Supreme Court New South Wales Medium Neutral Citation: R v Grogan & Slacke (No 1) [2013] NSWSC 1191 Hearing dates: 12 August 2013 Decision date: 13 August 2013 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Evidence excluded Catchwords: EVIDENCE - criminal - maker unavailable hearsay - s 65 Evidence Act - victim of alleged assault made statements to others some five weeks after attack after recovering from coma - victim later died - whether "shortly after" occurrence of asserted fact - whether ambiguity of statement that victim "bashed" unfairly prejudicial where maker unavailable for cross-examination Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454 R v Kuzmanovic [2005] NSWSC 771 Williams v The Queen (2000) 119 A Crim R 490 Category: Procedural and other rulings Parties: Regina Jason Mark Grogan Natasha Slacke Representation: Counsel: Mr L Carr (Crown) Mr C Smith (Grogan) Mr C Watson (Slacke) Solicitors: Solicitor for Public Prosecutions Legal Aid NSW Raymond Drake Solicitor File Number(s): 2012/17224 2012/17140 Judgment 1HIS HONOUR: The Crown alleges that the accused Jason Grogan assaulted Mr Alan Henry in his home at Gloucester on 10 January 2012 and stole property from him. It also alleges that the accused Natasha Slacke did things after the event in an endeavour to cover up the alleged crime and help Mr Grogan to avoid being brought to justice. 2Mr Henry died a little over 3 months later. There is evidence that his death was a direct result of the injuries he sustained in the alleged assault. 3There were no eyewitnesses to the incident in Mr Henry's home. The Crown case is heavily dependent upon a body of circumstantial evidence. 4This judgment arises from an objection to evidence of what Mr Henry said to his former wife and to his daughter while he was in hospital after the alleged attack on 10 January 2012. Mr Henry had sustained serious head injuries. He was initially taken by ambulance to a local hospital but soon transferred to the intensive care unit at Westmead. He remained in intensive care until 3 February 2012 when he was transferred to the high dependency ward. On 20 March 2012, he was transferred to Auburn hospital where he remained for about a week and a half until a place in a nursing home at Erina became available. Tragically, he died on 19 April 2012. 5It is anticipated that Mr Henry's former wife, Ms Delma Henry, will give evidence that on an occasion when she visited Mr Henry at Westmead, he said to her "That Jason is a dangerous man". He said something to the same effect on a different occasion when she visited him at the nursing home in Erina. 6Mr Henry's daughter, Ms Susan Henry, is also expected to give evidence that on 15 February 2012, when she was visiting him at Westmead in the high dependency unit, they had the following conversation, as set out in her statement of 20 April 2012: He said, "I been bashed to the shit house" I said, "Do you know who did it?" He said, "Jason did it, he's a very dangerous man. I think I'll have to press charges". I said, "Dad, Jason's already in Gaol." He said, "Did say Jason why he did it?" I said, "Not that I know of." 7Mr Henry said similar things on other occasions. Ms Susan Henry said in her evidence on the voir dire that this occurred about three times at Westmead, once at Auburn, and two or three times at Erina. 8The Crown's seeks admission of this evidence pursuant to s 65(2) of the Evidence Act 1995 (NSW). Counsel for each of the accused argue that the evidence is not admissible pursuant to that provision; alternatively that the evidence should be excluded on the basis of its probative value being outweighed by a danger of unfair prejudice: s 137. 9Persuasive arguments as to the s 65 point were presented by the Crown Prosecutor and by Mr Smith, counsel for the accused Grogan. Mr Watson, counsel for the accused Slacke, was content to adopt the submissions of Mr Smith. 10Section 65 is, relevantly, in the following terms: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (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: (a) was made under a duty to make that representation or to make representations of that kind, or (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, 11My attention was invited to a number of authorities dealing with the construction of s 65(2)(b) and (c) such as Williams v The Queen (2000) 119 A Crim R 490; Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454; and R v Kuzmanovic [2005] NSWSC 771. They do not all speak with one voice; that is, the proper construction of the provisions is not well settled. This is especially perplexing in the novel fact situation before me. The statements objected to were made some five weeks after the occurrence of the facts asserted, but Mr Henry was, for the most part of that period, in an insensible state and unable to communicate. I have spent significant time reviewing those authorities but arrived at a point where I considered it more appropriate to determine the second aspect of the objection. If that was to be resolved in favour of the accused, it would render otiose determination of the first aspect. 