R v Rogerson; R v McNamara (No 12)

[2015] NSWSC 1099

Supreme Court

New South Wales

Medium Neutral Citation:

R v Rogerson; R v McNamara (No 12) [2015] NSWSC 1099

Hearing dates:

3 August 2015

Date of orders:

11 August 2015

Decision date:

11 August 2015

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

See paragraph [75]; [80]

Catchwords:

CRIMINAL LAW – Evidence – Where counsel for accused opened to jury raising good character of the accused – Where Crown sought leave to cross- examine the accused and lead evidence of bad character in reply – Where advance ruling sought – Whether evidence would unduly add to the length of the trial – Whether evidence important – Weight to be attached to the evidence – Whether unfair to the accused – Advance ruling made granting the Crown’s application for leave

 

CRIMINAL LAW – Evidence – Where counsel for accused opened to jury raising good character of the accused – Where Crown sought leave to cross-examine the accused and lead evidence of bad character in reply - Where counsel for co-accused made application for leave to cross-examine on the same evidence – Where such application made independently of the application for leave made by the Crown – Whether evidence relevant and admissible – Advance ruling made refusing the application for leave

  WORDS AND PHRASES – “Unduly”

Legislation Cited:

Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:

Attwood v R [1960] HCA 15; (1960) 102 CLR 353
Bishop v R [2013] VSCA 273
Donnini v R [1972] HCA 71; (1972) 128 CLR 114
Gabriel v The Queen (FCA unreported 25 June 1997)
Huges (a Pseudonym) v R [2013] VSCA 338
Lowery v R [1974] AC 85
Phillips v The Queen (1985) 159 CLR 45
R v Bracewell (1978) 68 Cr App R 44
R v Gibb and McKenzie [1983] 2 VR 155
R v Rogerson, R v McNamara (No 3) [2015] NSWSC 965
R v Rogerson; R v McNamara (No 8) [2015] NSWSC 1036
R v Fuller (1994) 34 NSWLR 233
R v Miller (1952) 36 Cr App Rep 169
R v PKS (NSWCCA unreported 1 October 1998)
R v Stalder (1981) 2 NSWLR 9
R v Zurita [2002] NSWCCA 22
Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115

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. The joint trial of the accused commenced before me on 27 July 2015 and the opening address of the Crown Prosecutor concluded on 28 July 2015. An opening address was then made by counsel for the accused McNamara (“McNamara”) following which I made an order discharging the jury: R v Rogerson; R v McNamara (No 8) [2015] NSWSC 1036. The trial is now due to commence on 18 August 2015.

2. In the course of his opening address, counsel made a number of references to McNamara’s good character. On the assumption that evidence is given by McNamara consistent with counsel’s opening, the Crown has made an application for leave to cross-examine him on the basis of evidence going to bad character. On the further assumption that McNamara denies what is put to him in that respect, the Crown will then seek to lead a case in reply.

3. Following the Crown’s application, counsel for the co-accused Rogerson (“Rogerson”) made an application for leave to cross-examine McNamara independently of, but in relation to the very same matters which are relied upon by, the Crown.

4. The applications made by the Crown and counsel for Rogerson have been opposed by counsel for McNamara. All parties have asked that I make an advance ruling in respect of each application pursuant to s. 192A of the Evidence Act 1995 (NSW) (“the Act”).

THE OPENING ADDRESS BY COUNSEL FOR MCNAMARA

5. Two particular passages of the opening address of counsel for McNamara give rise to the Crown’s application. The first commences at T54 L49 where counsel said the following:

“Mr McNamara, he puts himself to you, to this court, as a man of good character, as a man of no convictions for criminal conduct, as a man who left the Police Force honourably, unlike Mr Rogerson, we will be suggesting, who was sacked” (emphasis added).

6. The second commences at T56 L17 where counsel said the following:

“That is, Mr McNamara had a representation (sic), a considerably good reputation, as a private investigator capable of working hard and thoroughly and expertly as an investigator. He had been a policeman some ten years, ten to fifteen years earlier, the subject matter of his first book.

You might be also told that as a result of his police work, 20 yards away from this building in Darlinghurst Detectives, that in his character he will put forward, the fact that he wore a wire while he was a policeman undercover and was responsible for the arrest of corrupt policemen and paedophiles and policemen who covered up for paedophiles and paedophiles who made drugs and paedophiles who filmed young children. That is part of his legacy as a policeman.

Having left the Police Force he was put into witness protection from corrupt cops. He left Australia and went to another place, and they found him out but he came back to Australia and started a life here with his wife and raised two children and became a writer, became a private detective, that is a professional private detective doing professional work” (my emphasis).

7. In seeking an advance ruling the parties have asked that I proceed on the assumption that when the trial commences, counsel for McNamara will open to the jury in essentially the same terms as outlined above, and that evidence will be given by McNamara consistent with that opening.

THE EVIDENCE RELIED UPON BY THE CROWN

The relevant background

8. The evidence relied upon by the Crown in support of its application comes from two witnesses, Lok Lam (“Lam”) and Justin McLannen (“McLannen”). Before setting out that evidence, some background is required.

9. As part of its case against the two accused, the Crown alleges that in January 2014 the deceased was an associate of Lam. At that time, Lam and his brother Chun Kit Lam (“Chun”) had been charged with offences against the Drug Misuse and Trafficking Act 1985 (NSW). A Mr Ly, solicitor, acted for Lam and Chun. Ms Diane Elston, a solicitor, was employed by Mr Ly. There is evidence that from time to time the deceased acted as an interpreter at conferences between Lam and his lawyers.

10. Mr Ly briefed Mr Charles Moschoudis, who then practiced as a barrister, to advise, and appear for, Lam. McNamara was retained (apparently by Mr Ly but seemingly on the recommendation of Mr Moschoudis) as a private investigator to assist with obtaining statements to assist Lam’s case. Ultimately, Lam and Chun each pleaded guilty to various offences. Each was sentenced to a term of imprisonment. Subsequent appeals against the asserted severity of their respective sentences were dismissed: Lam v R; Lam v R [2015] NSWCCA 87.

11. On the Crown case, it was through the connections I have outlined that the deceased came to meet McNamara. The Crown will lead evidence from both Lam and Chun for the purposes of establishing (inter alia) the nature and extent of the association between the deceased and McNamara in the period leading up to the deceased’s death. On the basis of other evidence which is more fully summarised in the Crown Case Statement, the Crown will further allege that after they were introduced to each other, the deceased and McNamara became involved in negotiations for the purchase, by McNamara, of a large quantity of methylamphetamine from the deceased. It is the Crown case that on 20 May 2014, the deceased was shot by one or other of the accused when delivering to them approximately 2.7 kilograms of methylamphetamine.

