R v Rogerson; R v McNamara (No 47) [2016] NSWSC 470

Supreme Court New South Wales

Medium Neutral Citation: R v Rogerson; R v McNamara (No 47) [2016] NSWSC 470 Hearing dates: 19 April 2016 Date of orders: 19 April 2016 Decision date: 19 April 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [9] Catchwords: CRIMINAL LAW – Evidence – Admissibility of document sent to one accused from another inmate – Whether evidence that the letter was written at the behest of the co-accused – Evidence rejected 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 Mr G Wendler – Accused McNamara

Solicitors: Director of Public Prosecutions – Crown Katsoolis and Co – Accused Rogerson AHA Taylor Lawyers – Accused McNamara File Number(s): 2014/157408; 2014/156921 Publication restriction: Nil

Judgment EX TEMPORE - REVISED 1. Counsel for the accused McNamara has foreshadowed an intention to lead evidence of parts of the content of a letter bearing a date 26 June 2015, said to have been received by McNamara whilst in custody. 2. To the extent that it is relevant for present purposes, the note, which is signed "Reesy", is in the following terms: "I got your min of (sic) Roger so I could write to say hello, I thought it mite (sic) lift your spirits up bit as well. Roger is missing you as well I think, I hope yous (sic) do well at court. It was good to meet you your (sic) a good bloke. You don't get many of them in jail. Well mate it was good talk to ya. I hope everything werks (sic) out for ya. Take care, Reesy." 1. The document is said to have been delivered to the accused in an envelope addressed to, "Glen McMarrara (sic) Silver-Water-Jail, min 541876". The rear of the envelope is endorsed "Jason Rees, 207972 Silver-Water-Jail". 2. Mr Wendler has indicated he does not intend to tender the document. However he seeks to elicit evidence of that part of its contents as outlined above. 3. Mr Wendler submitted that the evidence is relevant in general terms, to the issue of duress raised by McNamara. He submitted that the only real issue was whether or not it ought be excluded under s. 135 of the Evidence Act 1995 (NSW) ("the Act"). He submitted, in circumstances where there will be evidence identifying the type of envelope as one which is issued to persons in custody, that such a fact, along with the contents of the note, sustain an inference that the person who wrote it did so at the behest of Rogerson. 4. Evidence will also be sought to be led from McNamara as to his perception of what was written. I infer that if asked, McNamara will say that he perceived the content of the note to be a further threat. 5. Both the Crown and Mr Thomas objected to the admission of the evidence. Both submitted, in effect, that it ought be excluded on the basis that there was a danger of unfair prejudice which would flow to Rogerson, such unfair prejudice substantially outweighing any probative value the evidence might have. 6. Mr Thomas also raised the applicability of s. 87 of the Act although in light of the conclusion I have reached I do not need to consider the terms of that section. 7. I have some misgivings about whether the evidence could be said to be any way relevant. There is certainly no direct evidence that the letter was written by Mr Rees at the behest of Rogerson. It is that which would render the evidence relevant. Even assuming that hurdle were overcome (and I doubt that it is) it is my view that the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial Rogerson if it were admitted. In particular, the document is capable of more than one interpretation. Accordingly, I propose to reject the evidence.