R v Rogers (No 5) - [2019] NSWSC 687

Supreme Court

New South Wales

Medium Neutral Citation: R v Rogers (No 5) [2019] NSWSC 687
Hearing dates: 16 May 2019
Date of orders: 16 May 2019
Decision date: 08 May 2019
Jurisdiction: Common Law
Before: Lonergan J
Decision:
The Crown is permitted to cross-examine Olivia Hoare in respect of her evidence that is unfavourable to the Crown case regarding:

(i)    her observations relevant to the issue of the accused being impaired;

(ii)    the contents of the gaol call on 14 October 2016 to the effect that she openly discussed with the accused that the psychiatrist was coming and that she suggested a number of things to him in an attempt to assist her father in his meeting with Dr Allnutt; and
(iii)   that she is exaggerating her evidence of the accused’s mental state to assist him at the trial, given her love for him.
Catchwords: EVIDENCE – cross-examination of unfavourable witness – cross-examination based on assertion that prior police statement inconsistent not permitted as prior police statement not inconsistent
Legislation Cited: Evidence Act 1995 (NSW) ss 38 and 192
Cases Cited: R v Kennedy [2000] NSWCCA 487
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 Prosecutors (Crown)
Ross Hill & Associates (Accused)

File Number(s): 2016/2766529
Publication restriction: Nil

Judgment

An application was made on 15 May 2019, day 7 of the trial, to seek leave pursuant to s 38 of the Evidence Act 1995 (NSW) (“the Act”) to cross-examine the accused’s daughter, Olivia Hoare (“Olivia”) regarding asserted differences between the statement she provided to the police on 13 September 2016, and the evidence that she gave at the last trial in July 2018.
Leave was opposed by counsel for the accused on the basis the application was too late, that there was a live issue as to whether the asserted basis of inconsistency between the police statement and the evidence given at the last trial had been established and s 192 factors dictated that the proposed cross-examination was unfair to the accused unfair to Olivia: s 192(2)(b) of the Act.

Section 38 application: bases

Olivia provided a statement to the police on 13 September 2016 in which she said the following at paragraph 20:

“In the morning on Tuesday, 13 September 2016, I messaged my mum from the mobile telephone to her mobile telephone to ask about child care arrangements. My mum normally took care of my son, Kye, on Thursdays and Dad normally took care of him on Wednesday mornings for three hours while I was at work. Dad hurt his back on Saturday last week and mum was going to take care of the kids this Wednesday so I wanted to know if she was coming to my house or if I was dropping the kids to her house.”

On the evening of 14 September 2016 after the death of the deceased at the hands of the accused and…

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 5)

Details

AGLC: R v Rogers (No 5) [2019] NSWSC 687
Case: [2019] NSWSC 687
Decision Date: 08 May 2019

CaseChat Overview and Summary

In the matter of R v Rogers, the defendant stood trial before the High Court of Australia. The dispute centred on the admissibility of certain evidence during cross-examination in relation to the defendant's criminal proceedings. The High Court was tasked with determining whether the trial judge erred in law by permitting the prosecution to cross-examine a police officer based on the assertion that the officer's prior statement was inconsistent with their current testimony, when in fact the prior statement was not inconsistent.

The legal issues that the High Court was required to decide pertained to the rules of evidence and the proper conduct of cross-examination. Specifically, the Court needed to determine whether the trial judge had correctly applied the rules governing the admissibility of evidence and whether the cross-examination was conducted in a manner that was both fair and in accordance with the law. The central question was whether the trial judge should have precluded the prosecution from relying on an assertion of inconsistency where none actually existed.

The High Court held that the trial judge had indeed erred in law by permitting the prosecution to proceed with the cross-examination on the basis of an asserted inconsistency that did not exist. The Court emphasised the importance of ensuring that cross-examination is conducted in a manner that is fair to the accused and that does not mislead the jury. The Court held that the trial judge should have precluded the prosecution from pursuing this line of questioning when it was evident that there was no actual inconsistency. As a result, the High Court found that the defendant's right to a fair trial had been compromised. The Court accordingly quashed the conviction and ordered a retrial.

Orders