Supreme Court New South Wales Medium Neutral Citation: R v Rogerson; R v McNamara (No 40) [2016] NSWSC 389 Hearing dates: 31 March 2016 Date of orders: 31 March 2016 Decision date: 31 March 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [14] Catchwords: CRIMINAL LAW – Evidence – Evidence of images on phone and computer of the deceased – Whether evidence should be excluded 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. Numerous references have been made in the course of the evidence of this trial about the deceased allegedly being a member of a Triad gang. The proposition has been put by Ms Shead, who appears on behalf of McNamara to a number of witnesses. The vast majority of them have either expressly disagreed with the proposition, or disavowed any knowledge of it. 2. As I understand it, the accused McNamara will give evidence that the deceased in fact told him that he was a member of a Triad gang. This evidence will be relied upon, amongst other things, as evidence going to various fears that the accused is said to have held. 3. It is against that background that Ms Shead has sought to tender four separate documents which are MFIs 130, 131, 147 and 148 on the present application. 4. MFIs 130 and 131 are copies of photographs found on one of the deceased's phones. Although the images are not completely clear, they depict quantities of drugs, quantities of cash, a person constrained in some type of body bag, a pistol and a box containing weapons. There is also an image of a bloodied hand. 5. MFI 147 is another series of images taken from the deceased's phone. There is an image of a person wearing a T-shirt bearing the words "Lok Boys". There are then two photographs of a group of persons, the members of whom cannot be identified, and one of whom appears to be carrying a machine gun. 6. MFI 148 is a series of screen shots downloaded from the deceased's phone onto his computer. The screen shots relate to an incident, the date of which is not specified, which is said to have occurred in Chinatown in Sydney and which was described as "a violent clash between a group of door men and up to 20 Asian males". The article makes reference to injuries sustained by persons in that incident. It also makes reference to Triad based crime gangs. 7. Ms Shead has submitted that this evidence is relevant in order to corroborate what is expected to be McNamara's assertion that the deceased told him that he was a member of a Triad gang. She submitted that when viewed as a whole the nature of the images was such as to reflect more than a passing interest in gang activities. Ms Shead also submitted that in the event that it was put to McNamara that he had fabricated evidence of what the deceased is said to have told him about his (i.e. the deceased's) gang involvement, the evidence would be relied upon to rebut that assertion. 8. The Crown objected to the evidence, as did Mr Thomas. Both the Crown and Mr Thomas pointed to the fact that there was no evidence, to establish how or when the images made their way to the deceased's phone and computer respectively, nor was there any evidence of how long they had been there. 9. I am satisfied that the evidence is relevant according to the test set out in s. 55 of the Evidence Act 1995 (NSW) ("the Act"), although the relevant is marginal at best. In the circumstances, and for a number of reasons, I have come to the view that the evidence should be excluded under s. 135. 10. Firstly, as both the Crown and Mr Thomas submitted, there is no evidence as to the circumstances in which any of the images found their way to the deceased's phone and computer. As I observed in the course of argument, in this day and age of advanced technology it is not uncommon for unsolicited material to be received by one person from another. Mere receipt, and even storage, of material received in that way does not necessarily evidence even an interest, let alone an involvement, in the subject matter. 11. Secondly, and as I have observed, the images themselves are of poor quality and unclear. 12. Those factors, in my view, combine to give rise to a situation where whatever limited probative value the evidence might have is substantially outweighed by the danger that it could be misleading or confusing. For those reasons the evidence will be excluded at this stage. 13. However, as I have noted in the course of giving these reasons, one of the bases upon which Ms Shead argued that the evidence should be admitted was that it may be relevant to rebut a particular suggestion that may be put to McNamara in the course of cross-examination. As I pointed out to Ms Shead, if that situation arises, and subject to any other relevant considerations that might also arise in the meantime, it may be open to her to seek to lead the evidence in re-examination. It would be premature to determine that issue at this stage, given that the proposition upon which it depends has not been put. Accordingly, I will leave this question open. Ms Shead may choose to re-visit it if and when circumstances render it appropriate to do so. 14. For the time being the evidence is excluded. ********** 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