THE STATE OF WESTERN AUSTRALIA -v- BROWN [No 2] [2025] WASC 119

Catchwords:
Criminal law – Objection to evidence – Admissibility of evidence – Whether evidence has probative value – Whether probative value outweighed by prejudicial effect

[2025] WASC 119
Page 1
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION : THE STATE OF WESTERN AUSTRALIA -v- BROWN [No 2] [2025] WASC 119
CORAM : MCGRATH J
HEARD : 12 MARCH 2025
DELIVERED : 13 MARCH 2025
PUBLISHED : 11 APRIL 2025
FILE NO/S : INS 23 of 2024
BETWEEN : THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
LAUREN VIVIAN BROWN
Accused
Catchwords:
Criminal law – Objection to evidence – Admissibility of evidence – Whether evidence has probative value – Whether probative value outweighed by prejudicial effect
Legislation:
Criminal Code (WA)
[2025] WASC 119
Page 2
Result:
Evidence admissible
Category: B
Representation:
Counsel:
Prosecution
:
Mr M M Cvetkoski & Ms L G Hodson
Accused
:
Mr A E Eyers & Mr E P Fitzpatrick
Solicitors:
Prosecution
:
Director of Public Prosecutions (WA)
Accused
:
Equus Chambers
Case(s) referred to in decision(s):
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
[2025] WASC 119
MCGRATH J
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MCGRATH J:
1
The defence objects to evidence proposed to be adduced by the State. The evidence sought to be adduced subject to objection is as follows:

