R v Rogerson; R v McNamara (No 19)

The appellants, Rogerson and McNamara, were convicted of various criminal offences. The Crown sought to introduce evidence of statements made by two individuals who were not called to testify. The appellants argued that the Crown could not lead such evidence as the individuals in question were not available to give evidence. The High Court was required to determine whether the individuals were sufficiently identified to be considered unavailable and whether the probative value of the evidence outweighed the risk of unfair prejudice. The Court found that the individuals were not positively identified and therefore could not be considered unavailable. Additionally, the Court found that the evidence was of limited probative value and that the danger of unfair prejudice outweighed its value.

The Court held that the evidence should have been excluded as it was not admissible under the hearsay exception. The Court emphasised that the hearsay rule is a fundamental principle of the common law and that exceptions to the rule must be strictly construed. The Court also noted that the risk of unfair prejudice was heightened in this case due to the partial familiarity of the language in which the conversation was conducted. The Court concluded that the evidence should not have been admitted as its probative value was substantially outweighed by the risk of unfair prejudice.