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." Statement of Christine McCormack 1. The material in issue in Ms McCormack's statement of 13 September 2016 is as follows: "6. Over the entire course of our friendship, Warren appeared to be very demanding and dominating of Anne. There are many examples of the dominating behaviour of Warren [but I remember Anne telling me that Warren was in control of the finances, when Anne was still working her pay would go into a bank account controlled by Warren…] … 16. Few months [sic] Anne told me that Warren had pulled all of the herbs out of her herb garden. Anne replanted all the herbs, a short time later Warren again pulled the herb garden apart. Another dominating behaviour of Warren was how he would never let Anne wash the car or mow the lawn because she would never do it to her standard. 17. I noticed in the last few weeks that Warren appeared to be monitoring Anne closer than normal. Warren would rarely let Anne out of his sight. I remember that Anne would attend her father's house every Tuesday to clean his house. Anne would call me every Tuesday on the way to her father's house and we would talk. Anne told me that last Tuesday, the 6th September 2016, Warren had attended Anne's fathers house with her. Anne said that Warren had never done this before. Warren sat on the porch with Anne's father and they talked for four (4) hours while Anne cleaned the house." (i) Paragraph 16 1. In respect of paragraph 16 Mr Pontello argued that for the representations of the deceased to be admissible they would need to come within the exceptions to the rule against hearsay. The requirements of s 65(2)(b) of the Evidence Act have not been met because the representation would need to have been made shortly after the events referred to. There is no evidence as to when the matters referred to in paragraph 16 occurred. 2. Addressing s 65(2)(c) in the circumstances of an acrimonious breakdown in the relationship between the accused and the deceased, the court could not be satisfied that the circumstances make it highly probable that the representations are reliable. If anything, the evidence and the circumstances surrounding the relationship between the accused and the deceased at this time indicates, on the contrary, a motivation to seek support from friends and associates to align with her against the accused in circumstances where the deceased had been conducting an affair with Jeff Langham for some period. 3. The Crown prosecutor argued that the circumstances surrounding the assertions by the deceased set out in paragraph 16 are such that it is unlikely that "she made it up". This is not the complete test under s 65(2)(b). In the absence of any information about when the events occurred, and thus the time within which the deceased's representation to Ms McCormack was made, I cannot be satisfied s 65(2)(b) applies because I cannot determine whether it was made shortly after the asserted fact occurred. 4. Turning to the requirements of s 65(2)(c), when examining the circumstances, that include an acrimonious breakdown of the relationship between the accused and the deceased, the deceased seeing another man, and the context being complaints made to a friend about the accused, I accept Mr Pontello's submission that these are not circumstances that make it highly probable that the representations are reliable and thus admissible under s 65(2)(c). 5. An issue before the Jury in this trial is whether the accused engaged in dominating or domineering behaviour over the deceased. Clearly examples of such dominating behaviour would pass the test of relevance, however the material set out in paragraph 16 or 17 would need to come within one of the exceptions to the rule against hearsay to be admissible thus able to provide evidence illustrating the "dominating" behaviour referred to in paragraph 6. (ii) Paragraph 17 1. Objection is taken to the first two sentences of paragraph 17. The Crown argued relevance based on this being a sufficiently specific example of dominating behaviour on the part of the accused. 2. Mr Pontello argued that the assertions lack specificity and that there must be an element of hearsay because there was no evidence that Ms McCormack had seen the deceased and the accused together much in the "last few weeks" leading up to the date she made her statement, other than a weekly dinner date. In those circumstances the information must have come from the deceased. Accordingly, the assertion would need to come within an exception to the rule against hearsay. Further, Mr Pontello argued, given its lack of specificity and so low probative value when considered against potential unfair prejudice to the accused, the evidence ought to be excluded (s 137). 3. In my view there is a fatal lack of specificity of the basis of these assertions by Ms McCormack. They must have been based on assertions made by the deceased to Ms McCormack. There is no other likely source. Given the lack of clarity as to the bases, and the likelihood that it is based on things said by the deceased to Ms McCormack, the assertions do not come within either s 65(2)(b) or (c) exceptions, and so should be excluded. 4. Further, I would exclude both sentences pursuant to s 137 of the Evidence Act on the basis that their probative value (which is slight in the circumstances), is outweighed by the danger of unfair prejudice to the accused. (iii) Paragraph 6 1. As Mr Pontello submitted, the first sentence of paragraph 6 to which objection is taken provides a value judgment and then refers to "many examples" of the dominating behaviour of the accused but then fails to identify any admissible examples of dominating behaviour. Whilst evidence of dominating behaviour would pass the test of relevance, on its own without identified examples, there is a danger that the value judgment will be misused by the Jury in a way that it is unfair to the accused. I accept those submissions. In the circumstances I exclude that sentence under s 137 of the Evidence Act because the probative value of the statement is outweighed by unfair prejudice to the accused. 