R v Rogerson; R v McNamara (No 7)

[2015] NSWSC 1029

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 7) [2015] NSWSC 1029
Hearing dates:	5 June 2015
Date of orders:	14 July 2015
Decision date:	14 July 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See paragraphs [8], [9], [10], [12], [13], [15], [17], [19], [21], [22], [23], [25], [27], [29], [31], [32], [34], [36], [38], [40], [42], [43], [45], [47], [49], [51], [52], [54], [55], [57], [59], [60], [62], [63].
Catchwords:	EVIDENCE – Evidence of hearsay representations of deceased – Whether admissible
Legislation Cited:	Evidence Act 1995 (NSW)
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 C Waterstreet – Accused McNamara   Solicitors: Director of Public Prosecutions - Crown Katsoolis and Co – Accused Rogerson Kings Law Group – Accused McNamara
File Number(s):	2014/1574082014/156921
Publication restriction:	Nil

Judgment

INTRODUCTION

1. Roger Caleb Rogerson and Glen Patrick McNamara have each pleaded not guilty to an indictment alleging:

1. the murder of Jamie Gao (“the deceased”) on 20 May 2014; and

2. the supply of a prohibited drug, namely 2.78 kilograms of methylamphetamine, being an amount not less than the large commercial quantity applicable to that drug.

2. A further count (in the alternative to (i) above) has been brought against Rogerson alleging an offence of being accessory after the fact to murder. Rogerson has pleaded not guilty to that alternative count.

3. By notices dated issued pursuant to s. 67 of the Evidence Act 1995 (“the Act”) the Crown has indicated an intention to adduce evidence of previous representations made by a person who is unavailable to give evidence, namely the deceased. Having heard argument, I outlined to the parties on 14 July 2015 those representations which I concluded should be admitted into evidence. My reasons for that determination now follow.

THE CROWN CASE

4. A Crown Case Statement has been filed in the proceedings. It is set out in full in a number of previous judgments and in these circumstances I will not repeat it. I have had regard to the Crown case in determining the present issue.

THE RELEVANT STATUTORY PROVISIONS

5. The Crown variously relied upon ss. 65, 66A and 81 of the Act in support of the admissibility of this evidence. Those sections are as follows:

65 Exception: criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(a) was made under a duty to make that representation or to make representations of that kind, or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or

(c) was made in circumstances that make it highly probable that the representation is reliable, or

(d) was:

(i) against the interests of the person who made it at the time it was made, and

(ii) made in circumstances that make it likely that the representation is reliable.

Section 67 imposes notice requirements relating to this subsection.

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied:

(a) cross-examined the person who made the representation about it, or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it.

Section 67 imposes notice requirements relating to this subsection.

(4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that:

(a) is given in an Australian or overseas proceeding, and

(b) is admitted into evidence in the criminal proceeding because of subsection (3),

cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.

(5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but:

(a) could reasonably have been present at that time, and

(b) if present could have cross-examined the person.

(6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by:

(a) the person to whom, or the court or other body to which, the representation was made, or

(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or

(c) the person or body responsible for producing the transcript or recording.

(7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends:

(a) to damage the person's reputation, or

(b) to show that the person has committed an offence for which the person has not been convicted, or

(c) to show that the person is liable in an action for damages.

(8) The hearsay rule does not apply to:

(a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

Section 67 imposes notice requirements relating to this subsection.

(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that:

(a) is adduced by another party, and

(b) is given by a person who saw, heard or otherwise perceived the other representation being made.

Clause 4 of Part 2 of the Dictionary is about the availability of persons.

66A Exception: contemporaneous statements about a person's health etc

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.

81 Hearsay and opinion rules: exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation:

(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and

(b) to which it is reasonably necessary to refer in order to understand the admission.

THE EVIDENCE

6. The representations which are the subject of the present application are set out in each of the notices. They fall into a number of categories. Each of those categories, and the evidence falling within them, are set out below. It will be apparent that within some of the material nominated by the Crown as containing the representations there is evidence which is highly prejudicial to the accused McNamara. The transcript of submissions will reflect that in a number of these instances, the Crown conceded that such material was inadmissible.

