R v Rogerson; R v McNamara (No 6)

Roger Caleb Rogerson (“Rogerson”) and Glen Patrick McNamara (“McNamara”) have previously pleaded not guilty to an indictment alleging:

On 5 June 2015 the Crown presented an amended indictment which, as against Rogerson, pleaded (as an alternative to the first count) a count alleging an offence of being an accessory after the fact to murder. Rogerson has pleaded not guilty to that alternative count.

A Crown Case Statement has been filed in the proceedings. It is set out in full in a number of previous judgments and in these circumstances I will not repeat it.

The Crown has served a tendency notice on each of the accused pursuant to s. 97 of the Evidence Act 1995 (NSW) (“the Act”). The tendency notice states (inter alia) the following:

Counsel for each accused objects to the Crown’s reliance upon the evidence set out in the notice as tendency evidence.

Each notice identifies the tendency evidence as that contained in paragraphs [26] and [29] of a statement of Lok Chun Lam (“Lam”) dated 20 June 2014. Lam was one of the persons involved in the “criminal matter” to which reference is made in paragraph [1] of the Crown Case Statement. Paragraphs [26] and [29] of Lam’s statement are in the following terms:

Section 97 of the Act is in the following terms:

Section 101 of the Act is also relevant and is in the following terms:

The tendency on the part of McNamara which the Crown submits is established by the evidence is a tendency to:

In Saoud v R [2014] NSWCCA 136; (2014) 87 NSWLR 481, Basten JA made the following observations regarding the operation of s. 97 (at [27]-[28]):

For the purposes of assessing whether or not the evidence has significant probative value, the degree of specificity of the conduct which is alleged to evince a tendency is important: O’Keefe v R [2009] NSWCCA 121 at [65]-[68]. In GBF v R [2010] VSCA 135 the Victorian Court of Appeal (Nettle JA (as his Honour then was), Harper JA and Hansen AJA said (at [31]):

Further, it has been observed that except in rare circumstances, a court should not assess the credibility and reliability of evidence when determining the question of probative value, except where those issues are such that it would not be open to a jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue: R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; KMJ v State of Tasmania [2011] TASCCA 7; (2011) 20 Tas R 425; 218 A Crim R 87; R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363; 231 A Crim R 474.

In the present case, the first tendency said to be established by the evidence is a “tendency to take part in the supply of illegal drugs with Chinese people”. Apart from broad references to “this kind of business” and “drug deals”, there is nothing in paragraph [26] of Lam’s statement which goes in any way towards establishing the tendency alleged. The same is the case in respect of paragraph [29], save for some similarly broad references to dealing in drugs. In order for tendency evidence to have significant probative value it must be capable of rationally effecting the assessment of the probability of the existence of a fact in issue to a high degree: R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [50]. I am not satisfied that the evidence which is said to support the first tendency meets that test.

The second tendency said to be established by the evidence is a tendency on the part of McNamara to “offer his expertise from his previous experience as an undercover Police officer to teach others involved with him how to avoid Police apprehension”. There are references to McNamara having such expertise in paragraph [26] of Lam’s statement. However I am similarly not satisfied that such evidence has the significant probative value referred to in s. 97 for a number of reasons.

Firstly, the evidence is an account of what Lam says he was told, through an interpreter, by the accused about his conduct. Secondly, arising from the first matter, the evidence is not direct evidence of the accused’s actual conduct. Thirdly, the tendency is said to be a tendency on the part of McNamara to “offer his expertise”. Read carefully, Lam’s statement records McNamara telling him that he had certain knowledge about police operations. He does not state, in specific terms, that any “offer” was made to him. In these circumstances I am not satisfied that the evidence meets the test imposed by s. 97.

For the reasons outlined above, the Crown’s application to rely upon tendency evidence is refused.