R v Ian DACEY; R v Lee DACEY

[2013] NSWSC 1875

Supreme Court of NSW|2013-11-11|Before: Button J, Barr AJ

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Source facts

Court

Supreme Court of NSW

Decision date

2013-11-11

Before

Button J, Barr AJ

Catchwords

(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

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Original judgment source is linked above.

Catchwords

(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 DaceyR v Lee Dacey (Supreme Court of New South Wales, Barr AJ, 6 June 2013, unreported) R v Mankotia [1998] NSWSC 295 R v Stokes2011/356716 Publication restriction: Not to be published until after verdict

Judgment (13 paragraphs)

[1]

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.

[3]

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.

[5]

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.

[7]

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.

[10]

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.

[11]

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.

R v Ian DACEY; R v Lee DACEY

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Judgment (13 paragraphs)

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