R v Rogerson; R v McNamara

Supreme Court of NSW|2016-02-12|Before: Bellew J

Judgment

Objection has been taken by counsel for the accused Rogerson to evidence sought to be led by the Crown of the analysis of items of clothing seized from Rogerson's premises and which were found to contain traces of gunshot residue. Counsel for McNamara does not oppose the admission of the evidence, and indeed has actively supported it.
In order to place the issue in its proper context it is necessary for me to set out the background against which it arises.

The respective cases

The Crown alleges that the deceased Jamie Gao was shot and killed on 20 May 2014 pursuant to a joint criminal enterprise between the two accused. On the Crown case, the deceased was shot inside storage unit no. 803 at Rent-A-Space at Padstow between about 1:46pm and 2:18pm on that day. In the course of his opening address to the jury, the Crown Prosecutor made plain that he was not able to identify which of the accused shot the deceased. However, the Crown properly pointed out that in circumstances where a joint criminal enterprise was alleged, it was not necessary that he do so.
McNamara's case is that Rogerson shot the deceased in his (McNamara's) presence, without warning. Rogerson's case is that McNamara shot the deceased prior to him (Rogerson) entering the storage unit. Both deny the existence of a joint criminal enterprise.

The evidence

CCTV cameras were operating in the vicinity of storage unit 803 at the time of the deceased's murder. Although the footage itself has not been tendered on the present application, a number of still photographs taken from it form part of the material relied upon by the Crown. The following photographs are of particular significance in terms of the present application: 1. Photograph 97 shows the accused Rogerson walking towards storage unit 803 at 1:49pm on 20 May 2014, wearing (inter alia) black pants and white shoes; 2. Photograph 98 shows Rogerson entering storage unit 803 at 1:49:16 on 20 May 2014, at which time the black pants are again visible; 3. Photograph 99 shows Rogerson exiting storage unit 803 at 1:58:15 on 20 May 2014, wearing (inter alia) a cap, black pants and running shoes.
The Crown case is that following the shooting of the deceased the two accused attended the premises of Kennards Hire at Taren Point for the purposes of hiring a block and tackle. CCTV cameras were also operating within those premises on that day. Still images taken from that CCTV footage have also been tendered on the present application. The following images are of particular significance: 1. Photograph 118 shows both accused inside the premises of Kennards Hire. Rogerson is seen wearing (inter alia) a cap and black pants. What appears to be a draw string is visible at the waist, giving the appearance of "track suit" pants; 2. Photograph 119 again shows both accused inside the Kennards premises. Rogerson's cap is clearly visible in that photograph. The front part of it is grey. The area above the brim of the cap appears to bear a logo or insignia, the details of which cannot be identified; 3. Photograph 121 again shows both accused within the premises of Kennards Hire. Rogerson's cap as previously described is clearly visible.
The Crown alleges that both accused then went to the Cote D'Azur Apartments in McDonald Street, Cronulla. CCTV footage was also operating within those premises and still images from that CCTV footage have been tendered on the present application. The following images are of particular significance: 1. Photograph 129 shows both accused in the lift at the apartment block at 5:14pm on 20 May 2014. Rogerson is wearing a cap, the front half of which is light grey. Its appearance is generally consistent with that shown in photograph 119 taken at Kennards Hire. Photograph 129 also shows that the back half of the cap is red. Rogerson is again wearing black pants with a draw string at the front; 2. Photograph 132 taken at 5:26pm shows Rogerson wearing the cap and pants as previously described; 3. Photographs 142(a) and 142(b) were taken in the lift at the apartment block at 7:32:13 and 7:32:50 respectively on the morning of 21 May 2014. In each of those photographs Rogerson is wearing a cap, the appearance of which is consistent with that previously described. The different colours of the cap can clearly be seen in photograph 142(b). In photograph 142(a) Rogerson is wearing a mauve shirt.
On 25 May 2014 police executed a search warrant at Rogerson's residence at 22 Churchill Road, Padstow Heights. Amongst the items seized were: 1. a mauve shirt; 2. a pair of black "tracksuit" type pants; 3. a red and grey cap bearing a "Sydney 2000" logo at the front; and 4. a pair of white running shoes.
All of those items were ultimately submitted for scientific testing and are depicted in photographs 139, 140, 142 and 145 tendered on the present application. Items of clothing were also seized from McNamara's premises and subjected to analysis. However, no gunshot residue was detected on any of them.

