R v Rogerson; R v McNamara (No 10)

[2015] NSWSC 1067

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 10) [2015] NSWSC 1067
Hearing dates:	3 August 2015
Date of orders:	06 August 2015
Decision date:	06 August 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See paragraph [18]
Catchwords:	CRIMINAL LAW – Evidence – Application by Crown for view of locations relevant to the Crown case – Where view would assist the jury in understanding the evidence – Where application supported by both accused – Application granted
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Ha v R [2014] VSCA 335
Category:	Procedural and other rulings
Parties:	Regina – Crown Roger Caleb Rogerson - Accused Glen Patrick McNamara – Accused
Representation:	Counsel: Mr C Maxwell QC - Crown Mr G Thomas – Accused Rogerson Mr C Waterstreet – Accused McNamara   Solicitors: Director of Public Prosecutions - Crown Katsoolis and Co – Accused Rogerson Kings Law Group – Accused McNamara
File Number(s):	2014/157408; 2014/156921
Publication restriction:	Nil

Judgment

INTRODUCTION

1. Roger Caleb Rogerson and Glen Patrick McNamara have each pleaded not guilty to an indictment alleging:

1. the murder of Jamie Gao (“the deceased”) on 20 May 2014; and

2. the supply, on the same day, of a prohibited drug, namely 2.78 kilograms of methylamphetamine, being an amount not less than the large commercial quantity applicable to that drug.

2. By notice of motion dated 31 July 2015 the Crown has made application that in the course of the trial of the two accused a view be held, pursuant to s. 53 of the Evidence Act 1995 (NSW) (“the Act”), of various locations where, on the Crown case, relevant events took place. The notice of motion is supported by an affidavit Karl Robert Prince, a solicitor employed by the NSW Director of Public Prosecutions. Mr Prince is instructing the Crown Prosecutor in the trial.

THE CROWN CASE

3. In order to place the application in its proper context it is necessary to set out the relevance, to the Crown case, of those locations which it is proposed will be viewed. In this regard, the Crown case statement filed in the proceedings details the following events on 20 May 2014 which was the day on which it is alleged that the deceased was murdered:

17.   During the morning of 20 May 2014 McNAMARA was in telephone contact with ROGERSON.

18.   At approximately 11.37am McNAMARA used a payphone in the Cronulla mall to telephone the deceased. The Crown will allege that this was to confirm a meeting later that day when the deceased would supply the three kilograms of methylamphetamine.

19.   At approximately 12.04pm the white Ford Falcon station wagon, registration BV67PX drove in to the underground car park of the Cote D’Azur apartments. The vehicle exited the car park at 12.10pm.

20.   At approximately 1.16pm ROGERSON arrived at rent a Space, Padstow driving his silver Ford Falcon station wagon, registration AF70SR. McNAMARA was seated in the passenger seat at the time.

21.   ROGERSON parked in the vicinity of storage shed 803 and both he and McNAMARA walked to, and then entered, storage shed 803. McNAMARA was wearing a hooded jumper and was carrying something under his arm as he walked. At approximately 1.25pm ROGERSON and McNAMARA drove away in ROGERSON’s vehicle.

22.   At approximately 1.33pm the white Ford Falcon station wagon, registration BV67PX was driven along Arab Road, Padstow. The vehicle parked on the northern side of Arab Road near, and facing, Davies Road. The Crown will allege that this vehicle was driven by McNAMARA.

23.   Moments after the white Ford Falcon drove on Arab Road, the silver Ford Falcon station wagon, registration AF70SR owned by ROGERSON drove on Arab Road and performed a u-turn outside Mick’s Meats and parked on the street outside that business’s car park.

24.   At approximately 1.39pm the deceased’s white Nissan Sylvia vehicle, registration BW043W arrived in Arab Road, Padstow. The deceased was driving the vehicle and CHAN and FUNG were passengers.