12. Evidence before me on the present application establishes that in January 2014 McLannen was approached by Agent Amy Knox of the Australian Federal Police and was asked to make a statement concerning (inter alia) his knowledge of Lam. A draft (induced) statement in McLannen’s name was prepared by Agent Knox bearing a date of 15 January 2014. It was not signed. That statement outlines McLannen’s association with a person known as BJ Wang (“Wang”) and his offer to Wang to assist in the distribution of prohibited drugs. The statement contains a passing reference to meeting Lam on one occasion. There is evidence that a Mr Bryan Wrench (“Wrench”), solicitor, gave advice to McNamara in relation to the provision of that statement.

13. To assist McNamara in his task of obtaining statements which would assist Lam, Mr Moschoudis sent McNamara a copy of the Brief of Evidence on 27 January 2014. McNamara replied on the same day telling Mr Moschoudis that he would “send a draft statement to (him) soon”. There was no indication in that reply as to the person from whom any such draft statement might be obtained. On 29 January 2014 Ms Elston wrote to McNamara about contacting Wrench. On the following day, McNamara wrote to Wrench in the following terms:

“Bryan, thank you for calling me back. I apologise about the lack of notice.

Andrew Li (sic) solicitor instructs me regarding Chun Lok Lam and Chun Kit Lam. The Lam brothers are charged with “supply commercial quantity” x 2 – Amphetamine Heroin.

The Lam brothers identified Justin McLennen (sic) as one of their associates. They say that Justin was requested to present himself for questioning at the AFP on or about 14 January 2014. The Lam brothers were unable to specify to me the nature of Justin’s interview with the AFP.

I interviewed Justin this week, he provided a statement to me. The features of his statement are his denial to AFP of the Lam brothers being engaged in any illegal drug supply activity. Justin alleges the AFP officer – Amy Knox threatened him with imprisonment if he did not change his version and/or write out a statement implicating the Lam brothers as drug suppliers.

Justin advised at this point a Lawyer came in (you ??). Justin says that soon after he was allowed to leave without the AFP preferring any criminal charges against him.

Justin alleged as he left Ms Knox is alleged to have threatened him with words to the effect of “I am going to arrest you soon”.

My instructions from Andrew Li (sic) are to approach you and ask for your comments in relation to the allegations in Justin’s statement. I appreciate your assistance. I am happy to chat over phone if it is suitable to you.”

14. On 31 January 2014 Mr Moschoudis again wrote to McNamara and enquired:

1. whether “Justin” had signed his statement; and

2. whether a statement had been obtained from Wrench.

15. It is clear from the evidence I have outlined that one of the potential witnesses from whom McNamara was asked to obtain a statement was McLannen. Significantly, according to his correspondence to Wrench of 30 January 2014, McNamara had, by that time, interviewed McLannen and a prepared a statement for his signature.

16. It is against this background that I turn to consider the evidence upon which the Crown relies in support of the present application.

The evidence of Lam

17. Lam has made two statements to police, although only that made on 20 June 2014 is relevant for present purposes. The Crown has identified the following parts of that statement as those upon which it relies, with particular emphasis being placed upon those parts in bold:

“26. Glen asked me if I would still be doing this kind of business after I am finished with this case. I took this to mean that he was referring to the drug business. I told him that I didn't want to be in gaol again. Glen said that he can teach me many things because he was an ex cop and that he knows how the police work. He told me he could teach how to not get followed by the cops. He would teach me how to not get arrested again. He talked about when you do drug deals there are some areas where the police can't follow you. I told him I was not interested anymore and that I just want to win my case and move back to Hong Kong. Glen was speaking to me in very simple English so I could understand him.

27. After this meeting with Glen; Jamie and I left and had lunch together. I told Jamie what Glen had spoken to me about. Jamie told me that Glen had said the same thing to him about how he can teach Jamie how not to get arrested.

28. The following week Glen again rang Jamie and asked him to get me to meet him at 5:00pm at the Meridian Hotel at Hurstville. I was running late and didn't get there till 6:30pm. Jamie and Glen had been there waiting for me from 5:00pm. I know this because they were calling me and messaging me wondering where I was. At this time my mobile number was 0454128923 and I used this number up until the time I went back into custody.

29. Glen told me he will get the statement for me to help with my case soon. He asked me if I had the money yet and I said no. Glen asked me about drugs again. He asked me if I had any drugs to sell as he had customers. He told me he deals with the Italian Mafia. I told him that I didn't have any drugs. Glen told me that he also has drugs and that he deals them. He said do I have any customers or not. I said no. I thought that Glen wanted to do some drug deals with me. He wanted to see if I can get drugs for him or if I wanted to buy drugs from him. I was very worried about Glen because he was an ex cop and I didn't know if I could trust him. I thought that he was trying to set me up and that he might be an undercover cop or something. Jamie was sitting listening to this conversation. I was there with Glen and Jamie for about 15 minutes. When I left Jamie and Glen were still at the hotel together. Jamie translated the entire conversation to me with Glen.

30. A few days after this meeting I met Glen and Jamie again at Hurstville near the train station. This meeting was for Glen and I to speak about adjourning my court matter. Glen said he had some ideas about how we could adjourn my case. He told me he could shoot me in the leg and then I could go to hospital for three months. I said no way was I going to get shot Glen was very serious about shooting me in the leg. He was not joking. He told me he could use a 2.2 bullets or something like that. He said the bullets are really small and it doesn't hurt. He asked me if I had the money for him so he could get the statement. I said I don't have any money for him. Glen said I need to get the money as soon as possible otherwise he wouldn't be able to help me.”

Other evidence relevant to that of Lam

18. In light of submissions made on behalf of McNamara, it is necessary for me to make reference to some other evidence which is said to be relevant to the present application.

19. In a statement made on 26 July 2015, Det. Lindsay outlined (commencing at (3)) that on 23 May 2014 he met with Jasmine Lau, solicitor, who had previously acted for the deceased and who was then acting for Lam and Chun in respect of their appeals against sentence (see [10] above). Ms Lau informed Det. Lindsay that Lam knew the deceased and that he and Chun “wished to speak to the police about his disappearance”. Det. Lindsay also stated that at that time Ms Lau “indicated that (Lam and his brother) were seeking assistance from police for their appeal process”. The statement says nothing further about assistance being given to Lam.

20. On 16 June 2014 Det. Lindsay spoke with Lam and Chun, at which time they each indicated a willingness to provide a statement detailing their knowledge of, and association with, the deceased. Following this, Lam made his statement of 20 June 2014. The passages upon which the Crown relies in support of the present application will only become relevant if the application is granted, and will not otherwise be adduced. There are, however, other parts of the statement upon which the Crown will rely at the trial to establish the association between McNamara and the deceased.

