R v Rogerson; R v McNamara (No 28)

[2016] NSWSC 160

Supreme Court

New South Wales

Medium Neutral Citation:

R v Rogerson; R v McNamara (No 28) [2016] NSWSC 160

Hearing dates:

1 March 2016

Date of orders:

01 March 2016

Decision date:

01 March 2016

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

See [24];[26];[36];[41]-[42]

Catchwords:

CRIMINAL LAW – Evidence – Where Counsel for accused sought to elicit evidence of a witness’ belief in cross-examination – Objection to the form of the question – Question rejected

 

CRIMINAL LAW – Practice and Procedure – Where objection to question on cross-examination was upheld – Where consequent application to discharge jury – Whether such question of itself was prejudicial – Any prejudice could be cured by direction to jury – Application rejected

 

CRIMINAL LAW – Evidence – Where Counsel for accused sought to cross-examine witness as to credibility on the basis of his criminal history – Whether such history could rationally affect the assessment of the witness’ credibility – Where criminal history more than 20 years old – Evidence incapable of bearing upon assessment of witness’ credit – Application rejected

  CRIMINAL LAW – Evidence – Where Crown sought leave to cross-examine unfavourable witness – Application granted

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

R v El-Azzi (2004) NSWCCA 455
R v RPS (unreported) NSWCCA 13 August 1997

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. The Crown has called William Duff as a witness in its case, from whose evidence a series of issues have arisen. Those issues are four in number and in order to place them in their proper context it is necessary for me to summarise aspects of Mr Duff's evidence.

2. Mr Duff was called by the Crown yesterday and his evidence commences at T1351. He said, amongst other things, that he was a friend of the accused Rogerson and that he had spoken with him in 2012 about private investigation work. He explained that this was a general conversation in which Rogerson had told him that he was doing some work with the co-accused McNamara.

3. Mr Duff said that between 2012 and 2014 he had seen McNamara on two occasions, both of which were in the latter's capacity as a private investigator. Mr Duff also explained that he was part of a group who would gather at the Crown Hotel at Revesby on Thursday afternoons, although he explained that he did not attend each week and that the frequency of his visits to the hotel with that group (of which the accused Rogerson at least appears to have been a member) was about every month during 2013 and 2014.

4. At T1352 L29 the Crown Prosecutor specifically took Mr Duff to 20 May 2014, which was the date on which the deceased was murdered. The Crown asked Mr Duff whether he recalled receiving a telephone call from Rogerson at about 9.15am on that day. Mr Duff responded in the affirmative. When asked whether or not he could remember any details of the conversation, Mr Duff said that he couldn't, that it was "just another phone call really," and that he did recall the accused Rogerson saying that he would "call in at some stage if he had time".

5. When asked whether or not he recalled seeing Rogerson on that day, Mr Duff responded (at T1352 L48) "I don't believe I did". He went on to explain (commencing at T1353 L2) that he held some belief that he had in fact seen the accused on 15 May 2014 and that if the accused had called in to his premises it would have been on that day.

6. At that point the Crown foreshadowed, but subsequently withdrew, an application for leave to cross-examine Mr Duff under s. 38 of the Evidence Act 1995 (NSW) (“the Act”). The Crown then asked Mr Duff whether or not he was able to specify what day Rogerson had called on him. He indicated that he was not able to do so. He then said (at T1353 L28) that on whatever day Rogerson had called to see him, he had arrived at approximately 3.30pm in the afternoon, and left at approximately 5.30pm.

7. At that point the evidence-in-chief was completed. Taken by itself the evidence appeared, to me at least, to have been of little significance.

8. Mr Duff was then cross-examined by Ms Shead, who appears for McNamara. He said that he had been a friend of Rogerson since about 1986. The cross-examination then turned, after some period of time, to the circumstances in which he had made a statement to the police. In particular, Mr Duff was asked (at T1367 L44) whether or not he remembered sending an email to a Detective Sheehy from the New South Wales Police on 4 June 2014. That email, and some attachments to it, subsequently became exhibit M11.

