(1999) 196 CLR 297
R v Chin [1985] HCA 35(1985) 157 CLR 671
R v McNamara
Judgment (2 paragraphs)
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Judgment EX TEMPORE - REVISED
The case for the accused Rogerson was completed on 13 May 2016, at which time there arose an issue concerning evidence the Crown wished to call in reply from Mr Tony Butler, a long-standing friend and acquaintance of Rogerson.
The question of evidence being given by Butler was raised by Mr Thomas in the course of the evidence of the accused McNamara, at which time the Crown issued a subpoena for Butler's attendance. However the origins of Butler's evidence, and the possibility of him being called as a witness, go back further.
Police obtained a statement from Butler in November 2015. Apart from making a reference to having contact with Rogerson on 23 May 2014, the statement said very little. It is common ground between the parties that prior to the commencement of this trial the Crown provided to the representatives of each of the accused a list of witnesses. That list was divided into several categories, one of which listed those witnesses who the Crown proposed to call in its case. Another category was those witnesses who the Crown did not propose to call, but agreed would be made available for cross-examination upon a request being made by either or both of the accused. Butler, fell into that latter category. However, no request was made by the representatives of either accused that he be made available by the Crown for cross-examination. Accordingly, the Crown did not call him in its case.
In the course of giving evidence-in-chief, the accused McNamara (commencing at T3243 L42) gave evidence of conversations that he allegedly had with Rogerson immediately prior to Christmas 2014 when they were in custody together. Those conversations, according to McNamara, followed a number of previous discussions in the course of which Rogerson allegedly suggested that a defence to the present charges be fabricated. Rogerson has denied such allegations.
According to McNamara, he had a conversation with Rogerson (which was recounted at T3243 L44) in the following terms:
McNamara: I think I'm willing to go along with you but I've got some concerns.
Rogerson: What are they?
McNamara: Primarily the gun.
Rogerson: What do you want to know?
McNamara: Everything.
Rogerson: Tony Butler has been a mate of mine for about 25 years. He's a mad gun perv. I've got guns from Tony when I've needed them. My Chinese friends told me what a dangerous little cunt Jamie was and I got a gun. God strike me, he pulled a knife first.
McNamara: I know that. Tell me about the gun.
Rogerson: I had the gun for a week or so prior to the shooting after I had spoken to my Chinese friends.
McNamara: Where is it now?
Rogerson: On Friday, 23 May, I dropped it back at Tony's work at Aviation Welding at Bankstown Airport.
McNamara then gave evidence (commencing T3244 L5) that the "Tony" to whom Rogerson was referring was in fact Butler. He also said that in the same conversation Rogerson had made reference to a person by the name of Jimmy Brown. That was in the context of McNamara asking Rogerson where the gun was at the time of the conversation, and Rogerson replying:
After all the shit blew up with you on the Sunday night, I saw it on the news in Queensland. I got Farley to get me a bodgie phone.
The reference to "Farley" is a reference to a witness who has already given evidence in the Crown case.
Rogerson, in his evidence, has denied possessing a gun on the day of the deceased's shooting, shooting the deceased and having any association with Butler in relation to the return of any firearm. There were references in the course of McNamara's evidence to other conversations about the gun which he said took place whilst he and Rogerson were in custody together. Rogerson has denied those conversations.
Exh. M28 is a summary of telephone contact between various persons, including Rogerson, Butler and another person by the name of William Duff. Duff is also a long-standing acquaintance of Rogerson who was previously called by the Crown to give evidence. In the course of his cross-examination, it was put to him by counsel then representing McNamara that he (Duff) was party to an arrangement with Rogerson to provide Rogerson with a false alibi as to his movements on the day of the deceased's death. An application by McNamara's then counsel to cross-examine Duff about a previous conviction for supplying a prohibited drug was refused: R v McNamara; R v Rogerson (No 28) [2016] NSWSC 160. It is evident that Butler and Duff are closely acquainted. Exh. M28 establishes that on 20 May 2014 there was telephone contact between Rogerson and Duff, on 23 May 2014 there was contact between Butler and Duff and on 22 and 26 may 2014 there was contact between Rogerson and Brown.
In the course of McNamara's cross-examination (but in the absence of the jury) Mr Thomas raised the issue of Butler being called. Initially it was his unequivocal position that the Crown "must" call Butler in light of the evidence which had been given by McNamara. Subsequently, the Crown served (by way of disclosure) a number of documents relating to Butler which established (inter alia) that on 6 May 1999 Butler's business premises were raided by police, at which time what was described as a "large arsenal of unlicensed firearms, weapons and prohibited articles along with a large amount of compatible ammunition" were found. As a consequence, Butler was charged with a series of offences, including possession of a prohibited weapon without a permit, possessing an unauthorised firearm, possessing ammunition without a permit, failing to keep a firearm safely and possessing an unauthorised firearm. Those matters came before the Bankstown Local Court on 17 November 1999. The Magistrate found that the evidence adduced by the prosecution was insufficient to establish a prima facie case and all of the charges were dismissed. In light of some of the evidence given by Butler on the voir dire today, I have inferred that the basis for the dismissal of those charges was an absence of evidence which established the element of knowledge.