Representations by the deceased about his relationship and his dealings with the accused McNamara

Statement of Lok Chun Lam

7. The representations relied upon are set out in paragraphs [27], [29] and [34] of the statement of Lok Chun Lam of 20 June 2014 as follows:

27. After this meeting with Glen Jamie and I left and had lunch together. I told Jamie what Glen had spoken to me about. Jamie told me that Glen had said the same thing to him about how he can teach Jamie how not to get arrested.

…

29. Glen told me he will get the statement for me to help with my case soon. He asked me if I had the money yet and I said no. Glen asked me about drugs again. He asked me if I had any drugs to sell as he had customers. He told me he deals with the Italian Mafia. I told him that I didn't have any drugs. Glen told me that he also has drugs and that he deals them. He said do I have any customers or not. I said no. I thought that Glen wanted to do some drug deals with me. He wanted to see if I can get drugs for him or if I wanted to buy drugs from him. I was very worried about Glen because he was an ex cop and I didn't know if I could trust him. I thought that he was trying to set me up and that he might be an undercover cop or something. Jamie was sitting listening to this conversation. I was there with Glen and Jamie for about 15 minutes. When I left Jamie and Glen were still at the hotel together Jamie translated the entire conversation to me with Glen.

…

34. The only time I ever heard from Glen was when Jamie visited me at the MRRC at Silverwater. Jamie told me on this day that Glen wanted to come and see me. That he can help me with things. Glen told Jamie that he could organise that if my cousin Kit and I weren't in the same gaol, that he could have us put together, as he had connections in the prison system. He said he would charge me a few thousand to do this. I said to Jamie no I don't want to see him and that I don't want his help with anything. I told him my case is finished and I don't know why he wants to see me. I told Jamie I hate Glen he is crazy and to please not talk to me about him anymore. Glen was only after money that was all he would talk to me about. Glen never really did anything for me but was always asking for money.”

8. In respect of the representations contained in [27] I accept the submission of counsel for McNamara that there is no evidence which satisfies the temporal requirements imposed by s. 65(2)(b), nor is there any evidence which would support the reliability of any representation as required by s. 65(2)(c). There is nothing contained within [27] which would bring any representation contained in it within s. 66A.

9. Paragraph [29] contains no representation of the deceased. The paragraph details a conversation between the witness and McNamara at which the deceased was present.

10. As to [34], the fact that McNamara may have told the deceased that he had “connections” is, in my view, irrelevant to any issue in the trial. In particular, I do not accept the Crown’s submission that the representations made by the deceased set out in that paragraph are relevant to the deceased’s state of mind and thus admissible under s. 66A. The Crown accepted in the course of oral argument that any relevance in that respect was “distant”.

Hubert Sha

11. The relevant representations are set out in paragraphs [15] and [17] of the statement of Hubert Sha dated 21 May 2014:

15.1 left my car at Jamie's house and we drove around in Terry's car. Henry then remembered that Jamie was to meet up with Glen around that time. I have heard Jamie talk about a guy called Glen McNAMARA in the past. He would tell me that he is a dangerous figure. Jamie told me that Glen is an ex cop and is now a private investigator. I had previously googled Glen and it confirmed that he used to be a cop.

…

17. Jamie would tell Glen that he had the finances to support Glen's investigation. I knew that Jamie had made various payments to Glen, I remember Jamie saying that he paid Glen $2000 in one hit. Jamie told me that him and Glen had become closer and were more than acquaintances. They had to see each other on a regular basis to exchange information. Jamie would tell me that Glen would boast about having the ability to dispose of people without a trace, due to his experience of being an ex police officer. I never took too much notice about Glen because I thought that he was boasting and lying.”

12. As to the representations in [15], references to McNamara being a “dangerous figure”, and references to the witness “googling” him, are plainly inadmissible. As to the balance of the representations, insofar as the Crown relied upon s. 65(2)(b) the temporal requirements imposed by that section are not established. As to any reliance upon s. 65(2)(c), there is nothing about the circumstances in which the representation was made that make it highly probable that it is reliable. None of the terms of any of the representations in that paragraph are such to fall within s. 66A.

13. As to [17], to the extent that the Crown relied upon s. 65(2)(b) I do not consider that the temporal requirements impose by that section have been satisfied. The evidence of the suggested “boast” by McNamara is in, in any event, irrelevant.