12The Crown Prosecutor submitted that the evidence was highly probative. During the course of submissions I raised a question about the prejudicial nature of the evidence that Mr Henry referred to the accused Grogan as "a very dangerous man". What he meant by that statement is not at all clear. Whether it was a conclusion Mr Henry had come to from only the events of 10 January 2012, or from Mr Grogan's previous conduct, or a combination of the two, is not apparent. That evidence has minimal, if any, probative value in respect of the facts anticipated to be in issue and I am satisfied that there would be a significant risk of the jury misusing it to the prejudice of both accused. The Crown Prosecutor conceded that he would not lead that part of the evidence of Ms Delma Henry and Ms Susan Henry. 13That leaves the evidence of Mr Henry saying that he had been "bashed" by "Jason". I accept the Crown Prosecutor's submission that in the context of the other evidence in the case, largely circumstantial as it is, the evidence has significant probative value. But there is also a danger of it being misused. 14I see no problem at all with those parts of the statements of Mr Henry that could be regarded as a claim that it was the accused Grogan who was his assailant, subject to something I will say later. But the reference to being "bashed" is problematic. 15"Bash" is an emotive term and minds may differ as to the level of violence it connotes. What level of violence Mr Henry intended to convey by his use of the term is unknown and impossible to know. 16Assuming the jury accept that Mr Henry was assaulted by the accused Grogan, a critical fact in issue in the case of each accused will be the level of violence involved in that assault and the intention Mr Grogan had at the time. Did he inflict grievous bodily harm? And more pertinently in the case of the charge of murder he faces, and the charge of being an accessory after the fact to the infliction of grievous bodily harm with intent to do so faced by the accused Slacke, did the accused Grogan intend a level of violence that would cause Mr Henry really serious injury? 17Hearing evidence that the victim of the assault claimed that he was "bashed" would almost inevitably lead the jury to conclude that the level of violence was considerable and that the level of harm intended was also considerable (even without the extension "to the shithouse"). They might draw support for those conclusions from the nature and severity of the injuries Mr Henry sustained. But, from what I understand of the case, there remains a possibility that Mr Henry sustained some injury, or injuries, by coming into contact with one or more hard surfaces in the vicinity of where the Crown asserts he was assaulted. 18The accused Slacke told the police that Mr Henry had suffered a fall. Whilst I understand that the Crown has evidence that might persuade the jury that the injuries could not have been caused by a fall alone, it might be the case where the jury will be required to consider whether a single punch, or a few punches, resulted in injuries that were sustained both directly and indirectly. But hearing that Mr Henry claimed to have been "bashed", without any elaboration of what he meant by the term, could well divert the jury from an assessment of how the injuries were sustained and, in relation to those that were directly caused, with what intention they were inflicted. 19I have considered whether directions to the jury could serve to ensure that the jury would not give the evidence more weight than it deserves. But what weight does it deserve if one avoids a process of reasoning that "bash" means an assault of considerable violence with an intention to cause considerable harm? 20In my view the evidence of Mr Henry saying that he had been bashed must be excluded. 21I have also considered whether the Crown should be permitted to lead evidence confined to Mr Henry saying, "Jason did it" in response to Ms Susan Henry asking, "Do you know who did it?" However, I have come to the view that taking that simple statement out of the context of the conversation as a whole would simply beg the question, what "it" was. It is the first statement made by Mr Henry, "I been bashed to the shit house" that gives meaning to "it". 22The whole of the conversation between Ms Susan Henry and Mr Alan Henry on 15 February 2012, and any subsequent conversations with her or others in which he made similar assertions, are excluded. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2013