Citation: R v Rogerson; R v McNamara (No 40) [2016] NSWSC 389
Court: Supreme Court of New South Wales
Date: 31 March 2016
Judge(s): Bellew J
Background
This decision arose as an evidentiary ruling during the murder trial of two accused, referred to here by their roles as the first and second accused. The trial concerned the death of the deceased, and throughout the proceedings the second accused's counsel sought to establish that the deceased had claimed to be a member of a Triad gang. That claimed statement was expected to form part of the second accused's own evidence, going to fears he allegedly held at the relevant time.
Against that background, counsel for the second accused sought to tender four exhibits: photographs found on the deceased's phone depicting drugs, cash, weapons, and a person restrained in a body bag; images referencing a group called "Lok Boys"; and screen shots from the deceased's computer relating to a violent incident in Chinatown involving persons described in connection with Triad crime gangs.
The Crown and counsel for the first accused both opposed the tender of these materials, pointing to the absence of any evidence explaining how or when the images came to be on the deceased's devices.
Legal Issues
- Whether the four sets of images and screen shots were relevant under s 55 of the Evidence Act 1995 (NSW)
- Whether, even if relevant, the evidence should be excluded under s 135 of the Evidence Act 1995 (NSW) on the basis that its probative value was substantially outweighed by the danger of the evidence being misleading or confusing
- Whether the question of admissibility should be left open for reconsideration in re-examination, depending on how cross-examination of the second accused unfolded
Decision
Bellew J accepted that the images and screen shots were technically relevant within the meaning of s 55 of the Evidence Act, in that they could rationally affect the assessment of the second accused's claim that the deceased had told him of his gang membership. However, his Honour described that relevance as "marginal at best."
The court excluded the evidence under s 135, finding that whatever limited probative value the material carried was substantially outweighed by the danger that it would be misleading or confusing. Two factors drove that conclusion. First, there was no evidence explaining the circumstances in which the images came to be on the deceased's phone or computer. His Honour observed that in an era of advanced technology, unsolicited receipt or storage of material does not necessarily demonstrate even an interest in its subject matter, let alone any involvement. Second, the images themselves were of poor quality and unclear.
Bellew J did not treat the exclusion as final in all respects. Counsel for the second accused had also argued that the evidence might become relevant to rebut any suggestion in cross-examination that the second accused had fabricated the account of what the deceased told him. The court noted that if that situation arose, it might be open to counsel to seek to lead the evidence in re-examination. That question was left open, as the relevant proposition had not yet been put.
Orders Made
• Evidence (MFI 148) is excluded at this stage under s. 135 of the Evidence Act 1995 (NSW)
• Leave open the possibility for the Crown to seek to lead the evidence in re-examination if circumstances warrant it
Key Takeaways
- Under s 135 of the Evidence Act 1995 (NSW), evidence with only marginal relevance may be excluded where its probative value is substantially outweighed by the danger that it will be misleading or confusing, even if it technically satisfies the s 55 relevance threshold.
- The Supreme Court held that the mere presence of images on a person's phone or computer, without evidence of how or when those images arrived, carries limited weight in establishing that person's interests or associations.
- Bellew J recognised that the court's technological context matters: unsolicited receipt of digital material is commonplace, and storage alone does not demonstrate engagement with the subject matter.
- An evidentiary ruling excluding material at one stage of trial does not necessarily foreclose a fresh application if circumstances change. Where excluded evidence might later become relevant to rebut a proposition put in cross-examination, the court indicated the question may be revisited in re-examination.
- Relevance under s 55 is a threshold, not a guarantee of admissibility. The discretionary exclusion provisions in s 135 remain available to the court even where relevance is established.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 55 (relevance test), s 135 (general discretion to exclude evidence)
Cases cited: None cited in the judgment text.