After that material had been served by the Crown, Mr Thomas' position changed somewhat. Having had the opportunity to obtain instructions following the conclusion of Rogerson's cross-examination, Mr Thomas objected to Butler being called. However, it was agreed by all parties that I should hear Butler's evidence on the voir dire. Before going to that, it is appropriate that I recount part of the contents of the statement that he made to the police on 16 November 2015. Having set out (at paragraphs 3 and 4) the nature of his friendship with Rogerson, Butler stated (commencing at paragraph 5):
"5. About two to two and a half years ago I was at Roger's house in Padstow when Glen McNamara turned up. I'd never met him before and Roger introduced Glen as a person he worked with in private investigation work. I left Roger's place shortly after meeting Glen. That was the first and last time I ever met Glen McNamara.
6. On Monday 19 May 2014 I went on a cruise up to Brisbane and some of the islands nearby. I didn't get back home until Thursday 22 May, about 2.30pm. That afternoon Billy Duff called me to say g'day and mentioned Roger, Gary Windred and another mate Joe were going to the Crown Hotel, Revesby, for a beer. I wasn't able to go because I was too busy at work.
7. The last time I caught up with Roger was on Friday 23 May 2014. Roger came to my hangar at the airport to have a beer about 3pm. Roger usually dropped in for a beer roughly every couple of weeks. On that day a few other mates who also regularly had a beer were there that afternoon, including Billy Duff, Ray Phelps, Bob Fraser, Warren McGlyn and my son Kyle Butler.
8. I didn't notice anything unusual about Roger. It was just another normal afternoon where we had a beer and told some jokes and talked about different things. I remember Roger told me he was heading up to Redcliffe, Queensland, the next day for one of his speaking engagements."
Butler gave evidence before me on the voir dire on 13 May 2016, and again today. In the course of his evidence-in-chief on the voir dire (commencing at T4580 L34) he departed from the statement that he had made to the police. Firstly (at T4580 L35) he stated that it was on the 16th of May 2014 (not the 19th of May 2014) that he had left to go on a cruise to Brisbane. He confirmed that he arrived back on the 22nd of May 2014 and (at T4580 L44) that "someone" contacted him on that day about having a drink. When asked who it was (at T4580 L46) Butler maintained he could not recall. When asked specifically whether it was Duff he responded:
"No, it wasn't Bill at all, I thought it was, but it wasn't".
The assertion that it was not Duff who phoned him was at odds with his statement to police.
Butler went on to assert (commencing at T4581 L1) that he tried to correct those discrepancies in his statement but that his efforts "apparently went unheeded". When asked how it was that he tried to do so, he told the Court (at T4581 L23) that he sent an email to the police, and had also asked each of Detectives Phillips and Jouni in person to correct the statement.
When his evidence resumed this morning Butler, as it were, "corrected the correction." He said that although he had thought that he sent an email to the police, he had had a discussion with his son over the weekend, the effect of which was that each had thought the other had sent the email, resulting in the fact that no email had been sent at all. He continued to maintain that he had asked the police to correct the statement in the two respects that I have identified. The Crown specifically put to him, pursuant to a grant of leave under s. 38 of the Evidence Act 1995 (NSW) ("the Act"), that he had made no such request until he arrived at Court to give evidence on 13 May 2016. He denied that this was the case.
Butler disclosed he had been driven to court on Friday, and again today, by none other than Duff. He also asserted that over the weekend, at his request, Duff had provided him with his (i.e. Duff's) mobile telephone records for 2014, a perusal of which (according to Butler) confirmed that it was not Duff who had telephoned him on 22 May 2014. When asked what it was that caused him to make the assertions that he had previously made regarding that issue, Butler was unable to assist. He denied that Rogerson returned a gun to him on 23 May 2014.
It should be noted that Duff was previously called to give evidence in the Crown case. He too departed from one aspect of a statement that he made to the police. Having asserted in his statement to police that he had met with Rogerson on 20 May 2014 (i.e. the day on which the deceased was killed) Duff then stated that this was an error and that it was in fact 15 May when they had met. That caused counsel then appearing for McNamara to put to Duff that he was a party to arranging a false alibi for Rogerson so as to account for his movements on the afternoon on which the deceased was killed. Duff denied that this was the case. At that time, there was little or no significance in any contact between Duff and Butler. Accordingly, he was not cross-examined on that issue by counsel for either of the accused.
