R v Rogerson; R v McNamara

THE PRESENT ISSUES

1. The present issues arise in the following way.
2. Jessica McNamara is the daughter of the accused McNamara. On 26 May 2015 I upheld an objection made by her pursuant to s. 18(2) of the Evidence Act 1995 (NSW) ("the Act") and ordered that she must not be required to give evidence at the trial of the two accused: R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592.
3. Following the delivery of that judgment the Crown indicated an intention to rely upon s. 65 of the Act in respect of parts of a statement made by Ms McNamara to the police. That course was opposed by counsel for Rogerson. Shortly after I heard argument in relation to the Crown's application to rely upon s. 65 I became aware of the decision of the Victorian Court of Appeal in Fletcher v R [2015] VSCA 146 in which the Court considered the issue of a party's reliance upon s. 65 where an objection under s. 18 had been upheld. I notified the parties of that decision and sought their further submissions. Shortly after those submissions had been received, but before I had delivered judgment, it was indicated to me that notwithstanding my decision to uphold her objection, Ms McNamara had re-considered her position and had apparently indicated that she was willing to give evidence. The parties agreed that if that were to transpire, the Crown would obviously not need to resort to reliance upon s. 65.
4. On 14 July 2015 Mr Juweinat, solicitor, appeared before the Court with Ms McNamara and informed me (T49 L25 and following) that he was instructed by Ms McNamara to withdraw her earlier objection, and that he was further instructed by Ms McNamara that she was now willing to give evidence. In circumstances where, at the time of Mr Juweinat's appearance, I was about to commence the hearing of an application by each of the accused for an order for a separate trial, I was informed that Ms McNamara's willingness to give evidence applied irrespective of whether the trials were joint or separate. On 21 July 2015 I dismissed the application made by each accused for an order for a separate trial: R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965.
5. Against the background I have outlined, the Crown now proposes to call Ms McNamara to give evidence in the Crown case. Counsel for Rogerson raises a number of issues concerning aspects of Ms McNamara's evidence as discussed below.

THE EVIDENCE OF MS McNAMARA

1. Ms McNamara made a statement to the police on 17 June 2014. The circumstances in which that statement was made are set out in full in my previous judgment dealing with Ms McNamara's objection to giving evidence at [13]-[22]. Those aspects of her evidence which are relevant for present purposes are contained with that part of her statement extracted at [27] of my previous judgment. Ms McNamara gave further evidence about such matters before me on the hearing of her objection, the relevant parts of which are set out at paragraphs [29]-[34] of my previous judgment.
2. The circumstances in which Ms McNamara made her statement, the contents of that statement, and the evidence that she gave before me on the hearing of the earlier application, initially gave rise to some confusion as to precisely what evidence the Crown would seek to elicit from her in the event that she was called as a witness at the trial. However as I noted in my previous judgment (at [34]) the Crown resolved that confusion by indicating that if Ms McNamara were called, evidence would be adduced from her regarding those matters referred to in the extracts of her evidence which appear at paragraphs [29] to [32] of my previous judgment. That evidence encompasses the following propositions which are relevant for present purposes: 1. on the afternoon of the deceased's murder, and whilst Rogerson and McNamara were at her premises, Ms McNamara observed McNamara to be "skittish, uneasy and upset"; 2. in the course of a conversation at the time Rogerson looked at McNamara and said: "Glen, you have such lovely, lovely daughters. They are lovely girls"; 1. as she looked at Rogerson, Ms McNamara saw "a lump… like at the pocket of his pants" which was "black or a dark colour…"
3. In addition, the Crown will seek to lead evidence that at the time of making the statement in (ii) above Rogerson was "tapping" the pocket in which Ms McNamara saw the lump.
4. There are three additional matters which should be noted and which are relevant to the present issues.
5. Firstly, and as set out in my previous judgment (at [26]), Ms McNamara had initially told the police that she in fact saw a gun in Rogerson's pocket. She admitted in her evidence before me (at [26]) that this was not true. It is not the Crown's intention to lead evidence from Ms McNamara that she actually saw a gun. Further, as discussed further below, counsel for McNamara informed me in the course of submissions that he does not propose to cross-examine Ms McNamara in relation to that issue.
6. Secondly, on the Crown case, these events about which Ms McNamara will give evidence occurred at McNamara's home only a matter of hours after the deceased was murdered.
7. Thirdly, on the Crown case, a handgun was used to kill the deceased. That gun has not been recovered.

