Citation: R v Rogers (No 6) [2019] NSWSC 688
Court: Supreme Court of New South Wales
Date: 21 May 2019
Judge(s): Lonergan J
Background
The accused stood trial for the killing of his wife. A key defence issue was substantial impairment, with the defence seeking to establish the accused's deteriorated mental and emotional state in the weeks leading up to the death.
A defence witness, a friend of the accused, proposed to give evidence that during a period of separation from his wife, the accused was "like a dead man walking." She accompanied that phrase with detailed physical observations: that he was pale, stooped, and "an emotional mess," in contrast to his usual upright, athletic bearing.
The Crown objected to the specific phrase "dead man walking," arguing it was inadmissible opinion evidence that fell outside the lay opinion exception and should in any event be excluded under the court's general discretion.
Legal Issues
- Whether the phrase "dead man walking" constituted opinion evidence under s 76 of the Evidence Act 1995 (NSW)
- Whether the evidence satisfied the lay opinion exception under s 78, specifically whether the opinion was "necessary to obtain an adequate account or understanding" of the witness's perception (s 78(b))
- Whether, even if technically admissible, the phrase should be excluded under s 135 as misleading, confusing, or unfairly prejudicial
Decision
Lonergan J accepted the Crown's submission that the s 78(b) necessity requirement was not met. Because Ms Douglas was able to provide a detailed, articulate physical description of what she had observed, the opinion phrase added nothing that was necessary to convey her perception. Relying on the High Court's reasoning in Lithgow City Council v Jackson [2011] HCA 36, the court noted that s 78 is designed for situations where the component observations are too fleeting or complex to be separately narrated, making the composite opinion the only practical vehicle for conveying the perception. That was not the position here.
The court found that Ms Douglas had already demonstrated, in her evidence at the first trial, that she could articulate the specific physical indicators underpinning her conclusion. The primary facts were neither too evanescent nor too complicated to be narrated individually, and so the necessity threshold under s 78(b) was not satisfied.
Independently, Lonergan J held that even if the phrase had cleared the s 78 hurdle, it would have been excluded under s 135(b). The phrase "dead man walking" is inherently ambiguous: it carries associations with death row prisoners (reinforced by a well-known film), could suggest the witness believed the accused was suicidal (a matter already in evidence), or could be read as a reference to his terminal illness. Those multiple possible interpretations created a real risk that the jury would speculate or misuse the evidence, with the probative value of the phrase being slight against that risk.
Orders Made
- The reference in the evidence of Rosalie Douglas to "dead man walking" is excluded.
Key Takeaways
- Under s 78(b) of the Evidence Act 1995 (NSW), a lay opinion is admissible only where it is necessary to obtain an adequate account or understanding of the witness's perception; where the witness can separately narrate the component observations, the necessity threshold is not met.
- The High Court's reasoning in Lithgow City Council v Jackson [2011] HCA 36 remains the touchstone: the lay opinion exception exists for perceptions whose constituent elements are too evanescent or complex to be individually described, not for conclusions that can be broken down into articulable physical facts.
- A witness who can already supply detailed, admissible physical descriptors of what they observed will not ordinarily satisfy s 78(b) simply because a composite phrase might also convey their impression vividly.
- Section 135(b) provides an independent basis for exclusion where the probative value of a phrase is slight and its ambiguity creates a material risk that the jury will speculate or be misled, even if technical admissibility might otherwise be established.
- The decision illustrates that colourful or idiomatic expressions, however naturally used by a witness, may fail both the necessity requirement of s 78 and the general discretion under s 135 when the same perception can be conveyed through concrete, verifiable observations.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 76, 78, 79, 135, 137
Cases
- Lithgow City Council v Jackson [2011] HCA 36
- R v Van Dyk [2000] NSWCCA 67