R v Rogers (No 3) [2018] NSWSC 1218

Supreme Court New South Wales

Medium Neutral Citation: R v Rogers (No 3) [2018] NSWSC 1218 Hearing dates: 31 July 2018 Date of orders: 31 July 2018 Decision date: 06 August 2018 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: Tender rejected. Catchwords: EVIDENCE – relevance – messages written on post it notes from accused to deceased – uncertainty as to date of creation at least five months before acts underlying the charge – not tendered in respect of character – state of mind Legislation Cited: Evidence Act 1995 (NSW) s 55 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. An issue has arisen regarding the admissibility of a handwritten note (comprising five separate medium-sized post-it notes) ("the note") written by the accused to the deceased. The note read as follows: Get off your iPad and head out of the paper and try to do the washing properly and find time to hang it out. When you finish the washing turn off the taps. Would be a good idea to check the wash basket as you only washed 3 pairs of underpants. Try another load. How does it feel to be a dickhead like me. You always want to put me down so shove it up your arse. Love dick head Wazza. See if you can take the washing off and make the beds. Hope not too much trouble. 1. The date of the writing of the notes is unable to be ascertained other than on the basis that it was provided to a psychologist the accused and the deceased saw on 5 May 2016. There is also technical evidence available indicating that a photograph was taken of the post-it notes with data evidence collated by police indicating it was entered onto an iPad device on 27 April 2016. 2. The Crown sought to tender the note as relevant to the accused's state of mind contemporaneously to the death of the deceased. It was argued that the note indicates a "passive-aggression" or "passive anger" that informs the jury as to the state of mind of the accused in the period leading up to the crime with which he is charged. 3. The content of the note is also said to refer to one of the triggers to his anger with the deceased, namely spending excessive time on the iPad, secretly contacting Jeff Langham. 4. Counsel for the accused Mr Pontello argued that the note was not relevant and should be excluded on the basis of relevance. He emphasised that the time at which the note was written is not the subject of any evidence other than that it was some time on or prior to 27 April 2016. Contemporaneity of such a note would be critical to its relevance. Further, Mr Pontello submitted that attempting to adduce evidence of this note is, in effect, going behind the agreement reached between the Crown and the accused that the Crown would not lead evidence to rebut the accused's good character and that it is inevitable that this note, given it says "you always want to put me down so shove it up your arse" would be seen as evidence contradicting good character. 5. In response to that submission, the Crown emphasised that the note was not tendered on the question of character, but only on the issue of state of mind of the accused. 6. Given the lack of contemporaneity, given that the note's existence is dated on the only available evidence at 27 April 2016 or earlier, and the lack of clarity as to when the note was in fact written, I formed the view that the note should be excluded on the basis of relevance. 7. Section 55 of the Evidence Act provides: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 1. A domestic note, written some five months before the crime with which the accused has been charged, the tone of which is difficult to discern, is not evidence that if accepted could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. 2. The tender is rejected.