Rogerson v R; McNamara v R
[2021] NSWCCA 160
•16 July 2021
|
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 |
Decision: | Rogerson |
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 |
Legislation Cited: | Court Suppression and Non-publication Orders Act 2010 (NSW) |
Cases Cited: | AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 |
Texts Cited: | Australian Law Reform Commission Report No 26 |
Category: | Principal judgment |
Parties: | Roger Caleb Rogerson (Applicant) |
Representation: | Counsel: |
File Number(s): | 2014/157408; 2014/156921 |
Decision under appeal: | |
Court or Tribunal: | Supreme Court |
Jurisdiction: | Criminal |
Citation: | R v Rogerson; R v McNamara (No 57) [2016] NSWSC 1207 |
Date of Decision: | 2 September 2016 |
Before: | Bellew J |
File Number(s): | 2014/157408 |
HEADNOTE
[This headnote is not part of the Court’s reasons for judgment]
Roger Rogerson and Glen McNamara were charged with the murder of Jamie Gao at Padstow on 20 May 2014 and supplying a large commercial quantity of methylamphetamine at Sydney between 20 and 24 May 2014. In 2016 they were convicted by a jury of both offences following a lengthy trial before Bellew J. They were each sentenced to imprisonment for life for the murder and to 12 years of imprisonment for the drug supply offence.
The Crown case was circumstantial. It alleged that both accused were part of a joint criminal enterprise to steal drugs from the deceased and kill him. According to the plan, McNamara lured the deceased to a rented self-storage unit with the drugs and then Rogerson attended as the supposed purchaser. The deceased was shot and killed by one of them in the storage unit and then both accused cooperated to dispose of the body at sea. The body surfaced and was found on 26 May 2014.
The Crown relied on 29 circumstances to prove its case. These circumstances included: (a) preparatory conduct by the two accused prior to the murder, (b) CCTV footage from outside the storage unit around the time the murder took place, and (c) post-offence conduct by the two accused designed to conceal the offences and their involvement. The Crown also argued that the case for each accused lacked any credibility because they were inherently unlikely and were inconsistent with the other evidence.
Both accused ran cut-throat defences, each arguing that the other had organised to meet the deceased at the storage unit and that it was the other who shot the deceased. Both denied the existence of a joint criminal enterprise to kill the deceased.
Held, dismissing the appeals by both Rogerson and McNamara (per the Court)
Rogerson Ground 1: The learned trial judge erred in failing to consider, and failing to allow, cross-examination of Mr McNamara upon the contents of the NSW Crime Commission Information Report: R v Rogerson & McNamara (No 32) [2016] NSWSC 200.
(i) On 4 June 2014, McNamara attended the NSW Crime Commission and gave a detailed version of events surrounding the death of Jamie Gao. An Information Report was prepared by an officer of the Commission who was present at the meeting. The report summarised what McNamara said. The trial judge made a ruling under s 192A of the Evidence Act 1995 (NSW) that all forms of questioning about or using the contents of the Information Report were precluded. That ruling was erroneous: [377], [381]-[383].
While McNamara could not be questioned “about” the Information Report because it was merely a summary of what he had said, there remained two available avenues for Rogerson’s counsel to use the contents of the report to question McNamara in a way which did not expressly or impliedly refer to the existence of the Report. First, it could be used in accordance with s 44(3) of the Evidence Act 1995 (NSW). Second, with leave under s 104(6) of that Act, counsel for Rogerson could have questioned McNamara about his oral statements to the Commission as prior inconsistent statements under s 43. If McNamara denied the statements, counsel for Rogerson could then have rebutted the denial by adducing oral evidence from other persons present at the meeting under s 106: [339], [344], [359]-[340], [363]-[368].
Rahme v R [2001] NSWCCA 414 distinguished.
(ii) The trial judge’s erroneous ruling invoked the second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) because it was both a wrong decision of a question of law and a miscarriage of justice: [384]-[388].
(iii) Rogerson’s guilt was proved beyond reasonable doubt notwithstanding the limitations of appellate review of a criminal trial. Therefore, the erroneous ruling did not cause a substantial miscarriage of justice and the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied to dismiss the appeal. The error did not prevent the Court from assessing the proviso because it had the advantage of the jury’s comprehensive rejection of the credibility of both Rogerson and McNamara which was unaffected by the error. Ground 1 was dismissed: [321]-[327], [402]-[405], [411]-[412].
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46; R v Beattie (1996) 40 NSWLR 155; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Weissv The Queen (2005) 224 CLR 300; [2005] HCA 81; Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 referred to.
Rogerson Ground 3: The verdicts are unreasonable and cannot be supported having regard to the evidence.
(i) It was well open to the jury to be satisfied beyond reasonable doubt of Rogerson’s guilt of both counts: [306].
The Crown’s circumstantial case established with considerable force that there was a joint criminal enterprise between Rogerson and McNamara to steal drugs from Jamie Gao and kill him. The case for Rogerson was substantially damaged by his lack of credibility: [303]-[305].
Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 applied.
Rogerson Ground 5: There has been a miscarriage of justice by reason of the absence at trial of evidence of Annabelle Ballard and [Witness A].
(i) Witness A’s evidence, given before this Court, about having given a gun to McNamara before the murder of Jamie Gao was fresh because Witness A did not come forward until after Rogerson was sentenced: [459].
MRW v R [2011] NSWCCA 260 referred to.
(ii) A reasonable jury would not have accepted the fresh evidence from Witness A. His evidence was not “apparently credible” because of his record of dishonesty, his longstanding association with Rogerson, the inherent improbability of his evidence and its inconsistency with other evidence. This ground was dismissed: [435]-[437], [469]-[471], [473].
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 referred to.
McNamara Ground 1: The trial judge erred in excluding evidence of conversations between the applicant and his co-accused in which the co-accused admitted having participated in several homicides and other criminal violence.
(i) The trial judge was correct to apply s 135(a) of the Evidence Act 1995 (NSW) to exclude evidence, sought to be adduced by McNamara, to the effect that Rogerson had told McNamara on two separate occasions that he had participated in several homicides in the past. The evidence had limited probative value in proving that the reason McNamara helped cover up the murder was that he was under duress by Rogerson. This was because there was other evidence in the trial which provided much greater support to McNamara’s duress argument. The limited probative value of the evidence was substantially outweighed by the highly prejudicial nature of the evidence to Rogerson in the context of a joint murder trial: [549], [552], [554]-[558].
(ii) The trial judge had power to exclude the evidence under s 135(a) of the Evidence Act 1995 (NSW) because a co-accused is a “party” to a criminal proceeding against an accused. This conclusion is supported by a number of factors, including that: (a) s 29(2) of the Criminal Procedure Act 1986 (NSW) expressly permits joint trials; (b) it is consistent with other provisions in the Evidence Act 1995 (NSW); (c) the word “party” is apt to describe a co-accused in a criminal trial; and (d) a similar position existed at common law: [514]-[523], [540].
R v Carranceja (1989) 42 A Crim R 402; R v Gibb and McKenzie [1983] 2 VR 155; Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12; R v Darrington and McGauley [1980] VR 353; R v Qaumi (No 24) [2016] NSWSC 505 considered.
Court not bound to follow R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248.
(iii) Section 135(a) involves an evaluative judgment, rather than the exercise of a judicial discretion. Therefore, the appropriate standard of review of the trial judge’s decision to exclude the evidence under s 135(a) is the “correctness” standard, not the standard set out in House v The King (1936) 55 CLR 499; [1936] HCA 40. The appellate court is to decide for itself whether the evidence should have been excluded, subject to “natural limitations” that exist when such an exercise is undertaken: [544], [547]-[548].
R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40; Taylor v R [2020] NSWCCA 355; Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293; Sidaros v The Queen (2019) 15 ACTLR 64; [2020] ACTCA 11 applied.
R v BWM (1997) 91 A Crim R 260; R v Glossop [2001] NSWCCA 165; R v Taylor [2003] NSWCCA 194; Australian Securities and Investments Commission v Rich (2005) 54 ACSR 326; [2005] NSWCA 152; Vickers v The Queen (2006) 160 A Crim R 195; [2006] NSWCCA 60; Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21; R v SJRC [2007] NSWCCA 142; Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56; James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18 on this point no longer good law.
McNamara Ground 2: The trial judge erred in failing to discharge the jury when inadmissible evidence was given by a prosecution witness, Steven Farley.
(i) The trial judge was correct to refuse the application to discharge the jury because of inadmissible evidence from Mr Steven Farley that he knew McNamara from the past as a detective and “drug dealer” in Kings Cross. The effect of the evidence on the jury would have been minimal because: (a) there was already evidence of McNamara’s bad character; (b) the two accused were running cut-throat defences and it was clear that the comment was deliberately planned to assist Rogerson; (c) the trial judge gave a carefully crafted direction; and (d) there was an agreed fact which made clear that the evidence was not correct: [573], [587]-[592], [599].
Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 applied.
McNamara Ground 3: That in all the circumstances the sentence imposed upon the applicant for murder was manifestly excessive.
McNamara Ground 4: That the sentencing Judge erred in the application of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
(i) An offender’s culpability under s 61(1) is to be assessed by reference to the “circumstances surrounding or causally connected to the offence”. Such circumstances include the objective seriousness of the offence, the motive, the offender’s background, criminal history and any mental disease, disorder or incapacity. When applying s 61(1) it is unhelpful to distinguish between the objective gravity of the offence and the subjective circumstances of the offender. The sentencing judge correctly considered all of the factors relevant to s 61. There was no error: [623]-[624], [634]-[635], [636].
R v Garforth (unreported, CCA, 23 May 1994); R v Harris (2000) 111 A Crim R 415; [2000] NSWSC 285; R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469; Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292; CC v R; R v CC [2021] NSWCCA 71 considered.
A two-stage approach to s 61(1) is appropriate. The two-stage approach is of a different kind to that rejected in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 in favour of the “instinctive synthesis” approach. The first stage is to assess whether the offence warrants a life sentence because of the circumstances surrounding or causally connected to the offence. The second stage is to assess whether a lesser sentence is warranted because of other matters such as remorse, confessions, pleas of guilty and prospects of rehabilitation: [628]-[629], [636].
Dean v R [2015] NSWCCA 307; Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 considered
Approach to Crimes (Sentencing Procedure) Act 1999, s 61(1) in R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 rejected.
(ii) The categories of murder warranting a life sentence are not closed. It was open to the sentencing judge to determine that a life sentence should be imposed in this case because the killing was a premeditated and cold-blooded execution: [645].
McNamara Ground 5: That the sentencing judge erred by finding that the intention to kill the deceased or to inflict grievous bodily harm as part of a joint criminal enterprise did not crystallise in storage unit 803.
(i) The sentencing judge was correct to find that the joint criminal enterprise to kill the deceased was formed well before 20 May 2014: [610], [612].
