R v Rogerson; R v McNamara (No 3)

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.

As matters presently stand the joint trial of the accused is listed to commence on 27 July 2015.

There are presently three applications before the Court for determination, namely:

I heard argument in respect of each of these applications on 16 July 2015. The parties agreed that it was appropriate that I first determine the issue of McNamara’s application to adduce tendency evidence before determining the remaining applications.

On 14 July 2015 the solicitor for McNamara served a notice (“the tendency notice”) pursuant to s. 97 of the Evidence Act 1995 (NSW) (“the Act”). The tendency notice is directed to Rogerson and is in the following terms:

Rogerson and the Crown oppose McNamara’s application.

By notice of motion filed on 1 July 2015 Rogerson seeks (inter alia) orders:

That notice of motion is supported by an affidavit of Peter Katsoolis, solicitor, dated 1 July 2015 which was read without objection. The orders sought by Rogerson are opposed by the Crown.

By notice of motion dated 13 July 2015 McNamara seeks an order for a separate trial. That notice of motion is supported by two affidavits, namely:

Both affidavits were read without objection.

The order sought by McNamara is opposed by the Crown.

The Crown Case Statement filed in the proceedings is in the following terms (save for the fact that I have omitted references to McNamara’s residential address):

On 5 June 2015, in the course of the hearing of earlier pre-trial applications, the Crown Prosecutor provided further detail as to the basis upon which the case is put against each of the accused. In particular, the Crown Prosecutor said (commencing at T209 L23):

The Crown then continued (commencing at T209 L39):

In relation to the count against each accused of supplying a prohibited drug the Crown said (commencing at T210 L4):

When I enquired as to the circumstances upon which the Crown relied to establish the possession by each of the accused of a prohibited drug the Crown said (commencing at T210 L24):

The Crown then continued (commencing at T211 L6):

A response to the Crown case statement filed on behalf of Rogerson pursuant to s. 143 of the Criminal Procedure Act 1986 (NSW) states (inter alia) the following:

In the course of the hearing of the present applications counsel for Rogerson informed me (at T101 L10) that Rogerson will give evidence at his trial.

A supplementary response to the Crown Case Statement filed on behalf of McNamara pursuant to s. 143 of the Criminal Procedure Act 1986 (NSW) is in (inter alia) the following terms:

Counsel for McNamara informed me that in the event that the matter proceeded as a joint trial, he proposed to canvass two particular matters in the course of cross-examining Rogerson. Firstly, counsel proposes to seek leave to cross-examine Rogerson about his previous convictions as set out in the tendency notice. Secondly, counsel informed me that he proposed to put to Rogerson that whilst he and McNamara were sharing a cell following their respective arrests, Rogerson “was attempting to get (McNamara) to give false accounts” of what had occurred (T104 L39-41). Counsel went on to state (commencing at T104 L50) that Rogerson “would be challenged on his attempts to cajole, threaten and attempt to assert a false view of the circumstances of the murder”.

The generality of the supplementary response set out in [21] above will be self-evident. However on the hearing of the present applications counsel for McNamara stated in specific terms (commencing at T101 L32) that McNamara will give evidence at his trial.

Counsel informed me that (at T103 L22 and following) that he expected that McNamara’s evidence of the circumstances of the deceased’s murder would be generally consistent with the contents of a document (“the report”) produced in a redacted form by the NSW Crime Commission (“the Commission”) pursuant to a Subpoena. As I have discussed in more detail below, one of the two bases upon which McNamara seeks an order for a separate trial concerns the use to which the contents of that report might be put if a joint trial were to proceed. It is therefore appropriate that I set out the entirety of the contents of the report as it was produced to the Court (save for the additional redaction of Rogerson’s home address):

Part 3.6 of the Act is in (inter alia) the following terms:

The terms of the tendency notice are set out at [6] above. As to the evidence which is said to be tendency evidence, the following matters (about which there is no dispute) are relevant.

On 9 March 1990 Rogerson was sentenced in the District Court of NSW to imprisonment for a period of 6 years in respect of a charge of conspiring to pervert the course of justice. On 22 December 1990 the Court of Criminal Appeal upheld Rogerson’s appeal against that conviction. The Court ordered that such conviction, and the sentence imposed, be quashed, and that a verdict of acquittal be entered: R v Rogerson (NSWCCA, 22 December 1990, unreported).

