R v Rogers (No 4)

1. [1]

   The accused has been charged with the murder of his wife Anne Rogers on 13 September 2016. Issue has been taken regarding the admissibility of some aspects of statements of five witnesses to be called on Wednesday, 8 May and Thursday, 9 May 2019.

2. [2]

   Objections comprise relevance, the rule against hearsay and s 65(2) exception in relation to representations by the deceased and s 137 objections in relation to what are alleged to be groundless assertions describing the accused as “dominating” or “domineering” without a properly stated and/or admissible basis or bases for such assertions.

Evidence Act 1995 (NSW) and legal principles

1. [3]

   Relevance is governed by s 55:

2. [4]

   The rule against hearsay set out in s 59 of the Evidence Act relevantly provides:

3. [5]

   Exceptions to the rule against hearsay argued by the Crown in respect of evidence to be lead of representations by the deceased are set out in s 65(2)(b) and (c):

4. [6]

   Section 137 is also salient to a number of the arguments:

5. [7]

   For the s 65(2)(b) and (c) issues, reliance was placed by Mr Pontello on behalf of the accused on the decision of Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868. In a judgment of the Court the following was stated in respect of s 65(2)(b):

6. [8]

   In respect of examining the test “in circumstances that make it unlikely that his representation is a fabrication”, the Court analysed the requirement (relevant to both s 65(2)(b) and s 65(2)(c)) to look at the surrounding circumstances rather than confining the examination to the apparent reliability or accuracy or likelihood of the accuracy of the representations. In this regard, the Court said the following:

Statement of Christine McCormack

1. [9]

   The material in issue in Ms McCormack’s statement of 13 September 2016 is as follows:

2. [10]

   In respect of paragraph 16 Mr Pontello argued that for the representations of the deceased to be admissible they would need to come within the exceptions to the rule against hearsay. The requirements of s 65(2)(b) of the Evidence Act have not been met because the representation would need to have been made shortly after the events referred to. There is no evidence as to when the matters referred to in paragraph 16 occurred.

3. [11]

   Addressing s 65(2)(c) in the circumstances of an acrimonious breakdown in the relationship between the accused and the deceased, the court could not be satisfied that the circumstances make it highly probable that the representations are reliable. If anything, the evidence and the circumstances surrounding the relationship between the accused and the deceased at this time indicates, on the contrary, a motivation to seek support from friends and associates to align with her against the accused in circumstances where the deceased had been conducting an affair with Jeff Langham for some period.

4. [12]

   The Crown prosecutor argued that the circumstances surrounding the assertions by the deceased set out in paragraph 16 are such that it is unlikely that “she made it up”. This is not the complete test under s 65(2)(b). In the absence of any information about when the events occurred, and thus the time within which the deceased’s representation to Ms McCormack was made, I cannot be satisfied s 65(2)(b) applies because I cannot determine whether it was made shortly after the asserted fact occurred.

5. [13]

   Turning to the requirements of s 65(2)(c), when examining the circumstances, that include an acrimonious breakdown of the relationship between the accused and the deceased, the deceased seeing another man, and the context being complaints made to a friend about the accused, I accept Mr Pontello’s submission that these are not circumstances that make it highly probable that the representations are reliable and thus admissible under s 65(2)(c).

6. [14]

   An issue before the Jury in this trial is whether the accused engaged in dominating or domineering behaviour over the deceased. Clearly examples of such dominating behaviour would pass the test of relevance, however the material set out in paragraph 16 or 17 would need to come within one of the exceptions to the rule against hearsay to be admissible thus able to provide evidence illustrating the “dominating” behaviour referred to in paragraph 6.

7. [15]

   Objection is taken to the first two sentences of paragraph 17. The Crown argued relevance based on this being a sufficiently specific example of dominating behaviour on the part of the accused.

8. [16]

   Mr Pontello argued that the assertions lack specificity and that there must be an element of hearsay because there was no evidence that Ms McCormack had seen the deceased and the accused together much in the “last few weeks” leading up to the date she made her statement, other than a weekly dinner date. In those circumstances the information must have come from the deceased. Accordingly, the assertion would need to come within an exception to the rule against hearsay. Further, Mr Pontello argued, given its lack of specificity and so low probative value when considered against potential unfair prejudice to the accused, the evidence ought to be excluded (s 137).