Terrence Wong

14. The relevant representations are set out in paragraph [5] of the statement of Terrence Wong dated 22 May 2014:

5. Of late, Jamie has been telling me that he has been spending time with a male called Glen McNamara. Jamie told me that Glen is an ex-cop and private investigator. The impression I got is Jamie trusted him, Jamie only met him very recently I think.”

15. Obviously, the “impressions” of the witness are not admissible. To the extent that the Crown relied upon s. 65(2)(b), the temporal requirements of that section are not satisfied. The Crown’s attempted reliance upon s. 65(2)(c) fails in light of the absence of any identified circumstances which make it highly probable that the representation is reliable.

Henry Zheng

16. The relevant representations are set out in paragraph [4] of the statement of Henry Zheng dated 22 May 2014:

“4. Recently over lunch Jamie had mentioned that he was going to see a male by the name of Glen McNamara. Jamie spoke of Glen as a ruthless ex-cop who was now a private detective, Jamie told me that he was connected and referred to him in Asian as "Gwai Lo" or "white guy." Jamie told me that his solicitor had introduced Glen to him and since then they had been in contact.

17. The deceased’s representation that he was going to see a male by the name of Glen McNamara is admissible under s. 66A.

Wayne Cai

18. The relevant representations are set out in paragraphs [8], [9] and [10] of the statement of Wayne Cai dated 23 June 2014:

“8. I don't know the exact date but sometime in either later 2013 or early 2014, Jamie started talking to a male by the name of Glen, at the time Jamie told me about Glen I didn't know his surname. I think Jamie meeting Glen coincided with Lok being arrested and charged by the Police. I don't know what Lok was charged with but I know he was on bail for a while before going to prison.

9. Jamie had told me that Glen was a private investigator and used to work undercover with the Police. Jamie told me that Glen was a "heavy", by this he meant that Glen was connected, he told me that Glen had connections with bikie gangs but didn't mention which one. I know Jamie was also talking to Glen about his charges that he had for a kidnapping matter.

10. Round about this time Jamie started going out with a Japanese girl called Misaki. Jamie and I would catch up probably once a fortnight at Hurstville. During these meeting Jamie would mention Glen, on one occasion Jamie told me that Glen was going to hire him to work with him, I don't know what work it was but I assumed it was private investigation work. On another occasion Jamie told me that Glen had spoken to him and given him tips on how to kill people, Jamie said that Glen had told him the Police track people through their mobile phones and that if you were going to kill someone you should leave your mobile phone somewhere like a cafe that way you could not be tracked when committing a crime. I got the impression that Jamie trusted Glen, Jamie would always trust and look up to people who he believed were "connected" and had power. I remember once Jamie told me that Glen had asked him if (sic) could take care of some members of the Italian Mafia and Jamie told me that he had told Glen he couldn't. I personally thought that Glen was talking shit, I told Jamie this on numerous occasions however Jamie for some reason thought that Glen was the real deal and trusted him.”

19. The representations in [8] are so vague as to be meaningless. The witness says that the deceased “told him” about the accused but does not say what he was told. The representations in [9] are irrelevant and unfairly prejudicial. The representation in [10] that the deceased was going to hire McNamara to work with him is admissible under s. 66A. The balance of the representations are not admissible.

Mathew Vines

20. The relevant representations are set out in paragraphs [4], [5] and [6] of the statement of Mathew Vines dated 13 June 2014:

“4. I can't remember the exact date but sometime in April 2014, Jamie told me that he was meeting a male by the name of Glen for "business".

…

5. Jamie told me that Glen was ex police officer and a private investigator who he had met through a friend's solicitor. I know this solicitor was representing a guy named Lok who I had met previously with Jamie. I know that Jamie and Lok had known each other for a long time and now Lok was in gaol but I do not know what he was charged for.

6. In a second meeting with Jamie in April 2014, Jamie seemed very excited and gave me the impression that he really trusted this guy Glen, Jamie started to open up and tell me more about Glen and this deal that he was planning with him. Jamie said that Glen had taught him counter-surveillance for when they had to meet up. He said that Glen had told him to park his car a number of streets away and walk around the block to see if he was being followed before they met, he also said that when he met Glen they would leave their mobile phones behind and not take them to the meetings. He mentioned that Glen had taken him past his house, I don't know where this house was but Jamie said it was about ten minutes from Hurstville and that Glen was a genuine family man with kids. Jamie told me that the upcoming deal with Glen would change his life.”

