R v Grogan (No 3)

[2013] NSWSC 1193

Supreme Court

New South Wales

Medium Neutral Citation:

R v Grogan (No 3) [2013] NSWSC 1193

Hearing dates:

16 August 2013

Decision date:

27 August 2013

Jurisdiction:

Common Law - Criminal

Before:

R A Hulme J

Decision:

1. Evidence of deceased reporting threats by accused inadmissible.

2. Evidence of representation made by deceased that accused not welcome at his home admissible.

3. Evidence of representations made by late brother of deceased as to state of deceased's house admissible.

Catchwords:

EVIDENCE - criminal - maker unavailable hearsay - Evidence Act s 65 - evidence from deceased of threats made by accused - substantial gap in time between treats and alleged assault - probative value outweighed by danger of unfair prejudice - evidence inadmissible
EVIDENCE - criminal - maker unavailable hearsay - Evidence Act s 65 - evidence of animosity between deceased and accused - evidence of items in disarray at scene of alleged assault - both items of evidence admissible

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228

Category:

Procedural and other rulings

Parties:

Regina
Jason Mark Grogan

Representation:

Counsel:
Mr L Carr (Crown)
Mr C Smith (Accused)
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 three items of evidence that the Crown says is admissible pursuant to s 65 of the Evidence Act 1995 (NSW) (maker unavailable hearsay). I have given rulings on the objections. These are my reasons for those rulings.

Background

1. The Crown case is that the accused assaulted Mr Alan Henry in his home on 10 January 2012. Mr Henry sustained significant head injuries from which he died a little over 3 months later.

1. Mr Henry lived by himself in a house in Gregson Street, Gloucester. In mid-2010 he formed a friendship with Ms Natasha Slacke. Ms Slacke lived in Port Stephens but would often travel to Gloucester and see Mr Henry. She did chores for him and received payment in return. In late 2010 or early 2011, Ms Slacke formed a relationship with the accused. She continued with her trips to Gloucester to see Mr Henry but was accompanied by the accused.

1. Mr Henry was hospitalised for about two weeks in mid-2011 to undergo eye surgery. He returned home on 5 July 2011. The accused and Ms Slacke lived in his home while he was in hospital. The Crown intends to adduce evidence to the effect that there was a big argument around this time and Mr Henry evicted the accused and Ms Slacke. This argument was overheard by a neighbour.

Evidence of previous threats by the accused to bash the deceased

1. Ms Marcia Northen was a close friend of Ms Lynne Cribb, Mr Henry's partner. Ms Cribb passed away in early 2010 but Ms Northen maintained a friendship with Mr Henry. She visited him frequently.

1. According to a statement made by Ms Northen on 21 March 2012, she visited Mr Henry at his home after he came home from hospital. She set out in the statement certain conversations she had with him and observations she made in the house (certain property was missing). Ms Northen then stated that "after this incident" (presumably the visit when he came home from hospital) she continued to visit Mr Henry. The statement continued:

17. Other times I would visit Alan, Alan would tell me how Jason [the accused] had been threatening to bash him over the phone. Alan said to me a number of times, "Jason is gunna come and bash me because Natasha has been staying with me."

1. Later in the statement Ms Northen referred to an occasion "about two months after Alan was assaulted" when Mr Henry packed up the clothing and belongings of the accused and Ms Slacke that were within the house and put them on the veranda. He also changed the lock to the front screen door. In her evidence on the voir dire, Ms Northen corrected that portion of her statement by saying that "two months after" should be "two months before". The correction makes sense.

1. In paragraph 11 of her statement, Ms Northen placed the occasion of Mr Henry being in hospital as being "a few months prior to Christmas 2011". She said in her evidence on the voir dire that the occasion of him packing up the clothing was about two weeks after he came home. I referred earlier to the fact that Mr Henry came home following his discharge from hospital on 5 July 2011.

1. Ms Northen said that she visited Mr Henry on the second day after his return from hospital. It was then that he first told her of the accused having threatened to "come and bash me because Natasha has been staying with me". The threat had been conveyed to Mr Henry in a telephone conversation. But Ms Northen said that Mr Henry did not say on that occasion when the conversation had taken place. But the next time Ms Northen visited Mr Henry he said that in a telephone conversation the previous day, the accused had repeated the threat.

1. Ms Northen said that Mr Henry had told her of these threats "a couple of times" and that he had not elaborated upon the threats; she said, "that's all he told me".

1. In cross-examination, Ms Northen agreed, in effect, that Mr Henry regularly consumed alcohol. Some of the conversations she had when he spoke about the threats of a bashing from Jason occurred when he was intoxicated and some when he was sober; but more often when he was intoxicated.

Submissions

1. The Crown Prosecutor explained that the relevance of this evidence is that when the accused went to Mr Henry's home on 10 January 2012, it was not in the context of the two having an amicable relationship. It was in the context of the accused knowing that he would not be welcome. This was particularly relevant in the light of certain responses given by the accused in a police interview of 17 January 2012.

