Citation: R v Rogerson; R v McNamara (No 6) [2015] NSWSC 1015
Court: Supreme Court of New South Wales
Date: 27 July 2015
Judge(s): Bellew J
Background
Two accused, a former police officer and his co-accused, faced trial on an indictment including a count of murder and, in the alternative for one accused, being an accessory after the fact to murder. The Crown had previously filed a Case Statement outlining the factual background, which involved an alleged criminal matter with drug-related connections.
The Crown served tendency notices on each accused under s 97 of the Evidence Act 1995 (NSW). Those notices identified as tendency evidence two paragraphs from a statement made by a witness, Lok Chun Lam, who had been involved in related criminal activity. Both accused objected to the Crown's reliance on that material.
This judgment concerned only the preliminary question of whether the identified evidence met the statutory threshold for admission as tendency evidence.
Legal Issues
- Whether the evidence identified in the tendency notices had "significant probative value" as required by s 97 of the Evidence Act 1995 (NSW)
- Whether the evidence was sufficiently specific to establish, to the required degree, the two alleged tendencies on the part of one of the accused
Decision
Issue 1: The first alleged tendency (participation in illegal drug supply with Chinese people)
The court found the evidence in the two paragraphs of Lam's statement fell well short of establishing this tendency. References to "this kind of business" and "drug deals" were characterised as too broad and general. Tendency evidence must be capable of rationally affecting the assessment of a fact in issue to a high degree, and the court was not satisfied this material met that standard (at [13]).
Issue 2: The second alleged tendency (offering policing expertise to assist others evade detection)
The court identified several reasons why this tendency also lacked significant probative value. The evidence consisted of what Lam reported being told, through an interpreter, by the accused about his own background, making it indirect rather than direct evidence of actual conduct (at [15]). Further, reading Lam's statement carefully, the accused told Lam he possessed certain knowledge about police operations, but the statement did not record any specific "offer" of assistance being made. The tendency alleged was therefore not supported by the evidence with the specificity required (at [14]-[15]).
Overall conclusion
The court refused the Crown's application to rely upon the material as tendency evidence, finding neither of the two alleged tendencies was established to the requisite threshold under s 97 (at [16]).
Orders Made
- The Crown's application to rely upon tendency evidence was refused.
Key Takeaways
- Under s 97 of the Evidence Act 1995 (NSW), tendency evidence must have "significant probative value," meaning it must be capable of rationally affecting the assessment of a fact in issue to a high degree, not merely to some degree (at [13]).
- The degree of specificity of the conduct said to evince a tendency is an important consideration when assessing whether the significant probative value threshold is met (at [11]).
- Broad, general references to criminal activity in a witness statement are insufficient to establish a tendency with the specificity that s 97 demands (at [13]).
- Where proposed tendency evidence is an indirect account of what a witness was told by an accused, rather than direct evidence of the accused's actual conduct, that indirectness weighs against a finding of significant probative value (at [15]).
- A court assessing probative value for tendency purposes will generally not undertake a detailed examination of credibility and reliability, except where those issues are so acute that no jury could rationally treat the evidence as affecting the probability of a fact in issue (at [12]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- GBF v R [2010] VSCA 135
- KMJ v State of Tasmania [2011] TASCCA 7; (2011) 20 Tas R 425; 218 A Crim R 87
- O’Keefe v R [2009] NSWCCA 121
- R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
- R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363; 231 A Crim R 474
- Saoud v R [2014] NSWCCA 136; 87 NSWLR 481