R v Rogers (No 2)

[2018] NSWSC 1217

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogers (No 2) [2018] NSWSC 1217
Hearing dates:	31 July 2018
Date of orders:	31 July 2018
Decision date:	08 August 2018
Jurisdiction:	Common Law - Criminal
Before:	Lonergan J
Decision:	The reading of the relevant part of the note of the psychologist Dr Shaw is not permitted.
Catchwords:	EVIDENCE – representation by accused to health care professional – relevance – danger of unfair prejudice – state of mind – whether representation can rationally affect the assessment of a fact in issue
Legislation Cited:	Evidence Act 1995 (NSW) ss 55, 137
Cases Cited:	R v Cook [2004] NSWCCA 52 R v GK (2001) 53 NSWLR 317; 125 A Crim R 315
Texts Cited:	N Williams et al, The New Law of Evidence (2nd ed, 2009, LexisNexis)
Category:	Procedural and other rulings
Parties:	Regina (Crown) Warren Rogers (Accused)
Representation:	Counsel: N Williams (Crown) R Pontello (Accused)   Solicitors: NSW Director of Public Prosecutions (Crown) Peters Lawyers (Accused)
File Number(s):	2016/27652

Judgment

1. An issue has arisen regarding the admissibility of an account that the accused gave to a psychologist, Dr Elizabeth Shaw on 25 August 2016. The account outlined the circumstances in which the deceased took an overdose of sleeping tablets on 22 August 2016 and is recorded as follows:

W rang to say there had been a bad argument with A; angry @ her non communication, she said something like “no point being here” – he handed her sleeping pills “might as well go them” and rep to his shock she took pills – Immed. called ambulance � hosp. o/n Now home. Wanted to come in early. Spoke to A. Said she was safe + willing to come in. Had heard W’s recount + agreed with it. Agreed to come.

Objection by counsel for the accused

2. Objection was taken to the underlined portion only. Mr Pontello, counsel for the accused argued that the underlined material is not relevant and should not be led from Ms Shaw. The asserted relevance is to the “nature of the relationship between the accused and the deceased”. That is not a fact in issue in the proceedings. He submitted that there is no controversy regarding the nature of the relationship between the accused and the deceased. The material is not relevant and should be excluded on that basis.

3. It was further argued that s 137 applies in that there is a danger of unfair prejudice to the accused, and that any probative value of the evidence is outweighed by unfair prejudice on the basis that the information may well be used by the jury along a path of impermissible reasoning. Mr Pontello argued that it is not the Crown case that the accused wanted the deceased dead at this time when she took the overdose of sleeping tablets (22 August 2016), and therefore any use of the information contained in the note is highly likely to lead the jury to impermissible reasoning that the accused did want her to die then. That was not part of the Crown opening and is not part of the Crown case.

Counter-arguments as to relevance and shy s 137 does not apply

4. The Crown argued that it is relevant to the accused’s state of mind when he had that bad argument on 22 August 2016 with the deceased leading to the deceased impulsively taking the sleeping tablets. His response to the deceased, contained in his account recorded in the note by Ms Shaw, to the words the deceased said that there was “no point being here”, was to hand her the sleeping tablets. This is evidence of his exhibiting control over the deceased and that rather than allowing her to leave the relationship, he is indicating by his behaviour that he is going to stop her from leaving the relationship. He exerts his control over her by giving her the sleeping tablets.

5. The Crown argued that the probative value of him engaging in that conduct is “fundamental evidence” that throws light upon his actions three weeks later. It is also associated with the substantial impairment defence by which he asserts that he lost control, because this is an example of a circumstance where during an argument, instead of losing control, he exhibited control by giving the deceased the tablets and told her to take them. This informs the incident three weeks later when he smothered the deceased in circumstances where he did so allegedly having lost control.

6. The Crown will ask the expert psychiatrist Dr Martin certain questions regarding the period leading up to the death of the deceased, highlighting three trigger points – the first, when the accused found out about the affair, second, the suicide attempt on 22 August 2016 and its circumstances, and third, the confrontation at the time of her death regarding the deceased’s failure to comply with her promise not to contact Mr Langham anymore.

7. The Crown argued that the probative value is high and outweighs any unfair prejudice. The emphasis of s 137 is on unfair prejudice, not any prejudice, so the fact that the evidence may cause prejudice to the accused’s case is not the test.

