R v Michael Brown (No 4)*

[2010] NSWDC 347

CITATION:	R v Michael BROWN (No 4)* [2010] NSWDC 347
JUDGMENT DATE:	16 June 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I reject the tender
CATCHWORDS:	CRIME - jury trial - objection to tender evidence of telephone message left for complainant from relative of accused - credibility of complainant - evidence only available since commencement of trial - probative value outweighed by prejudicial nature - tenuous link between accused and evidence
PARTIES:	Regina Michael Brown
FILE NUMBER(S):	[2010] NSWDC 346
COUNSEL:	Mr FDL Holles for the Director of Public Prosecutions Mr G Scragg for the offender

JUDGMENT

1. The Crown Prosecutor has tendered evidence of a telephone message left for the complainant. Without going into detail the complainant understood the message as being from a relative of the accused. She understood the message to suggest that she could face physical violence at the hands of that person. The evidence tendered by the Crown includes evidence that the telephone call was made from the accused’s telephone but not from the accused himself.

2. The Crown Prosecutor argues that the relevance of that evidence is this. The complainant withdrew her complaint at one stage but then changed her mind and decided to continue. The Crown Prosecutor argues that defence counsel will no doubt suggest that one reason for the withdrawal of the complaint was an acceptance of the fact that she was lying. The Crown Prosecutor argues that this evidence is important because it demonstrates another clear reason, and a credible reason, for the complainant withdrawing her complaint. Needless to say the credibility of the complainant is central to these proceedings. Defence counsel has made it clear that his case is that she is lying.

3. The Crown Prosecutor has had this evidence since the commencement of the trial but only since then. He made it available to defence counsel as soon as he received it. He decided not to use it at that stage, but made it clear that if it became relevant he would tender the evidence. He says that it has now become relevant. It has become relevant, he argues, because of a line of questioning undertaken by defence counsel yesterday over T 48 - 49. Defence counsel put to the complainant that there had been a conversation between her and his client about fixing up a mess. Defence counsel added that it was a mess “that you had made by telling lies”. He emphasised that a short time later when he put it to her that it was “a mess that you had created by your lies.”

4. The Crown Prosecutor acknowledges that the evidence is highly prejudicial but that its probative value is also very high because it is critical to the central issue of the complainant’s credibility. Defence counsel argues that there has been no change since the commencement of the trial. His case has always been that the complainant was lying, he put this to her in a number of different contexts but primarily of course relating to the alleged sexual assault which this trial is about. He argues that he did not put in plain unambiguous terms that the complaint - had been withdrawn as a result of her acceptance that she had been lying. I should add at this point that there is evidence from the complainant - which has not been objected to - to the effect that there were other reasons for her withdrawing the complaint at the stage that she did. The Crown Prosecutor argues that the telephone call was the dominant reason.

5. I propose to reject the evidence for the following reasons. First, it has always been the case that the complainant’s credibility was an issue. The credibility of the complainant focuses mainly upon her account of what happened at the time of the sexual assault. However, defence counsel has cross-examined the complainant over the exchange of communications which suggests a far more cordial relationship between the complainant and the accused since the alleged sexual assault. He also cross-examined her about the fact that the accused slept in the same bed as she did at a time after she said there had been a cessation of sexual relations between them. To my mind there has been no effective change in the position since the commencement of the trial.

6. The second reason is that in my view defence counsel has not put in plain and unambiguous terms the proposition that the complaint was withdrawn as a result of her realising that or accepting that she had lied. It is put in more indirect terms.

7. The third reason is that I regard the link between the accused and this telephone message as too tenuous. It is the case that there is evidence that it came from his telephone. There is no evidence that he authorised it. Its content is quite prejudicial in that it involves the allegation that the relative of the accused who left the message is a member of the Bandidos motor cycle organisation and spoke to the complainant in terms about threats of personal violence. To my mind, given the other issues about the credibility of the complainant, this particular topic is not so central that its probative value is outweighed by what the Crown Prosecutor correctly in my view refers to as its highly prejudicial nature. I am of the view that first it has not been put in issue by defence counsel and secondly even if it had been I would refuse to admit it because its probative value is outweighed by the danger of unfair prejudice to the accused. For those reasons I reject the tender of VD D, VD E and VD F.

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