Supreme Court New South Wales Medium Neutral Citation: R v Ian DACEY; R v Lee DACEY [2013] NSWSC 1875 Hearing dates: 11 November 2013 Decision date: 15 November 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: Reasons published Catchwords: EVIDENCE LAW - hearsay statements by deceased to various witnesses - maker unavailable - consideration of ss 65(2)(b) and 65(2)(c) of Evidence Act - whether representation made "shortly after" the event - whether circumstances surrounding representation make it unlikely that it was fabricated - whether the contents of representation relevant to determination of circumstances - hearsay evidence to police officer not admissible - interaction between s 65 and s 137 of Evidence Act - all other evidence of previous representations admissible Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Conway v The Queen [2000] FCA 46; (2000) 98 FCR 204 Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 Harris v R [2005] NSWCCA 432; (2005) 158 A Crim R 454 Huynh v The Queen [2013] HCA 6 McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603; (2002) 133 A Crim R 461 R v Ian Dacey; R v Lee Dacey (Supreme Court of New South Wales, Barr AJ, 6 June 2013, unreported) R v Mankotia [1998] NSWSC 295 R v Stokes; R v Difford (1990) 51 A Crim R 25 R v XY [2013] NSWCCA 121 Category: Procedural and other rulings Parties: Regina Ian Dacey Lee Dacey Representation: Counsel W Creasey (Regina) T Hoyle SC (Ian Dacey) D Yehia SC (Lee Dacey) Solicitors: Solicitor for Public Prosecutions (Regina) Armstrong Solicitors Pty Ltd (Ian Dacey) Mandy Hull & Associates (Lee Dacey) File Number(s): 201/333188; 2011/356716 Publication restriction: Not to be published until after verdict Judgment 1On 11 November 2013 I gave preliminary rulings with regard to the admissibility of evidence that was proposed to be tendered in the Crown case in this murder trial of two accused. At the time, due to the exigencies of the situation, and in order to permit the timely running of the trial, I indicated to the parties that I would provide my rulings then, but give my reasons as soon as possible thereafter. The following are those reasons. 2The Crown seeks to place before the jury a number of things said by Peter Robert Dent, the deceased, whilst in a hospital in the days before his death. Reliance is placed by the Crown on s 65 of the Evidence Act 1995, to which I shall refer to as "the Act". Counsel for each of the accused objects to the evidence being led, relying upon the proposition that none of the preconditions in s 65(2) of the Act has been made out. In the alternative, with regard to all of the proposed evidence, it is submitted that I would reject it pursuant to the "discretions" contained in ss 135 and 137 of the Act. Joint submissions were made by the two counsel for the two accused. 3In a previous trial that was aborted, Barr AJ determined that all of the evidence under consideration should be admitted (R v Ian Dacey; R v Lee Dacey (Supreme Court of New South Wales, Barr AJ, 6 June 2013, unreported)). However, defence counsel submitted that, pursuant to s130A of the Criminal Procedure Act 1986, it was "in the interests of justice" for me revisit to the question. That position was adopted in light of the fact that further relevant evidence had come to light since the time of the judgment of his Honour. The Crown Prosecutor explicitly accepted that it was appropriate, pursuant to that section, for me to consider the question afresh. In light of that agreed position of all counsel, as well as my own view that the newly available evidence changes the factual substratum somewhat, I proceed to do so. And in light of the position of the parties, there is no need for me to explore whether the ruling of his Honour should be characterised as an "order" for the purposes of s 130A of the Criminal Procedure Act. Background 4It is necessary first to set out in a very succinct form the Crown allegation, and the response of each accused to that allegation as I understand it at this stage. 5At about 6am on 10 August 2011, the deceased was stabbed in his apartment in an inner suburb of Newcastle. It is not disputed that the accused Ian Dacey wielded the knife. Nor is it disputed that Lee Dacey was present. A number of issues, I have been told, may well arise in the trial, including whether Ian Dacey possessed one of the necessary mental elements for murder, and whether he was acting in defence of himself or his brother Lee Dacey. As for Lee Dacey, I understand that it will be in issue in the trial whether he can be implicated in the stabbing by way of various heads of complicity, including basic joint criminal enterprise (Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, Huynh v The Queen [2013] HCA 6), extended joint criminal enterprise (Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108, McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108), and accessorial liability (R v Stokes; R v Difford (1990) 51 A Crim R 25). 