On 29 March 2016 (which was day 40 of the present trial) Det. Phillips, who is the officer-in-charge of the investigation, was giving evidence before the jury. Det Phillips is one of the final witnesses to be called in the Crown case, which is expected to close in coming days.
In the absence of the jury, the Crown indicated that he proposed to take Det. Phillips to the contents of a statement he had made on 22 March 2016 which was served on the representatives of each of the accused shortly afterwards. Ms Shead, on behalf of the accused McNamara, indicated that she would, in all probability, object to that evidence. That position was subsequently confirmed.
To the extent that it is relevant for present purposes, the statement of Det. Phillips makes reference to alleged links between the deceased and a man known as Peter Hoang. Mr Hoang was apparently shot and killed in September of 2014. Det. Phillips spoke with detectives who were investigating Mr Hoang's killing. He ascertained in October 2014 that there had been no identified link between Hoang and the deceased. That information was confirmed in February 2015. Those dates are of some significance, for reasons to which I will return.
In order to understand the objection which has now been raised by Ms Shead, it is necessary for me to refer briefly to some aspects of the history of these proceedings.
On 28 July 2015, this trial commenced before a jury. It is a matter of record that as a consequence of statements made in the opening address by counsel then appearing for McNamara the jury was discharged.
It remains significant, however, in the course of that opening address, and specifically in the course of outlining the case for McNamara, counsel then appearing for him said this at T58 L10:
"The other matter was he was accused of skimming $130,000 of the drug money, and he told Mr McNamara that he had given that to a Mr Peter Hoang. Peter Hoang was a money launderer and a man whose activities were noted by police and a man who turned over quite a lot of money, millions of dollars, at casinos. He died later in the year, 2014, killed."
I pause to observe that at least on the basis of that part of counsel's opening, it must have been apparent that in all likelihood, McNamara would be called to give evidence in his case and would give evidence of the conversation with the deceased to which his then counsel responded.
The present trial commenced on 1 February 2016. Ms Shead, who now appears for McNamara, opened her case to the jury on 2 February 2016. Between 28 July 2015 (when the previous jury was discharged) and 2 February 2016 (when Ms Shead opened her case) no evidence was served by the Crown which related to or established the absence of any link between Mr Hoang and the deceased. In those circumstances, Ms Shead opened to the jury (inter alia) in the following terms (commencing at T71 L9):
"Mr Gao told Mr McNamara that he was becoming increasingly worried about the Triads. He said that he was in danger of being killed unless he got some of the money he had skimmed off and given to a money launderer called Peter Hoang to hold, and unless he got that back, and handed it over, his life was in danger."
Ms Shead then continued at T72 L6:
"On 20 May Roger Rogerson contacted Glen McNamara and said he had spoken to Gao. He said that conversation had happened the day before and that he was meeting with Mr Gao and Mr Hoang. He said they later met Mr McNamara at Padstow McDonald's. McNamara said he was worried about the Triads and concerned about Mr Gao."
It will be noted that the terms of Ms Shead's opening in relation to alleged conversations between the deceased and Mr Hoang was generally consistent with the way in which the case had previously been opened by counsel then appearing for McNamara.
It is against that background that the Crown now seeks to lead the evidence of Det. Phillips to which I have referred. The Crown does so, as I understand it, in order to rebut or attempt to rebut the suggestion that the deceased and Hoang had any contact at all.
Ms Shead has objected to the Crown's reliance on the evidence and in doing so, has called in aid the provisions of s. 137 of the Evidence Act 1995 (NSW) ("the Act"), which are in the following terms.
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.
The Crown submitted the evidence was necessary to be adduced in order to meet a part of the defence which had been foreshadowed on behalf of McNamara in the opening addresses to which I have referred. The Crown submitted, by reference to and authority to which I will come, that the facts of the present case were distinguishable in the sense that this was not a case where the Crown was simply seeking to lead evidence for its own purposes but was, rather, doing so in order to meet an anticipated defence in the manner that I have described. It was submitted that any delay in serving that statement was to be viewed in that light.
The Crown submitted that I would not be satisfied that the conduct of the defence case on behalf of McNamara had been prejudiced in any way as a consequence of the late disclosure of the evidence. The Crown also sought to draw some relevant distinction between the Crown on the one hand and the investigating police on the other. As I understood it, whilst the Crown accepted that the material had been in the possession of the police for some period of time (a circumstance which was confirmed by Det. Phillips when he gave evidence before me this morning) the material had come into the possession of the Crown as recently as 20 March 2016.
The Crown also took me to excerpts of the cross-examination of various witnesses by Ms Shead in the course of the trial, including Chun Kit Lam, Chun Lok Lam, Matthew Lo and Hubert Sha in order to demonstrate that the issue of Mr Hoang was a matter which had already been the subject of cross-examination.