21. The representation in [4] is admissible under s. 66A.

22. The only relevant representation in [5] is that the deceased told the witness that McNamara was a former police officer and private investigator. It is to be inferred that the deceased ascertained that information by virtue of a representation by McNamara, in which case the evidence is second hand hearsay. The balance of that paragraph recites the asserted knowledge of the witness and contains no relevant representation.

23. Paragraph [6] contains, in summary, a series of representations made by the deceased about what McNamara had taught him about counter surveillance. In my view those representations are admissible under s. 66A.

Misaki Takebayashi

24. The relevant representations are set out in paragraph [4] of the statement of Misaki Takebayashi dated 23 May 2014:

“4. At the start of April 2014, Jamie and I went to a pub in Hurstville. It was around midday. I can't remember the name of the pub but it is a red building and it's directly across from the train Station. Once at the pub we meet up with Jamie's friend, Glen. I do not know Glen's last name but I know that he used to work for the Police. Glen is Caucasian, about 50 years old or older and is short and chubby. Jamie told me that Glen isn't a cop anymore and that he is now a bikie. I don't know what club he is in but I recall Jamie telling me that Glen wanted him to join but Jamie refused.

25. The only representation in [4] is that concerning McNamara being a bikie. Such representation is irrelevant and unfairly prejudicial.

Kit Chun Lam

26. The relevant representations are set out in paragraphs [8] and [13] of the statement of Kit Chun Lam dated 30 July 2014:

“8. On a third occasion I went with Jamie and Lok to the city to Charles' office. I didn’t go upstairs at this time I just waited downstairs for them to finish the meeting. After the meeting Jamie and Lok came down and we went and had lunch together. During lunch they spoke to me about the meeting and they informed me that Charles had introduced them to Glen who was the ex police officer. Glen had told them he could get statements from other people involved in the matter to help our case. They told me that Glen was about 50 years of age and that he was a very big man. They said that Glen had told them that he was an undercover cop previously and that he was an investigator and that he knows a lot of bikies. He said that the cops arrested him when he was working as an undercover police officer and that he eventually won his case against the police. He told them he didn’t want to be a police officer after this and that he wanted revenge against the police. He told them that he was very happy about our case as it gave him a chance to fight against the police again.

…

13. While Jamie was in Hong Kong Lok and I were sentenced and returned to prison. Jamie came back to Australia and he came and visited me at MRRC Silverwater. He said he had fun in Hong Kong and that he had a Japanese girlfriend. He said that if Lok and I end up going to different gaols that Glen has said he could make sure that we go to the same gaol. But that it would cost us a little bit of money.”

27. In my view, none of the representations of the deceased which are containing within these paragraphs is relevant to any issue in the trial.

Representations about meeting the accused McNamara on various occasions at various places

Matthew Lo

28. The relevant representations are set out firstly in paragraph [6] of the statement of Matthew Lo dated 22 May 2014:

“A couple of months ago Jamie and I were having dinner at Miss Saigon Restaurant in Hurstville and he told me that he had to leave early to go meet some "white guy”. He said this in the Cantonese Language by saying, "Gwai Lo". I didn't think much of this at the time he told me.”

29. In my view, the deceased’s representation that he had to leave early to meet some “white guy” is admissible pursuant to s. 66A as a statement of intention.

30. Further representations relied upon by the Crown are set out in paragraphs [7] and [8] of the statement of the same witness dated 30 May 2014:

“7. Also in paragraph six, I have mentioned a 'white guy' that Jamie was meeting. In addition to this I can say that at this time Jamie told me this "white guy" was also an ex-cop. However, Jamie did not go into details about why he was meeting this person or any other details of the meeting. I just thought to myself that Jamie might have been meeting with an ex-cop to get ideas about how he could get out of or prevent any trouble he was in. By this I mean that at this time I was aware Jamie had been in previous fights and had some issues with gangs. I believe this came about from Jamie going to nightclubs, such as LKF which is in the city near World Square. I know that a lot of Asians go to this nightclub and they all stick together in their groups and gangs.

