Citation: R v Rogerson; R v McNamara (No 33) [2016] NSWSC 247
Court: Supreme Court of New South Wales
Date: 15 March 2016
Judge: Bellew J
Background
This ruling arose mid-trial in a murder prosecution involving two accused, Rogerson and McNamara, concerning the death of a young man, Jamie Gao. The decision is one of a series of interlocutory rulings (hence "No 33") made during the trial.
The Crown sought to call a hotelier, a long-standing acquaintance of Rogerson, who had been with Rogerson in Queensland on 26 May 2014. On the morning after their arrival, news reports emerged that NSW Police wished to speak with Rogerson in connection with Gao's disappearance. The hotelier gave evidence on the voir dire (a hearing held in the absence of the jury to test admissibility) that Rogerson had told him: "I don't know anything about it."
The Crown sought to lead this statement as evidence of a lie, either as consciousness of guilt or as going to Rogerson's credibility. Rogerson's counsel objected to its admission, arguing unfair prejudice under section 137 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether Rogerson's denial to the hotelier was admissible as a lie capable of establishing consciousness of guilt.
- Whether, alternatively, the denial was admissible as going to Rogerson's credit.
- Whether the probative value of the statement was outweighed by the danger of unfair prejudice to Rogerson under section 137 of the Evidence Act 1995 (NSW), such that the court was required to exclude it.
Decision
Bellew J admitted the evidence. His Honour accepted that the statement was, at minimum, capable of going to Rogerson's credit, and declined to resolve at this stage whether it also constituted consciousness of guilt. The question of how the evidence was ultimately to be characterised was deferred.
On the section 137 question, the court found that the probative value of the evidence was substantial. The denial was made in clear and unequivocal terms on the morning after Gao's disappearance became public, and it was open to the jury to conclude that the denial was false in light of other Crown evidence already before the court.
Bellew J rejected the argument that the context was vague. The hotelier's voir dire evidence demonstrated precisely what was said and in what circumstances. There was no basis to conclude that admission of the statement would invite jury speculation or otherwise give rise to unfair prejudice.
His Honour noted that if the statement were ultimately treated as a lie going to credit, a direction consistent with the High Court's decision in Zoneff v The Queen would be given to the jury, guiding them on the proper use of the evidence and eliminating the risk of misuse.
Orders Made
• The evidence is admitted
Key Takeaways
- Under section 137 of the Evidence Act 1995 (NSW), the Crown bears no onus: it is the accused who must satisfy the court that the danger of unfair prejudice outweighs probative value before exclusion is warranted.
- The section targets evidence that is unfairly prejudicial, not merely prejudicial. Evidence that is simply damaging to an accused does not, without more, meet the threshold for exclusion.
- A statement made by an accused denying involvement in a crime can be admissible as a lie going to credit, even where its status as consciousness-of-guilt evidence remains unresolved at the time of the admissibility ruling.
- Where a lie-to-credit direction becomes necessary, the High Court's guidance in Zoneff v The Queen (2002) 200 CLR 234 governs how the jury is to be directed on the permissible use of that evidence.
- Clear and unequivocal terms in an out-of-court denial weigh against an argument that its admission would cause jury speculation or contextual confusion.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137
Cases
- Zoneff v The Queen [2002] HCA 28; (2002) 200 CLR 234