Citation: R v Grogan (No 2) [2013] NSWSC 1192
Court: Supreme Court of New South Wales
Date: 27 August 2013
Judge(s): R A Hulme J
Background
The accused was charged with the murder of a man who died in April 2012 from injuries the Crown alleged were sustained in a January 2012 assault at his home. The Crown's case was that the accused attended the deceased's home, assaulted him, and stole his laptop computer.
On the night of the alleged assault, police and witnesses observed the accused running from the scene on three separate occasions: fleeing a rear laneway carrying the deceased's belongings, hiding inside the deceased's home and disappearing before police could speak with him, and then running away when an officer called out to him by name in the street.
The Crown sought to lead evidence of these three episodes as "flight" evidence, from which the jury could draw an inference of consciousness of guilt. Defence counsel objected, arguing that the danger of unfair prejudice outweighed the probative value of the evidence.
Legal Issues
- Whether the three episodes of flight were sufficiently probative to be admitted in evidence
- Whether the danger of unfair prejudice to the accused outweighed that probative value, such that the evidence should be excluded under s 137 of the Evidence Act 1995 (NSW)
- How the accused's substantial criminal history factored into the prejudice analysis, given that his stated explanation for fleeing was his past experience with police
Decision
The probative value of the flight evidence: Hulme J found that the evidence of flight had significant probative value, particularly the first episode in which the accused was seen running from a rear laneway while carrying items that were subsequently identified as belonging to the deceased. The Crown's position was that on each occasion the accused fled specifically when police arrived, which was capable of supporting an inference that he feared being implicated in the assault and theft.
The accused's explanation and the prejudice argument: The accused had told police in recorded interviews that he ran because of his extensive criminal record and his belief that police would falsely blame him regardless of his actual conduct. Defence counsel argued this left the accused in an invidious position: rebutting the flight inference would require putting his criminal history before the jury, creating substantial prejudice. Hulme J accepted that this created a genuine danger of unfair prejudice.
The balancing exercise: Despite accepting the prejudice risk, Hulme J was not persuaded that it outweighed the probative value of the evidence. His Honour noted that careful jury directions would be required to guard against misuse of any explanatory evidence the accused chose to adduce or allow the Crown to adduce. The fourth alleged episode of flight (leaving Gloucester the following day after agreeing by phone to attend the police station) was not pressed by the Crown, given its inherent weakness as a basis for drawing a consciousness of guilt inference.
Orders Made
- Evidence admissible
Key Takeaways
- Flight evidence carrying high probative value will not necessarily be excluded under s 137 of the Evidence Act 1995 (NSW) simply because rebutting it may expose an accused's criminal history to the jury.
- Where an accused's only credible explanation for flight involves disclosing prior offending and negative experiences with police, that collateral prejudice is a relevant consideration but does not automatically tip the balance against admission.
- Hulme J confirmed that careful jury directions are a recognised tool for managing the risk of misuse when explanatory evidence touching on criminal history is placed before a jury.
- The weakness of individual episodes of alleged flight matters: the fourth episode was not pressed precisely because its capacity to support a consciousness of guilt inference was too uncertain.
- The decision is consistent with the approach taken in R v Taranto [1999] NSWCCA 396, where the Court of Criminal Appeal indicated it had been open to admit flight evidence even where the accused's rebuttal explanation carried its own prejudicial dimensions.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Penza and Di Maria v R [2013] NSWCCA 21
- R v Cook [2004] NSWCCA 52
- R v Taranto [1999] NSWCCA 396