Citation: R v Grogan (No 3) [2013] NSWSC 1193
Court: Supreme Court of New South Wales
Date: 27 August 2013
Judge(s): R A Hulme J
Background
The accused stood trial for allegedly assaulting the deceased at his home on 10 January 2012. The deceased sustained serious head injuries and died just over three months later. The Crown alleged the assault occurred in the context of a deteriorating relationship between the accused and the deceased, which had culminated in the deceased evicting the accused and his partner from the property some months earlier.
The deceased was unavailable to give evidence at trial. Three items of evidence were sought to be admitted under the "maker unavailable" hearsay exception in s 65 of the Evidence Act 1995 (NSW). Defence counsel objected to all three.
The Court gave rulings on each objection during the trial and then published these reasons.
Legal Issues
- Whether evidence of telephone threats allegedly made by the accused to the deceased, as reported by a friend of the deceased, was admissible under s 65(2)(b) or (c) of the Evidence Act 1995 (NSW)
- Whether that same threats evidence should be excluded under s 137 of the Evidence Act, on the basis that its probative value was outweighed by the danger of unfair prejudice
- Whether evidence of apparent animosity between the accused and the deceased was admissible under s 65
- Whether evidence of items found in disarray at the deceased's home was admissible under s 65, or should be excluded under s 137
Decision
Threats evidence: excluded under s 137
The Court accepted that the evidence of alleged telephone threats could satisfy the requirements of s 65(2)(b) or (c). At least one occasion on which the threats were reported to the witness occurred the day after the relevant telephone call, satisfying the "shortly after" requirement. The absence of any obvious motive to fabricate, and the confidential nature of the disclosure, supported reliability.
However, the Court excluded the threats evidence under s 137, finding that its probative value was outweighed by the danger of unfair prejudice. The threats were made approximately six months before the alleged assault, and the accused had been in the vicinity of the deceased's home during that period without incident. The evidence carried significant temporal vagueness, the deceased had often been intoxicated when making the representations, and the defence had no meaningful ability to test the circumstances of those conversations. The primary risk was that the jury would engage in impermissible propensity reasoning, treating the prior threats as evidence that the accused was likely to have carried out an assault months later.
Animosity evidence: admitted
The Court admitted evidence of animosity between the accused and the deceased. This evidence was relevant to contradict the accused's account to police of a friendly visit, and its probative value was not outweighed by any danger of unfair prejudice.
Items in disarray: admitted
Evidence from a relative of the deceased about the condition of items inside the home, observed on 19 January 2012, was also admitted. The Court acknowledged the evidence had only modest probative value, but was not persuaded that the danger of unfair prejudice was sufficient to warrant exclusion. Any risk of the jury over-valuing the evidence could be addressed by appropriate directions, including guidance on the witness's use of the phrase "would have noticed."
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 65(2)(b) of the Evidence Act 1995 (NSW), at least one instance in a series of representations can satisfy the "shortly after" temporal requirement even where the timing of earlier instances is unclear.
- A significant gap in time between alleged prior threats and the charged offence is a weighty factor when assessing whether probative value is outweighed by the danger of unfair prejudice under s 137, particularly where the jury may reason improperly from past conduct to guilt.
- Circumstances that undermine the ability of the defence to test a hearsay representation, such as the deceased's intoxication and vagueness about timing, are relevant to the s 137 balancing exercise.
- Hearsay evidence of modest probative value is not automatically excluded under s 137; where the risk of misuse can adequately be addressed by judicial directions, exclusion is not warranted.
- The admissibility of evidence of animosity and of physical observations at a crime scene turns on whether the probative value of each item, assessed individually, is outweighed by the danger of unfair prejudice.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 65(2)(b), 65(2)(c), 137
Cases
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228