Citation: R v Rogerson; R v McNamara (No 50) [2016] NSWSC 599
Court: Supreme Court of New South Wales
Date: 11 May 2016
Judge: Bellew J
Background
The two accused, Rogerson and McNamara, were on trial for murder. A central issue in the proceedings was whether Rogerson had, during a period of shared custody with McNamara, attempted to fabricate a defence to the charges. A handwritten document attributed to Rogerson, addressed "Ladies and Gentlemen of the Jury," was in evidence. Rogerson described the document as "light-hearted humour" with no serious purpose.
Counsel for McNamara sought to cross-examine Rogerson about a gift he had allegedly given McNamara in 2013 or 2014: a pen and matching letter opener. The pen's lower section was shaped like a bullet and its clip formed a rifle. Engraved on the pen were the names of three individuals said to have been shot and killed by Rogerson in the line of duty as a police officer.
McNamara's counsel argued this evidence was relevant to showing Rogerson held a low regard for human life and was consistent with his alleged willingness to fabricate a defence. Both the Crown and Rogerson's counsel objected to the proposed cross-examination.
Legal Issues
- Whether proposed cross-examination about the pen gift was sufficiently relevant to be admissible.
- Whether, under section 135 of the Evidence Act 1995 (NSW), the probative value of the evidence was substantially outweighed by the danger of unfair prejudice to Rogerson.
- Whether there was a real risk that the jury might misuse the evidence by speculating on matters unrelated to the trial.
Decision
Bellew J first assessed the probative value of the proposed evidence. His Honour concluded that value was marginal at best. In particular, the connection between the pen gift and the alleged fabrication of a defence was difficult to establish: the fact that Rogerson had given a novelty pen to McNamara did not meaningfully advance the proposition that he had sought to fabricate a response to the prosecution case.
Turning to section 135, his Honour noted that the discretion to exclude evidence does not require certainty of unfair prejudice. It is sufficient that the probative value is substantially outweighed by the danger that unfair prejudice might result. The court identified a clear danger that the jury could speculate about the circumstances in which the three named individuals were killed, matters entirely unrelated to any issue before the trial.
Given the limited probative value of the evidence and the substantial danger of jury misuse, Bellew J exercised the discretion under section 135 to exclude it. The proposed cross-examination was not permitted.
Orders Made
• The proposed cross-examination will not be permitted.
Key Takeaways
- 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; the court need not be satisfied that prejudice will occur, only that there is a real danger it might.
- Probative value assessed as marginal where the logical connection between the proposed evidence and the live issues at trial is tenuous or speculative.
- A particular risk of "misuse" arises where evidence invites a jury to speculate about collateral matters, such as the circumstances of prior deaths, that have no bearing on the charges being tried.
- The Supreme Court applied its earlier reasoning from R v Rogerson; R v McNamara (No 45) [2016] NSWSC 452, reinforcing a consistent approach to the section 135 discretion across the course of the trial.
- Evidence characterised nominally as relevant to one issue (fabrication of a defence) may still be excluded if its predominant effect in the courtroom risks diverting the jury from the actual issues in the proceedings.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), section 135
Cases:
- R v Rogerson; R v McNamara (No 45) [2016] NSWSC 452