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Supreme Court 14 July 2015

R v Rogerson; R v McNamara (No 7)

[2015] NSWSC 1029

Homicide
EVIDENCE WHETHER ADMISSIBLE

Citation: R v Rogerson; R v McNamara (No 7) [2015] NSWSC 1029
Court: Supreme Court of New South Wales
Date: 14 July 2015
Judge(s): Bellew J

Background

Two accused faced charges including murder on an indictment in the Supreme Court. The Crown sought to lead evidence of statements made by the deceased before his death through the accounts of multiple witnesses. Because the deceased was unavailable to give evidence, his prior representations required specific statutory gateways to be admissible.

The Crown served notices under section 67 of the Evidence Act 1995 (NSW) flagging its intention to rely on these out-of-court representations. The representations came from numerous witness statements and spanned several categories, including the deceased's stated intentions to meet with one of the accused, descriptions of the business between them, and references to the nature of that business.

The court heard argument and ruled orally on 14 July 2015, with written reasons following. This judgment sets out those reasons category by category.

Legal Issues

  • Whether representations made by the deceased before his death were admissible under sections 65, 66A or 81 of the Evidence Act 1995 (NSW), or any combination of those provisions
  • Whether the temporal and reliability requirements imposed by section 65(2)(b) and (c) were satisfied for particular representations
  • Whether representations constituted first-hand or second-hand hearsay, and the consequences for admissibility
  • Whether certain representations should be excluded as irrelevant, unfairly prejudicial, or falling within the discretionary exclusion provisions under sections 135 and 137 of the Act

Decision

Issue 1: Representations admitted under section 66A (state of mind and intention)

Section 66A permits hearsay evidence of a representation that reflects the maker's intention, belief, knowledge, or other state of mind. The court admitted the deceased's statement that he was going to see Glen McNamara (at [17]), his statement that he intended to hire McNamara to work with him (at [19]), his representations about what McNamara had taught him about counter surveillance (at [23]), his statement that he had to leave early to meet a "white guy" (at [29]), his statement that he was "meeting a mate" (at [32]), and his statements that he had to "go and meet Glen" from multiple witnesses (at [34]). Further representations that he was going to meet McNamara (at [40]), representations of intention and state of mind from a second statement of the same witness (at [42]), statements about wanting to be a "gangster" and not wanting a "nine to five job" (at [54]), and his statement that he was going to meet with Glen (at [62]) were also admitted under section 66A.

Issue 2: Representations admitted under section 65(2)(b) and (c)

Section 65 provides conditions under which first-hand hearsay of an unavailable person is admissible, including requirements as to timing (subsection (b)) and circumstances making it highly probable the representation is reliable (subsection (c)). The court admitted the deceased's representation that the "white guy was an ex cop" under section 65(2)(b), read in conjunction with earlier representations about an intended meeting (at [31]). The deceased's representation that the business he was conducting with McNamara was "drugs" was admitted under section 65(2)(c), the court finding ample evidence of reliability in the surrounding circumstances (at [45]). Representations about drop-offs for possible customers were also admitted under section 65(2)(c), while the upcoming deal was admitted under section 66A (at [51]-[52]).

Issue 3: Representations excluded

Many representations were rejected. The court excluded representations from multiple witnesses where the temporal requirements of section 65(2)(b) were not established, where there was no evidence rendering a representation highly probably reliable under section 65(2)(c), or where the representations were simply irrelevant (at [8], [10], [12], [13], [15], [27], [43], [49], [55], [57], [63]). References describing one accused as a "dangerous figure" and as a "bikie" were excluded as irrelevant and unfairly prejudicial (at [12], [25]). Several representations were excluded as second-hand hearsay, where the deceased was recounting what an accused had told him rather than expressing his own knowledge or intention (at [22], [36], [60]).

Issue 4: Exclusion under sections 135 and 137

For one category of representations contained in a witness's second statement, the court found the statements themselves were expressed in imprecise terms, evidenced by the witness's own attempt to interpret them. Even if those representations might otherwise have been admissible, the court held they should be excluded under section 135(b) and/or section 137 of the Act (at [38]).

Orders Made

The orders consisted of the court's rulings on admissibility across each category of representation, as detailed at paragraphs [8], [9], [10], [12], [13], [15], [17], [19], [21], [22], [23], [25], [27], [29], [31], [32], [34], [36], [38], [40], [42], [43], [45], [47], [49], [51], [52], [54], [55], [57], [59], [60], [62], and [63] of the judgment.

Key Takeaways

  • Section 66A of the Evidence Act 1995 (NSW) provided a pathway for multiple categories of the deceased's statements, particularly where those statements evidenced an intention to meet with a named person or to engage in a particular activity, without requiring satisfaction of the stricter temporal and reliability requirements under section 65 (at [17], [29], [34], [62]).

  • Where a deceased person's statement repeated what an accused had told them, rather than expressing the deceased's own knowledge or intention, the court treated it as second-hand hearsay falling outside both section 65(2)(b) and (c) and section 66A (at [22], [36], [60]).

  • The reliability requirement in section 65(2)(c) was satisfied for the deceased's representation that his business with the accused was "drugs," the court finding ample surrounding evidence to support that conclusion (at [45]).

  • Representations that were expressed in imprecise terms, leaving witnesses to interpret their meaning, risked exclusion under sections 135 and 137 even if they might otherwise have met the hearsay exceptions, as the court held in relation to one category of evidence (at [38]).

  • Relevance remained an independent threshold: numerous representations were excluded not because the hearsay requirements failed but because the court found no connection between the content of the statement and any issue in the trial, including references to bikies, guns, and unidentified third parties (at [10], [25], [55]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Not stated