Citation: R v Rogerson; R v McNamara (No 23) [2016] NSWSC 103
Court: Supreme Court of New South Wales
Date: 22 February 2016
Judge: Bellew J
Background
The Crown alleged that two accused men jointly murdered a third man inside a storage unit in Padstow on 20 May 2014. The Crown did not identify which accused fired the fatal shot, relying instead on the doctrine of joint criminal enterprise. Each accused blamed the other for the shooting.
Police executed a search warrant at the first accused's residence five days after the murder. They seized several items of clothing, including a red and grey cap, black tracksuit pants, a mauve shirt, and white running shoes. CCTV footage and still photographs placed the first accused wearing the cap and black pants at the storage facility on the day of the murder, and at subsequent locations visited by the two accused that same day.
A forensic scientist analysed those clothing items and detected gunshot residue particles on the cap, the black pants, and the mauve shirt. No gunshot residue was found on the clothing seized from the second accused's premises. Counsel for the first accused objected to the admission of the gunshot residue analysis into evidence. Counsel for the second accused did not oppose it and actively supported its admission.
Legal Issues
- Whether the gunshot residue evidence found on the first accused's clothing was relevant within the meaning of the Evidence Act 1995 (NSW).
- Whether the probative value of the evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW), such that it should be excluded.
- Whether the absence of gunshot residue on the second accused's clothing affected the admissibility of the evidence against the first accused.
- Whether evidence from the cap and black pants should be treated differently from evidence derived from the mauve shirt.
Decision
Bellew J admitted the gunshot residue analysis of the cap and black pants, and rejected the tender of the analysis of the mauve shirt.
On relevance, the court found the evidence clearly relevant. CCTV photographs established that the first accused was wearing the cap and black pants at the storage facility at the time of the murder. The scientific analysis found particles characteristic of gunshot residue on those items. The expert identified three possible explanations: that the wearer had fired a gun, had been in close proximity to a discharged firearm, or had contacted a surface contaminated with residue. The court held this was capable of rationally affecting the assessment of the probability that the first accused was present when the gun was fired.
On unfair prejudice, the court found the objections unpersuasive. The fact that gunshot residue had an innocent explanation did not deprive the evidence of probative value; rather, competing inferences were for the jury to weigh. The court noted the jury would receive appropriate direction from the judge, reducing the risk of undue weight being placed on the evidence. The court also rejected the submission that an alleged deficiency in the police investigation created an "evidentiary void" sufficient to render the evidence unfairly prejudicial, finding that any such criticism was properly the subject of cross-examination and jury submissions at trial.
The mauve shirt was treated separately. The only evidence placing the first accused in that garment was a CCTV image from the morning after the murder, not on the day of the killing itself. Absent evidence connecting the shirt to the events of 20 May 2014, Bellew J rejected the tender of the analysis of that item. The evidence of the cap and black pants was admitted.
Orders Made
• Evidence of the analysis of the cap and black pants is admitted
• Evidence of the analysis of the mauve shirt is rejected
Key Takeaways
- Gunshot residue evidence is relevant where other evidence, such as CCTV footage, connects the clothing on which residue was found to the accused's presence at the scene and time of an alleged shooting.
- The presence of multiple possible explanations for gunshot residue does not, of itself, render the evidence unfairly prejudicial under s 137 of the Evidence Act 1995 (NSW). Assessing competing inferences from such evidence is a function of the jury.
- Where the Crown relies on joint criminal enterprise, it need not establish which participant fired the weapon; the residue evidence therefore retains probative value even without identifying a specific shooter.
- The absence of gunshot residue on a co-accused's clothing does not preclude admission of residue evidence against another accused. The expert evidence identified several reasons why residue might not be detected even where a firearm association existed.
- A temporal and circumstantial link between the specific clothing item and the alleged offence is required: Bellew J excluded the analysis of the mauve shirt because no evidence placed the first accused wearing it on the day of the murder, only the following morning.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), including s 137
Cases
- Nye v New South Wales [2002] NSWSC 1270
- Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
- R v SJRC [2007] NSWCCA 142
- R v Yates [2002] NSWCCA 520
- Zaknic v Svelte Corp Pty Limited (1995) 140 ALR 701