THE scientific analysis

Two expert reports of Dr Stephanie Hales have been tendered on the present application. Dr Hales is the manager of the Chemical Criminalistics Unit at the NSW Forensic and Analytical Science Service. She holds a Bachelor of Science (Applied Chemistry) with Honours in Forensic Science, together with a PhD (Forensic Science). She has more than 15 years experience as a Forensic Chemist.
In her report of 21 October 2015, Dr Hales explained that she examined each of the articles of clothing seized from Rogerson's premises as set out in [8] and [9] above. Her examination produced the following results: 1. one particle characteristic of gunshot residue containing lead, antimony and barium, and two indicative particles containing lead and antimony, were detected on the cap; 2. two particles characteristic of gunshot residue containing lead, antimony and barium, and one indicative particle containing lead and antimony, were detected on the mauve shirt; 3. one particle characteristic of gunshot residue containing lead, antimony and barium was detected on the black pants; 4. two indicative particles characteristic of gunshot residue containing lead and antimony were detected on the pockets of the pants; 5. no gunshot residue was detected on the shoes.
In light of the results of her analysis, Dr Hales expressed the following opinion (in paragraph 18 of her report): "a. The presence of four particles characteristic of gunshot primer residue and five indicative particles on the samples from ROGERSON's clothing supports the proposition of firearm association. b. These particles could have been deposited and retained as described in paragraphs 5 and 7 of my previous expert certificate dated, 28 July 2015, including being accounted for by one or all of the following: i. ROGERSON having fired a gun; ii. ROGERSON being in close proximity to a gun at the time that it was discharged; iii. ROGERSON having come into contact with an object or surface that was contaminated with gunshot residue; c. It is possible that the two indicative particles on the samples from within the pockets of the pants of Rogerson have been retained after washing of the garment, since pockets are generally more protected from washing action; d. The absence of gunshot residue on the samples from the clothing of McNamara does not support or preclude the proposition of a firearm association … . Some reasons for the absence of gunshot residue could be: i. The clothing was neither in the immediate vicinity of a discharge firearm or in contact with a surface contaminated with gunshot residue; ii. Gunshot residue particles were not deposed on the clothing; iii. Gunshot residue particles that were originally deposed were lost prior to sampling of the clothing …; or iv. Gunshot residue particles were not present on the specific areas sampled."
In an earlier report of 28 July 2015, which was tendered on the present application, Dr Hales said the following (commencing at paragraph 5): "5. Gunshot residue can be deposed directly during discharge as small particles on the hands, face, hair and clothing of the shooter and on people and surfaces near the immediate firing point. Gunshot residue particles can then be transferred during contact with a direct source such as a fired gun or fired cartridge case. Further transfer of particles can take place through contact with a surface previously contaminated with gunshot residue. The presence of gunshot residue on a person or item is therefore evidence of a firearm association. In some cases, the nature of the firearm and manner of its discharge and handling might be such that gunshot residue particles are in fact not deposed. 6. Gunshot residue particles are rapidly lost from the skin surfaces of a live person, such as their hands, due to normal manual activities. In general, the majority of particles deposed on hands will be lost within the first two hours after a firearm association, with the remainder lost within a further two hours. Washing of hands with soap and water is likely to completely remove any gunshot residue particles present. 7. Clothing retains gunshot residue particles for a longer period of time than skin surfaces, but particles are lost as time elapses due to normal activity. Washing of a garment is likely to completely remove any gunshot residue present. 8. Gunshot residue particles can remain on an undisturbed surface indefinitely. However, when a surface is disturbed, such as by contact with other objects or people, the gunshot residue particles can transfer and be removed from the surface over a period of time."