8. There was another occasion earlier this year when I was in Hurstville with a female friend named Aggie CHOU, and I ran into Jamie just after he had met with this ex-cop. I recall this was some time in the afternoon on a weekday but I cannot remember exactly when it was. At this time I had just parked my car in the car park on Treacy Street, Hurstville near Sing Bar karaoke. As Aggie and I got out of my car I saw Jamie walking along Treacy Street towards Forest Road so I stopped and spoke with him. I recall asking Jamie something like, "What are you doing this early?" The reason I asked Jamie this was because he sleeps a lot and sleeps very late. I remember Jamie said something like, "I just came to see a mate." I said, "Who?" Jamie nodded his head in the direction of a guy walking further along Treacy Street. I recall seeing a guy walking in the same direction Jamie had been but further along Treacy Street. I would describe this guy as being white, he was not young but I cannot say how old he would have been as I only saw the back of him, he had short greyish hair and he was a fat chubby build. At this time I think Jamie may have had uni so he left and Aggie and I went to get something to eat.”

31. Read in conjunction with the contents of paragraph [6] of the statement of Lo dated 22 May 2014, the representation by the deceased (contained in paragraph [7] of Lo’s second statement) that the “white guy was an ex cop”, is in my view admissible pursuant to s. 66(2)(b) of the Act.

32. Further, the deceased’s representation in paragraph [8] of Lo’s second statement, namely that he was “meeting a mate” is admissible as a statement of intention pursuant to s. 66A.

Justin Gao

33. The relevant representations are set out in paragraphs [4] and [5] of the statement of Justin Gao dated 23 June 2014:

“4. In paragraph 11 of my original statement I mentioned Jamie meeting a private investigator by the name of Glenn and how Jamie was planning a deal with some of Glenn's bikie friends. On a number of occasions leading up to Jamie's disappearance I would be with him when he would say, "I have to go meet Glen." During these occasions Jamie would leave his mobile phone with me and tell me that he would be back soon. I have never known Jamie to do this in the past, this only started when he started meeting up with Glenn.

5. There was a weird way that Jamie and Glenn would communicate before meeting each other. One time I was with Jamie and he was going to meet Glenn. Jamie told me that I have to wait in the car while he went into the Meridian Hotel to meet Glenn, we parked and waited in car park opposite Miss Saigon, the car park is also across the road from the Meridian Hotel. When we were waiting I asked Jamie why he doesn't call Glenn and why doesn't he just go inside and meet him. Jamie told me it doesn't work that way and there was a strange way in which they communicated to set up their meetings. After about five minutes Jamie went inside the Hotel and left his mobile phone on in the car with me. I remember Jamie's phone started ringing but I never answered it.”

34. The representations in [4] and [5] to the effect that the deceased said he had to “go and meet Glen” are representations of an intention and are admissible pursuant to s. 66A.

Representations that the deceased took part, together with the accused McNamara, in the supply of illegal drugs

Hubert Sha

35. The relevant representations are set out in paragraphs [11] and [12] of the statement of Hubert Sha dated 3 June 2014:

“11. In April sometime I went to Jamie's place one night and he was venting to me. He said that everything was so complicated now. He said that Glen wants to buy the stuff from him and that he wanted ten kilograms of it. The people in Hong Kong said that the amount was way too much for the first time purchase and that the trust between the parties was not there yet. I again expressed my concern telling him I didn't think he should do it. Jamie said to me that he was now in a position where he couldn't back out even if he wanted to. He said Glen was really keen and that he had already given him a sample. Glen insisted he still wanted to buy ten kilograms but Hong Kong was definitely not keen on doing such a large amount.

12. About two weeks later (towards the end of April 2014) I went to Jamie's house and he told me some more things about the deal with Hong Kong and Glen. He said that Glen had finally agreed that the first transaction would be a smaller amount. He didn't tell me how much it was going to be only that it was a smaller amount. At this time Jamie gave me the phone number for a friend of his in Hong Kong whose name was Wing. Jamie said that Wing would look after me whilst I was in Hong Kong as I was travelling over there soon.”

36. In my view the representations contained in these paragraphs are second hand hearsay. They are not caught by s. 65(2)(b) or (c) upon which the Crown relied. They similarly do not fall within s. 66A.

