Supreme Court New South Wales Medium Neutral Citation: R v Rogers (No 5) [2019] NSWSC 687 Hearing dates: 16 May 2019 Date of orders: 16 May 2019 Decision date: 08 May 2019 Jurisdiction: Common Law Before: Lonergan J Decision: The Crown is permitted to cross-examine Olivia Hoare in respect of her evidence that is unfavourable to the Crown case regarding: (i) her observations relevant to the issue of the accused being impaired; (ii) the contents of the gaol call on 14 October 2016 to the effect that she openly discussed with the accused that the psychiatrist was coming and that she suggested a number of things to him in an attempt to assist her father in his meeting with Dr Allnutt; and (iii) that she is exaggerating her evidence of the accused's mental state to assist him at the trial, given her love for him. Catchwords: EVIDENCE – cross-examination of unfavourable witness – cross-examination based on assertion that prior police statement inconsistent not permitted as prior police statement not inconsistent Legislation Cited: Evidence Act 1995 (NSW) ss 38 and 192 Cases Cited: R v Kennedy [2000] NSWCCA 487 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 Prosecutors (Crown) Ross Hill & Associates (Accused) File Number(s): 2016/2766529 Publication restriction: Nil Judgment 1. An application was made on 15 May 2019, day 7 of the trial, to seek leave pursuant to s 38 of the Evidence Act 1995 (NSW) ("the Act") to cross-examine the accused's daughter, Olivia Hoare ("Olivia") regarding asserted differences between the statement she provided to the police on 13 September 2016, and the evidence that she gave at the last trial in July 2018. 2. Leave was opposed by counsel for the accused on the basis the application was too late, that there was a live issue as to whether the asserted basis of inconsistency between the police statement and the evidence given at the last trial had been established and s 192 factors dictated that the proposed cross-examination was unfair to the accused unfair to Olivia: s 192(2)(b) of the Act. Section 38 application: bases 1. Olivia provided a statement to the police on 13 September 2016 in which she said the following at paragraph 20: "In the morning on Tuesday, 13 September 2016, I messaged my mum from the mobile telephone to her mobile telephone to ask about child care arrangements. My mum normally took care of my son, Kye, on Thursdays and Dad normally took care of him on Wednesday mornings for three hours while I was at work. Dad hurt his back on Saturday last week and mum was going to take care of the kids this Wednesday so I wanted to know if she was coming to my house or if I was dropping the kids to her house." 1. On the evening of 14 September 2016 after the death of the deceased at the hands of the accused and a suicide attempt by the accused, Olivia's husband, Klinton, visited the accused in the ICU at the hospital and read a letter from Olivia to the accused which states that, amongst other things: "I have been very concerned about your mental state for weeks which is why I no longer have you looking after my children. You were there physically but you were not there mentally…." 1. The Crown argued that at the first trial, Olivia had indicated that prior to the incident the accused had been looking after her children for seven weeks [T139.20], that she had messages from Klinton saying that he was very concerned about her father, and he did not seem to be in a fit state to be looking after their children [T139.26]. 2. Olivia gave evidence that she had addressed it with the accused and agreed with him that instead, she would make arrangements for her sister-in-law, Jill, to look after the children [T140.11]. In re-examination Olivia indicated that her sister-in-law did not end up looking after the children, as nothing had been put in place about that because it was just before the events, the subject of the trial [T155.05]. 3. The Crown's position was that there was no reference to these matters in Olivia's police statement and therefore the Crown sought to test the evidence of Olivia in relation to why the accused was no longer babysitting, in light of her initial police statement that says that the reason he was not babysitting was due to a back injury. 4. The Crown submitted that this is a prior inconsistent statement. Second and alternatively that Olivia's evidence at the last trial was unfavourable to the prosecution given it was relied upon by the defence to support the accused being impaired. 5. The second aspect of Olivia's evidence about which the Crown sought leave to cross-examine is directed to the Crown position that the accused changed his account of what he recalled regarding the death of the deceased over time, particularly the accounts that he gave to Dr Allnutt and Dr Martin, that he didn't recall parts of what occurred, when compared with the initial accounts that he had given which included details of how he killed the deceased. The Crown submission to be made to the jury is that the accused later said to the psychiatrist that he did not recall what occurred in an attempt to support his substantial impairment defence. 6. The Crown sought to put to Olivia that she: (a) actively assisted the accused in setting up a substantial impairment defence prior to being interviewed by Dr Allnutt; and (b) is exaggerating her evidence of the accused's mental state to assist him at trial, given her love for her him. 7. In furtherance of that proposed cross-examination, the Crown proposed to play and question Olivia on the following excerpt from the recorded goal call: "14 October 2016 – call 3450173O WR: Yeah. Can you believe I did such a silly thing Liv? OH: Oh, dad. WR: Oh. OH: No I can't, but I don't think you were yourself when it all happened… WR: Oh, definitely… OH: And it's, it's not you… WR: Definitely not, no I wasn't me, it wasn't me… OH: It's not you… WR: It was some Chinaman inside my heard, oh, god… OH: You were like, you were the most non-violent person in the world and… WR: I, I know… OH: You know? WR: Yep… OH: It's so out of character that… WR: Yeah… OH: Yeah, I mean… WR: What happened… OH: I think in that moment in time, it was like, whether it was a psychotic episode, I don't know… WR: I think I was psychotic, for sure… OH: Yeah, but you've got the psychiatrist comin' to see you today …." 