25.   As the deceased drove on Arab Road, ROGERSON moved his vehicle from outside Mick’s Meats and parked in the car park of that business. The deceased parked in the space vacated by ROGERSON.

26.   The deceased got out of his vehicle carrying a black back pack and walked to the white Ford Falcon, registration BV67PX which the Crown alleges was driven by McNAMARA. The deceased got in to the vehicle, while CHAN and FUNG remained with the deceased’s vehicle. The Crown will allege that the backpack carried by the deceased contained the three kilograms of methylamphetamine that the deceased intended to supply to McNAMARA.

27.   ROGERSON exited the Mick’s meats car park in his silver Ford Falcon station wagon, registration AF70SR and followed the white Ford Falcon station wagon, registration BV67PX containing the deceased and McNAMARA along Arab Road and on to Davies Road.

28.   At approximately 1.42pm the white Ford Falcon station wagon, registration BV67PX driven by McNAMARA and containing the deceased, arrived at Rent a Space, Padstow.

29.   McNAMARA parked the vehicle outside storage shed 803. McNAMARA opened the roller door to storage shed 803, and then opened the rear passenger door of the vehicle to allow the deceased to walk into the storage shed at approximately 1.45pm. McNAMARA closed the roller door when both he and the deceased were inside.

30.   At approximately 1.46pm ROGERSON’s silver Ford Falcon station wagon, registration AF70SR arrived outside storage shed 803. ROGERSON drove a lap around the complex then parked in an adjoining driveway.

31.   At approximately 1.49pm ROGERSON entered storage shed 803 and closed the roller door behind him.

32.   At approximately 1.58pm ROGERSON exited storage shed 803 and moved his vehicle to park outside storage shed 803, directly behind the white Ford Falcon station wagon, registration BV67PX. He then re-entered the storage shed and closed the roller door.

33.   The Crown will allege that the deceased was killed some time between entering the storage shed with McNAMARA at 1.45pm, and ROGERSON exiting the storage shed to move his vehicle at 1.58pm.

34.   At approximately 2.03pm McNAMARA emerged from the storage shed. He was no longer wearing the hooded jumper that he had been wearing when he arrived with the deceased. Instead, McNAMARA was wearing a pink t-shirt.

35.   At approximately 2.09pm McNAMARA exited the storage shed and removed an empty silver surf board cover from the rear of the white Ford Falcon station wagon, registration BV67PX. He then re-entered the storage shed.

36.   At approximately 2.18pm McNAMARA and ROGERSON dragged the silver surf board cover from the storage shed and loaded it in to the rear of the white Ford Falcon station wagon, registration BV67PX. The Crown will allege that the silver surf board cover contained the body of the deceased. Both McNAMARA and ROGERSON placed a number of office chairs from inside the storage shed on top of the silver surfboard cover in the rear of the vehicle.

37.   At 2.22pm ROGERSON and McNAMARA got in to their respective cars and drove out of Rent a Space.

38.   At approximately 3.00pm McNAMARA and ROGERSON arrived at the Cote D’Azur apartments in Cronulla in the white Ford Falcon Station wagon, registration BV67PX, and entered the underground car park. The vehicle also contained the body of the deceased inside the silver surfboard cover, and also the methylamphetamine that the deceased had brought to the meeting with McNAMARA.

39.   CCTV footage from within the lifts at the Cote D’Azur apartments shows McNAMARA in a lift at approximately 3.12pm wearing a pink t-shirt and carrying rope. The Crown will allege that this is the same pink t-shirt that McNAMARA was wearing at Rent a Space earlier in the afternoon.

40.   At about 4.00pm that afternoon McNAMARA and ROGERSON left the Cote D’Azur apartments in the white Ford Falcon station wagon, registration BV67PX and drove to Kennards Hire, Taren Point.

41.   At Kennards Hire, Taren Point, McNAMARA and ROGERSON hired a chain block. This was paid for using McNAMARA’s credit card.

