R v Rogers (No 4) [2019] NSWSC 686

Supreme Court New South Wales

Medium Neutral Citation: R v Rogers (No 4) [2019] NSWSC 686 Hearing dates: 7 – 8 May 2019 Date of orders: 08 May 2019 Decision date: 08 May 2019 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: The representations and evidence in issue is excluded. (See judgment for individual rulings) Catchwords: EVIDENCE – exclusion of evidence – exception to hearsay rule – where maker unavailable Legislation Cited: Evidence Act 1995 ss 59, 65(2), 137 Cases Cited: Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868 Category: Procedural and other rulings Parties: Regina (Crown) Warren Rogers (Accused) Representation: Counsel: M Hobart SC/C Young (Crown) R Pontello (Accused)

Solicitors: NSW Director of Public Prosecutions (Crown) Ross Hill & Associates (Accused) File Number(s): 2016/276529 Publication restriction: Nil

Judgment 1. The accused has been charged with the murder of his wife Anne Rogers on 13 September 2016. Issue has been taken regarding the admissibility of some aspects of statements of five witnesses to be called on Wednesday, 8 May and Thursday, 9 May 2019. 2. Objections comprise relevance, the rule against hearsay and s 65(2) exception in relation to representations by the deceased and s 137 objections in relation to what are alleged to be groundless assertions describing the accused as "dominating" or "domineering" without a properly stated and/or admissible basis or bases for such assertions.

