Citation: R v Rogerson; R v McNamara (No 5) [2015] NSWSC 1014
Court: Supreme Court of New South Wales
Date: 27 July 2015
Judge: Bellew J
Background
Two accused faced an indictment including charges of murder and a drug-related offence. The Crown alleged that on the night in question, the deceased was killed by a handgun that was never recovered. A key potential Crown witness was the daughter of one of the accused.
That witness had initially objected to giving evidence under section 18(2) of the Evidence Act 1995 (NSW), and the court had upheld her objection. She subsequently withdrew that objection and indicated her willingness to testify. The Crown then proposed to call her as a witness in its case.
Counsel for one of the accused raised objections to specific aspects of the proposed evidence, including her observations of a visible bulge in the other accused's pocket, remarks made by that accused, and his conduct at the time. Those objections gave rise to the present ruling.
Legal Issues
- Whether the witness's evidence of observing a lump in the accused's pocket constituted inadmissible opinion evidence, or admissible evidence of personal observation.
- Whether that observation was relevant under section 55 of the Evidence Act, given that the handgun used in the alleged murder was never recovered.
- Whether the accused's statements referring to the daughters of the co-accused were relevant, and in particular whether they bore on the co-accused's anticipated duress defence.
- Whether any admissible evidence should nevertheless be excluded under section 135 of the Evidence Act as unfairly prejudicial.
Decision
Issue 1: Demeanour and observation evidence
The court found that the witness's evidence of observing a lump in the accused's pocket was not evidence of opinion. It was evidence of personal observation (at [28]). The court noted, however, that the Crown must lead the evidence in a properly admissible form: the witness could describe what she saw, but could not express her observations as a conclusion (at [28]).
Issue 2: Relevance of the lump observation
Relevance under section 55 was assessed on a wide standard, with the word "could" in the section meaning "it is possible that it may" (at [29]). The court held that the observation was clearly relevant viewed in the context of the Crown's broader circumstantial case, which included the timing of the observation shortly after the alleged murder and the fact that the handgun had never been recovered (at [35]). The Crown's invitation to the jury to infer that the lump was a gun was found to rest on a sufficient evidentiary basis, extending beyond the observation alone to a series of surrounding circumstances (at [35]-[36]).
Issue 3: Effect of the witness's prior untruthful statement
The court rejected the submission that the witness's earlier concession, that she had not in fact seen a gun but only a lump, eliminated any rational basis for the Crown's inference (at [36]). The court observed that the witness would still give evidence of seeing a lump, and that the inference the Crown sought rested on the whole of the circumstantial case, not solely on her observation. The views of investigating officers who had not believed her original account were also held to be irrelevant: acceptance or rejection of evidence is a matter for the jury, not for investigators (at [36]).
Issue 4: Relevance of statements and pocket-tapping conduct to the duress defence
The court accepted that the co-accused would assert a duress defence to the drug count, contending that he acted under compulsion arising from threats involving a firearm (at [22], [32]). Duress may be established where threats are directed not only at the accused but also at members of the accused's family, if such threats would be likely to coerce a person of ordinary firmness to commit the offence (at [31]). On that basis, the court found the witness's evidence of the statement made by the other accused, including its references to the co-accused's daughters, was relevant to the duress defence (at [32]). Evidence of the pocket-tapping was similarly relevant (at [32]). No basis for exclusion under section 135 was established (at [32]).
Orders Made
- The evidence of the witness as set out in paragraphs [10] and [11] of the judgment is allowed, subject to any issue of form.
Key Takeaways
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Under section 55 of the Evidence Act, the relevance threshold is a wide one: evidence is relevant if it is possible that it could rationally affect the assessment of the probability of a fact in issue, whether directly or indirectly (at [29]).
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A witness's personal observations are not evidence of opinion simply because a conclusion might be drawn from them. The distinction turns on whether the evidence is framed as what was seen, rather than as a conclusion about what was seen (at [28]).
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Where a co-accused advances a duress defence, evidence of threatening statements directed at family members of that co-accused may be relevant, because the law recognises that duress can be constituted by threats to persons other than the accused (at [31]-[32]).
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A prior untruthful statement by a witness does not, of itself, remove the evidentiary basis for an inference that the Crown separately seeks to draw from that witness's truthful evidence. The court distinguished between the witness's concession that she had not seen a gun and her continuing evidence that she had observed a lump, noting that the Crown's inference rested on a series of circumstances (at [36]).
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In a circumstantial Crown case, individual pieces of evidence are to be evaluated as part of the whole rather than in isolation. The sufficiency of an evidentiary basis for a jury inference depends on the cumulative picture (at [33], [35]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Fletcher v R [2015] VSCA 146
- Lynch v Director of Public Prosecutions for Northern Ireland [1975] AC 653
- Nye v New South Wales [2002] NSWSC 1270
- R v Abusafiah (1991) 24 NSWLR 531
- R v Dawson [1978] VR 536
- R v Hillier [2007] HCA 13; (2007) 228 CLR 618
- R v Hurley and Murray [1967] VR 526
- R v Lawrence [1980] 1 NSWLR 122
- R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592
- R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
- Zaknic v Svelte Corp Pty Limited (1995) 140 ALR 701