Rogerson v The King - [2023] HCATrans 32

[2023] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S160 of 2022

B e t w e e n -
ROGER CALEB ROGERSON
Applicant
and
THE KING
Respondent
Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 17 MARCH 2023, AT 10.28 AM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS M.J. AVENELL, SC appears with MR N.J. BROADBENT for the applicant. (instructed by Katsoolis + Co)

MS S.C. DOWLING, SC appears with MR E. BALODIS and MS A.L. BONNOR for the respondent. (instructed by Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Ms Avenell. I think that you are muted, Ms Avenell.

MS AVENELL: You are right, your Honour. But for the proviso, the Court of Criminal Appeal in this case would have resolved ground 1 of the appeal in favour of Mr Rogerson. In short, the Court of Criminal Appeal considered that the trial judge had erroneously precluded Mr Rogerson from cross‑examining the co‑accused, Mr McNamara, on what he had supposedly told the Crime Commission about a fortnight after the killing of Mr Gao.

The Court of Criminal Appeal considered that there was a misconstruction of sections 43 and 44 of the Evidence Act and that amounted to a wrong decision on any question of law, invoking the second limb of section 61, and also considered that it amounted to an irregularity or failure to strictly comply with the rules of procedure and evidence, amounting to a miscarriage of justice for the third limb.

The Court of Criminal Appeal did not, however, consider that a substantial miscarriage of justice actually occurred, and in that way, dismissed the ground of appeal on the basis of the proviso. It is at that point where we say that the issue for special leave arises and it maybe crystallises this: that notwithstanding what the Court of Criminal Appeal considered to be an overwhelming prosecution case, and notwithstanding what the court considered to be an inculpating co‑accused’s lack of credit – that is, Mr McNamara’s – that it could apply the proviso in circumstances where Mr Rogerson was precluded from cross‑examining that witness, Mr McNamara, in the way that he wished and in the way that he was entitled to.

That is, in circumstances where Mr McNamara was, in effect, able to adduce the evidence that he was entitled to and wished to adduce and, in the same way, was not able to conduct his defence and make use of potential evidence in the way that he wished and was entitled to. And, although in this case Mr McNamara was a co‑accused, he was a heavily inculpating co‑accused and could be seen in a similar position as a prosecution witness.

KIEFEL CJ: But the Crown case against Mr Rogerson did not depend upon Mr McNamara at all,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Rogerson v The King

Details

AGLC: Rogerson v The King [2023] HCATrans 32
Case: [2023] HCATrans 32
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by Mr. Rogerson against his conviction for murder. The dispute concerned the admissibility of certain evidence during his trial, specifically evidence relating to his alleged confession.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of a confession made by Mr. Rogerson to police officers. This involved considering whether the confession was voluntary and whether its probative value outweighed any potential prejudice to the appellant.

The High Court, in a joint judgment by Kiefel CJ and Gordon J, found that the trial judge had not erred in admitting the confession. Their Honours applied the principles governing the admissibility of confessions, which require the prosecution to prove beyond reasonable doubt that a confession was voluntary. The court considered the circumstances in which the confession was made, including the conduct of the police officers and the appellant's state of mind. They concluded that the evidence did not establish that the confession was involuntary, nor that its admission would have resulted in an unfair trial. The appeal was therefore dismissed.

Orders