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Supreme Court 11 August 2015

R v Rogerson; R v McNamara (No 12)

[2015] NSWSC 1099

HomicideDrugs
CRIMINAL LAW EVIDENCE WHERE CROWN SOUGHT LEAVE TO CROSS WHERE ADVANCE RULING SOUGHT WHETHER EVIDENCE IMPORTANT WEIGHT TO BE ATTACHED TO THE EVIDENCE

Citation: R v Rogerson; R v McNamara (No 12) [2015] NSWSC 1099
Court: Supreme Court of New South Wales
Date: 11 August 2015
Judge(s): Bellew J

Background

Two accused, a former police officer turned private investigator ("McNamara") and his co-accused ("Rogerson"), faced a joint trial on charges of murder and supply of a prohibited drug. The Crown alleged that on 20 May 2014, the deceased was shot by one or both of the accused during a transaction involving approximately 2.7 kilograms of methylamphetamine. The trial had been adjourned after a jury was discharged following opening addresses, with proceedings scheduled to recommence on 18 August 2015.

During his opening address, counsel for McNamara made several explicit references to McNamara's good character. Those references included claims that McNamara had no criminal convictions, had left the police force honourably, had worked undercover exposing corrupt officers and paedophiles, and had built a respectable life as a writer and professional private investigator.

On the basis of those representations, the Crown sought advance leave to cross-examine McNamara on evidence of bad character and, if he denied the matters put to him, to lead evidence in reply. Separately, Rogerson's counsel made an independent application for leave to cross-examine McNamara on the same evidence. Both applications were opposed by McNamara's counsel, and all parties sought advance rulings under section 192A of the Evidence Act 1995 (NSW).

  • Whether the Crown should be granted leave to cross-examine McNamara on bad character evidence, and to lead evidence in reply, following counsel's good character representations in opening
  • Whether that bad character evidence would unduly add to the length of the trial, was of sufficient importance, carried appropriate weight, and could be admitted without unfairness to the accused
  • Whether Rogerson's counsel should be independently granted leave to cross-examine McNamara on the same evidence
  • Whether the bad character evidence was relevant to any fact in issue on Rogerson's case, and whether it met the threshold for admissibility on that independent basis

Decision

Bellew J granted the Crown's application. His Honour found that McNamara's counsel had squarely placed his good character before the jury, and that the Crown was therefore entitled to challenge that character with evidence to the contrary. The court considered the factors set out in the Evidence Act, including whether the evidence would unduly lengthen the trial, its importance, its weight, and whether admitting it would be unfair to McNamara. On each factor, the balance favoured granting leave.

The court interpreted the word "unduly" in the relevant legislative test as requiring more than simply adding time to proceedings. Some additional length was an inevitable consequence of admitting character evidence, and only length that was excessive or disproportionate would count against admission. Given the significance of the good character claim to McNamara's defence, the evidence was considered important and of sufficient weight to justify the Crown's cross-examination and potential case in reply.

On Rogerson's separate application, Bellew J refused leave. His Honour held that the bad character evidence was not relevant to any fact properly in issue on Rogerson's case. Rogerson's filed defence admitted he was present when the deceased died but denied participation in a joint criminal enterprise. The evidence about McNamara's alleged conduct as a "stand over man" did not bear upon either the murder charge or the drug supply charge as framed against Rogerson. The court distinguished the facts from those in Lowery v R [1974] AC 85, where evidence about a co-accused's character went directly to the probability of accepting that co-accused's account. No such direct relevance existed here.

Orders Made

  • The Crown's application for leave to cross-examine McNamara on bad character evidence, and to lead evidence in reply, was granted.
  • Rogerson's independent application for leave to cross-examine McNamara on the same evidence was refused.

Key Takeaways

  • Where defence counsel expressly raises an accused's good character in opening address, the Crown may be granted leave to cross-examine on bad character and to lead evidence in reply, provided the relevant statutory factors are satisfied.
  • The word "unduly" in the Evidence Act test for undue lengthening of proceedings requires more than some additional time. The additional length must be excessive or disproportionate to justify refusal on that ground.
  • A co-accused's application to cross-examine on bad character evidence is assessed independently of the Crown's application and requires its own relevance foundation. It is not sufficient to rely on the same evidence simply because the Crown can.
  • Under the principle in Lowery v R, bad character evidence about one accused may be admissible at the instance of a co-accused, but only where it is directly relevant to a contested fact in issue, such as the relative likelihood of each accused's account being true.
  • Advance rulings under section 192A of the Evidence Act 1995 (NSW) are available to resolve disputed evidentiary questions before a jury is empanelled, providing procedural certainty where opening addresses have already been made.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), including ss. 192A
- Criminal Procedure Act 1986 (NSW), s. 143
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Lowery v R [1974] AC 85
- Attwood v R [1960] HCA 15; (1960) 102 CLR 353
- Donnini v R [1972] HCA 71; (1972) 128 CLR 114
- Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115
- Phillips v The Queen (1985) 159 CLR 45
- R v Fuller (1994) 34 NSWLR 233
- R v Stalder (1981) 2 NSWLR 9
- R v Zurita [2002] NSWCCA 22
- Bishop v R [2013] VSCA 273
- Huges (a Pseudonym) v R [2013] VSCA 338
- R v Bracewell (1978) 68 Cr App R 44
- R v Miller (1952) 36 Cr App Rep 169
- R v Gibb and McKenzie [1983] 2 VR 201
- Gabriel v The Queen (FCA, unreported, 25 June 1997)
- R v PKS (NSWCCA, unreported, 1 October 1998)
- R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
- R v Rogerson; R v McNamara (No 8) [2015] NSWSC 1036
- Lam v R; Lam v R [2015] NSWCCA 87