2. In respect of the second aspect of the objection regarding the deceased telling Ms McCormack that Warren was in control of the finances and that when she was still working, her pay would go into a bank account controlled by him, it is evident that this material is being relied on testimonially and therefore, as submitted by Mr Pontello, it must come within one of the exceptions to the rule against hearsay set out in s 65(2). I accept Mr Pontello's submission that the requirements of s 65(2)(b) or (c) have not been met. The circumstances in which the representation was made include the deceased complaining to a friend about her husband's behaviour where she was conducting an affair with another man and potentially seeking to justify that. The basis and timing of the allegations are not specified. There is no basis to conclude that the representation was made when or shortly after the asserted fact occurred. The circumstances are not ones that make it unlikely that the representation is a fabrication s 65(2)(b) or that it is highly probable to be reliable. The requirements of s 65(2)(b) or (c) have not been met. Statement of Ronald Walker 1. Objection was taken to the observation in paragraph 4 "I would describe Warren as domineering over Anne". Mr Walker provides no basis for this assertion. I ruled this assertion out on the basis of s 137 where no examples of the behaviour are given. The probative value of the statement is outweighed by the danger of unfair prejudice to the accused. 2. Paragraph 12 of Mr Walker's statement was also the subject of objection: "12. Whilst staying with Christine, I remember telling Anne to get some money out to survive but she resisted for a number of days, saying "I'll be alright with what I've got". After a few days of staying with Christine, Anne told me that she had gone to the bank and found that all the money was gone from the accounts." 1. Mr Pontello submitted that the first sentence was not relevant. It is a reference to the deceased telling him that she had sufficient money available after she had left the accused and is not relevant to any fact in issue in the trial. I agree that it is not relevant and exclude it on that basis. 2. The second sentence "…After a few days of staying with Christine, Anne told me she had gone to the bank and found that all the money was gone from the accounts", I ruled out on the basis of potential second hand hearsay. Given that the basis for the representation is not identified, I accept Mr Pontello's submission that it is likely that the deceased obtained this information from another person, and therefore what Mr Walker is repeating what may well be second hand hearsay. I am not satisfied that the representation falls within any of the exceptions to the rule against hearsay set out in s 65(2) and I decline to permit it to be led. Statement of Julie Bertoldo 1. Julie Bertoldo is the deceased's sister. Objection was taken to an observation in her statement "I would describe him as being a domineering figure in their relationship. I think he wore the pants in the house." 2. Mr Pontello argued that the observations lack specificity and so their probative value is outweighed by the danger of unfair prejudice to the accused (s 137). 3. The Crown prosecutor argued that given Julie Bertoldo is the sister of the deceased and has had a very long period of about 44 years to observe the interaction between the accused and the deceased as a couple, she should be permitted to give that evidence. Ms Bertoldo also provided evidence in her statement of an incident where the accused purchased a new car for the deceased, without asking her whether she wanted that particular car. This was submitted to be an illustration of the accused's domineering nature and his domination in their relationship. 4. I am of the view that the accused purchasing a new car for the deceased and not first asking her for input into its choice is not an illustration of the overarching value judgment that the accused was "a domineering figure in their relationship", nor that "he wore the pants" in the house – a somewhat nebulous but potentially pejorative value judgment. I am of the view that the probative value of the assertions, in context, are outweighed by the danger of unfair prejudice to the accused (s 137) and I decline to permit that evidence to be led. Statement of Andrew William Harris 1. Andrew Harris is the brother in law of the accused and the deceased, having been married to Julie Bertoldo for about ten years. He stated that because he lived a fair distance from the accused and the deceased, he would see them only about six times a year, generally at family gatherings and celebratory occasions. 2. The part of his statement in contest is the words in paragraph 4 "Warren appeared to be controlling of Anne in a sense that he controlled all the finances and decision making of the relationship". He does not state any basis at all for that conclusion, nor the facts upon which he has relied to reach that view. 3. Objection is taken to this assertion because it is relied upon testimonially by the Crown. 