R v Rogerson; R v McNamara

Supreme Court of NSW|2015-05-15|Before: Bellew J, Mr P, Ms J

INTRODUCTION

Roger Caleb Rogerson and Glen Patrick McNamara have each pleaded not guilty to an indictment alleging: 1. the murder of Jamie Gao ("the deceased") on 20 May 2014; and 2. the supply, on the same day, of a prohibited drug, namely 2.78 kilograms of methylamphetamine, being an amount not less than the large commercial quantity applicable to that drug.
The joint trial of the accused is listed to commence on 20 July 2015.
By notice of motion filed on 18 April 2015 the accused Rogerson sought a number of orders including the following: "(7) An order that the evidence of Jessica McNamara as contained in her witness statement made on 17 June 2014 be excluded as evidence at the trial or otherwise order that the admissibility of the contents of her witness statement be limited as directed by the court. (8) An order that the evidence of Detective Senior Constables Hathem Jouni and Chris Lindsay be excluded in relation to their dealings with the witness Jessica McNamara."
The accused McNamara filed a notice of motion on 24 April 2015 seeking (inter alia) orders in identical terms to those in [3] above.
Jessica McNamara is the daughter of the accused Glen Patrick McNamara. She has provided two statements to police. The Crown Prosecutor has indicated that he intends to call her to give evidence at the trial. Ms McNamara has objected to giving evidence. In doing so, she has sought to invoke the provisions of s. 18 of the Evidence Act 1995 ("the Act").
Accordingly, the first matter for determination is Ms McNamara's objection under s. 18. If I resolve that issue in her favour, that will also resolve those parts of the Notices of Motion filed on behalf of the respective accused seeking the exclusion of her evidence. If I do not uphold Ms McNamara's objection under s. 18, it will be necessary for me to hear submissions from counsel for each of the accused as to why her evidence should otherwise be excluded.

THE CROWN CASE

In order to place the objection taken by Ms McNamara into its proper context it is necessary for me to set out, in summary form, the Crown case. I do so by reference to the Crown Case Statement filed in the proceedings which is in the following terms: 1. In January 2014 Jamie GAO (the deceased) was introduced to the accused Glen Patrick McNAMARA by an associate who had retained the services of McNAMARA as a private investigator to assist with the defence of a criminal matter. 2. Between January 2014 and May 2014 the deceased and McNAMARA were involved in negotiations relating to the purchase of a large commercial quantity of the prohibited drug methylamphetamine by McNAMARA from the deceased. 3. In February 2014 the deceased travelled to Hong Kong. While there he made arrangements to purchase large quantities of methylamphetamine, which would be shipped to the deceased in Australia from China. 4. The deceased was unsuccessful in his attempts to get ten kilograms of methylamphetamine to supply to McNAMARA. The deceased was later granted permission to supply McNAMARA with three kilograms of methylamphetamine. 5. On 21 February 2014 Michael MAGUIRE leased storage shed 803 at Rent a Space, Padstow. MAGUIRE moved a quantity of office furniture into this storage shed on 24 February 2014. 6. Approximately two weeks after leasing the storage shed, MAGUIRE gave the keys and access codes to an associate, the accused Roger Caleb ROGERSON. ROGERSON returned the keys to MAGUIRE two days later. 7. On 2 April 2014 a silver Ford Falcon station wagon, resembling a vehicle owned by ROGERSON, attended Rent a Space, Padstow. 8. On 4 April 2014 a blue Ford Falcon XR6, resembling a vehicle owned by McNAMARA, attended Rent a Space, Padstow. This vehicle was immediately followed by a silver Ford Falcon station wagon, resembling a vehicle owned by ROGERSON. 9. On 3 April 2014 a Chinese national named Shun Yip CHAN arrived in Sydney from Hong Kong. There was regular telephone contact between CHAN and the deceased after CHAN arrived in Australia. 10. On 22 April 2014 a Chinese national named Kai Tak FUNG arrived in Australia from Hong Kong. There was regular telephone contact between FUNG and CHAN after FUNG arrived in Australia. 11. During April and May 2014 the deceased told a number of friends and associates that he was arranging to supply a male he referred to as "Glen" with a large quantity of methylamphetamine. Further, the deceased stated that this supply was to occur at a storage facility in Padstow. The Crown will allege that the male referred to as "Glen" is the accused McNAMARA. 12. On 27 April 2014 a white Ford Falcon station wagon, registration BV67PX was purchased from Outback Used Cars at Letherbridge (sic) Park. The receipt from the purchase of this vehicle was located by Police during a search warrant at McNAMARA's premised on 24 May 2014. Subsequent analysis of this receipt revealed a fingerprint of ROGERSON on it. 13. At approximately 10.00am on 19 May 2014 McNAMARA removed his 4.5 metre Quintex boat from Hunter Self Storage at Taren Point. McNAMARA towed the boat with his blue Ford Falcon XR6, registration 260BOS. When removing his boat McNAMARA did not notify staff or follow normal procedure whereby the boat would be "signed out". 14. At approximately 1.20pm McNAMARA drove his blue Ford Falcon XR6, registration 260BOS towing his boat into the underground car park of the Cote D'Azur apartments, 1-3 McDonald Street, Cronulla, where McNAMARA lived at the time. 15. At approximately 3.15pm on 19 May 2014 ROGERSON attended Rent a Space, Padstow driving his silver Ford Falcon station wagon, registration AF70SR. ROGERSON parked outside storage shed 803. ROGERSON removed a number of office chairs from the storage shed and placed them in the rear of his vehicle. 16. At approximately 7.50pm on 19 May 2014 McNAMARA met with the deceased at the Meridian Hotel, Hurstville. This meeting lasted for approximately thirty minutes. Closed circuit television (CCTV) from within the Meridian Hotel shows that CHAN and FUNG were observing this meeting. 17. During the morning of 20 May 2014 McNAMARA was in telephone contact with ROGERSON. 18. At approximately 11.37am McNAMARA used a payphone in the Cronulla mall to telephone the deceased. The Crown will allege that this was to confirm a meeting later that day when the deceased would supply the three kilograms of methylamphetamine. 19. At approximately 12.04pm the white Ford Falcon station wagon, registration BV67PX drove in to the underground car park of the Cote D'Azur apartments. The vehicle exited the car park at 12.10pm. 20. At approximately 1.16pm ROGERSON arrived at Rent a Space, Padstow driving his silver Ford Falcon station wagon, registration AF70SR. McNAMARA was seated in the passenger seat at the time. 21. ROGERSON parked in the vicinity of storage shed 803 and both he and McNAMARA walked to, and then entered, storage shed 803. McNAMARA was wearing a hooded jumper and was carrying something under his arm as he walked. At approximately 1.25pm ROGERSON and McNAMARA drove away in ROGERSON's vehicle. 22. At approximately 1.33pm the white Ford Falcon station wagon, registration BV67PX was driven along Arab Road, Padstow. The vehicle parked on the northern side of Arab Road near, and facing, Davies Road. The Crown will allege that this vehicle was driven by McNAMARA. 23. Moments after the white Ford Falcon drove on Arab Road, the silver Ford Falcon station wagon, registration AF70SR owned by ROGERSON drove on Arab Road and performed a u-turn outside Mick's Meats and parked on the street outside that business's car park. 24. At approximately 1.39pm the deceased's white Nissan Sylvia vehicle, registration BW043W arrived in Arab Road, Padstow. The deceased was driving the vehicle and CHAN and FUNG were passengers. 25. As the deceased drove on Arab Road, ROGERSON moved his vehicle from outside Mick's Meats and parked in the car park of that business. The deceased parked in the space vacated by ROGERSON. 26. The deceased got out of his vehicle carrying a black back pack and walked to the white Ford Falcon, registration BV67PX which the Crown alleges was driven by McNAMARA. The deceased got in to the vehicle, while CHAN and FUNG remained with the deceased's vehicle. The Crown will allege that the backpack carried by the deceased contained the three kilograms of methylamphetamine that the deceased intended to supply to McNAMARA. 27. ROGERSON exited the Mick's meats car park in his silver Ford Falcon station wagon, registration AF70SR and followed the white Ford Falcon station wagon, registration BV67PX containing the deceased and McNAMARA along Arab Road and on to Davies Road. 28. At approximately 1.42pm the white Ford Falcon station wagon, registration BV67PX driven by McNAMARA and containing the deceased, arrived at Rent a Space, Padstow. 29. McNAMARA parked the vehicle outside storage shed 803. McNAMARA opened the roller door to storage shed 803, and then opened the rear passenger door of the vehicle to allow the deceased to walk into the storage shed at approximately 1.45pm. McNAMARA closed the roller door when both he and the deceased were inside. 30. At approximately 1.46pm ROGERSON's silver Ford Falcon station wagon, registration AF70SR arrived outside storage shed 803. ROGERSON drove a lap around the complex then parked in an adjoining driveway. 31. At approximately 1.49pm ROGERSON entered storage shed 803 and closed the roller door behind him. 32. At approximately 1.58pm ROGERSON exited storage shed 803 and moved his vehicle to park outside storage shed 803, directly behind the white Ford Falcon station wagon, registration BV67PX. He then re-entered the storage shed and closed the roller door. 33. The Crown will allege that the deceased was killed some time between entering the storage shed with McNAMARA at 1.45pm, and ROGERSON exiting the storage shed to move his vehicle at 1.58pm. 34. At approximately 2.03pm McNAMARA emerged from the storage shed. He was no longer wearing the hooded jumper that he had been wearing when he arrived with the deceased. Instead, McNAMARA was wearing a pink t-shirt. 35. At approximately 2.09pm McNAMARA exited the storage shed and removed an empty silver surf board cover from the rear of the white Ford Falcon station wagon, registration BV67PX. He then re-entered the storage shed. 36. At approximately 2.18pm McNAMARA and ROGERSON dragged the silver surf board cover from the storage shed and loaded it in to the rear of the white Ford Falcon station wagon, registration BV67PX. The Crown will allege that the silver surf board cover contained the body of the deceased. Both McNAMARA and ROGERSON placed a number of office chairs from inside the storage shed on top of the silver surfboard cover in the rear of the vehicle. 37. At 2.22pm ROGERSON and McNAMARA got in to their respective cars and drove out of Rent a Space. 38. At approximately 3.00pm McNAMARA and ROGERSON arrived at the Cote D'Azur apartments in Cronulla in the white Ford Falcon Station wagon, registration BV67PX, and entered the underground car park. The vehicle also contained the body of the deceased inside the silver surfboard cover, and also the methylamphetamine that the deceased had brought to the meeting with McNAMARA. 39. CCTV footage from within the lifts at the Cote D'Azur apartments shows McNAMARA in a lift at approximately 3.12pm wearing a pink t-shirt and carrying rope. The Crown will allege that this is the same pink t-shirt that McNAMARA was wearing at Rent a Space earlier in the afternoon. 40. At about 4.00pm that afternoon McNAMARA and ROGERSON left the Cote D'Azur apartments in the white Ford Falcon station wagon, registration BV67PX and drove to Kennards Hire, Taren Point. 41. At Kennards Hire, Taren Point, McNAMARA and ROGERSON hired a chain block. This was paid for using McNAMARA's credit card. 42. At about 4.50pm the white Ford Falcon station wagon, registration BV67PX returned to the Cote D'Azur apartments and Cronulla and entered the underground car park. 43. CCTV footage from inside the lift at the Cote D'Azur apartments shows McNAMARA and ROGERSON together getting in to a lift on the basement level at approximately 6.24pm. 44. During the afternoon and evening of 20 May 2014, friends of the deceased became increasingly concerned for his welfare. They attempted to locate the deceased without success. The deceased's mobile phone, wallet and passport were in his vehicle, which was still parked in Arab Road, Padstow, where CHAN and FUNG were waiting for the deceased to return. 45. On 21 May 2014 friends of the deceased contacted NSW Police and expressed concerns for the welfare of the deceased. 46. At about 7.10am on 21 May 2014, McNAMARA entered the lift at the Cote D'Azure apartments carrying a plastic bag. CCTV footage from within the lift shows what appears to be clothing in the bag, including a pink item which the Crown will allege was the pink shirt that McNAMARA was wearing the previous day. 47. At about 7.30am McNAMARA's blue Ford Falcon XR6, registration 260BOS drove out of the underground car park at the Cote D'Azur apartments towing McNAMARA's Quintex boat. In the back of the boat was an uncovered surfboard, and the body of the deceased wrapped in a blue tarpaulin. ROGERSON was with McNAMARA at this time. 48. The Crown will allege that between about 8.00am and 11.00am on 21 May 2014 McNAMARA and possibly ROGERSON took the Quintex boat out to sea off the coast of Cronulla and disposed of the body of the deceased in the ocean. 49. At about 11.00am on 21 May 2014 McNAMARA arrived at Hunter Self Storage, Taren Point towing his Quintex boat with his blue Ford Falcon XR6, registration 260BOS. McNAMARA returned the boat to storage without notifying staff or following normal procedure whereby the boat would be "signed in". He then left Hunter Self Storage. 50. At approximately 12.30pm on 21 May 2014 McNAMARA and ROGERSON arrived at Rent a Space, Padstow in McNAMARA's blue Ford Falcon XR6, registration 260BOS. Both men entered storage shed 803, and at one point ROGERSON exited the storage shed in order to fill a green bucket with water. The Crown will allege that over approximately 40 minutes both ROGERSON and McNAMARA cleaned the storage shed. 51. On the morning of 22 May 2014 McNAMARA attended K-Mart, Sylvania and purchased brown pillow cases, a measuring jug, and a plastic spoon. 52. Later that morning ROGERSON returned to Rent a Space, Padstow in his silver Ford Falcon station wagon, registration AF70SR. He parked outside storage shed 803 and removed an office chair from the boot of his vehicle. He placed the chair inside the storage shed, and then left. 53. In the early hours of 24 May 2014, Police executed a search warrant at the Cote D'Azur apartment, Cronulla, and seized the white Ford Falcon station wagon, BV67PX. In the rear of the vehicle Police located a green backpack which contained a brown pillow case. Inside the brown pillow case were two large resealable plastic bags, each containing a crystallised substance. 54. Under the driver's seat was another brown pillow case containing another resealable plastic bag filled with a crystallised substance. 55. Subsequent analysis of this crystallised substance revealed it to be the prohibited drug methylamphetamine with a total combined weight of 2.78 kilograms. 56. Forensic analysis of the inside of the vehicle BV67PX revealed the presence of McNAMARA's fingerprint on the inside driver's door. 57. After the seizure of the vehicle by Police, McNAMARA made a number of telephone calls to ROGERSON. At about 11.15am on 24 May 2014 McNAMARA drove to the Sydney Domestic airport and met with ROGERSON, who was at the airport preparing to depart for a pre-arranged trip to Queensland. 58. At about 6.20pm on 25 May 2014, McNAMARA was arrested while driving his blue Ford Falcon XR6, registration 260BOS. He was taken to St George Police Station, where he agreed to participate in an electronically recorded interview with Police. During the video recorded interview McNAMARA was shown a number of photographs and stills from CCTV footage. He declined to answer any questions. McNAMARA was then charged. 59. That evening Police executed a search warrant on McNAMARA's home in the Cote D'Azur apartments, at 1-3 McDonald Street, Cronulla. Among the items located by Police were the following: • The keys to the white Ford Falcon station wagon, registration BV67PX • A handwritten note containing the entry code for Rent a Space, Padstow • A receipt for the purchase of the white Ford Falcon station wagon, registration BV67PX, containing ROGERSON's fingerprint 60. During the evening of 25 May 2014 Police also executed a search warrant at Hunter Self Storage, Taren Point. McNAMARA's Quintex boat was seized. Inside the boat Police located a surfboard without a cover. 61. During the same evening Police executed a search warrant at ROGERSON's premises at 22 Churchill Street, Padstow. Police seized clothing similar to that worn by ROGERSON in CCTV footage from Rent a Space, Padstow on 20 May 2014. 62. Police also seized ROGERSON's silver Ford Falcon station wagon, registration AF70SR. The vehicle contained a number of ropes and a chain. 63. During the evening of 25 May 2014 Police also executed a search warrant at storage shed 803 at Rent a Space, Padstow. Forensic examination of the storage shed revealed the presence of McNAMARA's fingerprints inside the storage shed. 64. During the morning of 26 May 2014 the body of the deceased was located floating approximately 2.5 kilometres off the shore of Shelly Beach, Cronulla. The deceased's body was within a silver surf board cover, and the bag was wrapped in a blue tarpaulin. The deceased's ankles were tied together with ropes on the outside of the surfboard cover, and the blue tarpaulin was wrapped in chains and rope. 65. A subsequent post mortem revealed that the deceased had been shot twice in the chest with a .25 calibre firearm, causing his death. 66. Forensic examination of the ropes wrapped around the surfboard cover and the ropes and chain wrapped around the blue tarpaulin revealed them to be consistent in colour pattern, thickness, and type to those found in the boot of ROGERSON's silver Ford Falcon station wagon, registration AF70SR. 67. On 27 May 2014 ROGERSON was arrested at his home. He declined the offer to participate in an electronically recorded interview with Police, and was subsequently charged.

