Citation: R v Rogerson; R v McNamara (No 47) [2016] NSWSC 470
Court: Supreme Court of New South Wales
Date: 19 April 2016
Judge: Bellew J
Background
This decision arose in the course of the high-profile murder trial of two accused, referred to here by their roles as the first accused (Rogerson) and the second accused (McNamara). Both were in custody during the proceedings. The trial involved, among other things, a defence of duress raised by McNamara.
Counsel for McNamara sought to lead evidence of the contents of a brief, informal note dated 26 June 2015, purportedly received by McNamara while in custody. The note was signed "Reesy" and contained a short friendly message referencing the first accused by name, expressing well-wishes for the upcoming court proceedings.
The envelope bore an address to McNamara at Silverwater Jail and was endorsed on the reverse with the name Jason Rees and a prisoner number, also at Silverwater Jail. Counsel for McNamara did not tender the document itself but sought to elicit evidence of its contents, along with McNamara's own perception of what the note meant to him.
Legal Issues
- Whether the contents of the letter were admissible as relevant evidence in support of McNamara's duress defence.
- Whether any probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the co-accused Rogerson, pursuant to section 135 of the Evidence Act 1995 (NSW).
- Whether there was a sufficient evidentiary foundation to support an inference that the letter was written at Rogerson's direction.
Decision
Bellew J expressed doubts about whether the evidence was relevant at all. The critical issue was whether the letter was written at Rogerson's behest. Without that foundation, the evidence had no meaningful connection to the duress defence. His Honour noted there was no direct evidence establishing that Rees wrote the note at Rogerson's direction, and that the inference sought to be drawn from the type of envelope and the letter's contents was not adequately supported.
Even assuming the relevance hurdle could be cleared (which his Honour doubted), the analysis did not end there. The document was capable of more than one interpretation. A note expressing friendly sentiments and good wishes could not, without more, be treated as a threat or as having been orchestrated by a co-accused.
Applying section 135 of the Evidence Act, the court found that any probative value the evidence might carry was substantially outweighed by the risk of unfair prejudice to Rogerson. Admitting the evidence risked the jury drawing impermissible inferences against Rogerson based on speculation rather than established fact. On that basis, the evidence was rejected.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that, for evidence of a communication to be relevant to a duress defence, there must be a sufficient factual basis connecting that communication to the alleged source of the duress. Speculation alone is not enough.
- Under section 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. This threshold was met on the facts here.
- Where a document is capable of more than one interpretation, that ambiguity weighs against admissibility when the risk of prejudice to a co-accused is significant.
- A defendant's subjective perception of a communication (that is, what they say they understood it to mean) does not by itself establish the objective relevance of that communication in evidence.
- Section 87 of the Evidence Act (concerning admissions made on behalf of a party) was raised but not decided, as the rejection of the evidence on other grounds made it unnecessary to consider.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 87 (admissions by agents and co-conspirators)
- Evidence Act 1995 (NSW), s 135 (general discretion to exclude evidence)
Cases cited: No cases were cited in the judgment.