Supreme Court New South Wales Medium Neutral Citation: R v Rogerson; R v McNamara (No 17) [2016] NSWSC 38 Hearing dates: 9 February 2016 Date of orders: 09 February 2016 Decision date: 09 February 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [14] Catchwords: CRIMINAL LAW – Evidence – Evidence of a kind which may be unreliable – Where witness pleaded guilty and was sentenced to a term of imprisonment – Where witness offered to assist police and made a statement – Evidence that witness was motivated to assist by the prospect of a reduction in his sentence – Where representations were made to the Governor of NSW for reduction in sentence based on the assistance which was given – Where witness gave evidence in accordance with his statement – Where no decision had been made as to a possible reduction in his sentence as at the date on which he gave evidence – Where counsel for accused sought a direction under s. 165 of Evidence Act 1995 – Opposed by the Crown – Direction given Legislation Cited: Evidence Act 1995 (NSW) 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 Ms K Shead – Accused McNamara Solicitors: Director of Public Prosecutions - Crown Katsoolis and Co – Accused Rogerson Kings Law Group – Accused McNamara File Number(s): 2014/157408; 2014/156921 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. Counsel for the accused has made application that I give a direction pursuant to s 165 of the Evidence Act 1995 ("the Act") in relation to the evidence of the witness Chun Lok Lam ("Lam"). The issue arises in the following way: 2. Lam was previously charged with supplying prohibited drugs. He has given evidence that his solicitor retained the accused McNamara to act as an investigator and obtain statements from potential witnesses to assist him at his trial. Lam subsequently pleaded guilty and on 11 April 2014 he was sentenced to a term of imprisonment which he is currently serving. His appeal to the Court of Criminal Appeal was dismissed on 6 May 2015. 3. With the consent of Ms Shead, who appears for McNamara, the Crown has called Lam in its case to rebut the evidence of good character which will be led in McNamara's case. Lam has given evidence of (inter alia) conversations that he allegedly had with McNamara in which McNamara is said to have expressed some interest in dealing in drugs. Lam also asserts that there was an occasion which McNamara suggested to him that he (McNamara) would shoot Lam in the leg for the purposes of securing an adjournment of Lam's trial which was then pending. These assertions are denied by McNamara. Lam has been extensively cross-examined, and his credit has been put in issue. 4. Lam confirmed (commencing at T279) that when he learned about the disappearance of the deceased he contacted his solicitor, Ms Jasmine Lau who, in turn, contacted the police. In light of Lam's evidence I am satisfied that his primary motivation for contacting his solicitor was the possibility of deriving some benefit or other from assisting the police by providing them with information which was relevant to the circumstances of the deceased's disappearance. So much is clear, in my view, from that passage of Lam's evidence which commences at T280 L17 where, when asked by Ms Shead when it was that he first learned of the possibility that a benefit could be forthcoming to him if he gave evidence, he replied: "Well in fact I think I was the one who asked about it. And I'm trying to think how I came to know about it. I think when I learn about the disappearance from my lawyer then I tried to ask about it." 1. That passage, in my view, is a clear indication that from the outset Lam had firmly in mind the possibility of deriving some benefit, perhaps in the form of a reduction in his sentence, in the event that he was to assist the police. There is further support for that conclusion in other evidence given by Lam (at T281 L5) where it was put to him that he knew of the possibility of a benefit being forthcoming in the event that he gave assistance. He said: "Well, I think I should put it this way: When I am applying for a reduction in sentence, I was aware of Jamie Gao's - well, as I understand it, your question is whether I am aware that if I help the police it would be helpful to get a reduction in my sentence. My answer to that is yes." 1. Statements made by the police which have been tendered in relation to this application, along with the evidence of Lam himself, establish that on 23 May 2014 police spoke with Ms Lau regarding the possibility of assistance being provided. Although, as events transpired, no issue of assistance was raised in the course of Lam's sentence proceedings (or in the proceedings in the Court of Criminal Appeal) it is clear that following the approach made through his solicitor to the police, Lam (and his brother) spoke with the police on 20 June 2014. On that occasion, Lam made a statement relating to the disappearance of the deceased. That statement contained the evidence which he has given in the present trial. He made a second statement on 10 February 2015. 2. On 3 June 2015, representations were made by the New South Wales Police to his Excellency, the Governor of New South Wales, that the royal prerogative of mercy be exercised so as to reduce Lam's sentence. It is not necessary for me to set out the terms of the submission which was made to the Governor. It is sufficient to note that the submission made specific reference to the assistance given by Lam relating to the disappearance of the deceased. On the evidence before me, His Excellency has not yet determined the matter. 3. In all of these circumstances, Ms Shead has submitted that the provisions of s 165(1)(a) and/or (e) of the Act are applicable and that a direction ought be given to the jury that the evidence of Lam may be unreliable. Even if I came to the conclusion that neither provision applied, Ms Shead submitted that the matters referred to in s 165(1) were not exhaustive and that the direction would remain appropriate. Ms Shead submitted that the evidence established that Lam was motivated to assist the police by the possibility of deriving a benefit in the form of a reduction in his sentence. She submitted that this possibility remained given that, on the evidence, His Excellency had not determined the matter. 4. The Crown has submitted that the circumstances of the present case do not attract the application of s. 165. The Crown accepted that a direction under s 165 is typically given when a discount is given to a witness in respect of his sentence in recognition of assistance, or in circumstances where a witness is indemnified against prosecution as a consequence of giving assistance and giving evidence. However, the Crown submitted that the circumstances of the present case were quite different. 5. The Crown further submitted that the contents of telephone conversations to which Lam was a party, which are in evidence before me and in which Lam makes assertions against McNamara in terms which are consistent with his evidence, support a conclusion that the evidence is not unreliable at all. Finally, the Crown submitted that to invoke the provisions of the section would give a "degree of judicial imprimatur" to the proposition that the evidence was unreliable, and would support a rejection of Lam's evidence by the jury. 6. Much has been said regarding the interpretation of s 165 of the Act. There appears, in particular, to be differing approaches to the interpretation of the phrase "evidence of a kind which may be unreliable" as it appears in s. 165. The more recent authorities seem to favour the adoption of a narrow interpretation but it is not necessary for me to deal with that issue in the circumstances of the present case. 7. In my view, the position in the present case is quite clear. When Lam initially raised with Ms Lau the possibility of assisting police he had firmly in mind the possibility of deriving some benefit, in terms of a reduction in his sentence, as a result of doing so. There remains a possibility that some benefit will, in fact, be derived. Although those circumstances do not fall within any of the categories of evidence defined in s. 165(1), they are such as to give rise to the possibility of Lam's evidence being unreliable. 8. I am unable to accept the Crown's submission regarding the suggested effect of any warning. In particular, I am not able to accept the submission that a warning would give the "judicial imprimatur" to which the Crown referred. The terms of the warning as they appear in the Criminal Trial Bench Book (which I propose, in general terms, to adopt) will make it clear to the jury that the warning is being given not because I, as the trial judge, have formed any view about the evidence, but because the law requires that such warning be given. The jury will also be told, in express terms, that the warning should not be interpreted as amounting to a statement that the evidence is unreliable. 9. In the course of submissions Ms Shead provided a draft direction which she urges me to adopt. The terms of that draft are extensive. They make a number of references to matters which, in my view, have no application to the current trial. Subject to any further submissions that any party may wish to make, I propose to give the jury the direction which has been sought, on the basis that Lam's evidence may be unreliable because of the circumstances in which he Lam approached the police and provided a statement, the possibility of a benefit being (and remaining) firmly in his mind. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2016