R v Rogerson; R v McNamara (No 3) - [2015] NSWSC 965

Supreme Court

New South Wales

Medium Neutral Citation: R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
Hearing dates: 16 July 2015
Date of orders: 21 July 2015
Decision date: 21 July 2015
Jurisdiction: Common Law
Before: Bellew J
Decision:
See paragraphs [40]; [81]; [93]; [94].

Catchwords:
EVIDENCE – Tendency evidence – Where both accused charged with murder and supplying a prohibited drug – Application by one-accused to rely upon certain evidence as tendency evidence – Whether such evidence relevant to a fact in issue – Whether the evidence went to the credibility of the co-accused – Applicability of Part 3.6 of the Evidence Act NSW 1995 (NSW) – Application refused

PRACTICE AND PROCEDURE – Applications by each of two co-accused for separate trials – Where both accused charged with murder and supplying a prohibited drug – Where Crown case in respect of murder count based upon a joint criminal enterprise – Where murder count and supply count linked - Where majority of evidence relied upon by the Crown admissible against both accused in respect of both counts – Where one accused foreshadowed application to cross-examine co-accused about prior criminal convictions – Where that same accused was allegedly threatened by co-accused – General principles applicable to the exercise of the discretion to order separate trials – Both applications for separate trials refused
PRACTICE AND PROCEDURE – Application by one accused for an order that the counts of murder and supply prohibited drug be tried separately – Where counts inextricably linked – No justification for separation of counts – Application refused
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Ali v R [2005] HCA 8; (2005) 214 ALR 1
Amos v R [2014] NSWCCA 302
Destanovic v R [2015] VSCA 113
Gilbert v R [2000] HCA 15; (2000) 201 CLR 414
Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
Mac v R [2014] NSWCCA 24
R v Assim (1966) 2QB 249
R v Bedford [2011] QCA 43
R v Collie (1991) 56 SASR 302
R v Congressi (1974) 9 SASR 257
R v Dellapatrona; R v Duffield (1993) 31 NSWLR 123
R v Demirok [1976] VR 244
R v Demirok (1976) 8 ALR 452
R v Ditroia and Tucci [1981] VR 247
R v Fernando & Anor [1999] NSW 66
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Harbach (1973) 6 SAR 427
R v Ignjatic (1993) 68 A Crim R 333
R v Kearnes [2013] NSWSC 1139
R v Middis (NSWSC, 27 March 1991, unreported)
R v O’Boyd (1991) 92 CR App R 202
R v Oliver (1984) 57 ALR 543
R v Rogerson (NSWCCA, 22 December 1990, unreported)
R v Rogerson [1992] HCA 25; (1992) 174 CLR 268
R v Rogerson (1992) 65 A Crim R 530
R v Rogerson [2005] NSWDC 22
R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592
R v Swan [2013] QCA 217
R v Webb and Hay (1992) 59 SASR 563
Webb and Hay v R [1994] HCA 30; (1994) 181 CLR 41
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

Roger Caleb Rogerson (“Rogerson”) and Glen Patrick McNamara (“McNamara”) have previously pleaded not guilty to an indictment alleging:

the murder of Jamie Gao (“the deceased”) on 20 May 2014; and

the supply, on the same day, of a prohibited drug, namely 2.78 kilograms of methylamphetamine, being an amount not less than the large commercial quantity applicable to that drug.

On 5 June 2015 the Crown presented an amended indictment which, as against Rogerson, pleaded (as an alternative to the first count) a count alleging an offence of being an accessory after the fact to murder. Rogerson has pleaded not guilty to that alternative count.
As matters presently stand the joint trial of the accused is listed to commence on 27 July 2015.

THE PRESENT APPLICATIONS

There are presently three applications before the Court for determination, namely:

an application by McNamara to adduce tendency evidence;

an application by Rogerson for an order for a separate trial, along with an application that the counts against him be heard separately; and

an application by McNamara for an order for a separate trial.

I heard argument in respect of each of these applications on 16 July 2015. The parties agreed that it was appropriate that I first determine the issue of McNamara’s application to adduce tendency evidence before determining the remaining applications.

The application by McNamara to adduce tendency evidence

On 14 July 2015 the solicitor for McNamara served a notice (“the tendency notice”) pursuant to s. 97 of the Evidence Act 1995 (NSW) (“the Act”). The tendency notice is directed to Rogerson and is in the following terms:

NOTICE OF INTENTION TO ADDUCE TENDENCY EVIDENCE
I, Glen Patrick McNamara, give notice under subsection 97(1) of the Evidence Act 1995, that I intend to adduce evidence of character, reputation, conduct or tendency to prove that Roger Rogerson has, or had, a tendency to act in a particular way, or to have a particular state of mind.
Character, reputation, conduct or tendency
1.   Roger Rogerson has the tendency to pervert the course of justice by fabricating evidence and giving false evidence to authoritative bodies.
2.   The Tendency notice seeks to adduce that Roger Rogerson has the tendency to pervert the course of justice by:
a)   Giving false evidence to authorities; and
b)   Fabricating evidence in police investigations.

Evidence
The substance of the evidence that Glen Patrick McNamara intends to adduce is contained in the following documents:
i)   Roger Rogerson’s criminal record:
a)   Conspiracy to pervert the course of justice - 1992;
b)   Giving false evidence to the Police Integrity Commission - 2005.

ii) Documentary evidence of the matters summarised in the decision of the High Court of Australia in R v Rogerson [1992] HCA 25 at [13]-[18] per Brennan and Toohey JJ.

Rogerson and the Crown oppose McNamara’s application.

The applications by Rogerson for an order for a separate trial and an order that the counts against him be separated

By notice of motion filed on 1 July 2015 Rogerson seeks (inter alia) orders:

that he and McNamara be tried separately; and

that the individual counts against him be tried separately.

That notice of motion is supported by an affidavit of Peter Katsoolis, solicitor, dated 1 July 2015 which was read without objection. The orders sought by Rogerson are opposed by the Crown.

The application by McNamara for an order for a separate trial

By notice of motion dated 13 July 2015 McNamara seeks an order for a separate trial. That notice of motion is supported by two affidavits, namely:

an affidavit of Abdullah Reslan (McNamara’s solicitor) dated 13 July 2015; and

an affidavit of Jessica Leigh McNamara (McNamara’s daughter) dated 13 July 2015.

Both affidavits were read without objection.
The order sought by McNamara is opposed by the Crown.

THE CROWN CASE

The Crown Case Statement filed in the proceedings is in the following terms (save for the fact that I have omitted references to McNamara’s residential address):