9. Ultimately Mr Duff made a statement to the police, although that did not occur until 17 November 2015.

10. I do not propose to set out in full the contents of exhibit M11, but there are aspects of it which do warrant some reference. On the second page of the document, Mr Duff asserted that on 20 May 2014 he was at home suffering from severe pain and that at 9.15am he received a phone call from Rogerson. He went on to say that late on the afternoon of 20 May 2014, Rogerson arrived at his home. Mr Duff said that Rogerson stayed there for a considerable amount of time and that he would have left between about 5:15pm and 5:30pm. The last document attached to exhibit M11 is a separate document headed "Phone calls on 20th". The document details calls received and made by Mr Duff on 20 May 2014.

11. The significance of exhibit M11, it would seem, is that although the covering email made reference to Mr Duff making amendments to the information that he had previously given to the police, those amendments did not include any amendment to the date on which Rogerson is said to have visited him at his home. In particular, there is no reference in any of the correspondence contained within exhibit M11 that Rogerson visited Mr Duff on 15 May 2014 as opposed to 20 May 2014.

12. Mr Duff (agreed at T1370 L22) that exhibit M11 contained a very detailed description of his claimed interaction with Rogerson on 20 May 2014. When asked (at T1370 L39) when it was that he first told anybody that 15 May 2014 was the date on which Rogerson had come to see him, he said that he had informed the police when his statement had been taken from him at the Bass Hill Police Station.

13. Ms Shead then took Mr Duff to various passages of his statement of 17 November 2015. Having been taken specifically to paragraphs 11, 12, 13 and 14, Mr Duff accepted that there was no reference in that statement to any event having occurred on 15 May 2014. When it was put to him that he had not told anybody about any events occurring that day until giving evidence before this Court, Mr Duff responded (at T1372 L2) that that was not correct. He went on to explain (commencing T1372 L5) that he had spoken to one of the police and had told that officer that he believed that Rogerson’s visit had occurred on 15 May 2014. When asked (at L23) to state the name of the police officer he so informed, Mr Duff responded that he had "mentioned it" to “Mr Phillips”. The reference to "Mr Phillips" is obviously a reference to Detective Phillips, who is the officer-in-charge of the investigation.

14. When asked whether he had told Detective Phillips that Rogerson had come to his home on 15 May 2014, Mr Duff responded (at T1372 L29):

"No, I said I may have, I didn't say to Mr Phillips it was on that day, it was may have".

15. When asked (in the following question) whether he nominated the date of 15 May 2014 to Detective Phillips, Mr Duff responded:

"Yes, I said I believe it may have been the 15th, not the 20th".

16. He reiterated that proposition in an answer to a question commencing at T1372 L48.

17. There was further cross-examination about Mr Duff’s assertion regarding particular dates commencing at T1375 L50. The cross-examination then continued and culminated in a proposition being put to Mr Duff (commencing at T1381 L36) regarding a conversation that he had with a police officer on 17 August 2014. Mr Duff was unable to recall that event and said that he did not know the name of the police officer to whom reference was made. It was suggested to him that there was a reference in that conversation to him working after being "disengaged" from the Police Force. He responded by saying that he did not understand the import of that question, and did not recall any conversation which included words to that effect.

18. The following question was then put by Ms Shead (at T1382 L1):

“Q. I suggest that you said words to this effect: On the day of the murder, Roger Rogerson had contacted you by phone in search of what you believed to be an alibi, that you were upset and you said, 'I'm filthy at him, he called me on the day, and I believe he was looking for an alibi.'“

19. That question was met with an immediate objection by counsel for Rogerson, Mr Thomas. There was some short argument which followed at the end of yesterday's proceedings. I invited Ms Shead to reflect on the matter overnight and to renew any necessary debate this morning.

20. Before leaving that last issue, it is appropriate for me to note that a document which is now MFI 67 has been provided to me in the course of argument. That document clearly forms the basis of the question which was put as set out in [18]. Having made reference to each of the accused and Mr Duff, the document reads as follows:

“All three PN or S are ex-New South Wales police officers. Two of which have been charged with a recent homicide/drug supply matter. At the above date and time police attended (Duff's) household in relation to a welfare check in accordance with operation Talon. During the visit (Duff's) queried with this check had anything to do with the recent arrest and charge of (Rogerson) and (McNamara). (Duff) went on to say that he knows both (Rogerson) and (McNamara). He said that he had only "worked" with (Rogerson) on the same investigation but never worked side-by-side with either officer. He said that on the day of the murder (Rogerson) had contacted him by phone in search of what he believed was an alibi and that he (Duff) was upset. He said, 'I'm filthy at him. He called me on the day. I believed he was looking for an alibi.'“

21. When the proceedings resumed this morning, the issues arising from the evidence of Mr Duff expanded considerably from the position as it had been left on the previous day. There are now four issues, namely:

1. whether the question put by Ms Shead, to which Mr Thomas objected, should be allowed;

2. whether, as a consequence of that question being put, the jury should be discharged (Mr Thomas having made that application);

3. whether Ms Shead should be permitted to cross-examine Mr Duff as to his credit; and

4. whether the Crown should be given leave to cross-examine Mr Duff under s. 38 of the Act.

