R v Rogerson; R v McNamara (No 51)

[2016] NSWSC 626

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 51) [2016] NSWSC 626
Hearing dates:	13 May 2016
Date of orders:	13 May 2016
Decision date:	13 May 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [24]
Catchwords:	CRIMINAL LAW – Evidence – Crown case in reply – Where Crown sought to lead evidence of facts contrary to assertions made by the accused in such evidence – No suggestion Crown splitting its case – Whether evidence should be excluded – Where accused had effectively conceded that the evidence he gave was in incorrect – Where accused asserted he was mistaken – Evidence allowed
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v Chin [1985] HCA 35; (1985) 157 CLR 671
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:	Nil

Judgment EX TEMPORE - REVISED

1. The Crown has indicated an intention to seek to lead a case in reply at the close of the case for the accused Rogerson (which, as I understand it, will be at the conclusion of his re-examination.)

2. As things presently stand, the Crown's case in reply has two aspects, only one of which is presently in dispute. There may be a third aspect in respect of which I may have to rule at some time in the not too distant future. The present issue arises in this way.

3. In the course of his evidence-in-chief, McNamara gave evidence of a number of matters concerning a white Falcon motor vehicle, registration number BV67PX, which has assumed some significance in the trial. There is clearly a dispute between the two accused as to the circumstances in which that vehicle was acquired, and by whom. However there is no dispute that on 20 May 2014 the vehicle was used by McNamara to transport the deceased from Arab Road, Padstow to storage unit 803 at Rent-a-Space. There is also no dispute that the vehicle was used to transport the deceased's body from storage unit 803 to McNamara's premises at Cronulla.

4. In the course of his evidence-in-chief McNamara said that on or about 14 May 2014 Rogerson had said to him that he did not wish to leave the vehicle in Padstow. It was McNamara's evidence (commencing at T3122 L20) that at that time Rogerson asked for the vehicle to be left at Cronulla. McNamara said that he told Rogerson that the vehicle could be left at Cronulla whereupon he asked Rogerson whether or not it could be used "to take (his) stuff to the tip". McNamara said Rogerson agreed, following which the car was driven to Cronulla by Rogerson where he met McNamara. McNamara then drove Rogerson back to his home at Padstow and then drove the car back to Cronulla.

5. Having given that evidence, McNamara was asked (at T3122 L28):

“Q. After you used the car or did you use the car to take stuff to the tip?

A. Yes.”

6. When asked (at T3122 L47) where the car remained after that (i.e. where it remained after it had been used to take material to the tip) McNamara replied that there was an area in North Cronulla without timed parking within which he parked the vehicle. He indicated that the vehicle remained in North Cronulla, and that he parked it in various streets in that area.

7. The unequivocal effect of McNamara's evidence was that at some time after 14 May 2014 the vehicle had been used by him to take material to a local tip, after which it had been parked in various areas in the vicinity of North Cronulla leading up to 20 May 2014.

8. Some days later McNamara was cross-examined by counsel for Rogerson in relation to this issue. It is evident from some of the questions asked in cross-examination that during the period between McNamara’s evidence-in-chief and the cross-examination to which I am about to refer, police obtained a statement from Kim Ross, who is employed as a Landfill Manager by a company who operates recycling centres at Lucas Heights (a site formerly known as the Menai Tip) and at Rockdale.

9. Although the precise content of the statement of that witness was not apparent at the time that McNamara was cross-examined by Mr Thomas, it is now clear that it contains evidence that at no stage between 1 April 2014 and 1 June 2014 was the vehicle BV67PX registered as entering either the Rockdale or the Lucas Heights recycling centre.

10. When this was put to McNamara in cross-examination, he maintained initially (at T3378 L32) that he had "been having difficulty understanding longer questions". It was put to him (at T3378 L43) that the evidence he had given concerning the use of the Falcon to take material to the tip was a complete fabrication. He denied that this was the case. Ultimately however, he accepted that he became aware at some stage after giving evidence-in-chief that the Crown had obtained the statement of Kim Ross to which I previously referred.

