The Crown has sought that a direction be given to the jury that each of the accused has told a series of lies which amount to evidence of a consciousness of guilt.
In the case of McNamara, the Crown submitted that he had said that:
1. he had "ripped" the label from Exh. BT;
2. he did not take the drugs into his apartment.
3. the reason that he had the vehicle BV67PX was to take rubbish to the tip;
4. he took rubbish to the tip in that vehicle;
5. he took his boat out on 19 May 2014 from Hunter Self Storage for the reasons he stated;
6. he saw Fiona Schultz from New Holland Publishing in person in February or March of 2014, for the purposes of discussing his proposed book;
7. he conducted what he described as a "covert operation" whilst in custody, in order to gather evidence against Rogerson; and
8. he had not discussed, in the conversation with Rogerson which took place following the meeting that he had with the deceased at the Meridian Hotel on 15 May 2014, anything about the proposed supply of drugs.
Each of these statements was asserted by the Crown to be a lie.
In the case of Rogerson, the Crown submitted that he had said that:
1. McNamara had stalled the vehicle BV67PX at a position on Davies Road when commencing his turn into Bridge Road, at about 1.13pm on 20 May 2014, as a consequence of which Rogerson had moved his car around it;
2. he did not know the location of McNamara's vehicle in Arab Road on the afternoon of 20 May 2014;
3. he could offer no explanation for the period of 8 minutes in which he was in unit 803 from 1.16pm to 1.24pm on 20 May 2014;
4. the period was 10 to 12 minutes in a conversation with his wife, Anne Melocco;
5. he returned the keys to storage unit 803 to Michael Maguire on 23 May 2014;
6. he gave back to Mr Maguire all of the keys that Mr Maguire had originally given to him;
7. he could not say whether the black tracksuit pants he had worn on 20 May 2014 were washed prior to being sought by the police;
8. he could not say whether he had seen investigators at Rent-a-Space on the morning of 22 May 2014;
9. whilst listening to the news in Queensland (in the company of Mr Farley) about being wanted in connection with a kidnapping, he said to Mr Farley "I don't know anything about it"; and
10. he remained at Grays Point for a period of one to two hours on 21 May 2014 "contemplating things", at a time when McNamara was engaged in disposing of the body of the deceased.
R v Rogerson; R v McNamara [2016] NSWSC 653 | Case summary | Zoe
Each of these statements was also asserted by the Crown to be a lie.
Counsel for the respective accused did not take issue with the proposition that the statements relied upon by the Crown were capable, if found by the jury to be deliberate lies, of being used by the jury to assess issues of credit. However, both counsel objected to a direction being given to the jury that the asserted lies were capable of amounting to evidence of a consciousness of guilt. In essence, the submission made by counsel for each of the accused was that on the Crown case, the entirety of the account of each of the accused was a lie, and that the use of lies as evidence of consciousness of guilt was inappropriate, because it would require the jury to engage in a process of impermissible circular reasoning.
The circumstances in which a direction of the kind sought by the Crown can be given were discussed in Edwards v R [1993] HCA 63; (1993) 178 CLR 193, and by the Court of Criminal Appeal in R v Lane [2011] NSWCCA 157. In order for a lie told by an accused to be used as evidence of a consciousness of guilt, a number of pre-requisites must be satisfied, namely:
1. the statement said to be a lie must be false or wrong;
2. it must be deliberate;
3. it must go to a material issue in the proceedings;
4. there must be evidence to support the proposition that the motivation for the lie was a realisation of guilt, and a fear of the truth; and
5. the statement said to constitute the lie must clearly be shown to be a lie by some evidence, or by an admission.
In Lane (supra) Simpson J (as her Honour then was) observed (at [61]) that the factual falsity of a statement made by an accused person may, like the Crown case as a whole, be established by circumstantial evidence. Her Honour went on to observe that the Crown had sought to prove the factual falsity of three statements made by the accused by relying upon circumstantial evidence, which she described as amounting to "a circumstantial case within a circumstantial case".