The Crown subsequently sought special leave to appeal to the High Court. On 17 June 1992 the High Court (Mason CJ, Brennan and Toohey JJ; Deane and McHugh JJ dissenting) granted the Crown’s application for special leave to appeal, allowed the appeal, and remitted the matter to the Court of Criminal Appeal: R v Rogerson [1992] HCA 25; (1992) 174 CLR 268. The paragraphs of the joint judgment of Brennan and Toohey JJ which are cited in the tendency notice recount the facts of Rogerson’s offending to which those proceedings related.

When the matter subsequently came before the Court of Criminal Appeal Rogerson’s appeal against his conviction was dismissed. However, the sentence originally imposed was quashed and a sentence of imprisonment of 4 years and 3 months was imposed in lieu thereof: R v Rogerson (1992) 65 A Crim R 530.

On 18 February 2005 Rogerson was sentenced in the District Court of NSW to imprisonment for a period of 2 years and 6 months in respect of a charge of giving false evidence to the NSW Police Integrity Commission: R v Rogerson [2005] NSWDC 22.

I have already noted (at [22] above) that in the event of a joint trial, counsel for McNamara will seek leave to cross-examine Rogerson about his previous convictions. In these circumstances, counsel for McNamara submitted that the evidence set out in the tendency notice had significant probative value. It was submitted, in particular, that Rogerson’s previous conviction for giving false evidence to the NSW Police Integrity Commission was probative of the issue of whether any evidence he gave inculpating McNamara in the present alleged offending was credible and believable. It was further submitted that cross-examination as to Rogerson’s previous conviction for conspiring to pervert the course of justice was relevant and probative in light of what would be put to him regarding the attempts he had allegedly made to have McNamara give a false account of the circumstances surrounding the deceased’s death. Those matters are similarly referred to in [22] above.

The fundamental submission advanced by counsel for Rogerson was that properly understood, the evidence set out in the notice was not tendency evidence at all, but was evidence which simply went to Rogerson’s credit. He submitted that counsel for McNamara had failed to identify any fact(s) in issue to which the evidence was relevant. It was submitted that in these circumstances, Part 3.6 of the Act had no application in light of the provisions of s. 94.

In the event that I came to the view that Part 3.6 of the Act did apply, counsel for Rogerson submitted that McNamara had failed to give reasonable notice of his proposed reliance upon the evidence, contrary to s. 97(1)(a). It was pointed out, in particular, that the tendency notice had been issued on what was, in effect, the eve of the trial, and some months after the commencement of the hearing of pre-trial applications. It was submitted that the contents of the tendency notice must have been known to McNamara’s representatives some considerable time ago and that no explanation was forthcoming as to why it was that the application had not been brought at an earlier time.

Counsel for Rogerson further submitted that the evidence set out in the tendency notice fell short of meeting the test imposed by s. 97(2)(b) of the Act, in that it lacked significant probative value. In this regard, counsel repeated his earlier submission that the evidence was properly viewed as evidence going only to Rogerson’s credit.

Having initially adopted what was described as a “neutral” position regarding the tendency notice, the Crown subsequently shifted its position and objected to the application. In doing so, the Crown supported the submission made on behalf of Rogerson that the evidence was not tendency evidence.

As outlined by counsel for McNamara in submissions, the proposed reliance on the evidence set out in the tendency notice arises in two ways.

Firstly, Rogerson’s conviction for conspiring to pervert the course of justice is said to be relevant in light of the proposed cross-examination of Rogerson as to what allegedly occurred between he and McNamara during the period in which they were sharing a cell. As I understand it, it will be submitted that the conduct now alleged against Rogerson in that respect would, if established, constitute an attempt to pervert the course of justice, that being a similar offence to that of which Rogerson was previously found guilty. It is said that on this basis, the evidence set out in the notice is evidence which establishes a tendency on the part of Rogerson to act in that particular way. Secondly, it is said that Rogerson’s previous conviction for giving false evidence to the Police Integrity Commission establishes that Rogerson has a tendency to lie on oath.

