Supreme Court New South Wales Medium Neutral Citation: R v Rogerson; R v McNamara (No 48) [2016] NSWSC 479 Hearing dates: 20 April 2016 Date of orders: 20 April 2016 Decision date: 20 April 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [14];[19] Catchwords: CRIMINAL LAW – Evidence – Documentary evidence – Discretionary exclusion 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. The accused McNamara has, in the course of his evidence, made reference to communications that he had with Rogerson whilst they were in custody. Part of McNamara's evidence is to the effect that in the course of that correspondence, Rogerson proposed that they construct a false defence to the charges which had been brought. 2. Commencing at T3253 L20 McNamara gave evidence that the correspondence between he and Rogerson took place in various forms, one of which was a "case summary" which had been written by Rogerson, and another of which was a document in the form of questions that he (McNamara) wrote and answers that Rogerson gave in response. 3. It is in that context that Mr Wendler now seeks to tender a number of documents. There is no dispute, in the case of each of the documents, that they are either wholly or partly in Rogerson's handwriting. 4. The documents sought to be tendered were marked for identification 173 to 177 inclusive. As events have transpired, documents MFI 175 and 176 are no longer pressed. The parties agree that MFI 177 can be tendered on the basis that the tender includes a copy of the Crown Case Statement (MFI 177 being a document that purports to reply to that statement). It is also agreed between the parties that in respect of MFI 177( and in respect of each of the remaining two documents that may be admitted into evidence) it will be necessary for me to direct the jury as to the purpose for which the particular document is tendered, and the use to which it can be put. 5. It is common ground that any such direction would include the jury being directed that the document is not being tendered as evidence of the truth of its contents but is relied upon as relevant to the issue of duress raised by McNamara, and to establish that in terms of the construction of a defence, it was Rogerson who was "controlling" the relevant events. 6. I turn firstly to MFI 173. That is a document headed "Cross X" and dated 13 November 2014. It is in the form of questions and answers. The questions are in the handwriting of McNamara and the answers are in the handwriting of Rogerson. 7. In the course of argument, Mr Wendler made it clear that paragraphs 3 and 5 in that document were not pressed. 8. The Crown submitted that the contents of MFI 173 were clearly relevant to the issues to which I have referred. The Crown further submitted that the document provided some support for the proposition that Rogerson was, in effect, in control of the circumstances surrounding the alleged construction of a defence. 9. The Crown also submitted that the document was evidence of significant and serious post offence conduct on the part of both of the accused, and that there was an inference available that both were engaged in constructing a false defence. 10. Mr Thomas, who appears for Rogerson, submitted the evidence was not relevant on any of the bases on which it was sought to be tendered. He submitted the document was open to both misuse and confusion, and that its probative value was substantially lessened because of the date on which it had apparently been prepared, which was some six months or thereabouts after the deceased had been shot. 11. In my view the document (bearing in mind those parts which are to be excluded from it) is clearly relevant. It is relevant to the issue of duress which has been raised by McNamara. It is also relevant to the issue of "control" on the part of Rogerson to which Mr Wendler referred, such control being part of the issue of duress which is raised. I also consider that the document is relevant, in the sense described by the Crown, as evidence of post offence conduct by both of the accused. 12. In each of those respects, I have come to the view that the probative value of the document is significant. I do not accept that the date on which the document was created lessens, to any degree, such probative value. 13. I am not satisfied that the probative value of the document is substantially outweighed, either by the danger that it may be unfairly prejudicial to Rogerson, or by the danger that it might be misleading and confusing. The circumstances in which the document came into existence are, on the evidence before me at the present time, quite clear. There is no danger of the document being misused in those circumstances. I am also not satisfied that there is a danger of any unfair prejudice to Rogerson. Certainly, the document is prejudicial to Rogerson but in my view it is not unfairly so. Quite apart from any other consideration, the document is partly in Rogerson's own handwriting. 14. Accordingly, I propose to admit MFI 173 in its existing form. 15. MFI 174 is a document headed, "Thoughts Re Committal Hearing". It is addressed to McNamara, as is evident by the use of the word "Glen". It is dated 2 December 2014. The Crown submitted that this document was relevant on the same bases as those relied upon by Mr Wendler in respect of MFI 173. Mr Thomas submitted that in all of the circumstances, the document was not relevant at all, and that even if it was, there was a clear danger of it being misused. 16. On a reading of the whole of the document, it refers to a particular approach which, it seems, somebody (probably Rogerson) proposed in respect of a committal hearing. It is common ground that no committal hearing ever took place. 17. Further, the document makes reference to what might happen at a trial, and to the necessity for each of the accused to prove "that there is another side to this case - our side - which is the truth as to what actually happened". There are other references in the document (which have not been pressed) and which relate to what a Magistrate may or may not do at a committal proceeding, as well as what might transpire in respect of the question of bail. 18. In my view, the probative value of the document is low. This is partly due to the fact that it was prepared in relation to a procedure which never took place. The probative value of the document, such as it is, is substantially outweighed by the danger that it may be misleading or confusing if it were admitted. Even allowing for the limited basis on which it is sought to be tendered, and the limited use to which it could be put, it has the capacity to cause the jury to speculate about a number of matters which were proposed to in relation to the conduct of a committal hearing which never occurred. 19. Accordingly, I propose to reject the tender of MFI 174. ********** 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