9. [17]

   In my view there is a fatal lack of specificity of the basis of these assertions by Ms McCormack. They must have been based on assertions made by the deceased to Ms McCormack. There is no other likely source. Given the lack of clarity as to the bases, and the likelihood that it is based on things said by the deceased to Ms McCormack, the assertions do not come within either s 65(2)(b) or (c) exceptions, and so should be excluded.

10. [18]

    Further, I would exclude both sentences pursuant to s 137 of the Evidence Act on the basis that their probative value (which is slight in the circumstances), is outweighed by the danger of unfair prejudice to the accused.

11. [19]

    As Mr Pontello submitted, the first sentence of paragraph 6 to which objection is taken provides a value judgment and then refers to “many examples” of the dominating behaviour of the accused but then fails to identify any admissible examples of dominating behaviour. Whilst evidence of dominating behaviour would pass the test of relevance, on its own without identified examples, there is a danger that the value judgment will be misused by the Jury in a way that it is unfair to the accused. I accept those submissions. In the circumstances I exclude that sentence under s 137 of the Evidence Act because the probative value of the statement is outweighed by unfair prejudice to the accused.

12. [20]

    In respect of the second aspect of the objection regarding the deceased telling Ms McCormack that Warren was in control of the finances and that when she was still working, her pay would go into a bank account controlled by him, it is evident that this material is being relied on testimonially and therefore, as submitted by Mr Pontello, it must come within one of the exceptions to the rule against hearsay set out in s 65(2). I accept Mr Pontello’s submission that the requirements of s 65(2)(b) or (c) have not been met. The circumstances in which the representation was made include the deceased complaining to a friend about her husband’s behaviour where she was conducting an affair with another man and potentially seeking to justify that. The basis and timing of the allegations are not specified. There is no basis to conclude that the representation was made when or shortly after the asserted fact occurred. The circumstances are not ones that make it unlikely that the representation is a fabrication s 65(2)(b) or that it is highly probable to be reliable. The requirements of s 65(2)(b) or (c) have not been met.

Statement of Ronald Walker

1. [21]

   Objection was taken to the observation in paragraph 4 “I would describe Warren as domineering over Anne”. Mr Walker provides no basis for this assertion. I ruled this assertion out on the basis of s 137 where no examples of the behaviour are given. The probative value of the statement is outweighed by the danger of unfair prejudice to the accused.

2. [22]

   Paragraph 12 of Mr Walker’s statement was also the subject of objection:

3. [23]

   Mr Pontello submitted that the first sentence was not relevant. It is a reference to the deceased telling him that she had sufficient money available after she had left the accused and is not relevant to any fact in issue in the trial. I agree that it is not relevant and exclude it on that basis.

4. [24]

   The second sentence “…After a few days of staying with Christine, Anne told me she had gone to the bank and found that all the money was gone from the accounts”, I ruled out on the basis of potential second hand hearsay. Given that the basis for the representation is not identified, I accept Mr Pontello’s submission that it is likely that the deceased obtained this information from another person, and therefore what Mr Walker is repeating what may well be second hand hearsay. I am not satisfied that the representation falls within any of the exceptions to the rule against hearsay set out in s 65(2) and I decline to permit it to be led.

Statement of Julie Bertoldo

1. [25]

   Julie Bertoldo is the deceased’s sister. Objection was taken to an observation in her statement “I would describe him as being a domineering figure in their relationship. I think he wore the pants in the house.”

2. [26]

   Mr Pontello argued that the observations lack specificity and so their probative value is outweighed by the danger of unfair prejudice to the accused (s 137).

3. [27]

   The Crown prosecutor argued that given Julie Bertoldo is the sister of the deceased and has had a very long period of about 44 years to observe the interaction between the accused and the deceased as a couple, she should be permitted to give that evidence. Ms Bertoldo also provided evidence in her statement of an incident where the accused purchased a new car for the deceased, without asking her whether she wanted that particular car. This was submitted to be an illustration of the accused’s domineering nature and his domination in their relationship.