In my view, these matters go only to the issue of Rogerson’s credibility. As was pointed out on behalf of Rogerson in submissions, counsel for McNamara was unable to identify any particular fact(s) in issue to which the evidence was said to be relevant. There may, of course, be circumstances where evidence which is the subject of a tendency notice is relevant not only to the credibility of a witness but also to a fact in issue in the proceedings. However, I am not satisfied that this is the case here.

In these circumstances, the provisions of s. 94(1) make it clear that Part 3.6 of the Act, which deals with tendency and coincidence evidence, has no application. If the matter proceeds as a joint trial, the question of whether counsel for McNamara should be given leave under s. 104(2) of the Act to cross-examine Rogerson in respect of any matter going to the issue of his credibility is an issue which is appropriately determined as and when it arises.

For these reasons, the application by McNamara to rely upon the evidence set out in the tendency notice as tendency evidence is refused.

As previously noted, Rogerson’s application was supported by an affidavit of his solicitor, Mr Katsoolis. Much of that affidavit was in the nature of submissions which were adopted by counsel and which I have summarised below. To the extent that the affidavit sets out factual matters, those matters went primarily to the aspects of Rogerson’s criminal history to which I have previously referred. There were medical reports annexed to the affidavit but no specific submissions were put to me as to why any of that material supported an order for a separate trial.

The affidavit of Mr Reslan which was relied upon in support of McNamara’s application for a separate trial annexed a copy of the report produced on subpoena by the Commission, the contents of which I have already set out. Mr Reslan asserted (at paragraph 3) that in circumstances where Rogerson’s legal representatives are in possession of this document, he believed that counsel for Rogerson may “well use the contents of (the) report to the detriment of (McNamara) in these proceedings, either by seeking to tender a portion of the report or, if (McNamara) gives evidence, to cross-examine him”.

Further, in paragraph 4 of his affidavit Mr Reslan deposed to a belief that “various threats have been made by Roger Rogerson, or by persons associated with him, towards the Applicant and his family, in relation to these proceedings”.

As I understand it, the affidavit of Jessica McNamara is relied upon to establish the threats to which Mr Reslan referred. In her affidavit, Ms McNamara deposed to statements allegedly made by Rogerson shortly after the deceased’s murder, in her presence (and in the presence of McNamara). Ms McNamara stated that Rogerson said words to the effect:

Ms McNamara construed these words as a threat.

Ms McNamara also made reference to statements made to her by Mr Kenny, the solicitor who initially acted for Rogerson. I have previously heard and determined an objection, made by Ms McNamara pursuant to s. 18 of the Act, to giving evidence at any trial. In the course of my judgment, I made a number of observations, and reached a number of conclusions, regarding Mr Kenny’s conduct: R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592 at [40]-[46] and [65]-[75]. It should be noted that notwithstanding the fact that I upheld that objection, I have now been informed that it has been withdrawn, and that Ms McNamara is willing to give evidence, irrespective of whether a joint trial or separate trials are conducted.

Finally, Ms McNamara also deposed in her affidavit (at paragraph 19) to an incident on 9 July 2015:

Counsel for Rogerson submitted that there were two important considerations to be taken into account in determining whether an order for a separate trial should be made, namely:

With these matters in mind, counsel made two primary submissions in support of the order sought. Firstly, counsel submitted that there was a considerable amount of evidence which, although admissible against McNamara, was not admissible against Rogerson. It was submitted, in particular, that apart from the evidence of dealings between Rogerson and the lessee of the storage shed on or about April 2014, and the evidence of Rogerson’s fingerprint on a document associated with one of the vehicles involved, the more significant circumstantial evidence against Rogerson commenced on the day of the alleged offences. It was submitted that in these circumstances, Rogerson was confronted with a situation in which comparatively limited evidence was admissible against him, but where there was far greater evidence admissible only against McNamara. It was submitted that as a consequence, significant unfair prejudice would be visited upon Rogerson in the event that a joint trial were to proceed.

Secondly, counsel submitted that it was now clear that McNamara would conduct a “cut throat” defence and would give evidence, the effect of which would be to attribute sole responsibility for the death of the deceased upon Rogerson. It was submitted that in light of the fact that Rogerson would also give evidence, McNamara would have a legitimate forensic purpose in seeking to undermine Rogerson’s credit by cross-examining him as to those aspects of his criminal history to which I have already referred. It was submitted that if this were to occur, the consequences for Rogerson would be “catastrophic” and would “inevitably lead to conviction for both the murder and the drug supply count”. Conversely, it was submitted that if counsel for McNamara was not permitted to cross-examine Rogerson about such matters, McNamara “would have good grounds to argue substantial miscarriage of justice to justify a conviction appeal and re-trial”. For all of these reasons, it was submitted that an order for a separate trial should be made. Counsel submitted that no direction to the jury could overcome the prejudice which he had identified.

