R v Merrick (No 3)
[2016] NSWSC 181
•3 March 2016
|
New South Wales |
Case Name: | R v Merrick (No 3) |
Medium Neutral Citation: | [2016] NSWSC 181 |
Hearing Date(s): | 3 March 2016 |
Date of Orders: | 3 March 2016 |
Decision Date: | 3 March 2016 |
Jurisdiction: | Common Law |
Before: | Wilson J |
Decision: | 1. Evidence of witness alleging that the accused sent her a message saying “I’m going back to sleep anyway. Getting up for the gym at half three. Another woman deserve me more than that pathetic houso cunt rag” is admissible. |
Catchwords: | CRIMINAL LAW – evidence – admissibility – context evidence – relationship evidence – relevance – probative value |
Category: | Procedural and other rulings |
Parties: | Regina |
Representation: | Counsel: |
File Number(s): | 2013/00369082 |
EX TEMPORE JUDGMENT
During the course of evidence and immediately prior to a witness, Ms Cole, being called to give evidence-in-chief, counsel for the accused takes objection to a portion of the witness’s statement. It is set out at [6] of the statement of 4 January 2014. The Crown has indicated that most of that paragraph is not sought to be led and Ms Evers, counsel for the accused, had been advised of that.
The portion as I understand it that the Crown contends is relevant is a portion in which the witness indicates that the accused sent her a message in which he stated,
“I’m going back to sleep anyway. Getting up for the gym at half three. Another woman deserve me more than that pathetic houso cunt rag.”
As I understand it from the context of that communication, the person referred to in that way was the deceased.
There is another sentence which is general referring to messages sent suggesting the deceased was likely to cheat on him.
This issue has already been fully aired before the Court. There was two days of litigation as to the admissibility of context and relationship evidence and I have already given a full judgment as to the admissibility of that material. As I recall it, some of the text messages already admitted into evidence have the accused referring to the deceased as a “houso cunt from Raymond Terrace”. That may not be the exact wording, but my recollection is that there is a text to that effect. That will be in evidence.
I see no distinction between the current evidence and any other relationship evidence and I admit the evidence of the specific message on the same basis that I have previously admitted other relationship evidence. Given that there is a judgment published to the parties, I do not propose to go into the basis of the admissibility for present purposes.
As to the last sentence of [6], unless the Crown is proposing to particularise messages that the accused is said to have sent to this particular witness about the faithfulness or otherwise of the deceased, I would not admit that evidence. It amounts to someone’s summary of what appears to be a number of messages and it may not be particularly accurate. The specific messages subject to their content, are likely to be admissible, but I do not regard someone’s summary of them as having the same relevance and probative value.
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Amendments
01 April 2016 - Amended non-publication restriction
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