4. [28]

   I am of the view that the accused purchasing a new car for the deceased and not first asking her for input into its choice is not an illustration of the overarching value judgment that the accused was “a domineering figure in their relationship”, nor that “he wore the pants” in the house – a somewhat nebulous but potentially pejorative value judgment. I am of the view that the probative value of the assertions, in context, are outweighed by the danger of unfair prejudice to the accused (s 137) and I decline to permit that evidence to be led.

Statement of Andrew William Harris

1. [29]

   Andrew Harris is the brother in law of the accused and the deceased, having been married to Julie Bertoldo for about ten years. He stated that because he lived a fair distance from the accused and the deceased, he would see them only about six times a year, generally at family gatherings and celebratory occasions.

2. [30]

   The part of his statement in contest is the words in paragraph 4 “Warren appeared to be controlling of Anne in a sense that he controlled all the finances and decision making of the relationship”. He does not state any basis at all for that conclusion, nor the facts upon which he has relied to reach that view.

3. [31]

   Objection is taken to this assertion because it is relied upon testimonially by the Crown.

4. [32]

   I reject that sentence on the basis that its probative value is negligible and there is a danger of unfair prejudice to the accused in circumstances where there is no basis at all stated for reaching that view or holding that opinion.

Statement of Jeff Langham

1. [33]

   Objection is taken to the following parts of the statement of Jeff Langham dated 8 October 2016:

2. [34]

   In respect of the material in issue in paragraph 22, Mr Pontello argued that the requirement of s 65(2) are not met because these are representations made by the deceased and there is no occasion or date of time identified as to when the events are alleged to have occurred nor is there anything about the circumstances of the disclosure to Mr Langham that would satisfy the limits in s 65(2)(b) or (c).

3. [35]

   The Crown relied upon the arguments previously made in respect of other representations of the deceased to other witnesses. I ruled that the material is not admissible in respect of s 65(2)(b) because there is no evidence providing any detail at all as to “recency” ie how close in time to the time the asserted fact that the deceased made the representation. Also for the reasons already articulated in terms of the deceased having an extra-marital relationship with Mr Langham, the circumstances are not ones that make it highly probable that the representation is reliable (s 65(2)(b) or that it is unlikely that the representation is a fabrication (s 65(2)(b).

4. [36]

   In respect of paragraphs 31 and 32 of Mr Langham’s statement, the Crown pressed the contents of those paragraphs arguing that the material referred to in the representations conveyed by the deceased to Mr Langham are relevant and that the “recency” of the conversations can be identified and therefore there is compliance with s 65(2)(b) because the conversations occurred “shortly after” the marital difficulties surfaced in July 2016. The Crown also argued that the circumstances demonstrate that what the deceased said discussed was unlikely to be a fabrication because she was confiding in a man with whom she was in a relationship, and therefore, the Crown submitted, it was unlikely that these representations would be fabrications. The Crown also argued that in those circumstances it did not need to resort to s 65(2)(c) and therefore did not need to show the circumstances were ones that made it highly probable that the representations were reliable.

5. [37]

   Mr Pontello, on the other hand, argued that s 65(2)(b) requires the representations to have been made when, meaning during or shortly after and in effect under the proximate pressure of the occurrence of the asserted fact. Here, he argued, the marital split between the deceased and the accused was on 11 July and the representations contained in paragraphs 31 and 32 must have been made some time between 15 and 18 July during the deceased’s third trip to Tasmania to see Mr Langham. He argued that to put it bluntly, these circumstances go nowhere near to satisfying the requirements of s 65(2)(b) as an exception to the hearsay rule, particularly bearing in the mind Williams v The Queen at [48]:

6. [38]

   Mr Pontello described the circumstances that add to potential unreliability are that the deceased wants to curry favour with Mr Langham and have him feel sorry for her and that there is a “raft of reasons” why the representations do not satisfy s 65(2)(c) such as to make it highly probable that the representations are reliable.

7. [39]

   The representations are being relied upon by the Crown testimonially as evidence of the accused’s “dominating” or “controlling” nature. I accept Mr Pontello’s submissions in respect of paragraphs 31 and 32 of Mr Langham’s statement and I reject the submissions of the Crown to the effect that the requirements of s 65(2)(b) and (c) have been met.

8. [40]

   The entire contents of paragraphs 31 and 32 are inadmissible.