R v Grogan (No 2)

[2013] NSWSC 1192

Supreme Court

New South Wales

Medium Neutral Citation:	R v Grogan (No 2) [2013] NSWSC 1192
Hearing dates:	14 August 2013
Decision date:	27 August 2013
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Evidence admissible
Catchwords:	EVIDENCE - criminal - evidence of flight - whether unfair prejudice - where defence rebuttal would require evidence of accused's prior offending and experience with police
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Penza and Di Maria v R [2013] NSWCCA 21 R v Cook [2004] NSWCCA 52 R v Taranto [1999] NSWCCA 396
Category:	Procedural and other rulings
Parties:	Regina Jason Mark Grogan
Representation:	Counsel: Mr L Carr (Crown) Mr C Smith (Grogan) Solicitors: Solicitor for Public Prosecutions Legal Aid NSW
File Number(s):	2012/17224

Judgment

1. HIS HONOUR: Mr Smith, counsel for the accused, objected to the Crown leading evidence of three occasions upon which the accused ran away on the night of the alleged crime as evidence of "flight" from which the jury could draw a consciousness of guilt inference. I ruled that the evidence was admissible for the following reasons.

1. The accused is charged with the murder of Mr Alan Henry at Gloucester on 19 April 2012. Mr Henry died on that date; the Crown says his death was caused by injuries he sustained when he was assaulted in his home by the accused on 10 January 2012.

1. The accused and his partner (and co-accused) Natasha Slacke were living at Port Stephens. Ms Slacke had befriended Mr Henry, a relatively old man who lived on his own in Gloucester. She often attended his home and did chores for him in exchange for payment. The accused sometimes accompanied her.

1. On 10 January 2012, the accused and Ms Slacke travelled to Gloucester. At about 4.30pm they were at the Caltex service station on the corner of Church and Philip Streets. Witnesses observed them to be involved in a heated argument. In the end, the accused left on foot. It is the Crown case that he went to the deceased's home in Gregson Street, about 250 metres from the service station.

The first occasion of flight

1. A neighbour of the deceased will give evidence of a man, the Crown says the accused, climbing over a fence and entering the backyard of the deceased's home. Soon after this, at about 5.20pm, the neighbour heard loud noises, described as "thuds", from within the deceased's home. The Crown says this was the deceased being assaulted. About five or ten minutes later the neighbour saw the same man he had seen earlier, this time leaving the deceased's home by jumping over the back fence and entering the rear lane.

1. Senior Constable Broadley was driving in Gregson Street at around 5.30pm. He turned right into Ravenshaw Street. As he passed the laneway running behind the houses fronting on to Gregson Street he saw a man walking in the lane with something in his hands. The officer stopped the police car and reversed back in order to look down the laneway. He saw the man run from the laneway and into the rear yard of a house fronting on to Philip Street. (Philip Street is parallel to Gregson Street with the lane in between.) Senior Constable Broadley drove up the laneway but lost sight of the man. A resident of the property the man had entered summoned the officer over and directed Senior Constable Broadley's attention to a laptop computer and peripheral cord on the ground in the backyard. Subsequent investigation revealed that these belonged to Mr Henry. The Crown case is that the accused assaulted Mr Henry and stole these items.

1. Running away from the scene of the alleged crime is the first occasion of "flight".

The second occasion of flight

1. Ms Slacke arrived at the deceased's home a short time later. She entered via the front door. She soon called 000 and an ambulance arrived a short time later. The officers saw that Mr Henry had suffered significant head trauma. Ms Slacke told them that she had found him on the floor and that he must have fallen.

1. The ambulance departed the scene with Mr Henry at 6.36pm. A short time later, the next door neighbour again heard the distinctive sound of someone coming over the fence into the deceased's backyard. He looked and saw that it was the same man he had seen earlier. There is no dispute, in respect of this occasion, that this was the accused. The man went to the back verandah of the deceased's home where the neighbour saw him speaking with Ms Slacke. He heard the accused say, "You can't back out now". The pair went inside. The neighbour heard a great deal of noise from within. It continued until police officers arrived at the front door.

1. Senior Constables Broadley and Forrester had been alerted to the attendance of the ambulance at the deceased's home. They went to the hospital and then went to the home. While walking down the front path they heard a male and a female voice from inside and saw two figures in the lounge room. The male moved quickly out of view. They knocked on the front door, which was answered by Ms Slacke. She delayed them by refusing entry. One of the officers went around to the back door where he was met by Ms Slacke. Eventually she allowed the officers to enter the house. There was no sign of the accused. There were signs of attempts having been made to clean up blood from the kitchen floor.