6The deceased died in a hospital on 14 August 2011. It is also an issue in the trial whether the stabbing substantially contributed to his death, in light of various behaviour he is said to have undertaken during his treatment. Aspects of dispute 7All parties were agreed that it was appropriate, and convenient to the smooth running of the trial, for this question as to the admissibility of the hearsay evidence to be determined before it is actually tendered. Pursuant to s 192A of the Act, I agree that that course is appropriate. 8No point was taken about notices having been given of the proposed evidence, pursuant to s 67 of the Act. Nor is it disputed, of course, that the deceased is unavailable, as defined in the Dictionary of the Act. 9Rather, the focus of resistance was on whether the Crown could demonstrate any one of the four preconditions contained in s 65(2). The Crown made it clear that only two subsections were relied upon. The salient parts of the section are therefore as follows: "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: ... (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, or ..." 10The proposed evidence can conveniently be divided into four categories. 11The first is things said by the deceased immediately after he ended an upsetting phone call in the hearing of a nurse, Ms Revett, whilst he was in hospital. 12The second is things said by the deceased to his brother Tony during a telephone call with him in the hearing of Ms Revett. 13The third is things said by the deceased to Dr Sinnaduray about the same topic. 14The fourth and final category is a detailed account of the circumstances of the stabbing given by the deceased to Senior Constable Grob. 15It is convenient to deal with each of those categories of evidence in turn. 1. Things said by the deceased immediately after he ended an upsetting phone call 16The proposed evidence and its context is derived from a statement of Ms Revett that was tendered on the voir dire: "Sometime after my dinner break which was between 5pm and 6pm I was back on the ward when I saw the resident doctor talking to Mr Dent. I remember the doctor was doing his examination of him. About this time I heard the phone ringing from the nurses station and I answered it. A male person on the other end identified himself as Tony and wanted too [sic] speak to Peter. I asked what relation was Tony to Mr Dent and he said his brother. I went and asked Mr Dent if he was happy to receive the phone call and he said he was so I transferred the call to the portable phone and handed it to Mr Dent. I heard Mr Dent say 'Hello'. He then went quiet as if he was listening to the other person. About 10 seconds later I heard Mr Dent say something like, 'You fucking dog, how dare you call me' I observed that Mr Dent was becoming distressed due to his body language and his tone of voice. I told Mr Dent to hang up and he did. After he hung up the phone Mr Dent said to me, 'That was one of the men that stabbed me' I can't remember if Mr Dent said anything else. I walked out and contacted my In Charge Nurse to see what course of action I should take for visitors and phone calls. I can't remember the Nurse's name but it was male. He told me he would come down and see me. In that time I contacted admissions to get phone calls and visitors flagged." (emphasis added) 17The only portion of that paragraph that is objected to as hearsay is the representation of the deceased "That was one of the men that stabbed me". Submissions and Determination 18Although the Crown relied upon both ss 65(2)(b) and 65(2)(c), it was accepted that the test contained in the latter subparagraph is a very onerous one, and the Crown Prosecutor was content for the bulk of his submissions to be founded upon s 65(2)(b). That approach was adopted not only with regard to this piece of evidence, but with regard to all of the proposed evidence. 19The Crown Prosecutor submitted that the statement about who was on the phone was made no more than a matter of seconds after the event of the phone call took place. He submitted that the deceased would not have the slightest motive to fabricate the identity of the person to whom he had been talking, and to provide that fabrication to a member of the medical staff who had been treating him for a serious injury. He also submitted that it was clear that, during the telephone conversation, the deceased was in an emotional state, a matter not conducive to considered fabrication. 20Finally, the Crown indicated that he would make it perfectly clear to the jury that it was not his case that Lee Dacey had personally stabbed the deceased, and that he is not suggesting that the representation "one of the men who stabbed me" should be interpreted as meaning that two men stabbed the deceased. 21Defence counsel submitted that the possibility of fabrication in the circumstances could not be ruled out, and that the Crown had not discharged the "onus" of establishing the matters in s 65(2)(b), although it was accepted that, of all of the pieces of proposed evidence, this was the one least open to criticism with regard to the subparagraph. 22Separately, it was submitted that the ambiguous plurality in the statement of the deceased, in light of the fact that in truth the Crown case is that only Ian Dacey stabbed him, carried with it a possibility of prejudice. That was said to be above and beyond the inevitable prejudice of defence counsel being unable to cross-examination the deceased about his representation if it were admitted. 