Citation: R v Rogerson; R v McNamara (No 15) [2015] NSWSC 1892
Court: Supreme Court of New South Wales
Date: 11 December 2015
Judge: Bellew J
Background
Two accused, referred to here as McNamara and his co-accused Rogerson, faced trial for murder. The Crown alleged McNamara was present in a storage shed at the time the deceased was shot and killed. As part of the pre-trial process, McNamara brought a notice of motion seeking to exclude various items of evidence.
One specific issue concerned McNamara's attendance at an indoor firearms range on two occasions: 13 May 2014 (approximately one week before the deceased was killed) and 22 May 2014 (after the killing). On each occasion he used a Smith and Wesson 686, a .357 calibre magnum revolver. CCTV footage produced four photographs from the first visit and corresponding photographs from the second.
The Crown had originally intended to lead evidence of both visits, together with the photographs. By the time the matter was heard, the Crown and McNamara's counsel had reached an agreement: oral evidence of the first visit would be led, evidence of the second visit would not be tendered, and none of the photographs would be tendered. Rogerson's counsel, however, pressed for broader admission of the evidence, prompting Bellew J to resolve the outstanding issues.
Legal Issues
- Whether McNamara's attendance at the firearms range on 22 May 2014 (after the murder) was relevant within the meaning of s 55 of the Evidence Act 1995 (NSW).
- Whether the photographs taken on 22 May 2014 should be admitted or excluded, including under s 137 of the Evidence Act.
- Whether the photographs taken on 13 May 2014 (before the murder) should be admitted, notwithstanding that oral evidence of that visit was to be led, having regard to the risk of jury misuse under s 137.
Decision
Bellew J held that McNamara's attendance at the firearms range one week before the killing was clearly relevant. Practising shooting a pistol at a target shortly before the deceased was shot made the evidence capable of rationally affecting the probability of a fact in issue. McNamara's counsel properly conceded this point and withdrew her initial objection to the oral evidence of the first visit.
By contrast, the post-murder attendance on 22 May was held not to clear the relevance threshold in s 55. His Honour found that evidence of attending a firearms range after the alleged offence was not capable of rationally affecting, directly or indirectly, the probability of any fact in issue. Rogerson's submission that the post-murder visit was relevant to McNamara's duress defence (on the basis that it was conduct consistent with the earlier visit) was rejected. Even if relevance had been established, Bellew J indicated he would have excluded the evidence under s 137 on the basis of its real potential to be misused by the jury, for example by reasoning that McNamara was a person who liked shooting and was therefore the type of person who would commit the murder.
On the photographs from 13 May, Bellew J accepted they were technically relevant for the same reasons as the oral evidence. However, the photographs added little or nothing to the oral evidence of Ms Mecham. More importantly, the same misuse risk identified in relation to the post-murder photographs applied equally to the pre-murder photographs: a jury might reason impermissibly about McNamara's character and propensity as a shooter. Accordingly, all four photographs were excluded under s 137.
Orders Made
- Evidence of photographs of McNamara's attendance at the firearms range on 13 May 2014 is excluded.
- Evidence of McNamara's attendance at the firearms range on 22 May 2014, including the photographs pertaining to that attendance, is excluded.
Key Takeaways
- Under s 55 of the Evidence Act 1995 (NSW), the mere fact that an event occurs after an alleged offence does not render it inadmissible, but evidence of post-offence conduct must still be capable of rationally affecting the probability of a fact in issue.
- Attendance at a firearms range after the commission of the alleged offence was found, on these facts, not to satisfy the s 55 relevance test, and Bellew J indicated that even if it had, s 137 would have operated to exclude it.
- A co-accused's counsel may press for the admission of evidence that the Crown and the other accused have agreed to exclude, but that submission must still be grounded in demonstrated relevance to a live issue in the proceedings.
- Where photographic evidence is substantially duplicative of oral evidence that will already be before the jury, the incremental probative value may be low enough that the risk of jury misuse tips the balance toward exclusion under s 137.
- The risk that a jury will reason from evidence of weapon familiarity to propensity to commit the charged offence is a recognised basis for exclusion, even where the underlying events are themselves relevant.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 55 (relevance), s 137 (exclusion where probative value is outweighed by danger of unfair prejudice)
Cases cited: No cases were cited in the judgment.