Mr Wendler cross-examined Butler on the voir dire as to the circumstances of the offences with which he was charged in 1999. The answers given by Butler to some of those questions led me to draw the inference to which I earlier referred, namely that the failure of the prosecution on that occasion to prove its case to a prima facie level was because of the absence of any evidence of knowledge.
All of that background leads to a position where the Crown now seeks to call Butler in its case in reply. In the event that this is permitted, the Crown will ask Butler whether or not he was responsible for dealing with a gun given to him by Rogerson on or about 23 May 2014. Consistent with his evidence on the voir dire, it can be expected that Butler will say he was not so involved. The Crown will, however, make a further application for leave under s. 38 of the Act to cross-examine Butler as to the departures from the statement that he made to the police which I earlier identified. In the event that Butler is called to give evidence before the jury, and in addition to asking him whether Rogerson returned a gun to him (which he will deny) the Crown will seek to recall Detective Phillips to give evidence that the first time that Butler sought to correct any discrepancy in his statement was on 13 May 2016.
Mr Wendler has indicated that he will seek to cross-examine Butler as to the circumstances of his contact with Rogerson on 23 May and, in particular, as to the alleged return, by Rogerson, of a gun to him. Mr Wendler also indicated an intention to cross-examine Butler as to the charges laid against him in 1999.
Mr Thomas, on behalf of Rogerson, opposed Butler being called in reply.
It seems to me that there are three issues which arise. The first is whether or not the evidence sought to be adduced by the Crown properly arises so as to be able to be led in a case in reply. The second is whether or not the evidence is relevant. The third is whether or not it ought be excluded under s. 137 of the Act, either in whole or in part.
As to the first of those matters, I am satisfied that the issues to which the evidence of Butler might go were not foreseeable by the Crown. The Crown was not put on notice of any requirement to make Butler available for cross-examination by counsel for either of the accused. In particular, there was no request made by those then acting for McNamara.
The issue of Rogerson's alleged passing of the gun to Butler arose only when McNamara gave evidence-in-chief. It was not, as Mr Thomas pointed out, the subject of any reference at all in the opening address by counsel who then appeared for McNamara. In these circumstances, it could not be said that in now seeking to lead the evidence, the Crown is splitting its case: R v Chin [1985] HCA 35; (1985) 157 CLR 671.
The second issue is whether Butler's evidence is relevant. Butler, notwithstanding the departures from his statement, will give evidence that he met Rogerson on 23 May 2014. He will assert, consistent with paragraph 7 of his statement, that Rogerson came to his business premises on that day. That, of course, is the same day upon which (according to McNamara's evidence) Rogerson said he took the gun back to Butler. Whilst it may well be that Butler will deny that he was provided with any gun on that occasion, his evidence (particularly his evidence of the fact that he did meet with Rogerson on that day) is relevant.
The third issue is whether or not the evidence ought be excluded under s. 137 of the Act.
In that respect, Mr Thomas made a number of submissions. Firstly, he submitted that the focus of any evidence from Butler would be upon collateral (and highly prejudicial) issues concerning his departure (in the 2 respects that I have identified) from his statement. While Mr Thomas accepted, as I understood it, that Butler's denial that Rogerson took a gun to him would (prima facie) assist Rogerson's case, his submission was that such evidence would, as it were, be overwhelmed by evidence touching upon other peripheral issues which went to Butler's credit. This seemed to amount to the proposition that there was a danger that Butler's denial that Rogerson brought a gun to him might not be accepted by the jury. Mr Thomas emphasised that this would occur in circumstances where Butler would effectively be the last witness called after several months of evidence. Although not stated in these terms, the effect of Mr Thomas' submission was that these circumstances would give rise to a situation where the jury would necessarily be left with a final impression of Butler's evidence, leading to the risk of that evidence being given more weight than it really deserved.
Mr Thomas also submitted that a degree of unfairness arose because of the way in which this matter had evolved. He pointed out, in particular, that no request had been made by those acting for McNamara that Butler be called by the Crown. He submitted that this omission occurred in circumstances where it could be inferred that Mr McNamara's representatives must have instructions about McNamara's conversation with Rogerson concerning the gun. Whilst the submission was not put in these terms, it effectively amounted to the proposition that it would be unfair to Rogerson for McNamara to now derive some benefit from Butler's evidence, in circumstances where his (McNamara's) representatives should have put the Crown on notice that they wished Butler to be called in the Crown case.
Mr Thomas also submitted that quite apart from the resultant prejudicial effect, those circumstances had given rise to a situation where Rogerson had effectively been deprived of the opportunity to cross-examine Duff as to any issue which might become relevant as a consequence of the evidence of Butler.
