Citation: R v Grogan & Slacke (No 1) [2013] NSWSC 1191
Court: Supreme Court of New South Wales
Date: 13 August 2013
Judge: R A Hulme J
Background
The accused Jason Grogan faced charges arising from an alleged assault and robbery at the home of Alan Henry in Gloucester on 10 January 2012. A co-accused, Natasha Slacke, faced a charge of being an accessory after the fact, alleged to have taken steps to cover up the offence and assist Grogan in evading justice.
Mr Henry sustained serious head injuries in the incident and was hospitalised for several months, spending a significant portion of that time in intensive care. He died on 19 April 2012, approximately three months after the alleged assault, with evidence suggesting his death resulted directly from the injuries he sustained.
There were no eyewitnesses to the incident itself. The Crown's case relied heavily on circumstantial evidence, making Mr Henry's own statements about what happened to him particularly significant. Those statements were made to his former wife and daughter during his hospitalisation, at a time when he was no longer in an insensible state.
Legal Issues
- Whether Mr Henry's out-of-court statements to family members were admissible as hearsay evidence under s 65(2) of the Evidence Act 1995 (NSW), given that the maker of the representations was unavailable (having died)
- Specifically, whether statements made approximately five weeks after the alleged assault qualified as being made "when or shortly after" the asserted fact occurred under s 65(2)(b), bearing in mind Mr Henry had been in a coma for much of that intervening period
- Whether the probative value of the statements was outweighed by a danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW), particularly in relation to the emotive term "bashed" and the characterisation of Grogan as "a very dangerous man"
Decision
Hulme J identified the admissibility question under s 65(2) as genuinely difficult, noting the authorities on the proper construction of s 65(2)(b) and (c) were not settled and that the facts presented a novel situation. Rather than resolve that question, his Honour turned first to the prejudice objection under s 137, taking the view that if exclusion was warranted on that ground, the s 65 question would become unnecessary to decide.
On the prejudice question, his Honour first addressed the characterisation of Grogan as "a very dangerous man." The Crown Prosecutor conceded this portion should not be led, accepting that its meaning was unclear and that it carried a real risk the jury would misuse it against both accused. That aspect of the statements was accordingly set aside without formal ruling.
The more contested question concerned Mr Henry's statement that he had been "bashed" by Jason. Hulme J accepted the evidence had significant probative value in the context of a largely circumstantial Crown case. However, his Honour concluded the term "bash" was inherently emotive and carried uncertain meaning: whether Mr Henry intended to convey a minor or severe assault was impossible to determine, given he was unavailable for cross-examination. Given that the level of violence and Grogan's intent at the time were critical issues for the jury, admitting the word "bashed" risked foreclosing careful analysis of how the injuries were sustained and with what intention.
His Honour also considered whether the statement could be admitted in a truncated form, confining it to Mr Henry saying "Jason did it." That approach was rejected because the phrase "it" derived its entire meaning from the surrounding reference to being "bashed." Removing that context would leave the statement meaningless. Accordingly, the whole of the relevant conversations between Mr Henry and his daughter, and any similar subsequent conversations, were excluded.
Orders Made
- The statement that Mr Henry had been "bashed to the shit house" and associated conversations with Ms Susan Henry on 15 February 2012, and any subsequent similar conversations, were excluded from evidence.
- The portions of statements in which Mr Henry described Grogan as "a very dangerous man" were also not to be led, following the Crown Prosecutor's concession.
Key Takeaways
- Under s 65(2) of the Evidence Act 1995 (NSW), the admissibility of hearsay statements made by an unavailable maker raises genuinely unsettled questions where significant time elapsed between the asserted facts and the representations, particularly where the maker was incapacitated for much of that interval.
- Where a s 137 prejudice objection would independently resolve an admissibility question in an accused's favour, a court may decline to determine the s 65 gateway question if doing so is unnecessary.
- Emotive or ambiguous language in a deceased person's out-of-court statement can ground exclusion under s 137 where the maker is unavailable for cross-examination and the ambiguity directly concerns a fact in issue, such as the level of violence or the accused's intent.
- A statement cannot be surgically reduced to remove prejudicial elements if the remaining words derive their entire meaning from the excised portion. Hulme J declined to admit "Jason did it" in isolation because those words were only intelligible by reference to the preceding reference to being "bashed."
- Characterisations of an accused as "dangerous," where their provenance is unknown and could reflect prior conduct rather than the events charged, carry a significant risk of misuse by a jury and may attract exclusion on prejudice grounds.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 65(2), 137
Cases
- 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