R v Kuol Ngong Majok ADUP

[2008] NSWDC 352

CITATION:	R v Kuol Ngong Majok ADUP [2008] NSWDC 352
HEARING DATE(S):	25/11/08
JUDGMENT DATE:	25 November 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Application to admit statement of witness refused.
CATCHWORDS:	CRIMINAL LAW - Evidence - admissibility of statement of witness - relevance - probative value - unfair prejudice to accused
LEGISLATION CITED:	Evidence Act 1995 s55 s137
PARTIES:	R Kuol Ngong Majok Adup
FILE NUMBER(S):	2008/8372
COUNSEL:	Mr Pincott (NSW DPP) Mr Taylor (accused)

JUDGMENT

1 This application to admit evidence by the Crown has been the subject of a voir dire hearing which has just been completed. I admitted as exhibit VDA a statement of Meegan Romeo, dated 21 April 2008.

2 The issue arises in this way. Mr Adup, the accused, is charged by the Crown with two offences, the second being an alternative to the first. The first offence is breaking and entering a dwelling house and committing non-consensual sexual intercourse with an occupant, who is the complainant in these proceedings. The second charge, which is as I say in the alternative, is non-consensual sexual intercourse with the same complainant.

3 The primary issue in the case, it seems to me, is whether or not the complainant consented to the sexual intercourse which I understand admittedly occurred between her and the accused.

4 I understand from Mr Taylor, who appears for the accused, that part of his case will be that there was an arrangement entered into earlier, some hours before the sexual intercourse occurred. The arrangement was entered into at a hotel where both the complainant and the accused were drinking. The sexual intercourse occurred at the complainant’s house some hours later. Briefly, the arrangement was, according to the accused, that he and the complainant would meet up at her house later on.

TAYLOR: I’m reluctant to interrupt your Honour, but I understand the evidence will be that the arrangement was made at Mr Adup’s house, not the licensed premises.

HIS HONOUR: Thank you. I am corrected.

The arrangement was made not at the hotel, but earlier at the accused’s premises. The arrangement included an understanding that consensual sexual intercourse would occur.

5 In the context of the charges and the anticipated evidence of the arrangement, the Crown Prosecutor tenders VDA and proposes to call Meegan Romeo. She will give evidence that she had been drinking at the same hotel as the complainant and the accused some hours before the sexual intercourse occurred. She left the hotel and was chatting to a man she described as an “African guy” in front. At some stage the African guy gave her his phone number and she rang it. The accused is from Sudan and is appropriately described as an African guy.

6 Part of the evidence will be that he was part of a group of men from the Sudan who lived in a street nearby the complainant. A number of those men were at the hotel that night.

7 Ms Romeo walked away from the hotel and her phone rang. It was what she described as “the African guy”. A male voice said to her “What are you doing tonight?” and she said “I am going home”. The male voice responded “Can I come and pick you up and give you a lift?” And she said “No, I am going home”. He said “Are you sure?” She said “Yes I am sure”. Her statement goes on to say that she said a number of times she did not need a lift, but he continued asking if he could come and pick her up. She ended up by hanging up on him. The phone rang a number of times more and the same phone number came up on the screen.

8 It will be part of the Crown case that the telephone from which the call was made to Ms Romeo was owned by the accused.

9 Mr Pincott, the Crown Prosecutor who is briefed in this trial, says that the evidence is relevant for three reasons. The first reason is that it is relevant to the issue of whether there was a break and enter in accordance with the first count. He says the evidence is inconsistent with what he anticipates the accused’s case will be that the entry by him later on that evening into the complainant’s house where the sexual intercourse occurred was by a prior arrangement and therefore by consent.

10 The second point of relevance Mr Pincott argues is that it is relevant to the prior arrangement that the later encounter should include sexual intercourse.

11 The third point of relevance he says is to the credibility of the accused. It is inconsistent he says with his anticipated assertion that there was an arrangement between him and the complainant and therefore affects his credibility.

12 Mr Taylor argues that the evidence is not relevant in that it does not meet the test of relevance set out in s 55 of the Evidence Act 1995. He argues that it is not evidence that if it were accepted “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.” He argues that there is clearly the possibility that the telephone call may have been made by one of the other African men rather than the accused. (I should have added earlier that the statement of Ms Romeo does not identify specifically the accused as the particular African man whom she was engaged in conversation with.) In addition, Mr Taylor argues that it is not relevant because his client may have changed his mind about the arrangement.

13 In my opinion the evidence is clearly relevant. It is, in my opinion, relevant to at least two of the issues put forward by Mr Pincott, namely the fact of consent and the entry into the premises. The evidence is capable of reducing the likelihood that there was an arrangement between the accused and the complainant because it suggests that he was acting in a way that is inconsistent with an arrangement with somebody else.

14 Mr Taylor further objects to the evidence on the basis of s 137 of the Evidence Act. He argues that I must refuse to admit the evidence because its probative value is outweighed by the danger of unfair prejudice to his client.

15 The unfair prejudice must be just that. Prejudice in the sense that it might tend to point to his client’s guilt is not sufficient. It must be capable of some way being misused by the jury. But the test is mandatory once I have performed the balancing exercise. If I am convinced that the probative value is outweighed then I must exclude it.

16 Mr Taylor argues that the probative value of the evidence is slight. Once again he points to the fact that there is no evidence that it was his client who made the particular phone calls. All it demonstrates, he said, is that it was his phone that was being used. There is clearly the reasonable possibility that the phone may have been shared amongst his companions. He supports that by exhibit VD1, which is a custody management record demonstrating that his client was arrested at about a quarter past 6 on 27 January 2008, which is the date of the alleged offence. When he compares VD1 with VDB, which are records of the telephone usage of the accused’s phone, it is clear and I accept, that the accused’s telephone was still in active use after his arrest. This, he says, is consistent with the phone being, if not common property, clearly used amongst his client’s friends.

17 His second argument on probative value is that it is slight because at the most it may indicate that his client may have changed his mind about the arrangement which he made. As Mr Taylor said, he may have decided to hedge his bets.

18 On the other hand Mr Taylor argues that the evidence contains the danger of unfair prejudice to his client. He says it sails close to tendency evidence. He says the tendency would be to “pick up” a woman for casual sex. He says it comes close also to character evidence and that is in the sense that his client was, once again, a person likely to pick up another person for a casual sexual encounter after a session of drinking.

19 I think there is real force in Mr Taylor’s submission. To my mind, when I perform the balancing exercise required of me by s 37, the probative value of the evidence is, in my opinion, reduced in the ways which Mr Taylor submits. There is clearly a reasonable possibility that the phone may have been shared around, that possibility being advanced by exhibit VD1. In addition, the probative value of the evidence is reduced by the possibility that the accused may have simply changed his mind about a prior arrangement. On the other hand, the evidence is capable of being used by the jury as possibly demonstrating a predatory component in the accused’s behaviour, that is, that he was indiscriminately seeking someone to have sex with that evening. That, in my opinion, could distract the jury from what, in both counts, is a very significant issue of whether or not a sexual encounter was by consent, which in turn involves the question whether the jury accepts beyond reasonable doubt the complainant’s assertion that there was no consensual arrangement between her and the accused.

20 In my opinion, the probative value of the evidence tendered by the prosecution is outweighed by the danger of unfair prejudice to the accused and I refuse to admit it.

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