THE EVIDENCE ON THE OBJECTION

The following documentary evidence was tendered on the objection: 1. a statement of Jessica McNamara dated 17 June 2014 (Exhibit 1); 2. a further statement of Jessica McNamara of 29 December 2014 (Exhibit 2); 3. a statement of Detective Senior Constable Chris Lindsay of 10 November 2014 (Exhibit 3); 4. a statement of Detective Senior Constable Haithem Jouni dated 8 December 2014 (Exhibit 4); 5. a copy of the Crown Case Statement (Exhibit 5); 6. a copy of a notice issued by the Crown pursuant to s. 38 of the Act pertaining to the evidence of Ms McNamara (Exhibit 6); 7. a COPS report dated 24 December 2014 (Exhibit 7); 8. a photograph captioned "20 May 2014 5:26PM McNamara and Rogerson in lift on ground floor" (Exhibit 8); and 9. a further statement of Det. Lindsay dated 3 July 2014 (Exhibit 9).
Ms McNamara, Det. Lindsay and Det. Jouni all gave oral evidence before me, as did Mr Paul Kenny, the solicitor for the accused Rogerson.
At the conclusion of the evidence and submissions Mr Thomas of counsel, who appears for the accused Rogerson instructed by Mr Kenny, indicated that he may wish to tender two file notes prepared by Mr Kenny in relation to one aspect of the evidence which is discussed more fully below. At that stage, the file notes had only just come into the possession of Mr Thomas and he had not had an opportunity to provide copies to the other parties. The matter was left on the basis that the parties could consider their respective positions and if there was no objection to the tender of the material it could be provided to me at some convenient time prior to judgment being delivered.
On 19 May 2015, having heard nothing further, I had my Associate enquire as to the position in relation to the tender of the additional material foreshadowed by Mr Thomas. I was advised that there were objections to such tender by one or more of the other parties. On the following day, 20 May 2015, the matter was mentioned before me at which time Mr Clark of counsel appeared on behalf of Mr Kenny. Mr Clark informed me on that occasion that he would make further enquiries regarding the matter. I indicated to Mr Clark that if the tender of any further material was pressed it would be necessary, absent the consent of all parties, to have the matter re-listed in order to hear submissions.
Mr Clark subsequently informed my Associate that he had been unable to make contact with Mr Kenny so as to seek his further instructions regarding the issue. In the end result, no documentary material over and above that set out in [8] above was tendered.

