Citation: R v Rogerson; R v McNamara (No 54) [2016] NSWSC 654
Court: Supreme Court of New South Wales
Date: 19 May 2016
Judge(s): Bellew J
Background
This decision arose during the murder trial of two accused, referred to by their roles as the first accused and the second accused. The Crown alleged the offences occurred on or around 20 May 2014 and relied on a body of circumstantial evidence spanning events before, during, and after that date.
Prior to the Crown's final address to the jury, a dispute arose between the parties about the appropriate direction to give the jury regarding the nature of the circumstantial case. The Crown sought a direction framing its evidence as "strands in a cable," meaning the jury could weigh the cumulative effect of multiple pieces of evidence together. Counsel for the first accused contended that a different and more demanding direction was required.
Legal Issues
- Whether the Crown's circumstantial case contained one or more "indispensable intermediate facts" that the Crown was required to prove beyond reasonable doubt before a guilty verdict could be reached (a "links in a chain" case).
- Whether the jury should instead be directed to consider the evidence cumulatively as "strands in a cable."
- Whether, even if indispensable intermediate facts could be identified, a "links in a chain" direction would nonetheless be confusing and unhelpful in the circumstances of this case.
Decision
Counsel for the first accused nominated five facts as alleged indispensable intermediate facts: the accused's involvement in purchasing a particular vehicle, the deceased being alive when the first accused entered a storage unit, the first accused possessing a firearm at a specific location on 20 May 2014, the first accused threatening a named witness that day, and the first accused's awareness of meetings between the second accused and the deceased. The argument was that the jury could not convict unless each of these facts was proved beyond reasonable doubt.
Bellew J rejected this characterisation of the Crown's case. His Honour found that none of the nominated facts were truly indispensable. Even if every one of them were removed from the Crown case entirely, sufficient evidence would remain to go to the jury. The Crown case was built across three broad phases of evidence covering the lead-up to, the events of, and the aftermath of 20 May 2014, and the jury was not required to reach a settled conclusion on one phase before considering another.
His Honour also noted the additional concern, drawn from authority, that giving a "links in a chain" direction in a case involving numerous separate facts of varying probative weight risked confusing the jury rather than assisting it. The prospect of confusion is itself a recognised factor weighing against such a direction.
Accordingly, Bellew J ruled that the jury would be directed to treat the Crown's circumstantial evidence as "strands in a cable," meaning the individual pieces of evidence were to be viewed together as part of an overall cumulative case.
Orders Made
No orders were made in this decision.
Key Takeaways
- A "links in a chain" direction is only appropriate where the Crown case contains genuinely indispensable intermediate facts: facts whose absence would compel an acquittal, as established in Shepherd v R (1990) 170 CLR 573.
- Where the removal of any nominated "indispensable" fact would still leave sufficient evidence for the jury to consider, that fact is not truly indispensable and does not warrant a "links in a chain" direction.
- The Supreme Court confirmed that the jury need not reach a concluded view on one segment of a circumstantial case before moving to consider another, consistent with the High Court's reasoning in Shepherd.
- Even where indispensable intermediate facts can be identified, a "links in a chain" direction may still be inappropriate if the Crown case involves numerous facts of varying probative force, given the real risk of juror confusion.
- In a case built on multiple interlocking pieces of circumstantial evidence, a "strands in a cable" direction properly invites the jury to assess the cumulative weight of that evidence rather than treating each item in isolation.
Legislation and Cases Referenced
Cases:
- Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
- Davidson v R [2009] NSWCCA 150; (2009) 75 NSWLR 150
- R v Merritt [1999] NSWCCA 29
- Minniti v R [2006] NSWCCA 30
- Hannes v The Commonwealth Director of Public Prosecutions (No 2) [2006] NSWCCA 373
Legislation: No specific legislation was cited in this decision.