Evidence Act 1995 (NSW) and legal principles 1. Relevance is governed by s 55: 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. The rule against hearsay set out in s 59 of the Evidence Act relevantly provides: 59 The hearsay rule--exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. 1. Exceptions to the rule against hearsay argued by the Crown in respect of evidence to be lead of representations by the deceased are set out in s 65(2)(b) and (c): 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: … (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or … 1. Section 137 is also salient to a number of the arguments: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 1. For the s 65(2)(b) and (c) issues, reliance was placed by Mr Pontello on behalf of the accused on the decision of Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868. In a judgment of the Court the following was stated in respect of s 65(2)(b): "46 It seems that the exception set out in s 65(2)(b) was intended to restate and reform the common law res gestae exception to the hearsay rule, ensuring that an overly narrow approach adopted in cases such as Bedingfield would be avoided. The terms of s 65(2)(b) indicate that the "approximate … contemporaneity" approach pre-figured in Ratten is to be preferred to the exact contemporaneity apparently required by Vocisano v Vocisano, thus disposing of any ambiguity that may exist at common law. The Australian Law Reform Commission (ALRC) proposal, which led to the provision, took the case law as a starting point for its considerations: "The proposal includes an exception for representations made '[when] or shortly after' the events referred to in it. A formula is used which takes up the suggestions of the Privy Council in Ratten's case. It directs attention to the question of the likelihood of fabrication." 47 Thus, it is principally a concern to exclude concocted evidence that informs the meaning of the phrase "shortly after". As noted by Sperling J in Mankotia at [10], s 65(2)(b) ought not be regarded as simply importing a test of: "…reliability at large. It is a narrower test … [I]t is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial." 48 For these reasons, it would be a mistake, in determining whether a statement has been made "shortly after", to over-emphasise such matters as whether the events in question were "fresh" in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during ("when") or under the proximate pressure of (shortly after) the occurrence of the asserted fact. In Conway the statement in question was made by a murder victim who said, while observed to be looking "terrible", that she had been drugged and had been "off her face for about three or four hours". The comments of the Court in Conway regarding the meaning of "shortly after" should be understood accordingly. The approach taken in Conway to s 65(2)(b) as a whole is consistent with such a reading of that case. 49 In this case, the statements were not made during the events in question, and, we think, could not be said to have been made "shortly after". Despite being made within a time in which Mr Stewart may be considered to have retained a good recollection of events generally, the lapse of five days takes the representations outside the likely temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximate pressure of, events. This time lapse, therefore, takes the representations outside the exception contained within s 65(2)(b). Indeed, it would seem to be an unusual case in which a representation made five days after the occurrence of the asserted fact might be regarded as having been made "soon after" it." 1. In respect of examining the test "in circumstances that make it unlikely that his representation is a fabrication", the Court analysed the requirement (relevant to both s 65(2)(b) and s 65(2)(c)) to look at the surrounding circumstances rather than confining the examination to the apparent reliability or accuracy or likelihood of the accuracy of the representations. In this regard, the Court said the following: "54 The statutory test is not whether, in all the circumstances, there is a probability (s 65(2)(b)) or a high probability (s 65(2)(c)) of reliability, but whether the circumstances in which the representation "was … made" determine that there is such a probability. Following the Conway approach, the trial judge was entitled to consider other available relevant evidence as to all the circumstances in which the statement was made. Nevertheless, whilst it was open to his Honour to consider the consistency of what was said with other material in the Crown case, this is only part of the inquiry as to whether those circumstances make it probable or highly probable that the representation was reliable. His Honour appears not to have adequately addressed the concerns raised at the trial by counsel for the appellant that, at the time of the interview, Mr Stewart had been cautioned that he was suspected of having aided and abetted the appellant, and that a sawn-off rifle had been found in his back yard. In response to the submission that these factors made the circumstances such that the interview was far from reliable, his Honour said in the course of argument: "Putting aside the denial of any involvement … what is contained in the record of interview that affects the accused, is wholly reliable, is it not? … I would understand the aiding and abetting as being some suggestion that Mr Stewart gave refuge or provided a hiding place or provided the means of getting rid of the implements that were used. That would be aiding and abetting or an accessory after the fact. But so far as what the accused did, is concerned, and limiting what Mr Stewart said about what the accused did, what is unreliable about it?" 55 It appears from these comments and otherwise that his Honour addressed only the question of whether the evidence contained within the transcript of interview was reliable, rather than, as Conway would have it, all the circumstances as to the making of the statement. This was an erroneous approach to s 65(2)(c) or a mistaken application of the principle to admit the interview under that section. This is particularly so in light of the onerous requirements imposed by s 65(2)(c). In Conway the Court said at 200 [146] - [147]: "The requirement in s 65(2)(c) of the Act that it be 'highly probable' that a representation be 'reliable' in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person. This particular exception to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission. Treating 'reliability' alone as the basis for admissibility, represents a radical departure from the principle that hearsay evidence, no matter how reliable it may appear to be, is inadmissible unless it falls within a recognised exception to the hearsay rule. It is true that in Pollitt (1992) 174 CLR 558 Mason CJ favoured the development of an exception to the hearsay rule based solely upon 'reliability'. However, the High Court eschewed that approach in Bannon (1995) 185 CLR 1; 83 A Crim R 370, and there are plainly dangers associated with it." 56 Mr Stewart made the statements in the course of an interrogation of him by police. In Mr Stewart's home, the police had found, buried in the garden, a sawn-off shotgun. Mr Stewart had within the previous few days tended his garden. To possess such a weapon is a serious offence (s 5(1) Prohibited Weapons Act 1996 (ACT)). Mr Stewart was, on his own account, a man who would assist a friend who had "done a rort" by making equipment available for the destruction of evidence. He was apparently a drug addict living a fringe existence. He had a variety of reasons to tell the police what he perceived that they wanted to hear. It is very likely that he perceived that they wanted to hear matters that would implicate the appellant. 57 Further, Mr Stewart was a suspected accomplice of the appellant. Had he given evidence against the appellant (and been liable to cross-examination by the appellant's counsel) the trial judge would have been required to direct the jury that his evidence, if uncorroborated, should not be accepted unless scrutinised with particular care. That is because accomplices notoriously seek to lessen their own blameworthiness by enlarging that of their alleged co-offenders: see e.g. Webb per Toohey J at 92-93; 295-297. 58 Although the resolution of this question of fact does not turn on any impression of any person's demeanour, real respect should be paid to the view of the learned trial judge. Nevertheless, we are unable to feel that his Honour's view was the correct one. There was not, in our view, any unlikelihood that Mr Stewart's statements were fabrications, still less any high probability that his representations were reliable. In our view, his Honour erred in admitting evidence of the statements."