23I have no difficulty in being satisfied that the statement was made at or very shortly after the asserted fact (that a particular person was speaking to the deceased) occurred. 24On the evidence that I have outlined above, I also come to the affirmative view that the circumstances surrounding the representation make it very unlikely that it was deliberately fabricated. 25For those reasons I consider that the evidence of Ms Revett with regard to the statement of the deceased immediately after he ended the telephone call is admissible pursuant to s 65(2)(b). 26I shall deal with the question of s 135 and s 137 globally at the end of my determination of all admissible material. 2. Things said by the deceased to his brother Tony during a telephone call 27It will be recalled that the subject matter is the things Ms Revett heard the deceased say on the telephone to the man who, on the Crown case, truly was his brother Tony. 28The proposed evidence is as follows: "I went in and told Mr Dent about Michelle and her wanting to speak to him. Mr Dent said he didn't want to speak to her. Between this time and my end of shift at 9:30pm I received a further 2 - 3 phone calls from persons wanting to speak to Mr Dent. None of these people identified themselves and I did not put their calls through. I'm not sure if it was at the end of my shift or the next day when I was on day work I received a call from Grafton Jail from a corrections officer informing me that Mr Dent's brother Tony wanted to talk to Mr Dent. I got the correctional officers [sic] name and told them I would call them back to verify who they were. I went through the John Hunter Hospital phone switch who put me through to Grafton Jail and the same correctional officer I spoke to earlier. The correctional officer again told me he had Tony there who wanted to speak to Peter so I put the call through to the portable phone and gave it to Mr Dent. I overheard Mr Dent say to his brother Tony that he had been stabbed in his back by his girlfriends [sic] two sons who were originally there talking to him in his house. Mr Dent said that the two sons were asking him what drugs he had in his house and wanted to purchase them from him but then they stabbed me and took the drugs and money and left me there to die. After that they had some general conversation then ended the call. Sometime later I ended my shift." (emphasis added) 29The only portion of that paragraph that is objected to as hearsay is the portion that I have italicised. Submissions and Determination 30The Crown Prosecutor submitted that these things were said either towards the end of the day when the deceased was stabbed (it will be recalled, at about 6am on 10 August 2011) or perhaps on the next day. Again it was submitted that there was no reason why the deceased would fabricate a story to his brother, himself in gaol, with regard to the circumstances of the stabbing that led to him being hospitalised with a severe injury. Indeed, it was submitted that the circumstances were to the contrary. 31Defence counsel submitted that the time frame did not comply with the requirement of s 65(2)(b) of being "shortly after" the stabbing. It was also submitted that merely because the deceased appeared to be speaking to a person who was his brother from hospital would hardly lead me to be satisfied that those circumstances made fabrication unlikely. Finally, it was submitted that the fact that the deceased had ingested a number of prohibited drugs made fabrication more likely. 32As Sperling J said in R v Mankotia [1998] NSWSC 295 (a judgment that has been referred to on many occasions since then, including in Conway v The Queen [2000] FCA 46; (2000) 98 FCR 204 and Harris v R [2005] NSWCCA 432; (2005) 158 A Crim R 454), Parliament did not see fit to set a specific limit measured in hours or minutes with regard to the first requirement in s 65(2)(b). Rather, the question whether a representation is made shortly after the event it describes is a matter for "normative judgment". 33Here, the deceased spoke to his brother either on the same day of the stabbing or perhaps on the following day. There had been a period during which he was severely incapacitated, as well as a period during which, according to his treating doctor (to whom I shall come in a moment), he was incoherent. I consider that the Crown, in the circumstances of this case, has established that the statement to the brother of the deceased on the telephone was made shortly after the stabbing. 34I am also satisfied that the surrounding circumstances make it unlikely that the representation was a fabrication. After all, the incarcerated brother of the deceased was hardly a person who was in authority, or was in a position to do anything at all about what had happened. It is also hard to discern any motive the deceased may have had to fabricate a story to his brother from his hospital bed. And whilst the ingestion of prohibited drugs may have affected the reliability of the evidence, I consider that it would not have increased the risk of fabrication to any marked degree. 