In all of these circumstances, the Crown's submitted that there was significant probative value in the evidence and no danger of unfair prejudice to McNamara if it were admitted.
Ms Shead firstly submitted that it was significant that the information now relied upon by the Crown had been in the possession of the police since late 2014. She submitted that in those circumstances, there was no relevant distinction to be drawn between information in the possession of the police and information in the possession of the Crown Prosecutor.
She also pointed out that evidence of the conversation between the deceased and McNamara would be led only for the purpose of establishing the fact that the conversation took place. She made it clear that it would not be relied upon, in any way, to establish the truth of what was said.
Ms Shead also relied on the fact that the conversation which gives rise to this issue had been adverted to in the course of counsel's opening address in the first trial in July 2015. She submitted that in all of the circumstances it had been open to the Crown to provide the material after that time but before the commencement of the present trial, the Crown being effectively on notice that this would be an issue raised in the course of McNamara's defence.
Ms Shead submitted that, in all of those circumstances, forensic decisions had been made for the purposes of conducting McNamara's case which may have been approached differently had the Crown's proposed reliance upon this material been known at the time that those decisions were made. She submitted that there was therefore a clear danger of unfair prejudice.
Mr Thomas, on behalf of Rogerson, supported the Crown's position. He submitted that the probative value of the evidence was high, and that it had the capacity to rebut the assertion outlined in the course of the opening addresses. He also pointed to the fact that the evidence was of particular importance in circumstances where one of the parties to the conversation about which McNamara might be expected to give evidence was deceased.
It is plain on the evidence before me that the material which is now sought to be relied upon by the Crown was known in some way, shape or form to the police as long ago as late 2014. The existence of the information was confirmed in February 2015. That was about five months before the commencement of the first trial.
I am unable to accept the Crown's submission there is a relevant distinction to be drawn for present purposes between information within the knowledge of the police, and information which is within the knowledge of the Crown thereafter. I adverted to that issue in a judgment of the R v Rice (No 4) (2014) NSWSC 1525 where, I observed (at [20]) that in the circumstances of that case somebody involved in that investigation had been aware of material upon which the Crown wished to rely, notification of which had only been given to the accused at a very late stage of the trial. Although I did not specifically resolve the question on that occasion, the import of what I said was that there was no relevant distinction to be drawn.
For obvious reasons, it is significant that the material was available but was not served. What is of particular significance in the present case is that the issue, having been raised in an opening address in July 2015 the Crown did not make the material known to those appearing for McNamara.
Ms Shead relies on s. 137 of the Act. In Rice (supra) I made reference (at [32]) to a decision in Haoui v R (2008) 188 A Crim R 321; [2008] NSWCCA 209, where the Court of Criminal Appeal ordered a retrial in a case where late service of expert evidence had been given by the Crown. I observed (at paragraph [32]) that although that decision did not consider the provisions of s. 137 directly, the approach which had been taken by the Court provided some support for the proposition that procedural considerations of the type with which I am now dealing are capable, in a given set of circumstances, of giving rise to the kind of unfair prejudice to which s. 137 is directed.
In my view, the probative value of the evidence is limited. The limitations on the probative value of the evidence arise largely from the circumstances in which, and the purpose for which, evidence will be led from McNamara in relation to this general issue. As I have said, the evidence will be led from him not to prove the truth of what was said but to prove the fact of what was said.
Viewed in that way, I am unable to accept the Crown's submission that the evidence is necessary to "meet" a defence which has been foreshadowed or part of the defence which has been foreshadowed by McNamara.
Moreover, I accept what I have been told by Ms Shead as to the possibility of different forensic decisions, being made if the accused had been on notice of this evidence. Needless to say, and as I pointed out in the course of an exchange in submissions, counsel is not obliged, in dealing with an issue such as this, to disclose in specific terms what counsel's instructions are, or what forensic decisions have been made in relation to the conduct of the trial. I am necessarily limited as to the extent which I am able to canvass those issues with counsel. I am left in a position where, to a large extent, I must accept what counsel tells me, in her capacity as an officer of the court, about what forensic decisions may or may not have been made in the course of conducting her client's defence.
That said, it is not difficult to see, that one or other forensic decisions as to the conduct of the accused's case may well have been approached differently had this material been disclosed at an earlier time.
I do not, in saying any of these things, intend any criticism of the police or the Crown. The fact is that in cases such as this, circumstances sometimes arise where, for a variety of reasons, material is served at a late stage. What must necessarily be at the forefront of my mind as the trial judge is the necessity to ensure all parties are given a fair trial.
Bearing in mind the observations that I made in Rice, I am satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to McNamara in the sense that I have described.
Having come to that view, s. 137 mandates that the evidence be excluded and that is the course that I propose to take.
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Decision last updated: 15 June 2016