my opinion it falls within s 66A of the Evidence Act. The words "I really need you here…I can't do this on my own love you bye" are representations or amount to a contemporaneous representation about the complainant's feelings and state of mind. Because I have that view, the hearsay rule does not apply by reason of s 66A of the Evidence Act. 16. For those reasons I ruled yesterday that the evidence which was contained in Item 2 of the VD-A was admissible. ********** 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.