1.   In January 2014 Jamie GAO (the deceased) was introduced to the accused Glen Patrick McNAMARA by an associate who had retained the services of McNAMARA as a private investigator to assist with the defence of a criminal matter.
2.   Between January 2014 and May 2014 the deceased and McNAMARA were involved in negotiations relating to the purchase of a large commercial quantity of the prohibited drug methylamphetamine by McNAMARA from the deceased.
3.   In February 2014 the deceased travelled to Hong Kong. While there he made arrangements to purchase large quantities of methylamphetamine, which would be shipped to the deceased in Australia from China.
4.   The deceased was unsuccessful in his attempts to get ten kilograms of methylamphetamine to supply to McNAMARA. The deceased was later granted permission to supply McNAMARA with three kilograms of methylamphetamine.
5.   On 21 February 2014 Michael MAGUIRE leased storage shed 803 at Rent a Space, Padstow. MAGUIRE moved a quantity of office furniture into this storage shed on 24 February 2014.
6.   Approximately two weeks after leasing the storage shed, MAGUIRE gave the keys and access codes to an associate, the accused Roger Caleb ROGERSON. ROGERSON returned the keys to MAGUIRE two days later.
7.   On 2 April 2014 a silver Ford Falcon station wagon, resembling a vehicle owned by ROGERSON, attended Rent a Space, Padstow.
8.   On 4 April 2014 a blue Ford Falcon XR6, resembling a vehicle owned by McNAMARA, attended Rent a Space, Padstow. This vehicle was immediately followed by a silver Ford Falcon station wagon, resembling a vehicle owned by ROGERSON.
9.   On 3 April 2014 a Chinese national named Shun Yip CHAN arrived in Sydney from Hong Kong. There was regular telephone contact between CHAN and the deceased after CHAN arrived in Australia.
10.   On 22 April 2014 a Chinese national named Kai Tak FUNG arrived in Australia from Hong Kong. There was regular telephone contact between FUNG and CHAN after FUNG arrived in Australia.
11.   During April and May 2014 the deceased told a number of friends and associates that he was arranging to supply a male he referred to as “Glen” with a large quantity of methylamphetamine. Further, the deceased stated that this supply was to occur at a storage facility in Padstow. The Crown will allege that the male referred to as “Glen” is the accused McNAMARA.
12.   On 27 April 2014 a white Ford Falcon station wagon, registration BV67PX was purchased from Outback Used Cars at Letherbridge (sic) Park. The receipt from the purchase of this vehicle was located by Police during a search warrant at McNAMARA’s premised on 24 May 2014. Subsequent analysis of this receipt revealed a fingerprint of ROGERSON on it.
13.   At approximately 10.00am on 19 May 2014 McNAMARA removed his 4.5 metre Quintex boat from Hunter Self Storage at Taren Point. McNAMARA towed the boat with his blue Ford Falcon XR6, registration 260BOS. When removing his boat McNAMARA did not notify staff or follow normal procedure whereby the boat would be “signed out”.
14.   At approximately 1.20pm McNAMARA drove his blue Ford Falcon XR6, registration 260BOS towing his boat into the underground car park of the … apartments … where McNAMARA lived at the time.
15.   At approximately 3.15pm on 19 May 2014 ROGERSON attended Rent a Space, Padstow driving his silver Ford Falcon station wagon, registration AF70SR. ROGERSON parked outside storage shed 803. ROGERSON removed a number of office chairs from the storage shed and placed them in the rear of his vehicle.
16.   At approximately 7.50pm on 19 May 2014 McNAMARA met with the deceased at the Meridian Hotel, Hurstville. This meeting lasted for approximately thirty minutes. Closed circuit television (CCTV) from within the Meridian Hotel shows that CHAN and FUNG were observing this meeting.
17.   During the morning of 20 May 2014 McNAMARA was in telephone contact with ROGERSON.
18.   At approximately 11.37am McNAMARA used a payphone in the Cronulla mall to telephone the deceased. The Crown will allege that this was to confirm a meeting later that day when the deceased would supply the three kilograms of methylamphetamine.
19.   At approximately 12.04pm the white Ford Falcon station wagon, registration BV67PX drove in to the underground car park of the … apartments. The vehicle exited the car park at 12.10pm.
20.   At approximately 1.16pm ROGERSON arrived at Rent a Space, Padstow driving his silver Ford Falcon station wagon, registration AF70SR. McNAMARA was seated in the passenger seat at the time.
21.   ROGERSON parked in the vicinity of storage shed 803 and both he and McNAMARA walked to, and then entered, storage shed 803. McNAMARA was wearing a hooded jumper and was carrying something under his arm as he walked. At approximately 1.25pm ROGERSON and McNAMARA drove away in ROGERSON’s vehicle.
22.   At approximately 1.33pm the white Ford Falcon station wagon, registration BV67PX was driven along Arab Road, Padstow. The vehicle parked on the northern side of Arab Road near, and facing, Davies Road. The Crown will allege that this vehicle was driven by McNAMARA.
23.   Moments after the white Ford Falcon drove on Arab Road, the silver Ford Falcon station wagon, registration AF70SR owned by ROGERSON drove on Arab Road and performed a u-turn outside Mick’s Meats and parked on the street outside that business’s car park.
24.   At approximately 1.39pm the deceased’s white Nissan Sylvia vehicle, registration BW043W arrived in Arab Road, Padstow. The deceased was driving the vehicle and CHAN and FUNG were passengers.
25.   As the deceased drove on Arab Road, ROGERSON moved his vehicle from outside Mick’s Meats and parked in the car park of that business. The deceased parked in the space vacated by ROGERSON.
26.   The deceased got out of his vehicle carrying a black back pack and walked to the white Ford Falcon, registration BV67PX which the Crown alleges was driven by McNAMARA. The deceased got in to the vehicle, while CHAN and FUNG remained with the deceased’s vehicle. The Crown will allege that the backpack carried by the deceased contained the three kilograms of methylamphetamine that the deceased intended to supply to McNAMARA.
27.   ROGERSON exited the Mick’s meats car park in his silver Ford Falcon station wagon, registration AF70SR and followed the white Ford Falcon station wagon, registration BV67PX containing the deceased and McNAMARA along Arab Road and on to Davies Road.
28.   At approximately 1.42pm the white Ford Falcon station wagon, registration BV67PX driven by McNAMARA and containing the deceased, arrived at Rent a Space, Padstow.
29.   McNAMARA parked the vehicle outside storage shed 803. McNAMARA opened the roller door to storage shed 803, and then opened the rear passenger door of the vehicle to allow the deceased to walk into the storage shed at approximately 1.45pm. McNAMARA closed the roller door when both he and the deceased were inside.
30.   At approximately 1.46pm ROGERSON’s silver Ford Falcon station wagon, registration AF70SR arrived outside storage shed 803. ROGERSON drove a lap around the complex then parked in an adjoining driveway.
31.   At approximately 1.49pm ROGERSON entered storage shed 803 and closed the roller door behind him.
32.   At approximately 1.58pm ROGERSON exited storage shed 803 and moved his vehicle to park outside storage shed 803, directly behind the white Ford Falcon station wagon, registration BV67PX. He then re-entered the storage shed and closed the roller door.
33.   The Crown will allege that the deceased was killed some time between entering the storage shed with McNAMARA at 1.45pm, and ROGERSON exiting the storage shed to move his vehicle at 1.58pm.
34.   At approximately 2.03pm McNAMARA emerged from the storage shed. He was no longer wearing the hooded jumper that he had been wearing when he arrived with the deceased. Instead, McNAMARA was wearing a pink t-shirt.
35.   At approximately 2.09pm McNAMARA exited the storage shed and removed an empty silver surf board cover from the rear of the white Ford Falcon station wagon, registration BV67PX. He then re-entered the storage shed.
36.   At approximately 2.18pm McNAMARA and ROGERSON dragged the silver surf board cover from the storage shed and loaded it in to the rear of the white Ford Falcon station wagon, registration BV67PX. The Crown will allege that the silver surf board cover contained the body of the deceased. Both McNAMARA and ROGERSON placed a number of office chairs from inside the storage shed on top of the silver surfboard cover in the rear of the vehicle.
37.   At 2.22pm ROGERSON and McNAMARA got in to their respective cars and drove out of Rent a Space.
38.   At approximately 3.00pm McNAMARA and ROGERSON arrived at the … apartments in Cronulla in the white Ford Falcon Station wagon, registration BV67PX, and entered the underground car park. The vehicle also contained the body of the deceased inside the silver surfboard cover, and also the methylamphetamine that the deceased had brought to the meeting with McNAMARA.
39.   CCTV footage from within the lifts at the … apartments shows McNAMARA in a lift at approximately 3.12pm wearing a pink t-shirt and carrying rope. The Crown will allege that this is the same pink t-shirt that McNAMARA was wearing at Rent a Space earlier in the afternoon.
40.   At about 4.00pm that afternoon McNAMARA and ROGERSON left the … apartments in the white Ford Falcon station wagon, registration BV67PX and drove to Kennards Hire, Taren Point.
41.   At Kennards Hire, Taren Point, McNAMARA and ROGERSON hired a chain block. This was paid for using McNAMARA’s credit card.
42.   At about 4.50pm the white Ford Falcon station wagon, registration BV67PX returned to the … apartments at Cronulla and entered the underground car park.
43.   CCTV footage from inside the lift at the … apartments shows McNAMARA and ROGERSON together getting in to a lift on the basement level at approximately 6.24pm.
44.   During the afternoon and evening of 20 May 2014, friends of the deceased became increasingly concerned for his welfare. They attempted to locate the deceased without success. The deceased’s mobile phone, wallet and passport were in his vehicle, which was still parked in Arab Road, Padstow, where CHAN and FUNG were waiting for the deceased to return.
45.   On 21 May 2014 friends of the deceased contacted NSW Police and expressed concerns for the welfare of the deceased.
46.   At about 7.10am on 21 May 2014, McNAMARA entered the lift at the … apartments carrying a plastic bag. CCTV footage from within the lift shows what appears to be clothing in the bag, including a pink item which the Crown will allege was the pink shirt that McNAMARA was wearing the previous day.
47.   At about 7.30am McNAMARA’s blue Ford Falcon XR6, registration 260BOS drove out of the underground car park at the … apartments towing McNAMARA’s Quintex boat. In the back of the boat was an uncovered surfboard, and the body of the deceased wrapped in a blue tarpaulin. ROGERSON was with McNAMARA at this time.
48.   The Crown will allege that between about 8.00am and 11.00am on 21 May 2014 McNAMARA and possibly ROGERSON took the Quintex boat out to sea off the coast of Cronulla and disposed of the body of the deceased in the ocean.
49.    At about 11.00am on 21 May 2014 McNAMARA arrived at Hunter Self Storage, Taren Point towing his Quintex boat with his blue Ford Falcon XR6, registration 260BOS. McNAMARA returned the boat to storage without notifying staff or following normal procedure whereby the boat would be “signed in”. He then left Hunter Self Storage.
50.   At approximately 12.30pm on 21 May 2014 McNAMARA and ROGERSON arrived at Rent a Space, Padstow in McNAMARA’s blue Ford Falcon XR6, registration 260BOS. Both men entered storage shed 803, and at one point ROGERSON exited the storage shed in order to fill a green bucket with water. The Crown will allege that over approximately 40 minutes both ROGERSON and McNAMARA cleaned the storage shed.
51.   On the morning of 22 May 2014 McNAMARA attended K-Mart, Sylvania and purchased brown pillow cases, a measuring jug, and a plastic spoon.
52.   Later that morning ROGERSON returned to Rent a Space, Padstow in his silver Ford Falcon station wagon, registration AF70SR. He parked outside storage shed 803 and removed an office chair from the boot of his vehicle. He placed the chair inside the storage shed, and then left.
53.   In the early hours of 24 May 2014, Police executed a search warrant at the … apartment, Cronulla, and seized the white Ford Falcon station wagon, BV67PX. In the rear of the vehicle Police located a green backpack which contained a brown pillow case. Inside the brown pillow case were two large resealable plastic bags, each containing a crystallised substance.

54.   Under the driver’s seat was another brown pillow case containing another resealable plastic bag filled with a crystallised substance.
55.   Subsequent analysis of this crystallised substance revealed it to be the prohibited drug methylamphetamine with a total combined weight of 2.78 kilograms.
56.   Forensic analysis of the inside of the vehicle BV67PX revealed the presence of McNAMARA’s fingerprint on the inside driver’s door.
57.   After the seizure of the vehicle by Police, McNAMARA made a number of telephone calls to ROGERSON. At about 11.15am on 24 May 2014 McNAMARA drove to the Sydney Domestic airport and met with ROGERSON, who was at the airport preparing to depart for a pre-arranged trip to Queensland.
58.   At about 6.20pm on 25 May 2014, McNAMARA was arrested while driving his blue Ford Falcon XR6, registration 260BOS. He was taken to St George Police Station, where he agreed to participate in an electronically recorded interview with Police. During the video recorded interview McNAMARA was shown a number of photographs and stills from CCTV footage. He declined to answer any questions. McNAMARA was then charged.
59.   That evening Police executed a search warrant on McNAMARA’s home in the … apartments at … Cronulla. Among the items located by Police were the following:
•   The keys to the white Ford Falcon station wagon, registration BV67PX
•   A handwritten note containing the entry code for Rent a Space, Padstow
•   A receipt for the purchase of the white Ford Falcon station wagon, registration BV67PX, containing ROGERSON’s fingerprint

60.   During the evening of 25 May 2014 Police also executed a search warrant at Hunter Self Storage, Taren Point. McNAMARA’s Quintex boat was seized. Inside the boat Police located a surfboard without a cover.
61.   During the same evening Police executed a search warrant at ROGERSON’s premises at 22 Churchill Street, Padstow. Police seized clothing similar to that worn by ROGERSON in CCTV footage from Rent a Space, Padstow on 20 May 2014.
62.   Police also seized ROGERSON’s silver Ford Falcon station wagon, registration AF70SR. The vehicle contained a number of ropes and a chain.
63.   During the evening of 25 May 2014 Police also executed a search warrant at storage shed 803 at Rent a Space, Padstow. Forensic examination of the storage shed revealed the presence of McNAMARA’s fingerprints inside the storage shed.
64.   During the morning of 26 May 2014 the body of the deceased was located floating approximately 2.5 kilometres off the shore of Shelly Beach, Cronulla. The deceased’s body was within a silver surf board cover, and the bag was wrapped in a blue tarpaulin. The deceased’s ankles were tied together with ropes on the outside of the surfboard cover, and the blue tarpaulin was wrapped in chains and rope.
65.   A subsequent post mortem revealed that the deceased had been shot twice in the chest with a .25 calibre firearm, causing his death.
66.   Forensic examination of the ropes wrapped around the surfboard cover and the ropes and chain wrapped around the blue tarpaulin revealed them to be consistent in colour pattern, thickness, and type to those found in the boot of ROGERSON’s silver Ford Falcon station wagon, registration AF70SR.
67.   On 27 May 2014 ROGERSON was arrested at his home. He declined the offer to participate in an electronically recorded interview with Police, and was subsequently charged.

On 5 June 2015, in the course of the hearing of earlier pre-trial applications, the Crown Prosecutor provided further detail as to the basis upon which the case is put against each of the accused. In particular, the Crown Prosecutor said (commencing at T209 L23):

“In relation to the murder, the Crown will put its case that both accused were part of a joint criminal enterprise to kill or inflict grievous bodily harm on the deceased. The facts will show ‑ the evidence will show ‑ the evidence is that either accused could be the shooter. The Crown does not have to nominate who is the shooter, just so long as the shooting was done in the carrying of a joint criminal enterprise that was formed between the two at some time prior to the shooting.
The Crown case is that the shooting occurred during that period of time from when the deceased went into the storage shed until the time that he was removed.”

The Crown then continued (commencing at T209 L39):

“The alternate bases (sic) if you like, is that one or other of the accused shot the deceased twice. That would be a principle (sic) in the first degree, or that one or other of the accused was present aiding and abetting the shooter in the shed. That accused would be a principle (sic) in the second degree, or that the accused, Rogerson, was not present inside the shed when the deceased was shot, but he was part of a joint criminal enterprise to kill the deceased and his presence is not required to establish murder, on the basis for murder, for accessory before the fact.
That is, in nutshell, how the Crown would will present the case and your Honour can see that essential to that is establishing that both parties were ‑ both accused were ‑ party to this joint criminal enterprise.”

