R v Rogerson; R v McNamara (No 54) [2016] NSWSC 654

Supreme Court New South Wales

Medium Neutral Citation: R v Rogerson; R v McNamara (No 54) [2016] NSWSC 654 Hearing dates: 19 May 2016 Date of orders: 19 May 2016 Decision date: 19 May 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [8] Catchwords: CRIMINAL LAW – Evidence – Circumstantial evidence – Whether there existed an essential intermediate fact which was required to be proved by the Crown beyond reasonable doubt – Whether jury should be directed that the Crown case was in the nature of a "links in the chain" case based upon circumstantial evidence – Direction not given Cases Cited: Hannes v The Commonwealth Director of Public Prosecutions (No 2) [2006] NSWCCA 373 Minniti v R [2006] NSWCCA 30 Davidson v R [2009] NSWCCA 150; (2009) 75 NSWLR 150 R v Merritt [1999] NSWCCA 29 Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 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 hearing submissions from counsel prior to the commencement of the Crown's final address, the Crown submitted that the jury should be directed as to the nature of a circumstantial case, on the basis that the various pieces of circumstantial evidence relied upon by the Crown are what are generally described as "strands in the cable". 2. Mr Thomas, who appears for Rogerson, opposed that course and submitted that the appropriate direction was that the matters relied upon by the Crown were "links in a chain" or, in other words, that there were one or more indispensable intermediate facts, in the absence of proof of which the jury would be compelled to return a verdict of not guilty against the accused. 3. The indispensable intermediate facts identified by Mr Thomas were as follows: 1. Rogerson's alleged complicity in the purchase of vehicle BV67PX; 2. the fact that the deceased was alive at the time that Rogerson entered storage unit 803; 3. the fact that Rogerson was alleged to have had a gun in his possession whilst at McNamara's apartment on the afternoon/evening of 20 May 2014; 4. the fact that Rogerson threatened Jessica McNamara on 20 May 2014; and 5. the fact Rogerson was aware of meetings taking place between McNamara and the deceased, and was aware of the purpose of those meetings. 1. The submission put by Mr Thomas attracts consideration of the decision in Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 where Dawson J (at [5]) considered the rationale behind a direction of the kind which is now sought by Mr Thomas. 2. In my view, the present is not a case of the kind which lends itself to such a direction being given. Broadly speaking, the Crown case encompasses evidence of three general areas, namely: 1. the events leading up to 20 May 2014, including the contact between the deceased and McNamara and telephone contact between the two accused; 2. the events of 20 May 2014; and 3. the events after 20 May 2014. 1. It is not necessary for the jury to reach a conclusion about one area of evidence before proceeding to consider another: see Shepherd (supra) at [16]. In my view, none of the suggested indispensable facts (or links) are, on a proper assessment of the Crown case, indispensable facts at all. Even if each and every one of them were removed from the Crown case, there would remain a Crown case sufficient to go to the jury. It is also worthy of note that in Shepherd, Dawson J expressly recognised (at [15]) that even if indispensable facts of the kind articulated by Mr Thomas were identified, a direction of the kind proposed may in some circumstances not be helpful. 2. In this latter respect Spigelman CJ in Davidson v R [2009] NSWCCA 150; (2009) 75 NSWLR 150 made reference (at [8]) to an earlier decision of R v Merritt [1999] NSWCCA 29 where there were only two intermediate facts established in the Crown case which were identified as being indispensable. The Chief Justice observed that in a case where there are numerous separate facts of varying degrees of probative force, it could very well be confusing to give a direction of the type now sought by Mr Thomas. His Honour also observed that the prospect of confusion is a matter which had been emphasised in other cases as a factor tending against giving the jury a direction of the kind now sought: see for example Minniti v R [2006] NSWCCA 30; Hannes v The Commonwealth Director of Public Prosecutions (No. 2) [2006] NSWCCA 373. 3. For the reasons I have outlined, none of the matters identified by Mr Thomas are indispensable intermediate facts. Even if they were, the nature of the Crown case is such that to give a direction of the kind sought would be unnecessarily confusing. Accordingly the jury will be directed that the various matters relied upon by the Crown form part of an overall circumstantial case which should be viewed as "strands in a cable".