THE EVENTS LEADING UP TO THE FIRST STATEMENT OF MS MCNAMARA

The evidence of the investigating police

The accused McNamara was arrested and charged on 25 May 2014. Following his arrest, Det. Lindsay had a number of conversations with Ms Jessica McNamara. These conversations culminated in Dets. Lindsay and Jouni attending Ms McNamara's residence on the afternoon of 17 June 2014. On that occasion, Det. Lindsay spoke with Ms McNamara about providing a statement regarding (inter alia) her knowledge of the relationship between her father and the accused Rogerson. Having obtained legal advice, Ms McNamara indicated that she would be prepared to make a statement. She was then taken by Det. Lindsay to the Cronulla police station for the purposes of doing so.
According to Det. Lindsay (para. 10 of Ex. 3) Ms McNamara became emotional when recounting events which were said to have occurred at her premises on 20 May 2014, the day on which it is alleged that the deceased was killed. In this regard, Det. Lindsay stated the following (para. 11 of Ex. 3): "The witness then went into specific detail about the following: • getting home from work around 5:15pm and no one else being home. • going to the bathroom during which she heard someone enter the unit. • going into the living area to find McNamara standing in the hall/entry with Rogerson and McNamara saying he needed to get some beer before McNamara and Rogerson leaving the unit again. • getting changed in her room when McNamara and Rogerson return. • going back into the living area to see Rogerson seated at the dining table and McNamara standing up at the end of the table nearest to the bookcase. • seeing that McNamara had a really weird and scared look on his face and red puffy eyes while Rogerson was sitting there laughing, smiling and appearing jovial. • joining a conversation with Rogerson about her pet cat during which Rogerson said "Glen, you have lovely, lovely daughters. They're such good girls". • looking at McNamara to see his reaction to this comment, at which point McNamara was looking down towards Rogerson's legs. • looking at Rogerson's legs and seeing him rubbing his right leg while looking at McNamara. • seeing a dark object sticking out of Rogerson's pocket, which looked like the handle of a gun, noticing that Rogerson was wearing dark coloured shorts. • Rogerson drinking beer, laughing and continuing the conversation about animals and a vet he once knew. • seeing McNamara sitting down and standing up, while having a scared look on his face."
Det. Lindsay's statement (Ex. 3) is dated 10 November 2014. However in evidence before me he explained that the matters set out in [14] above were recorded by him in a separate document (attached to Ex. 3) on 25 and 26 June 2014, some 8 or 9 days after he had spoken with Ms McNamara. Despite the gap in time, Det. Lindsay said (T94 L11-13) that he was in no doubt that what Ms McNamara had said was accurately reflected in the document he prepared, the contents of which were later incorporated into his statement.
Det. Lindsay did not accept the truth of Ms McNamara's account. In his statement he said (commencing at paragraph (12)): "12. … I said to the witness, that based on my interactions with her since the day of her father's arrest, that her recollection of these events appeared to be rehearsed. At this point the witness became very defensive, stating such things as "I'm only here trying to help", "I feel like I'm being interrogated", "I can only say what I think I saw" and "You are making me feel like I don't want to do this anymore". 13. Detective Jouni and I then separately asked the witness if someone had asked or coerced her into providing the specific account of events on the 20 May 2014. The witness said that it was not the case. I then told the witness that if those events were her account then that is what her statement would reflect. However, Detective Jouni and I then told the witness that what was detailed in her statement would be the version she would be compelled to provide in any future court proceedings, and if she was found to be lying then she would be liable to prosecution. 14. At this point the witness became very emotional and, after a period of time, requested that the portion of her statement detailing the events on the 20 May 2014, be deleted from her statement. I recall the witness stating, "I am a bad liar. I feel like an idiot and we have just wasted the last forty minutes." The witness went on to say "When people put things in your head, you see things that didn't really happen". 15. Detective Jouni and I then asked the witness again if anyone had asked or coerced her into giving the initial version of events on the 20 May 2014. Again, the witness said that it was not the case. The witness did, however, say that certain people were making her and her sister, Lucy McNamara, feel scared, although she would not elaborate on this further. 16. After this the witness went on to provide the version as recorded in her five-page signed statement, dated the 17 June 2014."
Det. Lindsay explained in evidence (commencing at T91 L24) what he meant by the phrase "appeared to be rehearsed" (at para. 12 of Ex. 3): "When she began recounting those events which detailed what occurred on 20 May 2014 at her residence it appeared that she or it appeared to me that she was recounting something that she had memorised as opposed to recalling from her memory."
He subsequently said (commencing at T93 L16): "In the lead up of the statement I was obtaining background information. When it got to the point, and my prior dealings with her, as I've said, everything seemed forthcoming and willing, she was willing to offer up information. But when we got to the point where she was detailing events on the 20th of May it just seemed very deliberate. Her demeanour changed."
Det. Lindsay said that the account given by Ms McNamara as to the events of 20 May 2014 appeared "very practiced (and) scripted" (T98 L13). He went on to give the following further evidence (commencing at T98 L15): "Q. You didn't believe her did you? A. No. Q. So you told her that you didn't believe her, didn't you? A. Correct. Q. Did you see it as your role as a police officer to give feedback to this important witness about what you thought was correct and what you thought was incorrect? A. Absolutely. Q. You thought that it was your job to tell the witness when what they were saying was true and when it was not true, was that your job? A. I didn't see my job as telling her that it was untrue, I raised my concerns with her version."
In circumstances where Det. Lindsay admitted telling Ms McNamara that he did not believe what she had said, his attempt when giving evidence to draw a distinction between telling Ms McNamara that her account was untrue, and "raising (his) concerns with her version," is somewhat illusory. Further, and whilst it is not a matter which is central to the determination of Ms McNamara's objection, I should state that in my view it was no part of the role of Det. Lindsay to take it upon himself to impose upon Ms McNamara his view about whether or not she was being truthful. It is not the role of an investigating police officer to be the arbiter of the truth or otherwise of what is being said by someone who is making a statement. This is particularly so where the investigating officer's challenge is based (as it was in this case) upon little more than his opinion, and in the complete absence of any objective evidence to the contrary of the account which is being given.
Det. Jouni gave evidence which was generally consistent with that of Det. Lindsay (commencing at T112 L13): "Q. To the best of your recollection what did you say? A. I told her I didn't think she was telling the truth and I asked her if someone had asked her to provide this version. At one point I read the opening durat to her. Q. What did Mr Lindsay say? A. He said similar things to what I said. I don't recall exactly what he said but the notes that we provided are reflective of the dealings we had with her. Q. Then when you said the first time "I don't believe what you are saying" or words to that effect what was her direct answer to that suggestion? A. At one point she said ‑‑ Q. No the first time what was her direct answer? A. I don't recall. This went on for a period of probably about 40 to 45 minutes, this exchange in relation to this version. Q. There was a discussion for about 40 or 45 minutes about whether she was telling the truth? A. No There was evidence or information obtained from her and typed and as that was occurring we discussed aspects of that with her as we went along. Q. Did that discuss include challenging her on the spot about the veracity of her account about various portions of her account? A. That discussion entailed asking her specific questions about her account. For example I asked her about the firearm and asked her to describe that. We asked her different things about her version that we didn't believe were true or accurate."
Like Det. Lindsay, Det. Jouni also told Ms McNamara that he did not think that she was telling the truth (T113 L14). He saw it as his job "to get a true and accurate version off her" (T114 L1). My observations in [20] above as to the role of an investigating officer apply equally to Det. Jouni.

The evidence of Ms McNamara

Ms McNamara gave evidence (commencing at T43 L40) that after being taken back to the police station she commenced to give an account of what she had seen in the lounge room of her premises on 20 May 2014. She said (commencing at T50 L45): A. I told the officers that after Mr Rogerson had said about us being lovely lovely girls my father looked anxious and looked at Roger and Roger was touching the pocket of the outside leg of the shorts at the table. I told the two officers that I thought this might be, I thought that this was a gun. Detective Lindsay said, "What makes you say that?", and I said "I don't know, I just don't know". He said, "Did you, what did you see, did you see the handle or did you see the trigger, did you see the barrel?" I said, "No, I don't really know, I just saw a lump. It might not have been that. Please don't put that in my statement. I don't know that to be a fact. I don't know" and I maintained down that path adamantly. Q. How did you feel? A. Attacked. I said to them, they kept attacking me. Q. What do you mean. What did she (sic) say? A. Verbally they kept saying, they asked me who had told me to say that, if my father had told me to say that, if Hudson Lu had told me to say that. Q. To say what? A. To say there was a gun to which I replied, "No, no‑one told me. Sometimes things happen and they change the way you think and the way you remember things". Q. Did you say that? A. I said "Sometimes things happen and it changes the way you think". I was scared, I said something because I was scared. I tried to take it back but I don't know it for a fact and everything else in that statement including my comment on my father's demeanour are 100 per cent true. I didn't want that to be tainted. I told this to the officers and they said, Detective Jouni said, "You can go on and have a good life. Roger's fucked, your dad is fucked and you're next in line to get fucked up by this if you say this". Q. Say what? A. I wasn't sure if they were saying if I did see the gun or I didn't see the gun. I was confused but I stuck by my initial point I didn't want it in the statement. Q. They weren't happy about that? A. They were very unhappy."
Det. Jouni (at T114 L16-24) denied saying the words attributed to him by Ms McNamara in this part of her evidence. Det. Lindsay also denied (at T100 L33-36) that such words were said by anyone in the course of speaking with Ms McNamara. It is not necessary, for the purposes of determining the present objection, to resolve that conflict in the evidence.
It will also be noted that Ms McNamara's evidence (in the extract in [23] above) was that she had said to the police "sometimes things happen and it changes the way you think". The evidence of Det. Lindsay (at para. 14 of Ex. 3 set out in [16] above; T93 L33-35) was that Ms McNamara had in fact said "When people put things in your head you see things that didn't really happen". The evidence of Det. Jouni (at T111 L1-5) was to the same effect. It is similarly not necessary, for the purposes of determining the present objection, to resolve that conflict in the evidence.
Left at that point, Ms McNamara's evidence was that she had told police that she thought it was a gun that she had seen in the pocket of the accused Rogerson. However she gave the following further evidence (commencing at T51 L36): "Q. Were they unhappy about you saying there was a gun or about you saying you didn't want it in the statement? A. I don't know. They were very, quite hostile through the entire process but at that point I don't know what they were ‑ I didn't want to put it in, I didn't know it for a fact and they were angry and they told me‑‑ HIS HONOUR Q. When you say you didn't know it is a fact what do you mean by that, do you mean to say it was false? A. I do mean to say it was false. I saw a lump there and I made an assumption that I did not know to be true. BOULTEN Q. You said you thought it was a gun? A. Yes. Q. Did you say it was a gun? A. I said it was a gun. Q. You said it was a gun? A. Yes. Sorry I just wanted to make sure I knew‑‑ HIS HONOUR Q. That was false was it? A. That was false, yes. "