11. Having asserted in cross-examination (at T3382 L36) that it was "(his) intention to go to the tip", he eventually agreed that he had never used the white Falcon to go to the tip. That, for reasons which will be obvious, was diametrically opposed to the position he had adopted in his evidence-in-chief.

12. McNamara was cross-examined by the Crown in relation to the same topic. He agreed (at T3907 L9) that there was a tip (or tips) in his local area around Cronulla, specifically at Lucas Heights and at Rockdale. He also agreed (at T3907 L19) that between 15 April 2016 (when he was giving evidence-in-chief) and 21 April 2016 (when he was being cross-examined by Mr Thomas) he became aware that a search of those facilities had been conducted by the police, and that the evidence to which I referred in the form of the statement of Mr Ross had become available.

13. It is against that background the Crown now seeks to lead the evidence contained in the statement of Mr Ross. The essence of that evidence is, as I have said, that there is no record of vehicle BV67PX entering either the facility at Menai or the facility at Rockdale between April and June of 2014.

14. The Crown submits the evidence is clearly relevant in light of the evidence given by McNamara, both in evidence-in-chief and in cross-examination. The Crown submitted that the evidence is probative of what was, in the Crown's submission, clearly an untruth told by McNamara in the course of his evidence. The Crown submitted that the evidence was also relevant to, and probative of, why the vehicle was in the Cronulla area in the first place.

15. Mr Thomas, who appears for Rogerson, supported the Crown's position. He also pointed out, in my view with some force, that in circumstances where some reference has been made in the course of cross-examination to the fact that the Crown has obtained this evidence, it ought be before the jury in its fullest form.

16. Mr Wendler, on behalf of McNamara, objected to the evidence. He submitted that it amounted, in effect, to calling evidence in order to establish something that had already been conceded by McNamara. He also pointed out that if the evidence were excluded, neither the Crown nor Mr Thomas would be precluded from making such submissions to the jury about it and that this was the appropriate way in which to deal with the issue.

17. Mr Wendler submitted, ultimately, that the matter was essentially one for the application of s. 135 of the Evidence Act 1995 (NSW) (“the Act”) on the basis that leading the evidence would amount to an exercise in what he described as “time-wasting”.

18. It is not suggested that the occasion for seeking to call this evidence could reasonably have been foreseen by the Crown. Mr Wendler accepted, as I understood it, that the issue only arose as a consequence of the evidence given in in-chief by McNamara: R v Chin [1985] HCA 35; (1985) 157 CLR 671. The issue, therefore, is whether the evidence is relevant and, if so, whether there is some basis upon which it ought be excluded.

19. In my view the evidence is clearly relevant and highly probative. It is relevant to the assessment of the evidence given by McNamara. It is also relevant to the broader question of the circumstances in which McNamara came to have the vehicle BV67PX under his control in the period leading up to the deceased's death, and how he came to be driving it on 20 May 2014.

20. Accepting this to be the case, the issue is whether or not the evidence ought be excluded. Although Mr Wendler made reference to s. 135 of the Act, because this evidence is sought to be adduced by the prosecution the first provision that ought be considered is s. 137.

21. Section 137 mandates the exclusion of evidence in circumstances where its probative value is outweighed by the danger of unfair prejudice to the accused. In my view, for the reasons I have stated, the probative value of this evidence is high. It is certainly prejudicial to the accused, but it is not unfairly so, particularly given the evidence he gave in answer to questions from his own counsel. In my view, this is not a situation where the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. There is nothing to warrant its exclusion under s. 137.

22. Section 135, to which Mr Wendler referred, confers a discretion to exclude evidence in certain circumstances. However for the reasons I have already expressed, I am not satisfied that the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to McNamara.

23. Moreover, and in light of one specific matter to which Mr Wendler referred, I am certainly not satisfied that the probative value of the evidence is substantially outweighed by the danger it might cause, or result in, an undue waste of time (s. 135(c)). It will be apparent that the evidence is in very short compass and will be led in a succinct fashion through the officer-in-charge.

24. For those reasons I propose to allow the Crown to adduce that evidence in its case in reply.

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Decision last updated: 15 June 2016