R v Rogerson; R v McNamara (No 45)

[2016] NSWSC 452

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 45) [2016] NSWSC 452
Hearing dates:	14; 15 April 2016
Date of orders:	15 April 2016
Decision date:	15 April 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [42]
Catchwords:	CRIMINAL LAW – Evidence – Account given by accused of death of deceased – Allegation of threats made by the co-accused at that time – Where terms of threat included a reference to a previous attempted murder of a police officer – Where further evidence of accused of conversation with the co-accused where the co-accused is alleged to have admitted his involvement in previous murders or attempted murders – Where evidence relied upon by accused in respect of duress – Whether probative value of the evidence was substantially outweighed by the danger of unfair prejudice – Evidence excluded
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	IMM v R [2016] HCA 14 Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 Seven Network Limited v News Limited (No 8) [2005] FCA 1348
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 G Wendler – Accused McNamara   Solicitors: Director of Public Prosecutions – Crown Katsoolis and Co – Accused Rogerson AHA Taylor Lawyers – Accused McNamara
File Number(s):	2014/157408; 2014/156921
Publication restriction:	See [44]

Judgment EX TEMPORE - REVISED

1. On 13 April 2016 in the absence of the jury, counsel for McNamara, Mr Wendler, indicated to the Court that he anticipated that some of the evidence he would seek to lead from McNamara when his case commenced would meet with an objection by counsel for Rogerson. The transcript of the proceedings on that day will reflect the discussion that followed as to how that issue ought be appropriately dealt with. At one stage it was suggested by Mr Wendler that the matter could be dealt with on the voir dire, with McNamara giving the evidence which it was anticipated would meet with an objection. For the reasons expressed at the time I came to the view that the preferable approach was to deal with the matter as and when the evidence was about to be given. I pointed out, amongst other things, that if that course were taken it would give me the opportunity of placing the evidence in its proper context.

2. On the following day, 14 April 2016 (which was the 49th day of the present trial) the Crown case closed. The case for the accused McNamara commenced with the accused being called. Early in the course of his evidence counsel took McNamara directly to the events of 20 May 2014. It was at that point that the present issue arose. Before coming to the issue itself, it is necessary for me to set out the context in which it arises. I do so firstly by reference to the terms in which McNamara's case was opened on 2 February 2016 by Ms Shead (who then appeared for him). Ms Shead said (commencing at T72 L34):

The Crown relies upon the events after the shooting to demonstrate a joint criminal enterprise between Mr McNamara and Roger Rogerson. After shooting Mr Gao though Rogerson immediately threatened and made multiple threats to harm Mr McNamara and his family. These threats continued. Given the content of the threats and Mr McNamara's state of mind, he genuinely feared for his safety and that of his family.

For this and other reasons he went along with the disposal of Mr Gao's body, he used his boat to do so, he was acting under duress in the same way the dealings he had with the drugs that were in the car were done under duress. They were done with the belief that he would be killed by Roger Rogerson or more particularly his daughters would be killed. He had seen Roger Rogerson shoot and kill Jamie Gao in front of his eyes and he was terrified.

Mr McNamara did not want to contact the police directly. He was fearful that Rogerson would find out about him contacting the police and he and his daughters would thereby be placed in jeopardy but he did keep some evidence and the police found it, they found it and it had Roger Rogerson's fingerprints on it in terms of a receipt. He did a number of things in an endeavour to lead police to evidence of what had occurred. Mr McNamara at that point, from the point in time of the shooting, was in fear for his own life and the life of his family members. What he did, he did under duress.

Mr McNamara, members of the jury, will give evidence and he will tell you what happened to him and what he saw Roger Rogerson do when he shot Jamie Gao twice and killed him in the storage shed. We ask you to listen very carefully to the entirety of the evidence and most importantly to keep an open mind until you have heard all of the evidence.”

3. It will be apparent from my discussion below that the evidence which now is sought to be led from McNamara, and to which objection is taken, extends beyond the matters to which Ms Shead referred. That said, the absence of any reference to the evidence in the opening address is perfectly understandable. Clearly, Ms Shead anticipated (correctly, as it turns out) that the evidence would meet with an objection and she did not want to risk the jury being discharged by opening on it.

