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Supreme Court 21 July 2015

R v Rogerson; R v McNamara (No 3)

[2015] NSWSC 965

HomicideDrugs
EVIDENCE TENDENCY EVIDENCE APPLICATION BY ONE ACCUSED APPLICATIONS BY EACH OF TWO CO ACCUSED FOR SEPARATE TRIALS

Citation: R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
Court: Supreme Court of New South Wales
Date: 21 July 2015
Judge: Bellew J

Background

Two accused, a former police officer and a former private investigator, faced a joint trial on charges of murdering a young man on 20 May 2014 and supplying 2.78 kilograms of methylamphetamine on the same day. The Crown case alleged a joint criminal enterprise, with the accused meeting at a Padstow storage facility where the deceased was said to have attended to deliver the drugs. An amended indictment also included an accessory after the fact to murder count against one of the accused as an alternative to the primary murder charge.

Before the trial commenced on 27 July 2015, the court heard three interlocutory applications. One accused sought to rely on tendency evidence against the other. Each accused separately applied for a separate trial. One accused also applied to have the murder and supply counts tried separately.

  • Whether one accused could adduce tendency evidence regarding the other accused's alleged propensity to pervert the course of justice by fabricating and giving false evidence
  • Whether the two accused should be tried separately, having regard to the nature of the Crown case and various claimed prejudices including foreshadowed cross-examination on prior convictions and alleged threats
  • Whether the murder count and the drug supply count against one accused should be severed and tried separately

Decision

Tendency evidence application

One accused served a tendency notice under s 97 of the Evidence Act 1995 (NSW) seeking to rely on the other's prior criminal convictions for conspiracy to pervert the course of justice and giving false evidence to the Police Integrity Commission. The court refused the application. Bellew J found the tendency evidence was not relevant to any fact in issue at trial and, at most, went to the credibility of the co-accused. Part 3.6 of the Evidence Act does not apply to credibility evidence of that kind. Accordingly, the preconditions for admissibility under s 97 were not satisfied.

Applications for separate trials

Both accused sought separate trials on differing grounds. One accused pointed to his intention to cross-examine the co-accused about prior criminal convictions and argued that a joint trial would prejudice his ability to do so effectively. The other accused relied on evidence that he had been threatened by the co-accused, including affidavit evidence from his daughter about alleged intimidatory conduct and a suspected break-in at her premises.

Bellew J refused both applications. The court confirmed the general principle that persons jointly charged with offences arising from the same criminal enterprise should ordinarily be tried together. The Crown's case against both accused was substantially the same, and the majority of the evidence was admissible against each of them on both counts. As to the cross-examination issue, the court found this did not give rise to the kind of irreconcilable or mutually destructive defences that would ordinarily warrant separation. As to the alleged threats, the court found the evidence was insufficient to establish that the co-accused was responsible for the conduct complained of, and in any event a separate trial would not remove the threat or fear. The court noted that security measures could be put in place to protect the accused and his witnesses when giving evidence.

Application to separate counts

The application to try the murder and supply counts separately was also refused. The court found the two counts were inextricably linked on the facts, and no basis existed to justify separating them, consistent with the approach in Mac v R [2014] NSWCCA 24.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Tendency evidence under s 97 of the Evidence Act 1995 (NSW) must be relevant to a fact in issue at trial. Evidence that goes only to the credibility of a co-accused falls outside Part 3.6 and cannot be adduced as tendency evidence.
  • Where co-accused are charged with offences arising from a joint criminal enterprise, the general rule favours a single joint trial. A separate trial will not be ordered unless there is real and substantial prejudice that cannot be addressed by other means.
  • Alleged threats made by one accused against the other do not automatically justify separate trials. In dismissing that ground, the court emphasised that the threat or fear would persist regardless of severance, and that security arrangements for witnesses at trial were a available remedy.
  • Where criminal counts are inextricably linked on the facts, a court will not order them to be tried separately merely because one accused wishes it.
  • Foreshadowed cross-examination of a co-accused about prior convictions does not, of itself, constitute a sufficient reason to order separate trials where defences are not genuinely irreconcilable.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), particularly Part 3.6 and s 97
- Criminal Procedure Act 1986 (NSW)

Cases
- Mac v R [2014] NSWCCA 24
- Ali v R [2005] HCA 8; (2005) 214 ALR 1
- Gilbert v R [2000] HCA 15; (2000) 201 CLR 414
- R v Glennon [1992] HCA 16; (1992) 173 CLR 592
- Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
- Amos v R [2014] NSWCCA 302
- R v Dellapatrona; R v Duffield (1993) 31 NSWLR 123
- R v Middis (NSWSC, 27 March 1991, unreported)
- R v Fernando & Anor [1999] NSW 66
- R v Assim (1966) 2 QB 249
- Destanovic v R [2015] VSCA 113
- R v Demirok [1976] VR 244; (1976) 8 ALR 452
- R v Bedford [2011] QCA 43
- R v Ignjatic (1993) 68 A Crim R 333
- R v Kearnes [2013] NSWSC 1139
- R v Collie (1991) 56 SASR 302