R v Rogers (No 6)

1. [1]

   The Crown has taken objection to a phrase “dead man walking” that is to form part of the evidence of a defence witness, Rosalie Douglas. The phrase was included in the account given by Ms Douglas at the first trial in July 2018 [at T580.46 to T580.49] as to her observations of the accused during a particular period in which he was separated from his wife:

2. [2]

   The submission of the Crown prosecutor is, in short, that the evidence is opinion evidence and therefore inadmissible pursuant to s 76 of the Evidence Act 1995 (NSW) (“the Act”), that it is not expert opinion evidence, and is therefore not admissible pursuant to the exception to the rule of exclusion that is contained in s 79 of the Act, and that the evidence does not fall within the exception provided for lay opinion evidence contained in s 78 of the Act.

3. [3]

   The relevant provisions are:

4. [4]

   The Crown argued that evidence of the opinion “dead man walking” is not in any way necessary to obtain an adequate account or understanding of Ms Douglas’s perception of the matter or event as required by s 78 of the Act, because when she used the expression, she was able to cite a number of physical aspects she observed about the accused that communicated, more than adequately, her perception of his demeanour at the time.

5. [5]

   As I understand the position there is no disagreement regarding the opinion being based on what Ms Douglas saw, heard or otherwise perceived about a matter or event (s 78(a)). The area for dispute is whether the opinion “dead man walking” is necessary to obtain an adequate account or understanding (s 78(b)).

6. [6]

   Defence counsel Mr Pontello argued that Ms Douglas’s evidence was critical to a fact in issue which is the accused’s level of functioning in the weeks leading up to the death and is highly relevant to the issue of substantial impairment.

7. [7]

   Mr Pontello relied upon Lithgow City Council v Jackson [2011] HCA 36 where the majority stated with respect to the category of evidence covered by s 78 of the Act at [48]:

8. [8]

   Mr Pontello argued that it is extremely difficult, if not impossible, for the witness to identify all the particular indications which led Ms Douglas to the view that the accused was “like a dead man walking” and therefore to adequately convey her perception of the level of his depression. Based on that, it was submitted that the evidence should be admitted.

9. [9]

   The Crown prosecutor argued that what was said in Jackson illustrated why the evidence should be excluded because Ms Douglas was able to narrate the particular indications which led her to the conclusion that he was “like a dead man walking”. That evidence did convey an adequate account and/or generate an adequate understanding of her perception of his emotional state as illustrated by the evidence that she gave at the last trial given the physical descriptors that she used.

10. [10]

    The Crown prosecutor also argued a secondary objection that the phrase “dead man walking” should be excluded pursuant to s 135. Reliance was placed on the decision of R v Van Dyk [2000] NSWCCA 67 where the court examined the admissibility of a complainant’s mother giving evidence that, to her observation, the accused in that case had a “look of wanting” when he was around young girls. The court there comprising Smart AJ (with whom Meagher JA and Simpson J agreed) took the view that the phrase “look of wanting” met the test under s 78(b). However it was held that there the evidence should have been excluded pursuant to s 137 of the Act.

11. [11]

    The Crown prosecutor argued that here, the evidence should be excluded pursuant to s 135(b) which provides:

12. [12]

    The Crown prosecutor argued that the phrase is a subjective one which can mean all manner of things and does carry a real risk of speculation from the jury. The imagery associated with the phrase includes images of a criminal on death row. A well-known and quite recent movie explored that scenario. The Crown prosecutor also cited the possibility that the phrase may mean that Ms Douglas had concerns the accused was on the brink of suicide (an issue about which there has been evidence led in this trial, that is the accused’s suicidality both on the day of the death of the deceased as well as a subsequent attempt four months later while he was in custody), or it could be considered as a reference to the fact that he has a terminal illness, namely prostate cancer.

Decision

1. [13]

   I accept the submissions of the Crown prosecutor that in circumstances where Ms Douglas can give a detailed and admissible physical description of what she observed of the accused at the relevant time, the test under s 78(b) is not met.

2. [14]

   In any event, when considering the balance of Ms Douglas’s evidence, the probative value of the phrase “dead man walking” is slight and is substantially outweighed by the danger that the phrase might be unfairly prejudicial to the Crown in that the jury may speculate and misuse the evidence, or it may be misleading or confusing for the jury, given the ambiguity of the phrase and its potential interpretations (s 135(b)).

3. [15]

   In those circumstances the phrase “dead man walking” should be excluded.

Ruling

1. [16]

   The reference in the evidence of Rosalie Douglas to “dead man walking” is excluded.