4. Subsequently, on 26 February Ms Shead said (commencing at T1296 L3):

Can I say that in any number of written submissions since I came into this matter it has been made clear that Mr McNamara relies upon duress both in relation to the murder charge and the drug charge. In this way, for the murder charge, the Crown relies upon joint criminal enterprise. It will inevitably invite the jury to consider all of the events relating to the murder up until and including the disposal of Mr Gao's body.

Mr McNamara's case was from the time Mr Rogerson shot Mr Gao up until whatever event it is that the Crown concludes the joint criminal enterprise with, that duress is operating on him for that portion of the joint criminal enterprise.

5. When I inquired as to whether or not duress was said to operate on McNamara from the time at which the deceased was shot Ms Shead responded (commencing at T1296 L16):

From the time of the shooting and the first threat, correct. So where the Crown says to the jury, "You will be satisfied there was a joint criminal enterprise to kill, it was preplanned, you can look at the behaviour before and the behaviour after", we will invite the jury to conclude they cannot assess the behaviour after in the same way because duress was operating upon Mr McNamara. In that way duress is relevant to the jury's consideration of the allegation of murder.

I have articulated that much more clearly and with much greater precision in earlier written submissions on a number of occasions, your Honour. In terms of Mr Thomas' query through your Honour about Ms McNamara's cross‑examination, unless your Honour directs me to indicate what it is I propose to do with Ms McNamara, then it is a matter for objection as and when questions are asked.

6. Mr Wendler, who how appears for Mr McNamara, has confirmed that McNamara’s case remains as was put by Ms Shead.

7. It is against that background that I come to deal with the evidence which is now sought to be led from McNamara and to which objection has been taken. The evidence falls into two parts.

8. Firstly, in the course of giving evidence yesterday, McNamara gave an account of what is said to have occurred in the storage shed at Rent-a-space on 20 May 2014. A central aspect of that account is an assertion that the co-accused Rogerson fired two shots into the body of the deceased which killed him. According to Mr McNamara, when that occurred he was under a table in the storage unit. Following the second shot he said to the accused Rogerson:

"Why? Why? Why?"

9. Counsel for McNamara now seeks to lead evidence from McNamara to the following effect (as outlined commencing at T3044 L8):

“I expect the evidence that is about to be introduced by the witness after he used the words, "Why? Why?" He will then give evidence that he alleges that Rogerson then turned and approached him pointing the gun directly at his head and said the words "I did Drury" a reference to a person called Michael Drury, a former police officer, "I did Drury, I'll do you too. Get up and fucking help me you weak cunt or I'll leave you on the floor lying next to him". I expect the evidence will be then that Rogerson's rejoinder was, "He pulled the fucking knife first, get up and help me or you'll be as dead as him, then I'll kill your girls" following which, as a result of those threats and indeed coupled with what the accused knew of the background circumstances of Mr Rogerson, in particular of what he had revealed to him in conversation at a time in or about February at Rogerson's home, a conversation which—“

10. Mr Thomas, who appears for Rogerson, accepted that the evidence that Rogerson pointed the gun directly at McNamara’s head, and the entirety of the evidence on and from the words "Get up and fucking help me", were matters to which he could not properly object. However, he (and ultimately the Crown) objected to the reference within that passage to the circumstances surrounding a Mr Drury, a former police officer who was the subject of an attempted murder some years ago, in respect of which Rogerson was charged and found not guilty.

11. The second part of the evidence to which objection will be taken emerged during the course of argument, when it became apparent that there was further evidence of a not dissimilar kind which McNamara sought to give and which was said to go to the same issue. In this regard Mr Wendler seeks to lead evidence from McNamara that in February of 2014, about three months prior to the deceased's murder, he had a conversation with Rogerson. That conversation is said to have occurred in the context of McNamara having agreed, tentatively or otherwise, to write a book concerning Rogerson's life, and his career as a police officer. There is evidence already before the jury that Mr McNamara is an author, having previously had two books published. There was apparently some understanding reached that if McNamara ultimately did write a book about Rogerson he would not finalise or publish it until such time as Rogerson had died.

