R v Rogerson; R v McNamara (No 30)

[2016] NSWSC 168

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 30) [2016] NSWSC 168
Hearing dates:	2 March 2016
Date of orders:	02 March 2016
Decision date:	02 March 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [13]
Catchwords:	CRIMINAL LAW – Evidence – Admissibility of hearsay statement – Statement made by accused to daughter following his arrest – Where statement relevant to issue of duress – No unfair prejudice to co-accused or Crown – Evidence admitted
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v Crisologo (1997) 99 A Crim R 178
Category:	Procedural and other rulings
Parties:	Regina – Crown Roger Caleb Rogerson - Accused Glen Patrick McNamara – Accused
Representation:	Counsel: Mr C Maxwell QC - Crown Mr G Thomas – Accused Rogerson Ms K Shead – Accused McNamara   Solicitors: Director of Public Prosecutions - Crown Katsoolis and Co – Accused Rogerson Kings Law Group – Accused McNamara
File Number(s):	2014/157408; 2014/156921
Publication restriction:	Nil

Judgment EX-TEMPORE (REVISED)

1. In the course of cross-examination of the witness Jessica McNamara by Ms Shead of counsel (who appears for the accused McNamara) a question was asked, the purpose of which was to elicit evidence a conversation which Ms McNamara is said to have had with her father whilst he was in custody on or about 31 May 2014. Objection was taken to the question by both Crown and by Mr Thomas.

2. In the absence of the jury, Ms Shead informed me that she expected that Ms McNamara would respond by saying that her father had said words to the effect "He" (meaning Rogerson) "just shot him. I didn't know what was happening and he told me he would kill you girls. I was looking down the barrel of a gun".

3. Mr Thomas' first objection was on the basis of s. 59 of the Evidence Act 1995 (NSW) (“the Act”) which creates the hearsay rule. However as I understood it, Mr Thomas ultimately accepted that this objection would be overcome by the provisions of s. 66 of the Act (upon which Ms Shead relied) providing of course that the pre-requisites to the application of that section were established.

4. As the submissions developed, it was the position of both Mr Thomas and the Crown that the evidence, although relevant under s. 55 and admissible under s. 66 of the Act, should be excluded pursuant to the general discretion for which provision is made in s. 135 of the Act.

5. Mr Thomas submitted, in particular, that because of the hearsay quality of the evidence, its self-serving nature and the terms in which it was expressed, its probative value was substantially outweighed by the danger of being unfairly prejudicial to Rogerson, and/or be misleading or confusing.

6. The Crown submitted that the evidence was unfairly prejudicial to the Crown's case. The parties appeared to agree that in the event that I concluded that the evidence should be admitted, it would be necessary for me to give a warning as to the possible unreliability of the evidence to the jury pursuant to s. 165 of the Act.

7. In R v Crisologo (1997) 99 A Crim R 178 Simpson J, with whom Hunt CJ at CL and James J agreed, made a number of observations as to the operation of s. 66 of the Act which, in my view, are apposite to the present circumstances. Her Honour observed, amongst other things, that s. 66 imposes two conditions before the exception to the hearsay rule for which it provides comes into effect. For present purposes, it is sufficient for me to note that there was no submission put to me by any party that those conditions were not met.

8. Relevantly, her Honour went on to say this:

“Statements made by an accused person at a relevant (that is, early) time are, in my view, a precise counterpart of complaint made by an alleged victim in sexual assault (and other) cases. The Act draws no distinction between the admissibility of out of court statements made by a complainant, and a statement of a similar kind made by a person accused of crime.

The principles applicable to the admission of evidence of complaint apply equally to the admission of evidence of relevant out of court statements by an accused person at a time when the events the subject of the statement are fresh in his/her memory and when he/she has been or is to be called to give evidence. Such evidence, like evidence of complaint, is now admitted as evidence of the truth of what was said.”

9. The evidence is clearly relevant to the issue of duress which is clearly going to be raised on behalf of the accused McNamara. The real question is whether or not it should be excluded on the basis that it could be said to be unfairly prejudicial to Rogerson and/or the Crown, or be misleading or confusing.

10. Whilst the evidence may be prejudicial to Rogerson, and to some extent to the Crown, I am not satisfied that it is unfairly so. It is clearly relevant to the issue of duress to be raised by McNamara and I am not satisfied that the probative value of the evidence is substantially outweighed by any danger of unfair prejudice to either of those parties.

11. Similarly, I am not satisfied that the evidence is likely to be misleading or confusing in any way. I reach that conclusion on the basis of the outline of the evidence which has been provided to me by Ms Shead. There is nothing at all misleading or confusing about its terms.

12. As Simpson J pointed out in Crisologo (supra), it may well be that the jury will regard the evidence as being entirely self-serving, and that it is a version manufactured by McNamara following his arrest. As her Honour observed, evidence of an exculpatory account given after arrest and charge may be of very little weight indeed, particularly when it is given to by close relative. Conversely, the jury may take the view that there is such consistency in the evidence and that this consistency is beneficial to the case that McNamara seeks to make. In the end result, as her Honour observed, what weight the jury might attach to the evidence cannot be ascertained. However, that does not render the evidence unfairly prejudicial, nor does it render the evidence misleading or confusing. It simply highlights the fact that ultimately the evidence will fall to be assessed by the jury as the judges of the facts in this case.

13. In all of those circumstances, I propose to allow the evidence. However, I will warn the jury, pursuant to s. 165 of the Act that this part of Ms McNamara’s evidence may be unreliable, and that such unreliability stems primarily from its hearsay quality.

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Decision last updated: 23 April 2018