In relation to the count against each accused of supplying a prohibited drug the Crown said (commencing at T210 L4):

“…the case in relation to the second count, the supply, is, the two accused was on the basis of being in possession, extended definition of supply, that both accused were in possession of the amount of drugs, the quantity of drugs that were found in the car on, I think a double of days afterwards ‑ 2.78 kilograms. The representations made by the deceased to others, one or two others, was that he was taking something in the order of three kilograms to the meeting.
So, the evidence there is that combination of the finding of something in the order of 3 kg and the statement of intention by the deceased that that is where he was taking there for the purpose in his mind anyway of selling the drug.
Also, it is open to the Crown to rely upon the deeming section, section 29 of the Drug Misuse and Trafficking Act was well over the amount that, if the jury is satisfied the accused are in possession, then they are deemed to be in possession for the purpose of supply.”

When I enquired as to the circumstances upon which the Crown relied to establish the possession by each of the accused of a prohibited drug the Crown said (commencing at T210 L24):

“That it was taken there to the shed. There is also evidence that Jamie ‑ well evidence of what he told people. There is also evidence that he was apparently carrying a backpack across the car in Arab Drive, that is the white station wagon and the finding of the drug subsequently, in the car of…Yes. And also in relation to that the 2.78 kg was found in brown pillow slips. There is evidence that Mr McNamara purchased brown pillow slips from Target or something.”

The Crown then continued (commencing at T211 L6):

“The Crown puts its case that at some time after Jamie Gao entered that shed they came into possession of that 3 kilos and the overwhelming inference, apart from the seeming section is that they kept possession of it, that it would be subsequently used for supply.
The Crown case is essentially this, that there was a plan between both accused to take the deceased to the storage shed, a place that took the deceased away from any support from colleagues, a place that in the middle of the day would be in darkness, once the roller shutter was rolled down; a place that his friends could not follow him to, they could go as far as the outside of the storage facility but couldn't get in.
The location, the evidence establishes that both accused had been to, on a number of occasions, and tested ‑ I use that word 'tested', your Honour, tested the quality or the working of the door and I will come to the specific evidence on that because the Crown points to that aspect which isn't ‑ doesn't jump out at one immediately but when one looks more closely at the evidence, there is something very distinctive about that, what is done, with both of them there in relation to the shed door.”

THE CASE FOR EACH ACCUSED

The case for Rogerson

A response to the Crown case statement filed on behalf of Rogerson pursuant to s. 143 of the Criminal Procedure Act 1986 (NSW) states (inter alia) the following:

“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”.

In the course of the hearing of the present applications counsel for Rogerson informed me (at T101 L10) that Rogerson will give evidence at his trial.

The case for McNamara

A supplementary response to the Crown Case Statement filed on behalf of McNamara pursuant to s. 143 of the Criminal Procedure Act 1986 (NSW) is in (inter alia) the following terms:

“In terms of the charge of murder, the accused denies such offence. The accused denies that he was a party to a joint criminal enterprise with the co-accused with respect to the said offence. The accused denies he was responsible for the discharge of the firearm and/or the death of the deceased.
The co-accused directly and or indirectly made representations to the accused and others after the death of the deceased. The accused acted upon the representations”.

Counsel for McNamara informed me that in the event that the matter proceeded as a joint trial, he proposed to canvass two particular matters in the course of cross-examining Rogerson. Firstly, counsel proposes to seek leave to cross-examine Rogerson about his previous convictions as set out in the tendency notice. Secondly, counsel informed me that he proposed to put to Rogerson that whilst he and McNamara were sharing a cell following their respective arrests, Rogerson “was attempting to get (McNamara) to give false accounts” of what had occurred (T104 L39-41). Counsel went on to state (commencing at T104 L50) that Rogerson “would be challenged on his attempts to cajole, threaten and attempt to assert a false view of the circumstances of the murder”.
The generality of the supplementary response set out in [21] above will be self-evident. However on the hearing of the present applications counsel for McNamara stated in specific terms (commencing at T101 L32) that McNamara will give evidence at his trial.
Counsel informed me that (at T103 L22 and following) that he expected that McNamara’s evidence of the circumstances of the deceased’s murder would be generally consistent with the contents of a document (“the report”) produced in a redacted form by the NSW Crime Commission (“the Commission”) pursuant to a Subpoena. As I have discussed in more detail below, one of the two bases upon which McNamara seeks an order for a separate trial concerns the use to which the contents of that report might be put if a joint trial were to proceed. It is therefore appropriate that I set out the entirety of the contents of the report as it was produced to the Court (save for the additional redaction of Rogerson’s home address):

“Following a request from Ian Lloyd QC, arrangements were made to have his client Glen McNAMARA transported from custody to the Commission on 4 June 2014. Mr Lloyd indicated that McNAMARA wished to provide information in relation to the matter for which he has been charged (REDACTED).
MCNAMARA arrived at the Commission at approximately 1400hrs and was secured in Interview Room 1 and provided with refreshments. Mr Lloyd and Hudson Lu (solicitor) attended a short time later and were provided with the opportunity to meet with their client.
At 1445hrs, Tim O’Connor, Director, Criminal Investigation, Neil Tuckerman, Assistant Director, Criminal Investigations (REDACTED) entered the interview room and were introduced to those present.
Mr O'Connor commenced the meeting by providing McNAMARA with an inducement and explained that the Commission had no involvement in the investigation of the matter for which McNAMARA has been charged and as such, any information provided by McNAMARA would be referred to the NSW Police. Mr O'Connor added that Detective Superintendent Kenneth Finch, Commander, State Crime Command and Detective Superintendent Luke Moore, Commander, SCC Robbery and Serious Crime Squad were aware that McNAMARA was in attendance at the Commission on this date. McNAMARA indicated that he understood this and Mr Lloyd stated that McNAMARA sought to provide information in relation to: the murder of Jamie GAO; (REDACTED) Mr Lloyd stated that he would in turn request that a letter of assistance be provided on behalf of McNAMARA. Mr Lloyd also explained that McNAMARA would also seek assistance in being transferred to the Special Purpose Centre. McNAMARA stated that he is currently incarcerated in a segregated section of the Correctional Centre but had recently been left unattended in the medical facility where he was accused by another inmate of being a "copper dog."
Mr O'Connor enquired as to why McNAMARA had requested an interview with officers from the Commission rather than the NSW Police. McNAMARA explained that his motivation was threefold: he was concerned that the NSW Police officers with carriage of his matter had used unnecessary force during his arrest; he had been assured by Mr Lloyd that he would receive fair treatment by the Commission and he was concerned that Roger ROGERSON (DOB 03/01/1941) still maintained contact with officers from the NSW Police. (REDACTED).
McNAMARA then commenced discussing the circumstances regarding the murder of GAO which are outlined below as a chronological sequence of events (reporting officer comments italicised). It is noted that Mr O'Connor explained that he would not question McNAMARA in relation to the matter but rather, requested that McNAMARA provide his account unprompted.
Association with Roger ROGERSON
McNAMARA was not associated with ROGERSON during his time as an officer of the NSW Police.
McNAMARA met ROGERSON in 2011 at a book launch for Larry Writer's book regarding Frank "Bumper" FARRELL (Bumper; The Life and Time of Frank 'Bumper" Farrell' published 1 March 2011). McNAMARA obtained ROGERSON's telephone number at the launch and they maintained sporadic contact.
After the launch of McNAMARA's second book (Savage Obsessions published 1 March 2012), ROGERSON assisted McNAMARA in one of McNAMARA's private enquiry matters by providing a half page of information (not further described).
ROGERSON introduced McNAMARA to a number of his associates including Mick MAGUIRE (Michael MAGUIRE DOB 21/10/1958), Craig GEORGE, Bill WALSH and Ian TEASEDALE. McNAMARA would occasionally socialise with this group at the Grandviews Bowling Club (Club Grandviews, 821 Forest Road PEAKHURST).
In December 2012/January 2013, the relationship between McNAMARA and ROGERSON developed from being a social one to a work-related one when ROGERSON led McNAMARA into some (private enquiry) work (REDACTED)

ROGERSON also retained McNAMARA to assist him in collating information (REDACTED)

Association with GAO
McNAMARA met GAO in January 2014 when he was retained by Charles Moschoudis, Barrister, who was briefed by Adam Ly, Solicitor, to gather information in relation to the case of Chun Lok LAM (LAM Chun Lok DOB 23/12/1990), his brother (LAM Chun Kit DOB 15/08/1992) and BJ Wang (possibly HE Shuyuan DOB 25/08/1991). GAO, an associate of Lok, was assisting in the matter by acting as a translator on behalf of Lok.
After reviewing the material available, McNAMARA came to the conclusion that GAO had likely been involved in the matter for which Lok et al had been charged.
Some time in January 2014, McNAMARA reported back to Mr Moschoudis that he was surprised that GAO had not been arrested and charged in relation to the matter.
At this time, Lok was on bail and was due to be sentenced in February 2014.
Around this time, GAO liaised with Lok's solicitor and had the sentencing hearing adjourned. GAO then travelled to Hong Kong, where he spent one month.
Shortly after GAO returned from Hong Kong, Lok was sentenced to approximately 4 years' imprisonment (Records on the NSW Department of Corrective services database indicate that LAM Chun Lok was sentenced to 6 years' and 9 months imprisonment with a non-parole period of 4 years and 6 months).
Shortly after this, McNAMARA received an SMS message from GAO (sent on behalf of Lok) complaining that Mr Ly had charged too much for his services and requesting assistance in obtaining Lok's passport. Lok was also dissatisfied with the custodial sentence he had received, believing it to be too severe. McNAMARA referred the complaint to Mr Moschoudis who explained that the Australian Federal Police had seized the passport.
In a series of subsequent conversations with McNAMARA, GAO explained that he had been accused of being a "dog" in the Lok matter and had had to travel to Hong Kong to "front the heads of the group."
In March/April 2014, McNAMARA met GAO at the Roundhouse Hotel in Hurstville (possibly a reference to the former Roundabout Hotel- currently known as the Meridian Hotel located at 220 Forest Road HURSTVILLE). GAO initiated the contact with McNAMARA- as was the case 90% to 95% of the time- and explained that he had been arrested and charged in relation to a kidnapping and assault.
GAO claimed that a Triad member in Hong Kong had felt disrespected by (an unidentified) male in Australia and had tasked GAO with assaulting this male.
GAO claimed that he went looking for the (unidentified) male but could not locate him so attended the home residence of the friend of the male in an attempt to locate the male. The friend could not (or would not?) assist in locating the male so GAO assaulted the friend, breaking his jaw.
GAO stated that he was using a female solicitor to represent him in the matter and that he would attempt to have the matter adjourned to enable him to travel to China to "make money doing things." GAO claimed that the Triads were using "walkers" who transported prohibited drugs- 2.5 kilograms to 3.5 kilograms of heroin and ice at a time- from Hong Kong to Australia on commercial flights. GAO told McNAMARA the Triads were using "Chinese underground Skype" to communicate. GAO also mentioned the use of BlackBerry devices and said that all the quantities of prohibited drugs that were imported were communicated via BlackBerry.
McNAMARA warned GAO that he had acted "outrageously" in relation to the Lok matter and should have been arrested. McNAMARA questioned if GAO was a "dog" however, GAO did not reply.
McNAMARA suggested to GAO that he inform the Police of the circumstances surround the kidnapping/assault matter.
During this time, McNAMARA mentioned the GAO matter to ROGERSON.
In April 2014, ROGERSON informed McNAMARA that he had "some Chinese friends" that knew GAO and that he wished to meet with GAO. ROGERSON added that he knew "lots of Chinese people in GAO's game" who had said that GAO was a "naughty boy." This conversation took place at ROGERSON's home in Padstow (ADDRESS REDACTED).