Submissions on behalf of Rogerson

1. Counsel for Rogerson initially objected to these particular aspects of the evidence of Ms McNamara on the basis that it was: 1. in the nature of opinion evidence and/or; 2. irrelevant and/or; 3. hearsay.
2. Counsel initially submitted that in the event that I concluded that any of the evidence was admissible, it should be excluded pursuant to s. 135 or s. 137 of the Act.
3. However the final position adopted by counsel for Rogerson was somewhat different. In oral argument, counsel accepted (at T225 L39-44) that the evidence was relevant and that it was open to the Crown to lead it. Counsel's principal concerns arose from what might occur during any cross-examination of Ms McNamara by counsel for McNamara (T229 L30-32).
4. In particular, counsel for Rogerson objected (at T226 L31-34) to any attempt by counsel for McNamara to "cross-examine in … the proposition that the lump was in fact a gun". He submitted that any such evidence should be excluded pursuant to s. 135(b) of the Act. Counsel for Rogerson also objected (at T227 L1) to any cross-examination of Ms McNamara regarding her initial assertion to the police that she in fact saw a gun. It was submitted (at T227 L37) that to permit counsel for McNamara to cross-examine in relation to that issue would be to "set up a proposition that … (would) be completely defeated by reference to the witness' own evidence". Finally, counsel submitted that Ms McNamara's evidence of the words said by Rogerson, if sought to be relied upon as a threat, should be excluded under s. 135(b) of the Act.
5. In submissions in reply, the position of counsel for Rogerson in relation to Ms McNamara's evidence of observing a lump in Rogerson's pocket appeared to shift somewhat. Having expressly accepted (at T225 L44) that it was not open to him to object to this evidence being led by the Crown, counsel for Rogerson then submitted to the contrary. In particular, he submitted (commencing at T236 L10) that in light of Ms McNamara's concession that she had not been truthful when she told the police she had seen a gun, there was no rational basis for the Crown to ask the jury to infer that the lump which she saw was a gun. In support of this submission, counsel pointed to the evidence given on the hearing of Ms McNamara's original objection as to the circumstances in which her statement had come to be made to the police. In particular, counsel pointed to the fact that those officers taking the statement had not believed Ms McNamara's original account, which included the assertion that she had seen a gun.

Submissions on behalf of McNamara

1. In written submissions, counsel for McNamara submitted that the entirety of the evidence was both relevant and probative. In particular, it was submitted (commencing at para. 3 of the submissions) that: 1. McNamara would, as part of his defence to the second count in the indictment, assert that he was acting under duress; 2. such duress was constituted by (inter alia) threats made by Rogerson to McNamara whilst the two of them were in the storage shed, along with "implied threats to the accused's daughters"; 3. McNamara would assert that Rogerson, having shot the deceased in the shed, retained the handgun in his pocket.
2. Specifically in respect of (ii) above, counsel for McNamara informed me (at T223 L42) that McNamara would assert in evidence that whilst he and Rogerson were at the storage shed, Rogerson threatened him with the gun and said to him words to the effect: "Glen, I'd hate to go and see your lovely daughters".
3. The written submissions went on to state the following: "The defence of the accused McNamara seeks to present to the jury the evidence of what Jessica McNamara saw and heard when the co-accused Rogerson and her father were together in the house on 20 May 2014 in her presence. The defence accept such evidence in chief would not include her opinion of what she may have thought the object to be in Rogerson's pocket. It specifically accepts for this purpose that she cannot say she saw a gun... The witness accepts and the defence accepts she cannot give evidence of her conclusion or opinion. Her eyewitness evidence is relevant under s55 Evidence Act" (emphasis added).
4. In the course of oral argument (at T231 L34-46) Counsel for McNamara made it clear that as presently instructed, he does not propose to cross-examine Ms McNamara regarding her original statement to the police that she had seen a gun. However, he submitted that her evidence that she had seen a lump in Rogerson's pocket, along with her other evidence, was clearly relevant to the defence of duress which is to form part of McNamara's case on the second count.

Submissions on behalf of the Crown

1. The Crown submitted, in short, that the entirety of the evidence was relevant and admissible. The Crown explained that the jury would be asked to infer that the lump observed by Ms McNamara in Rogerson's pocket was in fact a gun. The Crown proposes to rely upon a number of surrounding circumstances to support that inference, including those matters set out at [14] and [15] above.

THE RELEVANT STATUTORY PROVISIONS

1. Section 55 of the Act is in the following terms: 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.
2. Section 135, upon which counsel for Rogerson relied in part, is in the following terms: 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: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time.