The application for a separate trial brought by McNamara was brought on two broad bases. The first arose from McNamara’s provision of the account of events contained in the report produced by the Commission. It was pointed out that according to the report, the statements made by McNamara on that occasion were made on the understanding that they would not be used against him (save perhaps in respect of the falsity of any information that he provided). It was submitted that whilst this prevented the Crown from making use of the contents of the document, there was no similar prohibition placed upon Rogerson. It was submitted, in particular, that irrespective of whether McNamara gave evidence, the account he gave “could be deployed on behalf of Mr Rogerson”.

The second basis advanced by counsel for McNamara in support of the application arose from the threats to which Mr Reslan deposed, along with the matters to which Ms McNamara referred in her affidavit. It was submitted that as a consequence of such matters, McNamara was in fear of Rogerson and that there was no step which could be taken by the Court to alleviate such concerns.

In these latter respects, emphasis was placed upon the fact that the two accused had shared a cell for a period of time following being taken into custody. It was said that this had occurred in circumstances where the authorities were aware of McNamara having been threatened. It was further submitted that housing the two accused together in that way was “contrary to practice”.

The Crown emphasised that it would be alleged that there was a joint criminal enterprise which had been formed between the two accused to kill, or inflict grievous bodily harm upon, the deceased. It was submitted that, contrary to what had been put on behalf of Rogerson, this was not a case where there was a material difference between the evidence which was admissible against each of the accused. It was submitted, in particular, that there was a strong body of evidence demonstrating that Rogerson’s participation in the joint criminal enterprise commenced well before the date of the deceased’s death, and continued right up to (and indeed beyond) that time. The Crown submitted that in these circumstances, the evidence of McNamara’s acts was admissible against Rogerson. The evidence to which the Crown pointed as establishing Rogerson’s participation in the joint criminal enterprise included the following:

The Crown emphasised a number of general principles relating to the discretion to order separate trials which I have expanded upon in more detail below. In doing so, the Crown submitted that there were strong reasons of principle and policy in support of the two accused being jointly tried. It was submitted, in particular, that a joint trial was warranted in circumstances where the Crown alleged the existence of a joint criminal enterprise, and where “cut throat” defences would be mounted by the respective accused.

In terms of the suggested prejudice which would be visited upon Rogerson in the event that he were cross-examined by counsel for McNamara about his previous convictions, the Crown submitted that whether or not that situation arose necessarily depended upon a number of factors, including whether or not Rogerson gave evidence at all. It was submitted that it would be difficult for me, on the present application, to proceed on the basis that there would definitely be a point at which Rogerson would be cross-examined in relation to the matters which had been foreshadowed. The Crown further submitted that even in that event, there were a variety of factors to be considered in determining whether counsel for McNamara should be given leave to cross-examine Rogerson about his prior convictions. It was further submitted that even if leave were granted, the circumstances would not be materially different from those often encountered in a joint trial where a record of interview conducted with one accused, in which that accused inculpates a co-accused, is admitted into evidence. The Crown submitted that in such cases it was customary for the matter to be dealt with by way of an appropriate direction to the jury as to how, and against whom, such evidence could be used. It was submitted that such a course could be readily adopted in the present case.

In terms of the first of the matters relied upon by McNamara concerning the report produced by the Commission, the Crown submitted that there were a number of matters to be considered before the contents of that document could be used against McNamara, not the least of which was the fundamental question of whether he would in fact give evidence. Whilst the Crown acknowledged the counsel for McNamara had informed me that he would give evidence at his trial, it was submitted that circumstances can change and that it would premature to make an order for a separate trial on the basis of a set of circumstances which may not occur.

As to the second matter relied upon by McNamara, counsel submitted that there were various measures which could be taken to alleviate McNamara’s suggested concerns about his safety, including the provision of extra security whilst he and his daughter were giving evidence.