Submissions on behalf of the Crown

The Crown submitted that it was open to the jury to infer that the cap and the black pants which the accused Rogerson was seen to be wearing on 20 May 2014 were two of the items which were later seized from his premises and found to contain gunshot residue. In circumstances where there is a fundamental issue in the case as to the identity of the person who shot the deceased, the Crown submitted that the evidence was clearly relevant.
The Crown further submitted that there was no basis on which to exclude the evidence pursuant to s. 137 of the Evidence Act 1995 (NSW) ("the Act"). The Crown submitted that the probative value of the evidence was substantial, and that there was little or no danger of unfair prejudice to the accused if it were admitted. In particular, the Crown pointed to the fact that Dr Hales would be called to explain the results of her analysis, and that in these circumstances there was no danger that the evidence would confuse or mislead the jury.
The Crown accepted that the evidence of the gunshot residue on the mauve shirt was in a different category, due principally to the fact that there is no evidence that Rogerson was wearing that item of clothing on the day of the deceased's murder (although there is evidence that he was wearing it on the following day). The Crown described the relevance of the analysis of that item of clothing as "marginal" but did not go so far as to concede that it was irrelevant.

Submissions on behalf of McNamara

As I have previously noted, counsel for McNamara supported the admission of the evidence. In short, counsel submitted that the evidence was obviously relevant in circumstances where there was an issue as to the identity of the person who shot the deceased.

Submissions on behalf of Rogerson

The position taken by counsel for Rogerson shifted somewhat in the course of argument. Initially, counsel took issue with the evidence of the continuity of the items between the time of seizure and the time of analysis, and argued that because the chain of continuity could not be established, the evidence was not relevant and was therefore inadmissible. However that argument was subsequently abandoned.
I had understood counsel to accept, at that point, that the evidence was relevant, such that the only issue was whether or not it should be excluded pursuant to s. 137. However counsel proceeded to submit that the evidence was not relevant and that, in the event that I concluded that it was, it should be excluded pursuant to s. 137 of the Act. He described the issue arising under s. 137 as his "main argument", in support of which he advanced a number of submissions.
Firstly, counsel submitted that there was no evidence to "verify" that the items of clothing which Rogerson was seen to be wearing in the photographs taken on 20 May 2014 were those which were later seized from his premises. Counsel also pointed out that in the case of the mauve shirt, there was no evidence at all that Rogerson had worn that item on the day the deceased was killed.
Secondly, it was submitted that the evidence "stood alone", thus giving rise to a danger that it would be misused by the jury. Counsel described the effect of the admission of the evidence as "catastrophic" to Rogerson's case.
Thirdly, it was submitted that the evidence was subject to "significant qualifications", and that Dr Hales' report posed a number of alternative hypotheses, any of which were "real possibilities". This, it was submitted, also gave rise to the danger of misuse.
Fourthly, counsel pointed to what he submitted were a number of shortcomings in the investigation which resulted in what he described as an "evidentiary void", to which Rogerson had not contributed, and which was said to give rise to unfair prejudice. Such "evidentiary void" was said to be constituted by (inter alia) the fact that: 1. the storage unit was not tested for the presence of gunshot residue; 2. the vehicle in which the deceased's body was placed immediately following the shooting was not tested; 3. the parking bay in the garage of the Cote D'Azur apartments was not tested; and 4. only two items of McNamara's clothing were tested for gunshot residue and that these items did not include the clothing that McNamara was seen to be wearing on 20 May 2014.
Finally, counsel submitted that in the circumstances he had outlined, the danger that the jury would misuse the evidence grossly outweighed what was said to be its "limited" probative value.