Evidence as to observations of demeanor

1. Although an objection was initially raised in relation to this evidence, counsel for Rogerson ultimately accepted that such evidence was relevant and admissible. Contrary to what was originally suggested, the evidence is not evidence of opinion. Rather, it is evidence of what Ms McNamara herself observed. That said, the Crown must take care to lead the evidence in a form which is properly admissible. Whilst Ms McNamara is able to give evidence of what she saw, it is not open to her to express her observations in the form a conclusion. Subject to that, the evidence is relevant and admissible.

Evidence of the statement made by Rogerson

1. The test of relevance under s. 55 of the Act is wide one. The word "could" as it is used in the section means "it is possible that it may": Nye v New South Wales [2002] NSWSC 1270 at [13]. Moreover, the effect of a particular piece of evidence on the assessment of the relevant probability (namely, the probability of a fact in issue) may be direct or indirect: Zaknic v Svelte Corp Pty Limited (1995) 140 ALR 701 at 704.
2. Absent the details of McNamara's defence which were provided by counsel in oral submissions, I may well have concluded that the evidence of Rogerson's statement, if admissible, should be excluded under s. 135(b). However it is clear, at least as far as the second count is concerned, that McNamara will assert that if he was in possession of a quantity of prohibited drugs, it was because he was acting under duress. In Lynch v Director of Public Prosecutions for Northern Ireland [1975] AC 653 Lord Simon of Glaisdale expressed what he described as a "working definition" of duress in the following terms (at 686): "I take it for present purposes to denote such [well grounded] fear, produced by threats, of death or grievous bodily harm [or unjustified imprisonment] if a certain act is not done, as overbears the actor's wish not to perform the act, and is effective, at the time of the act, in constraining him to perform it".
3. Significantly, the relevant threat may be directed to persons other than an accused himself (such as members of an accused's family) if such a threat would be likely to coerce or compel a person of ordinary firmness of character to yield by committing the crime in question: R v Abusafiah (1991) 24 NSWLR 531 at 537 per Hunt J (Gleeson CJ and Mahoney JA agreeing) citing R v Hurley and Murray [1967] VR 526 at 542-543; R v Dawson [1978] VR 536 at 537-538; R v Lawrence [1980] 1 NSWLR 122 at 140-141; 158-159.
4. In these circumstances, and in light of what I have been told about the nature of McNamara's defence to the second count in the indictment, I am satisfied that the evidence of Ms McNamara as to the statement made by Rogerson is relevant. On the same basis, her evidence of Rogerson tapping his pocket is also relevant. There is no basis for the exclusion of such evidence under s. 135.

Evidence of the observation of the lump in Rogerson's pocket

1. I have already referred (at [25] above) to the inference that the Crown will ask the jury to draw from these aspects of Ms McNamara's evidence. In this regard it is important to bear in mind that the Crown case is, to a large extent, a circumstantial one, and is therefore to be viewed as a whole and not in a piecemeal fashion: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48] per Gummow, Hayne and Crennan JJ.
2. I have also previously noted (at [24] above) that counsel for McNamara has made it clear that he does not propose to cross-examine Ms McNamara as to her original assertion that she saw a gun. Accordingly, the fear expressed by counsel for Rogerson (at [19] above) about what might flow from such cross-examination falls away.
3. For the reasons previously stated, the evidence of Ms McNamara's observation must be viewed in the context of the entire circumstantial case. In my view, the various circumstances relied upon by the Crown provide a sufficient evidentiary basis on which to invite the injury to infer that there was a gun in Rogerson's pocket at the time. In light of the Crown case, the observation is clearly relevant. It is also relevant in light of what I am told is McNamara's defence to the second count.
4. The fact that Ms McNamara originally (and untruthfully) asserted that she actually saw a gun - as opposed to a lump - in Rogerson's pocket is not a factor which supports the exclusion of the evidence. In particular, and contrary to the submission advanced by counsel for Rogerson, Ms McNamara's concession that she did not actually see a gun does not mean that there is no basis upon which the Crown may ask the jury to draw the inference that Rogerson was in fact in possession of a gun. Such a submission overlooks the fundamental fact that Ms McNamara will give evidence of seeing a lump. The submission also overlooks the fact that the basis of the inference that the Crown will ask the jury to draw is not limited to Ms McNamara's observation, but extends to a series of other matters. Moreover, the fact that the investigating officers did not believe Ms McNamara's assertion that she saw a gun is of no consequence at all. The Crown is not intending to lead that evidence and in any event, as I observed in my judgment dealing with Ms McNamara's original objection (at [20] and [22]), investigating officials are not the arbiters of the truth of what a witness might say. The acceptance or rejection of any part of Ms McNamara's evidence will be a matter for the jury.

CONCLUSION

1. For the reasons outlined above, and subject to any issue of form, I allow the evidence of Ms McNamara set out in [10] and [11] above.

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