Finally, the Crown submitted that in a case such as the present there was a fundamental necessity to ensure that the entire picture of the offending was presented to the jury. It was submitted that it was imperative that the jury not be denied the opportunity to consider the entirety of evidence against both accused, and that it would be contrary to the proper administration of justice if the jury did not hear and consider the conflicting evidence of those who, on the Crown case, were both present at or around the time of the deceased’s murder, and who, as a result, were both said to be criminally liable for the deceased’s death.

The authorities establish a number of general principles which govern the discretion to make an order for separate trials.

Firstly, as a general proposition, crimes which are alleged to have been committed jointly should be prosecuted in a joint trial: R v Assim (1966) 2QB 249 at 261 per Sachs LJ; R v Oliver (1984) 57 ALR 543 at 547 per Priestley JA (Cantor and Roden JJ agreeing); Webb and Hay v R [1984] HCA 30; (1994) 181 CLR 41, cited in R v Kearnes [2013] NSWSC 1139 at [28]. In Webb and Hay (supra) Toohey J (with whom Mason CJ and McHugh J agreed) explained the matter in this way (at 88-89):

In R v Fernando & Anor [1999] NSWCCA 66 the Court (Newman, Studdert and James JJ), having discussed a number of authorities, observed (at [212]) that in determining whether a separate trial should be granted the Court must carry out a balancing process between the community interest and the question of undue prejudice to an accused (see also Amos v R [2014] NSWCCA 302 at [15] per Leeming JA, Adams and Bellew JJ agreeing). Needless to say, an exception to the general rule arises where there is a real risk of positive injustice to an accused. The existence of such a risk was described by King CJ in Collie (supra) as “the critical question” (at 310).

Secondly, the mere existence of “cut throat” defences will not, of itself, support an order for a separate trial: R v Ignjatic (1993) 68 A Crim R 333 at 339 per Hunt CJ at CL (Finlay and Levine JJ agreeing); Ali v R [2005] HCA 8; (2005) 214 ALR 1 at [58];12 per Heydon and Callinan JJ. On the contrary, the strong reasons for a joint trial referred to in [61] above may be further strengthened where each accused deploys a “cut throat” defence: Webb and Hay at 88-89; R v Bedford [2011] QCA 43 at [104] cited in Destanovic v R [2015] VSCA 113 at [55].

Thirdly, it is contrary to the interests of justice that there be inconsistent verdicts. Those interests generally require that where the accounts of accused persons differ, such differences should be resolved by the same jury at the same trial. Consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others: R v Demirok [1976] VR 244 at 254 per the Court (Young CJ, Lush and Crockett JJ); Webb and Hay at 89 per Toohey J. It is noted that an application for special leave to appeal against the decision of the Court in Demirok (supra) was refused: R v Demirok (1976) 8 ALR 452.

Fourthly, the risk of inconsistent verdicts is particularly significant where each accused seeks to blame the other: R v Swan [2013] QCA 217 at [39] per Holmes JA (Applegarth and Jackson JJ agreeing).

Fifthly, it is in the interests of justice that the whole picture is presented to the members of the jury, and that they see “the person on whom the blame is sought to be cast, as well as the person seeking to cast it”: Collie at 308 per King CJ. A joint trial will therefore give the jury “the means of obtaining a conspectus of the respective roles of each of (the accused) in the crimes with which they (are) charged”: Ali (supra) per Heydon and Callinan JJ at [58];12.

Sixthly, questions of cost and inconvenience are not irrelevant in determining whether separate trials ought be ordered: R v Oliver (1984) 57 ALR 543 at 547 per Priestley JA (Cantor and Roden JJ agreeing); R v Middis NSWSC 27 March 1991, unreported per Hunt CJ at CL.

Finally, it must be recognised that some prejudice to one or other accused is inevitable in any joint trial. That is a factor which must be taken into account in striking the necessary balance: R v Dellapatrona; R v Duffield (1993) 31 NSWLR 123 at 133 per the Court. In that regard, the common law proceeds on the assumption that the jury will obey any direction which is given by a trial judge: Kearnes (supra) at [40], citing Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 at [13] per Gleeson CJ and at [31] per McHugh J; see also Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at 153 per Barr J (Spigelman CJ and Price J agreeing) citing R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 603 (per Mason CJ and Toohey J).

