R v Rogerson; R v McNamara (No 39)

[2016] NSWSC 358

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 39) [2016] NSWSC 358
Hearing dates:	31 March 2016
Date of orders:	31 March 2016
Decision date:	31 March 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [33]
Catchwords:	CRIMINAL LAW – Evidence – Recorded conversation to which accused a party – Whether conversation privileged – Whether probative value outweighed by the danger of unfair prejudice or the danger of the evidence being misleading or confusing
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 R v Rogerson; R v McNamara (No 31) (2016) NSWSC 195 Saffron v The Director of Public Prosecutions; Allen v The Director of Public Prosecutions (1989) 16 NSWLR 397
Category:	Procedural and other rulings
Parties:	Regina – Crown Roger Caleb Rogerson - Accused Glen Patrick McNamara – Accused
Representation:	Counsel: Mr C Maxwell QC - Crown Mr G Thomas – Accused Rogerson Ms K Shead – Accused McNamara   Solicitors: Director of Public Prosecutions - Crown Katsoolis and Co – Accused Rogerson Kings Law Group – Accused McNamara
File Number(s):	2014/157408; 2014/156921
Publication restriction:	Nil

Judgment EX TEMPORE - REVISED

1. The Crown seeks to lead evidence of two conversations between the accused Rogerson and his wife which were recorded at a time when Rogerson was in custody.

2. Objection has been taken by Mr Thomas, who appears for Rogerson, to parts of those conversations. Ms Shead, who appears for McNamara, has not sought to be heard.

THE FIRST CONVERSATION

3. The first conversation took place on 24 June 2014. Mr Thomas has raised two objections. The first is to the passage at page 39 of the transcript and is as follows (where V2 designates Rogerson's wife and V1 designates Rogerson):

“V2: But he did say to me--

V1: --about me, okay.

V2: --he did say to me, like it will be, you know, could be 18 months or two years before this goes to court.

V1: Mmm-mmm, well if I'm on bail I don't care.

V2: Yeah, yeah.

V1: Because--

V2: Yeah.

V1: You can do things and, you know.

V2: Mmm-mmm.

V1: --things change.

V2: Yeah, I know, I know, I know.”

4. The second is to the passage at page 41 as follows:

“V1: Did you read the stuff the best you could?

V2: I got halfway through and then I felt sick and I didn't read it.

V1: No, no, no, I know, yeah I know...

V2: Mmm-mmm.

V1: But I mean it's, it's, that's exactly what happened.

V2: Mmm-mmm.”

5. The Crown submitted that the first passage was relevant and admissible. The Crown pointed, in particular, to the statement attributed to Rogerson "You can do things and, you know" and submitted that this was capable of being construed as a reference to what Rogerson may do if released on bail (a pending bail application being part of the subject of discussion).

6. Mr Thomas submitted that this part of the conversation was irrelevant, and that if I concluded that it was relevant I should nevertheless exclude it on the basis that such probative value as it might have was outweighed by the danger of unfair prejudice. He also submitted that any probative value was substantially outweighed by the danger that the evidence could be misleading or confusing. In advancing those submissions Mr Thomas relied upon the provisions of ss. 137 and 135 respectively of the Evidence Act 1995 (NSW) (“the Act”).

7. In my view, even if it is accepted that the first passage is relevant, its terms are so nebulous as to render it of little probative value. Moreover, the reference to "you can do things and you know" to which the Crown specifically pointed is capable of a myriad of interpretations and explanations, some of which could be highly prejudicial.

8. For those reasons, such probative value that the first passage might have is outweighed, and in my view outweighed considerably, by the danger of unfair prejudice to Rogerson. It will therefore be excluded.

9. As to the second passage, the position is somewhat different. Although what is meant by reference to reading "the stuff" is not entirely clear, it may be capable of being construed as a reference to the brief of evidence. Mr Thomas submitted that there were alternative inferences available. However, as I pointed out in the course of argument, the mere fact that competing inferences may be drawn does not render the evidence inadmissible.

10. In my view, given the context in which the conversation was taking place, the passage is both relevant and probative. Its probative value is not outweighed by the danger of unfair prejudice in terms of s. 137, nor is it substantially outweighed by the danger that the evidence might be misleading or confusing. Accordingly, I propose to allow it.

THE SECOND CONVERSATION

11. The second conversation gives rise to more complicated issues. Mr Thomas urged that in determining the admissibility of that part of it to which objection is taken I have regard to two other calls which preceded it. Mr Thomas submitted that those two calls placed the call in question in its proper context.