TABLE OF CONTENTS
| 1 | Introduction |
| 7 | Overview of the Crown case |
| 13 | The defence cases |
| 14 | The case for McNamara |
| 17 | The case for Rogerson |
| 19 | Rogerson’s appeal |
| 22 | Rogerson Ground 3: The verdicts are unreasonable and cannot be supported |
| 23 | The Crown case in detail |
| 197 | Principles |
| 201 | Submissions and consideration |
| 302 | Conclusion |
| 308 | Rogerson Ground 1: Refusal to allow cross-examination of McNamara on the contents of a Crime Commission report |
| 311 | The Information Report |
| 328 | Applications to the trial judge |
| 351 | Evidence Act provisions |
| 369 | Rahme v R [2001] NSWCCA 414 |
| 374 | Erroneous ruling |
| 389 | Proviso in s 6(1) of the Criminal Appeal Act |
| 415 | Rogerson Ground 5: Fresh evidence concerning the source of the gun |
| 418 | The evidence |
| 458 | Fresh evidence principles |
| 463 | Consideration |
| 474 | Rogerson Ground 4: Sentence is Manifestly Excessive |
| 475 | Orders in respect of Rogerson appeal |
| 477 | McNamara’s appeal |
| 478 | McNamara Ground 1: Erroneous exclusion of conversations with Rogerson about his participation in several homicides and other criminal violence |
| 498 | The proper construction of s 135: was Rogerson a “party” for the purposes of s 135? |
| 542 | Appropriate standard of review |
| 549 | Was the evidence properly excluded? |
| 563 | McNamara Ground 2: Failure to discharge jury when inadmissible evidence was given by Steven Farley |
| 564 | The evidence |
| 568 | Applications to discharge the jury |
| 572 | Refusal of the applications |
| 576 | Direction to the jury |
| 578 | Agreed fact |
| 580 | Submissions |
| 585 | Consideration |
| 601 | McNamara’s application for leave to appeal against sentence |
| 607 | McNamara Ground 5: Error in finding a murderous intention did not crystallise in storage unit 803 |
| 614 | McNamara Grounds 3 and 4: Section 61(1) and manifestly excessive sentence |
| 616 | Section 61 of the Sentencing Procedure Act |
| 638 | Balance of Ground 4: The sentencing judge’s approach |
| 643 | Manifest excess |
| 647 | Orders in respect of McNamara appeal |
JUDGMENT
THE COURT: Roger Caleb Rogerson and Glen Patrick McNamara were found guilty by a jury after a lengthy trial in 2016 before Bellew J and a jury of the following crimes:
Murder of Jamie Gao at Padstow on 20 May 2014.
Supply of a large commercial quantity (2.78 kg) of a prohibited drug (methylamphetamine) at Sydney between 20 and 24 May 2014.
On 2 September 2016, Bellew J sentenced each offender to imprisonment for life for the murder and for 12 years for the drug supply offence.
Rogerson seeks to appeal in respect of his convictions. If he is successful in respect of the murder conviction but not the drug supply conviction he also seeks to appeal against the sentence for the latter.
McNamara seeks to appeal in respect of his convictions and sentences for both offences.
Leave to appeal and an extension of time is required in both men’s cases. Given the gravity of the offences, the terms of the sentences and that at least some of the proposed grounds of appeal are arguable, it is appropriate that the necessary extensions of time and leave to appeal be granted. In the end, however, each appeal must be dismissed.
In the course of this judgment there will be reference to various counsel by name. For clarity, Rogerson’s counsel at trial was Mr Thomas and on appeal it was Mr Stratton SC and Ms Avenell SC. McNamara was represented at trial initially by Ms Shead and then by Mr Wendler, and on appeal his counsel were Mr Odgers SC and Mr Wendler.
Overview of the Crown case
Jamie Gao died from the infliction of two gunshot wounds in a storage unit at Rent-a-Space, Padstow on the afternoon of 20 May 2014.
The Crown case was that Rogerson and McNamara were engaged in a joint criminal enterprise to steal a large quantity of drugs from the deceased and to kill him in order to cover their tracks. It was not essential for the Crown to establish beyond reasonable doubt whether it was Rogerson or McNamara who fired the fatal shots. Each gave evidence in which they blamed their co-accused.
The Crown Prosecutor put it this way in his closing address to the jury:[1]
“The Crown's case is that both accused are guilty of murder and the supply of a large commercial quantity of methylamphetamine. This is based on a joint criminal enterprise where both agreed to engineer and organise a pretended drug deal. This agreement was simply that it would be held out to Jamie Gao that he was supplying the ice for a massive deal, but that no money in fact would be forthcoming or paid.
Instead, the ice would be stolen or ripped off. Essential to such a plan, you might think, would be to make Jamie Gao vanish without a trace. The only way this could be achieved was by killing him and getting rid of him in a way that would mean he could never be found, like on the bottom of the sea.”
[1] Crown closing address, T4760
Important events and circumstances in establishing the existence of the alleged joint criminal enterprise included the following:
Frequent phone contact and face-to-face meetings between McNamara and the deceased with Rogerson often in contact with McNamara by phone around the time of many of those meetings.
Having a storage unit at Rent-a-Space at Padstow available which ultimately became the scene of the murder.
The acquisition of a car to be used in relation to the joint enterprise; one that could not easily be traced to them.
The availability of a boat owned by McNamara that could be used for the disposal at sea of the deceased’s body.
The Crown relied upon a number of post-shooting activities designed to conceal the crime and the culpability of the offenders as evincing a consciousness of guilt and further proving the joint criminal enterprise:
Concealing the body in a surfboard cover, surreptitiously removing it from the storage unit and taking it to McNamara’s garage at his home in Cronulla where his boat and trailer had been taken the previous day.
Wrapping the body and surfboard cover in tarpaulin and securing it with rope in McNamara’s garage.
Hiring a chain block to enable the body to be lifted up and placed within the boat.
Tying a heavy chain to the body before launching the boat, travelling out to the ocean and disposing of it.
Miscellaneous activities included returning the chain block to the hiring outlet; returning the boat and trailer to storage; securing the drugs stolen from the deceased; and arranging for the disposal of the untraceable vehicle.
On the Crown case, the joint enterprise unravelled when the deceased’s cousin and friends became concerned that he had gone “missing”. A report was made to police. There was information suggesting the possible relevance of Rent-a-Space to what had become of the deceased. Investigations there by police provided a strong lead to the identity of the perpetrators who were soon arrested.
The defence cases
The defence cases were not only contrary to the Crown case but polar opposites of each other. Each sought to inculpate the other while the Crown simply sought to establish a joint criminal enterprise whereby it would not matter which of the accused actually shot and killed the deceased.
The case for McNamara
Bellew J summarised the case for McNamara as follows:[2]
“In summary, McNamara’s case was that having met the deceased in the early part of 2014, the deceased informed him that he (the deceased) was in a position to provide information about the operation of Asian crime gangs. McNamara asserted that he had formed an intention to publish a book on that subject, and that all of his subsequent association with the deceased was to further that purpose.
McNamara and Rogerson were previously known to one another. According to McNamara, he was contacted by Rogerson in about April of 2014 and asked to go and look at some furniture in a storage unit. McNamara asserted that he later discussed with Rogerson the sale of that furniture.
McNamara said that at a subsequent meeting with the deceased at the Meridian Hotel at Hurstville, the deceased had informed him that he (the deceased) had been accused of stealing $130,000.00, and that his lawyers had advised him that Rogerson could assist him. According to McNamara, the deceased informed him in about mid-May 2014 that he was concerned that members of Asian crime gangs had been following him, and that as a consequence he had become fearful that such persons had also become aware of the fact that McNamara was in the process of writing a book about them.
McNamara said that the deceased confirmed these fears with him in a meeting on 19 May 2014. He said that at this meeting, the deceased had said that he would call McNamara the following morning to let him know, in effect, that he was safe. McNamara also stated that the deceased had said on that occasion that he (the deceased) was to meet with Rogerson on the following day. On McNamara’s account, the deceased invited him to the meeting with Rogerson. McNamara maintained that he declined the invitation and advised the deceased that he too should not go.
McNamara told the jury that on the morning of 20 May 2014 he spoke with Rogerson and informed him that he was worried about the deceased, and that in his (McNamara’s) view, Rogerson should not go to any meeting. Later that day, McNamara travelled to Padstow. He said that this was in response to Rogerson telling him that he was to meet the deceased there. On McNamara’s account, Rogerson told him to wait at McDonald’s at Padstow, and that once Rogerson had finished his meeting with the deceased, he would “drop him back” to McNamara. According to McNamara, whilst waiting at that location, the deceased entered the rear of his vehicle, telling McNamara that Asian gang members had been chasing him all day, and advising him that on Rogerson’s instructions, he was to drive to the premises of Rent-a-Space which were nearby. McNamara did so, and he and the deceased entered a storage unit, with Rogerson entering a short time thereafter.
According to McNamara, when Rogerson entered the storage unit, he asked the deceased for ‘the gear’, to which the deceased replied that he wanted ‘money first’. The effect of McNamara’s account was that such conversation, which was obviously about drugs, came as a complete surprise. McNamara said that after some further words were exchanged, the deceased produced a knife, following which Rogerson produced a gun and shot the deceased twice. According to McNamara, he was hiding under a table within the storage unit when this occurred. McNamara asserted that he questioned Rogerson about why he had shot the deceased, following which Rogerson threatened him with death, and threatened the safety of members of his family. Whilst McNamara conceded that he engaged in certain conduct over the ensuing days, he denied being a party to any joint criminal enterprise and asserted that everything he did on and from the time at which the deceased was shot, was done under duress.”
[2] R v Rogerson; R v McNamara (No 57) [2016] NSWSC 1207 at [6]-[11]
It is worth setting out in full McNamara’s account of seeing Rogerson kill the deceased as ultimately it was the Crown case that the credibility of both men was questionable. McNamara gave the following evidence:[3]
[3] McNamara, T3039-42, 3075
“Q. How long had you been in the storage facility before, as best you can remember, before Mr Rogerson entered the facility?
A. About three minutes.
Q. When he entered, was there conversation between you and him at that point?
A. No.
Q. What happened?
A. Mr Rogerson entered the storage unit. He immediately spoke to Mr Gao.
Q. You overheard the conversation?
A. Yes.
Q. What did Gao say to Rogerson and what did Rogerson say to Gao using first person speak?
A. Rogerson said to Gao, ‘You were supposed to come to me, you fucking idiot’. Gao said to Rogerson, ‘It's better to have a witness, where is the money?’ Rogerson said to Gao, ‘Where's the gear?’ Gao said to Rogerson, ‘The two guys I came with are holding it. It will be here in half an hour, but money first’. Rogerson said, ‘Those two idiots who got out of your car? Bullshit. Give me the gear’. Gao said, ‘No, it will be half an hour, money first’. Rogerson said, ‘There's no money for you, fuckwit’. Gao said, ‘Fuck you, I'm going’. Rogerson said, ‘I want the gear’.
