Citation: R v Rogerson; R v McNamara (No 36) [2016] NSWSC 302
Court: Supreme Court of New South Wales
Date: 18 March 2016
Judge: Bellew J
Background
Two accused faced charges of murder and supplying a large commercial quantity of methylamphetamine. The Crown sought to lead expert evidence from Detective Sergeant Marc Scholtes concerning the value of the drugs alleged to have been involved in the supply charges.
The expert's statement included calculations of potential returns from selling approximately 2,780 grams of methylamphetamine in several different ways: by the kilogram (bulk), as 0.1 gram "street deals" of pure crystal form, and as "street deals" of diluted powder form. Counsel for one of the accused objected to the street-deal calculations, invoking section 137 of the Evidence Act 1995 (NSW), which requires a court to refuse evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant.
The Crown contended the evidence was relevant because it showed what the accused potentially stood to gain, and that there was an available inference the accused intended to "do something" with the drugs beyond simply selling them in bulk.
Legal Issues
- Whether the expert's evidence of "street deal" valuations was relevant to the charges
- Whether, under section 137 of the Evidence Act 1995 (NSW), the probative value of that evidence was outweighed by the danger of unfair prejudice to the accused
- Whether there was a sufficient evidentiary foundation to support the street-deal valuation scenarios
Decision
Bellew J identified two distinct problems with the objected-to paragraphs of the expert's statement. First, the underlying data used for the street-deal calculations varied extremely widely, undermining the reliability and therefore the probative weight of those opinions.
Second, and more fundamentally, there was no evidence that either accused intended to sell the methylamphetamine as street deals. Apart from a jug and spoon allegedly purchased by one of the accused around the time of the deceased's death, nothing in the evidence suggested possession of drug paraphernalia consistent with street-level supply. His Honour also noted that characterising those items as drug paraphernalia was itself questionable on the facts.
Bellew J was satisfied that, although the evidence was relevant, its probative value was outweighed by the danger of unfair prejudice under section 137. The bulk-sale valuation evidence (paragraphs 36 of the expert's statement) was not objected to and was permitted to stand. The street-deal valuation evidence (paragraphs 37 to 40) was excluded.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under section 137 of the Evidence Act 1995 (NSW), a court must exclude evidence where its probative value is outweighed by the danger of unfair prejudice to a defendant, even where the evidence is technically relevant.
- Expert valuations of drug quantities premised on a particular method of supply require an evidentiary foundation supporting that method; without such a foundation, the scenario is speculative rather than probative.
- The Supreme Court drew a clear distinction between bulk-sale valuation evidence (admitted without objection) and street-deal valuation evidence (excluded), reflecting that different supply scenarios carry different levels of evidentiary support on the specific facts.
- Highly variable underlying data can itself diminish the probative value of expert opinion, contributing to a finding that such evidence should be excluded under section 137.
- The mere fact that an accused possessed a prohibited drug in a large quantity does not, of itself, give rise to a sufficient inference that they intended to supply it in every conceivable manner for the purpose of admitting multi-scenario valuation evidence.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137
Cases cited: None cited in the provided text.