Citation: R v Rogers (No 4) [2019] NSWSC 686
Court: Supreme Court of New South Wales
Date: 8 May 2019
Judge(s): Lonergan J
Background
The accused was charged with the murder of his wife on 13 September 2016. In the lead-up to trial, the Crown sought to lead evidence from five witnesses to establish that the accused had a dominating or controlling nature in the relationship.
Much of the contested evidence consisted of statements made by the deceased to friends and family before her death, and opinion-style assertions by those witnesses characterising the accused's behaviour. The accused objected to the admissibility of several passages from the statements of five witnesses: Ms McCormack, Mr Walker, Ms Bertoldo, Mr Harris, and Mr Langham.
Lonergan J ruled on each objection before those witnesses were called, determining whether the material satisfied the hearsay exceptions under section 65(2) of the Evidence Act 1995 or should otherwise be excluded under section 137.
Legal Issues
- Whether representations made by the deceased to various witnesses satisfied the hearsay exceptions in sections 65(2)(b) or 65(2)(c) of the Evidence Act 1995, given that the deceased was unavailable to give evidence.
- Whether certain opinion-style assertions characterising the accused as "dominating" or "domineering" had sufficient probative value to be admitted, or whether their probative value was outweighed by the danger of unfair prejudice under section 137.
- Whether certain evidence was relevant within the meaning of section 55 of the Evidence Act 1995.
Decision
Issue 1: Representations by the deceased to Ms McCormack
The court found that the deceased's representations regarding the accused's controlling behaviour, as recounted by Ms McCormack, did not satisfy section 65(2)(b) because there was no evidence about when the events described had occurred. Without that information, the court could not determine whether the representations were made shortly after the asserted facts, as that provision requires (at [10]-[12]). Section 65(2)(c) was also unsatisfied: the circumstances, including an acrimonious relationship breakdown and the deceased's extramarital affair, did not make it highly probable that the representations were reliable (at [11]-[13]).
The court also excluded, under section 137, a passage in Ms McCormack's statement that offered a general value judgment that the accused had engaged in dominating behaviour without identifying any admissible supporting examples. The probative value of that assertion was outweighed by the danger of unfair prejudice to the accused (at [19]).
Issue 2: Representations regarding financial control
The deceased's representations to Ms McCormack that the accused controlled all finances, and that her wages had gone into an account he controlled, were excluded. The court found that the timing of the representations was unspecified, the context of the deceased conducting an affair and complaining to a friend provided motivation to misrepresent, and neither the section 65(2)(b) nor the section 65(2)(c) requirements were met (at [20]).
Issue 3: Opinion evidence from Mr Walker, Ms Bertoldo, and Mr Harris
The court excluded Mr Walker's bare assertion that he would describe the accused as "domineering" under section 137, as no examples of the behaviour were provided (at [21]). A passage in Mr Walker's statement about the deceased discovering that money had gone from bank accounts was excluded as likely second-hand hearsay, with no satisfactory basis identified to bring it within a section 65(2) exception (at [24]). Ms Bertoldo's assertions that the accused was "a domineering figure" and "wore the pants" were excluded under section 137, as the only identified example (the accused purchasing a car without consulting his wife) was insufficient to support such a broad characterisation (at [27]-[28]). Mr Harris's assertion that the accused was "controlling" in respect of finances and decision-making was excluded because it stated no basis whatsoever for the conclusion and its probative value was negligible against the risk of unfair prejudice (at [30]-[32]).
Issue 4: Representations by the deceased to Mr Langham
The representations made by the deceased to Mr Langham, her extramarital partner, were found inadmissible. The court rejected the Crown's argument that conversations during visits to Tasmania in mid-July 2016 satisfied the "shortly after" recency requirement in section 65(2)(b). The court also found that the circumstances, including the deceased's likely motivation to seek sympathy from her partner, did not make the representations unlikely to be fabrications under section 65(2)(b) or highly probable to be reliable under section 65(2)(c). The entire contents of the contested paragraphs of Mr Langham's statement were ruled inadmissible (at [34]-[40]).
Orders Made
- The representations and evidence in issue were excluded across each of the five witnesses' statements, with individual rulings as set out in the judgment.
Key Takeaways
- Under section 65(2)(b) of the Evidence Act 1995, a deceased's representation must have been made shortly after the asserted fact occurred. Where there is no evidence at all about the timing of those underlying events, the provision cannot be satisfied, regardless of whether the representation itself appears credible (at [12]).
- The "unlikely to be a fabrication" test in section 65(2)(b) and the "highly probable to be reliable" test in section 65(2)(c) require examination of the surrounding circumstances, not just the apparent accuracy of the representation. Circumstances including an acrimonious separation and an extramarital relationship can weigh against both tests being satisfied (at [11]-[13], [35]).
- Bare characterisations of a person as "domineering" or "controlling," offered without identified factual examples, are vulnerable to exclusion under section 137 where their probative value is found to be outweighed by the danger of unfair prejudice to the accused (at [19], [21], [32]).
- Where a witness's assertion about another person's behaviour must logically have derived from representations made by the deceased, that assertion constitutes hearsay and requires a statutory exception before it can be admitted (at [17]).
- A representation made by a deceased person to an extramarital partner, in circumstances where the deceased had motivation to seek sympathy or justify her conduct, does not readily satisfy the section 65(2)(b) or (c) exceptions, even where some recency of the conversation can be established (at [38]-[40]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 ss 59, 65(2), 137
Cases
- Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868