Henry Zheng

37. The relevant representations are set out in paragraph [12] of the statement of Henry Zheng dated 2 June 2014:

“As we were playing his PS3 Jamie and I were talking about having no money. I recall during this conversation Jamie said something along the lines of, "...I am up to something with the 'Gwai Lo' soon..." I took this to mean that Jamie was going to be making some money with the white guy he had previously spoken to me about. Jamie also said words similar to,"...I can't tell you too much as the 'Gwai Lo' told me off for talking too much...". I did not ask Jamie about this as it was obvious he did not want to tell me about it.”

38. The representations themselves are in imprecise terms, as evidenced by the attempt by the witness to interpret them. Even if I were to come to the view that they were admissible, they should be excluded under s. 135(b) and/or s. 137 of the Act.

Justin Gao

39. The first of the representations are set out in paragraphs [11] and [12] of the statement of Justin Gao dated 22 May 2014:

“11. I recall around two or three weeks ago Jamie mentioned to me that he was going to meet with a private investigator named Glenn. I did not really think much of it at this time. There were a few other occasions when I met up with Jamie and he told me that Glenn was going to introduce him to some guys and they were going to do some kind of deal.

12. Jamie did not go into any specifics about this deal or who these other guys were other than mentioning that he thought the other guys were bikies. I did not know what to think when Jamie told me this as I did not think he was actually going to do anything and I believed he may have just been exaggerating.”

40. The representation in [11] that the deceased was going to meet with McNamara is admissible pursuant to s. 66A. The entirety of paragraph [12] is inadmissible.

41. Further representations relied upon the Crown are set out in paragraphs [6] and [10] of a second statement of this witness dated 23 June 2014:

“6. Usually I would meet with Jamie twice or three times a week. We almost always met at Hurstville, we would go to Miss Saigon Vietnamese noodle bar and eat. On two or three occasions we met at Miss Saigon Jamie walked across the road to the Meridian Hotel where he told me that he was going to meet Glenn. On some occasions I would meet with Jamie and he would turn up late. The excuse Jamie would give for being late was because he had been in a meeting with Glenn. Jamie told me on many occasions that the deal with Glen was massive, he would make money gestures with his hands which indicated that he was going to make big money from the deal. Jamie would always say that he was going to be rich soon but never told me when the deal was going to take place.

…

10. I know that Jamie travelled to Hong Kong earlier in the year. He went there with his mate Terry WONG, Jamie told me that he partied in Hong Kong and mentioned a couple of name of people he hung out with over there, one of these names was Che Che, I don't know if this was a nick name or full name. When he spoke to me about Hong Kong he mainly spoke about going out and having fun.”

42. The representations in [6] are admissible as representations of intention, knowledge or state of mind pursuant to s. 66A.

43. The representations in [10] are irrelevant.

Mathew Vines

44. The relevant representations are set out in paragraphs [7] and [8] of the statement of Mathew Vines dated 13 June 2014:

“7. The last time I saw Jamie was in early May 2014. During this meeting Jamie told me that the "business" he was doing with Glen was drugs. Jamie told me that he had met a "heavy" connected "old man" in a visit to Hong Kong in February this year. He referred to this male in Hong Kong as, "old man" and told me that the "old man" had connections here in Australia to get stuff. The "old man" had someone in Australia that had access to the drug ICE and Jamie was acting as a middle man between the old man's people in Australia and Glen. Jamie said that Glen's friends controlled drug supply in the Nowra area and Glen was organising the deal. Jamie didn't tell me how much drugs Glen was buying from him but he said it was "big time". I took this to mean that it was a big deal and Jamie's enthusiasm lead me to believe that it was worth a lot of money.

8. Jamie never mentioned when he was going to do the deal with Glen, however I got the impression that it was sometime in the near future. The last time I actually spoke with Jamie was on the phone sometime in mid May. During this call Jamie asked me if I was in the City and I wasn't so we couldn't meet up. Jamie never spoke about the deal with Glen over the phone.”

45. The representation in [7] by the deceased that the business he was doing with McNamara was “drugs” is admissible pursuant to s. 65(2)(c). There is ample evidence to support a conclusion as to its reliability. The balance of that paragraph is irrelevant, as are the contents of [8].