21. Det. Phillips made a statement on 26 July 2014 in which he stated (at (11)) that he was aware that Det. Lindsay had spoken with Ms Lau and that she had indicated that Lam and Chun proposed to lodge appeals against their sentences. Detective Phillips stated that he was also aware that Lam and his brother “may request assistance of police in this regard”. He went on to state the following (at [16]-[17]):

“16. On 26 March 2015 Detective Lindsay and I met with Mr David Clarke, Counsel representing the Lam brothers at that time, and had discussions with him regarding Letters of Assistance in relation to the Lam brothers. Mr Clarke indicated at that time he was awaiting the result of an appeal lodged with the NSW Court of Criminal Appeal on behalf of the Lam brothers. Mr Clarke indicated a further appeal to the Governor of NSW was to be prepared if unsuccessful.

17. On 3 June 2015 I prepared Letters of Assistance for Chun Lok Lam and Chun Kit Lam. The Commander of the Robbery and Serious Crime Squad, Detective Acting Superintendent Sheehy, signed an affidavit supporting the Letters of Assistance. At the advice of Mr Clarke, the Letters of Assistance were addressed to the Governor of NSW.”

22. I have been provided with an unsigned copy of an affidavit of Det. Ag. Supt. Sheehy. Annexed to that affidavit was an unsigned letter from Det. Phillips. It is evident that this material has been, or is intended to be, provided to the Governor of NSW in support of an application for a reduction in the sentences imposed upon Lam and his brother. Having outlined the circumstances in which Lam and Chun came to make their statements to police, the letter from Det. Phillips states the following:

“The evidence contained within the statements of the Lam brothers go towards issues critical in the case against the two accused, including the circumstances surrounding the deceased meeting the accused McNamara in early 2014. The evidence, in particular, of Chun Lok Lam is crucial in establishing the involvement of the accused in drug supply and ultimately the motive for the deceased’s murder. The information provided by both Lam’s (sic) is considered truthful and reliable.

The Lam brothers initiated contact with police regarding this matter and did so in a timely manner shortly after the date of the offence. The assistance of the Lam brothers and their likelihood of being required to give evidence at the trial of the accused McNamara and Rogerson is likely to result in them both having to be placed in protective custody thereby suffering harsher custodial conditions. There is a real risk of retribution against the Lam brothers as a result of their assistance. Not only in regard to their likely evidence against the accused McNamara and Rogerson but also there identification of another male who is suspected of having facilitated the supply of the drugs from Hong Kong.

It is noted that those involved in the murder of the deceased stood to gain a substantial sum of money from the offence and now face the prospect of life imprisonment. Accordingly, the motivation for revenge against those assisting their prosecution is strong.

It is respectfully requested that consideration be given to a reduction in the current sentences of Chun Lok Lam and Chun Kit Lam.”

The evidence of McLannen

23. On 16 January 2015 McLannen made an induced statement to police in which he outlined his association with Wang, and disclosed the fact that he had sold prohibited drugs on Wang’s behalf. McLannen then proceeded (commencing at (15)) to detail a meeting that he had with McNamara in January 2014. For the purposes of the present application, the Crown relies upon McLannen’s account of that meeting, with particular emphasis being placed upon those parts of paragraphs (18) to (26] which are in bold. It is noted that the references to the person “Key” are references to Chun:

15. In January 2014 the AFP called me and I went in to see them. I met a Federal Agent called Amy KNOX and I was told the Lok and Key were locked up for drugs. Agent KNOX asked me to provide a statement against Lok and Key. I refused and called Jamie from outside the AFP building and asked him to get me a lawyer straight away. Jamie arranged for a lawyer who turned up later that afternoon and we left the AFP building without making a statement. I went back to the lawyer's office and discussed things with him before heading home. I never paid the lawyer any money and he never asked me for anything.

16. That same day I went and met Jamie in Hurstville and explained exactly what happened. I told Jamie that the AFP wanted me to give a statement about Lok and Key. Jamie asked me if I made the statement and I said no. He told me not to worry about it.

17. About a week later I was in Hurstville with my partner. We had planned to watch a movie and we were walking around window shopping. I received a call on my mobile from Jamie. I was surprised to see Jamie calling me as it's usually me calling him. Jamie asked me if I could meet him in Hurstville and I told him that I was already here. Jamie told me to meet him at Miss Saigon restaurant. This was a usual eating place for us when we use to hang out at Hurstville.

18. My partner and I walked to Miss Saigon and met Jamie. Jamie was with Terry WONG a female and another male who I didn't know. I asked Jamie what was going on and he said that Lok and Key's lawyer wanted to see me and he was on his way. We walked from Miss Saigon to the train station and waited outside the Priceline shop. We waited for about twenty minutes and my partner was getting anxious, I went down to Forrest Road to have a cigarette with Jamie and asked him what was going on. Jamie told me that this lawyer just wanted to have a word with me and asked to walk with him to his car because his mobile phone was in the car and we could call him and see where he was.

19. Jamie and I walked to his car that was parked in the Treacy Street car park next to the Karaoke bar. As Jamie went to call the lawyer he appeared in the car park. He said, "Sorry I'm late-traffic". I looked over and saw a Caucasian male (white guy), he was large and tubby with short shaved hair all over, maybe a number one. The male was wearing sunglasses and said "since we are here we might as well talk here."

20. The first thing the male said to me is, "Don't be disrespectfully (sic) and take off your sunglasses." He took out a black leather notebook and said, "I am Lok and Key's lawyer and I want to ask you a few things." I said "Okay". He said, "Did you make a statement against Lok and Key?" I said "No". He said, "Do you know what happens to people who make statements?" I said yes." He said, "Are you rat, what’s the go with the second name?" I said, "What second name?" He looked into his notebook and said "Steven." I said, "That's my brother in law."

21. He asked me why I had that name and I didn't know that I did so I just told him it was the AFP'S fuck up. He then went on to say something along the lines of "Do you know what happens to rats that snitch? They end up hanging themselves, when you give them enough rope the guilt kills them". He said, "If they don't know what to do with the rope you may have to give them a hand." I took what he said to mean that he would kill me if I gave a statement.

22. He asked me for my mobile phone number and I saw him record it in his black notebook. His notebook was small and black possibly black leather, it looked like a small diary/notebook.

23. He told me that I had to supply a statement saying that I was only a "hi" "by" friend with Lok and Key. He said he would write up the statement and ring me to make arrangements to meet up and have me sign the statement.

24. I was shitting myself and agreed to what he said. He said to me, "Do you know who I am?" I said "No", he said "I am an ex cop from Kings Cross, I was a bikie and I've seen things you could never imagine." I just nodded my head and agreed with everything he was saying.

