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Court of Criminal Appeal 16 July 2021

Rogerson v R; McNamara v R

[2021] NSWCCA 160

Also reported as (2021) 290 A Crim R 239
HomicideDrugs
EVIDENCE EVIDENCE ACT 1995 (NSW), SS 44(3), 43 CROSS EXAMINATION OF ONE ACCUSED BY ANOTHER PRIOR INCONSISTENT STATEMENT REPORT WAS A SUMMARY OF THE CO

Citation: Rogerson v R; McNamara v R [2021] NSWCCA 160
Court: Court of Criminal Appeal (NSW)
Date: 16 July 2021
Judge(s): Bell P, RA Hulme J, Beech-Jones J

Background

Two accused were convicted by a jury in 2016 of the murder of a young man at a self-storage facility in Padstow, and of supplying a large commercial quantity of methylamphetamine. The Crown alleged that both accused operated under a joint criminal enterprise to steal drugs from the deceased and kill him. One accused lured the deceased to a rented storage unit, while the other attended posing as the supposed drug purchaser. The deceased was shot and killed inside the unit, and both accused then worked together to dispose of the body at sea. The body was recovered six days later.

The Crown's case was entirely circumstantial, built on 29 separate circumstances spanning preparatory conduct, CCTV footage, and extensive post-offence concealment. Critically, the Crown could not prove which of the two accused had fired the fatal shots.

Each accused ran a "cut-throat" defence, blaming the other for organising the meeting and for shooting the deceased, while both denied the existence of any joint criminal enterprise to kill. Both were sentenced to life imprisonment for murder and 12 years for drug supply.

  • Whether the trial judge erred in precluding cross-examination of one accused by the other's counsel based on a NSW Crime Commission Information Report summarising statements made by that accused to the Commission.
  • Whether the verdicts were unreasonable or unsupported by the evidence.
  • Whether fresh evidence from a witness who came forward after sentencing gave rise to a miscarriage of justice.
  • Whether the trial judge correctly excluded evidence that one accused had admitted to the other his participation in several past homicides, offered to support a duress defence.
  • Whether a co-accused is a "party" within the meaning of s 135(a) of the Evidence Act 1995 (NSW), such that evidence unfairly prejudicial to a co-accused may be excluded under that provision.
  • Whether the standard of appellate review of a s 135 exclusion decision is the "correctness" standard or the more deferential House v The King discretionary standard.
  • Whether the trial judge erred in refusing to discharge the jury after inadmissible prosecution evidence was placed before it.
  • Whether the life sentences imposed were appropriate, and whether the sentencing judge's two-stage approach under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was erroneous.

Decision

Cross-examination using the Crime Commission Information Report (Rogerson Ground 1)

The trial judge made an erroneous ruling under s 192A of the Evidence Act 1995 (NSW), precluding all questioning about or using the contents of a Crime Commission Information Report. That report was a summary, prepared by a Commission officer, of statements one accused had made at a meeting with the Commission shortly after the murder. The Court of Criminal Appeal held that, while counsel could not expressly or impliedly refer to the report itself (because it was merely a summary), two avenues of questioning remained available. First, counsel could have used the contents under s 44(3) to contradict that accused's trial evidence. Second, with leave under s 104(6), counsel could have questioned the accused about the oral statements he made to the Commission as prior inconsistent statements under s 43, and could then have rebutted any denial by calling other persons present at the meeting under s 106. The trial judge's blanket preclusion of these avenues was wrong in law and constituted a miscarriage of justice under both the second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW).

Despite the error, the Court applied the proviso in s 6(1) and dismissed the appeal. The jury had comprehensively rejected the credibility of both accused, and the Court was satisfied that guilt had been proved beyond reasonable doubt. The error went only to the credibility of the co-accused and did not cause a substantial miscarriage of justice. The verdicts were also found to be well open on the circumstantial evidence, notwithstanding the Crown's inability to identify which accused pulled the trigger.

Fresh evidence (Rogerson Ground 5)

A witness came forward after sentencing claiming to have given a firearm to the co-accused before the murder. The Court found this evidence was "fresh" in the relevant sense, as the witness had not come forward at trial. However, the evidence was not "apparently credible." The witness had a significant record of dishonesty, was a longstanding associate of the accused, his account was inherently improbable, and it was inconsistent with other trial evidence. The Court was also clearly influenced by the circumstances in which the witness came forward. No miscarriage of justice was established and this ground was dismissed.

Exclusion of evidence of past admissions about prior homicides (McNamara Ground 1)

The trial judge excluded evidence that one accused had told the other, in conversations before the murder, that he had participated in multiple past homicides. The evidence was offered by the second accused to support a duress argument: that he had assisted in concealing the murder because he feared the first accused. The Court of Criminal Appeal confirmed the exclusion was correct. The evidence had limited probative value on the duress case because other evidence in the trial provided much stronger support for that argument. Its limited probative value was substantially outweighed by the highly prejudicial effect the evidence would have had on the first accused in the context of a joint murder trial. The Court confirmed that a co-accused is a "party" within s 135(a) of the Evidence Act, meaning the section can operate to exclude evidence that would be unfairly prejudicial to a co-accused, not only to the party seeking exclusion. The Court also declined to follow a previous decision of the Court of Criminal Appeal to the contrary.

The Court further held that s 135 involves an evaluative judgment rather than an exercise of judicial discretion. Accordingly, the appropriate appellate standard of review is a "correctness" standard, not the deferential House v The King standard applicable to discretionary decisions. An appellate court must decide for itself whether the evidence should have been excluded, subject only to the natural limitations inherent in appellate review.

Remaining grounds

McNamara's challenge to the refusal to discharge the jury following inadmissible prosecution evidence was dismissed. The impugned evidence would have had minimal effect in the context of the overall trial, the trial judge gave carefully crafted directions, and an agreed fact was tendered confirming the inadmissible evidence was incorrect. Both accused's sentence appeals were also dismissed. The Court upheld the sentencing judge's two-stage approach under s 61(1) of the Crimes (Sentencing Procedure) Act and found no error in the finding that the plan to kill the deceased had been formed well before the murder, a finding overwhelmingly supported by the evidence.

Orders Made

Both appeals were dismissed. The Court also made the following ancillary orders:

  • Any suppression order made was to operate throughout the Commonwealth of Australia.
  • The parties and the NSW Crime Commission were directed to file submissions (not exceeding four pages) by 21 July 2021 concerning paragraphs [308] to [413] of the judgment.
  • Access to the court file by a non-party is permitted only with the leave of a Judge of the Court, and only after the parties and the NSW Crime Commission have had notice and an opportunity to be heard.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a co-accused is a "party" for the purposes of s 135(a) of the Evidence Act 1995 (NSW), meaning a trial judge has power to exclude evidence that would be unfairly prejudicial to a co-accused in a joint criminal trial, not merely to the Crown or to the accused seeking exclusion.

  • Appellate review of a trial judge's s 135 exclusion decision proceeds on a "correctness" standard, not the more deferential House v The King standard. The evaluative nature of the s 135 judgment means an appellate court decides the question afresh, subject to natural limitations on appellate review.

  • Where a Crime Commission document is merely a summary of a witness's oral statements rather than a verbatim record, counsel cannot question the witness "about" the document, but may still use the contents to pursue prior inconsistent statement questioning under ss 43 and 106 of the Evidence Act without expressly or impliedly revealing the document's existence.

  • In dismissing both appeals despite identifying a genuine error of law, the Court applied the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW), reasoning that guilt had been proved beyond reasonable doubt and the jury's comprehensive rejection of both accused's credibility remained unaffected by the error.

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