1. In the initial written submissions provided in support of the application, the Crown also referenced the following comment by OH: "believe that what we're fighting for is because we want you home and we want you to be with us again …." however, that aspect of the conversation had been ruled inadmissible pursuant to s 137 at the previous trial and thus could not be led/played for the jury or put to Olivia in this trial. 2. The Crown submitted that it was essential to its fairness obligations, amongst other things, that Olivia would be provided with a chance to comment on the above propositions before the Crown could be permitted to close to the jury on those topics. 3. The Crown submitted that consistently with R v Kennedy [2000] NSWCCA 487 at [37] the prosecutors' duties of fairness required that the witness should be afforded the opportunity to address the substance of the submissions to be made to the jury. 4. The Crown argued that the evidence is unlikely to lengthen the hearing in any material way (s 192(2)(a)), the topics are of importance to the Crown case (s 192(2)(c)) and it is a serious matter given that the accused is facing the Supreme Court on the charge of murder (s 192(2)(d)). Relevant legislative provisions 1. Section 38 of the Act provides: 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. Note. The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding. 1. Section 192 provides: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 1. I note in respect of s 192, the authorities make it clear that any court determining a s 38 application must take into account and work through all the aspects of s 192 to ensure that no part of it is offended in granting leave under s 38. Defence submissions 1. In respect of the first area for cross-examination, that is the asserted inconsistent statement given to police and the evidence at the last trial which was unfavourable to the prosecution, Mr Pontello submitted first, that the cross-examination should not be permitted because the Crown had not given notice about it at the first opportunity and that there has been an abject failure of notice in that respect. The latest time at which it should have been recognised that this was an issue and thus notified to the defence was at the end of the last trial which was in August 2018, nine months ago. 2. Second, Mr Pontello argued that in respect of s 38, there was not an inconsistency between what was said in Olivia's police statement of 13 September 2016 and what was said in her evidence at the last trial. Paragraph 20 of her statement was dealing with the particular context as to what was planned on those days close to the death of her mother, as opposed to a general statement about her view about the accused's ability to look after her children. Mr Pontello argued that in context, what Olivia said was a truthful statement and there was nothing that would warrant cross-examination on the basis of a relevant inconsistency. There was nothing identified that indicates a lack of veracity on the part of Olivia regarding that issue and it would be unfair (within the meaning of s 192(2)(c)) to allow cross-examination on that basis. 3. Third, leave to cross-examine Olivia about that subject matter on the bases put forward by the Crown would be unfair to the accused and unfair to the witness, given the contents of the letter read by Klinton to the accused in hospital on 14 September 2016 which makes it clear that Olivia in fact held concerns about her father's mental state at that time, and that she was not prepared to allow him to look after their children because of those concerns. 4. Mr Pontello conceded that generally, Olivia's evidence regarding the accused's impaired mental state at the time leading up to the events may well be legitimately viewed as unfavourable to the Crown, and limited cross-examination on that basis (subject to the overarching s 192(2)(b) submission that it was unfair to the accused and the witness given the late s 38 application) could be permissible. 5. In respect of the second area proposed for cross-examination, the gaol call on 14 October 2016, Mr Pontello submitted that there was no legitimate forensic basis to assert that the conversation showed a plot to concoct a substantial impairment defence. Olivia's subjective opinion and discussion about the psychiatrist coming in no way indicates activity of the kind referred to in the Crown's written submissions in paragraph 13 where it is suggested that Olivia was "actively assisting the accused in setting up a substantial impairment defence prior to him being interviewed by Dr Allnutt" or that she was "exaggerating her evidence of the accused's mental state to assist him at trial because of her love for him". Decision 1. Dealing first with the requirements of s 38, notice was given just before the application was made on day 8 of the trial. It is certainly very late but not so late that it is disqualificatory. As pointed out by the Crown, it is but one of the factors that I should take into account pursuant to s 38 when determining whether and when leave should be given. It is not an automatic disqualification point that the notice is late. I took the view that lateness was something that was able to be managed, provided counsel for the accused was given sufficient time to carry out any other enquiries and have opportunity to confer with the witness in question or any other witness to ensure the areas marked for cross-examination could be fairly dealt with. 2. I did not accept that paragraph 20 of Olivia's police statement amounted to a prior inconsistent when compared with her evidence at the last trial on the issue of the reason as to why the "accused was no longer babysitting". 