R v Rogers (No 3)

An issue has arisen regarding the admissibility of a handwritten note (comprising five separate medium-sized post-it notes) (“the note”) written by the accused to the deceased. The note read as follows:

The date of the writing of the notes is unable to be ascertained other than on the basis that it was provided to a psychologist the accused and the deceased saw on 5 May 2016. There is also technical evidence available indicating that a photograph was taken of the post-it notes with data evidence collated by police indicating it was entered onto an iPad device on 27 April 2016.

The Crown sought to tender the note as relevant to the accused’s state of mind contemporaneously to the death of the deceased. It was argued that the note indicates a “passive-aggression” or “passive anger” that informs the jury as to the state of mind of the accused in the period leading up to the crime with which he is charged.

The content of the note is also said to refer to one of the triggers to his anger with the deceased, namely spending excessive time on the iPad, secretly contacting Jeff Langham.

Counsel for the accused Mr Pontello argued that the note was not relevant and should be excluded on the basis of relevance. He emphasised that the time at which the note was written is not the subject of any evidence other than that it was some time on or prior to 27 April 2016. Contemporaneity of such a note would be critical to its relevance. Further, Mr Pontello submitted that attempting to adduce evidence of this note is, in effect, going behind the agreement reached between the Crown and the accused that the Crown would not lead evidence to rebut the accused’s good character and that it is inevitable that this note, given it says “you always want to put me down so shove it up your arse” would be seen as evidence contradicting good character.

In response to that submission, the Crown emphasised that the note was not tendered on the question of character, but only on the issue of state of mind of the accused.

Given the lack of contemporaneity, given that the note’s existence is dated on the only available evidence at 27 April 2016 or earlier, and the lack of clarity as to when the note was in fact written, I formed the view that the note should be excluded on the basis of relevance.

Section 55 of the Evidence Act provides:

A domestic note, written some five months before the crime with which the accused has been charged, the tone of which is difficult to discern, is not evidence that if accepted could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

The tender is rejected.