35In short, I consider that the prerequisites of s 65(2)(b) have been made out by the Crown with regard to this piece of evidence. Things said to the Doctor 36I turn now to the third topic, which is the conversation with Dr Sinnaduray. That occurred at some stage before 8pm on 10 August 2011; that is, no later than 14 hours after the stabbing itself. As I have indicated, there was a substantial period that day during which the deceased was incapable of speaking, and thereafter was incoherent. 37The proposed evidence from the Doctor is in his statement of 31 October 2011: "Sometime later I went back and saw how Mr Dent was doing. At this time the pain medication had worn off and he was co-horrent [sic]. I checked his vitals and found that he was stable. During this time I asked Mr Dent about his stab wounds. Mr Dent told me that he had been stabbed by the sons of the woman he was involved with. I asked Mr Dent what happened and he said there had been an argument over money. I remember that Mr Dent received a phone call from a male who alleged to be his brother. I heard Mr Dent yelling during this conversation. I saw Mr Dent speak to the nurse who was working in the ward." (emphasis added) 38The only portion of that paragraph that was objected to as hearsay is the portion that I have italicised. 39The proposed evidence is also contained in the statement of Ms Revett dated 20 October 2011, and is as follows: "Before the 8 o'clock pill round I received another call from a female saying that it was Peter's partner Michelle and wanted to see how he was going. I told her I couldn't disclose any patient information. Michelle asked if Mr Dent was there and I said I couldn't tell her. Michelle then hung up on me. Around this time Mr Dent was being treated by the RMO and I overheard Mr DENT say to the RMO that it was his girlfriend's two sons that had stabbed him for some drugs and some money." (emphasis added) 40Again, the only portion of that paragraph that was objected to as hearsay is the portion that I have italicised. Submissions and Determination 41The Crown Prosecutor submitted that, in the circumstances, I would again interpret the conversation as having taken place shortly after the stabbing. Despite the submissions of defence counsel to the contrary, I accept that submission. I also consider that the fact that the deceased was speaking to his treating doctor, in circumstances in which the deceased must have known that he had been seriously injured, makes it most unlikely that the deceased was deliberately falsifying the story of what happened to him. One could infer that a patient in that position would be very concerned to tell his treating doctor precisely what had happened, in order to maximise his or her chance of complete recovery. I respectfully reject the submission of defence counsel that perhaps the deceased was fabricating a story to his doctor, in order to lay the groundwork for lies to be told by him in any subsequent investigation by a police officer, as nothing more than speculation. 42I consider that this evidence is admissible. 43In short, I consider that the things said immediately after the distressing phone conversation; the things said on the phone to the brother of the deceased; and the history given to Dr Sinnaduray, comply with s 65(2)(b). 4. Things said to a police officer 44However, I regard the things said to Senior Constable Grob shortly after midday on 11 August 2011 and referred to in detail by him in his statement (and also very briefly by Ms Revett), as being in a different category. 45That conversation took place 30 hours after the stabbing that it described. It also took place about 19 hours after the deceased, on the Crown case, became conscious and coherent. 46It consists of a detailed narrative of the events of the stabbing. And yet the deceased was adamant that he would not make a formal statement. Such a statement, in the normal course, would have been prefaced by an acknowledgment by the deceased not only that it was accurate, and he would "come up to proof" with regard to the statement in court, but also that, if it were untrue, he could be punished. Indeed, the deceased was not even prepared to sign the notebook entry prepared by the police officer with regard to the contents of the statement. 47Not only that, the deceased was well aware that he was speaking to a person in authority whose actions could have adverse consequences for both accused, even without a formal statement from the deceased. 48Furthermore, I consider that the section has been interpreted as permitting use of the contents of the representation itself, as well as other material, in seeking to understand the nature of the circumstances of the representation, for the purposes of s 65(2)(b): see R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603; (2002) 133 A Crim R 461. It is noteworthy that the deceased described himself as a person who "abide[s] by the criminal code". And there is no dispute on the Crown case that the deceased was a drug user and supplier. Such a person may, as a general matter, have little regard for the obligation to tell the truth to police officers. 