On appeal from the Supreme Court of New South Wales
Representation
G O'L Reynolds SC with G D Wendler and D A Ward for the appellant (instructed by Kings Law Group)
S C Dowling SC with E Balodis and A L Bonnor for the respondent (instructed by Director of Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
McNamara v The King
Evidence – Criminal trial – Joint trial – Discretionary exclusion rule – Where appellant and co‑accused convicted of murder and supplying large commercial quantity of methylamphetamine – Where appellant sought to lead evidence at trial that co‑accused admitted participation in several homicides and other criminal violence to establish defence of duress – Where evidence excluded because unfairly prejudicial to co‑accused – Where s 135(a) of Evidence Act1995 (NSW) permits court to refuse to admit evidence if probative value substantially outweighed by danger of unfair prejudice to "a party" – Whether "a party" includes co‑accused in joint criminal trial.
Words and phrases – "a party", "discretionary exclusion", "evidence", "interests of justice", "joint criminal trial", "joint indictment", "jointly charged", "proceeding", "reasons of principle and policy", "right to adduce admissible evidence", "unfairly prejudicial".
GAGELER CJ, GLEESON AND JAGOT JJ. Section 135(a) of the Evidence Act 1995 (NSW) ("the Evidence Act") empowers a court to refuse to admit evidence, that is relevant and otherwise admissible in "a proceeding", if the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to "a party". The question in this appeal is whether "a party" includes a co-accused in a joint criminal trial. The answer is that it does. The Court of Criminal Appeal of the Supreme Court of New South Wales was correct so to hold, and the appeal must be dismissed.
To explain that answer in a manner responsive to the argument of the appellant, it is necessary to say something of the nature of a joint criminal trial, to examine the antecedent common law pertaining to the exclusion of evidence sought to be adduced by a co-accused, and to explain more fully how the scheme of the Evidence Act applies to a joint criminal trial.
Background to the appeal
The appellant, Glen McNamara, and his co-accused, Roger Rogerson, were tried by a jury before Bellew J in the Supreme Court of New South Wales on a single indictment presented by the Director of Public Prosecutions on behalf of the Crown in right of the State of New South Wales. The indictment charged them jointly with one count…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
McNamara v The King [2023] HCA 36
Case
[2023] HCA 36
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Glen McNamara against his conviction for murder and supplying a commercial quantity of methylamphetamine, alongside his co-accused Roger Rogerson. McNamara sought to introduce evidence that Rogerson had admitted to other homicides and violent acts, intending to use this to support his defence of duress. The trial judge excluded this evidence on the grounds that it was unfairly prejudicial to Rogerson.
The central legal issue before the High Court was whether the term "a party" in section 135(a) of the *Evidence Act 1995* (NSW) included a co-accused in a joint criminal trial. This section allows a court to refuse to admit evidence if its probative value is substantially outweighed by the danger of unfair prejudice to "a party". McNamara argued that the common law right to adduce admissible evidence of innocence, preserved by section 9 of the *Evidence Act*, necessitated a construction of section 135(a) that did not permit the exclusion of evidence solely because it was prejudicial to a co-accused.
The High Court reasoned that the *Evidence Act* was not intended to operate as an exhaustive code, and section 9(1) preserves common law principles unless expressly or by necessary intendment displaced. However, the Court found that the scheme of the *Evidence Act*, particularly section 135(a), applied to joint trials and that the term "a party" in that section encompassed a co-accused. The Court held that the discretion to exclude evidence under section 135(a) could be exercised to prevent unfair prejudice to any party, including a co-accused, in a joint trial. The exclusion of the evidence was therefore permissible.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
To explain that answer in a manner responsive to the argument of the appellant, it is necessary to say something of the nature of a joint criminal trial, to examine the antecedent common law pertaining to the exclusion of evidence sought to be adduced by a co-accused, and to explain more fully how the scheme of the Evidence Act applies to a joint criminal trial.Background to the appeal The appellant, Glen McNamara, and his co-accused, Roger Rogerson, were tried by a jury before Bellew J in the Supreme Court of New South Wales on a single indictment presented by the Director of Public Prosecutions on behalf of the Crown in right of the State of New South Wales. The indictment charged them jointly with one count of murder and one count of supplying a large commercial quantity of methylamphetamine. The Crown case was that McNamara and Rogerson engaged in a joint criminal enterprise described as a "drug rip-off". Their plan was for McNamara to lure the deceased, Jamie Gao, a drug supplier, to a storage unit with the methylamphetamine where Rogerson was to pose as a purchaser. Their plan was then to dispossess Gao of the methylamphetamine and to cover their tracks by killing Gao and disposing of his body. McNamara's case was that he was not party to a joint criminal enterprise with Rogerson either to dispossess Gao of the drugs or to kill Gao. His case was that an altercation between Gao and Rogerson occurred at the storage unit. The altercation