R v Rogers (No 3)

Citation: R v Rogers (No 3) [2018] NSWSC 1218
Court: Supreme Court of New South Wales
Date: 6 August 2018
Judge: Lonergan J

Background

The accused stood trial for the death of the deceased. During the proceedings, an evidentiary dispute arose concerning a handwritten note the accused had written to the deceased, comprising five post-it notes. The note contained language described as reflecting frustration toward the deceased, including references to perceived conduct such as excessive iPad use and secret contact with a third party.

The only available evidence placed the note's existence at 27 April 2016 or earlier, based on technical data indicating a photograph of the notes was stored on an iPad device on that date. The note was also said to have been brought to a psychologist appointment on 5 May 2016. The charge against the accused related to events occurring approximately five months after that date.

Legal Issues

• Whether the post-it notes were relevant under section 55 of the Evidence Act 1995 (NSW) to the accused's state of mind in the period leading up to the alleged offence
• Whether the significant gap between the creation of the notes and the alleged offence undermined any rational connection to a fact in issue
• Whether tendering the notes would effectively circumvent an existing agreement between the Crown and the accused not to lead evidence rebutting the accused's good character

Decision

Issue 1: Relevance and Contemporaneity

The Crown argued that the note demonstrated "passive-aggression" or "passive anger" and was relevant to the accused's state of mind in the lead-up to the death of the deceased (at [3]). The Crown also contended the note referenced one of the accused's triggers for anger, namely the deceased's conduct involving the iPad (at [4]).

Lonergan J rejected the tender on the basis of relevance. The note was dated, on the only available evidence, at 27 April 2016 or earlier, placing it some five months before the events underlying the charge (at [7]). Her Honour found that contemporaneity was critical to relevance in this context, and that the lack of clarity as to when the note was actually written compounded the problem (at [7]).

Issue 2: Satisfaction of the Section 55 Test

Applying section 55 of the Evidence Act 1995 (NSW), Lonergan J held that a domestic note written at least five months before the charged acts, the tone of which was difficult to discern, could not rationally affect the assessment of the probability of any fact in issue (at [9]). The note therefore failed the statutory relevance threshold and was excluded.

Issue 3: Good Character Agreement

Counsel for the accused also raised the concern that the note, given its content, would function as character evidence contrary to an agreement reached between the parties that the Crown would not lead rebuttal evidence on character (at [5]). The Crown maintained the note was tendered solely on state of mind, not character (at [6]). Lonergan J did not find it necessary to resolve this dispute, as the note was excluded on the threshold relevance ground.

Orders Made

• Tender rejected.

Key Takeaways

• Under section 55 of the Evidence Act 1995 (NSW), a document must be capable of rationally affecting the probability of a fact in issue; a handwritten note created at least five months before the events the subject of a charge failed that threshold (at [9]).
• Contemporaneity is a critical factor when assessing the relevance of state-of-mind evidence in criminal proceedings: the greater the temporal gap between a document's creation and the charged conduct, the weaker its connection to any fact in issue (at [7]).
• Where evidence fails the relevance threshold, the court need not proceed to consider separate grounds for exclusion, such as those arising from agreements between the Crown and the defence about character evidence.
• The Supreme Court treated the uncertain timing of the document's creation as compounding, rather than neutralising, the relevance problem: the inability to pinpoint when the notes were written provided no basis to draw the note closer in time to the alleged offence (at [7]).
• Characterising evidence as going to "state of mind" rather than "character" does not automatically cure a relevance objection if there is insufficient temporal connection between the evidence and the facts in issue (at [3], [7]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) s 55

Cases
- Not stated