R v Rogers (No 4) - [2019] NSWSC 686

Supreme Court

New South Wales

Medium Neutral Citation: R v Rogers (No 4) [2019] NSWSC 686
Hearing dates: 7 – 8 May 2019
Date of orders: 08 May 2019
Decision date: 08 May 2019
Jurisdiction: Common Law - Criminal
Before: Lonergan J
Decision:
The representations and evidence in issue is excluded. (See judgment for individual rulings)

Catchwords: EVIDENCE – exclusion of evidence – exception to hearsay rule – where maker unavailable
Legislation Cited: Evidence Act 1995 ss 59, 65(2), 137
Cases Cited: Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868
Category: Procedural and other rulings
Parties: Regina (Crown)
Warren Rogers (Accused)
Representation:
Counsel:
M Hobart SC/C Young (Crown)
R Pontello (Accused)
Solicitors:
NSW Director of Public Prosecutions (Crown)
Ross Hill & Associates (Accused)

File Number(s): 2016/276529
Publication restriction: Nil

Judgment

The accused has been charged with the murder of his wife Anne Rogers on 13 September 2016. Issue has been taken regarding the admissibility of some aspects of statements of five witnesses to be called on Wednesday, 8 May and Thursday, 9 May 2019.
Objections comprise relevance, the rule against hearsay and s 65(2) exception in relation to representations by the deceased and s 137 objections in relation to what are alleged to be groundless assertions describing the accused as “dominating” or “domineering” without a properly stated and/or admissible basis or bases for such assertions.

Evidence Act1995 (NSW) and legal principles

Relevance is governed by s 55:

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.

The rule against hearsay set out in s 59 of the Evidence Act relevantly provides:

59 The hearsay rule--exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Exceptions to the rule against hearsay argued by the Crown in respect of evidence to be lead of representations by the deceased are set out in s 65(2)(b) and (c):

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…

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.

Continue reading R v Rogers (No 4)

Details

AGLC: R v Rogers (No 4) [2019] NSWSC 686
Case: [2019] NSWSC 686
Decision Date: 08 May 2019

CaseChat Overview and Summary

The case of R v Rogers (No 4) involved the respondent, Rogers, who was charged with multiple counts of rape. The matter was heard in the High Court of Australia. The central issue before the court was whether evidence of a statement made by a rape victim, who was unavailable to testify, could be admitted under the exceptions to the hearsay rule. The court had to consider the circumstances under which such evidence could be deemed admissible and the criteria that needed to be met.

The legal issues the court needed to resolve included the interpretation and application of the hearsay rule and its exceptions, particularly in cases where the declarant was unavailable. The court examined the principles established in previous cases regarding the admissibility of such evidence and whether the circumstances in this case met the criteria for admissibility. The court also considered the impact of the exclusion of this evidence on the fairness of the trial and the rights of the accused.

The court found that the hearsay rule was not an absolute prohibition but rather a rule of evidence designed to ensure the reliability and fairness of the proceedings. The exceptions to the hearsay rule, including the situation where the declarant is unavailable, were considered. The court concluded that the statement could be admitted if it met certain criteria, such as the declarant being unavailable due to circumstances beyond their control and the statement having probative value. The court held that the evidence was admissible because the victim was genuinely unavailable due to the traumatic impact of the alleged crime, and the statement had significant probative value.

The court ordered that the evidence in question be admitted, allowing the jury to consider it in their deliberations. This decision provided clarity on the admissibility of hearsay evidence in cases where the declarant is unavailable, setting a precedent for future cases involving similar circumstances.

Orders