Supreme Court New South Wales Medium Neutral Citation: R v Rogerson; R v McNamara (No 49) [2016] NSWSC 577 Hearing dates: 6 May 2016 Date of orders: 06 May 2016 Decision date: 06 May 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [17]; [21] Catchwords: CRIMINAL LAW – Evidence – Cross-examination – Cross-examination as to character – Whether question put to accused in cross-examination raised the character of the co-accused – Whether re-examination should be permitted allowing accused to express opinion of the character of co-accused – Re-examination not permitted Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Gabriel v R(1997) 76 FCR 279 Hadid v Australis Media Limited (No 14) NSWSC 5 November 1996, unreported PGM v R [2006] NSWCCA 310 R v Bartle [2003] NSWCCA 329 R v El-Kheir [2004] NSWCCA 461 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. In the course of the re-examination of the accused McNamara yesterday, an issue was raised by Mr Wendler (who appears for McNamara) regarding the permissible limits of one proposed area of re-examination. Having heard submissions from all counsel at that time, I concluded that the proposed re-examination should not be allowed and indicated that I would give my reasons this morning for reaching that conclusion. Those reasons now follow. 2. In order to put this matter in context it is necessary to briefly recount two particular passages of the cross-examination of McNamara by Mr Thomas, who appears for Rogerson. 3. Mr Thomas commenced (at T3553 L3) to cross-examine McNamara concerning the time at which he initially met Rogerson. He put to him that he had met Rogerson about five years ago, a proposition with which McNamara agreed. McNamara went on to agree (at T3553 L11) that this was in about 2011. 4. The cross-examination then turned to the fact that in 2012 McNamara had made arrangements with Rogerson to attend the launch of a book that he (McNamara) had written. Commencing at T3553 L41 the following evidence was given: Q. You invited Mr Rogerson to attend your book launch? A. Subsequently, yes. Q. And you gave him two copies of your books, that is a copy of each book? A. Yes. Q. Do you agree? A. Yes. Q. And you wrote in the front cover some words to him which made a reference amongst other things to you thanking him for his wisdom? A. For his? HIS HONOUR Q. For his wisdom? A. I would accept that, yes. 1. Subsequently, commencing at T3751 L30, the following evidence was given: Q. Can I show you these two documents here, please (shown). I asked you some questions previously concerning you penning the inside cover, I think it was, of the two books that you had authored at a book launch and giving them to Mr Rogerson? A. Yes. Q. Can you just read, please ‑ are they copies of what you penned on the inside of each of the books that you gave Rogerson? A. Yes. Q. Can you read the first one out? A. The "Dirty Work" inside jacket, "To Roger, thanks for everything", and I've signed it. And the second one "Savage Obsessions" in which he provided input "To Roger, my sincere gratitude for your advice and wisdom", and I've signed it. THOMAS: I tender it. HIS HONOUR Q. Mr McNamara are you able to tell me when you signed the inside cover of the "Dirty Work" book? A. Approximately, yes, would have been shortly after the release of "Savage Obsessions" so the first quarter, May 2012. Q. What about the inscription on "Savage Obsessions"? A. "Savage Obsessions" at the same time. 1. Copies of the covers of each of McNamara's books, bearing the respective inscriptions to which reference was made, became Exhibit R47. 2. Mr Wendler indicated that he wished to now re-examine McNamara in respect of matters said to arise from this evidence. He submitted that the effect of Mr Thomas' cross-examination was that he had raised Rogerson's character, so as to allow evidence to be given in re-examination which impugned that character. When I inquired of Mr Wendler (at T4061 L42) as to the precise evidence he would seek to elicit from McNamara if the re-examination were permitted, he explained that he would firstly ask McNamara whether he still held the opinion or belief that Rogerson was a "person of wisdom". Mr Wendler indicated that he expected, if that question were put, that McNamara's answer would be "no". Assuming that were the case, he indicated he would then ask McNamara why this was so. He indicated an expectation that McNamara would answer in terms "that the only wisdom that he received from (Rogerson) was how to effectively manipulate and fabricate the case in (Rogerson's) favour or collude with (Rogerson) in relation to the fabrication of the case" (at T4062 L1 to 4). 3. It was Mr Wendler's submission that in all of the circumstances such re-examination impugned Rogerson's character which was raised by the cross-examination, and that accordingly it ought be permitted. 4. The Crown submitted that viewed properly, Rogerson's character had not been raised at all. The Crown submitted that on a proper analysis of the evidence, the cross-examination was not directed to the issue of character, but was rather directed to issues relating to the nature and extent of the relationship between the two accused during the period leading up to the alleged commission of the offences. 