The third occasion of flight

1. The officers left the house and went back to the hospital to make further inquiries. From there they returned to Gregson Street where they went to the neighbour's home and had a conversation. They then walked next door to the deceased's home. They saw Ms Slacke exit via the front door and walk away down Gregson Street. She was immediately followed by the accused. Senior Constable Broadley recognised him as the man he had earlier seen in the rear laneway. He called out to the accused, "Jason, we need to speak with you". The accused did not turn around or acknowledge the officers but continued walking away. He was called upon to stop a second time but he suddenly ran off around a corner into Barrington Street. Senior Constable Forrester gave chase while Senior Constable Broadley ran back to their car. By the time he drove into Barrington Street, Senior Constable Forrester was standing in the middle of the roadway looking into the shadows with his torch. The pair drove around the area for a time but could not find the accused.

A fourth occasion of flight

1. There was also a fourth occasion the Crown was going to rely upon. The accused and Ms Slacke left Gloucester the day after, that is 11 January 2012, and returned to Port Stephens. At some stage that afternoon Detective Senior Constable Joshua Tynan rang the accused and, in a brief conversation, obtained his agreement to attend the Gloucester police station about an hour later. The accused did not attend. Ultimately, the accused was found to be in Taree where he was arrested on 17 January 2012. In submissions, the Crown Prosecutor indicated that it was leaving Gloucester on 11 January 2012, knowing that the police wanted to speak to him, that was the feature of this evidence that the Crown sought to rely upon. The problem is that Detective Tynan said in evidence on the voir dire that he did not know where the accused was at the time of the telephone conversation: the accused might already have left Gloucester. In terms of fleeing with the knowledge that police desired to speak to him, the lack of precision in this incidence adds little to the third occasion of "flight". The inherent weakness of this evidence in supporting an inference of consciousness of guilt was acknowledged by the Crown Prosecutor and it was not pressed.

Submissions for the accused

1. Mr Smith submitted that the evidence outlined above should be excluded upon the basis that a danger of unfair prejudice outweighed its probative value.

1. In relation to the probative value of the evidence, it was submitted that it was somewhat odd that there were two occasions on which it is said that the accused returned to the scene of the alleged crime.

1. The asserted prejudice arose from the fact that the accused has a substantial criminal record. A copy of his record in New South Wales, Queensland and South Australia was provided to me. The history goes back to when the accused was aged 16 in 1987. The offences include matters of dishonesty, drugs, and violence. The matters of violence include assault, assault police, assault occasioning actual bodily harm, wounding, and attempted armed robbery with actual violence. There are multiple entries for many of these offences. The history also discloses that the accused has been imprisoned on quite a number of occasions.

1. The accused told police when interviewed on 17 January and 4 May 2012, in effect, that his flight was explicable on the basis that he has significant criminal history and that he was concerned about the police discriminating against him, as they had in the past, by falsely accusing him of crimes he had not committed. By way of example, in the first interview he said:

Q54. You mentioned police are going to blame you, why do you think that?

A. Oh, look, I'm, look at me life, look at me history, you know what I mean, I've been to gaol so many times for so long, I've just got out in '09 after four and a half, I mean, I get the blame no matter where I go for everything, it's just part of my friggin' life, I tell you.

1. It was submitted that given this state of affairs, the accused was left with three options. First, put nothing before the jury by way of alternative explanation for his flight. Second, to put something in broad terms about his crimina history before the jury. Third, to put or allow into evidence material like his response in the first interview just quoted. The first option would leave the inference of consciousness of guilt for which the Crown contends unchallenged and virtually unassailable. The second and third would involve disclosure of disreputable conduct unrelated to the offence alleged.

1. Another submission was concerned with the directions that I would give to the jury on this issue. The usual direction speaks of the jury being satisfied that the conduct of the accused was explicable because he/she feared implication in relation to the commission of the offence for which he/she is on trial. In this case, the offence charged is murder and there is the natural alternative of manslaughter. But the Crown would not be able to argue that the "flight" was explicable on the basis that the accused feared implication in the commission of murder or manslaughter because the deceased did not die until three months later. Mr Smith submitted that this would add a "layer of complexity" to the directions that would be given.