12. The evidence of the conversation which Mr Wendler will seek to lead was outlined commencing at T3052 L13. Obviously that outline was based upon Mr Wendler's instructions and represents his expectation of what the evidence will be. Because of the lengthy submissions that I have heard in relation to this issue, it is appropriate that I set out that outline in full:

Rogerson said to the accused, "When I was charged with conspiracy to murder Drury, that cunt, Clive Small, got Alan Williams to give me up. Williams only did three years for pleading guilty to conspiracy with Flannery and me to murder Drury. Williams is dead now. It looked like suicide but it wasn't. I never let anyone get away with giving me up. I couldn't let Williams get away with that, the cunt of a thing".

The rejoinder from Mr McNamara was, "You arranged his murder?" Response from Rogerson, "Yeah, I'm connected everywhere. He thought he was living the quiet life after getting out of gaol; not so".

It went on as follows:

Mr McNamara said, "Flannery was never a witness in the Drury trial, what happened to him?" It is alleged that Mr Rogerson said, "He was real close to Alan Williams, both Melbourne blokes. As soon as I heard that fucking Small was working on Williams to rollover, I couldn't leave it to chance that Chris wouldn't roll as well. He was a coke fiend. He wasn't as tough as everyone thought. It was the coke. Kath, his missus, used to dose him up before he went out and did a job to hype him up. He was with me when I done Drury, off his head on coke, the useless cunt. If the two of them had been against me I would have been fucked".

Mr McNamara then said, "What happened?" The reply was in these terms, "Chris had the twitches from too much coke so I shot Drury. Chris was just a useless drug addict".

Mr McNamara then said, "Why did you even go with Flannery to Drury's house?" Mr Rogerson said, "We alibied each other". Mr McNamara asked the question, "But why were you even involved?" Rogerson's response was, "Drury was a smart arse, stumbled across Williams who was a big time crook and he was stupid, he knocked back 25 grand, a lot of money in those days. Williams was desperate. He offered 100,000 to get rid of Drury".

Mr McNamara asked the question, "So where is Flannery?" Rogerson said, "Chris had run out of mates in Sydney, he's killed most of them. He had to go. I was his only friend. It was easy. I met with him and put two in his chest, then we put him on a boat, went out three miles off Sydney Heads, mate, he's never coming back. Chris would have rolled on me for sure if Small had of got to him".

The conversation moved to the circumstances of Mr Lanfranchi. Mr McNamara asked, "What happened with Lanfranchi?" He replied, "I shot Lanfranchi twice, once in the neck and then one in the chest. That was close. The jury said I didn't act in self‑defence. Those fucking lefties at the Herald and the ABC gave me fucking heaps but I got through it".

Mr McNamara said, "Why did you shoot Lanfranchi for a second time?" And Mr Rogerson said, "He had to die, he ripped off Ned's gear which was my gear. Only one thing for a bloke like that. He was wanted for attempted murder of a police motorcyclist so it was easy to justify".

Mr McNamara said, "What happened to Huckstepp?" Mr Rogerson said, "Fuck me, she had to go. Even after I sued Channel Nine she was still into me, the fucking junkie bitch. It was a problem for Ned as well, one we solved. You know she drowned in a shallow pond".

Mr McNamara said, "Yes, but why?" And it is alleged that the response was, "After I knocked Lanfranchi she never let it go." "Why not just ignore her?" Rogerson said, "No‑one puts shit on me, I always win".

There was further conversation where Mr Rogerson said to Mr McNamara, "Fucking drug dealers won't pay if you don't stand on them". And Mr McNamara said, "What do you mean?" Mr Rogerson said, "Ever heard of a bloke Luton Chu?" Mr McNamara said, "No". Mr Rogerson said, "Heroin dealer, up and down between Australia and Hong Kong. Thought he could outsmart his suppliers. I helped my Chinese friends fix him up for good as well".

Mr McNamara said, "When did that happen?" "A while ago, cops thought about Ned for it, no‑one was ever charged".

