R v Matthew James Morris

[2008] NSWDC 27

CITATION:	R v Matthew James Morris [2008] NSWDC 27
HEARING DATE(S):	8 February 2008
JUDGMENT DATE:	8 February 2008
EX TEMPORE JUDGMENT DATE:	8 February 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Phegan DCJ
DECISION:	Leave granted to re-open Crown case
CATCHWORDS:	Leave to Crown to re-open Crown case after closing of evidence - Absence of expert evidence
CASES CITED:	Shaw v The Queen (1952) 85 CLR Killick v The Queen (1981) 147 CLR Lawrence v The Queen (1981) 38 ALR 1 R v Chin (1985) 157 CLR Wasow (1985) 18 ACrimR 348 Rend v The Queen [2006] NSWCCA 41
PARTIES:	NSWDPP Ross Hill & Associates
FILE NUMBER(S):	06/31/1471
COUNSEL:	Mr G Fatches Ms S Kluss

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JUDGMENT

1 HIS HONOUR: I will first rule on the application of the Crown to re-open the Crown case in order to call further evidence which is best explained by a brief review of the evidence adduced in the course of the cross-examination of the complainant.

2 The complainant was presented, in the course of cross-examination, with a mobile phone which, it is now established, at the time of the commission of the alleged offences, belonged to the accused.

3 The complainant was shown two video clips which had been recorded on the phone, and which bore a date stamp respectively of 6 minutes past 4.00pm and 2 minutes past 4.00pm on 30 July, 2006. The significance of that date is that it was the date of one of the alleged offences on which the accused now stands trial which is the subject of Count 6 on the indictment:

“That on 30 July, 2006 at Port Macquarie in the State of New South Wales the accused did have sexual intercourse with [the complainant] without her consent and knowing that she was not consenting."

4 It was evidence of the complainant in-chief that this particular incident involved an episode of forced oral sex in the course of which she was held by her hair by the accused and that he, at one point, having slapped her across the face with his penis, ejaculated, in part, at least ejaculated into her mouth at which point his penis penetrated her mouth.

5 The video clips to which I referred depict an incident involving the accused and the complainant. The complainant admitted that they were the parties depicted in the video clips, engaged in an act of oral intercourse which, from all appearances, was consensual and which bore none of the features of lack of consent or force of the sort described by the complainant in her evidence–in-chief.

6 It was put to the complainant that this was a video clip of the incident which she had described as involving forced oral sex and that, in fact, she had, as shown on the video clip, consented to the act of fellatio.

7 There are a number of occasions, which is not necessary to revisit for the purpose of this application, where questions arose concerning the time at…