R v Rogerson; R v McNamara

Supreme Court of NSW|2015-06-05|Before: Bellew J

INTRODUCTION

Roger Caleb Rogerson ("Rogerson") and Glen Patrick McNamara ("McNamara") have previously pleaded not guilty to an indictment alleging: 1. the murder of Jamie Gao ("the deceased") on 20 May 2014; and 2. the supply of a prohibited drug, namely 2.78 kilograms of methylamphetamine, being an amount not less than the large commercial quantity applicable to that drug.
On 5 June 2015 the Crown presented an amended indictment which, as against Rogerson, pleaded (as an alternative to the first count) a count alleging an offence of being an accessory after the fact to murder. Rogerson has pleaded not guilty to that alternative count.

THE TENDENCY NOTICE

The Crown has served a tendency notice on each of the accused pursuant to s. 97 of the Evidence Act 1995 (NSW) ("the Act"). The tendency notice states (inter alia) the following: "1. The person whose "tendency" is the subject of the evidence sought to be adduced is Glen McNamara. 2. The tendency sought to be proved is his tendency to act in a particular way, namely to take part in the supply of illegal drugs with Chinese people and to offer his expertise from his previous experience as an undercover Police officer to teach others involved with him, how to avoid police apprehension. … 6. In the view of the lawyer with the current conduct of the matter, the tendency evidence sought to be adduced bears upon the facts in issue in this prosecution, including the following facts in issue: a) whether the accused Glen McNamara was involved in the supply of prohibited drugs with the deceased Jamie Gao; and b) whether the accused Glen McNamara offered his expertise from his previous experience as an undercover Police officer to the deceased Jamie Gao to teach Jamie Gao how to avoid police apprehension.
Counsel for each accused objects to the Crown's reliance upon the evidence set out in the notice as tendency evidence.

THE EVIDENCE

Each notice identifies the tendency evidence as that contained in paragraphs [26] and [29] of a statement of Lok Chun Lam ("Lam") dated 20 June 2014. Lam was one of the persons involved in the "criminal matter" to which reference is made in paragraph [1] of the Crown Case Statement. Paragraphs [26] and [29] of Lam's statement are in the following terms: "[26] Glen asked me if I would still be doing this kind of business after I am finished with this case. I took this to mean that he was referring to the drug business. I told him that I didn't want to be in gaol again. Glen said that he can teach me many things because he was an ex cop and that he knows how the police work. He told me he could teach how to not get followed by the cops. He would teach me how to not get arrested again. He talked about when you do drug deals there are some areas where the police can't follow you. I told him I was not interested anymore and that I just want to win my case and move back to Hong Kong. Glen was speaking to me in very simple English so I could understand him. … [29] Glen told me he will get the statement for me to help with my case soon. He asked me if I had the money yet and I said no. Glen asked me about drugs again. He asked me if I had any drugs to sell as he had customers. He told me he deals with the Italian Mafia. I told him that I didn't have any drugs. Glen told me that he also has drugs and that he deals them. He said do I have any customers or not and I said no. I thought that Glen wanted to do some drug deals with me. He wanted to see if I can get drugs for him or if I wanted to buy drugs from him. I was very worried about Glen because he was an ex cop and I didn't know if I could trust him. I thought that he was trying to set me up and that he might be an undercover cop or something. Jamie was sitting listening to this conversation. I was there with Glen and Jamie for about 15 minutes. When I left Jamie and Glen were still at the hotel together. Jamie translated the entire conversation to me with Glen".

THE RELEVANT STATUTORY PROVISIONS

Section 97 of the Act is in the following terms: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
Section 101 of the Act is also relevant and is in the following terms: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

CONSIDERATION

The tendency on the part of McNamara which the Crown submits is established by the evidence is a tendency to: 1. take part in the supply of illegal drugs with Chinese people; 2. offer his expertise, from his previous experience as an undercover Police officer, to teach others involved with him how to avoid police apprehension.
In Saoud v R [2014] NSWCCA 136; (2014) 87 NSWLR 481, Basten JA made the following observations regarding the operation of s. 97 (at [27]-[28]): [27] The "tendency rule" set out in s. 97 of the Evidence Act commences with the proposition that evidence of "the character, reputation or conduct of the person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency … to act in a particular way, or to have a particular state of mind": s. 97(1). The exception to the rule permits such evidence if the court thinks that it will "either by itself or having regard to other evidence adduced or to be adduced … have significant probative value: s. 97(1)(b). [28] Tendency evidence can take various forms; it is not necessarily based on the conduct of the accused on separate occasions. On the other hand, when it is there will be an inherent element of similar behaviour in order to demonstrate a tendency, absent which the section is not engaged.
For the purposes of assessing whether or not the evidence has significant probative value, the degree of specificity of the conduct which is alleged to evince a tendency is important: O'Keefe v R [2009] NSWCCA 121 at [65]-[68]. In GBF v R [2010] VSCA 135 the Victorian Court of Appeal (Nettle JA (as his Honour then was), Harper JA and Hansen AJA said (at [31]): "Ordinarily, the greater the generality with which a tendency is stated, the less likely that evidence of the tendency has significant probative value in relation to a fact in issue".
Further, it has been observed that except in rare circumstances, a court should not assess the credibility and reliability of evidence when determining the question of probative value, except where those issues are such that it would not be open to a jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue: R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; KMJ v State of Tasmania [2011] TASCCA 7; (2011) 20 Tas R 425; 218 A Crim R 87; R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363; 231 A Crim R 474.
In the present case, the first tendency said to be established by the evidence is a "tendency to take part in the supply of illegal drugs with Chinese people". Apart from broad references to "this kind of business" and "drug deals", there is nothing in paragraph [26] of Lam's statement which goes in any way towards establishing the tendency alleged. The same is the case in respect of paragraph [29], save for some similarly broad references to dealing in drugs. In order for tendency evidence to have significant probative value it must be capable of rationally effecting the assessment of the probability of the existence of a fact in issue to a high degree: R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [50]. I am not satisfied that the evidence which is said to support the first tendency meets that test.
The second tendency said to be established by the evidence is a tendency on the part of McNamara to "offer his expertise from his previous experience as an undercover Police officer to teach others involved with him how to avoid Police apprehension". There are references to McNamara having such expertise in paragraph [26] of Lam's statement. However I am similarly not satisfied that such evidence has the significant probative value referred to in s. 97 for a number of reasons.
Firstly, the evidence is an account of what Lam says he was told, through an interpreter, by the accused about his conduct. Secondly, arising from the first matter, the evidence is not direct evidence of the accused's actual conduct. Thirdly, the tendency is said to be a tendency on the part of McNamara to "offer his expertise". Read carefully, Lam's statement records McNamara telling him that he had certain knowledge about police operations. He does not state, in specific terms, that any "offer" was made to him. In these circumstances I am not satisfied that the evidence meets the test imposed by s. 97.

CONCLUSION

For the reasons outlined above, the Crown's application to rely upon tendency evidence is refused.

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: 15 June 2016

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