25. He said, "Make sure you answer your phone tomorrow." I said, "Okay." He shook my hand and he took a firm grip on my hand and said something along the lines of, "Have you heard of the green dream?" I said "No", he said, "It's something that gets injected into you and you will go to sleep and never wake up". As he held (sic) of my hand he used his other hand to make a gun gesture and was poking the gun he made out of his finger into the back of my palm very hard as he was telling me this. He looked at me and said something like "I would be more than happy to deliver it (Green Dream)." He was staring straight into my eyes and I was so scared. He said, "I have done it in the past." After he finished talking to me, he walked a couple of meters away with Jamie and they started talking to each other. I heard the white guy say "Tie him up and stab him", they were whispering to each other and Jamie was putting his hand over his mouth to cover what he was saying.

26. Jamie walked back and got his jacket out of his car we walked away, I looked back and the white guy was still standing in the car park looking towards us, I said to Jamie "What the fuck was that?" Jamie said, "Nothing don't worry." I was really scared, the white guy really intimidated me and threatened to kill me and when I heard him say 'tie him up and stab him' I wasn't sure if he was talking about me, it made me really paranoid and suspicious of Jamie.

24. McLannen identified McNamara (by a series of photographs) as the male he described at paragraphs (19) and following of the statement.

25. Following McNamara’s arrest a computer was seized from his premises. Bearing in mind the correspondence of 30 January 2014 between himself and Wrench (at [13] above), a document was downloaded from the computer which was headed:

“Statement of Justin McLennan (sic) in the matter of Commonwealth v Loc (sic) & others.”

26. The statement, which was unsigned, was dated 27 January 2014 and was in the following terms (omitting formal parts):

“1. …

2. I am presently 20 years of age. My date of birth is 20th August 1993.

3. On or about 14 January 2014 I received a telephone call from a woman who identified herself as Federal Agent Amy Knox of the Australian Federal Police (AFP).

4. During the telephone conversation agent Knox said to me, “Come to my office at Goulburn Street. I want to talk to you about some drug dealers you know”.

5. I was very scared because of this telephone call. I do not know any drug dealers. I did not know what to do from a legal perspective so on 14 January 2014 I met with Federal Agent Knox at the AFP Sydney Headquarters in Goulburn Street, Sydney. I made the decision to see Knox at AFP Headquarters because what Knox said to me on the phone was so unbelievable the AFP had made a mistake. I believed I could explain to Knox she had made a mistake or a mix up.

6. I met with Knox. I was taken to an interview room within the AFP building in Goulburn Street, Sydney.

7. Knox said to me, “Look at these guys”.

8. Knox showed me pictures of four men of Chinese appearance. Knox pointed to a picture of a man who has now been identified to me as Loc (sic). Knox said to me, ‘Loc (sic) is your boss. He tells you what to do, what drugs to sell and for how much. Give me the details’.

9. I said to Knox, ‘I don’t sell drugs. He doesn’t tell me what to do.’ As I said these words I pointed to the picture of Loc.

10. I said to Knox, “I don’t know anything about him or any of these other guys. They don’t sell drugs, I don’t sell drugs.” Knox said, “Yes you do. You’re a drug dealer too and Loc’s (sic) your boss”.

11. I said, “No he’s not. I’m not a drug dealer”.

12. Knox said, “if you don’t tell me what I want to know you won’t be leaving here today. Instead you’ll be going to straight into custody. I’ll make sure you do between 2 years and 5 years gaol.”

13. I said “I can’t lie and say something I don’t know. I have done nothing. These guys (indicating the photos) have done nothing that I know of”.

14. Knox appeared to be angry. She said, “wait here”. Knox left the room.

15. I sat in the interview room for a long time.

16. Knox came back in the room. I said, “I’ve done nothing. I want to go.” Knox said, “you can’t go. You’ve got to tell me about the guys in these photos.” This conversation repeated. I said to Knox, “I don’t know anything about any drug deals ever.”

17. Knox said, “If you’re scared we can protect. If you write down a statement for me about Loc (sic) being head of the group you’ll be safe. No one is going to kill you.

18. I said, “I am not writing any statement. No one is going to kill me because I don’t know anything about anyone being involved in selling drugs. Do I have to stay here or am I allowed to go home”.

19. Knox left the room again. I waited in the room.

20. After a period of time a lawyer named Brian Wrench came to the interview room to act as my legal representative. During my initial instructions to Mr Wrench I detailed the same conversations, which are contained in this statement. I complained that Knox had wanted me to invent a story that Loc (sic) and the other men in the photos were drug dealers.

21. Soon after my conversation with Mr Wrench I was allowed to leave the AFP building.

22. As I was leaving Knox said to me, “after we finish with Loc (sic) we are coming after you”.

23. I categorically deny being involved in the sale of illicit drugs with any individual or group.

24. I categorically deny having knowledge of any individual or group involved in the sale of illicit drugs.

25. I have read this statement and I agreed that its contents are true and correct to the best of my knowledge and belief.”

27. On 6 May 2015 McLannen made a second statement to police. Commencing at paragraph (3) he stated that he had been shown a copy of the statement found on McNamara’s computer. He went on to say (at [7]):

7. I read this statement and don't know where it came from or who provided it. The statement is not mine and was not provided by me. I can see that it is in my name however whoever typed it misspelt my surname, my surname is spelt McLannen not McLennan.

THE RELEVANT LEGISLATIVE PROVISIONS

28. The present application for an advance ruling is made pursuant to s. 192A of the Act which is in the following terms:

192A Advance rulings and findings

Where a question arises in any proceedings, being a question about:

(a) the admissibility or use of evidence proposed to be adduced, or

(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or

(c) the giving of leave, permission or direction under section 192,

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

29. Part 3.8 of the Act deals with evidence of the character of an accused person:

109 Application

This Part applies only in a criminal proceeding.

110 Evidence about character of accused persons

(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.

(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.

(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.

111 Evidence about character of co-accused

(1) The hearsay rule and the tendency rule do not apply to evidence of a defendant’s character if:

(a) the evidence is evidence of an opinion about the defendant adduced by another defendant, and

(b) the person whose opinion it is has specialised knowledge based on the person’s training, study or experience, and

(c) the opinion is wholly or substantially based on that knowledge.

(2) If such evidence has been admitted, the hearsay rule, the opinion rule and the tendency rule do not apply to evidence adduced to prove that that evidence should not be accepted.

112 Leave required to cross-examine about character of accused or co-accused

A defendant must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.

30. In making the present determination, the provisions of s. 192 are also relevant:

192 Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b) the extent to which to do so would be unfair to a party or to a witness, and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d) the nature of the proceeding, and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

THE RELEVANT PRINCIPLES - THE APPLICATION BY THE CROWN

31. In R v PKS (NSWCCA unreported 1 October 1998) the Court (Wood CJ at CL, Sully and Ireland JJ) set out a series of propositions relevant to the operation of Part 3.8 of the Act:

“1. The first thing that had to be decided by the accused and his legal representatives was whether, his good character not having been put in issue in the Crown case, it should be raised as an issue in his own case.

