R v Rogers [2018] NSWSC 1216

Supreme Court New South Wales

Medium Neutral Citation: R v Rogers [2018] NSWSC 1216 Hearing dates: 20 July 2018 Date of orders: 20 July 2018 Decision date: 08 August 2018 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: The aspect of the emergency department record in issue is not to be led from the witness Catchwords: EVIDENCE – hearsay – representation made to medical practitioner at a hospital by way of background to presentation to hospital – interaction between person making the representation and another – whether representation is a contemporaneous statement as to the person's health, knowledge or state of mind Legislation Cited: Evidence Act 1995 (NSW) ss 59, 65, 66A, 67 Cases Cited: R v Hannes [2000] NSWCCA 503 R v Walker [2017] NSWSC 997 Sio v R (2016) 259 CLR 47; [2016] HCA 32 Category: Procedural and other rulings Parties: Regina (Crown) Warren Rogers (Accused) Representation: Counsel: N Williams (Crown) R Pontello (Accused)

Solicitors: NSW Director of Public Prosecutions (Crown) Peters Lawyers (Accused) File Number(s): 2016/276529

Judgment 1. The accused has been charged with the murder of his wife at Milperra between 12 and 13 September 2015. The accused has raised a partial defence of substantial impairment of mind and offered to plead guilty to manslaughter on that basis. 2. An issue has arisen regarding the admissibility of some representations made by the deceased. 3. The Crown served a notice pursuant to s 67 of the Evidence Act 1995 (NSW) regarding its proposal to lead evidence of those previous representations by the deceased. The material identified in included representations made by the deceased to a doctor contained within the medical records of Anne Rogers prepared at Bankstown Hospital during an admission on 22-23 August 2016; 4. I was asked to deal with these issues pre-trial on Friday 20 July 2018 before commencing the trial on Monday 23 July 2018. I indicated by ruling on this issue with others by email on Friday 20 July 2018 in the following terms: The following two sentences contained in the Medical Records of Anne Rogers are inadmissible "She states that her husband then handed her a bottle of his Temazepam tablets asking her to take it. Anne took all 22 tablets of 10 mgs of Temazepam at about 4pm in front of her husband". The requirements of neither s 65(2) or s 66A have been met. 1. These are my formal reasons for reaching that view. Formal reasons have not been required for my other rulings. 2. The Crown argued that the representations were admissible as exceptions to the hearsay rule, Evidence Act 1995 (NSW) s 65(2)(b) and (c). It was also argued that s 66A of the Evidence Act was another basis pursuant to which the representations made by the deceased could be received. 3. Counsel for the accused argued that none of the exceptions applied. 4. The representation in issue was part of an account given by the deceased to an emergency department doctor at Bankstown Hospital where she was taken late on 22 August 2016 after she had taken an overdose with Temazepam. 5. The objected to portion was as follows: "She states that her husband then handed her a bottle of his Temazepam tablets asking her to take it. Anne took all 22 tablets of 10mg Temazepam at about 4pm in front of her husband"