McNAMARA was happy to introduce ROGERSON to GAO as he wanted to extract himself from the GAO matter.
Shortly after this, McNAMARA met with GAO at the Meridian Hotel and informed him that "someone" wanted to meet him. GAO did not know anything about ROGERSON but McNAMARA had described him as "someone who might be able to help (GAO) with the kidnapping thing." GAO agreed but stated that he did not want the meeting with ROGERSON to occur at the Meridian Hotel.
After some "to-ing and fro-ing" between GAO and McNAMARA and ROGERSON and McNAMARA, it was agreed that the meeting would take place at playing fields in Hurstville that are adjacent to the car park of the Hurstville Aquatic Centre (Peakhurst Park).
(REDACTED)
The meeting between ROGERSON and GAO (facilitated by McNAMARA) occurred on 3, 4 or 5 April 2014. During this meeting, ROGERSON said to GAO, "What are you doing? Everyone knows you are a Triad. Why aren't you in gaol?" GAO admitted that he had made certain promises to the Triads that he could not deliver and had gotten himself into some trouble. GAO also explained that he had had a knife held to his throat (by an unidentified individual) at the Charlie Chan nightclub in Haymarket (Charlie Chans located at 635 George Street SYDNEY). ROGERSON told GAO that he would see his "Chinese people" and "sort out (GAO's) problems." ROGERSON suggested that GAO make contact with him through McNAMARA but added that he would contact GAO directly. The meeting lasted approximately 20 to 25 minutes.
After this meeting, McNAMARA believed that ROGERSON was going to assist GAO in relation to the Triads and whilst it was not explicitly stated, was also interested in obtaining prohibited drugs from GAO.
Approximately 1 week later, on/around 11/12 April 2014, a second meeting between ROGERSON, McNAMARA and GAO occurred at the same location in Hurstville (Peakhurst Park). The meeting occurred at 1030hrs. McNAMARA drove his blue Ford to the meeting, ROGERSON drove his station wagon and GAO arrived in a white vehicle. At this meeting, ROGERSON told GAO that he could "sort the Triads" and indicated that he wished to do drug business with GAO. GAO agreed but explained that it may take some time. ROGERSON did not indicate at this meeting the type of drugs he sought nor the quantity he required. By this time, GAO had obtained a new service and provided this new service to ROGERSON. ROGERSON did not enter the number in his handset but rather, wrote it down. McNAMARA was stunned that ROGERSON was proposing this to GAO. The meeting lasted approximately 20 to 25 minutes.
Once GAO had departed the meeting, McNAMARA asked ROGERSON "what are you doing?" ROGERSON replied, "It will be alright. It won't happen." McNAMARA told ROGERSON that he did not want anything to do with the matter and they travelled to ROGERSON's home to discuss the matter further. ROGERSON told McNAMARA, "It's bullshit- it won't happen."
Following this, McNAMARA had contact with both GAO and ROGERSON in relation to a number of different matters. McNAMARA tried to avoid meeting with GAO and in a number of SMS messages claimed he could not attend meetings as he was working or was in Melbourne. McNAMARA used these excuses as a way to avoid GAO but was not actually working or in Melbourne. On one occasion, GAO sent an SMS message at 0030hrs but McNAMARA was asleep. ROGERSON told McNAMARA that he had been meeting with GAO and they were "talking." McNAMARA was not present at these meetings.
Around this time, McNAMARA met GAO on one occasion. GAO stated that he wanted to "do business" with ROGERSON but stated that he had "problems with the Triads." GAO claimed to be "in a jam" with Triad members in Hong Kong and in Cabramatta. GAO did not want a long term arrangement with the Hong Kong members who he viewed as being "inferior" but rather, sought a long term arrangement with the Cabramatta members. McNAMARA thought GAO was "jumping at shadows" during this meeting.
McNAMARA also met with ROGERSON and discussed GAO. ROGERSON had claimed that GAO was a "naughty boy" and that he might need McNAMARA's "help" with GAO.
Approximately 1 week after McNAMARA's birthday (07/04), McNAMARA received his Superannuation payout of $220,000- 40% of which he provided to his ex-partner as part of their property settlement. McNAMARA also had a cheque for the proceeds of the sale of his property and had approximately $194,000 in a bank account. McNAMARA intended on using the money to purchase a property in which he and his daughters would reside.
At some stage, McNAMARA became aware that ROGERSON had indicated to GAO that he wanted the "gear on tick." GAO said that the deal was to be for 1 to 2 kilograms of "ice" which GAO communicated by pointing at his eye which would be sold to ROGERSON for $150,000 per kilogram. The price was cheap because it was understood that ROGERSON would assist GAO with the Triads. GAO had told McNAMARA that people GAO knew had vouched for ROGERSON.
McNAMARA tried to persuade ROGERSON not to do the deal with GAO (REDACTED) ROGERSON assured McNAMARA by saying, "It'll be right."
McNAMARA was aware that ROGERSON did not have the means to pay for the purchase of "ice" and warned ROGERSON that he could not "rip off GAO.
Approximately 1 week before the murder of GAO, McNAMARA met with GAO who said, "Roger said you are worried about this." McNAMARA asked GAO how he knew ROGERSON had the money to pay for the drugs. GAO said he was not worried about this. At this meeting, GAO told McNAMARA that ROGERSON had told GAO, "never use my (ROGERSON's) name- just use Glen" when communicating. McNAMARA told GAO not to proceed with the deal as GAO would end up getting killed by the Triads because of it. McNAMARA later confronted ROGERSON about the use of his name rather than ROGERSON's.
On the Monday before the murder (Monday 19 May 2014), McNAMARA received an SMS message from GAO requesting a meeting with McNAMARA. Arrangements were made to meet at a pub in Hurstville (not further described). GAO informed McNAMARA that the deal would proceed the next day. McNAMARA warned GAO that ROGERSON would not pay. GAO instructed McNAMARA to prank call him the following day which would prompt GAO to send an SMS message detailing the time of the meeting/deal.
McNAMARA is aware that ROGERSON had met with GAO on the Monday and assured GAO by saying, "I've got it all worked out with my Chinese friends."
20 May 2014
At approximately 1130hrs on Tuesday morning (20 May 2014), McNAMARA went to the mall in Cronulla and used a payphone to contact GAO. McNAMARA had GAO's number written on a post-it note. GAO answered, "Wei?" and McNAMARA hung up. McNAMARA then went home and discovered an SMS message from GAO asking, "can we go for a drink?" McNAMARA knew this was code to indicate that the deal was on.
At approximately 1150hrs, McNAMARA travelled to ROGERSON's house. ROGERSON informed McNAMARA, "It'll be alright. You have got to come." ROGERSON stated that he had organised the meeting with GAO for that day and said, "we will go and meet him at Padstow McDonalds and take him to Mick's storage unit. We have to be there at 1:30 at Maccas." ROGERSON provided McNAMARA with the PIN code to enter the storage unit complex which was written on a slip of the Daily Telegraph. The PIN ended with a "5." The meeting at ROGERSON's home lasted approximately 45 minutes.
McNAMARA knew the reference to "Mick's storage unit" referred to a storage unit in Padstow leased by ROGERSON's associate Michael MAGUIRE. In April 2014, ROGERSON had told McNAMARA that he had had sole use of the unit for the past 2 months. The unit had originally been leased by MAGUIRE to store office furniture from MAGUIRE's business Platinum Biz which had ceased trading. ROGERSON was assisting MAGUIRE in selling the furniture and had offered some pieces to McNAMARA. McNAMARA had been to the storage unit 2 to 3 times to inspect the furniture with a view to helping ROGERSON sell it.
After meeting at ROGERSON's house, McNAMARA and ROGERSON travelled to McDonalds at Padstow. ROGERSON told McNAMARA that they should travel in separate vehicles. McNAMARA used a white Ford station wagon that he had obtained approximately 3 to 5 weeks earlier with ROGERSON's help through a "bent" car dealer known to Karl BONNETTE (DOB 08/06/1935). The vehicle had 3 months' registration left and the deal was that McNAMARA pay $2,000 for the vehicle and keep the car registered to the car dealership until the registration expired. McNAMARA purchased the vehicle as running his V8 was costing him too much and his daughters were not licenced to drive the V8. When the vehicle was purchased, it came with 2 sets of keys and ROGERSON had use of it for a short time. On this day, the vehicle had an assortment of items in it such as boxes of coat hangers which had been placed there after McNAMARA "culled" his garage in preparation of being taken to the tip.
ROGERSON travelled to McDonalds in his own station wagon.
From ROGERSON's house, McNAMARA took the following route: North on Davies Road; right at the lights past McDonalds (Watson Road); right at the industrial estate (Stuart Street) and right again to lead to the corner of McDonalds (right at Arab Road to lead to the corner of Arab Road and Davies Road).
McNAMARA parked his vehicle and waited a few minutes before GAO arrived in a Nissan. McNAMARA saw one other individual in the Nissan vehicle who appeared to be a 10 year old child of Asian appearance. ROGERSON, who was parked behind where McNAMARA and GAO had parked, later told McNAMARA that he had seen two individuals in the Nissan vehicle with GAO.
GAO spotted McNAMARA and ran across the road carrying a duffle bag and got into the rear passenger foot well with his head behind the driver's seat. McNAMARA thought that the bag GAO was carrying would contain drugs. McNAMARA asked GAO if the person in the Nissan vehicle was the brother of GAO. GAO replied, "No- that's the retard." McNAMARA knew this meant it was one of the (Triads) from Hong Kong who GAO referred to as "retards."
McNAMARA drove to the storage unit- approximately a 3 minute trip- and entered the PIN provided to him by ROGERSON. McNAMARA entered the PIN incorrectly the first time and then re-entered it successfully and travelled through the gate with ROGERSON following closely behind. McNAMARA pulled up to unit 803. McNAMARA was aware that there was CCTV recording in the area.
As McNAMARA parked his vehicle he could see ROGERSON motioning with his hands to move the vehicle closer to the unit. GAO (who was still lying in the rear passenger foot well) asked if ROGERSON was behind them. McNAMARA confirmed he was and GAO said, "he wants you to park close." McNAMARA assumed that ROGERSON must have told GAO that McNAMARA should park as close to the unit as possible as it would not have been possible for GAO to see ROGERSON motioning with his hands from his position in the foot well.
McNAMARA angled his vehicle closer to the unit. The vehicle was parked across the roller door. ROGERSON parked very closely behind McNAMARA in the same position-blocking the neighbouring unit's doors.
McNAMARA opened the roller door with a key he had. The door was brown and had a recessed padlock. When McNAMARA opened the door, he could see the office furniture that had been there the last time he had attended the unit. A whiteboard was on the Southern wall of the unit, a Director style chair and a red office chair were in front of this and a round table was in the middle of the unit.
McNAMARA opened the rear passenger door of his vehicle and GAO crawled out of the vehicle and into the storage unit. The bag GAO was carrying was tucked under GAO's arm. The bag was a dark colour- either black or blue.
McNAMARA looked at ROGERSON's vehicle and could see him seated in the driver seat, fiddling with something that was out of sight.
As ROGERSON started to exit his vehicle, GAO told McNAMARA to close the roller door. McNAMARA did this which eliminated the outside light source. In the darkness McNAMARA tripped on the red office chair, fell and hit his head.
As McNAMARA stood up there was a bang on the roller door. McNAMARA opened the door and ROGERSON entered. ROGERSON was wearing a collared polo shirt and shorts. ROGERSON switched on a camping torch that was on top of a piece of furniture at the front of the unit and McNAMARA closed the roller door. By this stage, GAO had taken a seat in a black fabric covered office chair that was in the unit. McNAMARA was positioned to the left of ROGERSON.
ROGERSON said to GAO, "Hello Jamie. Have you got something for me?" GAO was still seated in the black chair and was cuddling the bag. GAO replied, "Money?" ROGERSON said, "Oh no, no money" and pulled a small, black automatic gun from his pocket. The gun fitted in ROGERSON's hand. McNAMARA thought the gun was a .225* or a Walther. McNAMARA had never seen the gun before. *A .225 Winchester is a rifle-not a hand gun. When questioned as to why he believed the firearm to be a .225 or a Walther, McNAMARA explained that he had recently obtained a firearms licence and while he was not yet eligible to purchase a firearm, he had researched various firearms and became familiar with the Walther which is what ROGERSON's firearm resembled. McNAMARA also claimed that later, when he was retrieving the empty casings from the shots fired by ROERSON, he had read .225 on the bottom of the casing.
As ROGERSON produced the gun, GAO reached for a knife that was down the front of his pants or in his right hand pants pocket. The knife had a black handle with 3 to 4 finger grips and a double-edged blade. The knife was not sheathed.
GAO had not pulled out more than the handle when ROGERSON shot him twice in the chest. ROGERSON was standing approximately an arm and a half length from GAO. The gun was not silenced.
GAO did not fall off the chair in which he was seated but rather slumped down. GAO let out a gasp and then rasping breaths.
ROGERSON turned to McNAMARA and said, "don't be a weak cunt" whilst pointing the black gun at his chest. ROGERSON's finger was on the trigger.
ROGERSON ordered McNAMARA to get on the ground and said, "I fucking done Drury- I can do you." McNAMARA vomited a small amount of bile near the leg of the whiteboard. ROGERSON yelled, "don't be a weak cunt" and told McNAMARA, "give me a fucking hand with him."
McNAMARA threw the bag GAO was holding to ROGERSON who placed it on the table in the unit. McNAMARA then pulled GAO's body off the chair. ROGERSON looked at GAO and said, "yep- he's dead. Wrap him up."
ROGERSON continued to threaten McNAMARA with the black gun and said, "I'd hate to have to go and see your lovely daughters."
ROGERSON exited the garage and started carrying in ropes and a blue tarp that he had in his car. McNAMARA remained in the unit.
ROGERSON took the knife from GAO's body and placed it on the table next to the bag.
McNAMARA and ROGERSON started to wrap the body. ROGERSON realised that he did not have enough equipment to cover the body and told McNAMARA that he would have to stay with the body whilst ROGERSON went to his house to collect more equipment. McNAMARA remembered he had a surf board cover in his car and told ROGERSON. McNAMARA exited the unit to collect the surf board cover which he then placed over the body.
ROGERSON then secured it with rope and told McNAMARA, "put him in the back of your car and I'll follow you."
GAO's body was heavy and because ROGERSON was not able, McNAMARA did most of the work to get the body into his car.
ROGERSON told McNAMARA to cover the body with a blanket he retrieved from his car. The blanket was a grey travelling blanket that had a red fleck through it. McNAMARA covered the (wrapped) body with the blanket and placed the red chair on top. Some time after this, McNAMARA recovered the grey travelling blanket and folded it and stored it in his (white) vehicle. McNAMARA did this so he had evidence that the blanket had come from ROGERSON's vehicle.
ROGERSON put the black chair in which GAO had been shot in his vehicle. ROGERSON made a comment that they should make it look like they had been to the unit to collect the furniture.
ROGERSON then told McNAMARA, "I need to find the shells." ROGERSON could not find the spent casings and said that they would need to come back to the unit to find them. ROGERSON then asked McNAMARA where his boat was. McNAMARA explained that his boat was in his garage. McNAMARA had the boat serviced recently in Taren Point as there was a problem with an oil leak. The boat is a 4.5m Quicksilver Bay Hunter.
ROGERSON told McNAMARA, "I'll go and see your lovely daughters" and they drove from the unit to McNAMARA's home. They travelled in their separate vehicles with ROGERSON following McNAMARA.
The route McNAMARA took was: Forrest Road, through Penshurst; right onto King Georges Road; over Tom Ugly's Bridge; Port Hacking Road; The Kingsway; Gerrale Street to McDonald Street.
McNAMARA drove into his secure garage with ROGERSON behind him. McNAMARA backed his wagon into the garage and ROGERSON parked close by. ROGERSON asked, "are your daughters at home?" It was around 1430hrs or 1500hrs so McNAMARA's daughters were not home from university and work.
McNAMARA and ROGERSON got the body out of McNAMARA's car and placed it on the garage floor. They attempted to lift the body into McNAMARA's boat but could not. ROGERSON suggested that they travel to Kennards at Taren Point to hire a chain pulley block.
At Kennards Taren Point, they were served by a young male who wore a name tag with "Jake" on it. ROGERSON told this young male that he had a heavy wooden lathe he needed to move and asked for a block and tackle. The male stated that they had block and tackles available.
ROGERSON attempted to pay cash for the hire of the block and tackle but McNAMARA offered to use his EFTPOS card. Once the paperwork was complete they collected the block and tackle and transported it back to McNAMARA's place. McNAMARA stored the paperwork regarding the hire of the block and tackle in the driver side door compartment.
ROGERSON and McNAMARA travelled back to Cronulla and parked their vehicles in McNAMARA's street.
ROGERSON fitted the block and tackle on the left side rail of the boat. They attempted to lift the body into the boat but the gunwale was in the way. They then fitted the block and tackle to the starboard side rail and lifted the body into the boat.
McNAMARA vomited in the garage.
By this stage it was approximately 1730hrs and ROGERSON said, "let's go and see your lovely daughters." McNAMARA looked to see if he and ROGERSON had blood on them. He noticed that neither of them had blood on them but they had grease on their hands from working with the block and tackle.
McNAMARA and ROGERSON went up to McNAMARA's apartment where McNAMARA's daughters Jess and Lucy were. ROGERSON told the girls they had been fixing McNAMARA's boat and suggested that he and McNAMARA were going to go fishing the next day. ROGERSON consumed 2 beers whilst at the apartment and washed his hands with Palmolive soap that he had asked Lucy McNAMARA to fetch from her bathroom as McNAMARA did not have soap in his bathroom that was strong enough to remove the grease on ROGERSON's hands.
After some time, ROGERSON departed saying to McNAMARA, "I'll see you about 7:30 if the fishing is on." McNAMARA agreed.
McNAMARA stayed home and drank a bottle of Maker's Mark Bourbon.
21 May 2014
ROGERSON arrived at McNAMARA's at 0730hrs the next day. McNAMARA attached the boat (on a trailer) to his blue car as the white car had no towbar.
ROGERSON still had the black chair in the back of his car.
McNAMARA and ROGERSON travelled in their separate vehicles to the boat ramp at Grays Point (possibly Swallow Rock boat ramp, Swallow Rock Drive GRAYS POINT). ROGERSON pulled up behind McNAMARA and said that the chair would need to go. McNAMARA put the chair in the boat.
(REDACTED)
The tide was very low- so low that the trailer tyres sunk into the sand when McNAMARA was launching the boat. McNAMARA pulled the boat into a little beach area whilst ROGERSON watched from the area used for trailer parking. McNAMARA parked his car with the trailer and got into the boat. ROGERSON told McNAMARA to collect him from the jetty. McNAMARA pulled the boat to the jetty where ROGERSON got on. ROGERSON was wearing a jacket and carrying a bag.

