R v Brooks (No 4)

[2017] NSWSC 315

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Brooks (No 4) [2017] NSWSC 315
Hearing dates:	17 March 2017
Date of orders:	17 March 2017
Decision date:	17 March 2017
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	The evidence is admissible.
Catchwords:	CRIMINAL LAW – evidence – hearsay – when led to put other conversations in context – self-defence – where accused the victim of an earlier assault – whether conversation reminding him of the earlier assault is relevant to self-defence – prosecutor’s duty to call relevant witnesses – admirably fair approach taken by Crown Prosecutor.
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	The Queen v Apostolides (1984) 154 CLR 563; [1984] HCA 38 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Category:	Procedural and other rulings
Parties:	Regina Bradley Brooks
Representation:	Counsel: Huw Baker (Crown) Andrew Boe (B Brooks)   Solicitors: Director of Public Prosecutions Younes + Espiner Lawyers (B Brooks)
File Number(s):	2015/00101058

ex tempore Judgment (revised)

1. One of the witnesses, who is on the Crown's witness list, is a witness called Sarah Baird. She made a statement on 17 April 2015 and a highlighted copy of that statement has been provided as Exhibit VD7. Her statement covers in essence three things, two of them closely related. There is a controversy over the admissibility of parts of her evidence and whether there is any obligation on the Crown to call her in its case.

2. The first matter covered in her statement is that she worked with or employed the accused, Bradley Brooks, since he commenced work in her restaurant as an apprentice chef. In paragraphs 10-13 Ms Baird provides an opinion of his character which is generally positive. The Crown does not object to the evidence of character and some agreement – the details of which I am not aware of – has been reached between the parties as to the extent of the character evidence that can be led before the Crown would seek to raise a case in reply. Whilst the Crown accepts the admissibility of those parts of Ms Baird's statement he indicates that he would not call her as a witness in the Prosecution case in order to provide the accused with a vehicle, as it were, through which to adduce evidence of good character.

3. Ms Baird goes on to provide some evidence of what she was told about an incident which the parties agree took place on 27 February 2015. She was told things by one of the other people who worked in the kitchen (the head chef) and she was also told things by Bradley Brooks himself. What she was told, and I am speaking generally, was that the accused was involved in an incident in which he had been "knocked out or something". Bradley Brooks told her that he had lost consciousness and that his windpipe had partially collapsed. That was information he was told by doctors. She described his appearance in paragraph 26 in which she said, "Bradley didn't look well, he looked pale and he just wasn't himself. He was quieter than usual…" and he told her he had been having headaches. That is the second part of her evidence.   

4. The third part of her evidence is related to that second part but involved a conversation that occurred around Easter and then on the afternoon of 5 April 2015, which is to say just a few hours before the events with which this trial is concerned.

5. The Crown has indicated that if I rule the evidence of those recent conversations – that is to say the conversations shortly before the incident giving rise to the charges against the accused – is relevant evidence that he would call Ms Baird in his case, thus allowing the accused the tactical advantage of being able to cross-examine Ms Baird. He would also elicit, or at least allow the accused to elicit, the conversations that occurred closer to the events of 27 February 2015.

6. There were some arguments initially about whether or not the conversations were admissible under the hearsay provisions in sections 65 and 66 of the Evidence Act 1995 (NSW) but I do not need to go into those arguments because, as the argument has developed, Mr Boe has submitted that the evidence would at least be admissible to put into context the conversations that happened shortly before 5 April 2015 or on 5 April 2015. So the question as to whether the Crown will call Ms Baird really turns on a decision that I need to make as to the relevance of what is said in paragraphs 27 and 29 of the statement of Ms Baird.

7. It is common ground, as I understand it, that the incident on 27 February 2015 is relevant. In that incident, the accused was himself assaulted at the Beachcomber Hotel. This is the same venue where the accused and the two victims had been immediately before the tragic events that give rise to the present proceedings. There is evidence, to be admitted without objection, that the accused suffered some injury as a result of that. [1] It is common ground that that is relevant evidence. Mr Boe opened the case by indicating that self-defence (and defence of another) would be an issue in the trial. In the course of the argument he has articulated the evidence which gives rise to the defence of self-defence. That includes the fact that there is at least some evidence that Joel Brooks, the brother of the accused, was pushed and possibly pushed to the ground and that that event happened immediately before Bradley Brooks became involved.

   1. Since this judgment was delivered, hospital records were tendered as Ex 3.

8. He provided other details but it is unnecessary to go into the matter other than to say that the evidence of events of 27 February are relevant to the issue of whether the accused genuinely believed that it was necessary for him to take some action. They are also relevant to the question of whether his response was a reasonable one in the circumstances “as he [perceived] them”. [2] The events that occurred on 27 February 2015 are relevant to those issues and the Crown has never, as I understand it, suggested that they are not.

   2. s 418 Crimes Act 1900 (NSW).

9. It follows from that that the conversation that the accused had with Sarah Baird that afternoon and on or before the Easter weekend is also relevant. It served as a reminder to him, that is the accused, of what happened the last time he attended the Beachcomber Hotel. Accordingly, my ruling is that the evidence in paragraphs 27 and 29 is relevant evidence.

10. The question of the basis upon which any earlier conversation is admitted will turn to a degree on which witnesses are ultimately called in the case. It may be that that evidence is ultimately admitted to prove some of the events on 27 February 2015. Alternatively, it may be it is simply led to indicate that the conversations occurred, thus putting the conversation in the week leading up to Easter and on 5 April 2015 into perspective but that is a ruling that can be made after the evidence closes.

11. I should repeat something that I said in argument. This issue commenced as a debate about the extent of the Prosecutor's duty to call relevant witnesses. It might be thought that the evidence of Ms Baird, whilst relevant as an aspect of the defence being raised by the accused, is borderline in that regard having regard to cases such as Whitehorn v The Queen [3] and The Queen v Apostolides. [4] As I said in argument the Crown has taken an admirably fair approach in indicating that he would call Mrs Baird if I ruled her evidence to be relevant. Whether her evidence “is necessary to unfold the narrative” [5] is perhaps debatable one way or the other but I do congratulate the Crown Prosecutor in taking the approach that he has.

    3. (1983) 152 CLR 657; [1983] HCA 42.

    4. (1984) 154 CLR 563; [1984] HCA 38, at 575-576.

    5. Whitehorn at 674-675 (Dawson J).

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Endnotes

Amendments

20 April 2017 - Typographical error on coversheet

Decision last updated: 17 November 2017