4. I reject that sentence on the basis that its probative value is negligible and there is a danger of unfair prejudice to the accused in circumstances where there is no basis at all stated for reaching that view or holding that opinion. Statement of Jeff Langham 1. Objection is taken to the following parts of the statement of Jeff Langham dated 8 October 2016: "22. Anne talked about how controlling Warren was, describing his attitude as, and "it's Warren's way or the high way." Anne confided that every time she tried to grow herbs or flowers in their garden, Warren would pull them out, sometimes replacing them with pine trees, which she hated. She said, "I can't understand why he pulls the herbs out. It's not hurting him. It's away from all his stuff and he's pulling them out ..." … 31. Anne and I had further conversations about the state of her marriage and her feelings about Warren during her third trip to Tasmania. Anne told me that she couldn't use any of her bank cards because Warren had taken them all when he kicked her out of the house and the only money she had was the cash she was able to grab from her top drawer. Anne also confided that Warren had previously deposited the sale proceeds from his mother's house into her personal superannuation account and that he had frozen that account immediately on separation. 32. Anne told me that she had made a hand-written list of the matrimonial assets, so that if Warren tried to hide any of their assets or freeze more accounts she would at least know what they owned at the date of separation. Anne told me that she had taken photographs of that list on her mother's mobile telephone. During her stay, she asked to download those images from her mother's mobile telephone onto my computer, so she had another copy of the list for safe keeping. On 7 October 2016, I was conducting a search of my computer hard-drive and I located a folder titled '2016-07' containing six files titled 'DSCF1985', 'DSCF1986', 'DSCF1987', 'DSCF1988', 'DSCF1989' and 'DSCF1990'. These files contain the images which Anne downloaded from her mother's phone onto my computer during her stay. They are very blurry and I can only assume that is because the photo's Anne took of the hand-written notes were blurry. Annexed to this statement and marked 'E' are copies of those files, pages 1-6 inclusive." 1. In respect of the material in issue in paragraph 22, Mr Pontello argued that the requirement of s 65(2) are not met because these are representations made by the deceased and there is no occasion or date of time identified as to when the events are alleged to have occurred nor is there anything about the circumstances of the disclosure to Mr Langham that would satisfy the limits in s 65(2)(b) or (c). 2. The Crown relied upon the arguments previously made in respect of other representations of the deceased to other witnesses. I ruled that the material is not admissible in respect of s 65(2)(b) because there is no evidence providing any detail at all as to "recency" ie how close in time to the time the asserted fact that the deceased made the representation. Also for the reasons already articulated in terms of the deceased having an extra-marital relationship with Mr Langham, the circumstances are not ones that make it highly probable that the representation is reliable (s 65(2)(b) or that it is unlikely that the representation is a fabrication (s 65(2)(b). 3. In respect of paragraphs 31 and 32 of Mr Langham's statement, the Crown pressed the contents of those paragraphs arguing that the material referred to in the representations conveyed by the deceased to Mr Langham are relevant and that the "recency" of the conversations can be identified and therefore there is compliance with s 65(2)(b) because the conversations occurred "shortly after" the marital difficulties surfaced in July 2016. The Crown also argued that the circumstances demonstrate that what the deceased said discussed was unlikely to be a fabrication because she was confiding in a man with whom she was in a relationship, and therefore, the Crown submitted, it was unlikely that these representations would be fabrications. The Crown also argued that in those circumstances it did not need to resort to s 65(2)(c) and therefore did not need to show the circumstances were ones that made it highly probable that the representations were reliable. 4. Mr Pontello, on the other hand, argued that s 65(2)(b) requires the representations to have been made when, meaning during or shortly after and in effect under the proximate pressure of the occurrence of the asserted fact. Here, he argued, the marital split between the deceased and the accused was on 11 July and the representations contained in paragraphs 31 and 32 must have been made some time between 15 and 18 July during the deceased's third trip to Tasmania to see Mr Langham. He argued that to put it bluntly, these circumstances go nowhere near to satisfying the requirements of s 65(2)(b) as an exception to the hearsay rule, particularly bearing in the mind Williams v The Queen at [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." 1. Mr Pontello described the circumstances that add to potential unreliability are that the deceased wants to curry favour with Mr Langham and have him feel sorry for her and that there is a "raft of reasons" why the representations do not satisfy s 65(2)(c) such as to make it highly probable that the representations are reliable. 2. The representations are being relied upon by the Crown testimonially as evidence of the accused's "dominating" or "controlling" nature. I accept Mr Pontello's submissions in respect of paragraphs 31 and 32 of Mr Langham's statement and I reject the submissions of the Crown to the effect that the requirements of s 65(2)(b) and (c) have been met. 3. The entire contents of paragraphs 31 and 32 are inadmissible. ********** 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: 22 November 2019