Citation: R v Rogerson; R v McNamara (No 38) [2016] NSWSC 329
Court: Supreme Court of New South Wales
Date: 24 March 2016
Judge(s): Bellew J
Background
Two accused were being jointly tried for murder and supplying a prohibited drug. One accused (McNamara) proposed to run a defence of duress, asserting he acted under compulsion from the other accused (Rogerson).
McNamara's counsel sought to call a witness, Mr Battisti, and cross-examine him about a statement he had made to police. That statement recorded a conversation in approximately 2012 or 2013 in which McNamara had described Rogerson as someone who was "still as dangerous now as ever." The same statement also recorded a later conversation in which McNamara referred to Rogerson as "my mate."
McNamara's counsel argued the first remark was admissible to show McNamara's awareness of Rogerson's character and his consequent fear, both supporting the duress defence and rebutting any suggestion that the defence was a recent invention.
Legal Issues
- Whether the statement attributed to McNamara, describing Rogerson as "dangerous," was admissible evidence at the joint trial.
- Whether the probative value of that evidence was substantially outweighed by the danger of unfair prejudice to Rogerson, or the risk that the evidence would be misleading or confusing, under s 135 of the Evidence Act 1995 (NSW).
Decision
Bellew J accepted that the evidence was at least arguably relevant, and proceeded to apply the balancing exercise required under s 135 of the Evidence Act 1995 (NSW). That section permits a court to exclude evidence where its probative value is substantially outweighed by the danger of unfair prejudice to a party, or by the risk that the evidence will be misleading or confusing.
His Honour found the probative value of the statement to be low for three reasons. First, the word "dangerous" is vague and non-specific: it can apply to a person in many different contexts and for many different reasons. Counsel for McNamara conceded as much. Second, the same witness statement recorded McNamara referring to Rogerson as "my mate" on a separate occasion, which was at least prima facie inconsistent with a genuine fear of Rogerson, and which risked rendering the earlier remark misleading or confusing. Third, the statement was made some years before the events at the centre of the trial, and that temporal distance further diminished its probative weight.
Balanced against that low probative value, Bellew J found that admitting the evidence carried a real danger of unfair prejudice to Rogerson. The description of him as "dangerous," without context or specificity, risked adversely affecting his position at trial in a way that went beyond legitimate use of the evidence. Bellew J was not satisfied that a judicial direction to the jury would adequately address that risk.
The evidence was excluded on the basis that whatever probative value it held was substantially outweighed by the combined dangers of unfair prejudice to Rogerson and of the evidence being misleading or confusing.
Orders Made
• The evidence will be excluded.
Key Takeaways
- Under s 135 of the Evidence Act 1995 (NSW), a court may exclude evidence where its probative value is substantially outweighed by the danger of unfair prejudice to a party or by the risk that the evidence will be misleading or confusing.
- Vague or non-specific language in an out-of-court statement can significantly reduce its probative value, particularly where the statement is capable of bearing multiple meanings.
- Internal tensions within the same witness statement, such as inconsistent characterisations of the same person, can further diminish probative value and heighten the risk that the evidence will mislead or confuse the jury.
- Temporal remoteness is a recognised factor in assessing probative value: a statement made several years before the events in question carries less weight than one made closer in time.
- The prospect of a curative judicial direction does not automatically displace the s 135 balancing exercise; the court must still be satisfied that the direction would adequately address the danger of unfair prejudice before relying on it as a reason not to exclude the evidence.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 135
Cases:
- Dyldan Developments Pty Ltd v Jones (2008) NSWCA 56
- R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259