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Supreme Court 20 April 2016

R v Rogerson; R v McNamara (No 48)

[2016] NSWSC 479

Homicide
CRIMINAL LAW EVIDENCE DOCUMENTARY EVIDENCE DISCRETIONARY EXCLUSION

Citation: R v Rogerson; R v McNamara (No 48) [2016] NSWSC 479
Court: Supreme Court of New South Wales
Date: 20 April 2016
Judge(s): Bellew J

Background

Two accused, Rogerson and McNamara, were on trial for murder. During the course of McNamara's evidence, he described communications he had with Rogerson while both were in custody, alleging that Rogerson proposed they construct a false defence to the charges.

Those communications took various written forms, including a document Rogerson had written described as a "case summary," and a question-and-answer document in which McNamara wrote questions and Rogerson supplied answers. McNamara's case included a defence of duress, and his counsel sought to use the correspondence to support that defence and to demonstrate that Rogerson was "controlling" the construction of any false defence.

Counsel for McNamara (Mr Wendler) tendered a number of documents marked for identification (MFI) 173 to 177. MFI 175 and 176 were ultimately not pressed. MFI 177 was agreed to be admissible. The contested rulings concerned MFI 173 and MFI 174.

  • Whether MFI 173, a question-and-answer document dated 13 November 2014 and partly in Rogerson's handwriting, was admissible as relevant to McNamara's duress defence, Rogerson's alleged "control," and post-offence conduct by both accused.
  • Whether MFI 174, a document headed "Thoughts Re Committal Hearing" dated 2 December 2014, was admissible on those same bases.
  • Whether, in each case, any probative value was substantially outweighed by the risk of unfair prejudice, or by the danger that the document might mislead or confuse the jury.

Decision

MFI 173 was admitted. Bellew J found the document clearly relevant on multiple grounds: it bore on McNamara's duress defence, supported the alleged "control" exercised by Rogerson in constructing a false defence, and constituted evidence of post-offence conduct by both accused. His Honour assessed the probative value as significant and rejected the submission that the six-month gap between the shooting and the document's creation diminished that value.

Bellew J was not satisfied that the probative value was substantially outweighed by any danger of unfair prejudice or of misleading the jury. The circumstances in which the document came into existence were, on the evidence then before the court, sufficiently clear to prevent misuse. The document was prejudicial to Rogerson but not unfairly so, particularly given that part of it was in his own handwriting. Paragraphs 3 and 5 were excluded at counsel's election.

MFI 174 was rejected. This document addressed the approach to a committal hearing that never in fact took place. Bellew J found its probative value to be low, in part because it related to a proceeding that did not occur. That limited probative value was substantially outweighed by the danger of the document misleading or confusing the jury, since it invited speculation about proposed strategies for a committal that was never held. Even with a limiting direction, the court concluded the risk of confusion could not adequately be managed.

The parties agreed that any documents admitted would require a direction to the jury that the documents were not tendered as evidence of the truth of their contents, but rather as relevant to duress and to the question of Rogerson's alleged control.

Orders Made

  • MFI 173 admitted into evidence (with paragraphs 3 and 5 excluded).
  • MFI 174 rejected.
  • MFI 177 admitted (with the Crown Case Statement included as part of the tender), subject to a limiting direction.

Key Takeaways

  • Bellew J applied the standard balancing exercise: admissibility turned on whether probative value was substantially outweighed by the risk of unfair prejudice or of misleading and confusing the jury.
  • A document partly in an accused's own handwriting, produced while in custody and allegedly directed at fabricating a defence, can constitute admissible evidence of post-offence conduct relevant to both that accused and a co-accused.
  • The temporal gap between an alleged offence and the creation of a document does not automatically diminish the document's probative value; Bellew J declined to accept that argument in respect of MFI 173.
  • Where a document relates to a proposed legal proceeding that never eventuated, its probative value may be substantially reduced and the risk of jury confusion correspondingly heightened, rendering it inadmissible.
  • Limiting directions to the jury (confining use of a document to specific issues such as duress and "control," and excluding the truth of its contents) were accepted by all parties as a necessary condition of admission for each document that was received.

Legislation and Cases Referenced

Legislation: Not stated in the judgment.

Cases: Not stated in the judgment.