12. Transcripts of the two additional calls are not before the Court. There is, however, a précis of each.

13. On 7 August 2014 at 10:23 am Rogerson called his wife. They discussed, amongst other things, a forthcoming bail application and the evidence that might be put to the court in support of that application. They also referred to some previous proceedings in which Rogerson apparently pleaded guilty and which are unrelated to the present trial.

14. At 12:49 pm on the same day Rogerson again called his wife. In the course of the ensuing conversation Rogerson referred to a recent conference with counsel which he described as "terrific", and discussed the procedure which would be adopted for the purposes of the bail application which was to be made on the following day.

15. At 1:10pm Rogerson called his wife again. The following passage from that conversation (at pg 158 of the transcript) is that to which objection is now taken (V2 designating Rogerson and V1 his wife):

“V2: I mean, this bloke in Hong Kong, he had, had, had, he had the address--

V1: Mmm-mmm.

V2: Davies Road and he had Arab Road. This is the bloke in Hong Kong.

V1: Yeah, yeah, yeah.

V2: The, the, the, the main bloke and---

V1: Mmm-mmm.

V2: ---then the two guys in the car with him.

V1: Mmm-mmm.

V2: They're, they're actually from Hong Kong and they are 14-Ks and they, and they say---

V1: Mmm-mmm.

V2: It's their gear and he'll---

V1: Mmm-mmm.

V2: ---be back in half an hour, I mean---

V1: Mmm-mmm.

V2: ---that is what he said to me, he said he told them he'd be back in half an hour.

V1: Mmm-mmm.

V2: As I said to this bloke, I said, 'Well, go and get---

V1: Mmm-mmm.

V2: ---those notes', I said, 'I'll read those notes up'. I said, he said, 'We can prove when they were made'. I said, 'Well, couple of months back'.

V1: Mmm-mmm.

V2: I said, and I said, 'You know, this is, you gave me this brief, I said on Sunday, it was booked-in.

V1: Mmm-mmm.

V2: Haven't seen it since before.

V1: Mmm-mmm.

V2: You know how, can't say it's recent invention.

V1: That's right, that's right.”

16. The Crown submitted that this passage was clearly relevant, and that its probative value was high. It was submitted that the passage was capable of sustaining an inference that Rogerson was talking about the events (or at least part of the events) which had occurred at Padstow on 20 May 2014 before the deceased was killed. The Crown relied, in particular, on Rogerson’s reference to "two guys in the car with him". I note that there is evidence in the trial that the deceased arrived at Padstow on 20 May 2014 and met with the accused McNamara, in circumstances where two persons identified as “Asian males” were with him, and remained in the area.

17. The Crown also placed particular reliance on Rogerson’s words “that is what he said to me, he said he told them he’d be back in half an hour”. The Crown submitted that the reference to “he” was a reference to the deceased and that his reference to “them” was a reference to the two Asian males. The Crown submitted that it was open to infer that the deceased had said, in Rogerson's presence, that he had told the other two persons that he would be back in half an hour. The Crown submitted that when read as a whole, that part of the conversation was capable of inferring that the deceased was alive, and in Rogerson’s presence, in the storage unit on the afternoon of 20 May 2014.

18. In those circumstances, the Crown submitted that the evidence was relevant, that it had high probative value and that, in all of the circumstances, such probative value was not outweighed by the danger of unfair prejudice.

19. In objecting to the evidence, Mr Thomas advanced a number of submissions.

20. Firstly, he submitted that the evidence did not meet the test of relevance set out in s. 55 of the Act because it was not capable of affecting, directly or indirectly, the assessment of any fact in issue in this trial.

21. Secondly, in the event that I found that the evidence was relevant, Mr Thomas submitted that I should excluded it on the basis that it was subject to litigation privilege and thus caught by s. 119 of the Act.

22. Thirdly, Mr Thomas submitted that the evidence should be excluded under s. 135 and/or 137 of the Act, on the basis that its probative value was substantially outweighed by the danger that it might be misleading or confusing, or that it was outweighed by the danger of unfair prejudice.

23. In support of these submissions Mr Thomas argued that the context in which the conversation had occurred was important. He pointed out that it had been preceded by two other conversations only a short time before in which Rogerson and his wife had obviously been discussing the bail application which was to be made before the Local Court on the following day. Mr Thomas submitted that when viewed in that context the proper interpretation was that Rogerson was simply making reference to matters relating to that bail application. In this regard, he pointed in particular to the reference made to “notes". Mr Thomas also submitted, as I understood it, that Rogerson’s references to “he” were in fact references to himself (i.e. to Mr Thomas).