1. Ms Brown’s UP Bank account records for transactions showing the transfer of money between Ms Brown and Mr Sheehy (the deceased) between 10 May 2023 and 25 September 2023.
2. Ms Brown’s phone download searches between the period 21 September 2023 to 28 September 2023 comprising ten separate searches.
3. Text messages downloaded from Ms Brown’s mobile telephone sent between Ms Brown and the deceased, during the period 20 September 2023 and 28 September 2023 inclusive.
4. Two page medical records. The first document is a referral for Ms Brown from the Joondalup City Medical Group addressed to the King Edward Memorial Hospital for the purposes of a consultation regarding a possible abortion dated 26 September 2023. The second document is a referral from King Edward Memorial Hospital to another regarding the abortion dated 26 September 2023.
   2
   The defence objects on the basis of relevance, and further, that should the evidence be relevant to a fact in issue, the evidence should be excluded in the exercise of my discretion. The primary submission is that the prejudicial value of the proposed evidence exceeds its probative value.
   Relevant legal principles
   3
   It is uncontroversial that evidence is not admissible unless it is relevant to an issue at trial. In order for evidence to be relevant it is necessary that it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.1
   1 Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, 319.
   [2025] WASC 119
   MCGRATH J
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   4
   Relevant evidence may be excluded if its prejudicial effect exceeds its probative value.2
   5
   Evidence is prejudicial when the jury is likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.3
   The evidence in contention
   Bank records
   6
   The bank records are proposed to be produced by way of a one-page summary table which delineates the transfer of money from the deceased to Ms Brown between 10 May 2023 and 25 September 2023. The State proposes to lead the evidence as part of the contextual relationship evidence between the deceased and Ms Brown. The bank record table discloses that, through the stated period, the deceased forwarded, by way of bank transfer, moneys in various amounts, including multiple amounts of $1,000, to Ms Brown. In turn, Ms Brown, on numerous occasions, transferred smaller amounts of money to the deceased for various purchases of day-to-day items, also delineated on the banking records.
   7
   The State submits that the jury should receive the evidence to assist in understanding the nature of the relationship between Ms Brown and the deceased. The payments form part of the relationship narrative and assist the jury in understanding whether the deceased was a controlling figure in the relationship.
   8
   The defence submits there is a risk that if the evidence is received, the jury will speculate as to why the deceased transferred sums of money to Ms Brown. Various witnesses, in witness statements in the brief of evidence, stated that the deceased paid money to Ms Brown so that she would desist from engaging in her previous escort work. The parties have not sought to lead any of that evidence at trial, and the jury have not been informed, and it is not proposed to do so, that Ms Brown has worked as an escort in the past. Nor does the State or defence propose to lead evidence that the deceased met Ms Brown after engaging her for escort services.
   9
   The defence contends there is a risk that the jury will speculate regarding the transfer of money, and the issue of Ms Brown having
   2 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 191 – 192.
   3 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 609 – 10.
   [2025] WASC 119
   MCGRATH J
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   worked as an escort may be inadvertently raised. I do not accept that
   submission.
   10
   I am satisfied that the evidence is relevant. There has been evidence led at trial from witnesses regarding their perception of a controlling nature of the deceased towards Ms Brown. I refer to the testimony of Ms Michele Brown, the mother of Ms Brown, who stated the deceased was controlling of her daughter. Other witnesses, such as Mr Jake Brown, observed bruises on Ms Brown and the black eye. Mr Slocum referred to the relationship, after two months, becoming acrimonious with frequent arguments. In turn, the State has led evidence concerning the volatile nature of Ms Brown on occasions to put the relationship in context. Clearly, at trial, given the nature of the alleged offending, the nature of the relationship between Ms Brown and the deceased is highly relevant.
   11
   The evidence is clearly admissible as being relevant to a fact in issue. Further, I do not consider the jury will possibly speculate that there was some ulterior motive for the transfer of the moneys, given that the parties have not made any mention of Ms Brown’s previous vocation. I am satisfied that the probative value outweighs the prejudicial value of the evidence.
   Ms Brown’s phone downloads & KEMH referrals
   12
   The State proposes to lead 10 phone downloads to prove the search history of Ms Brown’s mobile telephone. The defence submits that six of the 10 entries refer to the issue of abortion. Those entries comprise ‘Midland abortion’, ‘Midland abortion clinic’, ‘King Edward Memorial Hospital abortion’, ‘abortion payment Centrelink’, ‘do medical abortions hurt’ and ‘King Edward abortions’. The defence also submits that downloads 7 and 8, which state, respectively, ‘What do early pregnancy cramps feel like?’ and ‘Period pains in early pregnancy’, made on 22 September 2023, are not relevant, and therefore inadmissible.
   13
   The defence submits that the issue of abortion is highly prejudicial. Counsel observed that abortion is a deeply divisive topic that invariably divides members of the community. The mention of the fact Ms Brown may have been considering an abortion, counsel submitted, could be highly prejudicial given that members of the jury will invariably have views in respect to abortion and, further, counsel submitted that some members of the community may actually hold strong views about that issue.
   [2025] WASC 119
   MCGRATH J
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   14
   The State also proposes to lead the medical evidence as observed from the King Edward Memorial Hospital and the Joondalup Medical Group, regarding a referral to Ms Brown to attend for a consultation regarding a possible abortion on 28 September 2023. The defence objects on the same basis regarding relevance and that the evidence, if admissible, should be excluded on the basis that it is highly prejudicial, and that prejudice outweighs the possible probative value of the proposed evidence.
   15
   I accept that the issue of abortions is a divisive topic that is the subject of differing opinions within the community. I accept counsel’s submission that the raising of the fact that Ms Brown was contemplating an abortion between 25 September 2023 and 28 September 2023 is prejudicial, possibly, to Ms Brown. However, I must determine the probative value. I accept the State’s submission that the issue of the pregnancy of Ms Brown forms part of the evidence before the jury. Ms Brown and the deceased’s attitude to the pregnancy is before the jury. The pregnancy forms an important part of that relationship. The paramount issue at trial is self-defence. The fact that Ms Brown was pregnant is relevant to the jury’s assessment of self-defence.
   16
   The jury will be required to determine whether Ms Brown subjectively believed that her act of stabbing the deceased on the night was necessary to defend herself from the deceased, and whether that act was a reasonable response in the circumstances as she believed them to be. The pregnancy is a relevant consideration. Further, the pregnancy, and the attitude of both Ms Brown and deceased, is relevant to the unfolding actions of the deceased on the night towards Ms Brown and her response.
   17
   After careful reflection, I have determined that the evidence is admissible as it is relevant to a fact in issue, and that its probative value does outweigh its prejudicial value. In making that determination, I consider that a jury, properly directed, would be able to understand the relevance of the evidence and would be able to put to one side the prejudice and/or sympathy that may arise in respect to a young woman and the dilemmas that she was facing regarding her pregnancy at this period in her life.
   18
   In respect to downloads 7 and 8, which state, respectively, ‘What do early pregnancy cramps feel like?’ and ‘Period pains in early pregnancy’, made on 22 September 2023, I am satisfied that the two
   [2025] WASC 119
   MCGRATH J
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   entries are admissible.
   Ms Brown made reports of various pains after the incident and the attendance of the police. The reports made regarding her injuries or pain were made to police officers, and Ms Ford, the nurse. The two downloads are properly received by the jury to consider the source of Ms Brown’s pain or discomfort after arrest, and whether the pain and discomfort was caused by the actions of the deceased, or pre-existing. It forms part of the evidentiary basis which is properly before the jury.
   Ms Brown’s phone download of text messages
   19
   The State proposes to lead 408 text messages between Ms Brown and the deceased from 20 September 2023 to 28 September 2023.
   20
   In submissions, counsel for Ms Brown in particular submitted that text messages 365 to 385 inclusive are particularly problematic. Those text messages refer to utterances of Ms Brown regarding the abortion, including observations as follows: ‘fine if you want me to leave and get an abortion … that’s kinda fucked’, ‘but if that’s what you want’, ‘it’s fucked how you never want to resolve the issue you just jump straight to abortion telling me to fuck off’.
   21
   The tenor of the text messages to which I have referred regarding the abortion appear to support an inference that it was the deceased who was putting pressure on Ms Brown to have an abortion. That is one inference that would be open on the text messages.
   22
   Given my ruling in respect to the admissibility of the phone downloads regarding the issue of abortion, and the medical referrals, I find that those text messages are admissible, and that their probative value outweighs their prejudicial value effect.
   23
   The balance of the text messages comprise utterances of both Ms Brown and the deceased that give light to the nature of the relationship that existed between them between the period 20 September 2023 and 28 September 2023.
   24
   As I have observed, the jury is to receive much evidence regarding the nature of the relationship between Ms Brown and the deceased. The text messages form part of the evidentiary narrative. I am satisfied those text messages are relevant and should be admitted into evidence. The prejudicial effect is not outweighed by the probative value.
   [2025] WASC 119
   MCGRATH J
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   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
   CEM
   Associate to the Hon Justice McGrath
   11 APRIL 2025