Bearing in mind the principles outlined above there are, in my view, a series of considerations in the present case which weigh heavily in favour of the accused being jointly tried.

Firstly, in respect of the principal count of murder, the Crown case is one of joint criminal enterprise. The second count of possession of a prohibited drug is inextricably linked to the principal count.

Secondly, and in addition to the evidence of the two accused being in each other’s company prior to the deceased’s death, there is evidence that on the day of his death both accused were present:

The Crown will also allege that both accused played a role in disposing of the deceased’s body (Crown case statement at [35] and following). Evidence of these circumstances will provide the jury with a means of obtaining the “conspectus” to which reference was made in Ali.

Thirdly, it is apparent that both accused will deploy “cut throat” defences. As previously set out, that is a circumstance which weighs in favour of a joint trial, rather than against it.

Fourthly, and contrary to the submission advanced on behalf of the accused Rogerson, this is not a case in which the evidence which is admissible against Rogerson is significantly different to, and weaker than, that which is admissible against McNamara (a circumstance to which Hunt CJ at CL referred in Middis (supra)). As the matters set out in [54] above demonstrate, there is considerable evidence to support Rogerson’s involvement in the joint criminal enterprise well before the date of the deceased’s death. In these circumstances, the evidence of the acts of McNamara are properly admissible against Rogerson. I should also note in this regard that leaving aside objection taken to the admissibility of a series of representations made by the deceased (some of which, I have concluded, are properly admissible against both accused) there has been no other application on behalf of Rogerson to exclude particular evidence on the basis that it is not properly admissible against him.

In the course of argument the Crown identified two discrete areas of evidence which it will seek to lead against McNamara and which may be the subject of argument as to their admissibility against Rogerson. The first concerns McNamara’s retrieval of his boat on 19 May 2014 (Crown case statement at [13]) and the second concerns his retrieval of the surf board cover from his vehicle (Crown case statement at [35]). I am yet to hear the submissions of the parties in respect of whether this evidence is properly admissible against Rogerson. However, even if I were to come to the conclusion that it was not, that circumstance alone would not justify the making of an order for a joint trial. The evidence in question is obviously confined and could be appropriately dealt with by a direction being given to the jury that it not be considered in determining the case against Rogerson.

Fifthly, there are a large number of witnesses to be called by the Crown. In the event of the trials being separated, the majority of those witnesses would be required to give evidence on two separate occasions. That is a further consideration which weighs in favour of a joint trial.

One of the principal bases upon which Rogerson brings the present application concerns the prejudice which, it was submitted, would be visited upon him in the event that he were cross-examined by counsel for McNamara in relation to his prior convictions. Counsel for Rogerson went so far as to submit that the resultant prejudice would be “catastrophic”. Although the Crown submitted that it was possible that the circumstances could change and that neither accused would give evidence, that, in my view, would be an artificial way in which to approach the present issue. Rogerson’s counsel has stated, in terms, that Rogerson proposes to give evidence.

However, even if the circumstance foreshadowed by counsel for Rogerson eventuates, such that he is cross examined about his criminal history, I am not satisfied that this gives rise to real risk of positive injustice such that a separate trial is warranted. As I have previously noted, it is to be accepted that there will be some prejudice, to one accused or another, arising from a joint trial. In the present case, should the foreshadowed circumstances eventuate, the jury would obviously be directed, both at the time of the evidence being given and during the course of the summing up, as to how such evidence could be used. Such a direction would necessarily include the jury being directed that it would be impermissible to reason that because Rogerson had been found guilty of previous offending he had therefore committed either or both of the offences with which he is now charged. The authorities cited at [68] above make it clear that the Court is to proceed on the basis that the jury would act in accordance with any direction given.

The issue raised by counsel for Rogerson in this regard was the subject of consideration by the Full Court of the Supreme Court of Victoria in R v Ditroia and Tucci [1981] VR 247. In that case, one of the appellants asserted that the decision by the trial judge not to order a separate trial had prevented him from electing to given sworn evidence because of the potential for counsel for the co-accused to cross-examine him as to matters affecting his character. In dismissing his appeal against conviction the Court (Starke, Crockett and Fullagar JJ) made reference to observations in R v Congressi (1974) 9 SASR 257 at 260 where the following observation had been made:

Having cited that passage, the Court in Ditroia (supra) went on to say (at 256):

For all of these reasons, the application made by Rogerson for an order for a separate trial is refused.