(REDACTED)
They travelled approximately 20 minutes from shore in a South Easterly direction from the coast. ROGERSON told McNAMARA to avoid Cronulla.
The swell was very large which meant that the boat could not travel at speed.
They reached a point well South of Bundeena and left the boat idling. McNAMARA could still see the National Park and make out the bushland.
(REDACTED)
ROGERSON got the boat's larger sand anchor and attached it to the body. McNAMARA and ROGERSON pushed the body off the boat- from the side between the grab rail and the rear navigational light.
McNAMARA saw the body disappear but had a feeling the body would re-appear because of the size of the swell and the fact that ROGERSON had used a sand anchor. McNAMARA did not mention this to ROGERSON.
They then travelled approximately 200 metres North- or 5 minutes- and threw the chair over.
They travelled back to Port Hacking and as McNAMARA steered the boat back past Jibbon headland, ROGERSON produced the black Walther gun and let 2 shots go over the back corner of the boat- in the direction of McNAMARA. ROGERSON then said, "I don't wanna have to see your lovely daughters" and then produced a 5-shot Smith & Wesson firearm from which he fired a number of shots. The rounds dropped on the boat floor and ROGERSON told McNAMARA, "pick that shit up." McNAMARA collected some of the casings and threw them overboard.
They then travelled back to shore. McNAMARA took the boat to store at Andrew Short Marine (1c Box Road CARINGBAH) and then went home.
At some stage after the boat trip, ROGERSON and McNAMARA went to the Padstow storage unit to retrieve the casings from the 2 shots fired by ROGERSON. They located one casing in the rail adjacent to the roller door and the other up the back of the unit.
22 May 2014
On Thursday morning, McNAMARA noticed a green bag sticking out from under the driver's seat of his white car. When McNAMARA looked in the bag he saw a crystal substance he assumed was "ice." McNAMARA had no idea how the bag got there but knew ROGERSON had a key to this vehicle.
McNAMARA took the bag up to his apartment and attempted to destroy the crystal substance by burning it with a fire starter. The substance which was yellow and brown would not burn- it was like burning fairy floss- so he tried to flush it down the toilet in his ensuite. The substance blocked his toilet so he put it back in the white car.
Later that day, ROGERSON and McNAMARA met at ROGERSON's house to prepare for a meeting (REDACTED). McNAMARA informed ROGERSON that he had found the gear in the white car to which ROGERSON replied, "one of Duff's blokes has got the key and will be around to up" (REDACTED).
McNAMARA told ROGERSON he had disposed of some of the gear. ROGERSON became angry and said, "don't you do that. Don't you dare do that." At some stage, McNAMARA told ROGERSON to shoot him but not to harm his daughters. ROGERSON replied, "you worry too much." ROGERSON also told McNAMARA that he had given his guns "a good wipe down."
At some stage on 22 May 2014, McNAMARA returned the block and tackle to Kennards Taren Point and incurred a $38 late return fee.
ROGERSON told McNAMARA to meet him at the Crown Hotel in Revesby (located at 4 The River Road REVESBY). McNAMARA arrived late and saw that ROGERSON was there with 10 to 12 men including Michael MAGUIRE, Gary WINDRED (DOB 29/04/1958), Joe CALAMARE (ph), Gary WINDRED's son (REDACTED) and an unknown overweight male. Shortly after McNAMARA arrived, Fidel TUKEL (DOB 07/05/1981) and Garth WOOD (DOB 13/06/1978) arrived. TUKEL, with whom McNAMARA had been previously introduced sat down next to McNAMARA and told him that he had recently patched over all of the Rebels MC (Cronulla chapter) members (REDACTED) and that they would keep an eye on McNAMARA. McNAMARA saw ROGERSON wink at TUKEL. TUKEL also mentioned that his wife was due to give birth to their child. McNAMARA remained at the hotel for 3 hours and consumed 2 middies of light beer. Whilst at the hotel, McNAMARA noticed 2 Highway Patrol vehicles parked out the front.
Whilst at the hotel, ROGERSON told McNAMARA not to throw any more gear away. McNAMARA ignored this and on the Friday (23 May 2014) disposed of 2 x 1/2 full plastic bags totalling approximately 1 kilogram.
(REDACTED) McNAMARA and ROGERSON were arrested in relation to the murder of Jamie GAO (27/11/1993 -20/05/2014).
(REDACTED)
Conclusion
The meeting with McNAMARA concluded at 1853hrs. There had been a short break between 1645hrs and 1710hrs during which time refreshments were provided and consumed.
At the conclusion of the meeting Mr Lloyd requested that arrangements be made for McNAMARA to be interviewed by officers from the NSW Police. Mr Lloyd expressed a preference for this interview to take place under inducement and at the Commission with a Commission officer present. McNAMARA stated that he would prefer to complete a signed statement rather than participate in an ERISP. Mr O'Connor stated that he would liaise with the relevant officers and revert to Mr Lu (as Mr Lloyd would be unavailable to attend such an interview this week). Mr Lloyd also requested that the relevant enquiries be made to have McNAMARA transferred to the Special Purpose Centre. Mr O'Connor agreed to do so.
(REDACTED)
During the interview, McNAMARA went into detail regarding how he felt physically and emotionally during various incidents throughout the sequence of events (REDACTED). McNAMARA also went into very specific detail regarding (REDACTED) subjects such as a description of the roller door at the Padstow storage unit, how he tripped and fell whilst alone with GAO in the Padstow storage unit and the grey travelling blanket used to cover the body of GAO (REDACTED). There was a significant amount of repetition in McNAMARA's account and he went into some detail about how he felt threatened by ROGERSON. On a number of occasions McNAMARA made reference to an implied threat made by ROGERSON in relation to his daughters and indicated that ROGERSON may have somehow orchestrated for TUKEL to attend the Crown Hotel in Revesby on 22/05/2014 as a way to intimidate McNAMARA. (REDACTED)
(REDACTED) McNAMARA explained that the surf board cover had been in his vehicle following a clean out of his garage and stated that there was a box of coat hangers and other assorted items in his vehicle to reiterate this claim. McNAMARA also stated that GAO had told him that ROGERSON had instructed GAO to use the name "Glen" when referring to any communication with ROGERSON. McNAMARA claimed that the use of his EFTOPS card to pay for the hire of the chain pulley block was indicative of his desire to leave "evidence" of the matter as was his storage of the receipt regarding that transaction in the white vehicle. McNAMARA also claimed that he was aware that CCTV footage was recording in the vicinity of the Padstow storage unit and that he made no attempt to conceal his attendance at the unit on 21/05/2014.
(REDACTED).”