1. I do not think the last point is of any significance. Mr Smith candidly invited my attention to Penza and Di Maria v R [2013] NSWCCA 21. There, at [190]-[191] per Hoeben CJ at CL, reference was made to the need for there to be a logical connection between the actions relied upon as evidencing a consciousness of guilt and the offence in respect of which that evidence is adduced. There is a logical connection between flight from the crime scene (the first aspect) and flight from the police (each of the three aspects) and the conduct comprising elements of the offences for which the accused is being tried; that conduct being a violent assault of the deceased and the theft of his property. I do not consider it especially relevant that the final element of the offence of murder (or manslaughter), the death of the accused, did not occur until some time after.

1. In R v Cook [2004] NSWCCA 52, Simpson J, with the concurrence of Ipp JA and Adams J, held that evidence of flight was wrongly admitted. It should have been excluded on the basis of the danger of unfair prejudice outweighing the probative value of the evidence.

1. Mr Cook's trial was concerned with the alleged commission of an offence of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse. Simpson J described (at [36]) the probative value of the evidence of flight as "very high indeed". Mr Cooke's explanation for the flight allegedly involved revealing that he was the subject of an apprehended domestic violence order; that he breached that order; and that he had committed an assault. Her Honour said:

[32] ... The prejudice to the appellant is plain. Not only would his explanation expose him as a person with a criminal record (the assault and the previous breach), it would also expose him as a person with a history of violence against women. In the context of the charge he faced, that exposure would have particularly poignancy.

1. Her Honour referred to a number of authorities on the question of admissibility and use of evidence demonstrating consciousness of guilt. She concluded:

[47] ... There is no general principle that, when the explanation for flight involves revealing other offences, the evidence should be rejected. Indeed, it is part of the conventional direction in relation to evidence indicative of consciousness of guilt (whether of lies, or flight, or otherwise), that the jury be alerted to the possibility that the accused person has undertaken that course of conduct by reason of consciousness of guilt, not of the offence charged, but of some other offence or discreditable conduct.

1. Ultimately, Simpson J concluded (at [48]) that the prejudicial effect of the evidence was unfair and that it outweighed the probative value. This was because the appellant's response "not only disclosed previous criminal offences, it disclosed criminal offences with a disturbingly close relationship to the offence with which he was charged".

1. It was necessary in Cook, if there was going to be any explanation for the conduct, for the accused to disclose to the jury prior offending of a similar nature to that which was alleged against him. That is not necessarily the case here. The accused might choose to disclose detail about his past offending, but that is more a matter of choice than necessity. The essence of his explanation is that he had previous contact with police; he perceived that police discriminated against him; and that he feared being unjustly accused.

1. It is not in every case that disclosure of other offending renders evidence from which an inference of consciousness of guilt may arise inadmissible on the basis of its probative value being outweighed by its prejudicial effect. For example, in R v Taranto [1999] NSWCCA 396, the accused was being tried for an offence of wounding with intent to murder, alternatively, malicious wounding with intent to do grievous bodily harm. After the incident in question, he stayed for some time with his brother at Sutherland, and when police attended his home at Kingswood on the day of his arrest he ran away and hid inside the roof space of a garage.

1. There was an objection to the evidence based upon s 137 Evidence Act. The accused's explanation for his "flight" was that he faced unrelated charges of goods in custody, possessing a prohibited drug and possessing an unlicensed pistol. Also (and this was the explanation that was put before the jury) the reason for his desire to avoid apprehension was that he had been told that a person whom he believed was a police informer had told police that he was responsible for shooting the victim, and that "his word would go stronger than my own". Further, he had received information which led him to believe that if the police found him there would be "a shootout".

1. The trial judge admitted the evidence, saying that it was a matter for Mr Taranto how he dealt with it and intimated that, if he chose to reveal the outstanding charges, any prejudice would be remedied by appropriate directions. Because another ground of appeal was upheld and a new trial ordered, it was unnecessary for the ground relating to this aspect to be resolved. However, Hidden J said (at [50]), for the benefit of the judge presiding at any retrial, that it had been open to the trial judge to have admitted the evidence.

1. In the present case, the evidence in question has the potential to be highly probative of the accused acting in a way that demonstrates that he feared being implicated in the assault of Mr Henry and the theft of his property. That is particularly so in relation to the first occasion relied upon by the Crown. It would be open to the jury to consider Mr Smith's point about it being "odd" that the accused twice returned to the scene. But against that, the Crown says that what is significant is that on each of those occasions, when the police arrived the accused again fled.

1. I accept that there is a danger of unfair prejudice. Careful directions will be needed to ensure that the jury do not misuse whatever evidence the accused chooses to adduce, or allows the Crown to adduce, by way of explanation for his conduct. I am not persuaded that such danger as there is outweighs the probative value of the evidence.

1. The evidence is admissible.

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Decision last updated: 28 August 2013