Q. What happened after that conversation?
A. Gao was seated in a chair that had wheels on it, on its base. He had the bag that he had brought in on his lap. Rogerson was standing in front of him, about a metre in front of him, and as Gao said, ‘fuck off’, he unzipped the bag and pulled a knife out.
Q. Stop you there. You saw Mr Gao produce a knife. Are you able to give us any more information about this knife, the description of it?
A. It was a combat style knife. It had a hilt on the handle and the blade started off thin (indicated) but thick stout—
HIS HONOUR.
Q. You are indicating a measurement there with your hands, is that the thin part of the blade?
A. That is right.
Q. How wide was the thin part of the blade approximately?
A. Approximately an inch and it flared out in a combat style to a pointed end on the blade. Simultaneously I saw Rogerson pull a gun from the right pocket of his pants and again, simultaneously, I took about two and a half steps, three steps diagonally backwards away from Rogerson and secreted myself under a table.
Q. Stop you there. During this episode, did you hear any words exchanged between Rogerson and Mr Gao at the point where Gao produced this knife and Rogerson produced a firearm?
A. It was ‘fuckwit’, ‘liar’, ‘fuckwit’, ‘liar’.
Q. Were you able to make any assessments as to Mr Rogerson's demeanour at that point?
A. He was seething with anger.
Q. What about Mr Gao?
A. Mr Gao was the angriest I had ever seen him as well.
Q. Was there any more exchange of words beyond expletives between the two of them?
A. Gao said ‘fuck off, I'm going’ and he had the knife and he attempted to get up.
Q. I think you told us you then made a line for a table or something, is that right?
…
HIS HONOUR
Q. The last question you were asked was, by Mr Wendler, ‘I think you told us you then made a line for a table or something, is that right?’ Can you answer that question?
A. That is right, but I did that simultaneously to the knife and the gun being drawn.
WENDLER
Q. Following your move in that direction what is the next thing you recall happening?
A. Mr Gao attempted to get up. He was seated on this chair with all the cross brace of wheels on the bottom, it was like a concrete floor and he was a large man, a tall man, so he had to flick himself backwards to move up, if you like, to stop the chair from going backwards. As he moved, I could see that when he stood up he was going to be directly in front of Rogerson's chest with the knife. As he flicked to go up, he moved his body up slightly and Rogerson shot him.
Q. How many shots did you hear?
A. Two.
Q. What happened, what did you see happen to Mr Gao after the discharge of the firearm?
A. After the first shot, he was erect and moving upwards and he went - he was splayed (indicated) back like this.
HIS HONOUR
Q. Indicating with the arms out?
A. Arms out and splayed like that (indicated).
Q. But still in the chair?
A. It had knocked him back in the chair, and he dropped the knife. I remember hearing a tinkle, you know, it sounded so loud. Rogerson didn't move but held aim on him and then Gao was moaning. He held aim on him and shot him again, and forced him even further back in the chair. Gao stopped moving, there was no noise, he just killed him instantly.
WENDLER
Q. At this point where were you, are you still under the table somewhere or where were you?
A. Under the table.
Q. Did you say something following the second shot?
A. Yes. Not straight away. It might have been a minute or two minutes. I said to him, "Why? Why? Why?"
Q. I will just stop you there.
[There was some legal argument in the jury’s absence and an overnight adjournment before the evidence continued.]
…
Q. Just before we adjourned yesterday, you described to us the circumstances of the shooting of the deceased, Mr Jamie Gao. You told us yesterday that following the shooting, you said the words or asked the questions, ‘Why? Why? Why?’ Do you remember giving that evidence yesterday?
A. Yes, I do.
Q. Following those questions, did Mr Rogerson say anything to you?
A. Yes, he did.
Q. What did he say?
A. He turned on me, he pointed the gun directly towards my head, and he said, ‘I'll do you, get up and help me you weak cunt, or you will be on the floor next to him’. I got up. He had the gun pointed directly at my head and he said, ‘Fuck me, he pulled a knife on me. Help me with him, otherwise you will be lying on the ground next to that cunt and then I'll kill your girls’.
Q. When he said those words to you, what was the reaction that you had in your mind? How did you react to those words?
A. I was terrified but paralysed altogether, just stunned. I have never felt like that before.
Q. Did you respond by saying anything yourself?
A. I said, ‘Drugs, why?’ And he said, ‘Do as I tell you or I'll kill your girls’.”
Rogerson’s account of what McNamara told him about how the deceased was killed before Rogerson entered the storage unit is provided below (at [265]-[267]).
The case for Rogerson
His Honour summarised the case for Rogerson in this way:[4]
“Rogerson, who admitted having known McNamara for some years, said that he and McNamara had spoken about his proposed book on the subject of Asian crime gangs. Rogerson said McNamara had later told him about meeting with the deceased and had said that the deceased was providing him with information for the book.
Rogerson said that in early 2014 Michael Maguire, a friend of his, had told him that some office furniture was being moved to a storage facility at Rent-a-Space at Padstow. According to Rogerson, he told Maguire that he might be able to sell some of that furniture for him. He said that he went to the Rent-a-Space premises on 2 April 2014 for the purposes of looking at the furniture, and the storage facility. He said that he told McNamara about these items, and that McNamara had expressed some interest in them.
Rogerson said that on the afternoon of 18 May 2014, McNamara spoke to him about the deceased, saying that he was trying to arrange a meeting at McDonald’s at Padstow, but that the storage unit at Rent-a-Space might be a safer place. According to Rogerson, McNamara phoned him on 19 May to tell him that things were ‘hotting up’.
Rogerson stated that McNamara visited him at his home on 20 May 2014 at about 1.00pm. According to Rogerson, McNamara told him that he was to meet with the deceased at McDonald’s at Padstow, but that because the deceased was being ‘hassled by the Triads’ it may be necessary to use storage unit 803 at Rent-a-Space as a default meeting place. According to Rogerson, he acceded to McNamara’s request to follow him to Arab Road, Padstow (where McDonald’s was located) to ‘keep an eye out for suspicious cars with Chinese on board’ and be the ‘second set of eyes’.
Rogerson admitted going to Arab Road, and later going to Rent-a-Space. He said that upon entering storage unit 803, McNamara was already present, and the deceased lay dead on the floor. According to Rogerson, McNamara told him (inter alia) that the deceased had ‘pulled a gun’ on him and that, in an ensuing struggle, the deceased had shot himself twice in the chest.”
[4] R v Rogerson; R v McNamara (No 57) at [12]-[16]
To that summary may be added the following from Rogerson’s written submissions in this Court:[5]
“Mr Rogerson said Mr McNamara said calling the police would make things worse, as the Triads would not respond well to police involvement. He said he believed Mr McNamara and so assisted him to deal with Mr Gao’s body. Mr Rogerson denied having anything to do with the drugs.”
[5] Rogerson submissions, [603]
Rogerson’s appeal
Rogerson’s notice of application for leave to appeal was filed on 9 March 2020 with amended grounds filed on 20 March 2020. The grounds are:
(1)The learned trial judge erred in failing to consider, and failing to allow, cross-examination of Mr McNamara upon the contents of the NSW Crime Commission Information Report: R v Rogerson & McNamara (No 32) [2016] NSWSC 200.
(2)The learned trial judge erred in admitting the evidence of Dr Stephanie Hales relating to gunshot residue located on a cap and black pants of Mr Rogerson: T pp 1132-1140, 1172-1218; Exhibits AV, AW; R v Rogerson & McNamara (No 23) [2016] NSWSC 103.
(3)The verdicts are unreasonable and cannot be supported having regard to the evidence.
(4)The sentence is manifestly excessive.
(5)There has been a miscarriage of justice by reason of the absence at trial of evidence of Annabelle Ballard and [Witness A].”
Ground 2 was not pressed.[6]
[6] Appeal, T156.46
Ground 3 requires the Court to consider all of the evidence and so it will be dealt with first to provide a context for later consideration of other grounds.
Rogerson Ground 3: The verdicts are unreasonable and cannot be supported
The evidence will be reviewed in detail before turning to the relevant principles, the submissions and an analysis of the merits of the ground.
The Crown case in detail
Rogerson and McNamara were former police officers. Rogerson, who was 75 years old at the time of the trial, had worked in the building trade since he left the police force, up until about 2001 or 2002.[7] He said he first met McNamara (aged 55 in 2014[8]) in about 2011 through a former police colleague. They developed a strong friendship. McNamara worked as a private investigator and it came about that Rogerson would refer work to him. In that context he introduced McNamara to a barrister, Charles Moschoudis.[9]
[7] Rogerson, T4296
[8] McNamara, T3873
[9] Rogerson, T4120-1
McNamara had written two books in a capacity he described as a “hobby author”. They were in the non-fiction genre he called “true crime”. The books were published in 2010 and 2012. He said in 2013 he had started thinking about a third book; he was interested in Asian crime.[10]
[10] McNamara, T3099-100
Jamie Gao was a 20-year-old university student. There was evidence that he regularly associated with persons who engaged in drug supply.
McNamara became acquainted with the deceased when they attended conferences with Charles Moschoudis and a client, Chun Lok Lam. Lam had been charged with supplying a large commercial quantity (about 2.2kg) of crystal methylamphetamine. McNamara had been engaged in his capacity as a private investigator. The deceased was a friend of Lam and he attended the conferences as an interpreter.[11] Accordingly, the initial association between McNamara and the deceased was lawful but it transformed from early March 2014.
[11] Chun Lok Lam, T222-44; Charles Moschoudis, T2677-8
In the period leading up to his death, the deceased spoke to his family and friends about a person named Glen, and about meeting Glen in relation to a “deal” which he said would be “massive” and would make him “rich”. For example, his cousin, Justin Gao, said the deceased spoke of meeting Glen in relation to a deal concerning ice, saying “it was going to be massive” and “he would be rich soon”.[12] These were taken to be references to McNamara and to a proposed supply of methylamphetamine.