THE RELEVANCE OF THE EVIDENCE

There is a clear issue in the present proceedings as to the identity of the person who shot the deceased. Indeed, the written submissions of counsel for Rogerson described this as "the most important fact in issue in the case".
Relevance is governed by s. 55 of the Act which is in the following terms: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence.
It has been observed that the test of relevance under s. 55 is a wide one and that the word "could" means "it is possible that it may": Nye v New South Wales [2002] NSWSC 1270 at [13]. Consistent with the fact that the test is a wide one, the effect of a particular piece of evidence on the assessment of the probability of a fact in issue may be direct or indirect: Zaknic v Svelte Corp Pty Limited (1995) 140 ALR 701 at 704.
In my view, the evidence of the gunshot residue found on the cap and black pants is relevant in the sense contemplated by s. 55. Clearly, that evidence has the capacity to rationally affect the assessment of the probability of a principal fact in issue, namely the identity of the person who shot the deceased.

Exclusion under section 137

Section 137 of the Act is in the following terms: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
In my view, the probative value of the evidence is significant, and I am not persuaded that it is outweighed by the danger of unfair prejudice to the accused. In this regard, and in light of the submissions advanced on behalf of Rogerson, a number of observations must be made.
Firstly, an inference is clearly available to the jury that the cap and pants which Rogerson was seen to be wearing in the photographs taken on 20 May are the same cap and pants which were seized from his premises some days later. The cap, in particular, is distinctive in colour. Whilst the pants are somewhat more "generic" in their appearance, and quite apart from the inference which I consider is available, it is relevant to note that in the course of the cross-examination of a witness on a pre-trial application (a transcript of which was tendered on the present application) counsel for Rogerson affirmatively put that Rogerson was wearing "dark pants" when seen in the lift of the Cote D'Azur apartments on the afternoon of 20 May 2014.
Secondly, the fact that evidence may "stand alone", and/or be "catastrophic" to an accused's case does not mean that it is unfairly prejudicial. In Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 McHugh observed (at [91]): "Evidence is not unfairly prejudicial because it makes it more likely that the defendant will be convicted. In R v BD (1997) 94 A Crim R 141 at 139-140 Hunt CJ at CL pointed out: 'The prejudice to which each of sections [s135, s136 and s137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way' " (emphasis in original).
In R v Yates [2002] NSWCCA 520 the Court (Wood CJ at CL, Hulme and Buddin JJ) observed (at [252]): "On the other side of the comparison is "unfair prejudice", or the danger thereof arising from the evidence. All evidence incriminatory of an accused which has a probative value, necessarily causes prejudice, but this is not the prejudice of which s. 135 to s. 137 (or for that matter s. 192) speak. Prejudice argues for exclusion only if there is a real risk of danger of it being unfair: R v Lisoff [1999] NSWCCA 364. This may arise in a variety of ways, a typical example being where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight. However, insofar as any prejudice flows from the legitimate use of evidence it provides no ground for the exercise of the duty or discretion arising under sections s135-s137".
Thirdly, there is nothing to suggest that if the evidence is admitted the jury will adopt any illegitimate form of reasoning, or give the evidence undue weight. Whilst the evidence is obviously significant, it is one part (albeit an important part) of an overall circumstantial case against the accused.
Fourthly, the fact that the evidence of Dr Hales may support to more than one hypothesis does not lead to a conclusion that the evidence is unfairly prejudicial. In R v SJRC [2007] NSWCCA 142 James J (with whom Rothman and Harrison JJ agreed) said (at [38]): [38] It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference. However, provided that the evidence is capable of bearing the interpretation or of giving rise to the interference contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice. [39] It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn.
Finally, whether there exists an "evidentiary void" of the kind suggested will be a matter to be evaluated by the jury. I am in no position at the present time to make any determination as to whether or not the police investigation was lacking in the respects suggested by counsel. No doubt these matters will be the subject of cross-examination in due course and, if appropriate will be the subject of a submission to the jury at the conclusion of the trial. Even if there is such a void, it does not give rise to unfair prejudice in the sense contemplated by s. 137.
For all of these reasons, the evidence of the analysis of the cap and black pants should be admitted.
The evidence of the analysis of the mauve shirt is in a different category. There is no evidence that Rogerson was wearing that item of clothing on the day of the deceased's murder. The only evidence is that he was wearing it the following morning. In these circumstances, I propose to reject the tender of the analysis of that item.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2016

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