Misaki Takebayashi

46. The relevant representations are set out in paragraph [5] of the statement of Misaki Takebayashi dated 28 May 2014:

“On a Wednesday in March or April 2014, I was at my house in the city with Jamie. I can't remember the date but I know it was Wednesday because I was home and not at TAFE. Wednesday's is the day I don't have TAFE. Jamie was at University and had a break so he was hanging out with me. Jamie asked me for a small plastic bag and I asked him why. Jamie showed me a small bundle of crystal rocks and said he had received this from Hong Kong as a sample and had to go show it to Glen. The crystal was wrapped in a small newspaper and the piece of newspaper was only small about four centimetres long and three centimetres wide.”

47. The representation that the deceased asked for a small plastic bag is admissible. However the requirements of ss. 65(2)(b) and/or (c) are not fulfilled so as to allow the Crown to rely upon the representation that the deceased had received a sample from Hong Kong and was to show it to McNamara.

Representations that “something big is going down” and an “upcoming deal would change his life”

Matthew Lo

48. The relevant representations are set out in paragraph [11] of the statement of Matthew Lo dated 30 May 2014:

“When Jamie got back from Hong Kong we caught up either (sic) day he got back or the day after and we spoke about his trip. I recall Jamie telling me that he met a couple of guys, but when I asked him who they were he told me not to worry about it. I just thought Jamie must have had his own reasons for not telling me so I just left it at that.”

49. In my view, there is nothing contained in this paragraph which is relevant to any issue in the trial.

Justin Gao

50. The relevant representations are set out in paragraph [7] of the statement of Justin Gao dated 23 June 2014:

“On two separate occasions during the time Jamie was talking about this deal, he told me that he had to go drop off. On one occasion Jamie was dropping me off at home and was in a rush, I asked him, "Why do you have to leave so early, come down, what are you doing later." Jamie said, "I have to go do a drop off." On the second occasion I think we were at Miss Saigon and Jamie mentioned he had to go do a drop off. I asked Jamie what he was dropping off and he said it was" ICE". I asked Jamie if he was a drug dealer and he said words to the effect, "Fuck no it's just a sample for an upcoming deal." I also asked Jamie who he was dropping the samples to but he never answered directly and was vague and said, "possible customers". Jamie did tell me that the people he was dropping off the samples too where "heavy" blokes. By saying heavy Jamie meant that they were well connected gangsters.”

51. In my view, the following representations by the deceased contained in this paragraph are admissible pursuant to s. 66A, namely:

1. he had to “go do a drop off”;

2. what was to be “dropped off” was Ice.

52. Further in my view, there is available evidence of the deceased’s activities (including his presence in the storage shed at the time of his death) to allow the Crown to rely, pursuant to s. 65(2)(c) upon the deceased’s representation that the drop offs were for possible customers. Finally, I am satisfied that the representation as to the upcoming deal is admissible pursuant to s. 66A.

Wayne Cai

53. The relevant representations are set out in paragraphs [6], [7] and [12] of the statement of Wayne Cai dated 23 June 2014:

“6. In 2013 Jamie started to get closer to Lok and get involved in whatever business Lok was doing. Jamie always spoke to me about wanting to be a gangster, he wanted to have power and money and wanted to be someone in that circle. At this time Jamie and I were both at University and I would always tell him to re think his position because it was dangerous and I believed that if you were involved in gangster stuff you could end up dead or in prison. Jamie didn't really care and thought he was too smart and had ambitions of (sic) climb the gang hierarchy.

7. Jamie and I had many detailed discussions where I tried to convince him to concentrate on his studies but he would keep telling me that he didn't want to work a nine to five office job. All along I didn't know if Jamie was just talking rubbish or actually involved in anything, I put a lot of it down to Jamie talking himself up and watching too many crime movies.

…

12. When my girlfriend and I arrived in Hong Kong we spent a lot of time out shopping, we met up with Terry and Jamie who came out with us. Jamie told me that he was going to meet a Hong Kong male by the name of Chook Chook. Jamie told me that he was meeting Chook Chook for "networking" and that Chook Chook was a gang member. I didn't go into detail with Jamie about what him and Chook Chook were doing but I assumed it was business. Terry spent more time with my girlfriend and I because Jamie was always off with Chook Chook.”

54. The deceased’s representation in [6] about (inter alia) wanting to be a “gangster”, along with his representation in [7] about not wanting to work a “nine to five job” are admissible pursuant to s. 66A.