culminated in Rogerson shooting Gao twice with a gun. Until the shooting, McNamara had been unaware that Rogerson had brought a gun to the storage unit. Following the shooting, he assisted Rogerson handling the drugs and disposing of Gao's body under the duress of Rogerson. Rogerson's case was likewise that he was not party to such a joint criminal enterprise with McNamara, although his story of what occurred was different. His case was that he had gone to the storage unit to assist McNamara as his "second set of eyes". When he entered the storage unit, Gao was already lying dead on the floor. The Crown closed its case on the 49th day of the trial. McNamara and Rogerson then consecutively went into evidence. After giving his evidence in chief, each was cross-examined by counsel for the Crown and by counsel for the other accused. McNamara testified in his evidence in chief that, immediately after the fatal second shot, he asked Rogerson "why? why? why?". He testified that Rogerson in response approached him with the gun pointed directly at his head. McNamara sought to testify that Rogerson said:"I did Drury, I did Drury. I'll do you too. Get up and fucking help me you weak cunt or I'll leave you on the floor lying next to him ... He pulled the fucking knife first, get up and help me or you'll be as dead as him, then I'll kill your girls." The reference to "Drury" was to Michael Drury. McNamara additionally sought to testify to having had a conversation with Rogerson some months earlier. The earlier conversation was said to have occurred on a social occasion and in the context of McNamara having agreed to write a book about Rogerson. During the conversation, according to McNamara, Rogerson told McNamara that Rogerson had shot Michael Drury, had murdered Christopher Flannery and disposed of his body, had murdered Warren Lanfranchi, had arranged the murder of Alan Williams, and had been involved with the murders of Sallyanne Huckstepp and Luton Chu.
Evidence
Evidence Before The Court
Nothing in any subsequent stage of the legislative history of the Evidence Act indicates any change to the policy intent so stated. The section as enacted will be seen to have succeeded in implementing it.Joint criminal trials and the Evidence Act As has been foreshadowed, the construction of s 135(a) is appropriately addressed in the context of a more general examination of how the scheme of the Evidence Act applies to a joint criminal trial. A component of that more general examination involves the operation of s 9(1) of the Evidence Act upon which McNamara relied as the textual basis for his argument that the unfettered common law right of a co-accused to adduce admissible evidence probative of his or her innocence, which he argues to be part of the common law of Australia, requires s 135(a) to be given a confined construction. Section 9 of the Evidence Act provides in full:"(1)This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.(2)Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following –(a)admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court,(b)the operation of a legal or evidential presumption that is not inconsistent with this Act,(c)a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding." Section 9 of the Evidence Act has an operation broader than s 9 of the Commonwealth Evidence Act, which provides "[f]or the avoidance of doubt" that the Commonwealth Evidence Act "does not affect" specified categories of Commonwealth, State and Territory laws. The "common law" to which s 9(1) of the Evidence Act refers "must be understood either as a body of law created and defined by the courts or as a body of law which, having been declared by the courts at a particular time, may in truth be – and be subsequently declared to be – different"[82]. The same must be true, perhaps even more so, of the reference to "equity"[83]. The principles of common law and equity to which s 9(1) refers are therefore not confined to antecedent principles. Nor, as s 9(2) illustrates, are they confined to "fundamental" principles[84]. [82]Western Australia v Commonwealth (1995) 183 CLR 373 at 485. See Meteyard v Love (2005) 65 NSWLR 36 at 67 [118].[83]Aid/Watch Inc. v Federal Commissioner of Taxation (2010) 241 CLR 539 at 549 [23].[84]Compare Coco v The Queen (1994) 179 CLR 427 at 437. But nor does the declaration in s 9(1), that the Evidence Act does not affect the operation of a principle of common law or equity in relation to evidence "except so far as [it] provides otherwise expressly or by necessary intendment", equate to a "stringent" requirement for the manifestation of "a clear expression of an unmistakable and unambiguous intention" to displace such a principle in order for the Act to be construed as doing so[85]. The provision does not enact a principle of strict or narrow construction. Its purpose and effect are merely to confirm that the Evidence Act does not operate to cover the field of the law of evidence. In the language of the Attorney-General of New South Wales in his second reading speech for the Evidence Act, "whilst the [Act] codifies many aspects of the law of evidence, it is not intended to operate as an exhaustive code". The Attorney-General specifically referred to the principles of common law and equity which s 9(1) says are not affected by the Act and explained that "because the [Act] is comprehensive, the scope for operation of these principles and rules will be extremely limited"[86].[85]Compare Coco v The Queen (1994) 179 CLR 427 at 437-438.[86]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 24 May 1995 at 114.
Decision
Reasons for decision
GAGELER CJ
CJ, GLEESON AND JAGOT JJ
GORDON AND STEWARD JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
GAGELER CJ,
CJ, GLEESON AND JAGOT JJ,
GORDON AND STEWARD JJ