Supreme Court New South Wales Medium Neutral Citation: R v Rogerson; R v McNamara (No 33) [2016] NSWSC 247 Hearing dates: 15 March 2016 Date of orders: 15 March 2016 Decision date: 15 March 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [13]-[14] Catchwords: CRIMINAL LAW – Evidence – Evidence of statement made by accused – Where statement relied upon by the Crown as a lie – Whether evidence of the statement should be excluded – Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused – Evidence admitted Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Zoneff v The Queen [2002] HCA 28; (2002) 200 CLR 234 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. The Crown proposes to call Steven John Farley to give evidence. Mr Farley is a hotelier who has been a close acquaintance of the accused Rogerson for some time. 2. On 25 May 2014 Mr Farley was contacted by Rogerson. They made arrangements to travel to Redcliffe in Queensland to watch a boxing match. They did so, and socialised together afterwards. 3. On the following morning a news broadcast reported that the NSW Police wished to speak with Rogerson in relation to the disappearance and death of the deceased Jamie Gao. In that regard, a statement made by Mr Farley records the following (at paragraph 7): "The following morning I became aware that Roger spoke with New South Wales Police the previous night, and that the police wished to speak with him over his knowledge surrounding the disappearance of a young man the previous week. The matter was all over the news by this stage. Roger denied knowing anything about the missing man or having any involvement in his disappearance or kidnapping." 1. The Crown sought to press the final sentence of that paragraph as evidence of a lie told by the accused Rogerson. Ms Shead, who appears on behalf of the co-accused McNamara, supported the admission of the evidence. Mr Thomas, who appears on behalf of Rogerson, objected to it. 2. Because of the oblique (and inadmissible) form in which the final sentence in paragraph 7 of Mr Farley's statement was phrased, the parties agreed that it was appropriate to hear evidence from Mr Farley on the voir dire in relation to that aspect of his evidence. 3. On the voir dire Mr Farley was asked whether or not he had any conversation with Rogerson about the NSW Police having been in contact with him. Mr Farley said that Rogerson had said that the police had contacted him, following which he said (commencing at T2088 L3): Q. Did he tell you what they wanted to speak to him about? A. Well, it was on the news, we are listening to it on the news Q. What was on the news? A. Roger Rogerson was wanted in connection with a kidnapping. Q. Did he say anything about that to you? A. He said he didn't know anything about it. Q. What were his words? A. 'I don't know anything about it.' 1. The last statement attributed to Rogerson by Mr Farley in that passage of the evidence, namely the words "I don't know anything about it", constitutes the denial to which Mr Farley referred in paragraph 7 of his statement which the Crown seeks to lead. The Crown submitted that the evidence was admissible on the basis that it constituted a lie. The Crown's primary position appeared to be that the statement was a lie which constituted evidence of a consciousness of guilt on the part of Rogerson. However, I understood the Crown to make an alternative submission that the statement was evidence of a lie going to Rogerson's credit. The Crown submitted that on either basis the evidence was admissible and there was no danger of unfair prejudice justifying its exclusion pursuant to s. 137 of the Evidence Act 1995 (NSW) ("the Act"). 2. Ms Shead submitted that the evidence was admissible, either as an admission made by Rogerson or alternatively as a statement about which he could be cross-examined as to his credit. Ms Shead submitted that on either basis the evidence was properly admissible, and she supported the Crown's submission that there was no unfair prejudice which would justify its exclusion. 3. Mr Thomas accepted that the evidence was relevant but pressed for the exclusion of the evidence under s. 137 of the Act. He submitted that the context in which the statement was made was vague, and that its admission would invite the jury to speculate about the terms of what was said. 4. Section 137 of the Act mandates a refusal to admit evidence adduced by the Crown if its probative value is outweighed by the danger of unfair prejudice to the accused. Whilst I have some doubt about whether Rogerson's statement is a lie capable of amounting to evidence of a consciousness of guilt, that is not an issue that I am required to determine at the present time. In my view, at the very least, the evidence is capable of going to the issue of Rogerson's credit. 5. In seeking exclusion of evidence under s. 137 of the Act, an accused bears the onus of satisfying the court that danger of unfair prejudice from the evidence outweighs its probative value. The section is directed, not to evidence which is simply prejudicial, but to evidence which is unfairly so. 6. In my view, the probative value of the evidence is substantial and its admission would not give rise to the danger of any unfair prejudice to Rogerson. I do not accept the submission advanced by Mr Thomas that the context in which the statement was made is in any way vague. Mr Farley's evidence on the voir dire tends positively against that submission. The statement attributed by Rogerson was, on Mr Farley's evidence, clear and unequivocal in its terms. It is capable of supporting a conclusion that as at 26 May 2014, Rogerson was denying any involvement in the disappearance of the deceased. That is significant in the light of the evidence adduced by the Crown in its case thus far, particularly exhibit Q. It would be open to the jury to conclude on the basis of such evidence that Rogerson's denial of involvement in the deceased's disappearance was false. 7. I am also not persuaded that if the evidence is admitted it will be open to any misuse by the jury, or will give rise to the possibility of the jury engaging in any speculation. The evidence, as I have said, is in clear and unequivocal terms. For all of those reasons I am not persuaded that the probative value of the evidence is outweighed by the danger of unfair prejudice to Rogerson. Accordingly, I propose to admit it. 8. I should also add that if the conclusion is ultimately reached that the statement constitutes a lie going to Rogerson's credit, the jury will be directed in accordance with the decision in Zoneff v The Queen [2002] HCA 28; (2002) 200 CLR 234. Such a direction will make clear how the evidence is to be treated and will serve to eliminate the possibility of its misuse by the jury. ********** 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: 23 April 2018