Citation: R v Rogerson; R v McNamara (No 17) [2016] NSWSC 38
Court: Supreme Court of New South Wales
Date: 9 February 2016
Judge: Bellew J
Background
This decision arose during the joint murder trial of two accused men. The Crown called a witness, referred to here as Lam, who had previously been convicted of drug supply offences and was serving a term of imprisonment at the time he gave evidence. Lam gave evidence against one of the accused, including allegations about conversations in which the accused expressed interest in drug dealing and allegedly suggested shooting Lam in the leg to secure an adjournment of Lam's own trial.
After learning of the disappearance of the deceased in the present case, Lam contacted his solicitor, who in turn approached police. Lam's own evidence made clear that from the outset he had in mind the possibility of receiving a benefit, specifically a reduction in his sentence, in exchange for his cooperation. Police subsequently made a formal submission to the Governor of New South Wales seeking the exercise of the royal prerogative of mercy to reduce Lam's sentence, citing his assistance. At the time Lam gave evidence, that application remained undetermined.
Counsel for one of the accused applied for a direction to the jury under s 165 of the Evidence Act 1995 (NSW), warning that Lam's evidence may be unreliable. The Crown opposed the application.
Legal Issues
- Whether s 165 of the Evidence Act 1995 (NSW) applied to require a warning to the jury that Lam's evidence may be unreliable
- Whether the circumstances of the case, specifically a witness motivated by a potential sentence reduction not yet granted, fell within the recognised categories of potentially unreliable evidence under s 165(1)
- Whether, if those categories did not strictly apply, the court retained a broader discretion to give such a direction
Decision
Bellew J found that Lam's primary motivation for approaching police was the prospect of deriving a benefit in the form of a reduced sentence. His Honour drew this conclusion directly from Lam's own evidence, which indicated that Lam himself first raised the question of a potential benefit with his solicitor, and later confirmed he understood that assisting police would assist his application for a sentence reduction.
The Crown argued that s 165 was typically engaged only where a sentence discount had already been granted or where a witness had been indemnified from prosecution. It submitted that no formal benefit had been conferred on Lam, and that telephone recordings corroborating aspects of his evidence suggested it was not unreliable. Bellew J declined to accept these submissions.
His Honour held that, while Lam's circumstances did not fall squarely within any of the defined categories in s 165(1), the list in that subsection is not exhaustive. The ongoing possibility that Lam would receive a benefit was sufficient to give rise to a real concern about the reliability of his evidence, warranting a direction to the jury.
On the Crown's concern that a warning would amount to a judicial endorsement of unreliability, Bellew J rejected that submission. The direction, drawn from the Criminal Trial Bench Book, would make explicit to the jury that the warning reflected a legal requirement rather than any view formed by the trial judge, and would expressly state that the warning was not a finding that the evidence was in fact unreliable.
Orders Made
• A direction will be given to the jury regarding the potential unreliability of Lam's evidence due to the circumstances in which he approached police and provided a statement, given the possibility of a benefit being firmly in his mind.
Key Takeaways
- Under s 165 of the Evidence Act 1995 (NSW), the categories of potentially unreliable evidence listed in s 165(1) are not exhaustive; a direction may be warranted even where a witness's circumstances do not fit neatly within a defined category.
- A witness's ongoing prospect of receiving a sentence reduction, where that prospect motivated the decision to assist police and remained live at the time of giving evidence, can be sufficient to enliven the court's obligation to warn the jury about potential unreliability.
- The Supreme Court confirmed that giving a s 165 direction does not constitute a judicial finding, or "imprimatur", that the evidence is actually unreliable; the standard bench book direction makes this distinction clear to the jury.
- Corroborating material, such as telephone recordings consistent with the witness's account, does not by itself preclude a direction under s 165 where the circumstances giving rise to possible unreliability are otherwise established.
- The decision left open the question of which interpretive approach (narrow or broader) should apply to the phrase "evidence of a kind which may be unreliable" in s 165, finding it unnecessary to resolve that debate on the facts before the court.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 165 (particularly s 165(1)(a) and (e))
Other materials referenced:
- Criminal Trial Bench Book (NSW)
Note: The judgment expressly states that no cases were cited in the decision metadata, and no specific cases are identified in the judgment text.