Meetings between McNamara and the deceased
[12] Justin Gao, T81
The deceased was absent from Australia from 2 February until 28 February 2014.[13] On 2 March 2014, there was an exchange of text messages between him and McNamara.[14] He said he had just returned from Hong Kong and they arranged to meet. McNamara gave evidence he was curious about what happened in Hong Kong, but not about whether the deceased had sourced drugs.[15]
[13] Det Sgt Aaron Phillips (OIC), T2669
[14] Summary of text messages between the deceased and McNamara, Exhibit CU
[15] McNamara, T3877
The exchange of text messages between the deceased and McNamara on 2 March 2014 marked the commencement of a 2½ month period in which there was frequent phone contact as well as 27 meetings in person. McNamara claimed the contact related to research for his proposed book on Asian crime gangs. Prior to meeting the deceased he had only carried out some anthropological reading at the Sutherland Library.[16] A little later in his evidence in chief he said the research had progressed “a long way with many different subheadings into Asian crime”.[17]
[16] McNamara, T3099-100
[17] McNamara, T3108
The Crown did not dispute that McNamara had thought about writing a book, but the prosecutor submitted in closing address that McNamara had exaggerated how far he had progressed in his research and that he had used this to conceal the true reason for his association with the deceased.[18] There was a dearth of notes or other records that could be expected to have been generated from the extent of consultation and research that McNamara claimed. A subsequent police search found only 2¼ pages of notes written following a meeting on 6 March 2014.[19] There was nothing relating to the 19 meetings between McNamara and the deceased after that date. Other notes produced in evidence were made in January or February 2014.[20]
[18] Crown closing address, T4674
[19] McNamara, T3211; Exhibit DO
[20] McNamara, T3203, 3206
The Crown also contended that McNamara’s credibility in relation to this assertion was impacted by a lie he told. He said that by February 2014 when the deceased left for Hong Kong he had approached the publisher of his first two books, New Holland, and spoken to Fiona Schultz about his interest in writing a book on Asian crime and Triads.[21] He was confronted in cross-examination with a recorded gaol phone call to his wife on 16 May 2015 in which he said he had not seen Ms Schultz for a couple of years.[22] He sought to explain that he had lied to his wife to protect her and their daughters, but the explanation was quite unconvincing.[23]
[21] McNamara, T3112
[22] McNamara, T3988; Exhibit ES1
[23] McNamara, T3988-90
McNamara’s assertion that his meetings with Jamie Gao were for the purpose of research for a third book were of quite doubtful credibility.
Rogerson’s awareness of the meetings between McNamara and the deceased
There was an issue as to what knowledge, if any, Rogerson had of the meetings between McNamara and the deceased. His evidence was that McNamara had told him that he wanted to write a book about Chinese Triads and their involvement in the importation of drugs into Australia. McNamara had told him in 2014, probably in March, he had an informant who would be beneficial to him in relation to the book. He said the next occasion McNamara mentioned this person was on 18 May 2014 when he spoke of arranging a meeting with the informant and possibly using the unit at Rent-a-Space they had access to for the purpose.[24] Rogerson emphatically denied having any knowledge of meetings between McNamara and the deceased.[25]
[24] Rogerson, T4130-2
[25] Rogerson, T4548
The Crown relied upon telephone contact between Rogerson and McNamara that occurred before and after a number of the meetings as a basis for inferring Rogerson was aware of them.[26] The analysis presented to the jury drew upon the content of two exhibits, Exhibit CU (text messages between McNamara and Gao) and Exhibit DE (spreadsheet of call charge records). A summary of relevant aspects was conveniently provided in Bellew J’s sentence judgment:[27]
“(i) On 2 March 2014, following the deceased’s return from Hong Kong, a series of text messages passed between he and McNamara, in the course of which they arranged to meet on 4 March 2014. The last of those text messages was sent at 6.11pm on 2 March 2014. At 6.50pm McNamara telephoned Rogerson and they had a conversation lasting almost 12 minutes.
(ii) On 8 March 2014 at 3.27pm, and in response to two earlier messages from McNamara attempting to arrange a meeting, the deceased responded by telling McNamara that he did not have ‘good news’. [45 minutes before the first of McNamara’s messages he had called Rogerson with a call duration of about 4½ minutes.] Further text messages passed between them, culminating in McNamara sending a message to the deceased at 4.01pm saying ‘I’m here’. Clearly, the deceased and McNamara met at about 4.00pm on that day. McNamara telephoned Rogerson and left a voice message at 4.44pm, a time consistent with the meeting with the deceased having concluded. [Rogerson returned McNamara’s call the following day.]
(iii) On 17 March 2014 at 4.04pm, McNamara sent the deceased a text message stating ‘??’. The deceased responded one minute later, telling McNamara that things were ‘not ok’, prompting McNamara to tell the deceased in a message sent at 5.09pm to ‘be calm’. At 7.31pm that evening Rogerson called McNamara. McNamara called back at 7.42pm and they spoke for more than three minutes.
(iv) On 18 March 2014 at 5.59pm, McNamara again sent the deceased a text message stating ‘??’. At 6.04pm McNamara called Rogerson and they spoke for 50 seconds. At 6.05pm the deceased replied by again telling McNamara that things were ‘still not ok’. At 6.06pm Rogerson called McNamara, and they spoke for more than 8 minutes.
(v) On 3 April 2014 commencing at 12.26pm, a series of text messages passed between McNamara and the deceased which culminated in a meeting being arranged to take place between 3.45pm and 4.00pm that afternoon. Rogerson telephoned McNamara at 1.00pm. At 3.43pm the deceased sent a message to McNamara saying that he was ‘here’. McNamara responded at 3.47pm, saying that he would be ‘5 min’. Photographs taken from CCTV footage … at the Meridian Hotel show the deceased arriving at 3.50pm, and McNamara at 4.02pm. They are then seen to depart separately, the deceased at 4.30pm and McNamara at 4.32pm. The meeting having finished, McNamara called Rogerson at 4.33pm (i.e., 1 minute after leaving the hotel) and left a message for him. He called him again 2 minutes later at 4.35pm and left another message. He called him again 4 minutes later at 4.39pm, at which time they spoke for more than 5 minutes.
(vi) On 15 May 2014, only 5 days before the deceased’s murder, an exchange of messages took place between McNamara and the deceased arranging a meeting for 3 pm on that day. At 2.22pm, Rogerson called McNamara. They spoke for 14 minutes and 29 seconds, the call concluding at 2.36pm. At 2.37pm, McNamara communicated his arrival to the deceased by sending him a message saying ‘here’. The overwhelming inference is that McNamara and Rogerson spoke for a lengthy period immediately before the meeting between McNamara and the deceased. Following that meeting, Rogerson called McNamara at 7.11pm and again at 10.21pm.
(vii) On 17 May 2014 a series of text messages passed between the deceased and McNamara arranging a meeting for the following day, 18 May 2014. On that day at 12.30pm, McNamara sent a message to the deceased that he was ‘parking’ and would be ‘5 min’. At 1.21pm McNamara called Rogerson. He called him again at 1.30pm. Rogerson called McNamara at 5.55pm and they spoke for more than 2 minutes.
(viii) On 19 May 2014, McNamara called Rogerson at 2.34pm and they spoke for more than 3 minutes. McNamara and the deceased later arranged to meet at the Meridian Hotel at 7.45pm. Photographs taken from CCTV footage confirm that they did so. McNamara left the hotel at 8.22pm and the deceased at 8.23pm.”
[26] Crown closing address, T4670-4
[27] R v Rogerson; R v McNamara (No 57) at [41]
The foregoing indicates there were six meetings: on 4 and 8 March, 3 April, and 15, 18 and 19 May 2014. There does not appear to have been a meeting directly related to the contact on 17 and 18 March between McNamara and the deceased but the juxtaposition of contact between McNamara and Rogerson with that between McNamara and the deceased may have been regarded by the jury as significant nonetheless.
The jury may also have had regard to the following evidence of telephone contact between Rogerson and McNamara and a further five meetings between McNamara and the deceased:
(a)On 5 March 2014 at about 6pm, McNamara sent a text to the deceased proposing a meeting the following day at 2pm. Subsequent messages indicate the meeting occurred at about that time on 6 March 2014. Rogerson called McNamara about an hour before the meeting (12.56pm) with the call lasting just over four minutes.
(b)On 12 March 2014 at 6.48pm, McNamara initiated a series of messages in which the deceased agreed to meet him at 1pm on 13 March 2014. At 12.05pm and 12.24pm on 13 March 2014, McNamara called Rogerson, but the calls diverted to message bank. There was a successful call at 12.38pm with a call duration of almost 9 minutes.
(c)On 1 April 2014 there was a series of messages between McNamara and the deceased which culminated in an apparent meeting scheduled for 10.30pm. Rogerson called McNamara at 7.30am the next day and the call duration was about 10½ minutes. The late time of the meeting may explain the contact being deferred to the next morning.
(d)On 16 April 2014 there was an apparent meeting at about 4pm which was the culmination of messages between McNamara and the deceased over preceding days. McNamara sent a message indicating he was at the location at 4.09pm (“Here”). He rang Rogerson an hour and a half later, at 5.39pm, with the call lasting almost 5 minutes.
(e)There was an apparent meeting at about midnight on 28 April 2014. McNamara rang Rogerson at 7.04am the next morning with the call lasting about 2¾ minutes.
This juxtaposition of contact between McNamara and the deceased on the one hand, and between McNamara and Rogerson on the other, was a significant feature of the Crown’s circumstantial case. It was a powerful indication that Rogerson knew of the fact, purpose and frequency of the meetings. It also supported the inference that the meetings were not about research for a book.
Rent-a-Space and storage unit 803
The murder occurred in storage unit 803 in Rent-a-Space Padstow, a self-storage facility at 57 Davies Road, Padstow.
Upon entering a written agreement, customers of Rent-a-Space were provided with an access code to enter or leave the facility via a security gate at the front or rear entrance. They could secure the roller door to their unit with their own lock or purchase a padlock from Rent-a-Space. The padlocks on sale came with three keys. Storage unit 803 was combined internally with unit 804 so there were two doors. The combined internal space was about 4.7 metres in depth and 3.8 metres in width.[28] The customer would need two padlocks and would be provided with six keys.[29]
[28] Crime Scene Officer Phillip Austin, T1772
[29] James Markwell, Operations Manager of Rent-a-Space, T1075-7
An alarm system recorded when a customer entered or left the facility and it disengaged the alarm to their unit while they were present. Each unit was fitted with a device that electronically recorded each time the roller door was opened or closed. Sometimes there was no recording of a person leaving the facility. That would occur if they went through the gate while it remained open after another customer had activated it (i.e. tailgating).[30]
[30] J Markwell, T1076-7, 1082, 1092
Michael Maguire, a friend of Rogerson’s, entered an agreement to lease units 803 and 804 on 21 February 2014. His purpose was to store excess office furniture. Mr Maguire had passed away by the time of the trial in 2016 and his two police statements were read by consent.[31]
[31] Michael Maguire statements, Exhibits W and Y. The lease agreement was Exhibit X
Mr Maguire said in early March 2014 he offered Rogerson the opportunity to go to storage unit 803 and look at the furniture in the event that he wanted a chair and printer for his home office. Rogerson said he was “interested in having a look”. Three days later he gave Rogerson an envelope containing padlock keys with the code for the security gate written on the outside. He could not recall how many keys there were on the key ring but assumed there was “about six or eight”.
Michael Maguire said Rogerson returned the keys a couple of days later, saying he was not interested in anything in the unit. From that point, Mr Maguire retained possession of the keys Rogerson had returned until he handed them to police on 26 May 2014. There were five keys.
The inference was available that Mr Maguire had initially received six keys upon purchasing two padlocks; handed them all over in the envelope he gave to Rogerson; and only received five keys back from him. Absent Mr Maguire noticing the missing key, Rogerson had retained access to the storage unit without his knowledge. This state of affairs was in place contemporaneously with McNamara pursuing his meetings with the deceased. Rogerson’s account (as will be described shortly) was that he did not return any keys to Mr Maguire until after 20 May 2014, portraying that there was no secret about him having access to the storage unit during the entire period.
