R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965

Supreme Court New South Wales

Medium Neutral Citation: R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 Hearing dates: 16 July 2015 Date of orders: 21 July 2015 Decision date: 21 July 2015 Jurisdiction: Common Law Before: Bellew J Decision: See paragraphs [40]; [81]; [93]; [94]. Catchwords: EVIDENCE – Tendency evidence – Where both accused charged with murder and supplying a prohibited drug – Application by one-accused to rely upon certain evidence as tendency evidence – Whether such evidence relevant to a fact in issue – Whether the evidence went to the credibility of the co-accused – Applicability of Part 3.6 of the Evidence Act NSW 1995 (NSW) – Application refused

PRACTICE AND PROCEDURE – Applications by each of two co-accused for separate trials – Where both accused charged with murder and supplying a prohibited drug – Where Crown case in respect of murder count based upon a joint criminal enterprise – Where murder count and supply count linked - Where majority of evidence relied upon by the Crown admissible against both accused in respect of both counts – Where one accused foreshadowed application to cross-examine co-accused about prior criminal convictions – Where that same accused was allegedly threatened by co-accused – General principles applicable to the exercise of the discretion to order separate trials – Both applications for separate trials refused

PRACTICE AND PROCEDURE – Application by one accused for an order that the counts of murder and supply prohibited drug be tried separately – Where counts inextricably linked – No justification for separation of counts – Application refused Legislation Cited: Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Ali v R [2005] HCA 8; (2005) 214 ALR 1 Amos v R [2014] NSWCCA 302 Destanovic v R [2015] VSCA 113 Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 Mac v R [2014] NSWCCA 24 R v Assim (1966) 2QB 249 R v Bedford [2011] QCA 43 R v Collie (1991) 56 SASR 302 R v Congressi (1974) 9 SASR 257 R v Dellapatrona; R v Duffield (1993) 31 NSWLR 123 R v Demirok [1976] VR 244 R v Demirok (1976) 8 ALR 452 R v Ditroia and Tucci [1981] VR 247 R v Fernando & Anor [1999] NSW 66 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Harbach (1973) 6 SAR 427 R v Ignjatic (1993) 68 A Crim R 333 R v Kearnes [2013] NSWSC 1139 R v Middis (NSWSC, 27 March 1991, unreported) R v O'Boyd (1991) 92 CR App R 202 R v Oliver (1984) 57 ALR 543 R v Rogerson (NSWCCA, 22 December 1990, unreported) R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 R v Rogerson (1992) 65 A Crim R 530 R v Rogerson [2005] NSWDC 22 R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592 R v Swan [2013] QCA 217 R v Webb and Hay (1992) 59 SASR 563 Webb and Hay v R [1994] HCA 30; (1994) 181 CLR 41 Category: Procedural and other rulings Parties: Regina – Crown Roger Caleb Rogerson – Accused Glen Patrick McNamara – Accused Representation: Counsel: Mr C Maxwell QC – Crown Mr G Thomas – Accused Rogerson Mr C Waterstreet – Accused McNamara