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

Copyright in the High Court of Australia

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, did it?

MS AVENELL:   No, your Honour.  I am going to come back to that point a bit later, but the point I am raising now is that, as a point for special leave one might consider it limited if it were just the position of an inculpating co‑accused.  However, when it is expanded to other potential witnesses who could be inculpating of an accused, the position potentially has a broader application.  And the issue that we are raising potentially has a broader implication because it is not necessarily just limited to the cross‑examination of co‑accuseds.

GORDON J:   Ms Avenell, there are three questions, at least in my mind.  One is the one that is put to you by the Chief Justice, which is, as I understood it, that the Crown case did not depend at all upon anything Mr McNamara said, and, secondly, the matters which are raised in reference to the application of the proviso from 408 and following, which seems to suggest that the case against your client was overwhelming and largely dependent on CCT footage, which your client sought to explain away.

MS AVENELL:   Can I deal with those points somewhat backwards.  Your Honour has referred to Mr Rogerson as attempting to explain away CCTV.  In our submission, the position of Mr Rogerson and this evidence and the view that the jury or the Court of Criminal Appeal took about that evidence is irrelevant for the purposes of the application and a prospective appeal and consideration of the proviso.

That is because we can accept that the jury, and here, the Court of Criminal Appeal, rejected Mr Rogerson’s account, and we can accept that they rejected his account about the specifics of the killing and also about circumstances more generally.  But if you take the orthodox approach to accused’s evidence that is not accepted, that evidence should just be set aside, then, and one looks back at the remainder, or the Tribunal looks back at the remainder of the prosecution case and asks whether the prosecution has proved the case beyond reasonable doubt.  In this trial, that would also involve looking back at Mr McNamara’s evidence because, although he was not a witness for the prosecution, he was a witness who inculpated directly Mr Rogerson.

Notwithstanding that one might set aside Mr Rogerson’s evidence, that does not mean that he has no case.  He still had a case to make and be maintained.  The three examples that we have sought to use as illustrations in the special leave application are ones that demonstrate that he still had a case to make, notwithstanding one might set aside his evidence.  Firstly, in relation to – this part of my addressing extends, then, to your Honour’s point that no part of the prosecution case relied on evidence from Mr McNamara.  While that might strictly be considered true, the position cannot be looked at that simply.

If we take the third of the illustrations that we put forward – and that is in relation to the white Falcon car and the purchase of that car – Mr Rogerson’s supposed involvement in the purchase of that car was a significant part of the prosecution case against him and a part of the case to draw him into the joint criminal enterprise that they allege.

It was denied by Mr Rogerson that he had been involved in the purchase of that car, especially denied for any nefarious purpose.  His case was that it was Mr McNamara’s car.  Mr McNamara’s evidence included that $2000 that was used for the purchase of the car was money that he owed to Mr Rogerson, and he had given it to Mr Rogerson upon request for the purchase of the car.

The prosecution put to the jury in the trial that if they accepted that evidence, it would show that Mr Rogerson’s money was used at his request to purchase the white vehicle.  So, despite the Court of Criminal Appeal’s remark that no part of the case against Mr Rogerson relied on Mr McNamara and despite the prosecution putting that in their response, the prosecution did at trial make some use of the evidence of Mr McNamara on that point.

If the jury were to accept that evidence, it would inevitably strengthen the case against Mr Rogerson.  That is then the point at which we say there should have been – the inability to cross‑examine on the Crime Commission document gave rise to a substantial miscarriage of justice in relation to this illustration, because ‑ ‑ ‑

KIEFEL CJ:   Ms Avenell, is this then to accept that any questions that could have been put to Mr McNamara but which were precluded by the trial judge’s direction would have affected his credit?  I mean, does it follow that that is really what you are saying?

MS AVENELL:   No, it is not limited to that, and the example of the white Ford is, in particular, an example that is not limited to Mr McNamara’s credit because Mr Rogerson, on the argument that we make, could have taken some positive advantage from what Mr McNamara said in the information report.  So, it was not limited to a matter of credit, and that is because in the information report, contrary to what he had said in his evidence, Mr McNamara made statements that were consistent with Mr Rogerson’s case in relation to the white Ford, which was that Mr McNamara had purchased it for himself and “for his own innocuous purposes”, not that it was Mr Rogerson purchasing the car.

GORDON J:   Can I just ask about that?  At paragraph 324 at application book 499, the court assessed the significance of this third example and reached the conclusion that it is both “consistent with the Crown case” and inculpatory of Mr Rogerson and therefore reached the conclusion – it is part of the conclusion, I think, at 403, this is at application book 530 – that:

the Information Report was not exculpatory of Rogerson –

and that there was nothing that:

would have yielded any evidence exculpatory of Rogerson.

Do you challenge that?

MS AVENELL:   Yes ‑ ‑ ‑

GORDON J:   I mean, is that – so, in a sense, we are being asked to revisit the evidence, is that the way it is being put?

MS AVENELL:   It is one of the grounds of appeal, in particular, proposed ground 2, and your Honours are being invited to revisit the way that the Court of Criminal Appeal has evaluated and characterised that document.  It does not, however, require your Honours to make findings of fact as such, because that is not your Honours’ role, and it is not what the consideration of the proviso and the ground that we are raising would require.