In an earlier decision of R v Zheng (1995) 83 A Crim R 572, Hunt CJ at CL (with whom Smart and Studdert JJ agreed) warned against the adoption of a process of circular reasoning in order to determine whether a statement made by an accused could amount to a lie, and therefore be used as evidence of a consciousness of guilt. His Honour observed that if the only logical way in which the jury could be satisfied that a statement made by an accused amounted to a lie was by an acceptance of the Crown case, then the evidence could not be used in the way in which the Crown in the present case seeks to use it (see also Lane (supra) per McClellan CJ at CL at [14]). If, in reality, the process of reasoning which must be adopted in order to establish that a statement is a lie is really a matter of assessing the credibility of an accused in the light of the Crown case as a whole, then the asserted lie is not available for the purpose for which the Crown presently seeks to use it: R v Lodhi [2006] NSWSC 672 at [33].
The Crown case against both accused is that they engaged in the execution of the deceased for the purposes of what might be colloquially described as a "drug rip off". The matters relied upon by the Crown to establish the falsity of McNamara's statements in (1), (2), (3), (6), (7) and (8) above are, in effect, the very same matters upon which the Crown relies in order to prove its case. In other words, the two bodies of evidence are essentially co-existent. Contrary to the position in Lane, the present is not a case where there could be said to be one circumstantial case within another.
The statement attributed to McNamara in (4) is slightly different. That arises from other statements made by him in the course of his evidence concerning the use of the vehicle BV67PX for the purposes of taking rubbish to the tip. In his evidence-in-chief, the clear effect of McNamara's evidence was that the vehicle was used for that purpose. When he was cross-examined, he retreated from that proposition. He later explained that this apparent inconsistency was due to the fact that he had made a mistake.
As I have observed, in order to establish that a statement is a lie, such that it can be used as evidence of consciousness of guilt, it must be established that the lie was deliberate, and was told as a consequence of a realisation of guilt, and a fear of the truth. Arguably, the circumstances in which the statement in (4) was made would be capable of meeting that test. At the same time, an explanation was given by McNamara, the acceptance or rejection of which will ultimately be a matter for the jury. Moreover, in circumstances where the vast majority of the statements sought to be relied upon by the Crown as lies are not able to be used as evidence of consciousness of guilt, the asserted lie concerning the use of BV67PX would, if the direction sought by the Crown was given, have the capacity to lend itself to some degree of confusion. That, in turn, would attract the application of s. 136 of the Evidence Act 1995 (NSW) ("the Act") to limit the use of the evidence.
What then remains in the case of McNamara is the statement in (5) which was made to his wife in a telephone conversation. He admitted in evidence that the statement was untrue, and he gave a reason for making it. I am satisfied that there is evidence to establish that the statement was a deliberate lie. However there must be some doubt as to its materiality. Certainly the issue of whether or not McNamara was in fact researching a book during the period up to the time of the deceased's death is very much an issue in this case. The statement made by him concerning contact he may or may not have made with a prospective publisher could be viewed as being one step removed from that issue. In any event, even if that were not the case, s. 136 of the Act would lend itself, in my view, to the evidence being limited to evidence going to his credit.
A similar position exists with the statements relied upon by the Crown in respect of Rogerson. A conclusion that the statements in (1) to (8) inclusive, and (10), are deliberate lies really depends upon an acceptance of the Crown case as a whole.
The statement in (9) is different. Evidence was given by Mr Farley of the fact that Rogerson had said to him words to the effect that he "did not know anything about" the circumstances in which the deceased had gone missing. Rogerson agreed in evidence that he had a conversation with Mr Farley. However, he denied saying the words attributed to him by Mr Farley, and stated that he had told Mr Farley, upon hearing a news broadcast relating to the kidnapping of the deceased, that he "didn't even hear the guy's name".
There is a clear inconsistency between these respective accounts. Even if the statement attributed to Rogerson by Mr Farley is capable of meeting the various tests that I have outlined, the fact remains that out of 10 asserted lies relied upon by the Crown, 9 can go only to Rogerson's credit. A separate direction in the terms sought by the Crown in respect of the one remaining statement relied upon as a lie would again give rise to considerable confusion in my view. In those circumstances, s. 136 should again apply to the asserted lie in (9) so as to limit its use.
For these reasons, the direction sought by the Crown will not be given. However, consistent with the accepted position of counsel for each of the accused, the jury will be directed that it if they find that any statement(s) relied upon by the Crown constitutes a lie, it can be used to assess the credibility of the particular accused who made such statement(s).
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Decision last updated: 15 June 2016