THE FIRST STATEMENT OF MS MCNAMARA

Against the background I have set out, the first statement of Ms McNamara (Ex. 1) was made on 17 June 2014. The essence of that statement for present purposes commences at paragraph (15): "15. On Tuesday 20 May 2014 I got home from work around 5:15pm and there was no one else home at this time. I recall going inside and I went to the bathroom when I heard the door open so I called out and heard my dad coming inside. After a short time I went out into our living area and I saw Roger and my dad standing in the hallway area just inside our front door. I remember that my dad said something about working on the boat and how it was unreliable. At this time I could see my dad had grease on his hands but I am not sure if Roger did as well. From this I assumed that dad had his boat downstairs in the garage and the two of them were working on it there. The reason I thought this is because dad usually has his boat stored in storage on Parraweena Road, Caringbah. I know my dad's boat is white with a maroon coloured cover that moves up and down and there are two seats up the front. I did not actually see my dad's boat in the downstairs garage as I do not normally go down there during the week as I catch the train to work. I do have my car parked in one side of our double garage. 16. Due to my dad having grease on his hands I grabbed the Palmolive dishwashing liquid from the kitchen and told dad I would put that on his bed for when he had finished so he could wash the grease off his hands. At this point I recall my dad saying that he needed to go down to the garage and get some beer and the two of them walked out. 17. When this happened I went to my room to get changed as Lucy, dad and I were intending to go out for dinner at Northies later that night. As I was getting changed in my room I recall hearing my dad and Roger come back into the unit. After a short period I could hear my cat scratching the carpet outside my bedroom door so I went out of my room to get her as she is not allowed to scratch the carpet. As I walked out into the living area I saw Roger seated at our dining table at the side which faces our lounges but Roger has (sic) his chair turned to face the bookcase where my dad was standing. I recall seeing my dad standing up at the other end of the dining table facing Roger. I could see Roger and my dad were both drinking beer and talking, however the fact that I was trying to get my cat more or less drew the attention on to me. I remember that Roger made a comment to me about all animals liking him so I pretty much joined in their conversation. 18. In doing so I went and sat on the corner of the ottoman of our lounge and was sitting facing Roger and my dad. As I was sitting there I could see that my dad had a stern look on his face while Roger appeared happy and was smiling. 19. I remember that my dad and Roger were talking about several different things, including my cat, which led into Roger telling a story about knowing a vet who over charges people. It was while Roger was talking about this that I remember him saying something like, 'Oh, Glen you have such lovely, lovely daughters, they're such good girls.' I can indicate that there had been past occasions when I have seen my dad and Roger together when my dad has said to me to be careful or similar things to that and Roger has commented to me that my dad loves me. 20. At this time the conversations continued, during which dad and Roger had two or three beers each. I was there in lounge room the entire time as they were talking and drinking beer, but my sister, Lucy, was not home at this point as she was running late from uni. I recall that my dad and Roger were just talking about general things, like boxing. However, at one stage I recall my dad and Roger talking about going to Cooma gaol and later in the conversation Roger said to my dad something like, "I really think you need to go to the gaol on Sunday". Their conversations continued until around 7;00pm to 7:15pm when Roger left as we were going to dinner around 8:00pm. 21. Once Roger left and prior to Lucy getting home, I recall my dad saying things to me like, "If anything ever happens to me, know that I love you, everything is for you so take care of your sister". When dad was saying this to me I thought it was morbid. 22. Around 7:30pm my sister, Lucy, got home from uni and she got ready to go out for dinner. Sometime between 8:00pm and 8:30pm Lucy, dad and I went to Northies for dinner. We walked in and ordered some food and sat at a table to the left of the main bar. 23. I recall while we were waiting for our food and during dinner, my dad was still rambling about how proud he was about Lucy and I, and I remember that when our food arrived he did not eat his dinner. I did not think much of this at the time and after dinner the three of us went home. 24. Sometime after this I recall Lucy mentioning that dad's boat was in the garage. I don't remember the specific day she said this."
Some of the content of these passages is generally consistent with what Ms McNamara had initially said to the police as summarised by Det. Lindsay (at [14] above). The principal difference is that Ms McNamara's first statement makes no reference to seeing any dark object protruding from the pocket of shorts worn by the accused Rogerson when he was at her premises on 20 May. The statement also contains no reference to such object being a gun, an assertion which Ms McNamara initially made to the police which she now says was untrue.
In her evidence before me, and leaving aside the assertion that she had seen a gun, Ms McNamara reverted, in part, to the account she initially gave the police. She said (inter alia) that when the accused Rogerson was at her premises on 20 May 2014 she observed what she described as a "lump" in his pocket (commencing at T45 L29): "We sat and chatted. I was seated on the lounge, the single lounge. Roger was seated on the right side of the dining table and my father was at the end of the dining table sort of diagonally between Roger and I. He, I was seated, Roger was seated and dad was seated for a while. He was standing for a while. He sat down and kind of repeated the process. We just chatted about unimportant things, just there was telling stories and listening. Q. Were you asked about your father's demeanour or Roger Rogerson's demeanour? A. Yes. Q. Tell the Court about that? A. He asked me about what his demeanour was. Q. Who did? A. Detective Lindsay. Q. Yes? A. I said that my father's demeanour was that he seemed very skittish, uneasy and upset. His eyes were wide. He, he kept moving from sitting, standing, which is not like him at all. He is a calm person, he doesn't, it is very unusual behaviour. He also drank four beers while we were at home which is highly unusual because he rarely drinks especially on a week nights when every Tuesday, it happened on a Tuesday, every Tuesday at 6.30 he would box at Sylvania with a man named Carlos so that just never happened, this type of thing I mean. Q. Did you give that impression to the police? A. I did, yes. Q. What did you say about Roger Rogerson? A. I said that he was sitting at the right side of the table, he was chatting, he didn't seem to be concerned. He told the story about a vet that over charged his client. Jovial I guess. Q. This was a vet in Rose Bay or something? A. Yes in Rose Bay. Q. And did he say anything about you or your sister or both? A. Well as the conversation flowed on we were laughing and chatting. He said, he looked at dad and he said "Glen you have got such lovely, lovely daughters. They are lovely girls". I remember thinking this was weird but I didn't really think anything of it. Then dad looked really nervous and pale and uncomfortable and he kept looking at me, like to the side, and then like going back to Roger then coming back. Q. Did you tell the police all of this? A. I did. Q. Go on? A. I don't know if‑‑ Q. Did you say something about Roger doing something with his leg or something like that? A. Yes. Q. What did you tell the police about that? A. I told the police that after the lovely girls comment dad looked skittish and Roger had his hand on the outside leg, on his pocket of the outside leg. He was just, he touched it a few times."
She was then asked (at T51 L44): "Q. What could you actually see as you stood there and looked at Roger? A. I only saw the pocket because his hand drew attention to it. It was just a lump, like at the pocket of his pants."
Ms McNamara also said (commencing at T58 L33): Q. What is your recollection of what you saw in that position, the lump? A. I saw a lump in a pocket. Q. And you mentioned just something could have been something dark? A. No, I said that there was a dark bit on the outside of the pocket but it could have been something else other than a gun.
She then said (commencing at T79 L29): "…I saw a lump in his pocket, but at the top of the pocket it was black so, the lump, but the top was black. Q. So, you saw more than a lump, you saw something that had a colour which you described as black, correct? A. Dark, I think, but it was just the top of the lump, there is a lump in the pocket."
In the course of being cross-examined by counsel for the accused Rogerson (commencing at T78 L25) Ms McNamara confirmed that she had told police that the accused was wearing shorts at the time she made her observations. Ex. 8 is a photograph of the two accused taken at 5:26pm on the afternoon of 20 May 2014, a short time prior to Ms McNamara making the observations about which she gave evidence. That photograph depicts the accused Rogerson wearing long trousers and not shorts. Ms McNamara conceded that she could be mistaken about what he was wearing at the time that she made her observations.
Leaving aside the absence of any express reference to a gun, the passages of Ms McNamara's evidence at [29]-[32] above are, in some respects, not inconsistent with what she originally told the police (according to the summary prepared by Det. Lindsay at [14]) above). Det. Lindsay did not accept the truthfulness of what Ms McNamara said in those respects. The Crown Prosecutor takes a different view. If Ms McNamara were to give evidence at the trial, the Crown would seek to lead from her (inter alia) the essence of what appears in [29]-[32] above. It is not entirely clear whether the Crown will ask the jury to infer that the "lump" identified by Ms McNamara was a gun or whether the Crown will seek leave under s. 38 of the Act to cross-examine Ms McNamara about her statement to the police that she in fact saw a gun.