In terms of the specific matters relied upon by McNamara, it was submitted that the contents of the report “could be deployed on behalf of Mr Rogerson”. It was suggested that one way in which this might occur was that in the event that any evidence given by McNamara departed from the contents of that document, it would be used to cross-examine him as to a prior inconsistent statement. In written submissions, counsel for McNamara argued that the position faced by his client in this regard was analogous to that dealt with in R v O’Boyd (1991) 92 Cr App R 202. In my view, there is no such analogy at all. In O’Boyd (supra), a confessional statement said to have been made by the appellant was ruled inadmissible against him. Notwithstanding that ruling, counsel for the co-accused was permitted to cross-examine the appellant on that statement at the trial. The court concluded that a “strong and exceptional case” for allowing the appeal had been made out. It will be readily apparent that the circumstances of the present case are quite different. In particular, this is not a case in which either accused has made any confessional statement. Moreover, the circumstance foreshadowed by counsel for McNamara, namely McNamara’s departure from the account recorded in the report, has not arisen. Even if it did, it would be substantially outweighed by the other factors to which I have referred in determining whether an order for a separate trial should be made.

In so far as McNamara relied upon suggested intimidation and threats by Rogerson as a factor justifying an order for a separate trial it is necessary to make a number of observations.

Firstly, the basis of Mr Reslan’s stated belief that “various threats have been made (by Rogerson) towards (McNamara) and his family” is not set out in his affidavit.

Secondly, whilst it was foreshadowed in submissions that it would be alleged that Rogerson had threatened McNamara, there is no direct evidence before the Court as to those threats. The only evidence is that contained in Mr Reslan’s affidavit.

Thirdly, it was put in written submissions that “(McNamara) and his potential witnesses have been the subject of intimidation by the co-accused or on his behalf”. As noted above, there is no direct evidence of any threat to McNamara. His “potential witnesses” who are said to have been the subject of threats have not been identified. The only identified person who appears to fall into the category of a “potential witness”, who has provided evidence on this application, is McNamara’s daughter, Jessica McNamara. Ms McNamara is to be called by the Crown. She therefore does not fall into the category of “(McNamara’s) potential witnesses”.

Fourthly, and contrary to the written submissions, there is no evidence that at the time that the two accused were housed together, the relevant authorities were aware of the fact (if it be the fact) that McNamara was threatened. Even if this were the case, and even if (as is asserted in the written submissions) such arrangements are “contrary to practice” they have little bearing, in my view, upon the question of whether an order should be made for a separate trial.

Further, and specifically as far as Ms McNamara’s affidavit evidence is concerned, three additional observations should be made.

Firstly, construing what Rogerson is said to have stated in her presence (at [44]-[45] above) as a threat may be a matter of interpretation.

Secondly, although there is an obvious suspicion that the conduct in which I have previously found that Mr Kenny engaged was carried out at the behest of Rogerson, there is no evidence which establishes that this was the case.

Thirdly, as regards the most recent events of 9 July to which Ms McNamara deposed (at [47] above), it is evident that Ms McNamara herself is not even certain that her premises were the subject of a break in, much less that persons acting on behalf of Rogerson were responsible. Although the matter was apparently reported to police, there is no evidence as to the result of any ensuing investigation.

In any event, and even if it is the case that threats have been made by Rogerson as alleged, that is not a circumstance which warrants an order being made for a separate trial. Even if McNamara has been threatened, and even if he holds some fear as a result, a separate trial will not alter those circumstances. Moreover, it is not uncommon for witnesses to hold fears about giving evidence for a variety of reasons. As the Crown pointed out, steps can be taken to ensure McNamara’s security, and that of any witness called on his behalf, when giving evidence.

For all of these reasons, the application made by McNamara for an order for a separate trial is refused.

It will be evident from the Crown case that the counts brought against Rogerson are inextricably linked. In light of that, and in light of the evidence relied upon by the Crown in support of them, an order that the counts against Rogerson be tried separately is not appropriate: Mac v R [2014] NSWCCA 24 esp. at [34] per Hidden J (Basten JA and R S Hulme AJ agreeing). Rogerson’s application that the counts be separated is therefore refused.