Rogerson’s evidence was to the effect he received the information and keys from Michael Maguire a day or two before 2 April 2014. He fixed on that date because he had derived from the brief of evidence it was when he first visited the storage unit.[32]
[32] Rogerson, T4125
The Rent-a-Space records showed that up to and including the day of the murder there were visits on 2 April, 4 April, 19 May and 20 May 2014.[33] Rogerson was present on each occasion; he was with McNamara on 4 April and 20 May and alone on 2 April and 19 May.
Rent-a-Space visit 2 April 2014 – Rogerson only
[33] Rent-a-Space site activity reports, Exhibits AJ, AK, AL and AM
Rogerson was alone when he visited Rent-a-Space on 2 April 2014. He said he went there to look at the furniture and to have a look at the unit itself to “see whether it maybe later on would have suited my requirements”. These requirements included storing his box trailer and things that were cluttering up his garage. He saw the unit “was pretty full” of furniture. It would have been impossible to put his 6 by 4 box trailer in it because each of the doors were too narrow.[34]
[34] Rogerson, T4124-6
The claim of having looked inside unit 803 on 2 April 2014 was not supported by the records of Rent-a-Space. They indicated that Michael Maguire’s access code was used for entry to the facility on that date but there was no activation of the open/close electronic detection on the roller door to the unit. Rogerson could provide no explanation for this when confronted in cross-examination, aside from “I didn’t go there for nothing”. He denied the Crown Prosecutor’s suggestion he went there to have a look around and to “suss out CCTVs, things like that”.[35]
Rent-a-Space visit 4 April 2014 – Rogerson and McNamara
[35] Rent-a-Space site activity report, Exhibit AJ, p 2; Rogerson, T4425-6
Both Rogerson and McNamara visited Rent-a-Space on 4 April 2014. A controversial aspect was that they were in their own cars and McNamara entered first.[36] This indicated he had the access code to enter the security gate.
[36] CCTV footage compilation, Exhibit Q; CCTV stills, Exhibit A, pp 8-9; Rent-a-Space site activity report, Exhibit AK (page 4 of 4)
McNamara at first gave evidence that he had followed Rogerson to the storage unit on 4 April 2014. He said Rogerson gave him the access code and a key after they looked at Michael Maguire’s stored furniture and he agreed to help Rogerson try and sell some of it. After being shown the CCTV footage indicating Rogerson followed him into Rent-a-Space on this day, he conceded Rogerson must have provided the access code and key prior to 4 April 2014.[37]
[37] McNamara, T3124-5, 3887-8
The Crown Prosecutor contrasted this with Rogerson’s evidence that he did not provide them to McNamara until 20 May 2014. This was significant, the Crown submitted, because on Rogerson’s account, the first time McNamara would need access to storage unit 803 at Rent-a-Space was to use it as a quiet place to talk with Jamie Gao on 20 May. Contrary to that account, however, McNamara had access to the storage unit “[d]uring all of that time that the massive deal that Jamie Gao had told his cousin Justin Gao and others was coming to fruition”.[38]
Return of the keys to Michael Maguire
[38] Crown closing address, T4692-3
Rogerson gave evidence he returned the keys to Michael Maguire after 20 May 2014; he thought it was 23 May. He said there were five or six keys, but he was not certain.[39] There was evidence a police officer recovered five keys from Michael Maguire on 26 May 2014 and there was a photograph of them.[40] The Crown contended that Rogerson received six keys, returned five of them to Maguire a couple of days later, but kept one.[41]
[39] Rogerson, T4225
[40] DSC Greg Gallyot, T1765-6; Exhibit AA
[41] Crown closing address, T4690
Rogerson’s account about possession of the keys was challenged by the prosecutor in relation to Rogerson’s attendance at the unit on 19 May 2014. Rogerson said that McNamara was talking about meeting with his informant on 20 May and about the possibility of using the storage unit as a meeting place. Rogerson’s evidence was that he thought he should go to the unit to “make sure that it was still suitable for him to hold this meeting”, because he, Rogerson, had not seen it since 4 April.[42] In cross-examination by counsel for McNamara, Rogerson explained:[43]
“The last time I saw it, that was back in April, 4 April, and he'd been there the two days before with me, and things hadn't changed, it was quite suitable, but I wasn't certain whether Mick Maguire might have added more stuff, I don't know. I wanted to make sure that it would be suitable for him to use.”
[42] Rogerson, T4133
[43] Rogerson, T4296
The Crown Prosecutor asked Rogerson how Michael Maguire could have “added more stuff”, given Rogerson’s version was that he did not return the keys to Mr Maguire until after 20 May 2014:[44]
[44] Rogerson, T4458
“Q. He didn't have any keys, you had the keys?
A. Well he gave me a bundle of keys.
Q. He gave you all the keys you say?
A. He gave me a bundle of keys.
Q. How could Maguire have gone back and added more stuff if he didn't have the keys?
A. He could have had a key.
Q. You say he gave them to you and that's what he says?
A. He gave me a bundle of keys. Whether that was the whole lot. I think his own statement says he didn't know whether there were 6 or 8.
Q. The reason you said that sir is that you had given him back five keys as he said three days after you had first took them. That is why you give the answer that you weren't sure whether Mick might have added some stuff?
A. That's completely wrong, completely wrong.”
The Crown Prosecutor submitted to the jury that Rogerson’s thinking that Michael Maguire could have accessed unit 803 was a “powerful indicator” and perhaps “conclusive” that he had returned some of the keys but kept one himself.[45] This supported the proposition Rogerson had deceived Michael Maguire and had surreptitiously retained for himself the means of accessing the storage unit.
McNamara’s home at Cronulla
[45] Crown closing address, T4691-2
Some of the features of McNamara’s home at Cronulla become relevant to key events so it is appropriate to describe the home in a little detail.
McNamara and his two adult daughters (Jessica and Lucy) moved into a ground floor unit of the “Cote D’Azur” building at 1 McDonald Street, Cronulla on about 25 March 2014. Car parking was provided on basement levels B1 and B2. Visitor parking spaces were on B1 and disabled parking spaces on B2. The parking assigned to McNamara’s unit was a side-by-side double garage on B2.[46]
[46] Hermanus Edenton, Cote d’Azur building caretaker, T1249, 1270
A neighbour, Wayne Hall, gave evidence that there was usually a blue Ford XR6 sedan and a small blue car (Jessica McNamara’s) parked in McNamara’s garage. There was cyclone wire mesh separating each garage with two manually operated metal tilting doors that had 10mm perforations.[47]
The acquisition of BV67PX, a white Ford Falcon station wagon
[47] Wayne Hall, Cote d’Azur resident, T1308
It was the Crown case that Rogerson and McNamara used a 2002 white Ford Falcon station wagon, registered BV67PX (the “white Falcon wagon”), in relation to the murder because it could not be traced to them.[48] The acquisition of this vehicle was one of the elements of the Crown case to show the killing of the deceased was premeditated. It was McNamara who drove the white Falcon wagon at critical times and kept possession of it generally. In closing address, the Crown Prosecutor anticipated a defence argument that Rogerson used his own car and did not attempt to conceal his physical appearance in comparison to McNamara. He put a number of arguments to the jury, including that there was little point in Rogerson concealing himself by clothing or using an untraceable car because of his distinctive gait. The prosecutor submitted, “concealing your identity at times … might only draw more attention to yourself”.[49]
[48] Crown closing address, T4668
[49] Crown closing address, T4755-6
Police seized the white Falcon wagon from the carpark of McNamara’s unit block at Cronulla on 24 May 2014 at about 4.50am. At that time it was registered with the then Roads and Traffic Authority to Sandra Dawes who had an address in Lethbridge Park. Police inquiries identified the car had been advertised for sale on eBay.[50]
[50] CCTV Stills, Exhibit A, p 180; Det Sgt Phillips, T2622
Kenneth Barton was a wholesale used car trader. He purchased the white Falcon wagon from another wholesaler on 29 July 2013 for $1000. His records indicated he sold it to Paul Wheeler of Outback Used Cars for $1500 on 27 April 2014.[51]
[51] Kenneth Barton statement, Exhibit AB
Paul Wheeler was the manager of Outback Used Cars at Lethbridge Park. He was the husband of Sandra Dawes and they co-owned the business which they operated from their home. Mr Wheeler said he acquired the white Falcon wagon in late-March or early April 2014 from Kenneth Barton and 27 April 2014 was “the day I officially bought the car off Ken”. He described an ongoing practice of Mr Barton providing him with cars that he would sell; Barton being paid when the sale was made. Mr Wheeler said Mr Barton remained “the title owner” of the car until he sold it.[52] (This conflicted with the white Falcon wagon being registered to Sandra Dawes.)[53]
[52] Paul Wheeler, T1002, 1007
[53] RMS certificate, Exhibit M26; T2706
Paul Wheeler placed an advertisement on eBay for the sale of the white Falcon wagon on 6 April 2014. At about 5pm on a Sunday (27 April 2014), a person who was “possibly Aboriginal” and who identified himself as “Marvin”, knocked on his door and expressed an interest in purchasing this car. He offered $2000. Mr Wheeler rang Kenneth Barton and they agreed with the proposed sale price.[54]
[54] eBay advertisement, Exhibit AD; P Wheeler, T1007-10
Statutory forms were completed showing the car was acquired by Outback Used Cars on 26 April 2014 and was sold on 27 April 2014 to “Marvin James Turnbull”. An address in Mt Druitt and driver licence details for this person were included. Mr Wheeler said he saw the buyer’s driver licence and took the details. He maintained that he sighted a copy of a driver’s licence in that name but said he did not take a copy of it; that was not his practice. He could not read the details on the licence because he did not have his glasses; to enable him to insert the details on a Sale Notice he asked the man to read the details out.[55]
[55] Statutory forms re vehicle sale, Exhibit AE; P Wheeler, T1010-3, 1022-4
Mr Wheeler identified the carbon copy of the receipt he completed in relation to the sale of the white Falcon wagon and subsequently provided it to the police. He also identified its original. The latter had been found by police in a shoe box in McNamara’s apartment at Cronulla.[56]
[56] Vehicle sale receipts, Exhibits AG and CR; P Wheeler T1030-1
Police found no trace of a Marvin James Turnbull. No person by that name lived at the nominated Mt Druitt address.[57] Mr Wheeler denied that he had fabricated his evidence.[58]
[57] Det Sgt Phillips, T2623
[58] P Wheeler, T1026
Rogerson’s fingerprint was found on the back of the receipt. There was evidence that the purchase price of $2,000 for the car was provided from monies withdrawn from a bank account operated by McNamara.[59]
[59] R v Rogerson; R v McNamara (No 57) at [62]
Mr Wheeler agreed he knew a man called Karl Bonnette. He could not remember if he spoke with him at the time of selling the car on 27 April 2014, although it was possible. He was shown some call charge record data and agreed they confirmed he called Kenneth Barton late on the afternoon of 27 April, as he had said. He agreed they also showed three instances of telephone contact between himself and Karl Bonnette earlier that day. He maintained, however, that this was in relation to an unrelated matter; a car he was repairing for an associate of Mr Bonnette.[60]
[60] P Wheeler, T1026-8
Karl Bonnette happened to be a friend of Rogerson. When Mr Bonnette was spoken to by police on 26 June 2014, he denied knowing anything about the supposed sale of the white Falcon wagon by Paul Wheeler. When the vehicle was recovered by police there was a copy of a newspaper in it, the Hawkesbury Gazette, dated 9 April 2014.[61] That was Mr Bonnette’s local paper.[62]
[61] Crime Scene Officer Austin, T1833; DSC Rubelj, T1990; Exhibit BY
[62] Karl Bonnette, T2048
On 27 June 2014, the day after police had spoken to Mr Bonnette, there was a telephone call from gaol by Rogerson to his wife.[63] She told him “Karl Bonnette’s coming to see you tomorrow … the coppers … been out, police”. Rogerson said, “well, that’s, that’s all right, I know what it’s about … the car, that’s right … It was his mate that that Glen bought it off”. The brief of evidence had not been served by this time.[64] The Crown relied upon this as demonstrating Rogerson knew that McNamara acquired the car from Karl Bonnette’s mate.[65] It was also indicative of Bonnette’s involvement with Rogerson in relation to the car the police had just been asking Bonnette about.