THE SECOND STATEMENT OF MS MCNAMARA

On 25 December 2014 a report (Ex. 8) was prepared by police following information being provided to them by Ms McNamara's sister, Lucy. That report is in (inter alia) the following terms: "Since Glen McNamara was arrested the victim and her sister Jessica have both observed the poi following them. The last incident was in August 2014. Within the past week the remained (sic) of the brief of evidence has been served on McNamara and his co accused Roger Rodgerson (sic). As a result of this brief being served both the victim and her sister have seen the poi again in the street and at the victim's new workplace. About 4 pm on the 22nd December 2015 the victim and her mother returned home when they observed the man hole cover was sitting on the floor of the bathroom. The victim believes that the man hole was removed by someone relating to Rodgerson (sic). On the 24th December 2014 Police were called to the victims residence were (sic) they sighted the man hole and observed that it would have had to be removed and was not blown out by the wind. The victim explained to Police her concerns and beliefs".
On 29 December 2014 Ms McNamara made a second statement to the police (Ex. 2). Commencing at paragraph (5) the statement reads as follows: "5. Since about June 2014, I have observed a male of Asian appearance approximately three times. I would describe this male to be approximately twenty years of age, 180 centimetres tall, Asian appearance, medium length black hair. This male had a symbolic tattoo on the lower right side of his neck. I could not give any further description of the tattoo. My sister, Lucy has also seen the same male on separate occasions, whilst alone within the Cronulla and Taren Point area. 6. I first saw this male, in early June 2014, around one week after my father's arrest. I saw this male in Cronulla Mall, near 2230 Bar and Restaurant. He stared at me and we walked in separate directions. Since this time, I have seen this male on a further two occasions in Cronulla. This male has not threatened me in anyway (sic); I have never spoken to this male. 7. In June 2014, I was at my unit with Mum and Lucy, when Roger Rogerson's solicitor Paul Kenny attended for a scheduled meeting. Whilst in this meeting, Mr Kenny stated the following: 'It isn't the Triads you need to be afraid off (sic), it is Roger. Roger knows where you live and someone could just come in through the courtyard and go through the windows'. I have fears regarding this comment made. 8. After this meeting, Mr Kenny called me approximately two months later on my mobile phone from his mobile phone and said: "Are you safe? Is your Mum safe? Is she in Hong Kong or Australia?" I said: "Yes we are safe and yes Mum is in the country." The entire conversation lasted for approximately thirty seconds and I have not heard from Kenny since. 9. I contacted police and spoke with Detective Lindsay, where I advised him that Mr Kenny contacted me via telephone. I had Detective Lindsay's details, as he is the Detective looking after my father's current matter. 10. I have not received any other threats from any other parties involved in my father's matter. 11. At 5:53pm on Sunday 21st December 2014, I received a telephone call from Anne, Roger Rogerson's wife (redacted) to my mobile phone (redacted) who left a voicemail message stating: "Hi Jessica, it's Ann. Rogers wife. I just wanted to ask you a question. Bye." 12. At 5:53pm on the same day, I replied saying "Hi Anne, sorry I am out at the moment. Will give you a call tomorrow. Jessica." 13. Anne replied: "Ok, I will be visiting RR tomorrow so won't be available between 12.00 & 2ish. Cheers Anne". 14. At about 1:00 pm on Monday 22 December 2014 I left my unit unattended to meet my mother, Cheryl McNamara at Miranda and returned at approximately 5:00pm the same day. When I left my unit the rear glass door of the main bedroom was left open and unlocked. The screen door was shut but also unlocked. I used the bathroom just prior to leaving at 1:00pm, where I observed the man hole to be in place. 15. Upon walking inside my unit, I entered the bathroom and saw the man hole, located on the ceiling had been opened. The man hole was exposed and the covering was on the bathroom floor, between the bathroom door and shower. Nothing else appeared to be disturbed within the unit. 16. I used the toilet in this bathroom, before photographing the manhole and showing my mother Cheryl, what had occurred. I replaced the manhole, which did not appear to be damaged in any way. I spoke with my mother and sister on the same day and both stated they did not touch the manhole in the bathroom. 17. I did not give any person permission to enter the unit."
Photographs were attached to Ex. 2 depicting the scene described in para. 15.
In respect of paras. (7) and following of Ex. 2, Ms McNamara gave evidence (commencing at T40 L45) that she knew that Mr Kenny was coming to see her because "he called to say that we needed to talk and he would come to the apartment". She went on to explain that she had met Mr Kenny the day before for breakfast and that when he had arrived on the following day he said that "he needed to talk about the case" (T41 L30-31). When asked how the meeting with Mr Kenny had come about, Ms McNamara responded (commencing at T41 L34): "A. My father had said that Paul Kenny had come to see him and that he wanted to see us and, I just ‑‑ Q. And what happened at breakfast? A. He had his statement of facts. He just talked about it. He talked about how didn't understand how dad could have been mixed up in this but he said that he was stupid and that he was a child trying to play with big boys. That took up the majority of the breakfast, that kind of speech. We were still trying to get our heads around what was happening. He told me that he didn't believe that my father could be involved with this. He said that he didn't like Roger Rogerson. That Roger Rogerson had come to him and that he despised him because of Mick Drury?"
She then gave the following evidence (commencing at T42 L6): "A. That was the breakfast. Then when he was at the apartment, the conversation moved along the same line. At one point he said to me ‑ sorry, I mentioned to him that I had seen an Asian man on two occasions between my sister and I that we thought was suspicious. He was a tall slim Asian man with a tattoo on the right side of his neck which is an unusual sight in Cronulla. I told him this and he said it is not the Triad that you need to be afraid of, it is Roger, he knows where you live. Meaning I lived in a ground floor apartment. He knows where you live. They could just jump over and go through the windows. Q. Did he do something? A. He looked around the apartment and he was then quite erratic and went into the bathroom for a long period of time."

THE EVIDENCE OF MR KENNY

Mr Kenny, who as I have noted is the solicitor for the accused Rogerson, gave evidence before me. Prior to Mr Kenny being called, Mr James QC appeared before the Court and indicated that he had been retained to advise Mr Kenny. Mr James foreshadowed that in the event that Mr Kenny were to give evidence, it was likely that he would seek to invoke the provisions of s. 128 of the Act.
Mr Kenny gave evidence (commencing at T137 L13) that he had met with Ms McNamara on two occasions. The first was at breakfast at a café in Cronulla and the second was on the following day at Ms McNamara's apartment. In answer to questions put to him by the Crown Prosecutor Mr Kenny said the following (commencing at T138 L1): Q. Did you say to her that you didn't like Roger Rogerson? A. No. Q. Did you say that Roger Rogerson had come to you and that you despised him because of Mick Drury? A. No I said Roger Rogerson had come to me the first time I met him and I told him that I knew Mick Drury. Q. You deny saying you despised Roger Rogerson? A. Yes. Q. Did you on either one of those occasions speak to her regarding her concerns about a tall slim Asian man with a tattoo on the right side of his neck who she had seen in her area on two occasions? A. I can't remember that conversation at all and in saying that I am not saying it didn't happen but I simply cannot remember that at all, so it may have happened. Q. All right did you say this to her that "It is not the triad you need to be afraid of, it is Roger. He knows where you live. They could just jump over and go through the window"? A. No, not in that form. Q. Did you say anything like that? A. It is in broken up parts of conversations. It seems that that lot of sentences there has been grouped into one. … Q. Did you ever say "It is not the triad you need to be afraid of"? A. It might have been "triads" but at some stage in part of the conversation either at the cafe or the apartment it could have been words to the effect of "It is not the triads you should be worried about". … Q. Did you say "It is Roger"? A. There is a little bit more to it than that. Q. Did you say "It is Roger"? A. With other things said apart from that. Q. Did you say "he knows where you live"? A. No. Q. Never said that? A. No. Q. Certain of that? A. I am positive. He did know where they lived. Q. Sorry? A. He did know where they lived. That was not said in that conversation and I didn't say that to them. Q. So you knew that Roger knew where they lived? A. Yes. … Q. Did you say "they could just jump over and go through the window"? A. Who is they? Q. Did you say that to her? A. It might have been said in a wider way in relation to triad people and the like but once again it is not all in that same sentence type situation and I didn't have a look around the apartment."
Mr Kenny was then asked the following question by the Crown (T139 L40): "Q. Did you ever say anything indicating to her that it is Roger that she should be worried about?"
At that point, Mr James QC raised the provisions of s. 128 of the Act and, on behalf of Mr Kenny, objected to the Crown's question being answered. I then asked Mr Kenny (at T140 L10): "Q. Before we get to that what is the basis of your objection? Is it on the ground that the evidence may tend to prove that you have committed an offence? A. It could."
I subsequently indicated to Mr Kenny (at T141 L3) that I would issue a certificate under s. 128 of the Act, at which point the evidence then continued (commencing at T142 L1): "CROWN PROSECUTOR: Did you ever say anything like or it is Roger that you need to be afraid of. A. There were words to that effect but there is more to the conversation. Q. Do you know what the words were? A. We had discussion about the situation (sic) might develop in forthcoming court proceedings where it might be that Mr Rogerson and Mr McNamara might end up in effect be giving evidence against one another. In colloquial terms. I think the legal term is a cutthroat defence, so it was along those lines. Q. What I am asking though is, did you ever indicate to Ms McNamara that it is Roger you need to be afraid of, that is her? A. Him, like in some physical way? Q. Did you ever say anything like that to her? A. Not in those terms. HIS HONOUR Q. Well what did you say, what words did you use? A. Your Honour I think it was words that things could become complicated if there was going to be a trial. I can't remember the exact words but trying to explain the nature of a situation where they could both be giving evidence against one another. Q. Can I ask you this, for what purpose were you visiting Ms McNamara on either of these occasions? A. Mr McNamara asked me to. CROWN PROSECUTOR Q. You say that what you did say to her was, in the context or something like, that Mr Rogerson and Mr McNamara might be involved in a cutthroat type defence? A. Not using the word 'cutthroat' but just, like a legal sense. Q. Is it then that you said 'it is Rogerson you need to be afraid of'? A. It is not ‑ it didn't occur in sentence form like. Q. Did you say that, did you impart to Ms McNamara that it is Roger that she needs to be afraid of? A. Not in those words, like, it is Roger you need to be afraid of. Q. Well what did you say? A. I can't remember the exact words. Q. Could that be, could it be possible you said that? A. It is possible in terms of the sentence, but, there is a lot more to it than that. It is not ‑ it wasn't just like ‑ Don't worry about the Triads, it is Roger. It didn't just stop there. HIS HONOUR Q. Well what else did you say? A. Your Honour, I can't, it wasn't just one specific sentence. Q. Well you said that a number of times Mr Kenny. My question to you is, if there was more said are you able to tell me what it was that was said? A. I can't in relation to that particular conversation your Honour. CROWN PROSECUTOR Q. Did you say they could just jump over and go through the window? A. No. Q. Definitely not? A. There could have been conversation about Triad people or something like that or someone trying to break into the place. HIS HONOUR Q. When you say there could have been conversations about that, are you saying that they are words that you might have said? A. Yes. Q. Why would you have said to Ms McNamara anything about people breaking into the place? A. Because Mr McNamara was concerned. That was one of the things he was concerned about. Q. Mr McNamara wasn't your client? A. I had attended upon him at gaol ‑‑ Q. Answer my question Mr Kenny, Mr McNamara at the time was not your client? A. No he wasn't."
Mr Kenny was then cross-examined by Mr Boulten SC (commencing at T143 L41): "Q. I think you rang Jessica McNamara to arrange the first meeting after you had spoken to her father, is that right? A. Yes. Q. And that was a meeting at a cafe in Cronulla? A. I think up in the mall at Cronulla. Q. At that cafe there was discussion about your history with Roger Rogerson, wasn't there? A. When you say 'history' what do you mean? Q. You talked about what contact you had had with him over the years? A. Representing him? Q. Yeah representing him? A. Yes probably, yeah. Q. Did you say ‑ I don't know what your father has got himself involved in here, words like that? A. Could have been words to that effect, yes. Q. He thinks he is a big timer but he is not in the big time? A. Words to that effect, yes. Q. Roger is in the big time? A. No. Q. Did you talk about Mick Drury? A. I told her that I had know (sic) Mick Drury. Q. How come? A. How come? Q. Why did you talk about him? A. It just came up in conversation. Q. Did you say, what did you say about Mick Drury? A. It came up in conversation about how I come to know Rogerson or represent him or the like. Q. And what did you say about that? A. I told them that Rogerson came to me to be his lawyer, some many years ago, started in 2000 I think, and the very first thing I said to him was, I am a good mate of Mick Drury's, if you want me to be your lawyer I will never speak to you about that matter and he said "all right" and that was it. Q. But did you say anything to Mrs McNamara and her two daughters at the cafe to suggest that you had a view that Mr Rogerson was in some way responsible for what happened to Mr Drury? A. No. Q. How long was that meeting at the cafe? A. I can't remember. It was a while. Q. What was the point of it? A. I am not really sure. I thought there was only one meeting but when I looked at my notes it looks like there was two. HIS HONOUR Q. Mr Kenny, is that a serious answer, that you weren't really sure what the purpose of the meeting was? A. I knew from Mr McNamara what the purpose was, your Honour, what he asked me to do. BOULTEN Q. You are a friend of Mick Drury? A. Yes. Q. You know no one has ever been brought to justice really for what happened to Mick Drury? A. When you say? Q. I withdraw that. Did you talk about your concerns about what happened to Mick Drury at the cafe? A. Not that I can remember."
Mr Kenny was then asked about his second visit to Ms McNamara (commencing at T145 L19): "Q. When you visited the apartment, the following day, did you go there that time for a particular purpose or was it just a social visit? A. I am not ‑ it might have been to have a look around to see if the premises were safe ‑ I just can't, I thought it was like one time, but just looking at my notes it appears to have been two separate days. Q. Well you accept you went for two visits? A. Yeah I have to because looking at my notes it looks like it was the 31st of May and the 1st of June so there must have been the two visits. Q. So it is your memory, perhaps an impression only, that the visit to the apartment was concerned with safety, in one way or another? A. Yes the security of the premises. That was Mr McNamara's concern too, and when I looked at it I was concerned too because it is a ground floor unit. Q. And you expressed concerns about that? A. Yes I was concerned. Q. You said that people could get in through the windows easily? A. It would be easily accessible. Q. You were very anxious when you were at that meeting at the apartment, weren't you? A. Yes. Q. And you were very emotional, weren't you? A. I broke down actually. Q. You broke down and cried? A. I did, that is exactly right. Q. You remember going to the bathroom to compose yourself? A. For quite some time. Q. Because it was a very very stressful meeting? A. The whole week had been probably one of the worst weeks of my life. Q. You told the McNamara women, this is going to be the last case you ever do, it was so stressful? A. I can't remember saying that but I may have. Q. You were stressed because Roger Rogerson was in trouble, right? A. Yes. Q. Mr McNamara was in trouble? A. And I was friends with Glen McNamara. Q. You were friends with both? A. Yes and I hadn't slept for probably a week and the media attention was just intense, had people ringing from all around the country, and I completely broke down. Q. You would accept that you were not really acting on your best professional instincts when you were in that apartment? A. What does that mean? Q. I will start again. You were not professional in the sense that you were personally wrapped up in what was happening, right? A. I was very emotional. Q. And you were not there to give legal advice to the McNamara's, were you? A. No because I am not Mr McNamara's lawyer. Q. But you told them that they should be concerned about people breaking into the unit, didn't you? A. I was concerned. Q. You told them that, didn't you? A. I probably did say something like that. Q. You did say, 'and it is not the Triads you should be concerned about, it is Roger'? A. Not with Mr Rogerson breaking into the premises. Q. I suggest that you did? A. No I didn't. Q. And I suggest that you were probably giving personal advice rather than legal advice? A. No. I think I have explained the context of conversations about the legal situation about giving evidence, but not a fear of Mr Rogerson breaking into the premises. Q. I suggest to you that you didn't talk about cutthroat defence? A. No, incorrect. Q. You certainly did not use the word cutthroat defence? A. No never. Q. You talked about concerns that you had that Roger Rogerson would give evidence against Mr McNamara, is that what you are saying? A. And vice versa. Q. And in the context of Mr Rogerson's solicitor, you raised with his co‑accused's family the concern that you had that if Mr McNamara gave evidence against Mr Rogerson they should look out for Mr Rogerson, is that what you meant? A. No. Q. What do you mean by that, that you talked about cutthroat defence and it was in that context that you said they should look after Roger Rogerson? A. I didn't say that. Q. 'Not the Triads they should be concerned about, it is Roger'? A. I didn't say it that way, it wasn't said in that way. Q. How was it said? A. It was said in the legal context. But I didn't use the words in inverted commas cutthroat defence. There was discussion, I don't know whether he was at the cafe or at the unit or both about the legal process. Q. Can I suggest to you, you specifically said it was Roger or someone on behalf of Roger that might pose a physical threat? A. Absolutely not. "