42.   At about 4.50pm the white Ford Falcon station wagon, registration BV67PX returned to the … apartments at Cronulla and entered the underground car park.

43.   CCTV footage from inside the lift at the Cote D’Azur apartments shows McNAMARA and ROGERSON together getting in to a lift on the basement level at approximately 6.24pm.

44.   During the afternoon and evening of 20 May 2014, friends of the deceased became increasingly concerned for his welfare. They attempted to locate the deceased without success. The deceased’s mobile phone, wallet and passport were in his vehicle, which was still parked in Arab Road, Padstow, where CHAN and FUNG were waiting for the deceased to return.

THE PROPOSED VIEW

4. It is proposed that Det. Phillips, the officer in charge of the investigation, be present at the view and that he identify to the jury the following specific locations within the nominated areas:

AREAS 1 - ARAB ROAD PADSTOW

•   Mick’s Meats (2a Arab Road)

•   Guddus Foods (7 Arab Road)

•   Crow Tai Qwon-Do (17 Arab Road)

•   McDonalds Padstow (Cnr Davies Road and Arab Road)

•   Rent-a-space (57 Davies Road Padstow) viewed from the corner of Davies Road and Arab Road

AREA 2 - THE FRONT OF RENT-A-SPACE

•   O’Brien Glass (45 Davies Road Padstow)

•   Entrance to Rent-a-space

AREA 3 - FRONT GATE OF RENT-A-SPACE

•   Entry key pad

AREA 4 - INSIDE RENT-A-SPACE

•   Storage shed 803

•   Shed opened for inspection

•   Rear entrance

•   Rear entry key pad

5. The proposed attendance by Det Phillips would necessitate the presence of a Court Reporter to record (inter alia) what is said by him in pointing out the various locations to the jury.

6. The present application is supported by counsel for both accused. Neither Counsel has made application to extend the locations beyond those nominated by the Crown.

THE RELEVANT STATUTORY PROVISIONS

7. Section 53 of the Act is in the following terms:

53 Views

(1) A judge may, on application, order that a demonstration, experiment or inspection be held.

(2) A judge is not to make an order unless he or she is satisfied that:

(a) the parties will be given a reasonable opportunity to be present, and

(b) the judge and, if there is a jury, the jury will be present.

(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:

(a) whether the parties will be present,

(b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence,

(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,

(d) in the case of a demonstration-the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated,

(e) in the case of an inspection-the extent to which the place or thing to be inspected has materially altered.

(4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.

(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.

CONSIDERATION

8. Before making an order that a view take place, I must firstly be satisfied of each of the matters set out in s. 53(2). In that respect, I am satisfied that each of the accused will be represented by counsel at the view. I will also be present, along with the jury.

9. In determining whether to make an order that a view be held I am also required to take into account (to the extent that they apply to a view, as opposed to a demonstration or experiment) the matters in s. 53(3)(c) to (e) inclusive.

10. Firstly, in terms of s. 53(3)(a), the accused will not be present themselves but will be represented by Counsel.

11. Secondly, in terms of s. 53(3)(b), the significance of the areas which will be viewed will be evident from those passages of the Crown case statement set out at [3] above. I am satisfied that a view of those areas will assist the jury in understanding the evidence of the events which are said to have taken place on the day of the deceased’s death.

12. Thirdly, in terms of s. 53(3)(c), no submission has been made to me that a view might operate in a way which is unfairly prejudicial to either of the accused, nor has it been suggested that a view might be misleading, confusing or the cause of an undue waste of time.

13. Fourthly, s. 53(3)(d) is expressed to apply only to a demonstration and is therefore not relevant.

14. Fifthly, in terms of s. 53(3)(e), although the affidavit of Mr Prince discloses that storage shed 803 is now empty and no longer contains any of the items of furniture that were inside it at the time of relevant events (see in particular the Crown case statement at [36]) it has not been suggested to me that this constitutes a material alteration which would render a view of no assistance or which, worse still, might render a view unfairly prejudicial to one or both of the accused.