To resolve the ground, we would say that it is at least debateable how one characterises the statements that Mr McNamara supposedly made to the Crime Commission, and to the extent that he said that he purchased the car “for his own innocuous purposes” that was consistent with Mr Rogerson’s case and exculpatory on the issue of the white Ford.

What there was, was an unexplored capacity to diminish the prosecution case on the white Ford, which was that Mr Rogerson, in particular, had been involved in the obtaining of it.  In terms of coming back to your Honour Chief Justice Kiefel’s point about credit – the other two aspects of the differences between Mr McNamara’s evidence and what he had said in the information report relating to the circumstances of the killing of Mr Gao and to what took place on the boat afterwards.

If I can deal with the first one – being what were the circumstances of the killing of Mr Gao – the Court of Criminal Appeal itself acknowledged that there were discrepancies on material matters.  That is how they described it, and that was the discrepancies in the circumstances of how Mr McNamara said Mr Rogerson came to kill Mr Gao.  But although Mr Rogerson would not have been looking to rely on either version that Mr McNamara said as the truth, it was not just an issue of credit, because there was the capacity for Mr Rogerson to advance a case and have use other than just on credit.  That was to advance a case that Mr McNamara was involved in an early – two weeks after the event – an inconsistent fabrication to hide his own involvement and to start blaming Mr Rogerson.

That argument applies also to the other example of what took place on the boat where, in evidence, Mr McNamara had said that Mr Rogerson produced a small gun and fired two shots off the boat.  In the information report, however, he had said that not only had Mr Rogerson fired two shots from, seemingly, the same gun that he had used to kill Mr Gao, but also produced a five‑shot Smith & Wesson and shot that over the bow a few times as well – something one might expect to have been a memorable experience if it was actually true, and to bring it up in their evidence.  If the jury had been able to take into ‑ ‑ ‑

KIEFEL CJ:   But, Ms Avenell, in both cases, whatever use Mr Rogerson could make of it, it hinges upon the credibility of McNamara.

MS AVENELL:   But is not a simple case of credibility in the sense that at the end of the trial in his submissions Mr Rogerson could go the jury and say, Mr McNamara is the person of no credit.  He had use for it beyond that to make an argument that Mr McNamara had, for a long period of time, and since the beginning, been involved in fabricating a version against Mr Rogerson to hide his own involvement and to try to place the blame on to Mr Rogerson and that he could not keep the story straight.  It is beyond just a simple, do not accept this person’s evidence.  He had ‑ ‑ ‑ 

KIEFEL CJ:   But the springboard for a defence of that kind is, in the first place, to destroy the credit of Mr McNamara, and that is the line of questioning that effectively, you say, is denied – you must be saying that.

MS AVENELL:   I accept that the initial point of it is to be able to say – one would have to put to the jury, the person is of no credit.  But these were examples – because it was so early on, about a fortnight after the killing – and that would have enabled Mr Rogerson to have used some value out of the evidence to say it has been a long-term aim of Mr McNamara’s to blame Mr Rogerson, but he cannot do it in a consistent way.  To show that he has been doing it, as I say, since right at the beginning, and that is something that Mr Rogerson was not able to pursue.  So, it is not enough, in our submission, to just say, well, they are matters of credit, so that is the end of it.

KIEFEL CJ:   That is only your first buzzer.  You have got a bit longer, Ms Avenell.

MS AVENELL:   Your Honour, I have largely made the submissions I wished to make.  Ultimately the point is, in our case, that these three illustrations show that Mr McNamara’s lack of credit is not the end point of the consideration.  What has to be drawn into the consideration is the effect that that had on Mr Rogerson’s defence and his capacity to advance his defence, and in circumstances where we say he has lost the opportunity to advance his defence through this cross‑examination of Mr McNamara on central issues like the killing of Mr Gao, what took place when disposing of the body, the circumstances of the purchase of the white Falcon.

So, we are not talking about peripheral matters.  Given his inability to advance the defence the way he wished and was entitled to, it puts it in a position where the Court of Criminal Appeal was either, we say, firstly, simply not able and not in a position to determine guilt for the purposes of the proviso, or, alternatively, that even if they would otherwise have been satisfied of guilt, the Court of Criminal Appeal should have considered this an error of such a nature that it should not have applied the proviso, either being a significant denial of procedural fairness of the type raised in Weiss or, putting it more generally, the nature that should not lead to the application of the proviso.

KIEFEL CJ:   Ms Avenell, it is a matter I have overlooked.  Is an extension of time required?

MS AVENELL:   I have overlooked that as well, your Honour.  And, yes, it is, and I ask for that extension of time.

KIEFEL CJ:   Is that opposed, Ms Dowling?

MS DOWLING:   No.  Your Honours, I think it is opposed in our written submissions, but I do not propose to make any submissions in ‑ ‑ ‑

KIEFEL CJ:   Is it opposed on the basis of the strength of the case?  You asked the Court to look at the strength of the case.

MS DOWLING:   Yes.

KIEFEL CJ:   Thank you.  The Court will adjourn to consider the course that it will take.

AT 10.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.52 AM:

KIEFEL CJ:   Ms Dowling, we will not need to trouble you.

MS DOWLING:   Thank you, your Honour.

KIEFEL CJ:   In our view, there is no reason to doubt the correctness of the decision of the Court of Criminal Appeal.  There is, therefore, no basis for an extension of time.  The application for an extension of time is refused.

The Court will now adjourn until 11.30 am.

AT 10.52 AM THE MATTER WAS CONCLUDED