3. The problem with the position taken by the Crown lies in its over-reaching and interpretation of what was said in paragraph 20 as a statement of a general nature that "the reason the accused was no longer babysitting for her "was due to a back injury", as opposed to a reference to specific arrangements that particular day. 4. Read in context paragraph 20 is very much directed at the family plans made for the days immediately leading up to the death of the deceased. The structure of the police statement needs to be taken into account. The statement begins with general comments about the family and the parents' marriage, and Olivia's observations that she had never known her father to be violent or verbally abusive towards her mother (paragraphs 1 to 6). This was followed by information regarding the accused's health problems (paragraph 7). Then there was information regarding the death of the deceased's mother in July 2015 and that Olivia noticed a big change in her mother after that. She became really snappy and it seemed like her mother's death had brought up a lot of emotions for her … things just went downhill a bit after that. It got to the point that Grant and I no longer liked taking the kids over to mum and dad's house for dinner because mum would always pick on dad about something and it made me feel uncomfortable". 5. There were then observations regarding the deceased's drinking and observations about the separation on 11 July 2016 (paragraph 10). This was followed by observations about her father's demeanour in the period of the separation (paragraph 11): "They didn't speak for eight days and dad was completely gutted. He was a wreck, a mess. You could see it on his face, on his body, he was carrying around the weight of the world. He seemed very hurt to me." 1. There is then a chronological description of her parent's reunion and what the accused had told Olivia regarding his and the deceased's efforts to see their GP and to see a counsellor together, and then what happened once they got back together (paragraphs 12 to 14). 2. This is followed by observations about what had happened after the reunion (paragraphs 15 and 16). Then the statement moves into a specifically detailed chronological statement by Olivia of what happened, to her observation on the days immediately prior to the death including 10 September 2016, the family lunch (paragraph 17), the last time she spoke to her father at about 12.45pm on Monday, 12 September 2016 (paragraph 19) and what happened on the morning of Tuesday, 13 September 2016 (paragraph 20). 3. I am satisfied that in context, paragraph 20 does not amount to a prior inconsistent statement because it does not make reference to her thoughts and concerns about the accused's lack of attention to looking after her children generally, but simply refers to the specific arrangements made for that day. 4. I accept that in broad terms Olivia's evidence in this regard is unfavourable to the prosecution and accordingly, I ruled that although I would not permit cross-examination on the basis that the police statement was inconsistent with the evidence Olivia gave at the 2018 trial, Olivia could be cross-examined on the basis that her evidence in regard to the accused's signs of impairment was unfavourable to the prosecution. 5. The second aspect of the application, the assertion that Olivia had "actively assisted the accused in setting up a substantial impairment defence prior to being interviewed by Dr Allnutt" was not, in my view, supported by the material in the telephone call. In debate, the Crown prosecutor suggested that a more neutral description could be allocated so cross-examination on the basis that Olivia "openly discussed with the accused that the psychiatrist is coming and that she suggested a number of things that the accused could say to him, and that she did this in an attempt to assist her father in his meeting with the psychiatrist." 6. I concluded that this was a permissible basis for cross-examination. 7. I also ruled that it was permissible to put to Olivia that she was exaggerating her evidence of the accused's mental state to assist him at the trial, given her love for him. This submission was open to the Crown on the evidence, and R v Kennedy at [35]-[40] in effect requires Olivia be given an opportunity to respond to that proposition in her evidence. Section 192 factors 1. Exploring these matters was unlikely to add to the length of the hearing: s 192(2)(a). The modified bases upon which I granted leave to cross-examine was not unfair to the accused or the witness: s 192(2)(b). The evidence was important and went to the heart of critical aspects of the Crown and defence case on substantial impairment in a murder trial: s 192(2)(c) and (d). I provided defence counsel with the opportunity for an adjournment if required (s 192(2)(e)), but that was declined as unnecessary. Ruling 1. The Crown is permitted to cross-examine Olivia Hoare in respect of her evidence that is unfavourable to the Crown case on: 1. (i) her observations relevant to the issue of the accused being impaired; 2. (ii) the contents of the gaol call on 14 October 2016 to the effect that she openly discussed with the accused that the psychiatrist was coming and that she suggested a number of things to him in an attempt to assist her father in his meeting with Dr Allnutt; and 3. (iii) that she is exaggerating her evidence of the accused's mental state to assist him at the trial, given her love for him. ********** 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