13. Mr Wendler submitted that the evidence of that conversation, along with the evidence of what was said by Rogerson in the storage unit in reference to Mr Drury, provided relevant background to McNamara’s case. In particular, Mr Wendler submitted that the conversation in February of 2014 provided relevant background to what had later been said by Rogerson, and what took place, in the storage unit on 20 May 2014.

14. Mr Wendler submitted McNamara had formed a belief that what Rogerson had told him in February 2014 was in fact true. He explained that it will be McNamara's case that those matters weighed on his mind when Rogerson threatened him in the storage unit, and when he repeated those threats at a later time. In the latter respect, evidence has already been given by McNamara’s daughter about statements said to have been made by Rogerson late on 20 May which, it will be submitted to the jury, were threatening in nature. Mr Wendler explained that McNamara's case will be that everything that he did after the deceased was shot in the storage unit was done under duress, and that such duress stemmed from the threats which were made by Rogerson at that time and thereafter. He submitted that what McNamara had been told by Rogerson in the conversation of February 2014 contributed to the fear he held.

15. Mr Wendler emphasised that he was not relying on what Rogerson had allegedly said in February 2014 as evidence of the truth. The same applied to his reliance on Rogerson’s references to the Mr Drury inside the storage unit. Mr Wendler explained that in each case he was seeking to lead the evidence purely as evidence of the fact that certain things were said, as evidence which provided a basis for McNamara's fear of Rogerson, and as evidence which went some way to providing an explanation of why McNamara acted as he did in the days following the deceased's murder.

16. Importantly, Mr Wendler specifically disavowed any reliance on the evidence for some tendency or similar purpose. He accepted that if the evidence were admitted it would be necessary to direct the jury as to the limited use to which it could be put. Inherent in Mr Wendler's position was that any danger of any unfair prejudice to Rogerson which might be caused by the admission of the evidence could be appropriately and adequately addressed by a careful direction to the jury.

17. The Crown's initial position was that the evidence was relevant, that it had some significant probative value, and that such probative value substantially outweighed the danger of any unfair prejudice to Rogerson. In making those submissions, the Crown argued that any danger of unfair prejudice, if it existed at all, could be properly dealt with by a direction to the jury in the terms that I have outlined. However, when the matter resumed this morning the Crown's position was the opposite of that which was initially put. In making that observation I do not intend any criticism of the Crown. Issues of this nature, which are not uncomplicated, often benefit from careful and measured reflection.

18. The Crown's revised position, if I can put it that way, was that whilst the evidence had "some” probative value, it added little to the issue of duress. The Crown described the evidence of the conversation in February 2014 as being in the nature of "window dressing". The Crown submitted that properly analysed, McNamara's case on duress was really centred upon the threats made by Rogerson immediately upon allegedly shooting the deceased, and not upon a conversation he had allegedly had with Rogerson many months before.

19. The Crown submitted, by reference to s. 135 of the Evidence Act 1995 (NSW) (“the Act”), that the probative value of the evidence (such as it was) was substantially outweighed by the danger that the evidence might be unfairly prejudicial to Rogerson. In advancing that submission, the Crown emphasised the words “danger” and “might” as they are used in s. 135. In doing so, the Crown submitted that it was not necessary, in order to exercise the discretion in s. 135 to exclude the evidence, to conclude that its probative value was substantially outweighed by the fact of unfair prejudice. He emphasised that the test was whether the probative value of the evidence was substantially outweighed by the danger that it might be unfairly prejudicial.

20. The Crown also submitted that the exclusion of evidence would not deprive McNamara of the opportunity to rely on duress in the way in which had been outlined. Indeed, the Crown submitted that McNamara’s “real” case on duress stemmed from what, on his account, had occurred at the time of the shooting of the deceased.

21. Mr Thomas, on behalf of Rogerson, strenuously opposed the admission of the evidence. Although he generally supported the submissions of the Crown, he did not limit his argument to those matters and advanced a number of further submissions which, he argued, should cause the evidence to be excluded under s. 135. Although in the course of submissions Mr Thomas indicated an intention to rely on paragraphs (b) and (c) of s. 135, it was apparent that the import of his submissions were directed to paragraph (a).