THE EVIDENCE OF MS MCNAMARA AS TO THE LIKELIHOOD OF HARM

Ms McNamara said in her second statement (para. 7 of Ex. 2) that she had fears as a consequence of what Mr Kenny had said to her. In oral evidence before me she said the following (commencing at T39 L36): "Q. First of all, you are concerned about giving evidence, aren't you? A. I am. Q. Firstly, in relation to your father, what concerns do you have? A. In terms of giving evidence in the ‑‑ Q. If you give evidence in the trial? A. Yes. Q. How do you think that will affect you and him? A. I think that it would make our relationship very tense and I ‑ it would almost break it. Q. Did your father become aware that you have given statements to the police? A. Yes. Q. What was his attitude to that? A. He was very upset that it had happened to me. He wasn't upset that I did it, but he was upset that I had to go through that. Q. May I ask you about concerns which you have about yourself, some of which are foreshadowed in your December statement, do you have particular concerns about your safety? A. I do. Q. Is it just you that you are concerned about? A. No it is also my mother, my sister, my grandmother and my father. Q. In December when you made your statement to the police, you mentioned an event when Mr Kenny had come to your apartment, did that incident occur? A. Yes."
She was then asked (at T40 L42): "Q. Is what you said about that incident correct? A. It is."
Ms McNamara (at T55 L8-10) described her relationship with her father as a "really really close" one. In respect of the tension to which she had referred in that passage of her evidence set out at [47] above, Ms McNamara said (commencing at T55 L22): "A. What I mean is that my father he loves me and he would never want me to have to go through anything this hard if he could protect me and keep me safe and I think that is the reason that he would be so tense and it would break him because he would have to see me do this and I don't think that he could handle that. It would make our relationship, I couldn't face that I, that I had to do this to him and I don't think he could face that he would feel like he made me do this. Q. You think that would necessarily affect the on‑going relationship between you and your father in an adverse way, is that right? A. I do."

THE RELEVANT PROVISIONS OF THE EVIDENCE ACT 1995

Section 18 of the Act is in the following terms: 18 Compellability of spouses and others in criminal proceedings generally (1) This section applies only in a criminal proceeding. (2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required: (a) to give evidence, or (b) to give evidence of a communication between the person and the defendant, as a witness for the prosecution. (3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later. (4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person. (5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury. (6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that: (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and (b) the nature and extent of that harm outweighs the desirability of having the evidence given. (7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following: (a) the nature and gravity of the offence for which the defendant is being prosecuted, (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it, (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor, (d) the nature of the relationship between the defendant and the person, (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant. (8) If an objection under this section has been determined, the prosecutor may not comment on: (a) the objection, or (b) the decision of the court in relation to the objection, or (c) the failure of the person to give evidence.

Submissions on behalf of Ms McNamara

Senior counsel submitted that I should conclude that Ms McNamara was, generally speaking, an honest witness when giving evidence. It was submitted that although Ms McNamara admitted that she had not been truthful in telling the police that she had seen a gun in the pocket of the accused Rogerson on 20 May 2014, this had occurred at a confusing and frightening time for her and that this explained why she had acted as she did.
Senior counsel submitted that to the extent that there was a divergence between the evidence of Ms McNamara and Mr Kenny regarding what was said by Mr Kenny when he visited her, I should accept the account given by Ms McNamara. It was further submitted that even on Mr Kenny's account of events, things had been said by him to Ms McNamara which gave her every reason to believe that in the event that she were to give evidence, she was vulnerable to harm at the hands of some criminal element associated with the accused Rogerson. This, it was submitted, had caused Ms McNamara considerable anxiety and concern. It was submitted that on the basis of such evidence I should conclude that there was a likelihood of harm, in the nature of emotional harm, to Ms McNamara if she was required to give evidence. Senior counsel also pointed to the evidence given by Ms McNamara as to the likely harm to her relationship with her father if she were required to give evidence. In each respect it was submitted that the term "harm" as it appears in s. 18(6)(a) and (b) should be given a broad interpretation, so as to include psychological and/or emotional, as well as physical, harm.
In terms of the factors set out in s. 18(7), senior counsel accepted that the nature and gravity of the offence with which the two accused are charged was a factor which weighed in favour of the objection being refused. Senior counsel also accepted, as I understood it, that the evidence which Ms McNamara could give was not otherwise available and that this was similarly a factor which assisted the Crown.
However, senior counsel submitted that in light of the Crown case as a whole, any evidence which Ms McNamara was able to give was of extremely limited significance. He also relied on the evidence of the nature of the relationship between Ms McNamara and her father. Senior counsel submitted that when these various matters were balanced the end result weighed in favour of the objection being upheld.

