R v Rogers (No 6) [2019] NSWSC 688

Supreme Court New South Wales

Medium Neutral Citation: R v Rogers (No 6) [2019] NSWSC 688 Hearing dates: 21 May 2019 Date of orders: 21 May 2019 Decision date: 21 May 2019 Jurisdiction: Common Law Before: Lonergan J Decision: The reference in the evidence of Rosalie Douglas to "dead man walking" is excluded. Catchwords: CRIMINAL LAW – EVIDENCE – admissibility – lay opinion evidence – whether evidence of the opinion is necessary to obtain an adequate account or understanding of the witness's perception of the matter or event – exclusion 135 Legislation Cited: Evidence Act 1995 (NSW) ss 76, 78, 79 and 135 Cases Cited: Lithgow City Council v Jackson [2011] HCA 36 R v Van Dyk [2000] NSWCCA 67 Category: Procedural and other rulings Parties: Regina (Crown) Warren Rogers (Accused) Representation: Counsel: C Maxwell SC with 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 Crown has taken objection to a phrase "dead man walking" that is to form part of the evidence of a defence witness, Rosalie Douglas. The phrase was included in the account given by Ms Douglas at the first trial in July 2018 [at T580.46 to T580.49] as to her observations of the accused during a particular period in which he was separated from his wife: "He was like a dead man walking. He was pale. Warren was an athletic sort of person, always upright, stood upright and he was stooped and pale and an emotional mess, absolutely dead man walking." 1. The submission of the Crown prosecutor is, in short, that the evidence is opinion evidence and therefore inadmissible pursuant to s 76 of the Evidence Act 1995 (NSW) ("the Act"), that it is not expert opinion evidence, and is therefore not admissible pursuant to the exception to the rule of exclusion that is contained in s 79 of the Act, and that the evidence does not fall within the exception provided for lay opinion evidence contained in s 78 of the Act. 2. The relevant provisions are: 76 The opinion rule (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. (2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. 78 Exception: lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event." 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. … 1. The Crown argued that evidence of the opinion "dead man walking" is not in any way necessary to obtain an adequate account or understanding of Ms Douglas's perception of the matter or event as required by s 78 of the Act, because when she used the expression, she was able to cite a number of physical aspects she observed about the accused that communicated, more than adequately, her perception of his demeanour at the time. 2. As I understand the position there is no disagreement regarding the opinion being based on what Ms Douglas saw, heard or otherwise perceived about a matter or event (s 78(a)). The area for dispute is whether the opinion "dead man walking" is necessary to obtain an adequate account or understanding (s 78(b)). 3. Defence counsel Mr Pontello argued that Ms Douglas's evidence was critical to a fact in issue which is the accused's level of functioning in the weeks leading up to the death and is highly relevant to the issue of substantial impairment. 4. Mr Pontello relied upon Lithgow City Council v Jackson [2011] HCA 36 where the majority stated with respect to the category of evidence covered by s 78 of the Act at [48]: "… Evidence about a place in which a person has fallen and about the injuries of that person is not within the category of cases where lay opinion evidence was admissible at common law and is admissible under s 78. The function of the law in relation to that category is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. Where the evidence is that a person appeared to be drunk or middle-aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness's perception of the sobriety, age or emotional state being observed. But in cases of the present type the primary facts are not too evanescent to remember or too complicated to be separately narrated. It would be possible for an observer to list his or her perceptions of specifically identifiable medical circumstances of someone found in a drain, perceptions of specifically measurable distances between limbs and other objects and perceptions of specifically describable angles of limbs. Professional investigators like police officers, for example, commonly make precise measurements of that kind and compose diagrams to illustrate what they have measured. Those persons can often remember what they have measured even without recourse to their notes. The process is not one where component observations are made which are incapable of meaningful expression without stating the composite opinion to which they led. It is not necessary, in order to obtain an adequate account or understanding of perceptions of that kind, that the opinion be received. Whether it would be possible for an observer who had compiled these details then to say at which point the person found in the drain fell into it would depend on whether the tender was relying on s 78 or s 79. At common law, expert opinion evidence can be given as to the cause of injuries by inference from their nature. There is no reason to doubt that similar evidence in suitable form, from suitably qualified experts, about the causation of injuries is admissible under s 79. Had the ambulance officers given evidence of the medical and physical details they observed, it would have been admissible. But a statement of a conclusion by them that the respondent fell from a particular place would be opinion evidence banned by s 76. It would not have passed through the s 79 gateway into admissibility because they were not experts. It would not have passed through the s 78 gateway into admissibility because it failed to satisfy s 78(b)." (footnotes omitted) 1. Mr Pontello argued that it is extremely difficult, if not impossible, for the witness to identify all the particular indications which led Ms Douglas to the view that the accused was "like a dead man walking" and therefore to adequately convey her perception of the level of his depression. Based on that, it was submitted that the evidence should be admitted. 2. The Crown prosecutor argued that what was said in Jackson illustrated why the evidence should be excluded because Ms Douglas was able to narrate the particular indications which led her to the conclusion that he was "like a dead man walking". That evidence did convey an adequate account and/or generate an adequate understanding of her perception of his emotional state as illustrated by the evidence that she gave at the last trial given the physical descriptors that she used. 3. The Crown prosecutor also argued a secondary objection that the phrase "dead man walking" should be excluded pursuant to s 135. Reliance was placed on the decision of R v Van Dyk [2000] NSWCCA 67 where the court examined the admissibility of a complainant's mother giving evidence that, to her observation, the accused in that case had a "look of wanting" when he was around young girls. The court there comprising Smart AJ (with whom Meagher JA and Simpson J agreed) took the view that the phrase "look of wanting" met the test under s 78(b). However it was held that there the evidence should have been excluded pursuant to s 137 of the Act. 4. The Crown prosecutor argued that here, the evidence should be excluded pursuant to s 135(b) which provides: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: … (b) be misleading or confusing, or 1. The Crown prosecutor argued that the phrase is a subjective one which can mean all manner of things and does carry a real risk of speculation from the jury. The imagery associated with the phrase includes images of a criminal on death row. A well-known and quite recent movie explored that scenario. The Crown prosecutor also cited the possibility that the phrase may mean that Ms Douglas had concerns the accused was on the brink of suicide (an issue about which there has been evidence led in this trial, that is the accused's suicidality both on the day of the death of the deceased as well as a subsequent attempt four months later while he was in custody), or it could be considered as a reference to the fact that he has a terminal illness, namely prostate cancer.