R v Rogerson; R v McNamara (No 38)

[2016] NSWSC 329

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 38) [2016] NSWSC 329
Hearing dates:	24 March 2016
Date of orders:	24 March 2016
Decision date:	24 March 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [11]
Catchwords:	CRIMINAL LAW – Evidence – Where two accused being jointly tried for murder and supplying a prohibited drug – Where evidence sought to be elicited from a witness of a statement made to him by one accused that the other accused was “dangerous” – Assessment of probative value – Whether probative value of the evidence was substantially outweighed by the danger that it may be unfairly prejudicial or be misleading or confusing – Where probative value of the evidence low – Evidence excluded
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Dyldan Developments Pty Ltd v Jones (2008) NSWCA 56
Texts Cited:	R v Rogerson; R v McNamara (No. 34) [2016] NSWSC 259
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. Ms Shead, who appears on behalf of McNamara, has requested the Crown to make available Juan Carlos Battisti for the purposes of cross-examination. Ms Shead will seek to elicit from Mr Battisti part of the contents of a statement he made to police on 2 November 2015. In short, the statement of Mr Battisti discloses that he and Mr McNamara became acquainted some years ago as a consequence of their regular attendance at a gymnasium. For present purposes, the focus is on paragraph 7 of Mr Battisti's statement which reads as follows:

“On the next occasion I trained with Glen I said to him, 'I was surprised to see how old and small Roger Rogerson is'. Glen said words to the effect, 'that little old guy is still as dangerous now as ever’. The only other time Glen mentioned Roger Rogerson to me was when I rang him on this one occasion. I don't know the exact date but it was sometime after the book launch I rang Glen to see if he was coming to training and Glen told me that he wouldn't be coming because he was travelling back to Sydney from Griffith, then in a smart arse way Glen said, 'Be careful what you say because my mate Rogerson is here with me'. When Glen said this to me, I felt like he was big noting and upping himself, After he said this I spoke to one of the guys in the boxing class and told them what Glen had told me” (emphasis added)

2. Ms Shead will seek, in particular, to elicit the italicised part of Mr Battisti’s statement. On the evidence, the conversation to which Mr Battisti referred occurred in about 2012 or 2013.

3. Ms Shead submitted that the evidence was relevant and admissible on two bases. Firstly, she submitted that the evidence of what Mr McNamara had said to Mr Battisti went to McNamara's knowledge of Rogerson’s general demeanour and his consequent fear of Rogerson, and that this was relevant to his proposed defence of duress. Secondly, she submitted that the evidence was relevant to rebut a proposition which was expected to be put to McNamara in cross-examination, to the effect that his proposed defence of duress is a recent invention. Ms Shead submitted that it was crucial to McNamara's case that any suggestion of recent invention or fabrication be rebutted. Having stressed the importance of the evidence from the point of view of her case, Ms Shead further submitted that any prejudice to Rogerson which might be caused by the evidence being admitted could be ameliorated by a direction from me. She submitted, consistent with authorities to which I referred in determining an earlier application to discharge the jury (see R v Rogerson; R v McNamara (No. 34) [2016] NSWSC 259 at [45]-[49]) that I would necessarily be confident that the jury would adhere to, and apply, any such direction.

4. Mr Thomas, on behalf of Rogerson, submitted that the evidence would, if admitted, be unfairly prejudicial and that such unfair prejudice substantially outweighed any probative value that the evidence might otherwise have. In support of that proposition, he stressed what he described as the "general" nature of what had allegedly been said. As I understood it, Mr Thomas was submitting that the terms of what Mr McNamara had allegedly said were non-specific, and thus lent themselves to being misleading and/or confusing. In advancing these submissions Mr Thomas relied upon s. 135 of the Evidence Act 1995 (NSW) (“the Act”) which is in the following terms:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.

5. Reliance on s. 135 of the Act proceeds on the assumption that the evidence is otherwise relevant. The section requires me to undertake a balancing exercise, the nature of which was explained by Basten JA in Dyldan Developments Pty Ltd v Jones (2008) NSWCA 56 at [78].

6. In my view, the probative value of the evidence is low for a number of reasons.

7. Firstly, the terms of what McNamara allegedly said to Mr Battisti are, as Ms Shead expressly conceded, vague. To state the obvious, and as Mr Thomas submitted, a person may be regarded as "dangerous" for a number of different reasons, and in a variety of different contexts.

8. Secondly, it is not insignificant that Mr Battisti's statement also makes reference to a further conversation he had with McNamara, in the course of which he (McNamara) described Rogerson as "my mate". Prima facie at least, that may be regarded as being inconsistent with a belief that McNamara was in fear of Rogerson because he was said to be dangerous. At the very least, the second conversation to which Mr Battisti renders the evidence of the earlier statement potentially misleading and/or confusing.

9. Thirdly, the statement attributed to McNamara was made in either 2012 or 2013. Irrespective of which it might be, it is a significant period of time before the events to which this trial is related took place. The fact that the statement is somewhat remote in time is a factor which goes to lessen its probative value.

10. As against those considerations, and for obvious reasons, the terms of what McNamara is alleged to have said to Mr Battisti create a danger of unfair prejudice to Rogerson.

11. For all of those reasons, I have come to the view that the probative value of the evidence is low. Such probative value as the evidence might have is substantially outweighed by the danger that it might be unfairly prejudicial to Rogerson, and/or be misleading and confusing. Accordingly, the evidence will be excluded.

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Decision last updated: 23 April 2018