Submissions of the Crown

The Crown correctly identified that my determination of Ms McNamara's objection necessarily involved a balancing exercise between the likelihood of the harm contemplated by s. 18(6)(a) and (b), and the desirability of the evidence being given. The Crown also correctly submitted that such exercise mandated that I take into account the factors listed in s. 18(7).
In terms of the harm which it was said would be caused to the relationship between Ms McNamara and her father if she were required to give evidence, the Crown submitted that any evidence which Ms McNamara might give would be more prejudicial to the accused Rogerson than to her father. The Crown submitted that in these circumstances I should conclude that the evidence of Ms McNamara as to the likelihood of harm to her relationship with her father was "potentially exaggerated". However, in terms of the likelihood of any harm which might eventuate as a consequence of anything said by Mr Kenny, the Crown joined in the submission made by Mr Boulten that where there was any divergence between the evidence of Ms McNamara and Mr Kenny, the account of Ms McNamara ought be accepted. I did not understand the Crown to argue against the proposition that, accepting such submission, Mr Kenny's statements at least had the capacity to cause Ms McNamara to have fears for her safety.
In terms of the factors set out in s. 18(7) the Crown pointed to the gravity of the offence (s. 18(7)(a)), and the fact that there was no other evidence of Ms McNamara's observations (s. 18(7)(c)) as matters weighing in favour of a conclusion that the objection should be rejected. As I have outlined, so much was conceded by senior counsel for Ms McNamara.
The Crown took particular issue with the submission made by senior counsel for Ms McNamara that her evidence was of limited significance. In this context the Crown submitted, correctly, that although the factors in s. 18(7) were mandatory in terms of the balancing exercise, they were not exhaustive. The Crown submitted that in performing such a balancing exercise it was also appropriate to take into account, and give significant weight to, the duty which is imposed upon a citizen who is in a position to give relevant evidence in a criminal prosecution. It was submitted that the integrity of the rule of law in any society was dependent upon citizens discharging that duty. The Crown submitted that to uphold the objection made by Ms McNamara would result in the erosion of such principles, and that once it was accepted that her evidence was important, and that significant weight could (and would) be attached to it by a jury, upholding the objection would tend to breach the integrity of the system of justice.
The Crown appeared to accept that the fact that Ms McNamara had admitted to telling an untruth to police may bear upon the weight of any evidence she might give. However the Crown submitted that to the extent that this might be so, her admitted untruth should be viewed as being "as a less serious falsehood than an outright lie". It was submitted that one of the most important factors in this respect was that I had had the opportunity to observe Ms McNamara as a witness. The Crown took no issue with the submission made by senior counsel for Ms McNamara that I would find her generally reliable and honest. It was submitted that having had the advantage of observing her, I should conclude that the evidence sought to be adduced from her was reliable, credible and accurate, and that a jury would be likely to accept it and place significant weight upon it.

Ms McNamara's credit

Ms McNamara initially told police that she thought what she had seen in Rogerson's pocket was a gun. She admitted in evidence before me that she later told police that what she saw was a gun. On Ms McNamara's own admission, the latter statement was false. That obviously has the capacity to reflect adversely upon her credit generally, although the extent to which it may do so must necessarily be assessed in light of the circumstances which prevailed at the time that the false statement was made.
Ms McNamara's father, with whom she obviously has a close relationship, had been arrested and charged with murder only a matter of weeks before she spoke with the police. Ms McNamara was being asked by police to provide a statement for use in the proceedings brought against her father. It was (and it continues to be) a particularly stressful time for her, a fact which was confirmed (if any confirmation were needed) by her sometimes distraught demeanor when giving evidence before me.
None of those factors excuse her conduct in telling an untruth. However, they may go some way to explaining why she did so. Generally speaking, having observed her carefully, I found Ms McNamara to be a person who was trying to be honest and truthful when giving evidence before me. For the reasons developed more fully below, I have no hesitation in accepting her account of the statements made to her by Mr Kenny.

Ms McNamara's relationship with her father

I am satisfied that Ms McNamara has enjoyed, and continues to enjoy, a close relationship with her father. Her unchallenged evidence before me is that if she were required to give evidence at the trial, her relationship with her father would be significantly damaged, perhaps to the point of being fractured. I am satisfied that is the case.
I am unable to accept the Crown's submission that Ms McNamara's evidence in this regard was exaggerated. No such suggestion was ever put to her when she gave evidence. Moreover, given the way in which the Crown puts its case, and in light of the fact that Ms McNamara's observations of the accused Rogerson on 20 May 2014 were made in the presence of her father, I am unable to accept the Crown's position that the prejudicial effect of Ms McNamara's evidence upon the accused Rogerson is likely to be substantially greater than upon the accused McNamara. In any event, I think it is highly unlikely that Ms McNamara would draw such a fine distinction. From her point of view, the more fundamental consideration is that her relationship with her father is likely to be significantly damaged if she is required to give evidence at the trial.

The actions of Mr Kenny

Ms McNamara has expressed fears for her personal safety. Those fears stem, at least in part, from statements she has attributed to Mr Kenny. As I have previously noted, both the Crown and Mr Boulten SC submitted that where there was conflict in the evidence between Ms McNamara on the one hand and Mr Kenny on the other, I should accept the account of Ms McNamara. For the reasons that follow, I accept that submission.
I observed Mr Kenny closely when he gave evidence, and I listened carefully to what he said. Generally speaking I found him to be a most unsatisfactory witness. Some of his answers to questions put to him were vague, evasive and imprecise. I am satisfied that some of the evidence that he gave was untruthful.
At the time that Mr Kenny spoke with Ms McNamara he was the solicitor for the accused Rogerson. I accept that Mr Kenny also knew the accused McNamara (other than in the context of this case). Whilst I am satisfied that Mr Kenny did wish to speak to Ms McNamara about matters pertaining to her personal security, I do not accept his evidence that this came about as the result of a request made by the accused McNamara.
The effect of Mr Kenny's evidence was that the accused McNamara had expressed concerns about his daughter's safety and that he wanted to somehow address those concerns by having Mr Kenny visit her. I do not accept that account. In my view, it defies common sense. Precisely how Mr Kenny, the solicitor for the co-accused, was possibly in any position to address the issue of Ms McNamara's safety was not explained. Moreover, Mr Kenny's account that he came to visit Ms McNamara at the request of her father does not sit comfortably with his evidence that he was "not really sure" of the purpose of the first of his two meetings with her.
I accept Ms McNamara's evidence that Mr Kenny had expressed a desire to speak with her "about the case". I am satisfied that such desire had nothing to do with security concerns expressed by Ms McNamara's father. I am also satisfied that Mr Kenny's visit had not come about as the result of any request by the accused McNamara. However for the reasons that follow I am satisfied that Mr Kenny's desire to speak with Ms McNamara, and his attendance upon her on two separate occasions, had everything to do with making threats to her which were designed to, and did, instill in her a fear about her personal security and safety, and an associated fear of giving evidence.
It will be apparent from some of the extracts of his evidence set out above that Mr Kenny accepted that he had said at least some of the things that Ms McNamara attributed to him. Perhaps most importantly Mr Kenny conceded that he said words to the effect "It is Roger you need to be afraid of" along with "things will become complicated if there is going to be a trial". He also conceded the possibility that there may have been a reference to "triads breaking into the place" in that context.
Bearing in mind these concessions, the account of Mr Kenny in this respect is not substantially different from the account of Ms McNamara. In light of the findings that I have reached regarding the catalyst for Mr Kenny's visit to Ms McNamara, and in light of Mr Kenny's concessions, I am satisfied that words Ms McNamara attributed to Mr Kenny were said by him. I am also satisfied that those things were said by Mr Kenny with the intention of instilling some fear into Ms McNamara about giving evidence. His statements are not, in my view, capable of explanation on any other rational basis. The seriousness of Mr Kenny's conduct in this regard is exacerbated by the fact that, again on his own admission, the reference to "Roger" being a person to be feared was said in the context of possible complications in the forthcoming trial arising from the conduct, by the accused, of their respective cases.
Ms McNamara gave evidence that at the first of the two meetings Mr Kenny described her father as "stupid" and a "child playing with big boys". Mr Kenny himself conceded that in referring to the accused McNamara he had said words to the effect of "he thinks he's a big timer but he's not in the big time". Once again, the respective accounts are not substantially different. I accept Ms McNamara's account. The only available conclusion is that when referring to "the big boys" Mr Kenny was referring to the accused Rogerson. Bearing in mind Mr Kenny's (admitted) reference to the accused Rogerson being a person Ms McNamara should fear, and the associated reference to a complicated trial, I am satisfied that Mr Kenny was trying to intimidate Ms McNamara by conveying the fact that she should fear reprisals from the accused Rogerson if she gave evidence. In all of the circumstances, no other conclusion is reasonably open.
Having conceded that he said to Ms McNamara words to the effect "It is Roger that you need to be afraid of" Mr Kenny asserted that there was "more to the conversation". When asked whether he had ever suggested to Ms McNamara that she should be afraid of physical repercussions at the hands of the accused Rogerson, Mr Kenny's somewhat evasive and equivocal responses were "Not in those terms" and "Not in those words". When pressed to tell the Court what in fact was said, Mr Kenny professed an inability to do so, and asserted (inter alia) that he "could not remember the exact words". There is a degree of incongruity in affirmatively asserting, on the one hand, that other things were said and then being unable to say what those things were when given the opportunity to do so. Mr Kenny's asserted inability to recall was an answer of convenience. His evidence in this regard was most unsatisfactory. It fortifies my view that he was an unreliable, and sometimes untruthful witness.
What is also of considerable concern is the fact that in the context of the statements which I have found were made by Mr Kenny, he admitted having made reference to the person Mick Drury. Although there is no specific evidence before me, it is a matter of public record that some years ago Mr Drury was shot at his home. The accused Rogerson was charged with conspiring to murder Mr Drury but was later acquitted of that charge by a jury. When asked in cross-examination why he talked about Mr Drury, Mr Kenny said (inter alia) that the subject "just came up in conversation". In my view, the subject of Mr Drury could only have "come up in conversation" if Mr Kenny had himself introduced it. There would have been no reason for Ms McNamara to have done so.
Mr Kenny said that he simply told Ms McNamara of the circumstances in which the accused Rogerson had engaged him as his lawyer many years ago and the fact that he (Mr Kenny) had been a friend of Mr Drury. However there was no legitimate reason for Mr Kenny to make any reference to Mr Drury at all. In my view, Mr Kenny's admitted reference to Mr Drury is completely consistent with the threatening tenor of the other statements that I have found that he made. The general undertone of Mr Kenny's visits to Ms McNamara, and his statements to her, was one of intimidation. I am satisfied that in making reference to Mr Drury, Mr Kenny intended to further convey to Ms McNamara that the accused Rogerson was a person to be feared. Such a conclusion is completely consistent with Mr Kenny's concession that he had said words to the latter effect to Ms McNamara.