22. Whilst Mr Thomas ultimately accepted that the evidence was relevant to the issue of duress, he submitted that the danger that the evidence might be unfairly prejudicial to Rogerson was "overwhelming", to the extent it was incapable of being rectified or addressed by any direction to the jury, however carefully crafted the terms of that direction might be. He went so far as to say that if the evidence was admitted it would be impossible for Rogerson to receive a fair trial. He too pointed out that even if the evidence was excluded, McNamara would still be in a position where he was able to agitate the issue of duress. In this regard, he described the evidence of the conversation in February 2014 as amounting to "padding", a not dissimilar categorisation of the evidence to that adopted by the Crown by his use of the term "window dressing".

13. Mr Thomas submitted that there was an element of artificiality attaching to the purpose for which the evidence was said to be relied upon. He submitted that that such artificiality arose from the proposition that the evidence was sought to be led as evidence of the fact, in circumstances where McNamara would give evidence that he believed it to be true. Part of Mr Thomas' submission, as I understood it, was that any distinction between those two concepts would be likely to be lost upon the members of the jury. He submitted that in reality, what was being sought was to adduce evidence of propensity or tendency.

14. Mr Thomas' focus then turned to the conduct of his own case in the event that the evidence was admitted. He submitted that there would be a need, as he put it, to "meet" the evidence in Rogerson’s case. He submitted that in so doing it would be necessary for Rogerson to demonstrate that the statements attributed to him were not said, and were not true.

15. Mr Thomas further submitted that the admission of the evidence ran the grave risk of allowing the trial to effectively degenerate into something in the nature of a wide ranging inquiry as to whether or not Rogerson was responsible for the murder of a number of other persons. He submitted that admission of the evidence would give rise to a significant danger of Rogerson being exposed to cross-examination about the circumstances in which a number of other persons had died. Mr Thomas stressed what he submitted was the enormity of the prejudice which would arise were that allowed to occur.

16. Finally, Mr Thomas submitted that in the event that the evidence was admitted he would seek that the jury be discharged. As I observed at the time, such application would only arise, obviously, in the event that the evidence were admitted. I indicated that occurred, I would give Mr Thomas and other counsel the opportunity to be heard.

17. As I indicated in the course of the argument when it commenced yesterday afternoon, there are two basic issues. The first is whether or not the evidence is relevant. The second is whether or not it should be excluded under s. 135(a) of the Act.

18. Both the Crown and Mr Thomas accepted that the evidence was relevant. In my view, having regard to the terms of s. 55 of the Act, the entirety of the evidence is relevant. I have already made observations in a number of judgments delivered in this trial thus far to the fact that the terms of s. 55 of the Act are wide. Moreover, relevance is to be assessed on the basis that the evidence will be accepted by a jury: IMM v R [2016] HCA 14 at [49] (per French CJ, Kiefel, Bell and Keane JJ). Duress will clearly be raised by McNamara in the way in which I have outlined it. In my view, the respective positions taken by the Crown and Mr Thomas as to relevance were entirely proper.

19. The more difficult question, and that which has been the primary focus of the submissions of the parties, concerns whether or not the evidence ought be excluded under s. 135 of 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.

30. As I have already noted, although Mr Thomas made passing references to paragraphs (b) and (c), it was clear that his position (and that of the Crown) concentrated on paragraph (a).

31. The term "probative value" is defined in the dictionary to the Act in the following terms:

"Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

32. Having regard to the terms of s. 135, I must firstly assess the probative value of the evidence. In my view, accepting that duress will be an issue, the probative value of the evidence is limited for a number of reasons.

33. Firstly, although part of the evidence centres upon a conversation there is no precision as to the time at which the conversation took place, other than the fact that it was in February 2014.

34. Secondly, accepting that the conversation did take place at about that time, that was some months prior to the events of 20 May 2014.

