R v Gene David Scorringe

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…