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Supreme Court 28 July 2015

R v Rogerson; R v McNamara (No 8)

[2015] NSWSC 1036

Public order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE ACCUSED ACCUSED ACCUSED WHERE APPLICATION MADE BY CO

Citation: R v Rogerson; R v McNamara (No 8) [2015] NSWSC 1036
Court: Supreme Court of New South Wales
Date: 28 July 2015
Judge: Bellew J

Background

Two accused, Rogerson and McNamara, were standing trial together on serious criminal charges. At the close of the Crown's opening address, counsel for McNamara delivered an opening address to the jury on behalf of his client. Central to McNamara's defence on the second count was a claim of duress, meaning McNamara alleged he acted under compulsion or threat.

During that opening address, counsel for McNamara made remarks to the jury suggesting that the co-accused Rogerson had previously killed two or three people while serving as a police officer, and that this history explained McNamara's fear of him. Counsel also used the word "bikie" to describe Rogerson's alleged associates and invited the jury to engage in an analysis of how Rogerson's version of events ought to be assessed, even though no evidence had yet been given.

Counsel for Rogerson applied to discharge the jury on the basis that the remarks made it impossible for Rogerson to receive a fair trial. The Crown supported that application. Counsel for McNamara opposed it.

  • Whether the opening address by counsel for McNamara exceeded the limitations imposed on defence opening addresses by s 159(2) of the Criminal Procedure Act 1986 (NSW)
  • Whether the remarks made during the opening address were so prejudicial to the co-accused Rogerson that he could no longer receive a fair trial
  • Whether the jury should be discharged as a consequence

Decision

Bellew J had specifically drawn counsel's attention, before the opening address commenced, to s 159(2) of the Criminal Procedure Act 1986 (NSW) and to the Court of Criminal Appeal's guidance in R v MM [2004] NSWCCA 81. That decision confirmed that a defence opening address exists only to define the real issues in the trial for the jury's benefit. It does not permit counsel to make submissions about the onus or standard of proof, urge the jury to assess evidence in a particular way, or descend into a discussion of evidence that may or may not ultimately be placed before the jury.

Bellew J rejected the two authorities relied upon by counsel for McNamara. R v Gibb concerned separate trials and the admission of evidence, and said nothing about the limits of an opening address. R v Oulds was a Queensland decision decided in the absence of any statutory restriction on opening addresses, and the Queensland Court of Appeal had itself expressly noted that the NSW statutory regime operated differently, citing R v MM.

His Honour found that the remarks identifying Rogerson as a person who had killed others outside the course of duty went well beyond identifying the issues in the trial. Those remarks referred to material that would obviously attract objection and that had not yet been ruled admissible. Additionally, describing Rogerson's alleged associates using the term "bikie" was prejudicial, particularly given McNamara's own counsel had previously objected to that very term being applied to his own client. Inviting the jury to assess Rogerson's version of events, before any evidence had been called, was expressly identified in R v MM as impermissible.

Bellew J held that the cumulative effect of these departures from the permitted scope of an opening address meant Rogerson could not receive a fair trial, and the application to discharge the jury was granted.

Orders Made

  • The jury was discharged.

Key Takeaways

  • Under s 159(2) of the Criminal Procedure Act 1986 (NSW), the right of defence counsel to deliver an opening address following the Crown's opening is limited: its purpose is to identify the real issues in the trial, not to discuss evidence that may or may not be admitted or to urge particular assessments of witness credibility or the co-accused's version of events.
  • A clear distinction exists between drawing the jury's attention to the issues that will arise at trial (permissible) and descending into a discussion of evidence that has not yet been admitted and remains subject to objection (not permissible).
  • The statutory restriction in NSW operates differently from the position in Queensland, where no equivalent legislative provision applies. Decisions from other jurisdictions that were decided in the absence of such a provision offer limited guidance in the NSW context.
  • Where counsel in a joint trial makes statements in an opening address that assert prior misconduct by the co-accused, referring to material not yet before the jury and that would obviously attract objection, serious prejudice to the co-accused may result that cannot be remedied short of discharging the jury.
  • The principle that a defence opening must not invite the jury to assess evidence applies equally to evidence from a co-accused as it does to Crown witnesses, notwithstanding the specific formulation in R v MM that referred only to Crown witnesses.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 159(2)

Cases
- R v MM [2004] NSWCCA 81
- R v Gibb (1982) 7 A Crim R 385 (Victorian Court of Criminal Appeal)
- R v Oulds [2014] QCA 223 (Queensland Court of Appeal)