R v Michael Brown (No 3)*
[2010] NSWDC 346
•16 June 2010
CITATION: R v Michael BROWN (No 3)* [2010] NSWDC 346
JUDGMENT DATE:
16 June 2010JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: I reject the tender CATCHWORDS: CRIME - jury trial - sexual intercourse without consent - accused and complainant formerly in relationship and have child - objection to tender of interim family law orders - credibility of complainant challenged - inferences made from terms of orders - no indication of final outcome of family law proceedings - prejudicial with very slight probative value LEGISLATION CITED: Crimes Act 1900 s 61I
Evidence Act 1995 s 137
Family Law Act 1975PARTIES: Regina
Michael BrownFILE NUMBER(S): [2010] NSWDC 345 COUNSEL: Mr FDL Holles for the Director of Public Prosecutions
Mr G Scragg for the offender
JUDGMENT
1. The Crown Prosecutor has tendered three documents in these proceedings. I marked them on the voir dire VDA, VDB and VDC because Mr Scragg, counsel for Mr Brown, has objected to the tender of the documents. In the course of argument, Mr Holles withdrew the tender of exhibits VDA and VDB. There remained the tender of VDC which was a form of orders made by the [place] Local Court under the Family Law Act 1975.
2. This case concerns an alleged sexual assault. The parties were formerly in a relationship. The prosecution case through the complainant is that the accused, as the former partner of the complainant, sexually assaulted her without her consent. The accused admits the sexual activity but denies that it was without consent. The parties share an infant child.
3. Mr Scragg has been cross-examining the complainant. One of the topics of his cross-examination was the removal by the complainant of the child from New South Wales to Queensland some months after the alleged sexual assault. He cross-examined her in areas which involved the fact that she removed the child, whom she told and whom she did not tell. He also cross-examined her about the fact that the Australian Federal Police were directed to return the child which was in fact returned to her custody and he cross-examined her on the proposition that the reason that she went to Queensland was that she wanted nothing further to do with the complaint which she had made against Mr Brown.
4. Exhibit VDC on the voir dire is a form of an order made on 11 December 2008 after the complainant returned to New South Wales with her and the accused’s child. They are interim orders made by the [place] Local Court. They also indicate that the proceedings are to be transferred to the Federal Magistrates’ Court at Parramatta on Federal Magistrate Sexton’s central west circuit.
5. The relevance of the orders, Mr Holles argues, is that the custody of the child is returned to the complainant and the order is that the child live with the mother. Provision is made for access by Mr Brown. There is also an order that Mr Brown be “restrained from consuming any alcohol or non-prescription drugs during any period the child is spending time” with him. In addition, there is a direction that Mr Brown “shall attend upon and complete a parenting course as soon as practical”.
6. Mr Holles correctly points out that there has been a direct challenge to the credit of the complainant. Mr Scragg has put to the complainant more than once that she is lying. Mr Holles argues that VDC demonstrates that she was in fact awarded custody of the child eventually by the court so that she was regarded as a suitable mother and that there might have been some justification for her removal of the child to Queensland from New South Wales. Mr Holles goes on to argue that in light of the cross-examination suggesting that she is a liar, VDC indicates that a court has been sufficiently satisfied with her so as to issue orders providing her with the custody of the child.
7. I have rejected the tender for these reasons. The first is that the inference relied upon by Mr Holles is from the terms of the orders. The orders would be based upon the findings of a court, the findings of the court would be based upon some form of evidence. The jury has no access to the evidence. The findings of the court itself would probably be inadmissible under s 91 of the Evidence Act 1995. The inference in my opinion is unsafe and unreliable.
8. The second reason is that it is clear from the terms of the order that it is interim and the proceedings are to be referred to the Federal Magistrates’ Court from the [place] Local Court. That suggests that the proceedings may have been ex-parte or at least the court regarded them as interim. There is no indication of what he final outcome of the proceedings were.
9. The third reason is that the orders concerning Mr Brown being restrained from consuming alcohol and non-prescription drugs and undertaking a parenting course, are obviously prejudicial. We have no information about the reason why the court felt that it should make that order.
10. I would regard the probative value of the orders as very slight for the reasons I have given already but in my opinion the probative value of this evidence is outweighed by the danger of unfair prejudice to Mr Brown and I would refuse to admit the evidence under s 137 of the Evidence Act 1995.
11. It is for those reasons that I have rejected the tender of the VDC.