Citation: R v Rogerson; R v McNamara (No 49) [2016] NSWSC 577
Court: Supreme Court of New South Wales
Date: 6 May 2016
Judge: Bellew J
Background
This decision arose during the murder trial of two accused, Rogerson and McNamara. The ruling concerned an evidentiary dispute about the permissible scope of re-examination of the accused McNamara, following cross-examination conducted by counsel for the co-accused Rogerson.
During cross-examination, Rogerson's counsel put to McNamara that the two men had met and developed a friendship before the period claimed in McNamara's own opening address. As part of this line of questioning, McNamara confirmed he had written inscriptions in books he gave Rogerson, including the words "my sincere gratitude for your advice and wisdom." Those inscribed book covers were tendered in evidence.
McNamara's counsel then sought to re-examine him on those inscriptions. The proposed re-examination would have asked McNamara whether he still regarded Rogerson as a person of wisdom, with the anticipated answer being "no," followed by an explanation that the only "wisdom" Rogerson had offered was advice on how to fabricate or manipulate the case.
Legal Issues
- Whether the cross-examination by Rogerson's counsel, in eliciting evidence of McNamara's written tribute to Rogerson's "wisdom," constituted the adducing of evidence of Rogerson's good character within the meaning of s 110(2) of the Evidence Act 1995 (NSW).
- If character had been raised, whether re-examination permitting McNamara to express a negative opinion of Rogerson's character should be allowed.
- Whether, in any event, the proposed re-examination properly arose from the cross-examination within the scope of s 39 of the Evidence Act 1995 (NSW).
Decision
Bellew J refused the proposed re-examination. The primary question under s 110(2) of the Evidence Act 1995 (NSW) was whether the cross-examination had been directed, with a subjective intention, to proving that Rogerson was generally a person of good character. Drawing on Gabriel v R (1997) 76 FCR 279, R v Bartle [2003] NSWCCA 329, and R v El-Kheir [2004] NSWCCA 461, his Honour confirmed that evidence is only "adduced to prove" good character within the meaning of s 110 if the party leading it made a conscious decision to raise that issue.
Bellew J found that, read as a whole, the cross-examination was plainly directed at establishing the true nature and extent of the relationship between the two accused prior to the alleged offences, and in particular at contradicting the assertion made in McNamara's opening address about when the two men first met. There was no conscious or deliberate attempt to raise Rogerson's good character. Accordingly, the precondition for s 110(2) to operate was not satisfied, and the proposed re-examination had no foundation.
His Honour also addressed the re-examination question under s 39 of the Act, though he noted it was not strictly necessary to decide it. Referring to Hadid v Australis Media Limited (No 14) (NSWSC, 5 November 1996, unreported), his Honour observed that re-examination is warranted where cross-examination has left an ambiguity, distortion, or incomplete account. In his view, McNamara's evidence on the inscriptions was clear and involved no such distortion, so re-examination would not have been justified on that basis either.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 110(2) of the Evidence Act 1995 (NSW), evidence is only "adduced to prove" good character if the party leading it had a subjective, conscious intention to raise the character of the accused, whether in evidence-in-chief or cross-examination.
- Cross-examination directed at the nature and extent of a relationship between co-accused does not, without more, constitute raising the character of one of those accused, even if the questions incidentally elicit complimentary language used by one accused about the other.
- The character provisions in s 110 do not operate as a tool to permit re-examination impugning a co-accused's character simply because cross-examination touched on material that reflected positively on that co-accused's reputation.
- Re-examination under s 39 of the Evidence Act 1995 (NSW) requires some ambiguity, distortion, or incomplete account arising from the cross-examination. Where evidence given on a topic is clear and unambiguous, re-examination on that topic is not justified.
- The precise question of whether s 39 is more or less liberal than the common law position on re-examination was raised but expressly left unresolved by Bellew J, following the approach noted in Hadid v Australis Media Limited (No 14).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 39, 110
Cases
- Gabriel v R (1997) 76 FCR 279
- Hadid v Australis Media Limited (No 14) (NSWSC, 5 November 1996, unreported)
- PGM v R [2006] NSWCCA 310
- R v Bartle [2003] NSWCCA 329
- R v El-Kheir [2004] NSWCCA 461