[63] Recording and transcript of Rogerson gaol call 27.6.14, Exhibits DW1 and DW2
[64] Rogerson, T4436
[65] Crown closing address, T4703-4
The Crown relied upon telephone contact between Bonnette and Wheeler, and Bonnette and Rogerson as set out in the following table to support propositions that Rogerson was involved in the acquisition of the white Falcon wagon and that Bonnette and Wheeler had been untruthful. [66] (The data in the table is sourced from Exhibit DE. References to Wheeler are to the phone service subscribed to by Dawes and Wheeler.)
[66] Crown closing address, T4698ff
| Date and Time | Contact |
| 22 April 2014 | |
| 9.08am | Bonnette called Rogerson |
| 9.10am | Rogerson called McNamara |
| 9.24am | McNamara called Rogerson |
| 9.28am | Rogerson called Bonnette |
| 23 April 2014 | |
| 6.57pm | Bonnette called Rogerson |
| 24 April 2014 | |
| 8.57am | Bonnette called Wheeler |
| 10.49am | Wheeler called Bonnette |
| 11.35am | Wheeler called Bonnette |
| 11.54am | Bonnette called Rogerson – divert to message bank |
| 11.55am | Rogerson retrieved from message bank |
| 11.56am | McNamara called Rogerson |
| 11.56am | Rogerson called Bonnette |
| 5.58pm | Bonnette called Wheeler |
| 25 April 2014 | |
| 12.51pm | Wheeler called Bonnette |
| 1.15pm | Bonnette called Rogerson – divert to message bank |
| 1.21pm, 1.36pm, 1.37pm | Rogerson three times retrieved from message bank |
| 1.40pm | Rogerson called Bonnette |
| 1.46pm | Bonnette called Wheeler |
| 27 April 2014 | |
| 12.39pm | Bonnette called Wheeler |
| 2.41pm | Wheeler called Bonnette |
| 2.41pm | Bonnette called Wheeler |
| 2.59pm | Wheeler called Bonnette |
| 5.23pm | Wheeler called Barton |
| 5.54pm | Wheeler called Barton |
| 28 April 2014 | |
| 7.36am | Bonnette called Wheeler |
| 7.37am | Wheeler called Bonnette |
Karl Bonnette agreed that he and Rogerson met from time to time at McDonald’s at Auburn. When shown a photograph of his and Rogerson’s cars at that place on 23 April 2014 at 11.45am he agreed he met Rogerson on that occasion. He also agreed their telephone contact on 22, 23 and 24 April was “extensive” and in contrast to what was usual. He agreed with a description of a “flurry” of telephone contact between about 21 and 25 April 2014 and that there was none after.[67] Nevertheless, he maintained his denial of having supplied a car to Rogerson in that time.
[67] K Bonnette, T2052-3, 2059; Exhibits M19 and M20
The Crown Prosecutor submitted this evidence showed it was Rogerson, not McNamara, who was arranging the acquisition of a car that could not be traced to them. McNamara knew about the car by 28 April. Rogerson’s case was that McNamara told him he acquired a car to help him carry out surveillance work.[68]
[68] Crown closing address, T4700; Rogerson, T4161
Another aspect of the Crown case concerning the acquisition of the white Falcon wagon concerned events of 28 April 2014. The police officer in charge of the investigation, Detective Sergeant Phillips, gave evidence of there being a $2000 cash withdrawal at Auburn from McNamara’s bank account on that date.[69] In cross-examination by counsel for McNamara, Karl Bonnette agreed he went to McDonald’s Auburn that day and met Rogerson. However, he described as “absolutely ridiculous” a proposition that he was driving the white Falcon wagon.[70]
[69] Det Sgt Phillips, T2625
[70] K Bonnette, T2060
McNamara’s evidence was that he first saw the white Falcon wagon in late April or early May 2014 on a day when Rogerson said Karl Bonnette had organised an old car for him that he had to pick up at Auburn. Rogerson asked McNamara to give him a lift to Auburn and he agreed. A couple of days later they went to the McDonald’s at Auburn and met Karl Bonnette with the car. Rogerson asked, “Can I get that $2000 that you owe me” (for past referrals of private investigation work). He wanted it in cash. The three of them drove to the Auburn shopping centre where McNamara went to a bank and withdrew the cash and gave it to Rogerson. Rogerson gave it to Bonnette. Rogerson drove the white Falcon wagon back to near his home in Padstow and McNamara drove Rogerson’s car.[71]
[71] McNamara, T3120-1
The Crown Prosecutor submitted that if the jury should accept this part of McNamara’s evidence (although there was a lot of his evidence they would not), it would show that it was Rogerson’s money that was used, at his request, for the acquisition of the white Falcon wagon.[72]
[72] Crown closing address, T4702
McNamara said he next saw the white Falcon wagon on about 14 May 2014 when Rogerson told him he did not want to leave it at Padstow and asked if it could be left at Cronulla. McNamara agreed, saying he could use it for taking things to the tip. He did not want to use his own car for that purpose because he had “spent a lot of money on tyres and wheels and exhaust systems, I didn’t want to be running through a tip in it”. He said he parked the white Falcon wagon in an area of North Cronulla where there was no timed parking; streets such as Elouera Road, Prince Street and Mitchell Road. He said he would park in such areas when he returned from the tip.[73]
[73] McNamara, T3122-3
Rogerson categorically rejected McNamara’s version.[74]
[74] Rogerson, T4176
McNamara was contradicted by a photograph of the white Falcon wagon parked in Prince Street, Cronulla, some 200 or 300 metres from his apartment building on 5 May 2014, nine days earlier than when he said it came into his possession.[75]
[75] Det Sgt Phillips, T3004; Mobile Automated Number Plate Read Data photograph, Exhibit ER
There was a further contradiction. After McNamara had given evidence about using the white Falcon wagon for trips to the tip he became aware police had made inquiries at his local tips and there was evidence he had not been to them.[76] Subsequent to becoming aware of this he said he had “made a mistake”; he had not been to the tip in the white Falcon wagon at all. He maintained, however, that it was available for him to use for that purpose.[77]
[76] Such evidence was led as part of a case in reply
[77] McNamara, T3906-7
Rogerson provided a rather bold explanation for how his fingerprint came to be on the receipt for the car. It had been “very stressful” for him to have “witnessed a dreadful scene and something I had never seen in many, many years, a dead person lying on the floor. Being involved in putting that person into the back of McNamara’s car”. But shortly after these events, on the way to Kennards to hire equipment to help them load the dead body into a boat in order to dispose of it at sea, he heard “a whine coming from the dif”. It prompted him to think, rather trivially, that the white Falcon wagon may have once been a taxi.[78] He explained:[79]
“A. I said to Glen McNamara, ‘I think this car might have been a taxi’, and I said, ‘I'll show you how to find out if it was a taxi or not’. And with that I opened the console lid and saw that there was a lot of letters, papers.
Q. Why did you open the console lid?
A. My idea was to look into the bottom of the console to see if there had been any extra holes placed in there and if there were also maybe some taped off wiring which would have been taped off once the car was no longer used as a taxi. All the paperwork I put on my lap. There were a heap of lolly wrappers in the body of the console, I took those out as well, and saw that there were no extra holes in the bottom of the console as well as no extra wires coming down from under the dashboard in front of the gear stick area, and I said, ‘No, it's not a taxi …’.”
[78] Rogerson, T4455-6
[79] Rogerson, T4161
McNamara’s contention that there was “no evidence” to support the above finding is consistent with the principles concerning a challenge to factual findings made in sentence proceedings (R v O’Donoghue (1988) 34 A Crim R 397; Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at [119]) although a different test has been suggested (Hordern v R [2019] NSWCCA 138 at [20]). However, regardless of the standard of review to be applied, the challenge to his Honour’s finding must fail. His Honour’s finding was overwhelmingly supported by the evidence adduced at the trial.
As noted (above at [602]), McNamara removed his boat from the storage facility shortly after 10.00am on 19 May 2014.[533] That conduct had nothing to do with the storage of any drugs stolen from the deceased and was only explicable on the basis that it was intended to be used to dispose of his body. When asked about this in oral argument on the appeal, counsel for McNamara referred to his client’s explanation for the removal of the boat, namely, to take his daughter on a fishing trip and “potter” around with it, explanations which the jury and the sentencing judge rejected.[534] The same observation applies to McNamara’s conduct in travelling to the storage unit with a surfboard cover which was used to carry the deceased’s body. In this Court, counsel submitted that the possession of a cover to carry the body by McNamara at the murder scene and his access to a boat that had already been removed from storage to dispose of it was a “coincidence”.[535] That submission must be rejected.
[533] R v Rogerson; R v McNamara (No 57) at [73]
[534] Appeal, T263.1; R v Rogerson; R v McNamara (No 57) at [146]-[147]
[535] Appeal T263.26
McNamara’s contention that the CCTV coverage of the storage unit was inconsistent with a preconceived plan to kill has been sufficiently addressed on the similar argument raised by Rogerson (above at [234]ff). In short, Rogerson and McNamara did not expect the deceased’s body to be discovered and neither expected that the CCTV footage at the storage unit would be scrutinised. So much is evident from their efforts to distance themselves from any direct link to the storage unit, McNamara’s altered dress on the day and the surveillance drive around the storage premises that Rogerson undertook prior to his entry to the unit. Otherwise, in addressing this issue in light of the jury’s verdict, it is to be borne in mind that the Crown case at trial was that the agreement to kill Mr Gao was formed well prior to 20 May 2014. Each of McNamara’s and Rogerson’s cases was that no such agreement was ever formed. There was no case put before the jury that such an agreement was only formed in the storage unit and no evidence to support such a case.
