Supreme Court New South Wales Medium Neutral Citation: R v Rogerson; R v McNamara (No 29) [2016] NSWSC 165 Hearing dates: 2 March 2016 Date of orders: 02 March 2016 Decision date: 02 March 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [21] Catchwords: CRIMINAL LAW – Practice and Procedure – Suggested impermissible reference by the Crown Prosecutor to a gun when leading evidence from witness – Whether such reference in fact made – Whether jury should be discharged – Application to discharge jury refused 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. Yesterday the Crown called Jessica McNamara to give evidence. Ms McNamara is the daughter of the accused McNamara and has given evidence of observations she made, of both of the accused, on 20 May 2014 when they were in the lounge room of the premises that she shared with her father. That was the same day on which the deceased was killed. Accepting the Crown case, and accepting the evidence which has been given thus far, Ms McNamara's observations took place only a matter of hours after the deceased was shot. 2. Part of the evidence of Ms McNamara was that she observed the accused Rogerson to be sitting in the lounge room of the premises, in the course of which he is alleged to have said that McNamara, "had really lovely lovely girls", that "he had such nice daughters" and that "they were really lovely lovely girls, lovely lovely daughters", (see T1439 L50 and following). 3. Ms McNamara went on to say (commencing at T1440 L24) that when those words were said by Rogerson he was "touching his right pocket of his trousers" with his right hand and "was touching it and it was like a tapping, rubbing motion". 4. Commencing at T1440 L41 Ms McNamara was asked what part of his body Rogerson was touching. She nominated his right pocket. She said that she was less than a metre away from Rogerson at the time. When asked (at T1441 L4) to describe what she saw Rogerson touching she answered "it was like a lump". 5. The transcript then records the following question (at T1441 L8): "Q. Are you able to describe the colour of the pants that he was wearing?" 1. Mr Thomas objected. With the benefit of the running transcript that we have in this trial I noted (at T1441 L14) that the question was "Can you describe the colour of the pants he was wearing?" Mr Thomas then observed that he had "thought" that he heard the Crown Prosecutor say "something else". I allowed the question as it was transcribed. McNamara said she was unable to recall anything further. 2. As I understand it, and subject of course to whatever further evidence may be given in the trial, the Crown will ultimately put to the jury that Ms McNamara's observations are consistent with Rogerson having a gun in the right pocket of the trousers that he was wearing on that day. The Crown will ask the jury to infer that the lump that Ms McNamara described was a gun. The Crown may call in aid of that submission the fact that there is evidence of gunshot residue being located in the pocket of trousers Rogerson was wearing at that time. 3. Upon the resumption of proceedings this morning, Mr Thomas raised an issue as to that passage of the transcript at T1441 to which I have referred at [5]. He informed me that both he and Rogerson (the latter having the use of a "hearing loop" in Court for the purposes of following the proceedings) had heard the Crown Prosecutor use the word "gun" when asking that question. 4. When the matter was raised by Mr Thomas, the Crown denied using the word "gun". Ms Shead indicated that she had heard a sound consistent with a "G". Unbeknown to me, although the proceedings are not being sound recorded, there is in fact a recording made of the proceedings for the benefit of the court reporters who are undertaking the preparation of the transcript. With the consent of all parties, the recording of what appears at T1441 was made available to counsel for each of the accused, as well as the Crown. I also listened to that part of the recording. 5. As I indicated on the resumption of the proceedings after that opportunity had been given to all of the parties, I heard the Crown make a sound consistent with the letter "G". I did not hear the word "gun". The word that I heard, which appeared to start with a "G", was not distinct but it sounded to me to be a word of more than one syllable. Having listened to the recording several times, what I heard was consistent with the word "garment". That interpretation would seem consistent with the import of the question that was being asked, namely, the Crown seeking a description of the colour of the trousers that Rogerson was wearing at the time. 6. The Crown Prosecutor indicated that having had the benefit of listening to the recording, the word that he heard sounded like the word "garment" although he accepted that it was somewhat indistinct. 7. The Crown went on to explain that he had been on notice that there may be some issue about whether or not Rogerson was wearing long or short pants at the time and that what he was attempting to do, in fairness to Mr Thomas and Rogerson, was to lead the evidence in as neutral a form as possible. I should say, to the extent that it may have been suggested in argument, that I do not perceive any impropriety whatsoever on the part of the Crown. 8. Ms Shead having heard the recording informed me that she had heard the word "garment", although she too agreed that it was indistinct. 9. Mr Thomas acknowledged the poor quality of the recording but told me that Rogerson had instructed him that he heard the word "gun". Rogerson has not given evidence on this application. Mr Thomas asserted, in direct terms, that he also heard the word "gun". I infer that he made that assertion after having had the benefit of hearing the recording. If so, it can only be said that Mr Thomas' account of what he heard is generally at odds with the account of the other parties. It is also at odds with what I heard. 10. Mr Thomas submitted that even if the word "garment" had been used, there remained a possibility that some of the members of the jury may have thought that they heard the word "gun". 11. In these circumstances, Mr Thomas made an application that the jury be discharged. He submitted that there was a risk that at least some of the members of the jury heard a sound consistent with that made by the letters "gu", and that this gave rise to what he submitted was the very real prospect that they heard, or at least thought they heard, the word "gun". Mr Thomas pointed out that his objection to the question was immediate, and that this was consistent with he having immediately perceived that the word "gun" was used. 12. The Crown opposed the application that the jury be discharged. The Crown submitted that on the evidence before me both Mr Thomas and Rogerson had been conclusively proved to be wrong about what was said. The Crown pointed, in particular, to the context in which the question was being asked and submitted that the suggestion that the word "gun" had been used was completely at odds with that context. 13. Ms Shead, took no particular position in relation to the application. However she pointed out that if what was heard was indistinct on the recording, but if a conclusion were reached that the word "gun" had not been used, the jury (being closer to the Crown Prosecutor) would have been in a better position to hear what the Crown had actually said. That submission, in my view, has some force. 14. In my view there is no risk of the kind postulated by Mr Thomas. I am satisfied on the evidence which has been placed before me (namely the recording) that whatever word was used by the Crown Prosecutor it was not the word "gun". The Crown Prosecutor, in asking the question at T1441 L8, was seeking to obtain a description of clothing. It would seem to me, although one does not have to reach a definitive conclusion about it, that the inherent likelihood is that the word "garment" was in fact used. That appears to me to be consistent with the import of the question that was being put. 15. Further, and although the recording is not entirely clear, what can be said is that the word that the Crown used starting with the letter G had more than one syllable. That is completely inconsistent with the use of the word "gun". Accepting that to be the case, and for the reasons that Ms Shead pointed out, the members of the jury being closest to the Crown Prosecutor were in a far better position to hear what was said. For the reasons that I have outlined, I am satisfied on the evidence that the word "gun" was not used. 16. As a consequence, I am satisfied that the jury did not hear that word. For all of those reasons, there is no danger of unfair prejudice to the accused Rogerson which would warrant the jury being discharged, and the application is refused. 17. The recording of the relevant question at T1441 L8 will be Exhibit 1 on this application and a copy of it will be preserved in the event that it is required to be listened to at some other time. It would seem clear that there will have to be some errata noted in respect of the question which is recorded in the transcript at T1441 L8 because what is recorded at that line does not accurately represent what was said. That, of course, is not in any way a criticism of the court reporters who have done an impeccable job in providing a transcript to the court. The limited errata which are noted each day, and the generally minor nature of those errata, is testament to the reporters' accuracy. ********** 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