THE APPLICATION BY MCNAMARA TO ADDUCE TENDENCY EVIDENCE

The relevant statutory provisions

Part 3.6 of the Act is in (inter alia) the following terms:

Part 3.6 – Tendency and coincidence
94 Application
(1) This Part does not apply to evidence that relates only to the credibility of a witness.
(2) This Part does not apply so far as a proceeding relates to bail or sentencing.
(3) This Part does not apply to evidence of:
(a) the character, reputation or conduct of a person, or
(b) a tendency that a person has or had,
if that character, reputation, conduct or tendency is a fact in issue.
95 Use of evidence for other purposes
(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.
96 Failure to act
A reference in this Part to doing an act includes a reference to failing to do that act.
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

The contents of the tendency notice

The terms of the tendency notice are set out at [6] above. As to the evidence which is said to be tendency evidence, the following matters (about which there is no dispute) are relevant.
On 9 March 1990 Rogerson was sentenced in the District Court of NSW to imprisonment for a period of 6 years in respect of a charge of conspiring to pervert the course of justice. On 22 December 1990 the Court of Criminal Appeal upheld Rogerson’s appeal against that conviction. The Court ordered that such conviction, and the sentence imposed, be quashed, and that a verdict of acquittal be entered: R v Rogerson (NSWCCA, 22 December 1990, unreported).
The Crown subsequently sought special leave to appeal to the High Court. On 17 June 1992 the High Court (Mason CJ, Brennan and Toohey JJ; Deane and McHugh JJ dissenting) granted the Crown’s application for special leave to appeal, allowed the appeal, and remitted the matter to the Court of Criminal Appeal: R v Rogerson [1992] HCA 25; (1992) 174 CLR 268. The paragraphs of the joint judgment of Brennan and Toohey JJ which are cited in the tendency notice recount the facts of Rogerson’s offending to which those proceedings related.
When the matter subsequently came before the Court of Criminal Appeal Rogerson’s appeal against his conviction was dismissed. However, the sentence originally imposed was quashed and a sentence of imprisonment of 4 years and 3 months was imposed in lieu thereof: R v Rogerson (1992) 65 A Crim R 530.
On 18 February 2005 Rogerson was sentenced in the District Court of NSW to imprisonment for a period of 2 years and 6 months in respect of a charge of giving false evidence to the NSW Police Integrity Commission: R v Rogerson [2005] NSWDC 22.

Submissions on behalf of McNamara

I have already noted (at [22] above) that in the event of a joint trial, counsel for McNamara will seek leave to cross-examine Rogerson about his previous convictions. In these circumstances, counsel for McNamara submitted that the evidence set out in the tendency notice had significant probative value. It was submitted, in particular, that Rogerson’s previous conviction for giving false evidence to the NSW Police Integrity Commission was probative of the issue of whether any evidence he gave inculpating McNamara in the present alleged offending was credible and believable. It was further submitted that cross-examination as to Rogerson’s previous conviction for conspiring to pervert the course of justice was relevant and probative in light of what would be put to him regarding the attempts he had allegedly made to have McNamara give a false account of the circumstances surrounding the deceased’s death. Those matters are similarly referred to in [22] above.

Submissions on behalf of Rogerson

The fundamental submission advanced by counsel for Rogerson was that properly understood, the evidence set out in the notice was not tendency evidence at all, but was evidence which simply went to Rogerson’s credit. He submitted that counsel for McNamara had failed to identify any fact(s) in issue to which the evidence was relevant. It was submitted that in these circumstances, Part 3.6 of the Act had no application in light of the provisions of s. 94.
In the event that I came to the view that Part 3.6 of the Act did apply, counsel for Rogerson submitted that McNamara had failed to give reasonable notice of his proposed reliance upon the evidence, contrary to s. 97(1)(a). It was pointed out, in particular, that the tendency notice had been issued on what was, in effect, the eve of the trial, and some months after the commencement of the hearing of pre-trial applications. It was submitted that the contents of the tendency notice must have been known to McNamara’s representatives some considerable time ago and that no explanation was forthcoming as to why it was that the application had not been brought at an earlier time.
Counsel for Rogerson further submitted that the evidence set out in the tendency notice fell short of meeting the test imposed by s. 97(2)(b) of the Act, in that it lacked significant probative value. In this regard, counsel repeated his earlier submission that the evidence was properly viewed as evidence going only to Rogerson’s credit.

Submissions of the Crown

Having initially adopted what was described as a “neutral” position regarding the tendency notice, the Crown subsequently shifted its position and objected to the application. In doing so, the Crown supported the submission made on behalf of Rogerson that the evidence was not tendency evidence.

Consideration and conclusion

As outlined by counsel for McNamara in submissions, the proposed reliance on the evidence set out in the tendency notice arises in two ways.
Firstly, Rogerson’s conviction for conspiring to pervert the course of justice is said to be relevant in light of the proposed cross-examination of Rogerson as to what allegedly occurred between he and McNamara during the period in which they were sharing a cell. As I understand it, it will be submitted that the conduct now alleged against Rogerson in that respect would, if established, constitute an attempt to pervert the course of justice, that being a similar offence to that of which Rogerson was previously found guilty. It is said that on this basis, the evidence set out in the notice is evidence which establishes a tendency on the part of Rogerson to act in that particular way. Secondly, it is said that Rogerson’s previous conviction for giving false evidence to the Police Integrity Commission establishes that Rogerson has a tendency to lie on oath.
In my view, these matters go only to the issue of Rogerson’s credibility. As was pointed out on behalf of Rogerson in submissions, counsel for McNamara was unable to identify any particular fact(s) in issue to which the evidence was said to be relevant. There may, of course, be circumstances where evidence which is the subject of a tendency notice is relevant not only to the credibility of a witness but also to a fact in issue in the proceedings. However, I am not satisfied that this is the case here.
In these circumstances, the provisions of s. 94(1) make it clear that Part 3.6 of the Act, which deals with tendency and coincidence evidence, has no application. If the matter proceeds as a joint trial, the question of whether counsel for McNamara should be given leave under s. 104(2) of the Act to cross-examine Rogerson in respect of any matter going to the issue of his credibility is an issue which is appropriately determined as and when it arises.
For these reasons, the application by McNamara to rely upon the evidence set out in the tendency notice as tendency evidence is refused.

THE APPLICATIONS FOR SEPARATE TRIALS

The evidence relied upon by Rogerson

As previously noted, Rogerson’s application was supported by an affidavit of his solicitor, Mr Katsoolis. Much of that affidavit was in the nature of submissions which were adopted by counsel and which I have summarised below. To the extent that the affidavit sets out factual matters, those matters went primarily to the aspects of Rogerson’s criminal history to which I have previously referred. There were medical reports annexed to the affidavit but no specific submissions were put to me as to why any of that material supported an order for a separate trial.

The evidence relied upon by McNamara

The affidavit of Mr Reslan which was relied upon in support of McNamara’s application for a separate trial annexed a copy of the report produced on subpoena by the Commission, the contents of which I have already set out. Mr Reslan asserted (at paragraph 3) that in circumstances where Rogerson’s legal representatives are in possession of this document, he believed that counsel for Rogerson may “well use the contents of (the) report to the detriment of (McNamara) in these proceedings, either by seeking to tender a portion of the report or, if (McNamara) gives evidence, to cross-examine him”.
Further, in paragraph 4 of his affidavit Mr Reslan deposed to a belief that “various threats have been made by Roger Rogerson, or by persons associated with him, towards the Applicant and his family, in relation to these proceedings”.
As I understand it, the affidavit of Jessica McNamara is relied upon to establish the threats to which Mr Reslan referred. In her affidavit, Ms McNamara deposed to statements allegedly made by Rogerson shortly after the deceased’s murder, in her presence (and in the presence of McNamara). Ms McNamara stated that Rogerson said words to the effect:

“Glen, you have got such lovely, lovely daughters. They are lovely girls.

Ms McNamara construed these words as a threat.
Ms McNamara also made reference to statements made to her by Mr Kenny, the solicitor who initially acted for Rogerson. I have previously heard and determined an objection, made by Ms McNamara pursuant to s. 18 of the Act, to giving evidence at any trial. In the course of my judgment, I made a number of observations, and reached a number of conclusions, regarding Mr Kenny’s conduct: R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592 at [40]-[46] and [65]-[75]. It should be noted that notwithstanding the fact that I upheld that objection, I have now been informed that it has been withdrawn, and that Ms McNamara is willing to give evidence, irrespective of whether a joint trial or separate trials are conducted.
Finally, Ms McNamara also deposed in her affidavit (at paragraph 19) to an incident on 9 July 2015:

“On Thursday 9 July 2015 I have reason to believe that my apartment was broken into. I left my apartment early in the morning and returned at night. When I returned I noticed that some of my drawers had been opened and objects within the drawers had been moved around. These drawers contain handwritten letters to me, from my father. I know that these drawers were closed when I left in the morning.”

Submissions on behalf of Rogerson

Counsel for Rogerson submitted that there were two important considerations to be taken into account in determining whether an order for a separate trial should be made, namely:

the degree of unfair prejudice likely to be suffered by Rogerson in the event that a joint trial were to proceed; and

the extent to which (if at all) such prejudice could be mitigated by rulings as to the admissibility of evidence and/or directions being given to the jury.