5. The Crown also submitted that, in a broader sense, the proposed re-examination did not arise from cross-examination. 6. Mr Thomas, on behalf of Rogerson, generally supported the Crown's position. He emphasised that the cross-examination which was said to have raised Rogerson's character was to be viewed in its proper context. He pointed, in particular, to the opening address of counsel who then appeared for McNamara, who told the jury (at T69 L44) that the evidence would be that the two accused had met at a book launch. Mr Thomas explained that this assertion was always a matter of contention as far as Rogerson was concerned. He submitted that the cross-examination was directed towards establishing the fact that, contrary to what was asserted in the opening address, by the time of the book launch there already existed a friendship between the two accused. 7. Mr Thomas submitted that in these circumstances character had not been raised and that accordingly, the basis upon which the proposed re-examination was sought to be pursued had not been made out. He too submitted that the proposed re-examination did not properly arise out of the cross-examination of McNamara in any event. 8. Section 110 of the Evidence Act 1995 (NSW) ("the Act") is in the following terms: Evidence about character of accused persons (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. (2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character. (3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect. 1. For present purposes, given the issue that has been raised, the operative provision is s. 110(2). The principal issue is whether or not what was put by Mr Thomas in cross-examination amounted to adducing evidence in order to prove, either directly or by implication, that Rogerson was generally a person of good character. 2. The expression "adducing evidence" refers to leading evidence, be it in evidence-in-chief or cross-examination: Gabriel v R (1997) 76 FCR 279 at 297 (per Higgins J (as his Honour then was) Gallop and Mathews JJ agreeing). The phrase "adduced to prove" as it is used in s. 110 requires that the evidence be adduced with a subjective intention of proving good character: Gabriel (supra) at 297; R v Bartle [2003] NSWCCA 329. 3. In R v El-Kheir [2004] NSWCCA 461 Tobias JA at [50], in reference to Bartle (supra), observed that in order for evidence of good character to be "adduced" within the meaning of s. 110 there must be some proof of an intention, in the sense of a conscious decision, to raise the issue. Similar observations were made by Barr J in PGM v R [2006] NSWCCA 310 at [35]. In Bartle the Court deliberately refrained (at [146]) from exploring the issue of how, in a particular case, such subjective intention might be established. 4. In my view, when the evidence in the present case is read as a whole, it unequivocally points the cross-examination having been directed to the issue of the nature and extent of the relationship between the two accused, rather than being a conscious and deliberate attempt to raise the issue of Rogerson's character. Given that the proposed re-examination rested upon a conclusion that Rogerson's character had been raised, it should not be permitted. 5. In view of the conclusion that I have reached, it is strictly not necessary for me to consider whether the evidence sought to be adduced could be said to arise out of cross-examination in any broader sense. However, it should be noted that s. 39 of the Act, which relates to re-examination, has been interpreted as containing a limitation that there must be some ambiguity or distortion in evidence given in cross-examination to justify re-examination. 6. In Hadid v Australis Media Limited (No 14) (NSWSC 5 November 1996, unreported) Sperling J made a number of observations in respect of the position at common law as to re-examination, when compared with the position under s. 39 of the Act. His Honour observed that at common law the purpose of re-examination was not merely to remove ambiguities and uncertainties, but was allowed wherever an answer in cross-examination would, unless supplemented or explained, leave the Court with an impression which was capable of being construed unfavourably to the party calling the witness, and which represented a distortion, or incomplete account, of the truth as the witness was able to present it. His Honour went on to pose (but not resolve) the question of whether or not the terms of s. 39 of the Act were more liberal than the common law. 7. These are issues I do not have to decide in the present case, in light of the primary conclusion I have reached. However, I should observe that in my view it could not be said that the evidence, as it was left in cross-examination, amounted to a distortion or incomplete account of the truth as far as McNamara was able to present it. In my view, there was no ambiguity at all arising from anything that he said in respect of this issue, although I reiterate that this is not a matter that I have to determine. 8. It was for those reasons that I determined that the proposed re-examination should not be permitted. ********** 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