2. That decision needed to be taken in the light of the provisions of Pt3.8 of the Evidence Act 1995 (NSW), and in particular the provisions of s110 and s112 of that Act.

3. S110(1) gave the accused a clear choice. He could put in issue the proposition that he was "generally a person of good character". Alternatively, he could put in issue the proposition that he was "in a particular respect a person of good character".

4. In the event that he decided to put in issue that he was "generally a person of good character", the accused was vulnerable to an application by the Crown, and made pursuant to s112 of the Evidence Act, to cross-examine him so as to elicit that he had, in fact, prior convictions, albeit old ones, for offences of dishonesty.

5. If he decided to put in issue that he was "in a particular respect a person of good character", namely in respect of sexual misconduct with young children, whether his own children or the children of others, then the accused was not so vulnerable to cross-examination upon his old convictions for dishonesty. That was so because of the terms of s110(3) of the Evidence Act. Such a construction of s110(3) was adopted by Higgins J, of the Federal Court of Australia, in Gabriel v The Queen (unreported: Federal Court of Australia: Full Court, 25 June 1997).

In the light of what is stated in the foregoing propositions, counsel for the accused was entitled, in our opinion, to apply to the trial Judge for rulings on the questions:

(a) whether, if the accused gave evidence that he was "generally a person of good character", his Honour would refuse to permit cross-examination upon the previous offences of dishonesty, so refusing either by the method of refusing leave pursuant to s112 of the Evidence Act; or by the method of excluding such cross-examination in the exercise of the discretion conferred in that behalf by s137 of the Evidence Act; and

(b) whether, if the accused gave evidence that he was "in a particular respect a person of good character", namely in respect of sexual misconduct with young children, his Honour would uphold a submission that s110(3) of the Evidence Act did not permit cross-examination upon the previous offences of dishonesty.”

32. Testimony which is said to raise an accused’s character must evince a conscious decision to intentionally and deliberately adduce evidence of positive good character: Huges (a Pseudonym) v R [2013] VSCA 338 at [23]-[24] per Priest JA (Coghlan JA and Lasry AJA agreeing); Gabriel v The Queen (FCA, 25 June 1997 unreported); R v Fuller (1994) 34 NSWLR 233 (at 236 per Hunt CJ at CL, Bruce and Dowd JJ agreeing). In the present case, given the terms in which counsel previously opened to the jury, and on the assumptions in [7] above, there is no issue that any evidence given by McNamara which was consistent with counsel’s opening would reflect the making of a conscious decision of the kind referred to in the authorities cited above.

33. The provisions of s. 110 of the Act are generally consistent with common law principles in respect of an accused person raising prior good character in the course of proceedings. In R v Stalder (1981) 2 NSWLR 9 Street CJ traced the history of statutory provisions governing the admissibility of evidence of the character of an accused, before observing (at 15):

“It will be seen that from as far back as 1876 it has been part of thestatute law of New South Wales that evidence as to character of an accusedshall be received and dealt with as evidence on the question of guilt andthat evidence as to character may cover not only general repute buthabits, disposition and conduct. These prescriptions of the effect andscope of character evidence do not override the deeply rooted common lawprinciple precluding the Crown from calling evidence of bad charactersolely for the purpose of seeking to establish affirmatively as part of itscase in chief that the accused is a person of bad character and hencecould be regarded as more likely to have committed the crime with whichhe is charged.”

34. His Honour referred to the judgment of the High Court in Attwood v R [1960] HCA 15; (1960) 102 CLR 353 in which the plurality (Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ) said (at 359-360):

“ ‘Bad character’ may be regarded as the contrary of good character. But as a separate and independent fact or matter it can be proved on a criminal trial only in answer to evidence adduced of the accused's good character. It is not excluded as irrelevant to proof of guilt. It is excluded as a matter of policy, policy deeply rooted in principle”.

35. In Stalder (supra) Street CJ also observed (at 20) that the reluctance of the common law to allow evidence of bad character turned essentially upon a recognition of the unfairness to an accused which could result. In this regard, he referred to the judgment of Mason J (as his Honour then was) in Donnini v R [1972] HCA 71; (1972) 128 CLR 114 where his Honour said (at 144):

“It has always been accepted that the introduction of evidence of bad character is exceptional. The long standing policy of the law is against the reception of such evidence on the question of guilt. The section in making provision for cross-examination on prior convictions and bad character is making provision for the reception of that evidence in exceptional circumstances. In exercising the discretion it was for the learned judge to consider the prejudice which would be done to the applicant by reception of evidence of his prior convictions and his experience with drugs and the risk that they would excite the suspicion that the applicant was of restless and irresponsible character and to evaluate the advantage which the applicant might gain from the question put to Mrs Brading and the answer which she gave”.

36. The effect of s. 110(1) of the Act is that an accused is provided with an opportunity to put in issue his good character generally, or his good character in a particular respect. Which of those two courses an accused person takes will largely determine the extent to which any leave might be granted under s. 110. In R v Zurita [2002] NSWCCA 22 Howie J (with whom Hodgson JA and Levine J agreed) observed (at [14]) that the effect of s. 110(1) of the Act is to vary the common law attitude to evidence of good character from a position of “all or nothing”, to one of allowing an accused person to put forward that he or she is either generally, or in a particular respect, a person of good character.

36. Having regard to the provisions of s. 110(3), if an accused’s good character is raised only in a particular respect, any evidence in rebuttal must be limited to that aspect of the accused’s character. In Bishop v R [2013] VSCA 273 Redlich JA observed (at [8]):

“[8] The phrase “in a particular respect” in s. 110 is described by Gans and Palmer as meaning “pertaining to a particular characteristic” such as for example, gentleness, generosity or good citizenship. But it may also relate to a particular context in which relevant conduct has taken place. Thus evidence may for example be adduced by work colleagues as to the defendant’s honesty in his employ or by his relatives as to his good parenting skills. The accused may call evidence which is specifically focussed upon good character relating to the charge or an absence of prior bad character with respect to the specific conduct the subject of the charge. Thus evidence of good character in a particular respect to counter allegations of sexual abuse has been admitted. In R v PKS, a case involving sexual offences against a minor, evidence of good character in respect of young children was admitted. In R v Zurita evidence of a lack of antecedent sexual offences was admitted.”

38. In Huges (supra) Priest JA made the following observations regarding the provisions of s. 110 and s. 112 (at [20]):

“The effect of ss. 110(2) and (3), is that if the accused adduces evidence to prove, either directly or by implication, that the accused person is of good character generally or in a particular respect, the tendency rule and credibility rule (among others) do not apply to evidence to prove that the accused is not a person of good character generally or in that particular respect. Moreover, if it is sought to adduce the evidence of bad character through cross-examination, s. 112 provides that leave is required in order to cross-examine about evidence of a kind referred to — that is, that the accused is not of good character. The general discretions found in ss. 135 and 136 of the Act, to exclude, or to limit the use of, evidence which may be “unfairly prejudicial”, apply to evidence to rebut good character, as does the mandatory obligation in s. 137 to “refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused”. Further, when considering the grant of leave under ss 112, 192 of the Act is engaged. Therefore the judge, when considering whether to grant leave (or to grant it on “such terms as the court thinks fit”), must take into account “the importance of the evidence in relation to which the leave, permission or direction is sought”, and “the extent to which to do so would be unfair to a party”.