With these matters in mind, counsel made two primary submissions in support of the order sought. Firstly, counsel submitted that there was a considerable amount of evidence which, although admissible against McNamara, was not admissible against Rogerson. It was submitted, in particular, that apart from the evidence of dealings between Rogerson and the lessee of the storage shed on or about April 2014, and the evidence of Rogerson’s fingerprint on a document associated with one of the vehicles involved, the more significant circumstantial evidence against Rogerson commenced on the day of the alleged offences. It was submitted that in these circumstances, Rogerson was confronted with a situation in which comparatively limited evidence was admissible against him, but where there was far greater evidence admissible only against McNamara. It was submitted that as a consequence, significant unfair prejudice would be visited upon Rogerson in the event that a joint trial were to proceed.

Secondly, counsel submitted that it was now clear that McNamara would conduct a “cut throat” defence and would give evidence, the effect of which would be to attribute sole responsibility for the death of the deceased upon Rogerson. It was submitted that in light of the fact that Rogerson would also give evidence, McNamara would have a legitimate forensic purpose in seeking to undermine Rogerson’s credit by cross-examining him as to those aspects of his criminal history to which I have already referred. It was submitted that if this were to occur, the consequences for Rogerson would be “catastrophic” and would “inevitably lead to conviction for both the murder and the drug supply count”. Conversely, it was submitted that if counsel for McNamara was not permitted to cross-examine Rogerson about such matters, McNamara “would have good grounds to argue substantial miscarriage of justice to justify a conviction appeal and re-trial”. For all of these reasons, it was submitted that an order for a separate trial should be made. Counsel submitted that no direction to the jury could overcome the prejudice which he had identified.

Submissions on behalf of McNamara

The application for a separate trial brought by McNamara was brought on two broad bases. The first arose from McNamara’s provision of the account of events contained in the report produced by the Commission. It was pointed out that according to the report, the statements made by McNamara on that occasion were made on the understanding that they would not be used against him (save perhaps in respect of the falsity of any information that he provided). It was submitted that whilst this prevented the Crown from making use of the contents of the document, there was no similar prohibition placed upon Rogerson. It was submitted, in particular, that irrespective of whether McNamara gave evidence, the account he gave “could be deployed on behalf of Mr Rogerson”.
The second basis advanced by counsel for McNamara in support of the application arose from the threats to which Mr Reslan deposed, along with the matters to which Ms McNamara referred in her affidavit. It was submitted that as a consequence of such matters, McNamara was in fear of Rogerson and that there was no step which could be taken by the Court to alleviate such concerns.
In these latter respects, emphasis was placed upon the fact that the two accused had shared a cell for a period of time following being taken into custody. It was said that this had occurred in circumstances where the authorities were aware of McNamara having been threatened. It was further submitted that housing the two accused together in that way was “contrary to practice”.

Submissions on behalf of the Crown

The Crown emphasised that it would be alleged that there was a joint criminal enterprise which had been formed between the two accused to kill, or inflict grievous bodily harm upon, the deceased. It was submitted that, contrary to what had been put on behalf of Rogerson, this was not a case where there was a material difference between the evidence which was admissible against each of the accused. It was submitted, in particular, that there was a strong body of evidence demonstrating that Rogerson’s participation in the joint criminal enterprise commenced well before the date of the deceased’s death, and continued right up to (and indeed beyond) that time. The Crown submitted that in these circumstances, the evidence of McNamara’s acts was admissible against Rogerson. The evidence to which the Crown pointed as establishing Rogerson’s participation in the joint criminal enterprise included the following:

Rogerson obtained access to the storage shed in March 2014, and provided the code and the key to McNamara;

Rogerson attended the shed in his own vehicle on 2 April 2014;

Rogerson attended the shed in the company of McNamara on 4 April 2014, at which time they stayed for approximately one hour during which the shed door was opened and closed multiple times in a manner consistent with testing its operation;

on 19 May 2014 Rogerson went alone to the storage shed and removed a number of items, consistent with an attempt to make space inside;

Rogerson went with McNamara and entered the shed at 1:16pm on 20 May 2014, at which time McNamara was holding what appeared to be an object in white plastic bag;

Rogerson knew from his previous visits to the shed that it had no lighting or electricity connected to it (and was therefore was quite dark inside) and that it was accessible only by the use of a code and then a key;

Rogerson knew that the location of the shed was proximate to Arab Road;

on the day of the deceased’s death, Rogerson drove from the area of Arab Road shortly after the deceased and McNamara had departed, following which he entered the back entrance of the storage facility in a manner which was covert, and consistent with a pre-determined plan with McNamara;

having done so, Rogerson parked his vehicle in the adjoining lane, a position different to that in which he had parked it earlier that day, an indication that he did not want the deceased to hear the arrival of a second car.

The Crown emphasised a number of general principles relating to the discretion to order separate trials which I have expanded upon in more detail below. In doing so, the Crown submitted that there were strong reasons of principle and policy in support of the two accused being jointly tried. It was submitted, in particular, that a joint trial was warranted in circumstances where the Crown alleged the existence of a joint criminal enterprise, and where “cut throat” defences would be mounted by the respective accused.
In terms of the suggested prejudice which would be visited upon Rogerson in the event that he were cross-examined by counsel for McNamara about his previous convictions, the Crown submitted that whether or not that situation arose necessarily depended upon a number of factors, including whether or not Rogerson gave evidence at all. It was submitted that it would be difficult for me, on the present application, to proceed on the basis that there would definitely be a point at which Rogerson would be cross-examined in relation to the matters which had been foreshadowed. The Crown further submitted that even in that event, there were a variety of factors to be considered in determining whether counsel for McNamara should be given leave to cross-examine Rogerson about his prior convictions. It was further submitted that even if leave were granted, the circumstances would not be materially different from those often encountered in a joint trial where a record of interview conducted with one accused, in which that accused inculpates a co-accused, is admitted into evidence. The Crown submitted that in such cases it was customary for the matter to be dealt with by way of an appropriate direction to the jury as to how, and against whom, such evidence could be used. It was submitted that such a course could be readily adopted in the present case.
In terms of the first of the matters relied upon by McNamara concerning the report produced by the Commission, the Crown submitted that there were a number of matters to be considered before the contents of that document could be used against McNamara, not the least of which was the fundamental question of whether he would in fact give evidence. Whilst the Crown acknowledged the counsel for McNamara had informed me that he would give evidence at his trial, it was submitted that circumstances can change and that it would premature to make an order for a separate trial on the basis of a set of circumstances which may not occur.
As to the second matter relied upon by McNamara, counsel submitted that there were various measures which could be taken to alleviate McNamara’s suggested concerns about his safety, including the provision of extra security whilst he and his daughter were giving evidence.
Finally, the Crown submitted that in a case such as the present there was a fundamental necessity to ensure that the entire picture of the offending was presented to the jury. It was submitted that it was imperative that the jury not be denied the opportunity to consider the entirety of evidence against both accused, and that it would be contrary to the proper administration of justice if the jury did not hear and consider the conflicting evidence of those who, on the Crown case, were both present at or around the time of the deceased’s murder, and who, as a result, were both said to be criminally liable for the deceased’s death.

The relevant principles

The authorities establish a number of general principles which govern the discretion to make an order for separate trials.
Firstly, as a general proposition, crimes which are alleged to have been committed jointly should be prosecuted in a joint trial: R v Assim (1966) 2QB 249 at 261 per Sachs LJ; R v Oliver (1984) 57 ALR 543 at 547 per Priestley JA (Cantor and Roden JJ agreeing); Webb and Hay v R [1984] HCA 30; (1994) 181 CLR 41, cited in R v Kearnes [2013] NSWSC 1139 at [28]. In Webb and Hay (supra) Toohey J (with whom Mason CJ and McHugh J agreed) explained the matter in this way (at 88-89):

“King CJ dealt with this ground by pointing out that there are "strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other (R v Webb and Hay (1992) 59 SASR at 585). What King CJ referred to as "strong reasons of principle and policy" were discussed by his Honour in R v Collie (1991) 56 SASR 302 at 307-311. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others (R v Demirok (1976) VR 244 at 254). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused (R v Harbach (1973) 6 SASR 427 at 585.)”

In R v Fernando & Anor [1999] NSWCCA 66 the Court (Newman, Studdert and James JJ), having discussed a number of authorities, observed (at [212]) that in determining whether a separate trial should be granted the Court must carry out a balancing process between the community interest and the question of undue prejudice to an accused (see also Amos v R [2014] NSWCCA 302 at [15] per Leeming JA, Adams and Bellew JJ agreeing). Needless to say, an exception to the general rule arises where there is a real risk of positive injustice to an accused. The existence of such a risk was described by King CJ in Collie (supra) as “the critical question” (at 310).
Secondly, the mere existence of “cut throat” defences will not, of itself, support an order for a separate trial: R v Ignjatic (1993) 68 A Crim R 333 at 339 per Hunt CJ at CL (Finlay and Levine JJ agreeing); Ali v R [2005] HCA 8; (2005) 214 ALR 1 at [58];12 per Heydon and Callinan JJ. On the contrary, the strong reasons for a joint trial referred to in [61] above may be further strengthened where each accused deploys a “cut throat” defence: Webb and Hay at 88-89; R v Bedford [2011] QCA 43 at [104] cited in Destanovic v R [2015] VSCA 113 at [55].
Thirdly, it is contrary to the interests of justice that there be inconsistent verdicts. Those interests generally require that where the accounts of accused persons differ, such differences should be resolved by the same jury at the same trial. Consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others: R v Demirok [1976] VR 244 at 254 per the Court (Young CJ, Lush and Crockett JJ); Webb and Hay at 89 per Toohey J. It is noted that an application for special leave to appeal against the decision of the Court in Demirok (supra) was refused: R v Demirok (1976) 8 ALR 452.
Fourthly, the risk of inconsistent verdicts is particularly significant where each accused seeks to blame the other: R v Swan [2013] QCA 217 at [39] per Holmes JA (Applegarth and Jackson JJ agreeing).
Fifthly, it is in the interests of justice that the whole picture is presented to the members of the jury, and that they see “the person on whom the blame is sought to be cast, as well as the person seeking to cast it”: Collie at 308 per King CJ. A joint trial will therefore give the jury “the means of obtaining a conspectus of the respective roles of each of (the accused) in the crimes with which they (are) charged”: Ali (supra) per Heydon and Callinan JJ at [58];12.
Sixthly, questions of cost and inconvenience are not irrelevant in determining whether separate trials ought be ordered: R v Oliver (1984) 57 ALR 543 at 547 per Priestley JA (Cantor and Roden JJ agreeing); R v Middis NSWSC 27 March 1991, unreported per Hunt CJ at CL.
Finally, it must be recognised that some prejudice to one or other accused is inevitable in any joint trial. That is a factor which must be taken into account in striking the necessary balance: R v Dellapatrona; R v Duffield (1993) 31 NSWLR 123 at 133 per the Court. In that regard, the common law proceeds on the assumption that the jury will obey any direction which is given by a trial judge: Kearnes (supra) at [40], citing Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 at [13] per Gleeson CJ and at [31] per McHugh J; see also Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at 153 per Barr J (Spigelman CJ and Price J agreeing) citing R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 603 (per Mason CJ and Toohey J).

Consideration

Bearing in mind the principles outlined above there are, in my view, a series of considerations in the present case which weigh heavily in favour of the accused being jointly tried.
Firstly, in respect of the principal count of murder, the Crown case is one of joint criminal enterprise. The second count of possession of a prohibited drug is inextricably linked to the principal count.
Secondly, and in addition to the evidence of the two accused being in each other’s company prior to the deceased’s death, there is evidence that on the day of his death both accused were present:

in each other’s company at the storage shed (Crown case statement at [20] and following);

in the vicinity of Arab Road (Crown case statement at [22] and following); and

later at the storage shed (Crown case statement at [29] and following).

