Citation: R v Rogerson; R v McNamara (No 52) [2016] NSWSC 628
Court: Supreme Court of New South Wales
Date: 16 May 2016
Judge(s): Bellew J
Background
The accused Rogerson and McNamara were on trial for murder. McNamara, in his evidence-in-chief, recounted conversations he claimed took place with Rogerson while both were in custody before Christmas 2014. According to McNamara, Rogerson had told him that a long-standing friend, Tony Butler, had supplied Rogerson with a firearm before the shooting and that Rogerson had returned it to Butler's workplace at Bankstown Airport on 23 May 2014. Rogerson denied possessing any firearm on the day of the shooting, denied shooting the deceased, and denied any association with Butler in relation to a firearm.
The Crown sought to call Butler as a reply witness after Rogerson's case concluded. Butler had provided a police statement in November 2015 and appeared on the Crown's pre-trial witness list, not as a witness the Crown proposed to call in its case, but as one it would make available for cross-examination on request. Neither accused had requested his attendance, so Butler had not given evidence in the Crown's case-in-chief.
When disclosure documents relating to Butler were served, they revealed that in 1999 police had raided his premises and found a large quantity of unlicensed firearms, weapons, and prohibited items. All charges arising from that raid were later dismissed by a Magistrate for insufficiency of evidence. After this material came to light, counsel for Rogerson objected to Butler being called. Bellew J heard Butler's evidence on the voir dire (a hearing to assess admissibility, conducted in the absence of the jury) before ruling on whether it should be admitted.
Legal Issues
- Whether the Crown was entitled to call Butler as a witness in reply, given that his evidence related to matters raised in McNamara's evidence-in-chief.
- Whether Butler's evidence ought to be excluded under section 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice to Rogerson.
- Whether the departures Butler made from his police statement during voir dire evidence created risks of jury misuse that weighed against admission.
Decision
Bellew J found that the primary problem with Butler's proposed evidence was the significant departures he made on the voir dire from the statement he had given police. In his statement, Butler said he had left for a cruise on 19 May 2014 and that a call on 22 May about having drinks had come from a man named Duff. In his voir dire evidence, Butler changed the departure date to 16 May and denied that the call had come from Duff, contradicting his own statement and asserting, unconvincingly, that he had tried to correct the discrepancies but had been ignored.
His Honour concluded that the focus of any trial examination of Butler would inevitably be dominated by these internal contradictions, diverting the jury from its proper task. There was a real risk the jury would ascribe disproportionate weight to the evidence, or would be led into impermissible reasoning, rather than treating it according to its limited probative value.
His Honour applied section 137 of the Evidence Act 1995 (NSW), which requires a court to refuse admission of evidence where its probative value is outweighed by the danger of unfair prejudice to a defendant. Unfair prejudice in this context means a real risk the evidence will be misused, whether through an irrational or emotional response or by attributing more weight to it than it deserves, being prejudice over and above that which flows simply from its probative force (following Papakosmas v R (1999) 196 CLR 297).
A further consideration was that McNamara's representatives had been given a pre-trial opportunity to request Butler's attendance for cross-examination but had declined to do so. Had they done so, the association between Butler and Duff might have emerged and been the subject of further cross-examination of Duff during the Crown case. The failure to take that opportunity meant certain lines of examination had not been pursued, creating an additional source of potential unfair prejudice to Rogerson. On all these grounds, Bellew J excluded Butler's evidence.
Orders Made
• The evidence of Butler is excluded.
Key Takeaways
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Section 137 of the Evidence Act 1995 (NSW) requires exclusion of evidence where its probative value is outweighed by the danger of unfair prejudice to an accused, with unfair prejudice understood as the risk of jury misuse beyond the ordinary adverse effect that any probative evidence carries.
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Where a proposed witness's evidence-in-chief on the voir dire departs substantially from that witness's prior police statement, the likely trial focus on those contradictions can itself become a source of unfair prejudice, diverting the jury from its proper task and risking undue weight being given to collateral matters.
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The Supreme Court held that Butler's internal inconsistencies were so significant that exploring them at trial would overwhelm the substantive value of anything else he might say, and this weighed heavily in favour of exclusion.
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Pre-trial decisions about whether to request the Crown make witnesses available for cross-examination can have consequences at later stages of a trial. The failure by McNamara's representatives to request Butler's attendance had the downstream effect of foreclosing certain lines of cross-examination of another witness, a circumstance that contributed to a finding of potential unfair prejudice to Rogerson.
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The decision confirms that a reply witness called to address matters first raised in a co-accused's evidence-in-chief remains subject to the same exclusionary discretion under section 137 as any other witness.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137
Cases
- Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
- R v Chin [1985] HCA 35; (1985) 157 CLR 671
- R v McNamara; R v Rogerson (No 28) [2016] NSWSC 160