Citation: R v Rogerson; R v McNamara (No 21) [2016] NSWSC 79
Court: Supreme Court of New South Wales
Date: 16 February 2016
Judge: Bellew J
Background
The two accused were on trial for murder. During the Crown case, a witness named Hubert Sha gave evidence about events on 20 May 2014, when he and others were searching for the deceased in the Padstow area. His police statement included an account of a conversation he witnessed between members of his group and two men he described as "Asian males," in which those men allegedly spoke about a drug deal involving the deceased.
Counsel for the accused Rogerson sought to elicit the contents of that conversation through cross-examination, particularly the portion in which the two men allegedly described giving drugs to the deceased and seeing him leave with another car. This evidence was potentially useful to the defence.
The admissibility of the same paragraphs had already been considered the day before in R v Rogerson; R v McNamara (No 19) [2016] NSWSC 74, where the Crown had unsuccessfully sought to tender the evidence under a different hearsay exception. Bellew J had flagged at that point that he would in any event have been inclined to exclude the evidence on discretionary grounds.
Legal Issues
- Whether the hearsay rule exception in s 65(8) of the Evidence Act 1995 (NSW), which applies to representations adduced by a defendant in criminal proceedings, permitted the evidence to be elicited in cross-examination.
- Whether, irrespective of the hearsay question, the evidence should be excluded under s 135 of the Evidence Act 1995 (NSW) on the basis that its probative value was substantially outweighed by the danger that the evidence might be misleading or confusing.
- Whether Mr Sha's limited understanding of Mandarin, the dominant language of the conversation, rendered his account of that conversation necessarily incomplete and therefore unreliable.
Decision
The court first addressed the hearsay issue. Section 65(8) removes the hearsay rule for representations adduced by a defendant where the evidence is given by a person who perceived the representation being made. However, Bellew J noted that he remained unsatisfied, for reasons given in the earlier judgment, that either of the two Asian males was "unavailable" within the meaning required under s 65. This was relevant to the broader framework of the exception, though the court ultimately focused its ruling on the discretionary exclusion.
Counsel for the co-accused McNamara objected to the evidence on the basis of s 135, arguing that the circumstances warranted discretionary exclusion. The key problem was that Mr Sha had conceded in cross-examination that the conversation was conducted "mainly" in Mandarin, which was not his mother tongue, and that only "a little bit" was in Cantonese, which he did understand. He had also acknowledged in his police statement that he did not understand the entire conversation.
Bellew J accepted the force of that objection. Because Mr Sha could only understand part of what was said, any evidence he gave of the conversation would be necessarily incomplete and disjointed. The court found this incompleteness gave rise to a real danger that the evidence would be misleading or confusing to the jury.
On that basis, the court exercised its discretion under s 135 to refuse to admit the evidence, regardless of how the hearsay questions were ultimately resolved.
Orders Made
No formal orders were recorded in the provided text beyond the ruling that the evidence be rejected.
Key Takeaways
- Under s 135 of the Evidence Act 1995 (NSW), a court may exclude evidence where its probative value is substantially outweighed by the danger of it being misleading or confusing, and this discretion applies even to evidence sought to be adduced by the defence.
- A witness's own admission that they could only partially understand a multilingual conversation was treated by the Supreme Court as a significant basis for finding that any account of that conversation would be disjointed and incomplete.
- The fact that evidence is sought to be elicited in cross-examination, rather than led by the Crown, does not insulate it from discretionary exclusion under s 135.
- Consistency across proceedings was reflected in the ruling: Bellew J had flagged in the prior decision (No 19) that he would have been minded to exclude the same evidence under s 137, and maintained that concern when the issue re-arose under s 135.
- The unavailability requirement under s 65 of the Evidence Act remained unsatisfied, which also bore on whether the hearsay exception for defendant-adduced evidence under s 65(8) was properly engaged.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 65, 65(1), 65(2), 65(8), 135, 137
Cases:
- R v Rogerson; R v McNamara (No 19) [2016] NSWSC 74