22. I will deal with those issues separately.

23. I turn to the first issue arising from the question put by Ms Shead (commencing at T1382 L1) which is based on the contents of MFI 67. Providing the necessary relevance can be established, it may be open to counsel to cross-examine Mr Duff as to a conversation he is said to have had with Mr Rogerson. However in my view, it is not open to counsel to seek to elicit evidence of Mr Duff's belief as to the import, or meaning, of what was said in any such conversation. In my view, Mr Duff's belief is not relevant. Such a belief essentially amounts to little more than his interpretation of what was said to him.

24. Whether or not the content of the conversation, if given in evidence, may provide a basis for a submission to be made to the jury at the end of the case is of course another matter entirely. However, I do not propose to allow the question that has been put.

25. The second issue, namely the application made by Mr Thomas that the jury be discharged, arises from Ms Shead’s question. Mr Thomas submitted that the question, of itself, is highly prejudicial in its terms and such prejudice was exacerbated by the fact that (paraphrasing what Mr Thomas said) the question carried with it the “imprimatur” of cross-examining counsel. Given the conclusion that I have reached in relation to the question, the issue of Mr Duff's beliefs as to what the accused Rogerson was attempting to do will not be further pursued. The question, as I have indicated, will be disallowed.

26. When the question was put, Mr Thomas was quick to object to it. There was therefore a single reference to the subject matter contained within it. In all of those circumstances, I am not satisfied that any prejudice arises from the fact that the question was put. To the extent that any prejudice may arise, it can, in my view, be properly cured by the jury being reminded (inter alia) that questions are not evidence and that the question has been disallowed, and that the contents of it should be disregarded. For those reasons, I dismiss the application to discharge the jury.

27. Turning to the third issue, Ms Shead foreshadowed this morning (for the first time) that she wished to cross-examine Mr Duff in relation to his criminal history. That history has been provided to me for the purposes of determining this application. It discloses the fact that on 11 December 1997 Mr Duff was sentenced to a term of imprisonment in respect of a charge of supplying a prohibited drug, namely heroin. He was sentenced to a minimum term of 18 months imprisonment commencing on 31 October 1997, with an additional term of 18 months imprisonment. His sentence was expressed to expire on 30 October 2000. A subsequent appeal to the Court of Criminal Appeal was dismissed on 17 September 1998. The offence of supplying a prohibited drug had been committed in January of 1994, almost four years prior to Mr Duff being sentenced.

28. Ms Shead's application to cross-examine on this material is governed by the provisions of s. 103 of the Act which is in the following terms:

103 Exception: cross-examination as to credibility

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to:

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

29. Section 103 has been the subject of judicial consideration on a number of occasions. The Crown referred me, in particular, to the judgment of Santow JA in R v El-Azzi (2004) NSWCCA 455. In that case (at [181]) his Honour made reference to an earlier decision of R v RPS (unreported) NSWCCA 13 August 1997 where Hunt CJ at CL, with the concurrence of Gleeson CJ and Hidden J, observed (inter alia) that evidence as to conduct which is adduced in cross-examination must have substantial probative value, in the sense that it could rationally affect the assessment of the witness. His Honour concluded (at [183]):

“In my opinion, for this evidence to have had substantial probative value within the meaning of s 103(1), it must have had the potential to have a real bearing upon the assessment of the appellant's obvious credibility - and, particularly, to the appellant's credibility in relation to the evidence that he had given, or would give at the trial. It cannot have had substantial probative value for the purposes of s 103(1) unless it was capable in a significant way, of bearing upon that assessment.”

