R v Michael BROWN (No 2)* [2010] NSWDC 345

Procedural Posture

Criminal Jury Trial for Sexual Intercourse Without Consent / Ruling on Defence Objection to Crown Evidence

Legal Issues

1. 1 ['Whether evidence of a hotel conversation and a telephone call concerning alleged jealousy should be admitted as motive evidence.' 'Whether the evidence should be excluded under s 135 of the Evidence Act 1995 because its probative value was substantially outweighed by the danger of undue waste of time.' 'Whether the evidence of the telephone call from Mr Green should be admitted for the limited purpose of corroborating Ms White as to when sexual relations between the parties ceased.']

Ratio Decidendi

The evidence was not admitted as motive evidence because the connection between the alleged jealousy shown some hours earlier and the admitted sexual intercourse the following morning was not sufficiently strong, the trial had been opened on the clear issue of consent, the motive issue risked diverting the jury and causing undue waste of time, and the accused had not received sufficient notice. However, Mr Green's telephone call evidence was admitted for the limited purpose of the issue of when sexual relations between the parties ceased, because it was relevant and important to that issue and did not carry the same risk of undue waste of time when so limited.

Court Disposition

Evidence refused insofar as it related to motive; evidence of the telephone call admitted only as relevant to the issue of time.

Orders

• ['I refuse to admit the evidence as it relates to motive.' 'I propose to admit the evidence relevant to the issue of time.' 'The evidence of the telephone call may be led from Mr Green relevant only to the issue of the time that sexual relations between the parties ceased.']