R v Rogerson; R v McNamara (No 36) [2016] NSWSC 302

Supreme Court New South Wales

Medium Neutral Citation: R v Rogerson; R v McNamara (No 36) [2016] NSWSC 302 Hearing dates: 18 March 2016 Date of orders: 18 March 2016 Decision date: 18 March 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [9] Catchwords: CRIMINAL LAW – Evidence – Expert evidence of "street deal" value of drugs – Where no evidence that either accused intended to sell drug in "street deals"- Whether the probative value of the evidence outweighed by the danger of unfair prejudice – Evidence excluded in part 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. The accused are charged with murder, as well as supplying a large commercial quantity of a prohibited drug, namely methylamphetamine. The Crown seeks to lead expert evidence from Detective Sergeant Marc Scholtes of the value of methylamphetamine. Part of that evidence is objected to by Ms Shead, counsel for McNamara. In raising that objection, Ms Shead relied upon s. 137 of the Evidence Act 1995 (NSW). 2. In a statement of 25 August 2014 (at paragraph 27) Detective Scholtes set out a table of what he described as the "common quantities and price ranges" for methylamphetamine. In paragraph 36 he expressed the view that on the assumption that 2780gm of methylamphetamine in crystal or ice form was sold by the kilogram (or in other words, sold in bulk), a return of between $540,000 and $702,000 could be expected. No objection is taken by Ms Shead to that part of his evidence. 3. Having dealt with some other matters, the statement of Det. Scholtes continued (the following paragraphs being those to which Ms Shead objected): "37. As I referred to in paragraph 27 of my statement, 0.1gm street deals of methylamphetamine in crystal or 'ice' form range from $50 to $150. Assuming 2780g of pure methylamphetamine in crystal or 'ice' form was sold by 0.1g street deals one would expect a return of $1,390,000 and $4,170,000. 38. In my experience in the investigation of methylamphetamine supply, the purity of methylamphetamine hydrochloride at street level can vary greatly and ranges from 1% to 20%. For ease of calculation the following calculations are based on the combined purity of the substances being 70%. 39. As referred to in paragraph 27 of my statement, the wholesale value of methylamphetamine in diluted or powder form ranges between $70,000 and $110,000 per kilogram. Assuming 2780g of pure methylamphetamine hydrochloride had been diluted to methylamphetamine with a conservative purity of 10% to produce 19.46 kg of methylamphetamine (rounded down to 19.40 kg for ease of calculation and based on the range of $7,000 to $11,000 per 100g) and sold by the kilogram m, One would expect a return of between $1,358,000 and $2,134,000. 40. As referred to in paragraph 27 of my statement, 0.1 g street deals of methylamphetamine in diluted or powder form range from $50 to $100. Assuming 19.46kg (19,460g) of methylamphetamine was sold at 0.1g street deals, one would expect a return of between $9,730,000 and $19,460,000." 1. Ms Shead submitted that whilst there was no issue as to the witness' expertise, the evidence in paragraphs (37) to (40) inclusive was highly prejudicial. She submitted that it was based not only on variations and/or fluctuations in price, but upon complete speculation about what the accused were going to do with the methylamphetamine which is the subject of the counts of supply against them. 2. The Crown submitted that Det. Scholtes' opinion was evidence of what the accused potentially stood to gain from the alleged supply. The Crown submitted that the accused should not derive some unfair advantage based only on the proposition that they were to sell the methylamphetamine in bulk. It was submitted that there was an inference available that the accused were in fact going to "do something" with the drugs. 3. In my view, there are two difficulties in admitting the evidence to which objection is taken. 4. Firstly, as will be evident from paragraphs 37 and 38 of Det. Scholtes' statement, this part of his opinion is based on data which, to put it bluntly, varies wildly. 5. Secondly, there is no evidence that the accused were in fact going to engage in any supply of "street deals" of methylamphetamine. Apart from a jug and spoon said to have been purchased by McNamara around the time of the deceased's death, there is no evidence of either accused being in possession of any kind of "drug paraphernalia" which might be consistent with an intention to supply "street deals" of the drug. Indeed, whether in the circumstances of the present case the items purchased by McNamara could be properly described as "drug paraphernalia" is itself questionable. 6. For those reasons, I am satisfied that although relevant, the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. Accordingly, I propose to exclude it.