We reject Ground 5 of McNamara’s appeal.
McNamara Grounds 3 and 4: Section 61(1) and manifestly excessive sentence
Ground 3 of McNamara’s appeal contends that “in all the circumstances the sentence imposed upon [him] for murder was manifestly excessive”. Ground 4 contends that his Honour erred in “in the application of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)”.
It is appropriate to address Ground 4 first. In summary, it was submitted that the sentencing judge erred in adopting and applying a two-stage test for the application of s 61(1) of the Sentencing Procedure Act as articulated in Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292.[536]
[536] McNamara submissions, [33]-[34]
Section 61 of the Sentencing Procedure Act.
Section 19A(1) of the Crimes Act 1900 (NSW) renders a person who commits the crime of murder liable to imprisonment for life. Section 19A(2) provides that if an offender is sentenced to imprisonment for life then they are to serve that sentence for the term of their natural life.
Sections 21 and 61 of the Sentencing Procedure Act relevantly provide:
“21 General power to reduce penalties
(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.
…
61 Mandatory life sentences for certain offences
(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.
(2) …
(3) Nothing in subsection (1) affects section 21(1).” (emphasis added)
The origin of s 61 is the decision of this Court in R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep). In Garforth, the offender was sentenced to life imprisonment for sexually assaulting a nine-year-old girl and then drowning her by throwing her into a dam with her arms and legs bound. The offender pleaded guilty to murder. On appeal, it was submitted that the sentencing judge had committed an error of the kind identified in R v Young [1990] VR 951 where the sentencing judge had announced that he would have imposed a 12-year sentence but for mitigating circumstances which warranted the imposition of a six-year sentence. However, in Garforth, this Court (Gleeson CJ, McInerney and Mathews JJ) rejected the characterisation of the sentencing judge’s approach as “being two tiered”. The Court stated that, instead, the sentencing judge only “list[ed] various features capable of producing the result that this should be regarded as a case of the worst type, and then asked himself whether there were mitigating circumstances which required a different conclusion” (at 6). The Court then addressed and rejected a contention that life sentences should be reserved for cases where the offender is likely to remain a continuing danger for the rest of their life or where there is no reasonable prospect of rehabilitation, stating (at 13):
“We reject the applicant’s submission that it is only where there is no chance of rehabilitation that the maximum penalty of life imprisonment can be imposed. There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty.”
Following Garforth, there was introduced into the NSW Parliament the Crimes Amendment (Mandatory Life Sentences) Bill 1995 (NSW) which sought to amend the Crimes Act by the inclusion of s 431B which was not relevantly different to what ultimately became s 61 of the Sentencing Procedure Act. The relevant part of s 431B(1) adopted the above passage from Garforth although it added references to “community protection and deterrence” in the sentencing objectives to be considered.
In his speech in reply on this Bill, the Attorney‑General, the Hon JW Shaw QC, stated (New South Wales Legislative Council, Parliamentary Debates (Hansard), 11 October 1995 at 1515-1516) inter alia:
"It has been said that this bill will make little or no practical difference to the present law with respect to the crime of murder. However, the bill expands upon and codifies a sentencing principle which was articulated by the Chief Justice of New South Wales in the Supreme Court in the matter of Garforth. This principle was outlined in a judgment of the Court of Criminal Appeal of 23 May 1994. In rejecting Garforth's appeal his Honour referred to those offences which demonstrated an extreme degree of culpability, such that the community interest in retribution and punishment can be met only through the imposition of the maximum penalty. The provisions of the Bill add to that formulation of an acknowledged sentencing principle by the inclusion of community protection and deterrence as relevant factors.
The elevation of a common law principle into legislation gives statutory expression to the will of the Parliament, and in that sense it strengthens the application of those principles in appropriate cases. In the absence of legislation, the application of common law principles remains a matter of precedent which is capable of being overruled on appeal to a higher court. Moreover, legislation, as opposed to the common law, is accessible to and therefore capable of being more readily understood by the wider community." (emphasis added)
The emphasised passage is of particular present significance because, at the heart of the submissions for McNamara and recent attempts to revisit the interpretation of s 61 is the contention that, since the time of Garforth and the early cases which applied the provision, the relevant “common law principles” have been overruled or least qualified by the High Court, most notably in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. However, even if that contention is accepted, it does not matter because the Parliament’s clear intention was to embody the approach stated in Garforth so far as any consideration of life sentences for murder is concerned.
The Crimes Amendment (Mandatory Life Sentences) Bill 1995 was referred for an inquiry and returned to Parliament as the Crimes Amendment (Mandatory Life Sentences) Bill 1996 (NSW). The only substantive difference for present purposes was the exclusion of persons under the age of 18 from the application of proposed s 431B. (This is now reflected in s 61(6) of the Sentencing Procedure Act). The Attorney-General’s second reading speech for the 1996 Bill referenced the debate over the 1995 Bill (New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 April 1996 at 84). The 1996 Bill was subsequently enacted as the Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW) and came into force on 4 June 1996. Section 431B was re-enacted as s 61 of the Sentencing Procedure Act when it came into force on 3 April 2000.
The proper interpretation of s 61(1) was considered by Bell J, as her Honour then was, in R v Harris (2000) 111 A Crim R 415; [2000] NSWSC 285 at [76]-[86] (“R v Harris (Bell J)”). Having regard to that section’s origin in Garforth and the decision in R v Bell (1985) 2 NSWLR 466, her Honour construed the provision as follows (at [84]-[85]):
“84 ….Section 61(1) operates … to take away a discretion and to require a judge to impose the maximum sentence if he or she is of the specified opinion. Such a provision should be construed restrictively. Nonetheless, having regard to the language of the provision, it seems to me that the assessment of the prisoner’s culpability required by the section is directed to circumstances surrounding or causally connected to the offence. Again, I consider this to be consonant with the position at common law having regard to Garforth.
85 … Thus, I put to one side for present purposes consideration of such evidence as there is of the prisoner’s remorse, his confessions, pleas of guilty and prospects of rehabilitation and I consider whether the prisoner’s culpability for his crimes is so extreme that the community interest in the various stated objectives of sentencing requires the imposition of a life sentence.” (emphasis added)
Consistent with this approach, Bell J considered the offender’s “troubled background” because it “may [have been] relevant to the assessment of the prisoner’s culpability for his crime in the sense of being a causative influence upon it” (R v Harris (Bell J) at [86]-[87]).
The construction of s 61(1) adopted by Bell J is supported by so much of the provision as refers to “culpability in the commission of the offence” and also by its specification of the relevant considerations as “retribution, punishment, community protection and deterrence”, they being only four of the seven purposes of sentencing listed in s 3A of the Sentencing Procedure Act. The promotion of the rehabilitation of the offender is one of the other three objectives listed in s 3A (see sub-section (d)). It is omitted from s 61(1).
Although the outcome in R v Harris (Bell J) was overturned in this Court on appeal, Bell J’s construction of s 61 was specifically endorsed: R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [60] per Wood CJ at CL, Giles JA and James J agreeing (“R v Harris (CCA)”). This was subsequently accepted in R v Valera [2002] NSWCCA 50 and R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19. In Merritt at [37], Wood CJ at CL (Tobias JA and Hidden J agreeing) described R v Harris (CCA) as “recognis[ing] the two-step process, including the discretion” which must be followed in applying s 61.
Later, in Knight at [23], McClellan CJ at CL summarised the relevant principles that had been distilled, as at that time, in relation to s 61(1) as follows:
“• the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452.
• it is not possible to prescribe a list of cases falling within the worst category – ingenuity can always conjure up a case of greater heinousness: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; R v Petroff (unreported, 12 November 1991 – Hunt CJ at CL).
• a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment: R v Kalazich (1997) 94 A Crim R 41 at (50-1); R v Baker (unreported, CCA 20 September 1995); R v Garforth (unreported CCA 23 May 1994).
• in many cases a two stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50.
• it is the combined effect of the four indicia in s 61(1) which is critical: R v Merritt (2004) 59 NSWLR 557.
• the absence of any one or more of the indicia of retribution, punishment, community protection or deterrence may make it more difficult for a sentencing judge to reach the conclusion that a life sentence is required although will not be determinative: Merritt at 559.” (emphasis added)
Knight did not refer to R v Harris (Bell J) or R v Harris (CCA). However, it referred to R v Bell which was relied on in R v Harris (Bell J). Knight also referred to Valera and Merritt, each of which endorsed R v Harris (CCA) and referred to a two-stage test. The principle from Knight, emphasised above, delineates between the “objective gravity of the offence” and the “subjective circumstances of the offender”, a distinction that was articulated in Valera at [7] which, as noted, referred to R v Harris (CCA). This distinction is meant to encapsulate that drawn in R v Harris (Bell J) (at [84]-[85]) between the “circumstances surrounding or causally connected to the offence” and such matters as “remorse, …confessions, pleas of guilty and prospects of rehabilitation”. However, to describe that distinction by reference to “objective gravity” and “subjective circumstances” is potentially misleading. The judgments in R v Harris (Bell J) and R v Harris (CCA) make it clear that the “circumstances surrounding or causally connected to the offence” potentially extend to such matters as an offender’s “troubled background” because it “may be relevant to the assessment of the prisoner’s culpability for his crime in the sense of being a causative influence upon it” (R v Harris (Bell J) at [86]-[87]). Such circumstances could also include any mental illness relevant to the commission of the offence.
In the progression of cases it is important to note Markarian which was decided by the High Court in 2006. In that case, Gleeson CJ, Gummow, Hayne and Callinan JJ stated that “in general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed” (at [37]). Their Honours then cited a passage from Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [74]-[76] which described that process as an “instinctive synthesis” and rejected a “two-stage” sentencing approach “in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities”. This is the form of two‑stage test that was also rejected in Garforth. The plurality in Markarian stated that, following Wong, it “cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison” although there may be a “simple case” where some “indulgence in an arithmetical process” may be appropriate (Markarian at [39]).
Markarian concerned the imposition of sentence for a drug offence under the Sentencing Procedure Act, a power which is undoubtedly discretionary. The plurality’s judgment in Markarian made it clear that the analysis begins with the relevant statute governing the imposition of sentence and that the principles it enunciates apply subject to express statutory provision to the contrary: see Markarian at [26]-[27] and [35].
The issue of whether Markarian required a reconsideration of the interpretation and application of s 61 arose in Dean v R [2015] NSWCCA 307. In Dean, it was contended that, in imposing a life sentence, the sentencing judge had erred in adopting and applying a two-stage test in accordance with Knight (Dean at [78]). Ward JA (at [92]) held that the sentencing judge had not “start[ed] with the maximum penalty for murder (i.e., life imprisonment) and then add[ed] to or subtract[ed] from the figure as various aspects of the sentencing process were considered”, being the form of reasoning said to be inconsistent with Markarian. Instead, the sentencing judge had applied a two-stage test of the kind contemplated by Knight and the other cases noted above. Ward JA held (at [96]) that neither Markarian nor Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 “render[ed] impermissible such an exercise”. Further, her Honour held (at [110]) that, in considering the offender’s drug use and personality disorder which were said to be causally related to the offending, the sentencing judge had not erred in her assessment of the objective seriousness of the offence. Implicit in Ward JA’s analysis is that those matters could be considered in applying s 61(1). That assumption is consistent with R v Harris (CCA).