8. The Crown concluded that it is evidence of such strong probative value regarding the willed attempt on 22 August to give drugs to the deceased in an invitation to “not be here”, that it is not and cannot be outweighed by any unfair prejudice.

9. Further, the Crown suggested that a direction could be given to cure any impermissible reasoning on the part of the jury, to the effect that they cannot use the incident described by the deceased in the note as evidence that the accused wanted the deceased to die on that occasion on 22 August 2016.

Decision

10. Section 55 of the Evidence Act provides as follows:

55   Relevant evidence

(1)   The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)   In particular, evidence is not taken to be irrelevant only because it relates only to:

(a)   the credibility of a witness, or

(b)   the admissibility of other evidence, or

(c)   a failure to adduce evidence.

11. It is the Crown case that anger, jealousy and acrimony led the accused to murder the deceased. The context and circumstances of this altercation on 22 August and the accused’s account of it three days later meets that test.

12. The nature of the relationship between the accused and the deceased, particularly in the time leading up to the death of the deceased, is a fact in issue and the account the accused gave to the psychologist in August 2016, only 3 days after the events, could, in my view, rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings.

13. My opinion however is that s 137 should be applied to exclude it. Section 137 provides as follows:

137   Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

14. As stated by Sully J in R v GK (2001) 53 NSWLR 317; 125 A Crim R 315, it is not correct to describe the exercise a trial judge needs to make pursuant to s 137 as a discretionary ruling. As observed by his Honour, s 137 requires a trial judge to make a connected series of findings of law and of fact that engage no discretionary judgment or intuitive response. The trial judge is required to draw a rational conclusion from facts admitted or proved. These connected findings require consideration of the evidence in terms of its relevance, probative value and danger of unfair prejudice to the defendant. That means is there a real risk that the evidence, if admitted, will be misused by the jury in some way that is unfair to the defendant. [1]

    1. N Williams et al, The New Law of Evidence (2nd ed, 2009, LexisNexis) at p 651.

15. As further observed in Williams et al, [2] the fourth stage requires a court to determine where the preponderant weight lies as between on the one hand that probative value, and on the other hand, the danger of unfair prejudice to the defendant. If the preponderant weight favours a factor of probative value, then s 137 does not require the exclusion of the evidence and the evidence ought to be admitted unless there is some other proper basis for its exclusion.

    2. Ibid at pp 651-652.

16. As stated by Simpson J in R v Cook, if the balancing process required results in a finding that the probative value is outweighed by the danger of unfair prejudice, the court is constrained to refuse to admit the evidence. No element of discretion arises. [3]

    3. R v Cook [2004] NSWCCA 52 at [27]-[28].

17. The issue here does not relate to some lack of reliability of the statement made by the accused to the psychologist but to the danger of unfair prejudice to him if admitted into evidence. Consistently with the approach of Sully J in GK, I am required first to consider relevance and I have dealt with that in [10]-[12] of this judgment.

18. Whilst counsel for the accused argued that the relationship between the accused and the deceased was not a fact in issue in the proceedings in that the evidence was clear, rather than in issue, I take the view that given the Crown case is clearly that the jury should reject the substantial impairment argument and accept that the accused was angry, having found out about the deceased’s affair with Jeff Langham and continued to be angry on and from the middle of July, the accused’s account to the psychologist of the events that occurred on 22 August when he and the deceased again argued about their marital relationship is evidence that could rationally affect (directly or indirectly) the jury’s assessment of the probability of the existence of ongoing anger or acrimony in the relationship between the accused and the deceased.

19. I accept that the evidence is reliable and has some probative value, but I am of the view that its probative value is outweighed by the danger of unfair prejudice to the accused. This issue is as identified by Mr Pontello, that the jury will reason that this is evidence that the accused had formed an intention to kill the deceased or “wanted her dead” on 22 August 2016.

20. I am of the view that any direction given to the jury in an effort to cure impermissible reasoning or use of that evidence by the jury in a way that is impermissible, only serves to highlight the unfair prejudice that evidence may well create.

21. The leading from Ms Shaw of that part of her note is not permitted.

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Endnotes

Decision last updated: 22 November 2019