15. In light of these matters, I am satisfied that it is appropriate to conduct the view.

16. In the circumstances, and for the purposes of the conduct of the view, I propose to adopt the guidelines set out by Priest JA (with whom Maxwell P and Weinberg JA agreed) in Ha v R [2014] VSCA 335 at [31]-[34]:

“[31] Where a judge in a criminal trial is satisfied in accordance with s 53 of the Evidence Act 2008 that there ought be a view of a premises, place or thing, it may be desirable to swear a “shewer“ (or “shower“) to show the jury the place or thing to be inspected. (Indeed, it has been this Court’s experience that it is a common, although not invariable, practice to swear or affirm a shower; and, in any event, jury keepers have always been sworn for the purpose of the view.) It will be necessary, of course, for the judge and jury to be present, and for the parties be given a reasonable opportunity to be present; and it will be desirable for the jury to be accompanied by a keeper or keepers. A record of what occurred should be kept. This may be achieved by arranging for a video to be made by an appropriate person (without, of course, identifying the jurors); or by causing a shorthand note to be made, which is later read into the trial transcript; or by the judge making, or arranging for, some form of summary to be made, which is later read into the transcript. (This is particularly important, of course, if the view involves a witness giving evidence of some matter whilst the view is conducted.) At the very least, the judge, upon returning to court, should — with any necessary input from counsel — describe what occurred with moderate detail. The degree of detail will, of course, be dictated by the particular circumstances.

[32] The judge’s summary must, of necessity, be confined to what took place — where the jury were taken, which places or things they inspected and from what vantage points. In contradistinction to the position in a trial by judge alone, it will not be necessary for the judge to include any of his or her own conclusions as to what was observable. (One reason for the judge’s reluctance in the present case was a proper concern not to be “directing the jury about what they actually saw“). The summary should also include any questions of substance asked by jurors in the course of the view, together with the judge’s answers. Preferably, the procedure for dealing with such questions should be discussed with counsel before the view commences. And as with other questions asked by the jury in the course of the trial, it may be necessary to invite submissions from counsel before providing an answer.

[33] There is much to be said for the guidance to be found in the New South Wales Bench Book:

It is normal to nominate a person, often the Officer in Charge of the investigation, to be the shower for the purposes of indicating relevant aspects of the scene to the jury during the view in accordance with the evidence given in court.

“A transcript should be made of the view. It is suggested that the police be asked to take a video recording of the view, if practicable, so that it can later be tendered in evidence. The recording should be made so as not to disclose members of the jury, but to record what is said by the shower and, if possible, any questions asked by the jury and the answers given by the shower.”

The preferable course in relation to questions asked by the jury is for them to be put in writing and then vetted by the judge, in consultation with counsel if necessary, prior to being asked of the shower by the judge.

It is usual to swear the court attendants who accompany the jury to and from the view prior to departing from the court. This is to ensure that no person is allowed to communicate with the jury except at the view in the presence of the judge. It is also usual to swear the shower.

[34] Unless steps are taken to record what occurred during a view or inspection, an appellate court may be deprived of the opportunity of properly exercising the task of appellate review. Whether or not one accepts that the right to appellate review is a feature of the right to a fair trial itself, nonetheless it is the duty of a trial judge to ensure that an adequate record is made of significant events so that this Court is capable of carrying out its functions and powers.”

17. I note that the parties have previously been referred to this decision and that the Crown has submitted the guidelines set out by Priest JA ought be followed. No contrary submission has been advanced by counsel for either of the accused.

ORDERS

18. For the forgoing reasons, I order that during the course of the trial, at a time and date agreed upon by the parties, an inspection be conducted pursuant to s. 53 of the Act of those locations set out in Annexure A to the affidavit of Karl Robert Prince affirmed on 31 July 2015.

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Decision last updated: 15 June 2016