R v Rogerson; R v McNamara (No 25)

[2016] NSWSC 110

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 25) [2016] NSWSC 110
Hearing dates:	22 February 2016
Date of orders:	22 February 2016
Decision date:	22 February 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [16]
Catchwords:	CRIMINAL LAW – Evidence – Leading questions – Where counsel for accused sought to put a leading question in cross-examination – Objection to the form of the question – Whether the witness had an interest consistent with interests of the cross-examiner – Whether the witness was sympathetic to the cross-examiner – Question rejected
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v Rogerson; R v McNamara (No 24) 2016 NSWSC 105
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 Ms K Shead – 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 – EX TEMPORE (REVISED)

1. Earlier today I ruled upon an application made by the Crown for leave to allow the present witness, Justin McLannen, to revive his memory from a statement he made to the police on 16 January 2015. One of the areas in respect of which that leave was sought was contained in paragraph 24 of the statement in which the witness attributed to the accused McNamara the following statement:

“‘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.’”

2. I have previously excluded, in the context of an earlier pre-trial application, the reference to "bikie".

3. For the reasons that I gave at the time (see R v Rogerson; R v McNamara (No 24) 2016 NSWSC 105), I refused the Crown leave to allow the witness to revive his memory. Those reasons included the fact that I was not satisfied in all the circumstances that the event was fresh in the memory of the witness at the relevant time.

4. Mr Thomas, who appears for the accused Rogerson, now seeks to elicit that part of the contents of paragraph 24 set out in [1] above (other than the reference to "bikie") in the course of cross-examination. Ms Shead who appears for the accused McNamara does not object to the line of questioning, however she objects to the evidence being elicited in a leading form.

5. The question put by Mr Thomas which gave rise to the objection, and which has led to the argument which has ensued was as follows:

"Did he tell you he was an ex-cop from Kings Cross?"

6. That is, on any view of it, a leading question.

7. Whether or not the question ought be allowed is governed by s. 42 of the Evidence Act 1995 (NSW) which is in the following terms:

42 Leading questions

(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which:

(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, and

(b) the witness has an interest consistent with an interest of the cross-examiner, and

(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and

(d) the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers.

(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.

(4) This section does not limit the court’s power to control leading questions.

8. Subsection 42(2) sets out a number of factors which, although they do not constitute an exhaustive list, are matters I must take into account in determining whether or not the question should be permitted.

9. The first of those matters contained in s. 42(2)(a) does not appear to be applicable to the present circumstances. However, those in ss. 42(2)(b) and (c) may be relevant. Those matters focus respectively upon whether or not the witness has an interest consistent with an interest of the cross-examiner, and whether or not the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter.

10. Because of the circumstances in which the issue has arisen, the parties have not been able to refer me to any authority which deals with those particular provisions. As to s. 42(2)(b), I do not think it could be said that the witness has an interest consistent with those of Mr Thomas and/or his client. A more difficult question is whether or not the witness could be said to be “sympathetic”, either generally or about a particular matter, in the sense to which s. 42(2)(c) is directed.

11. The Crown urged that I should conclude that the reference to a witness being “sympathetic” in s. 42(2)(c) was a reference to a witness having a particular state of mind. I am not satisfied that the provision should be read in such a narrow way. In my view, it could be said that the witness is sympathetic to the interests of Rogerson, in the sense that he asserts things which may support Rogerson’s position, and which may be the subject of final submissions to the jury.

12. The final mandatory factor to be taken into account is contained in s. 42(2)(d). It concerns the personal characteristics of the witness, including his age and any mental, intellectual or physical disability to which he might be subject which may affect his answer to the question. There is nothing in particular about Mr McLannen’s age which, in my view, might affect his answer. There has been passing reference to his drug use, and to the possibility of him suffering from some form of mental illness in the past. However, the evidence in relation to those matters is vague to say the least.

13. I have observed Mr McLannen closely as he has been giving evidence, which has now extended for more than a day. It has appeared to me that he has had, from time to time, the propensity to agree with propositions put to him simply because they were put in an affirmative way. That, in my view, is a factor which tends against allowing the question.

14. I also take into account ss. 43(3) which requires that I disallow the question if I am satisfied that the facts concerned would be better ascertained if a leading question was not used. In my view, the fact that the Crown's application for leave for Mr McLannen to revive his memory, in relation to the same evidence that Mr Thomas now seeks to elicit by way of a leading question, is a factor which tends against allowing the question.

15. That is not to say that Mr Thomas is not at liberty to pursue the issue in another way. The objection which was taken was one as to the form of the question only. No objection has been taken to the general issue being pursued by way of a non-leading question or questions.

16. For these reasons I propose to disallow the question which has been asked. However I will allow Mr Thomas to pursue the issue by putting some other question(s) if he wishes to do so.

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Decision last updated: 15 June 2016