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District Court 15 April 2009

R v Gene David SCORRINGE

[2009] NSWDC 422

Sexual offences
CRIMINAL LAW JURY TRIAL VERY HIGH TEST

Citation: R v Gene David Scorringe [2009] NSWDC 422
Court: District Court of New South Wales
Date: 15 April 2009
Judge(s): Cogswell SC DCJ

Background

The accused faced a jury retrial on charges of sexual assault. The Crown sought to tender a short voicemail message left by the complainant on her boyfriend's phone while she was in hospital, approximately one hour after the alleged assault occurred.

The message read: "Hey baby its me [x] I really need you here… I can't do this on my own love you bye." The Crown argued the message was admissible on three grounds: as evidence of distress, as part of the res gestae (the broader transaction of events), and as evidence relevant to the complainant's relationship with her boyfriend.

Defence counsel objected to the tender on grounds of relevance, hearsay, and unfair prejudice under s 137 of the Evidence Act 1995.

  • Whether the voicemail was admissible as evidence of distress corroborating a complaint of sexual assault
  • Whether the voicemail formed an integral part of the transaction of events and was therefore admissible on that basis
  • Whether the voicemail was relevant to the nature of the complainant's relationship with her boyfriend
  • Whether the voicemail constituted inadmissible hearsay under s 59(1) of the Evidence Act 1995
  • Whether, even if relevant, the probative value of the evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995

Decision

The court rejected the "integral transaction" basis for admission. It was not satisfied that the voicemail was so essential to understanding the events constituting the alleged assault that those events could not be properly understood without it. This ground, drawn from the principle in O'Leary v The King (1946) 73 CLR 566 as applied in R v Adam (1999) 106 A Crim R 510, therefore failed.

On the distress and relationship grounds, the court was satisfied the evidence was relevant. Relying on R v Grattan [2005] NSWCCA 306, the court held that a one-hour gap between the alleged assault and the voicemail was not sufficient to render the evidence irrelevant. The court also acknowledged that the message bore on the complainant's relationship with her boyfriend, an issue that had arisen in cross-examination at the previous trial.

On the s 137 exclusion argument, the court found that any sympathy the evidence might evoke was not "unfair" prejudice in the legal sense. Evidence of distress from an alleged crime victim will commonly produce sympathetic responses in listeners, and that ordinary effect does not bring the evidence within the kind of prejudice s 137 is directed at. The court did indicate a willingness to consider a jury direction addressing emotional responses to the evidence, if either party applied for one.

On hearsay, the court found that the only factual assertion in the message was the identification of the caller, which was not in dispute. The emotional content of the message, specifically the words expressing the complainant's need and emotional state, fell within s 66A of the Evidence Act as a contemporaneous representation of the complainant's feelings and state of mind. In any event, because the complainant had given evidence at the previous trial, s 66 applied and the hearsay rule was displaced.

Orders Made

The application to exclude the voicemail evidence was refused. The voicemail (Item 2 of exhibit VD-A) was ruled admissible.

Key Takeaways

  • A one-hour gap between an alleged sexual assault and a complainant's distressed communication did not render that communication irrelevant as evidence of distress, consistent with the Court of Criminal Appeal's reasoning in R v Grattan that distress can remain relevant even months after a traumatic event.
  • Under s 137 of the Evidence Act 1995, the fact that distress evidence may evoke jury sympathy does not automatically make the resulting prejudice "unfair." Where sympathy is a natural response to relevant evidence of this kind, it does not necessarily outweigh probative value.
  • Emotional expressions in a communication (such as statements about a person's feelings or state of need) can fall within the s 66A exception to the hearsay rule as contemporaneous representations of feelings and state of mind.
  • The "integral transaction" (res gestae) basis for admissibility requires more than proximity in time. The evidence must be so essential to understanding the alleged offending that the events cannot be properly understood without it.
  • Where a complainant gave evidence at a prior trial, s 66 of the Evidence Act 1995 may operate to displace the hearsay rule in a retrial, even where the complainant is again called to give evidence.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 291(3), 306I
- Evidence Act 1995 (NSW), ss 59(1), 66, 66A, 137

Cases:
- R v Adam (1999) 106 A Crim R 510 (NSW Court of Criminal Appeal)
- O'Leary v The King (1946) 73 CLR 566 (High Court of Australia)
- R v Grattan [2005] NSWCCA 306 (NSW Court of Criminal Appeal)
- R v Flannery [1969] VR 586 (Full Court, Supreme Court of Victoria)