55. The deceased’s representation in [12] that he was going to meet up with a person by the name of “Chook Chook” is in my view not relevant. As Counsel for McNamara pointed out, the Crown is not able to identify the person “Chook Chook”.

Representations that the deceased was involved with some “heavy people” in the importation and distribution of illegal drugs

Kit Chun Lam

56. The relevant representations are set out in paragraph [12] of the statement of Kit Chun Lam dated 30 July 2014:

“I know that Jamie went to Hong Kong with some of his friend's being Wayne and Terry. When he was in Hong Kong I spoke to Jamie on the phone and he told me that he had met a lot of Hong Kong gangsters. He said that he met a gangster called Wing Chai and that he was partying with them and that they were taking drugs every day.”

57. In my view it has not been established that any representation of the deceased which is contained in this paragraph is relevant to any issue in the proceedings.

Representations that the accused McNamara had requested the deceased to “hook him up” with drugs and the making of specific arrangement in relation to supply of the illegal drugs the subject of the indictment

Hubert Sha

58. The relevant representations are set out in paragraphs [9], [11] and [12] of the statement of Hubert Sha dated 3 June 2014:

“9. Jamie told me a lot about Glen. He told me that Glen had connections with bikie gangs from his time working in the police force at Kings Cross. Jamie told me that Glen missed the old days when money and things came so easily. That Glen could hook him up with guns if he needed them. Glen asked him if he had anyone that could hook him up with any cheap good stuff. When Jamie mentioned this I knew he was referring drugs. I could tell from Jamie's face that he was thinking about organising a deal with Glen and the Hong Kong people.

…

11. In April sometime I went to Jamie's place one night and he was venting to me. He said that everything was so complicated now. He said that Glen wants to buy the stuff from him and that he wanted ten kilograms of it. The people in Hong Kong said that the amount was way too much for the first time purchase and that the trust between the parties was not there yet. I again expressed my concern telling him I didn't think he should do it. Jamie said to me that he was now in a position where he couldn't back out even if he wanted to. He said Glen was really keen and that he had already given him a sample. Glen insisted he still wanted to buy ten kilograms but Hong Kong was definitely not keen on doing such a large amount.

12. About two weeks later (towards the end of April 2014) I went to Jamie's house and he told me some more things about the deal with Hong Kong and Glen. He said that Glen had finally agreed that the first transaction would be a smaller amount. He didn't tell me how much it was going to be only that it was a smaller amount. At this time Jamie gave me the phone number for a friend of his in Hong Kong whose name was Wing. Jamie said that Wing would look after me whilst I was in Hong Kong as I was travelling over there soon.”

59. The Crown submitted that the representations contained within these paragraphs went to the state of mind and the intention of the deceased regarding the events of 20 May and what he expected would happen and were thus admissible under s. 66A. I am not able to accept that submission.

60. Firstly, some of the material is second hand hearsay. In other words, the witness is recounting something that the deceased had said was told to him by the accused. Secondly, references to guns and bikie gangs are not relevant to any issue in the trial. Thirdly, the representations do not, in my view, evidence any relevant state of mind on the part of the deceased. The attempt made by the witness to assess what the deceased was thinking is obviously not admissible. Fourthly, to the extent that the Crown relied upon ss. 65(2)(b) and (c), the requirements for admissibility imposed by those sections have not been satisfied.

Representations by another unavailable witness as to the deceased’s involvement in buying ice from Hong Kong

Kit Chun Lam

61. The relevant representations are set out in paragraphs [10] and [12] of the statement of Kit Chun Lam dated 30 July 2014:

“10. A few weeks after this I was speaking with Jamie on Wechat (Wechat is an application on mobile phones which allows you to communicate by text message) and he told that he was going to a meeting with Glen on his own. After this meeting Jamie told me that Glen was asking for money to pay for him to get the statements from the people who could give evidence for Lok in his matter

…

12. I know that Jamie went to Hong Kong with some of his friend's being Wayne and Terry. When he was in Hong Kong I spoke to Jamie on the phone and he told me that he had met a lot of Hong Kong gangsters. He said that he met a gangster called Wing Chai and that he was partying with them and that they were taking drugs every day.”

62. The deceased’s representation in [10] that he was going to meet with Glen is admissible pursuant to s. 66A.

63. In my view, the various representations in [12] are irrelevant.

**********

Decision last updated: 15 June 2016