Supreme Court New South Wales Medium Neutral Citation: R v Rogerson; R v McNamara (No 50) [2016] NSWSC 599 Hearing dates: 11 May 2016 Date of orders: 11 May 2016 Decision date: 11 May 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [15] Catchwords: CRIMINAL LAW – Evidence – Cross-examination – Evidence of gift given by one accused to the other – Gift of a pen bearing the names of three persons shot and killed by the accused in the line of duty as a police officer – Whether cross-examination as to gift should be permitted – Whether probative value of the evidence substantially outweighed by the danger of unfair prejudice – Cross-examination not permitted Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v Rogerson, R v McNamara (No 45) [2016] NSWSC 452 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. Exhibit M36 in these proceedings is a document dated 29 March 2015. There is no dispute that it is in the handwriting of the accused Rogerson. It commences with the words "Ladies and Gentlemen of the Jury", and proceeds, in particular at paragraph 3, to set out an account of the circumstances in which the deceased Jamie Gao was allegedly shot and killed. 2. The document was tendered in the course of the evidence of the accused McNamara. It is, for want of a better term, one of a series of documents which were said by McNamara to have been created during the period in which he and Rogerson were together in custody. It is part of McNamara's case that these documents were created in circumstances where Rogerson was, in effect, propounding that a defence to the present charges be fabricated. Rogerson denies that this was the case. 3. In the course of cross-examination this morning, Rogerson conceded that he wrote Exh. M36 and gave it to McNamara whilst they were in custody together. When asked why he wrote the document, Rogerson said (at T4352 L6) that it was "a little light-hearted humour". When asked who he was humouring by creating the document, he answered "probably myself". He was then asked (commencing at T4352 L15): "Q. You had nothing better to do and you wrote this document up, is that what you are suggesting?" A. That is all I can think it would be. It is nothing more than a little bit of humour. Q. Why did you give it to Mr McNamara for? A. Just for the fun of it. Q. What, what sort of fun? You expected him to laugh at this document? What was your expectation in giving him this document? A. I think he did laugh at it and we had a bit of a joke." 1. I then asked (at T4352 L29): "Q. You were asked what your expectation was when you gave it to him? A. Light-hearted banter, light-hearted humour, my sort of humour maybe." 1. Against the background of that evidence Mr Wendler, who appears for McNamara, now seeks to cross-examine Rogerson in respect of a meeting between the two accused in either 2013 or 2014. If that cross-examination is allowed, it will be put to Rogerson that on that occasion he gave McNamara a gift of a pen with a matching letter opener, both of which have been tendered on the present application. 2. The lower part of the pen is the shape of a bullet. The clip on the top of the pen is in the form a rifle. The "bullet section" of the pen, if it might be described in that way, has three names engraved on it, namely Phillip Western, Warren Lanfranchi and Butchy Byrnes. If the cross-examination is allowed, Mr Wendler will put to Rogerson that each of those named persons was shot and killed by Rogerson in the line of duty as a police officer. 3. Mr Wendler submitted that the proposed cross-examination is relevant to the proposition (which is said to be consistent with the evidence of Rogerson in relation to Exh. M36) that Rogerson had a "low value" on human life. Mr Wendler further submitted that the proposed cross-examination went to the issue of the alleged fabrication by Rogerson of a proposed defence to the present charges, and that it was relevant, in particular, to the issue of what is said to have been Rogerson's fabrication of a response to the prosecution case. In making these submissions, Mr Wendler pointed out that part of Exh. M36 suggests a scenario in which the deceased was killed in the course of a struggle. 4. The Crown objected to the proposed cross-examination. The Crown submitted that in reality, Mr Wendler was seeking to adduce tendency evidence. The Crown submitted that the probative value of the evidence, if there was any at all, was tenuous, and that there was necessarily a risk of unfair prejudice to the accused Rogerson if the cross-examination were allowed. Such risk was said to arise from the very nature of the issue which was sought to be pursued. 5. Mr Thomas, who appears for Rogerson, also objected to the evidence. He submitted that the evidence was not relevant, that it had no probative value, and that there was a clear danger of unfair prejudice to Rogerson, which substantially outweighed any probative value that the evidence might have. 6. Section 135 of the Evidence Act 1995 (NSW) ("the Act") confers a discretion on the Court to refuse to admit evidence if its probative value is substantially outweighed by the danger that it might, amongst other things, be unfairly prejudicial to a party. I have, in the course of a previous judgment in the proceedings, made a number of observations regarding the operation of s. 135: R v Rogerson, R v McNamara (No 45) [2016] NSWSC 452 at [32] and following. 7. For the purposes of the section, I must firstly assess the probative value of the evidence. In my view, the probative value of the evidence is marginal at best. In particular, is difficult to see how it could be probative of the issue of the alleged fabrication of a defence by Rogerson. 8. Even if the evidence has some probative value, s. 135 requires that I consider whether such probative value is substantially outweighed by the danger that it might be unfairly prejudicial to Rogerson. In order to exercise the discretion to exclude the evidence under s. 135, I do not have to be satisfied that it will be unfairly prejudicial. I need only be satisfied that its probative value is substantially outweighed by the danger that this might be so. In considering that question, I must be mindful of any danger that the evidence might be misused by the jury in some unfair way: R v McNamara; R v Rogerson (No 45) (supra) at [36]. 9. In my view, there is a clear danger of unfair prejudice to Rogerson if the cross-examination is permitted. Such danger arises from the very nature of the gift, and its direct reference to persons who were allegedly shot and killed by Rogerson in the line of duty as a police officer. 10. It is not difficult to envisage a risk of such evidence being misused by the jury. In particular, it is not difficult to envisage a risk that the jury might speculate upon the circumstances in which the three named people were killed. Those circumstances obviously have no bearing whatsoever on any issue in this trial. 11. For those reasons, I have come to the view that such probative value as the evidence might have (which, on any view, is limited) is substantially outweighed by the danger that it might be unfairly prejudicial to Rogerson. For those reasons, the proposed cross-examination will 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