35. Thirdly, although relevant to the issue of duress, the evidence adds very little to that issue. As the Crown and Mr Thomas pointed out, the real basis of the duress asserted by McNamara stems from a combination of seeing the deceased shot in cold blood, and the threat made by Rogerson immediately thereafter.

36. Bearing in mind my conclusion that the probative value of the evidence is limited, I must then consider whether such probative value as the evidence might have is outweighed by the danger that it might be unfairly prejudicial to Rogerson. It is important to bear in mind that in order to exercise the discretion to exclude the evidence I do not have to be satisfied that it will be unfairly prejudicial. I need only to be satisfied that its probative value is substantially outweighed by the danger that it might be so: SevenNetwork Limited v News Limited (No 8) [2005] FCA 1348 at [16] per Sackville J. In considering that question I must be mindful of any danger that it might be misused by the jury in some unfair way: Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 at [91] and [98] per McHugh J.

37. It has been made clear in the course of the argument that the evidence is not sought to be adduced for the purposes of proving the truth of what Rogerson is alleged to have said. Rather, the evidence is sought to be led as evidence of the fact that such things were said, and as evidence bearing upon McNamara's subjective belief that they were true. I am not able to accept Mr Thomas' submission that that approach is artificial. If the evidence is admitted, it will be admitted as evidence of the fact of things having been said by Rogerson. McNamara will give evidence that he believed those things to be true. The fact that he may have believed that such things were true does not necessarily mean that they were true. Objective truth of a statement on the one hand, and a person's subjective belief as to the truth of that statement on another, are two different things.

38. However all of that said, there is a clear danger that the evidence might be unfairly prejudicial to Rogerson. In my view the probative value of the evidence, such as it is, is substantially outweighed by that danger. I have come to that view for a number of reasons.

39. It cannot be assumed that this evidence, if admitted, will be the only evidence dealing with these matters. Obviously, McNamara will be cross-examined about it. Equally obviously, Rogerson will deny the statements attributed to him. He will be cross-examined about that denial. One does not have to pause for any length of time to reflect upon, and appreciate, the significance that such evidence would assume if it were admitted.

40. In those circumstances there is, in my view, a real danger that if the evidence were admitted the jury would be left with a distinct impression that the accused Rogerson was complicit in the murder of a number of other people. Rogerson is obviously not on trial for the murder of any person other than the deceased. The circumstances in which other people may have been murdered are not matters about which the jury will be asked to return a verdict. Viewed in that way, and as a result of a combination of the circumstances to which I have referred, any probative value that the evidence might have is substantially outweighed by the danger that it might be unfairly prejudicial to Rogerson.

41. In reaching that conclusion I am conscious of those authorities which recognise the fact that a jury can be expected to follow any direction given by a trial judge: R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 at [45]-[49]. Equally however, those authorities do not go so far as to say that a trial judge’s directions are capable of dealing with every instance where there is danger of unfair prejudice. There arise, from time to time, circumstances where the danger of unfair prejudice is so great that it cannot be cured by a direction, no matter what its terms. The present is such a case.

42. In those circumstances, and for those reasons, I propose to exclude the evidence of the conversation of February 2014. For the same reasons I exclude the reference to Mr Drury which is said to have been made by Rogerson in the storage unit.

43. It follows from what I have said that the remaining portions of the evidence outlined by Mr Wendler commencing at T3044 L8 will be admitted. To remove any doubt, that evidence (on the assumption that it is adduced in the terms foreshadowed) will be that Rogerson turned to McNamara, pointed a gun directly at his head, and said:

"Get up and fucking help me, you weak cunt, or I'll leave you on the floor lying next to him. He pulled the fucking knife first. Get up and help me or you'll be as dead as him, then I'll kill your girls".

44. Until further order of the Court, and pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), this judgment is suppressed, save for any disclosure made by or to the parties and their legal representatives for the purposes of the proceedings, as well as to the trial judge in the proceedings of R v Farhad Qaumi, Mumtaz Qaumi, Jamil Qaumi, Mohomed Zarshay and Mohammad Kalal on the understanding that all copies of that judgment will be returned to the trial judge in those proceedings at the conclusion of any legal argument. .

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Decision last updated: 15 June 2016