Finally, Mr Thomas indicated that his position as outlined in his submissions would be the same irrespective of whether or not I admitted the evidence in relation to the charges brought against Butler in 1999.
The Crown conceded that in the event that I were to conclude that the evidence of the events in 1999 was in some way relevant and admissible, there was merit in Mr Thomas' position. However, the Crown submitted that if the evidence of those matters were excluded, the probative value of the remaining evidence to be given by Butler was high, and that it was not outweighed by the danger of any unfair prejudice to the accused.
Whilst the Crown accepted that Butler would deny any involvement in dealing with the gun with Rogerson, it was submitted that there remained evidence of contact between Butler and Rogerson on 23 May 2014 and that, in these circumstances, Butler's evidence was relevant and probative.
Mr Wendler, on behalf of McNamara, submitted that there was a clear connection between the evidence of Butler and the evidence given by McNamara, as well as the evidence in the form of a denial made by Rogerson. He submitted that the ultimate issue was whether the justice of the case, viewed overall, was such that the evidence ought be permitted. He indicated that he proposed to pursue the cross-examination of Butler in relation to the charges brought against him in 1999, and that even if that evidence was excluded, his position would remain the same as to the remainder of any evidence that he might give.
Because of the manner in which the argument developed, it is firstly necessary for me to consider whether or not the evidence of the charges brought against Butler in 1999 ought be excluded. I have already outlined the circumstances which led to those charges.
In my view, the probative value of that evidence, particularly in the light of the fact that all of the charges brought against Butler were dismissed, is low. However, the danger of unfair prejudice to the accused Rogerson if that evidence were admitted is high. It would, in my view, give rise to the distinct possibility of the jury speculating as to an association between Rogerson and a person at whose premises firearms were found some 17 years ago, and in respect of whom all ensuing charges were dismissed. In my view, that prejudice substantially outweighs any probative value that the evidence might have. For those reasons, even if the Crown is permitted to call Butler, evidence of the events in 1999 will be excluded.
In that event, Butler's evidence would then comprise the following. Firstly, on the assumption that he adhered to his statement, he would give evidence that he and Rogerson met on 23 May 2014. Secondly, he will deny that this meeting had anything to do with dealing in a gun. Thirdly, he will specifically deny that Rogerson gave him a gun at that time. Fourthly, on the assumption that an application by the Crown pursuant to s. 38 of the Act were made and leave was granted, the Crown will cross-examine Butler on the departures from his statement. The Crown will then seek to lead further evidence from Detective Phillips in order to establish that Butler did not, until coming to court, make any request that his statement be corrected.
The evidence of Butler that he met with Rogerson on 23 May 2014 is relevant and probative. Part of its probative value lies in its capacity, at least in part, to support Rogerson's assertion that he did not give any gun to Butler. The curious aspect of the present case is that although Butler's expected evidence would assist the case of Rogerson, counsel for Rogerson argues against its admission. Conversely, the expected evidence would not assist McNamara's case as it would be inconsistent with his evidence of the terms of a conversation which took place between he and Rogerson. Yet, for the reasons I have outlined, counsel for McNamara agitates for its admission.
In my view, there is merit in the submission advanced by Mr Thomas that the issues concerning the departures from Butler's statement would, as it were, overwhelm any other evidence that he might give. It seems that the primary focus (at least from the Crown's perspective and to a lesser extent from that of Mr Wendler) would be upon Butler's departures from his statement. That, it seems to me, has at least the capacity to divert the jury from its task. It also has the capacity to have the jury ascribe more weight to the evidence than it at aspect of the evidence than it appropriately deserves.
Section 137 of the Act concerns itself, amongst other things, with the danger of evidence being unfairly prejudicial to an accused. It mandates a refusal to admit evidence if the probative value of evidence is outweighed by the danger of such unfair prejudice. It has been observed that unfair prejudice means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way, be it by provoking some irrational or emotional response, or by giving the evidence more weight than it should be given. It has also been observed that the section is concerned with prejudice that is unfair because it is additional to, or distinct from, the damage to the accused's case created by the probative force of the evidence: Papakosmas v R [1999] HCA 3; (1999) 196 CLR 297.
It is also of some significance that when given the opportunity to have Butler called in the Crown case, the then representatives of the accused McNamara made no such request. Had they done so, the association between Butler and Duff may well have come to light, such that Duff would have been cross-examined about those matters by Mr Thomas. Because of the fact that this issue had not arisen, that cross-examination did not take place. Those circumstances, in my view, also have the capacity to give rise to unfair prejudice to Rogerson.
For all of those reasons, I have come to the view that the probative value of the evidence of Butler is outweighed by the danger of unfair prejudice to Rogerson in the manner that I have outlined. Accordingly, the evidence will be excluded.
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Decision last updated: 15 June 2016