R v Rogers (No 6) - [2019] NSWSC 688

Supreme Court

New South Wales

Medium Neutral Citation: R v Rogers (No 6) [2019] NSWSC 688
Hearing dates: 21 May 2019
Date of orders: 21 May 2019
Decision date: 21 May 2019
Jurisdiction: Common Law
Before: Lonergan J
Decision:
The reference in the evidence of Rosalie Douglas to “dead man walking” is excluded.

Catchwords: CRIMINAL LAW – EVIDENCE – admissibility – lay opinion evidence – whether evidence of the opinion is necessary to obtain an adequate account or understanding of the witness’s perception of the matter or event – exclusion 135
Legislation Cited: Evidence Act 1995 (NSW) ss 76, 78, 79 and 135
Cases Cited: Lithgow City Council v Jackson [2011] HCA 36
R v Van Dyk [2000] NSWCCA 67
Category: Procedural and other rulings
Parties: Regina (Crown)
Warren Rogers (Accused)
Representation:
Counsel:
C Maxwell SC with 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 Crown has taken objection to a phrase “dead man walking” that is to form part of the evidence of a defence witness, Rosalie Douglas. The phrase was included in the account given by Ms Douglas at the first trial in July 2018 [at T580.46 to T580.49] as to her observations of the accused during a particular period in which he was separated from his wife:

“He was like a dead man walking. He was pale. Warren was an athletic sort of person, always upright, stood upright and he was stooped and pale and an emotional mess, absolutely dead man walking.”

The submission of the Crown prosecutor is, in short, that the evidence is opinion evidence and therefore inadmissible pursuant to s 76 of the Evidence Act 1995 (NSW) (“the Act”), that it is not expert opinion evidence, and is therefore not admissible pursuant to the exception to the rule of exclusion that is contained in s 79 of the Act, and that the evidence does not fall within the exception provided for lay opinion evidence contained in s 78 of the Act.
The relevant provisions are:

76   The opinion rule
(1)    Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
(2)    Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
78   Exception: lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a)   the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and
(b)   evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.”

79 Exception: opinions based on specialised knowledge
(1) If a person has…

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 6)

Details

AGLC: R v Rogers (No 6) [2019] NSWSC 688
Case: [2019] NSWSC 688
Decision Date: 21 May 2019

CaseChat Overview and Summary

The case of R v Rogers (No 6) before the High Court involved a criminal trial where the admissibility of lay opinion evidence was a critical issue. The defendant, Rogers, was on trial for various criminal charges, and the court needed to determine whether certain lay opinion evidence presented by a witness was admissible. The crux of the matter lay in the interpretation and application of s 135 of the Evidence Act, which sets out the circumstances under which lay opinion evidence is admissible. The prosecution argued that the opinion evidence was necessary to obtain an adequate account or understanding of the witness’s perception of the matter or event, while the defence contended that the evidence was inadmissible under s 135.

The legal issues before the court centred on the interpretation of s 135 and the threshold it sets for the admissibility of lay opinion evidence. Specifically, the court had to determine whether the evidence in question was necessary to obtain an adequate account or understanding of the witness's perception of the matter or event. The court also had to consider the purpose of s 135 and whether it was intended to exclude or admit such evidence in the context of the facts of the case. The central question was whether the opinion evidence was essential for the witness to provide a complete and accurate account of their observations.

The court held that the opinion evidence in question was not admissible under s 135 because it did not meet the criteria of being necessary to obtain an adequate account or understanding of the witness's perception of the matter or event. The court emphasised that the purpose of s 135 was to exclude lay opinion evidence unless it was necessary to achieve the aforementioned purpose. The court found that the witness's testimony, without the opinion evidence, was sufficient to provide an adequate account of their observations. Consequently, the opinion evidence was deemed inadmissible, and the court excluded it from consideration in the trial. The decision underscored the importance of adhering to the statutory requirements for the admissibility of lay opinion evidence and the need for a careful analysis of the specific circumstances of each case.

Orders