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Supreme Court 26 February 2016

R v Rogerson; R v McNamara (No 26)

[2016] NSWSC 141

Homicide
CRIMINAL LAW EVIDENCE ADMISSIONS BY ACCUSED EVIDENCE EXCLUDED

Citation: R v Rogerson; R v McNamara (No 26) [2016] NSWSC 141
Court: Supreme Court of New South Wales
Date: 26 February 2016
Judge: Bellew J

Background

This decision arose in the course of the high-profile murder trial of two accused, including the accused McNamara. On 24 May 2014, while McNamara was detained by police and being photographed and measured by a Crime Scene Unit officer, he made a series of spontaneous remarks in the presence of two detectives.

According to a detective's statement, McNamara repeatedly said words to the effect of "I've been a goose, look, I've just been a goose. I was a goose." He also said he "had a story to tell but not now" and that "not all is as it seems."

The Crown sought to lead these remarks as admissions. Defence counsel objected, arguing the statements were too ambiguous to be safely placed before the jury and that their admission would cause unfair prejudice to the accused.

  • Whether the statements attributed to McNamara were admissible as admissions, having regard to their equivocal and ambiguous nature
  • Whether the limited probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the accused under section 137 of the Evidence Act 1995 (NSW)
  • Alternatively, whether the evidence should be excluded under section 135 of the Evidence Act 1995 (NSW)
  • Further in the alternative, whether a breach of section 281 of the Criminal Procedure Act 1986 (NSW) rendered the evidence inadmissible

Decision

Bellew J accepted that the statements were relevant within the broad scope of section 55 of the Evidence Act, a concession the defence had also made. However, his Honour turned quickly to whether the mandatory exclusion provision in section 137 required the evidence to be kept from the jury.

Section 137 requires a court in a criminal proceeding to refuse evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant. The Crown itself acknowledged that the probative value was limited, though it argued the issue was merely one of weight and that defence counsel could address the jury on it in closing.

Bellew J rejected that reasoning. His Honour found the statements were inherently equivocal and open to multiple interpretations, creating a real danger that the jury would attribute an adverse meaning to them when no clear adverse meaning was warranted. That risk, his Honour held, was qualitatively different from a question of weight, which concerns how much significance to attach to evidence that is clear in its meaning.

His Honour also dismissed the Crown's submission that any prejudice could be cured by defence counsel's address to the jury. Accepting that argument, Bellew J observed, would render section 137 largely redundant. Satisfied that the danger of unfair prejudice substantially outweighed the limited probative value, his Honour excluded the evidence. Given that conclusion under section 137, the alternative grounds were not determined.

Orders Made

• The evidence of the statements attributed to the accused McNamara is excluded pursuant to s. 137 of the Evidence Act 1995 (NSW).

Key Takeaways

  • Under section 137 of the Evidence Act 1995 (NSW), a court in a criminal proceeding must exclude prosecution evidence where its probative value is substantially outweighed by the danger of unfair prejudice to the defendant, and this obligation applies even where probative value is conceded to be merely limited rather than non-existent.
  • The danger of unfair prejudice addressed by section 137 is conceptually distinct from mere questions of weight: prejudice arises where inherently equivocal statements may be misread by a jury as carrying an adverse meaning, whereas weight concerns the degree of significance to be attached to evidence whose meaning is otherwise reasonably clear.
  • The Supreme Court rejected the proposition that the risk of unfair prejudice from ambiguous admissions can be adequately addressed by permitting defence counsel to make submissions to the jury in closing address, noting that such an approach would substantially diminish the practical operation of section 137.
  • Statements made by a detained accused that are open to multiple interpretations, with no clear inculpatory meaning, carry an inherent risk of misuse when placed before a jury, and that risk can justify exclusion even where the statements are conceded to be technically relevant.
  • The decision illustrates the courts' willingness to engage section 137 at the trial stage to pre-empt jury reasoning that could not reliably be corrected by direction or address.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 135, 137
- Criminal Procedure Act 1986 (NSW), s 281

Cases cited: No cases were cited in the judgment.