Citation: R v Rogers (No 2) [2018] NSWSC 1217
Court: Supreme Court of New South Wales
Date: 8 August 2018
Judge: Lonergan J
Background
The accused stood trial for the murder of the deceased. The Crown's case was that anger and jealousy, arising from the accused's discovery of the deceased's affair, led him to kill her. The accused raised a defence of substantial impairment, asserting he had lost control at the relevant time.
A psychologist, Dr Elizabeth Shaw, recorded an account given by the accused on 25 August 2016, three days after an incident on 22 August 2016 in which the deceased took an overdose of sleeping tablets following an argument. A portion of that note described the accused's response during that argument, which the Crown contended showed the accused handing the deceased the sleeping tablets after she said there was "no point being here."
The accused's counsel objected to the leading of the underlined portion of Dr Shaw's note at trial, arguing it was irrelevant and, in any event, should be excluded because its admission would cause unfair prejudice outweighing its probative value.
Legal Issues
- Whether the disputed portion of the psychologist's note was relevant within the meaning of section 55 of the Evidence Act 1995 (NSW), in that it could rationally affect the assessment of a fact in issue
- Whether, even if relevant, the evidence should be excluded under section 137 of the Evidence Act 1995 (NSW) because its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Issue 1: Relevance under section 55
Lonergan J rejected the accused's submission that the nature of the relationship between the accused and the deceased was not a fact in issue. The Crown's case squarely depended on the jury finding ongoing anger and acrimony in the relationship, particularly in the period leading up to the deceased's death (at [11]-[12]). The accused's account to Dr Shaw, given only three days after the events of 22 August 2016, could rationally affect the jury's assessment of the probability of that ongoing anger, and therefore satisfied the test for relevance under section 55 (at [12], [18]).
Issue 2: Exclusion under section 137
Although the evidence was found to be reliable and to carry some probative value, Lonergan J concluded that its probative value was outweighed by the danger of unfair prejudice to the accused (at [19]). The core risk was that the jury would reason, impermissibly, that the accused had formed an intention to kill the deceased or wanted her dead on 22 August 2016, a proposition that was not part of the Crown's case (at [3], [19]).
The Crown proposed a jury direction to address this risk of impermissible reasoning. Lonergan J rejected that approach, finding that any such direction would only serve to highlight the very prejudice it sought to cure (at [20]). Following the approach confirmed in R v GK and R v Cook, her Honour held that where the balancing process required by section 137 results in a finding that probative value is outweighed by the danger of unfair prejudice, no discretion arises and the evidence must be excluded (at [14]-[16], [21]).
Orders Made
- The leading from Dr Shaw of the relevant part of her note is not permitted.
Key Takeaways
- Under section 137 of the Evidence Act 1995 (NSW), a trial judge undertakes a structured series of findings rather than an exercise of discretion: where probative value is outweighed by the danger of unfair prejudice to the accused, exclusion is mandatory (at [14]-[16]).
- A proposed jury direction is not automatically sufficient to neutralise the danger of unfair prejudice; where such a direction would itself highlight the prejudicial material, it weighs in favour of exclusion rather than admission (at [20]).
- The nature of a relationship between an accused and a deceased can constitute a fact in issue in a murder trial, even where the broad outlines of that relationship are uncontested, if the Crown's case depends on the jury drawing inferences about the accused's state of mind over time (at [12], [18]).
- Evidence may be relevant and reliable yet still be excluded under section 137 where the specific risk is that the jury will reason to a conclusion that the Crown has not advanced and that the evidence does not properly support (at [19]).
- The test under section 137 focuses on "unfair" prejudice, not prejudice in general: evidence that damages the accused's case is not thereby unfairly prejudicial, but evidence that invites impermissible reasoning goes beyond mere prejudice (at [7], [19]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 55, 137
Cases
- R v Cook [2004] NSWCCA 52
- R v GK (2001) 53 NSWLR 317; 125 A Crim R 315