49Finally, it is accepted by the Crown that, with regard to the important chronological aspect of how soon after the two accused entered the home of the deceased the attack began, the representation of the deceased to the police officer is not consistent with other objective evidence in the Crown case. I consider it a possibility that that discrepancy is the result of fabrication on the part of the deceased designed to inculpate the two accused and exculpate himself in some way, or at the least minimise his own role in the events. 50In short, I am not satisfied that this conversation took place "shortly after" the events that it described, even if one is to construe that phrase with great elasticity. 51Separately, I am not satisfied that the circumstances surrounding that representation make it unlikely that the representation is a fabrication. To the contrary, I am of the view that the circumstances surrounding the representation, construed broadly, give rise to a significant risk that the representation is a fabrication. 52In short, I am not satisfied that the evidence is admissible. 53In light of my lack of satisfaction that either of the preconditions in s 65(2)(b) has been made out by the Crown, there is no need for me to consider ss 135 or 137 with regard to this evidence. Sections 135 and 137 of the Act 54It is now necessary to consider the reliance by defence counsel on ss 135 and 137 of the Act with regard to the evidence that I have found to be admissible. Because s 137 is a more potent protection available to an accused in a criminal trial, there is no need for me to consider s 135 separately. 55Of course, any reliance by the Crown on s 65 of the Act is inherently prejudicial to an accused, in the sense that the jury will not be in a position to assess the demeanour, credibility and reliability of the maker of the representation in the witness box. Furthermore, defence counsel will not be in a position to cross-examine that person. 56Turning to the particular aspects of this trial, as I have said, it was also submitted that the ambiguity in the representations of the deceased, and the inability of defence counsel to clarify them with him by cross-examination, is also prejudicial to the accused. 57As for the first aspect, it must be that that kind of prejudice cannot of itself lead to exclusion. Were it otherwise, s 65 could never be relied upon in a criminal trial by the Crown and would be largely otiose. I consider that the correct approach is to adopt the usual analysis called for by s 137, including the absence of oral evidence and cross-examination, but not to regard those factors as automatically requiring exclusion. 58To my mind, the probative value of all of the hearsay evidence that I regard as admissible is quite high. It consists mainly of a version of events of the stabbing, given by a person was intimately involved, shortly after the event. No doubt there will be questions of credibility, reliability, and weight. But they do not dissuade me for my assessment of probative value, and in any event are not my concern: see R v XY [2013] NSWCCA 121. 59The same may be said of the hearsay evidence as to who was on the phone. The fact that one or other of the accused was telephoning the deceased in hospital after the stabbing may shed light on his state of mind, both at the time of the stabbing and afterwards. 60I do not consider that the ambiguous plurality in some of the statements of the deceased is prejudicial to any great degree. As I have indicated, the Crown Prosecutor has assured me that he will make his case as to who did what at the scene perfectly clear. 61Finally, I accept that the operation of s 65 accrues prejudice to an accused. But it is agreed that I must give the jury a forceful warning about the dangers of hearsay evidence, pursuant to s 165 of the Act. 62In all of the circumstances, I am not satisfied that the danger of unfair prejudice to the accused outweighs the probative value of the evidence that I have determined is admissible. 63Accordingly, the evidence will not be excluded pursuant to ss 135 or 137 of the Act. Rulings made on 11 November 2013 64It is for the foregoing reasons that I made the following evidential rulings: (1)The pressed hearsay statements that are the subject of objection to Nurse Revett are admissible pursuant to s 65(2)(b) of the Evidence Act, and they are not rejected pursuant to ss 135 or 137 of the same Act. (2)The pressed hearsay statements said to be to the brother of the deceased, Tony, on the telephone that are the subject of objection and referred to by Nurse Revett at [9] of her statement are admissible pursuant to s 65(2)(b) of the Evidence Act, and are not rejected pursuant to ss 135 or 137 of the same Act. (3)The pressed hearsay statements to Dr Sinnaduray that are the subject of objection are admissible pursuant to s 65(2)(b) of the Evidence Act and are not rejected pursuant to ss 135 or 137 of the same Act. (4)The pressed hearsay statements to Senior Constable Grob that are the subject of objection are not admissible pursuant to s 65(2)(b) or s 65(2)(c) of the Evidence Act and, accordingly, are rejected, and that includes the recounting by any other person other than Senior Constable Grob of those statements, for example, Nurse Revett at [10] of her statement. ********** 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: 20 April 2016