DPP v PM [2011] NSWDC 220

District Court New South Wales

Medium Neutral Citation: DPP v PM [2011] NSWDC 220 Hearing dates: 30/11/2011 Decision date: 30 November 2011 Before: Judge S Norrish QC Decision: Evidence not admitted. Catchwords: Admissions, unfairness discretion, probative value, unfair prejudice, "pretext" telephone calls. Legislation Cited: Evidence Act 1995 - ss 84, 85, 88, 90 137 Cases Cited: R v M [2002] QCA 456 Pavitt v R [2007] NSWCCA 88 R v Swaffield [1998] HCA 1 Em v R [2006] NSWCCA 336; (2007) 232 CLR 67 R v Truang (1996) 86 A Crim R 188 R v Lieski [2006] ACTSC 97 R v Broyles (1991) 3 SCR 595 R v Cavalli [2010] QCA 343 Category: Interlocutory applications Parties: Regina PRM - accused Representation: Mr J McLennan - Crown Prosecutor Mr P Boulten SC - Accused Solicitor for Public Prosecutions Ms T Randall, Anderson Randall Solicitors - Accused File Number(s): 2008/66228

Judgment

Introduction 1PM was arraigned on 29 November 2011, on 2 charges of sexual assault alleged to have occurred on 14 November 2008 at Goonellabah. The accused is alleged to have had sexual intercourse without consent of the complainant and to have indecently assaulted her, whilst he treated her in his capacity as a medical practitioner. 2The Crown seeks to rely upon evidence of conversations between the accused and the complainant at about 10.50 am and at about 12.30 pm on 11 December 2008, when the complainant rang the accused at the request of police, with directions as to what she was to discuss and how she was to discuss those matters. These conversations were recorded by virtue of a lawful warrant issued pursuant to the Surveillance Devices Act 2007. Senior Counsel for the accused objected to the admission into evidence of the recorded conversations. They were Exhibits 2 and 3 on the voir dire in chronological order of their occurrence. 3This is the second trial of these allegations, a jury previously has been discharged without verdict. Thus, evidence from that trial was available in the voir dire. After the conduct of a voir dire examination, which commenced after the empanelment of the jury on 28 November, concluding on 29 November prior to the Crown's opening, I excluded the evidence the subject of objection. 4At that time I briefly outlined the bases for the exclusion of the evidence. They included findings concerning whether the conversations contained "admissions" by the accused (s 88 Evidence Act 1995 - "the Act"), discretionary exclusion pursuant to s 90 of the Act and exclusion pursuant to s 137 of the Act.