R v Rogerson; R v McNamara (No 26)

[2016] NSWSC 141

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 26) [2016] NSWSC 141
Hearing dates:	26 February 2016
Date of orders:	26 February 2016
Decision date:	26 February 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [10]
Catchwords:	CRIMINAL LAW – Evidence – Admissions by accused – Where nature of the admissions equivocal and ambiguous – Limited probative value substantially outweighed by the danger of unfair prejudice – Evidence excluded
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW)
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

1. The Crown seeks to lead evidence of what are said to be admissions made by the accused McNamara when he was detained by the police on 24 May 2014. On that date, the accused was in the presence of Dets. Clingan and Jouni when another officer from the Crime Scene Unit was engaged in photographing the accused and obtaining biometric measurements from him.

2. Detective Senior Constable Clingan's statement of 8 October 2014 reads as follows:

“While this was being conducted the accused spoke to Detective Jouni and I. The accused repeated a number of times 'I've been a goose, look, I've just been a goose. I was a goose' "

3. According to Det. Clingan’s statement, the accused then stated that he “had a story to tell but not now” and “not all is as it seems”.

4. Ms Shead objects to the statements attributed to the accused. Although Ms Shead's written submissions were initially limited to objecting to that part of the accused’s statement set out in [2] above, she made it clear at the commencement of submissions that her objection extended to those attributed to the accused in [3] above as well.

5. Given the width of s. 55 of the Evidence Act 1995 (NSW) (“the Act”) Ms Shead conceded that the evidence was relevant. However, she submitted that the evidence should be rejected, pursuant to s. 137, or alternatively s. 135, of the Act. As an alternative submission, Ms Shead put that there had been a breach of s. 281 of the Criminal Procedure Act 1986 (NSW) and that, as a consequence, the evidence was not admissible.

6. In support of her primary submission, Ms Shead submitted that the limited probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the accused in the event that it was admitted. She submitted that such danger arose from the equivocal and ambiguous terms in which the statements were made. She submitted, in particular, that if the evidence were admitted, there was a danger that it would be misused by the jury, or that it would be given greater weight than was warranted in the circumstances.

7. The Crown accepted that the probative value of the evidence was limited. However, the Crown submitted that the matter was really a question of weight, and argued that Ms Shead had failed to articulate any specific danger which might attract the provisions of s. 137. The Crown further submitted that it would remain open to Ms Shead to make submissions to the jury in relation to the evidence and that, in all of these circumstances, no danger of unfair prejudice of the kind to which s. 137 applies arose.

8. The statements made by the accused are inherently equivocal in nature. In my view, there is a distinct danger of unfair prejudice to the accused if the evidence is admitted. That unfairness, in my view, stems from the attribution, or possible attribution, of an adverse meaning to the statements in circumstances where they are open to a number of interpretations. That is quite different to a question of weight.

9. I am also unable to accept the Crown's submission that any danger of unfair prejudice is capable of being ameliorated by the opportunity for counsel to address the jury in relation to the issue in her closing address. If that were the simple answer, then s. 137 would rarely come into play.

10. For all of those reasons, I am satisfied that the probative value of the evidence is outweighed, and outweighed substantially, by the danger of unfair prejudice to the accused. Accordingly, the evidence will be excluded.

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Decision last updated: 15 June 2016