1. In that interview, the accused conceded that he went to Mr Henry's home at a time consistent with when the Crown alleges Mr Henry was assaulted. He described a fairly amicable conversation; for example (Q. 97):

I just went up, I knocked on the door, I was talking to Al there, he said, "Oh what are you doing here?" I said, "Oh, Tash [Natasha Slacke] is just down there at the car". I said, "She's got Tigger [her dog]". I said, "I've just come up here to see if you're home".

1. He was asked how Mr Henry was at this time and he said (Q.105):

Oh, bubbly and like he normally is.

1. The evidence of Ms Northen, and other evidence to be mentioned shortly, was said by the Crown Prosecutor to be relevant to show that the true situation was the opposite of what the accused portrayed to the police. It should also be seen in the context of evidence that I have previously ruled admissible; evidence to the effect that immediately prior to going to the deceased's home the accused was in a state that could be described as hostile, volatile and aggressive.

1. The Crown Prosecutor submitted that the evidence was relevant and admissible pursuant to either of ss 65(2)(b) or (c) of the Evidence Act.

65 Exception: criminal proceedings if maker not available

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or

(c) was made in circumstances that make it highly probable that the representation is reliable

1. The evidence was about a representation of an event that occurred a short time before the representation was made. It was unlikely to be fabricated, regardless of whether Mr Henry was sober or intoxicated, particularly given that its substance had been repeated. There was no advantage to Mr Henry in fabricating such an assertion. Ms Northen was a confidante, a person to whom Mr Henry would logically confide in. It was submitted that Ms Northen's evidence was reliable, something that enhanced the probative value of the evidence (cf R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228). The probative value of the evidence was not outweighed by any danger of unfair prejudice.

1. Mr Smith submitted that the evidence was not at all clear about the timing of events such that it could be said that the "shortly after" aspect of s 65(2)(b) could be satisfied, and that the Crown bore the onus of proving this temporal requirement. That may be so in relation to the first occasion Ms Northen spoke of but there was at least one subsequent occasion in which the representation was made the day after the occurrence of the fact asserted.

1. It was also submitted that there could be no confidence that the representation was unlikely to be fabricated, given that it was made at a time when Mr Henry was in conflict with the accused who had been ejected from his house. It was suggested that this had a bearing on both the question of possible fabrication and, in the context of s 65(2)(c), reliability. Also relevant to both limbs of s 65(2) relied upon by the Crown was the question of Mr Henry being intoxicated at the time of making most of the representations to Ms Northen.

1. There was a danger of unfair prejudice, if the jury accepted Ms Northen's evidence, in that they would reason that because the accused had threatened Mr Henry on a prior occasion, or occasions, he was more likely to have carried out such a threat on 10 January 2012. But, Mr Smith submitted, there was a period of about 6 months between threats being made after Mr Henry came home from hospital and the accused had been in the vicinity of his home in that period and nothing untoward had happened.

1. Moreover, the evidence carried with it vagueness as to time; Mr Henry could have been intoxicated; and he also could have been in a heightened emotional state, having ejected the accused and Ms Slacke from his home.

1. Mr Smith submitted that he would be unable to test when the telephone conversations occurred; whether the deceased was intoxicated, and, if so, the degree to which he was; and the degree of animus he held towards the accused. In other words, the Crown's contentions based upon the evidence were impossible to test and the jury would be unable to properly evaluate the worth of the evidence. Accordingly, there was a risk that the jury could misuse the evidence by giving it more weight than it may properly deserve.

Determination

1. The evidence is relevant and it does come within s 65(2)(b).

1. But its probative value is minimal, given the time that had elapsed between the making of the threats and the events of 10 January 2012. In that time the accused had been in the vicinity of Mr Henry's home on a number of occasions and had done nothing to make good his threats. In these circumstances, the threats could say very little about the accused's state of mind on 10 January 2012.

1. With minimal probative value it takes very little in terms of unfair prejudice to tip the balance to the point where the evidence must be excluded. I acknowledge that with maker unavailable hearsay there is always an inability for the opposing party to fully test the evidence. That is the reason why there is provision in s 165 of the Evidence Act for a trial judge to warn the jury that such evidence may be unreliable. But in this case it is difficult to determine just how unreliable the evidence may be.

1. For these reasons I was satisfied the danger of unfair prejudice outweighed the probative value of the evidence and so it had to be excluded.

Evidence of what the deceased said about the accused shortly before the accused went to the deceased's home

1. Senior Constable Broadley spoke with Mr Henry by telephone in a call initiated at 5.07pm on 10 January 2012. The accused was at Mr Henry's home a very short time after that. The conversation was concerned with whether Mr Henry was happy to have Ms Slacke stay with him. Mr Henry told the officer:

Yeah that's fine, as long as her boyfriend's not with her. He's an absolute arsehole and isn't welcome here.