30. A number of other authorities establish that it is difficult, if not impossible, to lay down fixed guidelines as to the application of s. 103. Necessarily, a determination of whether or not cross-examination as to credit ought be allowed must be case, and evidence, specific. However, in determining such an application, s. 103 mandates that I have regard to the matters set out in subs (2), although those matters are not exhaustive.

31. The first of those matters, set out in s. 103(2)(a), is whether or not the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth. In the circumstances of the present case, the fact of Mr Duff's prior conviction does not, in my view, tend to prove any such thing.

32. The second matter, set out in s. 103(2)(b), requires that I take into account the period that has elapsed since the acts or events to which the evidence relates were done or occurred. I have already observed that the offence committed by Mr Duff was in January of 1994. That is more than 22 years ago. His sentence was imposed in December of 1997. That is more than 18 years ago. On any view, a significant period has elapsed since the offence was committed, and since Mr Duff was sentenced. The magnitude of that period, in my view, tends against granting the present application.

33. It follows that in my view the two mandatory factors set out in subs (2) of s. 103 do not support the application being quashed, and in fact tend directly against it.

34. I do not accept the proposition advanced by Mr Thomas that if the cross-examination were permitted it would, in effect, amount to a "back door" attack on the credibility of Rogerson. The real issue is whether cross-examination as to that matter would have substantial probative value in the sense that it could rationally affect the assessment of the credit of Mr Duff.

35. There is, as I have outlined something of a discrepancy in one aspect of Mr Duff's evidence. It is apparent that he initially told the police that he saw the accused Rogerson on 20 May 2014. He now seeks to resile from that by asserting that it in fact occurred on 15 May 2014. There is, therefore, an issue about the reliability of that aspect of his evidence. However, whilst not exhaustive, the two mandatory factors set out in s 103(2) both tend against the application being granted. I have also taken into account the fact that the activity which led to Mr Duff's conviction, although obviously unlawful and of the utmost seriousness, was not an offence of dishonesty.

36. That is not to say, of course, that only offences which are properly described as offences of dishonesty will attract the application of s. 103. However, in all of the circumstances, I am not satisfied that the evidence of a conviction relating to conduct which occurred more than 20 years ago, of the nature of the kind that I have outlined, is capable of bearing in any significant way upon an assessment of Mr Duff's credit. I therefore do not propose to allow that cross-examination.

37. The fourth and final issue concerns the Crown's application to cross-examine Mr Duff pursuant to s. 38 of the Act. There was, as I have indicated, a previous application made by the Crown under s. 38 (albeit in relation to a different issue) which was not pursued. The present application arises, it seems, from the evidence given by Mr Duff at T1372 L33. In the course of cross-examination, when asked whether he had nominated the date of 15 May 2014 as opposed to 20 May 2014 as the relevant date to Detective Phillips, Mr Duff responded.

"Yes, I said that I believe it may have been the 15th, not the 20th".

38. Detective Phillips gave evidence before me earlier today. He was asked by the Crown:

“Q. What I wanted to specifically ask you or direct your attention to, sir, is did Mr Duff ever say to you that 'I believe it may have been 15 May 2014, not the 20th, that Roger Rogerson came to see me'?

A. No, he did not.

Q. Not at any time?

A. No.”

39. The evidence of Detective Phillips in this regard is obviously at odds with that of Mr Duff. It is on that basis that the Crown has sought leave to cross-examine Mr Duff under s. 38. In making that application the Crown has also drawn my attention to the provisions of s. 106 of the Act, which creates an exception to the credibility rule in respect of evidence of rebutting a previous denial.

40. It is not necessary for me to canvass the history of the enactment of s. 38. It is sufficient for present purposes to observe that the section materially alters the previous position as it stood at common law. The authorities establish that the word "unfavourable" as it is used in the section is to be given a wide meaning.

41. In my view, the evidence given by Mr Duff (at T1372 L33) is “unfavourable”. It is also contradicted by the evidence of Detective Phillips. I have taken into account the mandatory considerations in s. 38(6). In my view, the application ought be granted, limited to that area that the Crown has defined.

42. It is not appropriate for me, at this stage, to resolve the question of the application of s 106. It seems to me that the application of that section will ultimately depend on what answers are given by Mr Duff to such questions as may be put to him in cross-examination. The application under s. 106 can therefore be deferred until such time as it may arise, which will presumably be in the course of further evidence given by Detective Phillips.

**********

Decision last updated: 15 June 2016