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Supreme Court 2 March 2016

R v Rogerson; R v McNamara (No 30)

[2016] NSWSC 168

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW EVIDENCE ADMISSIBILITY OF HEARSAY STATEMENT NO UNFAIR PREJUDICE TO CO ACCUSED OR CROWN EVIDENCE ADMITTED

Citation: R v Rogerson; R v McNamara (No 30) [2016] NSWSC 168
Court: Supreme Court of New South Wales
Date: 2 March 2016
Judge: Bellew J

Background

Two accused, Rogerson and McNamara, were on trial before a jury. During cross-examination of Jessica McNamara (daughter of the accused McNamara), counsel for McNamara sought to elicit evidence of a conversation between father and daughter that allegedly occurred while McNamara was in custody on or about 31 May 2014.

The statement McNamara was said to have made to his daughter was to the effect that Rogerson had shot the victim, that McNamara had not known what was happening, and that Rogerson had threatened to kill his daughters while pointing a firearm at him. The statement was directly relevant to a defence of duress that McNamara intended to raise at trial.

Both the Crown and counsel for the co-accused Rogerson objected to the question, prompting Bellew J to rule on the admissibility of the statement in the absence of the jury.

  • Whether the statement was inadmissible hearsay under s 59 of the Evidence Act 1995 (NSW), or whether the exception in s 66 applied.
  • Whether, even if technically admissible under s 66, the evidence should be excluded under the general discretion in s 135 on the ground that its probative value was substantially outweighed by the danger of unfair prejudice to either the co-accused Rogerson or the Crown, or because it was likely to be misleading or confusing.
  • Whether, if admitted, a reliability warning to the jury under s 165 of the Act was required.

Decision

Bellew J accepted that the hearsay rule in s 59 was engaged but that the exception in s 66 was available, a position that Rogerson's counsel ultimately did not contest. The Court relied on the reasoning of Simpson J in R v Crisologo (1997) 99 A Crim R 178, which confirmed that s 66 applies equally to out-of-court statements made by an accused person as it does to complaints made by alleged victims. Where the conditions of s 66 are met, such statements are admitted as evidence of the truth of their contents, not merely as evidence that the words were said.

On the s 135 discretion, Bellew J held that while the statement was prejudicial to Rogerson and, to some extent, to the Crown's case, it was not unfairly so. The probative value of the statement to the duress defence was clear, and the Court was not satisfied that any prejudice substantially outweighed that value.

The Court also rejected the argument that the evidence was likely to be misleading or confusing. The terms of the statement, as outlined by defence counsel, were straightforward. Bellew J acknowledged that the jury might ultimately give the statement little weight, given its self-serving character and the fact that it was made to a close relative after arrest. However, low weight is a matter for the jury's assessment and does not, of itself, make evidence unfairly prejudicial or misleading.

The evidence was admitted. Bellew J indicated he would give the jury a warning under s 165 that the statement may be unreliable, with that unreliability arising principally from its hearsay nature.

Orders Made

• Allow the evidence to be admitted
• Warn the jury pursuant to s. 165 of the Act that the evidence may be unreliable, with such unreliability stemming primarily from its hearsay quality

Key Takeaways

  • Under s 66 of the Evidence Act 1995 (NSW), an accused person's out-of-court statement made shortly after the events in question is admissible as evidence of the truth of its contents, on the same basis as a complainant's complaint, provided the conditions of s 66 are satisfied.
  • The self-serving character of an exculpatory statement made by an accused to a close family member after arrest goes to the weight the jury may attach to it, but does not automatically render the evidence unfairly prejudicial or misleading under s 135.
  • Where evidence is clearly relevant to a live issue at trial (here, duress), a court applying the s 135 discretion must be satisfied that any prejudice to other parties substantially outweighs that probative value before exclusion is warranted.
  • The Supreme Court applied the principles from R v Crisologo (1997) 99 A Crim R 178 to confirm that no distinction is drawn, for admissibility purposes, between out-of-court statements made by complainants and those made by accused persons.
  • Admission of evidence with potential reliability concerns does not preclude the obligation, under s 165, to warn the jury about those concerns: in this case, the court indicated it would warn the jury about the hearsay-based unreliability of the statement.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW): s 55 (relevance), s 59 (hearsay rule), s 66 (exception for prior statements of witnesses), s 135 (general discretion to exclude), s 165 (unreliable evidence warning)

Cases
- R v Crisologo (1997) 99 A Crim R 178 (Simpson J, Hunt CJ at CL and James J)