1. Mr Smith conceded the relevance of Mr Henry saying that the accused was not welcome but objected to the description of him being "an absolute arsehole". No submission was made that the provisions of s 65 were not engaged; that is, it was not contended that the evidence was not theoretically admissible.

1. But in relation to s 137 it was submitted that the call was just under 3 minutes in length and was mostly concerned with conversation between Ms Slacke and Mr Henry. It was not known what was said in that part of the call. This was moments after a violent argument had occurred between the accused and Ms Slacke at the Caltex service station in Gloucester (about 250 metres from Mr Henry's home) which was the reason for Senior Constable Broadley's attendance. It was possible that Ms Slacke had told Mr Henry something about that incident and that Mr Henry had taken exception to the accused's conduct and that it was this that prompted his remark to Senior Constable Broadley.

1. In my view, it matters not what prompted Mr Henry to say what he did. The fact is that he was expressing in emphatic terms his opposition to the accused coming to his home. The term "absolute arsehole" is obviously derogatory, but it emphasises how strident Mr Henry was in his attitude towards the accused. This evidence should be available to the jury to compare with what the accused portrayed to the police as to Mr Henry's response to his attendance at the home a short time after the conversation with Senior Constable Broadley. If the jury infer from what Mr Henry said to the officer that he would not welcome the accused in his home, they could also infer that if the accused arrived, unannounced, at his back door, the meeting of the two would have been far from amicable. Combining this with evidence that a very short time before going to Mr Henry's home the accused was in a hostile and aggressive state of mind, the jury may more readily accept the Crown's contention that violence ensued.

1. I was not persuaded that any danger of unfair prejudice outweighed the probative value of this evidence. Consequently I ruled that it was admissible.

Evidence of what the deceased's late brother told the police about the appearance of the deceased's home

1. The deceased's brother, Mr Richard Henry, was at the deceased's home on the morning of 10 January 2012. He left and caught a train to Sydney. Sometime during the evening of 10 January 2012, the police secured the house as a crime scene. It remained locked and was only accessed by investigating officers.

1. Mr Richard Henry inspected the home on 19 January 2012 at the request of the police. He then made a statement to police in which he set out certain things that were not as they were on 10 January. They included that a mirror was damaged; a teddy bear was on the floor in the rear sunroom which normally was sitting on an esky next to the back door; and there were a number of glasses lying on the dining table, one of which was broken.

1. Mr Richard Henry, sadly, has since passed away. The Crown proposes to adduce evidence of what Mr Henry said in his statement of 19 January 2012.

1. The Crown Prosecutor referred to what the accused had told the police in his two interviews. In the first, on 17 January 2012, he maintained that he spoke to Mr Henry at the back door and did not enter the house at all. In the second, on 4 May 2012, he conceded that he did enter but only the rear sunroom. But two of the three items in disarray noted by Mr Richard Henry were further inside the home and proximate to where Mr Henry was found lying on the floor. This was said to be relevant in two respects. First, that there was an incident involving violence in the home and it was not a case of Mr Henry having simply injured himself in a fall (as the co-accused Natasha Slacke sought to portray to police). Secondly, that the accused must have gone further into the house and that what he said in his two interviews was untruthful.

1. Mr Smith did not contend that the evidence was not theoretically admissible pursuant to s 65. Again, the objection was based upon s 137. It was submitted that the Crown could not exclude as a reasonable possibility that the three items came to be as they were seen by Mr Richard Henry as a result of activity after the alleged offence but not involving the accused. The probative value was minimal and it was outweighed by the danger of the jury reasoning that the damage to the mirror, the state of the glasses on the dining table, and the knocking of the teddy bear off the esky and onto the floor were a result of something the accused did, in circumstances in which there was an alternative explanation.

1. An alternative submission was that evidence concerning the mirror should be excluded because of the choice of words used by Mr Richard Henry in the last sentence of the following paragraph of the statement:

The entrance into the dining room/kitchen area from the lounge room is a square archway. On the architrave to that entrance archway is a mirror with the NRL Balmain Tigers symbol etched into it. Both Alan and I are Balmain supporters and I have seen that mirror many times. I saw that the edge of the mirror where the frame is was broken away on the right hand side. Again, this was not like that the last time that I saw it which would have been Tuesday. I would have noticed if there was anything wrong with that mirror.

1. I indicated at the time of argument that the evidence had modest probative value. I remain of that view. But I was not persuaded that there was a danger of unfair prejudice. The matters raised by Mr Smith would be amenable to directions by me to ensure the evidence was not misused by the jury by giving it greater weight than it deserves. For example, the terminology used by Mr Richard Henry, "would have noticed", could either indicate something less than definitive; or it could mean that the object was of such interest to the witness that he would necessarily have noticed any damage to it. The jury can use their commonsense in evaluating that type of issue.

1. For these reasons I ruled that the evidence of what Mr Richard Henry said about his observations in the home of the deceased on 19 January 2012 were admissible.

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Decision last updated: 28 August 2013