The offender in Dean sought special leave to appeal to the High Court which was refused: Dean v The Queen [2016] HCATrans 278. Care needs to be exercised in drawing conclusions from either the short reasons provided in refusing special leave which have no binding precedential status (Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [112] and [119]) or observations made in the course of argument. That said, in refusing special leave to appeal, Bell and Nettle JJ observed that while they “would not wish to be taken to be endorsing everything stated by the Court of Criminal Appeal”, there was no prospect the appeal in that case would be successful. Of greater present relevance is their Honours’ observations in the course of argument that a determination of an offender’s “culpability” for the purposes of s 61 included matters concerning the offender’s mental state at the time of the offending (at 11). Perhaps not surprisingly, those observations reflect the approach stated in R v Harris (Bell J).
In R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 (“Qaumi”) at [183]-[194], Hamill J reviewed some of these authorities and concluded that Markarian, Muldrock and R v Kilic (2016) 259 CLR 256; [2016] HCA 48 require the rejection of a two-stage approach. His Honour determined that the correct approach to s 61 is for the sentencing judge to consider “all of the evidence relevant to the sentencing discretion, apply the relevant sentencing principles (common law and statute) and make an assessment of the extremity of the offender’s culpability and the ‘community interest in retribution, punishment, community protection and deterrence’”: at [193].
The proper construction of s 61(1) arose recently before this Court, constituted by five members, in CC v R; R v CC [2021] NSWCCA 71. Three members of the Court determined that it was not necessary to decide whether s 61(1) permitted a two-stage approach, concluding that the sentencing judge, who had not imposed a life sentence, did not adopt that approach: at [50] per Bathurst CJ; [73] per Hoeben CJ at CL; and [96] per Wilson J. Hamill J (at [93]) adhered to the view he stated in Qaumi. Adamson J held that the correct approach was that stated in R v Harris (Bell J) as approved in R v Harris (CCA), stating as follows (at [81]-[83]):
“81 It is important to note, in response to CC’s detailed submissions, that there is an important distinction, which is plain from the wording of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) between the factors germane to the matter about which the court is to be satisfied and the factors germane to the sentence to be imposed on an offender. The focus of the court’s attention in s 61(1) is the offender’s ‘level of culpability in the commission of the offence’. The assessment of this matter involves consideration of objective factors, such as the objective seriousness of the offence, as well as subjective matters, such as the offender’s background, criminal history and any mental disease, disorder or incapacity. By contrast, the instinctive synthesis required as part of the exercise of the sentencing discretion involves a consideration of all relevant matters, not merely those that affect the offender’s level of culpability in the commission of the offence. There is a significant overlap in the matters germane to s 61(1) and those germane to sentencing but the matters relevant to s 61(1) are, inevitably, a subset of the matters relevant to sentencing: see R v Burke [1983] 2 NSWLR 93 at 101C-D (Nagle CJ at CL). Matters relevant to sentence which fall outside the purview of s 61(1) of the Act include whether the offender has demonstrated remorse or contrition, whether the offender has pleaded guilty and at what time the plea has been offered or entered, and whether the offender has given assistance to authorities in respect of this offence or other offences committed by the offender or by others.
82 The distinction was drawn by Bell J in R v Harris [2000] NSWSC 285; (2000) 111 A Crim R 415 at [83]-[84] and approved by this Court on appeal from her Honour’s decision in R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [60] (Wood CJ at CL, Giles JA and James J agreeing).
83 If s 61(1) arises for consideration, the sentencing judge will be obliged to consider the matters that affect the offender’s level of culpability for the offence. Even if the judge reaches the state of satisfaction provided for in s 61(1), there remains a discretion to impose a lesser sentence. The order in which relevant matters are addressed in the reasons is a matter for the sentencing judge.” (emphasis added)
We consider that Adamson J’s approach is correct. It accords with R v Harris (CCA) and R v Harris (Bell J) and the Parliament’s intention in enacting the predecessor to s 61(1). To that end we note five further matters.
First, as noted, the proper approach to s 61(1) is that stated in R v Harris (CCA) and R v Harris (Bell J). Second, that embodies a form of two-stage test, although for the reasons stated in Dean, it is not the form of two-stage test disavowed in Markarian. Third, even if the form of two stage test envisaged by R v Harris (CCA) and R v Harris (Bell J) was inconsistent with Markarian, then it would not matter because, for the reasons set out above, that approach reflects the clear intention of Parliament in enacting s 431B of the Crimes Act after Garforth, which was later re-enacted in the Sentencing Procedure Act. Fourth, care must be taken in describing s 61 as differentiating between an assessment of the “objective gravity” of the offending and the offender’s subjective circumstances. As explained, what differentiates the two stages is whether the relevant factor is a “circumstance surrounding or causally connected to the offence” and that can include matters such as the offender’s mental state, motive or personal background. Some matters may be relevant to both stages. Fifth, that said, a reference by a sentencing judge to Knight, or the adoption of a two-stage approach that differentiates between the “objective gravity” of the offending and the offender’s subjective circumstances, will not constitute error of the kind stated in House v The King. Instead, the relevant question is whether the sentencing judge applied s 61 (and s 21(1)) in accordance with R v Harris (Bell J) and R v Harris (CCA).
McNamara’s submissions in support of Ground 4 contend that the sentencing judge erred in adopting the discredited “two-stage” approach to the application of s 61(1) and that the correct approach was that stated by Hamill J in Qaumi.[537] We will address the sentencing judge’s approach next, but it suffices to state that, properly understood, the two-stage test for s 61(1) is not “discredited” and we reject the approach to s 61 stated by Hamill J in Qaumi.
[537] McNamara submissions, [34].
Balance of Ground 4: The sentencing judge’s approach
The sentencing judge set out the terms of s 61(1) and the passage from Knight at [23] set out above (at [627]).[538]. His Honour then observed:[539]
“I have canvassed, at length, the circumstances of the offending, and I have identified those matters which, in my view, characterise its objective seriousness. There are, in my view, no factors which mitigate the offending.”
[538] R v Rogerson; R v McNamara (No 57) at [231]
[539] R v Rogerson; R v McNamara (No 57) at [232]
The various matters that his Honour “canvassed” included the motivation of Rogerson and McNamara for the offence, namely the “prospect of financial gain”.[540] His Honour then referred to Merritt and the sentencing considerations in s 61(1). In doing so, his Honour noted that the “offenders murdered the deceased in order to engage in further offending, the commission of which would have brought them considerable financial gain” and added:[541]
“In my view, there is no relevant distinction to be drawn between a deliberate killing for payment in the nature of what is often described as a ‘contract killing’, and the circumstances of the present offending. On any view of it, the present offending was a form of deliberate killing for payment. The fact that the payment in the present case was to be derived by the offenders, not from monies received from a third party pursuant to a ‘contract’, but rather by engaging in further serious criminal activity, does not, in my view, render the present offending any less serious.”
[540] R v Rogerson; R v McNamara (No 57) at [180]
[541] R v Rogerson; R v McNamara (No 57) at [236]
In discussing the sentencing factors in s 61(1), his Honour referred to the absence of any remorse on the part of either McNamara or Rogerson.[542] As noted above (at [603]), earlier in the sentencing judgment his Honour found that “the joint criminal enterprise to which each offender was a party was extensive in its planning, brutal in its execution, and callous in its aftermath”.[543] Ultimately, his Honour concluded:[544]
“The subjective features in McNamara’s case are limited. They are even more so in the case of Rogerson. Mitigating factors are necessarily relevant to the determination of an appropriate sentence. However in the present case, they are of limited significance. The nature of the offending was, in my view, so grave that such subjective circumstances as are made out on the evidence should be disregarded: Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404 at [34] citing R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [103].
In all of these circumstances it is my view that the provisions of s. 61(1) of the Sentencing Act are applicable, and that in respect of the murder count, a life sentence should be imposed in each case.” (emphasis added)
[542] R v Rogerson; R v McNamara (No 57) at [238]
[543] R v Rogerson; R v McNamara (No 57) at [172]
[544] R v Rogerson; R v McNamara (No 57) at [241]-[242]
Although his Honour referred to the two-stage test in Knight, there is no basis for contending that his Honour impermissibly confined the analysis only to considering the objective factors surrounding the offending. To the contrary, his Honour addressed the motives of McNamara and Rogerson in murdering the deceased. Otherwise, his Honour considered all the factors relevant to sentencing in determining whether a life sentence should be imposed. No error has been shown.
We reject Ground 4.
Manifest excess
In relation to Ground 3, the submissions on behalf of McNamara alleged a number of distinct errors on the part of the sentencing judge. Thus, it was contended that his Honour erred in equating the murder of the deceased to a contract killing and that it was an error of the kind described in Housev The King for his Honour to “in effect [find] that because the applicant’s offending was equivalent to a contract killing, ipso facto, the sentence was to be a life sentence.”[545] It suffices to state that it was well open to compare the murder to a “contract killing” and that his Honour did not reason from that characterisation to a conclusion that a life sentence ought necessarily be imposed.
[545] McNamara submissions, [35]
The submissions also contend that his Honour erred by supposedly affording “no weight to [McNamara’s] subjective circumstances” [546] specifically his family, his absence of prior convictions, his character references, his period of service as a police officer and his medical conditions. As noted above, all these matters were considered by his Honour in detail.[547] Ultimately, his Honour attached to them “limited significance” in light of the gravity of the offending.
[546] McNamara submissions, [38]
[547] R v Rogerson; R v McNamara (No 57) at [209]-[215]
Ultimately, McNamara’s contention is that it was not open to the sentencing judge to form the conclusion noted above. It was submitted that “[h]istorically, and generally speaking, indeterminate sentences for murders have been imposed in cases of multiple killings, killings involving great cruelty, killing of vulnerable victims including children and killings where the perpetrator has killed before”.[548] Assuming that assertion is correct, the categories of murder warranting a life sentence are not closed. A conclusion that a life sentence should be imposed is a severe one. In Garforth, it was noted that life sentences can impose “intolerable burdens upon most prisoners because of their incarceration for an indeterminate period” and cause difficulties in prison management (at 11). Nevertheless, this was a premediated and cold-blooded execution. It was open to the sentencing judge to determine that a life sentence should be imposed.
[548] McNamara submissions, [36]
We reject Ground 3.
Orders in respect of McNamara appeal
In relation to the appeal by McNamara the Court orders:
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.
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Amendments
23 July 2021 - Cover sheet, Headnote, [308]-[413] - redactions removed
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