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Supreme Court 13 May 2016

R v Rogerson; R v McNamara (No 51)

[2016] NSWSC 626

Homicide
CRIMINAL LAW EVIDENCE CROWN CASE IN REPLY NO SUGGESTION CROWN SPLITTING ITS CASE WHETHER EVIDENCE SHOULD BE EXCLUDED WHERE ACCUSED ASSERTED HE WAS MISTAKEN

Citation: R v Rogerson; R v McNamara (No 51) [2016] NSWSC 626
Court: Supreme Court of New South Wales
Date: 13 May 2016
Judge: Bellew J

Background

This decision arose during the murder trial of two accused, referred to here by their roles as the first and second accused. A white Ford Falcon (registration BV67PX) was a significant piece of evidence in the trial, having been used on 20 May 2014 to transport the deceased from a location in Padstow to a storage unit, and later to transport the deceased's body to premises in Cronulla.

In his evidence-in-chief, the second accused gave evidence that, in the period between approximately 14 May 2014 and 20 May 2014, he had used the white Falcon to take material to a local tip (rubbish disposal facility). He described parking the vehicle in the North Cronulla area after that trip.

During subsequent cross-examination by counsel for the first accused, it emerged that police had obtained a statement from a Landfill Manager responsible for recycling centres at Lucas Heights (formerly the Menai Tip) and Rockdale. That statement indicated there was no record of the vehicle entering either facility between April and June 2014. When this was put to the second accused, he ultimately conceded he had never used the Falcon to go to the tip, directly contradicting his own evidence-in-chief.

  • Whether the Crown was entitled to lead the Landfill Manager's evidence as part of its case in reply.
  • Whether that evidence was relevant and sufficiently probative.
  • Whether the evidence should be excluded under s 137 of the Evidence Act 1995 (NSW) because its probative value was outweighed by the danger of unfair prejudice to the second accused.
  • Whether the evidence should be excluded under s 135 of the Evidence Act 1995 (NSW), including on the basis that it would cause an undue waste of time given the second accused had already conceded the point.

Decision

Bellew J found the evidence clearly relevant and highly probative on two distinct bases. First, it was directly relevant to the assessment of the second accused's credibility, given he had told an apparent untruth in his own evidence-in-chief. Second, it was relevant to the broader question of why the vehicle was in the Cronulla area in the period leading up to the deceased's death, and how the second accused came to be driving it on 20 May 2014.

On the question of exclusion under s 137, his Honour found the probative value of the evidence was high. While the evidence was prejudicial to the second accused, the prejudice was not unfair, particularly in circumstances where the contradicted account had been given in answer to questions from the second accused's own counsel. Accordingly, s 137 did not mandate exclusion.

Turning to s 135, his Honour rejected the argument that the evidence amounted merely to proving a conceded fact and would cause an undue waste of time. The evidence was described as being in very short compass, capable of being led succinctly through the officer-in-charge. The probative value was not substantially outweighed by either the risk of unfair prejudice or the risk of undue time waste.

There was no suggestion the Crown had impermissibly split its case. In line with R v Chin, the occasion to call this evidence arose entirely as a consequence of the second accused's own evidence-in-chief, which meant the Crown could not reasonably have foreseen the need for it at an earlier stage.

Orders Made

No formal orders were recorded in this decision; his Honour ruled orally (ex tempore) that the Crown would be permitted to adduce the Landfill Manager's evidence in its case in reply.

Key Takeaways

  • Under the rule in R v Chin (1985) 157 CLR 671, the Crown may call evidence in reply where the need to do so arises from evidence given by an accused that could not reasonably have been foreseen by the Crown at an earlier stage of the trial.
  • Evidence is not rendered inadmissible or time-wasting under s 135 of the Evidence Act 1995 (NSW) merely because an accused has, by the time the evidence is led, conceded the substance of the point it tends to prove.
  • Where evidence in reply is sought by the prosecution, s 137 of the Evidence Act 1995 (NSW) is the primary exclusionary provision to consider, mandating exclusion only if probative value is outweighed by the danger of unfair prejudice to the accused.
  • Prejudice that flows directly from an accused's own contradicted evidence-in-chief is not, without more, "unfair prejudice" within the meaning of s 137.
  • The Supreme Court confirmed that evidence of short compass going to both credibility and a substantive issue in the trial carries significant probative weight capable of resisting exclusion under both ss 135 and 137.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 135, 137

Cases
- R v Chin [1985] HCA 35; (1985) 157 CLR 671