The Crown will also allege that both accused played a role in disposing of the deceased’s body (Crown case statement at [35] and following). Evidence of these circumstances will provide the jury with a means of obtaining the “conspectus” to which reference was made in Ali.
Thirdly, it is apparent that both accused will deploy “cut throat” defences. As previously set out, that is a circumstance which weighs in favour of a joint trial, rather than against it.
Fourthly, and contrary to the submission advanced on behalf of the accused Rogerson, this is not a case in which the evidence which is admissible against Rogerson is significantly different to, and weaker than, that which is admissible against McNamara (a circumstance to which Hunt CJ at CL referred in Middis (supra)). As the matters set out in [54] above demonstrate, there is considerable evidence to support Rogerson’s involvement in the joint criminal enterprise well before the date of the deceased’s death. In these circumstances, the evidence of the acts of McNamara are properly admissible against Rogerson. I should also note in this regard that leaving aside objection taken to the admissibility of a series of representations made by the deceased (some of which, I have concluded, are properly admissible against both accused) there has been no other application on behalf of Rogerson to exclude particular evidence on the basis that it is not properly admissible against him.
In the course of argument the Crown identified two discrete areas of evidence which it will seek to lead against McNamara and which may be the subject of argument as to their admissibility against Rogerson. The first concerns McNamara’s retrieval of his boat on 19 May 2014 (Crown case statement at [13]) and the second concerns his retrieval of the surf board cover from his vehicle (Crown case statement at [35]). I am yet to hear the submissions of the parties in respect of whether this evidence is properly admissible against Rogerson. However, even if I were to come to the conclusion that it was not, that circumstance alone would not justify the making of an order for a joint trial. The evidence in question is obviously confined and could be appropriately dealt with by a direction being given to the jury that it not be considered in determining the case against Rogerson.
Fifthly, there are a large number of witnesses to be called by the Crown. In the event of the trials being separated, the majority of those witnesses would be required to give evidence on two separate occasions. That is a further consideration which weighs in favour of a joint trial.
One of the principal bases upon which Rogerson brings the present application concerns the prejudice which, it was submitted, would be visited upon him in the event that he were cross-examined by counsel for McNamara in relation to his prior convictions. Counsel for Rogerson went so far as to submit that the resultant prejudice would be “catastrophic”. Although the Crown submitted that it was possible that the circumstances could change and that neither accused would give evidence, that, in my view, would be an artificial way in which to approach the present issue. Rogerson’s counsel has stated, in terms, that Rogerson proposes to give evidence.
However, even if the circumstance foreshadowed by counsel for Rogerson eventuates, such that he is cross examined about his criminal history, I am not satisfied that this gives rise to real risk of positive injustice such that a separate trial is warranted. As I have previously noted, it is to be accepted that there will be some prejudice, to one accused or another, arising from a joint trial. In the present case, should the foreshadowed circumstances eventuate, the jury would obviously be directed, both at the time of the evidence being given and during the course of the summing up, as to how such evidence could be used. Such a direction would necessarily include the jury being directed that it would be impermissible to reason that because Rogerson had been found guilty of previous offending he had therefore committed either or both of the offences with which he is now charged. The authorities cited at [68] above make it clear that the Court is to proceed on the basis that the jury would act in accordance with any direction given.
The issue raised by counsel for Rogerson in this regard was the subject of consideration by the Full Court of the Supreme Court of Victoria in R v Ditroia and Tucci [1981] VR 247. In that case, one of the appellants asserted that the decision by the trial judge not to order a separate trial had prevented him from electing to given sworn evidence because of the potential for counsel for the co-accused to cross-examine him as to matters affecting his character. In dismissing his appeal against conviction the Court (Starke, Crockett and Fullagar JJ) made reference to observations in R v Congressi (1974) 9 SASR 257 at 260 where the following observation had been made:

“…we would view with concern the proposition that an accused person may be required to submit to a joint trial if a probable result would be that his previous convictions would be disclosed to the jury. We discuss the question of s. 18 of the Evidence Act later in these reasons, but we must observe that if s. 18 were to be construed liberally so that one accused might readily be cross-examined as to convictions by counsel acting for another accused, then it seems to us that separate ought, in justice to be granted less sparingly”.

Having cited that passage, the Court in Ditroia (supra) went on to say (at 256):

“We think therefore, that, had Tucci elected to give sworn evidence and that evidence was to the effect of his unsworn statement, then, if counsel for Ditroia had applied to do so, he must have been given leave to put Tucci’s convictions to him. Undeniably, if proved, the convictions would have had the potential for grave prejudice to the applicant. But we would be unprepared to assume that a jury would disregard any direction given it as to the proper use that it might make of the fact of such convictions.”

For all of these reasons, the application made by Rogerson for an order for a separate trial is refused.
In terms of the specific matters relied upon by McNamara, it was submitted that the contents of the report “could be deployed on behalf of Mr Rogerson”. It was suggested that one way in which this might occur was that in the event that any evidence given by McNamara departed from the contents of that document, it would be used to cross-examine him as to a prior inconsistent statement. In written submissions, counsel for McNamara argued that the position faced by his client in this regard was analogous to that dealt with in R v O’Boyd (1991) 92 Cr App R 202. In my view, there is no such analogy at all. In O’Boyd (supra), a confessional statement said to have been made by the appellant was ruled inadmissible against him. Notwithstanding that ruling, counsel for the co-accused was permitted to cross-examine the appellant on that statement at the trial. The court concluded that a “strong and exceptional case” for allowing the appeal had been made out. It will be readily apparent that the circumstances of the present case are quite different. In particular, this is not a case in which either accused has made any confessional statement. Moreover, the circumstance foreshadowed by counsel for McNamara, namely McNamara’s departure from the account recorded in the report, has not arisen. Even if it did, it would be substantially outweighed by the other factors to which I have referred in determining whether an order for a separate trial should be made.
In so far as McNamara relied upon suggested intimidation and threats by Rogerson as a factor justifying an order for a separate trial it is necessary to make a number of observations.
Firstly, the basis of Mr Reslan’s stated belief that “various threats have been made (by Rogerson) towards (McNamara) and his family” is not set out in his affidavit.
Secondly, whilst it was foreshadowed in submissions that it would be alleged that Rogerson had threatened McNamara, there is no direct evidence before the Court as to those threats. The only evidence is that contained in Mr Reslan’s affidavit.
Thirdly, it was put in written submissions that “(McNamara) and his potential witnesses have been the subject of intimidation by the co-accused or on his behalf”. As noted above, there is no direct evidence of any threat to McNamara. His “potential witnesses” who are said to have been the subject of threats have not been identified. The only identified person who appears to fall into the category of a “potential witness”, who has provided evidence on this application, is McNamara’s daughter, Jessica McNamara. Ms McNamara is to be called by the Crown. She therefore does not fall into the category of “(McNamara’s) potential witnesses”.
Fourthly, and contrary to the written submissions, there is no evidence that at the time that the two accused were housed together, the relevant authorities were aware of the fact (if it be the fact) that McNamara was threatened. Even if this were the case, and even if (as is asserted in the written submissions) such arrangements are “contrary to practice” they have little bearing, in my view, upon the question of whether an order should be made for a separate trial.
Further, and specifically as far as Ms McNamara’s affidavit evidence is concerned, three additional observations should be made.
Firstly, construing what Rogerson is said to have stated in her presence (at [44]-[45] above) as a threat may be a matter of interpretation.
Secondly, although there is an obvious suspicion that the conduct in which I have previously found that Mr Kenny engaged was carried out at the behest of Rogerson, there is no evidence which establishes that this was the case.
Thirdly, as regards the most recent events of 9 July to which Ms McNamara deposed (at [47] above), it is evident that Ms McNamara herself is not even certain that her premises were the subject of a break in, much less that persons acting on behalf of Rogerson were responsible. Although the matter was apparently reported to police, there is no evidence as to the result of any ensuing investigation.
In any event, and even if it is the case that threats have been made by Rogerson as alleged, that is not a circumstance which warrants an order being made for a separate trial. Even if McNamara has been threatened, and even if he holds some fear as a result, a separate trial will not alter those circumstances. Moreover, it is not uncommon for witnesses to hold fears about giving evidence for a variety of reasons. As the Crown pointed out, steps can be taken to ensure McNamara’s security, and that of any witness called on his behalf, when giving evidence.
For all of these reasons, the application made by McNamara for an order for a separate trial is refused.

The application made by Rogerson for separation of counts

It will be evident from the Crown case that the counts brought against Rogerson are inextricably linked. In light of that, and in light of the evidence relied upon by the Crown in support of them, an order that the counts against Rogerson be tried separately is not appropriate: Mac v R [2014] NSWCCA 24 esp. at [34] per Hidden J (Basten JA and R S Hulme AJ agreeing). Rogerson’s application that the counts be separated is therefore refused.

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Decision last updated: 15 June 2016

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
Hearing dates:	16 July 2015
Date of orders:	21 July 2015
Decision date:	21 July 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See paragraphs [40]; [81]; [93]; [94].
Catchwords:	EVIDENCE – Tendency evidence – Where both accused charged with murder and supplying a prohibited drug – Application by one-accused to rely upon certain evidence as tendency evidence – Whether such evidence relevant to a fact in issue – Whether the evidence went to the credibility of the co-accused – Applicability of Part 3.6 of the Evidence Act NSW 1995 (NSW) – Application refused PRACTICE AND PROCEDURE – Applications by each of two co-accused for separate trials – Where both accused charged with murder and supplying a prohibited drug – Where Crown case in respect of murder count based upon a joint criminal enterprise – Where murder count and supply count linked - Where majority of evidence relied upon by the Crown admissible against both accused in respect of both counts – Where one accused foreshadowed application to cross-examine co-accused about prior criminal convictions – Where that same accused was allegedly threatened by co-accused – General principles applicable to the exercise of the discretion to order separate trials – Both applications for separate trials refused PRACTICE AND PROCEDURE – Application by one accused for an order that the counts of murder and supply prohibited drug be tried separately – Where counts inextricably linked – No justification for separation of counts – Application refused
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Ali v R [2005] HCA 8; (2005) 214 ALR 1 Amos v R [2014] NSWCCA 302 Destanovic v R [2015] VSCA 113 Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 Mac v R [2014] NSWCCA 24 R v Assim (1966) 2QB 249 R v Bedford [2011] QCA 43 R v Collie (1991) 56 SASR 302 R v Congressi (1974) 9 SASR 257 R v Dellapatrona; R v Duffield (1993) 31 NSWLR 123 R v Demirok [1976] VR 244 R v Demirok (1976) 8 ALR 452 R v Ditroia and Tucci [1981] VR 247 R v Fernando & Anor [1999] NSW 66 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Harbach (1973) 6 SAR 427 R v Ignjatic (1993) 68 A Crim R 333 R v Kearnes [2013] NSWSC 1139 R v Middis (NSWSC, 27 March 1991, unreported) R v O’Boyd (1991) 92 CR App R 202 R v Oliver (1984) 57 ALR 543 R v Rogerson (NSWCCA, 22 December 1990, unreported) R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 R v Rogerson (1992) 65 A Crim R 530 R v Rogerson [2005] NSWDC 22 R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592 R v Swan [2013] QCA 217 R v Webb and Hay (1992) 59 SASR 563 Webb and Hay v R [1994] HCA 30; (1994) 181 CLR 41
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