39. Later (at [26]) his Honour referred to the judgment of the plurality (Mason CJ, Brennan, Wilson and Dawson JJ) in Phillips v The Queen (1985) 159 CLR 45 at 57-58 where it was observed that the discretion of a trial judge to permit the character of an accused to be attacked by reference to his bad character was one which is to be “sparingly and cautiously exercised.”

40. The observation of Priest JA as to the requirement to take into account the matters in s. 192 of the Act in making a determination such as the present was consistent with the observations of Gaudron, Kirby and Callinan JJ in Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115 at [44]; 126-127. However, the considerations in s. 192 are not exhaustive. Questions of the weight and relevance of the evidence must also be considered: Stanoevski (supra) at [47]; 127.

THE RELEVANT PRINCIPLES – THE APPLICATION BY ROGERSON

41. The application made by Rogerson was made independently of that made by the Crown. The issues, and the applicable principles, differ as between the two applications.

42. The principal issue arising from the application made on behalf of Rogerson is whether the evidence can be said to be relevant. In R v Gibb and McKenzie [1983] 2 VR 155 the Full Court of the Supreme Court of Victoria (Young CJ, Crockett and King JJ) observed (at 163):

“Speaking generally, although the Crown may be inhibited to some extent by the evidence it can lead, an accused should be allowed to lead in his defence, whether by way of calling witnesses, or by a statement from the dock or by way of the cross-examination of any witnesses called at the trial, any evidence which is relevant to his defence: see Lowery v R [1974] AC 85 at p. 102. A trial judge, however, retains a discretion to exclude such evidence in a proper case: R v Darrington and McGauley [1980] VR 353 at p. 385. But such an exercise of discretion will necessarily be rare. It is not to be exercised simply because one accused wishes to elicit evidence of the bad character of another accused” (emphasis added).

43. Because there is more than one accused in the present trial, the test of relevance must be strictly applied: R v Bracewell (1979) 68 Cr App Rep 44. Evidence will be relevant if it tends to show that the version of the facts advanced by one accused is more probable than that advanced by another: Lowery v R [1974] AC 85 at 103.

44. Further, and generally speaking, it is not relevant to enquire into an accused’s character, or to ask questions which tend to show that he has previously committed a criminal offence. The fact that an accused may have committed an offence on one occasion does not, in any way, show that he is likely to commit an offence on any subsequent occasion: R v Miller (1952) 36 Cr App Rep 169 at 171 per Devlin J.

SUBMISSIONS OF THE PARTIES

Submissions of the Crown   

45. The Crown submitted that the evidence of both Lam and McLannen disclosed matters which were fundamentally inconsistent with an assertion by McNamara that he is a person of good character. It was submitted, in particular, that the evidence of McLannen constituted “the complete antithesis of the image (McNamara) would leave to the jury”, such that if the Crown was denied the opportunity to cross-examine McNamara about, and then lead, such evidence, unfairness would result. The Crown went so far as to say that if the present application was refused “significant injustice to the fair prosecution” of the charges against McNamara would eventuate. In making these submissions, the Crown acknowledged the caution with the present issue must be approached (as to which see Phillips (supra) at [39] above). However, it was submitted that to permit McNamara to go to the jury in the way in which counsel had opened, without anything being put to the contrary, would be fundamentally unfair to the Crown.

46. The Crown stressed the importance of the evidence in the terms of s. 192(2)(c) of the Act. It was submitted, in particular, that the evidence of McLannen about what had occurred between himself and McNamara was corroborated by the finding of the statement on McNamara’s computer, and that the contents of that statement were “in complete harmony” with what McLannen says that McNamara told him.

47. The Crown accepted that it was also necessary that I consider the weight and relevance of the evidence. It was submitted that in the circumstances I have outlined, the weight of the evidence of both witnesses was significant. Although the Crown appeared to accept that there may be a distinction in this regard between McLannen’s evidence and that of Lam (due to the availability of independent corroboration of the former) it was submitted that the evidence of Lam nevertheless carried significant weight because it indicated that McNamara had used his position as a private investigator to elicit contacts and sources in order to involve himself in the distribution of illegal drugs.

Submissions of behalf of McNamara

48. Counsel for McNamara submitted that the Crown’s asserted importance of the evidence was “overrated” and that an assessment of such importance involved a consideration of its reliability. In this respect, counsel pointed to the fact that Lam had apparently made his statement without an interpreter, and in circumstances where his English was limited, and that these factors necessarily affected the reliability of his evidence. It was further submitted that Lam’s statement was entirely self-serving and was given “in hope of a reward for assistance”. It was also submitted that the statement exhibited a willingness, on the part of Lam, to “jump on the bandwagon of a ‘high profile’ and serious trial.”

49. Counsel further submitted that the evidence of both witnesses would add unduly to the length of the hearing because its admission “may also require the ventilation of further issues”. It was submitted, in particular, that there would be a consequent necessity for the jury to focus on the evidence which may, in turn, distract them from their task.

50. In terms of the evidence of McLannen, and when pressed for a response to the Crown’s submission that the finding of the draft statement on McNamara’s computer corroborated McLannen’s evidence, counsel for McNamara described the Crown as having advanced a “bootstraps” submission, before then saying (at T325 L11):

“It may be a response that I will keep up my sleeve because I have already said it, that is, that statement was prepared after a conference with Mr McLannen and the contents of it sent. But that is a matter for evidence. You can infer from its contents that at the request of lawyers, not on a frolic of his own, and that assumes that Mr McLannen did not have or give or sign the statement that was prepared with him, like with Amy Knox.”

51. When I asked counsel whether he was suggesting that the existence of the statement which was found on McNamara’s computer had been disclosed to McLannen before he made his statement to police in January of this year, counsel replied:

“That is exactly what I would be saying”.

52. It was further submitted that properly analysed, what was in fact said by McLannen involved “an implicit threat verbally on one single occasion”. It was submitted on this basis that the weight, and probative value, of the evidence were marginal at best.

53. As to the application made on behalf of Rogerson, it was submitted that the underlying reason for such application was to enable Rogerson to draw an inference (in the case of Lam’s evidence) that McNamara was the type of person who wanted to be involved in drug dealing, and (in the case of McLannen’s evidence) that he was the kind of person who would “commit perjury”. It was submitted that neither matter was relevant in terms of s. 55 of the Act and that the arguments of counsel for Rogerson disclosed tendency reasoning which should be rejected.