Ms McNamara's fears for her personal safety

As a consequence of what Mr Kenny said to her, Ms McNamara has expressed concerns for her safety. Those concerns have been heightened as a consequence of her discovering a disturbance at her premises in December 2014. I am satisfied that as a consequence of these matters, Ms McNamara has suffered, and continues to suffer, psychological harm in the form of stress and anxiety about her safety. For the reasons already expressed I am satisfied that her fears in that regard are well founded.

The provisions of s. 18 of the Evidence Act 1995 (NSW)

I have set out (at [50] above) the provisions of s. 18 of the Act. Section 18(6) is expressed in mandatory terms. In the event that I am satisfied that if Ms McNamara gives evidence there is a likelihood that harm would, or might be, caused directly or indirectly: 1. to her; or 2. to the relationship between her and her father; and if I am further satisfied that the nature and extent of that harm outweighs the desirability of having the evidence given, then Ms McNamara must not be required to give evidence. The determination of whether the nature and extent of any identified harm outweighs the desirability of having the evidence given is to be made after carrying out a balancing exercise in which consideration of the factors in s. 18(7) is mandatory.
The provisions of s. 18(6)(a) are couched in terms of there being a "likelihood" of harm. The Oxford English Dictionary defines the term "likelihood" as: "…the quality or fact of being likely or probable".
That definition is generally consistent with the observations of Deane J in Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 where his Honour said (at 380): "The word likely can, in some contexts, mean "probably" in the sense in which that word is commonly used by lawyers and layman, that is to say, more likely than not or more than a 50 percent chance…"
However, the likelihood of harm being caused is qualified by the use of the alternative "might" in s. 18(6)(a). The word "might" connotes a possibility, as distinct from a probability or a certainty. It follows that in order for the section to be engaged I am not required to find that harm is certain.
The word "harm" is not defined in the Act, nor is the phrase "harm to the person". In my view, there is no warrant for restricting the notion of "harm" to the likelihood of physical harm. In the context of being called to give evidence, the likelihood of psychological harm can be equally serious. This is particularly so in the context of the possible disruption to, or break down of, a marital or domestic relationship.
Section 18(6) contemplates a likelihood of two separate kinds of harm. The first is the likelihood of harm to the person. For the reasons previously set out, and although Mr Kenny did not expressly threaten Ms McNamara with reprisals if she gave evidence, that is how she interpreted his statements. That interpretation is completely understandable. For the reasons I have given, it is the only reasonable interpretation which is open on the evidence. Ms McNamara has expressed her fears stemming from Mr Kenny's statements. Having heard and observed Ms McNamara give evidence before me, I am satisfied that her fears are genuinely held. As a consequence of those fears, Ms McNamara has concerns about giving evidence.
Needless to say, simply because a person may develop fears for his or her own safety does not, of itself, mean that there is a likelihood that physical harm would or might eventuate. A person's fears, even though genuinely held, may be unfounded. However in the present case, the fears of Ms McNamara have an identified evidentiary basis in the statements made by Mr Kenny, as well as the disturbance at her home.
Moreover, as I have noted, there is no warrant for restricting the term "harm" in s. 18 as referring only to physical harm. I am satisfied that Ms McNamara has already suffered emotional harm as a consequence of prospect of giving evidence. In my observation of her, it would not be an exaggeration to say that she is traumatised by the prospect of having to do so. In light of the concerns about giving evidence which Ms McNamara expressed before me, I am satisfied that such emotional harm would continue, and would in fact become worse, if she were required to give evidence.
The second type of harm contemplated by s. 18 is harm to the relationship between Ms McNamara and her father. It has been observed that if a spouse is required to give evidence in proceedings brought against her partner, there is a potential for harm to be caused to the relationship even if no particular harm can be readily identified: R v Flentjar (No. 2) [2008] NSWSC 648 at [4]. In my view, the position is no different when the witness in question is the daughter, as opposed to the spouse, of the person against whom proceedings have been brought. I have already set out the evidence given by Ms McNamara, which I accept, as to the likely harm which would be caused to her relationship with her father if she were to give evidence. Prior to the events leading up to his arrest, Ms McNamara enjoyed a close relationship with her father. I accept her evidence that there is a likelihood that such relationship would be fractured if she were to be required to give evidence at the trial. It follows that I am satisfied that there is a likelihood that harm would or might be caused to the relationship between Ms McNamara and her father if she were required to give evidence.
I am satisfied that the nature and extent of the identified harm in each case is significant. The harm to Ms McNamara herself stems from (inter alia) the threatening statements made by Mr Kenny and the later disturbance at her premises. Those matters are not speculative. They are real. Having observed Ms McNamara give evidence, I am satisfied that they have already been productive of significant emotional trauma which would be increased if she were to give evidence. For the reasons given, the nature of the harm which is likely to be occasioned to Ms McNamara's relationship with her father is considerable.
Having reached those conclusions I am required to consider whether the nature and extent of the likely harm that I have identified outweighs the desirability of having the evidence given. That, as I have previously noted, involves a balancing exercise which mandates consideration of the factors set out in s. 18(7).

Section 18(7()(a) - The nature and gravity of the offences charged

In terms of s. 18(7)(a), the nature and gravity of the offences faced by each accused will be self-evident. That circumstance favours the Crown.

Section 18(7()(b) - The substance, importance and weight of the evidence

Paragraphs (17)-(44) of the Crown Case Statement set out what is alleged to have occurred between the two accused on 20 May 2014, that being the day on which Ms McNamara made her observations. The evidence which the Crown will lead concerning the events of that day (other than that of Ms McNamara) includes the following: 1. the accused McNamara met with the deceased; 2. the accused Rogerson was in and about the vicinity of that meeting; 3. the accused McNamara and the deceased drove to a storage shed and entered it; 4. the accused Rogerson later arrived at the storage shed and entered it; 5. the two accused later emerged from the storage shed dragging a silver surf board cover which they loaded into the rear of a vehicle; and 6. the two accused later arrived at McNamara's residence in the vehicle into which the surfboard cover had earlier been loaded, and in which there was also a quantity of methyamphetamine.
Against this background, the deceased's body was recovered on 26 May floating approximately 2.5 kms off the shore of Shelly Beach, Cronulla. His body was within a silver surf board cover.
The inferences the Crown will ask the jury to draw from the evidence in [89]-[90] above will be obvious. In my view, in these circumstances, any evidence from Ms McNamara that she saw a "lump" in the pocket of the accused Rogerson adds little to the Crown case. The Crown may ask the jury to infer that the lump was a gun. The somewhat general description of the "lump" given by Ms McNamara in evidence before me is such that there may be other inferences available. Moreover, Ms McNamara told the police that Rogerson was wearing shorts at the time. There is evidence which suggests that Ms McNamara's recollection in this regard is not accurate. Ms McNamara accepted that she could be mistaken in this respect. All of those factors have the capacity to bear adversely upon the weight of any evidence she might give.
Further, if the Crown were to seek to elicit the fact that Ms McNamara originally told the police that she saw a gun in the pocket of the accused Rogerson, it would be necessary to seek leave to cross examine her under s. 38 of the Act. That would obviously necessitate Ms McNamara conceding that she told the police an untruth. That at least has the capability of affecting the weight which might be attached to the evidence by a jury.
The evidence of Ms McNamara may not be unimportant. However for the reasons expressed, and on the assumption that the Crown is in a position to establish those matters in [89]-[90] above, it is my view that her evidence assumes limited significance when the Crown case is viewed overall.

Section 18(7)(c) - The availability of other evidence

As to s. 18(7)(c) there is no suggestion that any other evidence of Ms McNamara's observations is reasonably available to the Crown from any other source. Whilst that is a factor which favours the position of the Crown, it is one which is tempered by the fact that the evidence is of limited significance in any event.

Section 18(7)(d) - Ms McNamara's relationship with the accused

As to s. 18(7)(d), I have already set out my findings as to the nature of the relationship between Ms McNamara and her father. That is a factor which favours the position of Ms McNamara.

Section 18(7)(e) - The disclosure of confidential matters

It is not suggested that s. 18(7)(e) has any application to the present case.

Other factors relevant to the balancing exercise

The Crown correctly submitted that although I must take into account each of the factors in s. 18(7), I am not limited to those factors in conducting the necessary balancing exercise. In this regard the Crown placed significant emphasis upon the rule of law, and the obligation placed upon members of the community who are in a position to give evidence in criminal proceedings. That is obviously a relevant factor to take into account. However, the balancing exercise I have to perform is just that - a balance. The obligation to which the Crown referred is not determinative of the issue. It must also be considered by reference to the substance of the evidence which, for the reasons I have already given, is limited.

CONCLUSION AND ORDERS

There are a number of sound policy considerations which underpin s. 18: Flentjar (supra) at [4]. Those policy considerations were explained by the Australian Law Reform Commission (in ARLC 80) as being: • on the one hand, the desirability, in the public interest, of having all relevant evidence available to the courts; • on the other hand, the undesirability, in the public interest, that: ◦ the procedures for enforcing the criminal law should be allowed to disrupt marital and family relationships to a greater extent than the interests of the community really require; and ◦ the community should make unduly harsh demands on its members by compelling them, where the general interest does not require it, to give evidence that will bring punishment upon those they love, betray their confidences or entail economic or social hardships.
Taking into account all the factors to which I have referred, and for the reasons I have expressed, I am satisfied that the balance in the present case favours the objection being upheld. I am satisfied that there is a likelihood that harm would be caused to Ms McNamara, and to the relationship between her and her father, if she were to give evidence. I am further satisfied, having performed the balancing exercise required by s. 18(7) that the nature and extent of that harm outweighs the desirability of having the evidence given.
In view of the conclusions that I have reached regarding the actions of Mr Kenny and the statements made by him, a copy of this judgment will, when the suppression order in 101 below is vacated at the conclusion of the trial, be forwarded to the Professional Standards Division of the Law Society of NSW for such consideration and action as may be thought appropriate in the circumstances.
I make the following orders: 1. The objection made under s. 18(2) of the Evidence Act 1995 (NSW) by Jessica McNamara is upheld. 2. Pursuant to s. 18(6) of the Evidence Act 1995 (NSW) I order that Jessica McNamara must not be required to give evidence at the trial of the accused Roger Caleb Rogerson and Glen Patrick McNamara.

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

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Legislation Cited (1)

Cases Cited (2)