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Rogerson v R; McNamara v R

Rogerson v R; McNamara v R

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Case Copied 16 July 2021 82 min read

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Rogerson v R; McNamara v R
Medium Neutral Citation:	[2021] NSWCCA 160
Hearing Date(s):	21-25 September 2020
Date of Orders:	16 July 2021
Decision Date:	16 July 2021
Before:	Bell P R A Hulme J Beech-Jones J
Decision:	Rogerson 1. Extend time to file notice of application for leave to appeal against conviction and sentence to 9 March 2020. 2. Grant leave to appeal in respect of Grounds 1, 3 and 5 but refuse leave in respect of Ground 4. 3. Appeal dismissed. 4. Pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010, on the grounds specified in s 8(1)(e) thereof, order that until 23 July 2021 paragraphs [308]-[413] of this judgment and that part of the headnote referring to them not be published other than to the parties or the NSW Crime Commission. 5. Order 4 is to operate throughout the Commonwealth of Australia. 6. Direct that on or before 21 July 2021 the parties and the NSW Crime Commission file any submissions not exceeding four pages concerning paragraphs [308] to [413] of this judgment. 7. Access to the Court file will only be permitted to a non-party with the leave of a Judge of the Court, and only after the parties and the NSW Crime Commission have had notice of the non-party’s application for access and have been afforded an opportunity to be heard with respect to the application. McNamara 1. Extend time to file notice of application for leave to appeal against conviction and sentence to 9 August 2019. 2. Grant leave to appeal in respect of Grounds 1 to 5. 3. Appeal dismissed.
Catchwords:	EVIDENCE – Evidence Act 1995 (NSW), ss 44(3), 43 – cross-examination of one accused by another – prior inconsistent statement – “use” to be made of Crime Commission Information Report – report was a summary of the co-accused’s account of events – inconsistency between Information Report and co-accused’s account of events at trial – no questions expressly or impliedly referring to existence of report allowed – questions about oral statements made by co-accused to the Commission should have been allowed with leave – rebuttal evidence should have been allowed under s 106 – erroneous ruling under Evidence Act 1995 (NSW), s 192A CRIME – appeals – Criminal Appeals Act 1912 (NSW), s 6(1) – third limb – loss of chance of acquittal – second limb – wrong decision of any question of law CRIME – appeals – proviso – error relevant to credibility of co-accused only – credibility of both accused comprehensively rejected by the jury – no significant denial of procedural fairness – Court able to assess proviso – accused’s guilt proved beyond reasonable doubt – proviso applied – appeal dismissed CRIME – appeals – unreasonable verdict – circumstantial case – joint criminal enterprise – two accused – Crown unable to prove which accused fired the fatal shots – cut-throat defence – Crown attack on both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCCA 160
Decision Date: 16 July 2021

CaseChat Overview and Summary

In Rogerson v R; McNamara v R, the appellants, Rogerson and McNamara, appealed against their convictions and sentences for the murder of a man. The appeals raised issues of evidence, credibility, and the standard of review for the exclusion of evidence. The court examined whether the trial judge had correctly applied the Evidence Act 1995 (NSW) in restricting cross-examination and allowing rebuttal evidence. The appellants also argued that the jury's verdict was unreasonable, and that the exclusion of certain evidence was erroneous. Furthermore, the court considered whether the exclusion of evidence relating to other criminal activities was appropriately deemed prejudicial under the Act.

The legal issues before the court involved the interpretation and application of various sections of the Evidence Act 1995 (NSW) and the Criminal Appeals Act 1912 (NSW). The court had to determine whether the trial judge's decisions on the admissibility of evidence and the exclusion of prejudicial evidence were correct. It also had to consider whether the jury's verdict was unreasonable, given the circumstantial nature of the evidence and the challenges to the credibility of the appellants. The standard of review for the exclusion of evidence under s 135(a) of the Evidence Act was another critical point of legal interpretation.

The court held that the trial judge had correctly excluded certain evidence as unfairly prejudicial to Rogerson. The court found that the exclusion of evidence concerning Rogerson's involvement in other criminal activities was appropriate under the Evidence Act, as it was highly prejudicial in the context of a murder trial. The court also determined that the jury's verdict, while circumstantial, was not unreasonable given the evidence presented. The appellants' credibility had been comprehensively rejected by the jury, and the court found no significant denial of procedural fairness. The appeals were dismissed as the guilt of both appellants was proven beyond reasonable doubt. The court also noted that the evidence that came forward after Rogerson's sentencing did not constitute a miscarriage of justice.

The final orders of the court were to dismiss both appeals. The court found no errors in the trial judge's handling of the evidence, and no miscarriage of justice had occurred. The life sentences imposed on the appellants were deemed appropriate given the circumstances of the offence and the appellants' culpability. The court upheld the trial judge's decisions and the jury's verdict, confirming the appellants' guilt and the appropriateness of their sentences.

Orders