54. Finally, counsel foreshadowed that in the event that I came to the conclusion that Rogerson’s application should be granted, it was likely that McNamara would make a further application for a separate trial (a previous application having been refused: R v Rogerson, R v McNamara (No 3) [2015] NSWSC 965).

Submissions on behalf of Rogerson

55. Counsel for Rogerson submitted that it was necessary to view his application in the context of a trial in which McNamara would not only seek to blame Rogerson for the deceased’s murder, but would, in doing so, assert serious (and uncharged) criminal conduct on the part of Rogerson. It was submitted that in these circumstances, what might otherwise be the expected limits of a so-called “cut throat” defence had been substantially extended, so as to permit the cross-examination of McNamara as to his character, independent of any position taken by the Crown.

56. It was further submitted that the evidence of both Lam and McLannen was relevant to facts in issue, and that it accordingly met the test of relevance in s. 55 of the Act. It was submitted, in particular, that an “ultimate fact in issue” in the present case was the acceptance or rejection of any defence propounded by McNamara, and the acceptance or rejection of any evidence that he gave. It was submitted that given the width of s. 55 of the Act, the evidence of both Lam and McLannen was relevant to that issue. It was further submitted that the evidence, if accepted, established that McNamara was a “stand over man” and that this was also relevant to the question of whether his account of the relevant events was accepted.

CONSIDERATION

The application of the Crown

57. I turn firstly to the provisions of s. 192 of the Act.

58. In terms of s. 192(2)(a), the evidence of Lam and McLannen will obviously add to the length of the trial to some degree, both in terms of the Crown’s cross-examination of McNamara and having regard to a case in reply. However, the relevant consideration is whether the trial would be lengthened “unduly” or, in other words, whether it would be lengthened to an unwarranted or inordinate degree. In my view, this would not be the case.

59. The evidence in each case is relatively confined. Indeed, counsel for McNamara specifically pointed out in the course of submissions that in the case of McLannen, the evidence is limited to a single incident. Even though the Crown’s cross-examination of McNamara, and the case in reply, would obviously lead to the trial being lengthened, I do not consider that it would do so unduly, in the sense that I have described. The “further issues” referred to by counsel for McNamara, the ventilation of which, it was said, would add to the length of the trial, have not been identified. Further, I am not persuaded that the evidence would add unduly to the length of the trial because of the possibility of the jury being distracted. This is particularly so in circumstances where, as discussed further at [66] below, the jury would, if the evidence were admitted, be given a number of specific directions. Finally, in terms of the suggested undue lengthening of the trial, it is relevant to note that irrespective of the outcome of the present application, Lam will be called for the Crown in its case to prove the nature and extent of the association between the deceased and McNamara. It might reasonably be expected that at that time, there will be some cross-examination of Lam going to matters of credit.

60. As to s. 192(2)(b), I am necessarily mindful of the right of the accused to a fair trial. Equally however, there is force in the submission that if the Crown’s application was refused, the inaccurate picture of the accused’s character with which the jury might be left would be unfair to the Crown. Issues of fairness must obviously be considered with respect to both parties.

61. As to s. 192(2)(c), the evidence in each case is of obvious importance. That importance stems, in part, from the fact that it is wholly inconsistent with the case put on behalf of the accused as to his good character. In Lam’s case, I do not regard the fact that the statement was made without an interpreter as something which lessens its importance. Moreover, and although there is evidence of some assistance being given to Lam by the police, the proposition that the hope of such assistance was Lam’s motivation for making his statements is not supported by the evidence. It is also relevant that the assistance which has been provided to Lam was provided a long time after he had made his statements.

62. In terms of the evidence of McLannen, I do not accept the submission that the mere fact that the evidence is limited to a single episode of conduct is a factor which adversely affects its weight. This is particularly so in circumstances where the evidence is objectively corroborated. In that regard, and whilst emphasis was obviously placed upon the fact that a draft statement was found on McNamara’s computer, that is not the only evidence which supports McLannen’s account of what took place. In particular there is evidence which establishes that McNamara was retained on behalf of Lam to obtain statements from persons which might assist his case, and that McLannen was one such person. It is also evident from the correspondence I have previously set out that McNamara spoke to, and prepared a statement for, McLannen, at or around the time that McLannen says that McNamara spoke with him. Moreover, the contents of the draft statement found on McNamara’s computer are, generally speaking, consistent with McLannen’s account of what McNamara said to him.

63. I have noted (at [50]-[51] above) the submission made on behalf of McNamara that the weight of McLannen’s evidence was lessened by the fact that at the time of making his first statement to the police in January 2015, he was aware of the existence and content of the draft document found on McNamara’s computer. There is nothing within the terms of McLannen’s first statement which suggests, expressly or impliedly, that this is so. Moreover, the contents of McLannen’s second statement made in May 2015, tend to suggest that it was not until that time that he was made aware of the existence of the draft.

64. Further, I have also noted that when this issue was agitated in the course of submissions counsel for McNamara indicated that he was keeping his position “up his sleeve”, following which he impliedly suggested that Wrench had been given a copy of the draft found on McNamara’s computer, as a consequence of which McLannen knew of its contents prior to making his first statement. I am obviously left to determine the present application on the basis of the evidence which is put before me. There is no evidence that Wrench was given a copy of the draft statement, be it by McNamara or by anyone else. There is no evidence that he provided it to McLannen. There is also no evidence that he otherwise made McLannen aware of its contents.

65. In terms of s. 192(2)(d), these proceedings concern the prosecution of McNamara for serious criminal offences. It is obviously necessary to bear in mind, as I do, McNamara’s right to a fair trial. It is also necessary to bear in mind those authorities to which I have referred, which make it clear that caution must be exercised in determining whether the Crown should be permitted to take this course. That said, it is obviously not the case that the discretion can never be exercised in favour of allowing an application of this nature made by the Crown.

66. As to s. 192(2)(e), in the event that the Crown’s application is granted, the jury will be directed as to how the evidence relied upon by the Crown can (and cannot) be used. In particular, the jury will be directed (inter alia) that:

1. if they do not accept that the accused is a person of good character, the evidence called by the Crown cannot be used to strengthen the Crown case;

2. they must not reason, because of the evidence called by the Crown, that the accused is more likely to have committed either of the offences with which he has been charged;

3. the Crown did not call that evidence, and does not rely upon it, to establish the guilt of the accused in respect of either offence;

4. the evidence was led on the issue of the accused’s good character only;

5. it would be improper to use the evidence relied upon by the Crown for any purpose other than the question of the accused’s good character;

6. if, after considering the evidence, they find that the accused is not a person of good character, they cannot then decide that he is a person of bad character, and proceed to use that finding against him; and

7. if they are not satisfied that the accused is a person of good character, the law requires them to put all considerations of character out of their minds in determining whether or not they are satisfied beyond reasonable doubt that the accused is guilty of either of the offences alleged against him.

