R v Bretherton [2013] NSWSC 1247

Supreme Court New South Wales

Medium Neutral Citation: R v Bretherton [2013] NSWSC 1247 Hearing dates: 2 September 2013 Decision date: 02 September 2013 Before: Harrison J Decision: Objection to the tender of MFI 9 dismissed Catchwords: EVIDENCE - tender of computer records from adult dating site - whether unfairly prejudicial - whether material probative of a fact in issue Category: Procedural and other rulings Parties: Crown Robert Bretherton Representation: Counsel: Peter Barnett SC (Crown) Scott Corish with Cara Feiner (Accused) Solicitors: Director of Public Prosecutions (Crown) Purcell Lawyers (Accused) File Number(s): 2011/367057 Publication restriction: Nil

Judgment 1HIS HONOUR: The Crown has tendered a document that was formerly MFI 9. It is objected to by the accused upon the basis that its probative value is outweighed by its prejudicial effect. 2The document is a computerised reconstruction of a series of written conversations between the accused and third parties retrieved from the records of what is referred to as an adult dating website. The accused is identified by the user name "tallguy7517". The document records messages said to have been sent by the accused to various registered recipients who he has been able to contact though their respective membership of the same website. All entries are for dates between early and late November 2011. Replies to these messages are also recorded in the document. 3The evidence in this case so far includes evidence from women with whom the accused has made contact in this, or similar, fashion and who have met the deceased for sexual contact. It is not likely to be in issue that these contacts occurred with these women at various stages of the relationship between the accused and the deceased. 4The accused maintains that the fact that he is shown by the document actively to be seeking sexual contact with several women during the course of his relationship with the deceased, or on another view that he is sexually very active whatever might have been the nature of his relationship with the deceased at the time, was unfairly prejudicial to him because members of the jury might take an unfavourable view of such behaviour and judge him unfairly as a result. It is accepted that the sexual conduct or contacts of which the document speaks are not themselves relevant for that fact alone or at all. 5The Crown tenders the document upon the basis that it demonstrates the accused's ability to interact with members of the public in a coherent and rational way with a view to meeting in person and extending the friendship to an intimate level if possible. This is significant in the context of the present case inasmuch as the accused has indicated that he will contend that he has a partial defence arising from the fact that he was suffering from an autistic spectrum disorder at the time he committed the act causing death amounting to an abnormality of mind that substantially impaired his ability either to understand events, or judge whether his actions were right or wrong, or to control himself. The accused would appear also to have been suffering from a level of depression that may inform the existence of an abnormality of mind for that purpose. 6When the document was first tendered I observed that it contained some material that was of a highly specific sexual nature that was potentially offensive to some readers and as such arguably capable of inflaming an unfavourable view of the accused as a result. The document that is now tendered has been redacted so as to exclude references falling into that category. The accused maintains his objection to the redacted document even so, upon the basis that what remains is still capable of causing him unfair prejudice in the ways indicated. 7In my opinion the document is clearly relevant. The evidence so far includes manifold references to the accused's lack of social skills, his awkward day-to-day dealings with people in social and family settings, and his lack of friends as a result of a perception that he is relevantly different from the general population in several important respects. The tendered material goes on one view to establishing that these perceptions may not be a completely accurate reflection of the true position. As I have indicated, several of the comments written by the accused are explicit and overt invitations to meet face to face. They are on the same view not suggestive or characteristic of a person who has all or even many of the characteristics that the evidence so far suggests are associated with autistic spectrum disorder. 8There is no prejudice arising from the redacted version of the document that strikes me as unfair in the relevant sense. Any morally offensive view about the accused that the document might be thought to convey in the modern environment of chat rooms and electronic adult dating sites can be adequately accommodated and dispelled by appropriate directions. 9In my opinion the objection to the tender of the material in question should be dismissed.