24. Mr Thomas argued that admitting the evidence would be unfairly prejudicial to Rogerson. He also submitted that its probative value would be outweighed by the danger of it being misleading or confusing. He variously described the terms of the conversation as “ambiguous”, “speculative” and “misleading”.

25. The first issue is whether or not the evidence is relevant. Relevance is to be determined according to the test laid down in s. 55 of the Act. In my view, the evidence is highly relevant. It is clearly capable of rationally affecting, directly or indirectly, the assessment of the probability of a fact or facts in issue in this trial. Those facts in issue include the very fact of what happened in the period leading up to, and the time of, Rogerson’s attendance at the storage unit at Padstow on 20 May 2014. The reference to "two guys in the car with him", along with his reference to being told that “he’d be back in half an hour”, are clearly capable of being construed as a reference to the events of 20 May.

26. In the event that I concluded that the evidence was relevant Mr Thomas firstly relied upon s. 119 of the Act for its exclusion. In R v Rogerson and R v McNamara (No 31) (2016) NSWSC 195, I had cause to consider, in some detail, the provisions of that section. I do not propose to set out, for the purposes of this judgment, the conclusions that I reached on that occasion. It is sufficient for present purposes to observe that even if I was satisfied that the conversation constituted a “confidential communication” as defined in s. 117, I am not satisfied, given the terms of what was discussed, that it was a communication made for the dominant purpose of Rogerson being provided with professional legal services relating to an Australian or overseas proceeding.

27. In judgment No. 31 (at [30]) I made reference to a number of authorities in which the meaning of the word "dominant" in the context which it is used in s. 119 had been considered. I observed (at [31]) that when used in that context the word "dominant" was indicative of that which was the ruling, prevailing or most influential purpose of the communication. In my view it could not be said that the dominant purpose of this conversation fell within such ambit. On an objective assessment of what was said, Rogerson was discussing aspects of the case against him. There was nothing at all in the conversation, even when allowance is made for the context in which it occurred, to permit me to conclude that its dominant purpose was to allow Rogerson to obtain professional legal services in relation to the proceedings which had been brought against him.

28. It follows that, in my view, evidence of the conversation should not be excluded under s. 119 of the Act.

29. In terms of exclusion of the evidence under s. 135 or 137 of the Act, the Crown will submit that this conversation is capable of supporting a conclusion that Rogerson was present with the deceased, at a time when the deceased was alive, on 20 May. The Crown went so far as to say that the evidence could support a conclusion that Rogerson was within the storage unit with the deceased on 20 May when the deceased was still alive. Reaching those conclusions requires that certain inferences be drawn from the terms of what Rogerson said. Mr Thomas, as I have outlined, argued that the appropriate inferences to be drawn from the conversation were not as the Crown would have them.

30. Even if the conversation is capable of sustaining more than one inference that does not lead to the conclusion that it should be excluded, be it on the basis that its probative value is outweighed by the danger that it might be unfairly prejudicial, or misleading or confusing (s. 135). It has been observed (albeit in a different context) that the fact that evidence may sustain competing inferences highlights the fact that ultimately, the question of what inference should be drawn is a matter for the jury: Saffron v The Director of Public Prosecutions; Allen v The Director of Public Prosecutions (1989) 16 NSWLR 397.

31. There are parts of the conversation which, in my view, are clearly capable of being construed as being directly referable to the events of 20 May. That renders the evidence of significant probative value. I am not satisfied that such probative value is outweighed by the danger of unfair prejudice (s. 137 of the Act). Clearly any evidence led by a Crown against an accused is prejudicial. However the section is directed to evidence which is unfairly so. The fact that evidence which is adduced by the Crown makes it more likely that the accused will be convicted does not mean that the evidence is unfairly prejudicial: Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 at [91] per McHugh J. It follows that there is no basis for the exclusion of the evidence under s. 137.

32. Nor in my view is there any basis for the exclusion of the evidence under s. 135 of the Act. Its probative value is high and is not outweighed, substantially or otherwise, by the danger of unfair prejudice or by the danger of it being misleading or confusing. In my view, there is nothing misleading or confusing about the evidence at all.

33. Accordingly, and for those reasons, I propose to admit the evidence. Whether the Crown wishes to consider, and discuss with Mr Thomas, the inclusion of other parts of the conversation which were not originally relied upon is a matter I will leave to the parties.

**********

Decision last updated: 15 June 2016