67. In my view, the considerations mandated by s. 192 weigh generally in favour of granting the Crown’s application. However, it was made plain in Stanoevski that those considerations are not exhaustive, and that factors such as the weight of the evidence, and its relevance, must also be taken into account. For the reasons already expressed, and from the point of view of the Crown’s application, the evidence is clearly relevant. There are factors which might affect its weight. In Lam’s case, those factors include the assistance which he appears to have been given by the police. In McLannen’s case, those factors include that his statement, which includes reference to his own drug dealing activities, was induced. That said, in all of the circumstances, I am not persuaded that any of these factors affect the weight of the evidence to such an extent that the Crown’s application should be refused.

67. In the course of submissions counsel for McNamara took me, at some length, to the decision in Huges. He relied, in particular, on that part of judgment of Priest JA at [31] where his Honour said:

“When a comparison is made of the relative advantage to the defence case and concomitant damage to the prosecution case from the supposed evidence of good character, and regard is then had to the very great prejudice occasioned to the appellant by the cross-examination, it is plain that the proper exercise of discretion dictated that the cross-examination not be allowed.”

69. In Huges, the appellant had been indicted on 17 charges of sexual offending against his biological daughters. Part of the evidence sought to be led by the Crown in respect of bad character concerned a violent rape (with which the appellant had not been charged) of one of those daughters. The observations of Priest JA at [31] must be viewed in that light. Coghlan JA observed (at [46]) that an application to rebut an assertion of general good character by leading evidence of uncharged acts from a complainant in the trial was “completely novel”. Those circumstances do not apply in the present case.

70. Further, in Huges some significance was placed on the fact that the Crown had left the making of its application to cross-examine the appellant until the completion of his evidence in chief (Priest JA at [32]). In this respect Lasry AJA said (in a passage to which my attention was specifically drawn) at [51]:

“In this case, the prosecutor left making his application to the trial judge until after counsel for the appellant had opened the evidence he was about to lead and the evidence-in-chief of the appellant was completed. I do not understand that counsel for the appellant had any notice of the consequences of his opening and questioning until the application was made. Clearly by the time the prosecutor made his application, he had determined that he wished to cross-examine the appellant about, among other matters, the US incident and, in the likely event that the appellant denied the occurrence of that incident, lead evidence of it by way of rebuttal on the issue of character assuming the trial judge upheld the application. The significance of that occurring at that time of the trial and the dangers of it must have been obvious. Assuming the appellant denied the allegation in cross-examination, then evidence would be led in rebuttal after the defence case had closed with the jury understanding that something both unusual and dramatic had happened. That is what occurred and the evidence from the complainant about this inadmissible and dramatic event was the last thing the jury heard from the witness box. It is very likely that the jury were significantly influenced by what had occurred.”

71. Again, a clear distinction can be drawn between those circumstances and the present case.

72. Counsel for McNamara also relied on Lasry AJA’s observation that prejudice had arisen because the evidence in question was “the last thing the jury heard from the witness box”. That will be the position in every case in which an application such as the present is granted. Whilst it is obviously a relevant consideration, I am not persuaded that it operates, either of itself or in combination with those other factors upon which McNamara relied, to defeat the Crown’s application in the present case. The observations of Lasry AJA were obviously made in the context of the evidence that the court was considering at that time. For the reasons that I have already expressed, the position in the present case is quite different. Moreover, the jury will be directed at length as to how the evidence can be used.

73. For all of these reasons, the relevant considerations weigh in favour of the Crown’s application being granted. That being so, I must then consider whether the evidence ought be excluded having regard to the provisions of s. 137 of the Act. In my view, for the reasons I have stated, the probative value of the evidence in each case, as to the limited issue of McNamara’s character, is high. The directions that I have outlined will ensure that it is made plain to the jury that the evidence is before them on a limited basis, and for a limited purpose. In these circumstances, I am satisfied that there will be no danger of the evidence being misused in any way. For these reasons, the probative value of the evidence is not outweighed by the danger of unfair prejudice to McNamara.

74. Finally, I should note that it was submitted on behalf of McNamara that if the evidence of good character were limited to leading evidence of the fact that McNamara has no prior convictions, it would not be open to the Crown to lead any of the evidence at all. I do not accept that submission. The nature of the evidence relied upon by the Crown, if accepted, discloses criminal conduct on the part of McNamara.

75. It follows that in my view, the Crown’s application for leave to cross-examine McNamara, and to lead a case in reply, should be allowed.

The application of the accused Rogerson

76. The fundamental question to be resolved in determining the application made on behalf of Rogerson is whether the evidence is relevant. If it is not, then the application cannot succeed. I have previously outlined the submissions made by Mr Thomas as to the asserted relevance of the evidence. I am not able to accept those submissions for a number of reasons.

77. In the response to the Crown case statement filed on behalf of Rogerson pursuant to s. 143 of the Criminal Procedure Act 1986 (NSW) the following was stated:

“In relation to the charge of murder, the accused denies that he was party to a joint criminal enterprise with the co-accused to murder the deceased. The accused was not present in the storage shed when a firearm was allegedly discharged causing the death of the deceased. After the accused entered the storage shed the co-accused made representations to the accused concerning the circumstances in which the firearm was discharged causing the death of the deceased and which representations the accused believed to be true.

In relation to the alternative charge of accessory after the fact to murder (notified by the Crown by letter dated 1 June 2015) the accused denies that he was an accessory after the fact to murder of the deceased and says that his conduct after the death of the deceased was undertaken in reliance upon the representations of the co-accused concerning the circumstances of the death of the deceased and in the belief that the representations were true.

In relation to the charge of supply prohibited drug, the accused denies that he was party to a joint criminal enterprise with the co-accused for supply of the prohibited drug”.

78. That response raises two issues, namely whether Rogerson:

1. was party to a joint criminal enterprise to murder the deceased; and

2. was party to a joint criminal enterprise to supply a prohibited drug.

79. The evidence the subject of the present application does not bear upon either of those issues. Even if the evidence established that McNamara was a “stand over man”, that does not bear upon any identified fact in issue in the present trial. I have noted (at [43] above) that evidence will be relevant if it tends to show that the version of the facts advanced by one accused is more probable than that advanced by another: Lowery (supra). That proposition encapsulates one of the submissions advanced on behalf of Rogerson. However the evidence in the present case is not relevant to that issue. The present circumstances are clearly distinguishable from those in Lowery where the evidence in question went directly to the likelihood or otherwise of the appellant’s account being accepted.

80. For all of these reasons, I am not persuaded that the evidence is relevant to the issues identified on behalf of Rogerson and the application made on his behalf is refused.

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Decision last updated: 03 April 2018