R v Rogerson; R v McNamara (No 12)

The joint trial of the accused commenced before me on 27 July 2015 and the opening address of the Crown Prosecutor concluded on 28 July 2015. An opening address was then made by counsel for the accused McNamara (“McNamara”) following which I made an order discharging the jury: R v Rogerson; R v McNamara (No 8) [2015] NSWSC 1036. The trial is now due to commence on 18 August 2015.

In the course of his opening address, counsel made a number of references to McNamara’s good character. On the assumption that evidence is given by McNamara consistent with counsel’s opening, the Crown has made an application for leave to cross-examine him on the basis of evidence going to bad character. On the further assumption that McNamara denies what is put to him in that respect, the Crown will then seek to lead a case in reply.

Following the Crown’s application, counsel for the co-accused Rogerson (“Rogerson”) made an application for leave to cross-examine McNamara independently of, but in relation to the very same matters which are relied upon by, the Crown.

The applications made by the Crown and counsel for Rogerson have been opposed by counsel for McNamara. All parties have asked that I make an advance ruling in respect of each application pursuant to s. 192A of the Evidence Act 1995 (NSW) (“the Act”).

Two particular passages of the opening address of counsel for McNamara give rise to the Crown’s application. The first commences at T54 L49 where counsel said the following:

The second commences at T56 L17 where counsel said the following:

In seeking an advance ruling the parties have asked that I proceed on the assumption that when the trial commences, counsel for McNamara will open to the jury in essentially the same terms as outlined above, and that evidence will be given by McNamara consistent with that opening.

The evidence relied upon by the Crown in support of its application comes from two witnesses, Lok Lam (“Lam”) and Justin McLannen (“McLannen”). Before setting out that evidence, some background is required.

As part of its case against the two accused, the Crown alleges that in January 2014 the deceased was an associate of Lam. At that time, Lam and his brother Chun Kit Lam (“Chun”) had been charged with offences against the Drug Misuse and Trafficking Act 1985 (NSW). A Mr Ly, solicitor, acted for Lam and Chun. Ms Diane Elston, a solicitor, was employed by Mr Ly. There is evidence that from time to time the deceased acted as an interpreter at conferences between Lam and his lawyers.

Mr Ly briefed Mr Charles Moschoudis, who then practiced as a barrister, to advise, and appear for, Lam. McNamara was retained (apparently by Mr Ly but seemingly on the recommendation of Mr Moschoudis) as a private investigator to assist with obtaining statements to assist Lam’s case. Ultimately, Lam and Chun each pleaded guilty to various offences. Each was sentenced to a term of imprisonment. Subsequent appeals against the asserted severity of their respective sentences were dismissed: Lam v R; Lam v R [2015] NSWCCA 87.

On the Crown case, it was through the connections I have outlined that the deceased came to meet McNamara. The Crown will lead evidence from both Lam and Chun for the purposes of establishing (inter alia) the nature and extent of the association between the deceased and McNamara in the period leading up to the deceased’s death. On the basis of other evidence which is more fully summarised in the Crown Case Statement, the Crown will further allege that after they were introduced to each other, the deceased and McNamara became involved in negotiations for the purchase, by McNamara, of a large quantity of methylamphetamine from the deceased. It is the Crown case that on 20 May 2014, the deceased was shot by one or other of the accused when delivering to them approximately 2.7 kilograms of methylamphetamine.

Evidence before me on the present application establishes that in January 2014 McLannen was approached by Agent Amy Knox of the Australian Federal Police and was asked to make a statement concerning (inter alia) his knowledge of Lam. A draft (induced) statement in McLannen’s name was prepared by Agent Knox bearing a date of 15 January 2014. It was not signed. That statement outlines McLannen’s association with a person known as BJ Wang (“Wang”) and his offer to Wang to assist in the distribution of prohibited drugs. The statement contains a passing reference to meeting Lam on one occasion. There is evidence that a Mr Bryan Wrench (“Wrench”), solicitor, gave advice to McNamara in relation to the provision of that statement.

To assist McNamara in his task of obtaining statements which would assist Lam, Mr Moschoudis sent McNamara a copy of the Brief of Evidence on 27 January 2014. McNamara replied on the same day telling Mr Moschoudis that he would “send a draft statement to (him) soon”. There was no indication in that reply as to the person from whom any such draft statement might be obtained. On 29 January 2014 Ms Elston wrote to McNamara about contacting Wrench. On the following day, McNamara wrote to Wrench in the following terms:

On 31 January 2014 Mr Moschoudis again wrote to McNamara and enquired:

It is clear from the evidence I have outlined that one of the potential witnesses from whom McNamara was asked to obtain a statement was McLannen. Significantly, according to his correspondence to Wrench of 30 January 2014, McNamara had, by that time, interviewed McLannen and a prepared a statement for his signature.

It is against this background that I turn to consider the evidence upon which the Crown relies in support of the present application.

Lam has made two statements to police, although only that made on 20 June 2014 is relevant for present purposes. The Crown has identified the following parts of that statement as those upon which it relies, with particular emphasis being placed upon those parts in bold:

In light of submissions made on behalf of McNamara, it is necessary for me to make reference to some other evidence which is said to be relevant to the present application.

In a statement made on 26 July 2015, Det. Lindsay outlined (commencing at (3)) that on 23 May 2014 he met with Jasmine Lau, solicitor, who had previously acted for the deceased and who was then acting for Lam and Chun in respect of their appeals against sentence (see [10] above). Ms Lau informed Det. Lindsay that Lam knew the deceased and that he and Chun “wished to speak to the police about his disappearance”. Det. Lindsay also stated that at that time Ms Lau “indicated that (Lam and his brother) were seeking assistance from police for their appeal process”. The statement says nothing further about assistance being given to Lam.

On 16 June 2014 Det. Lindsay spoke with Lam and Chun, at which time they each indicated a willingness to provide a statement detailing their knowledge of, and association with, the deceased. Following this, Lam made his statement of 20 June 2014. The passages upon which the Crown relies in support of the present application will only become relevant if the application is granted, and will not otherwise be adduced. There are, however, other parts of the statement upon which the Crown will rely at the trial to establish the association between McNamara and the deceased.

Det. Phillips made a statement on 26 July 2014 in which he stated (at (11)) that he was aware that Det. Lindsay had spoken with Ms Lau and that she had indicated that Lam and Chun proposed to lodge appeals against their sentences. Detective Phillips stated that he was also aware that Lam and his brother “may request assistance of police in this regard”. He went on to state the following (at [16]-[17]):

I have been provided with an unsigned copy of an affidavit of Det. Ag. Supt. Sheehy. Annexed to that affidavit was an unsigned letter from Det. Phillips. It is evident that this material has been, or is intended to be, provided to the Governor of NSW in support of an application for a reduction in the sentences imposed upon Lam and his brother. Having outlined the circumstances in which Lam and Chun came to make their statements to police, the letter from Det. Phillips states the following:

On 16 January 2015 McLannen made an induced statement to police in which he outlined his association with Wang, and disclosed the fact that he had sold prohibited drugs on Wang’s behalf. McLannen then proceeded (commencing at (15)) to detail a meeting that he had with McNamara in January 2014. For the purposes of the present application, the Crown relies upon McLannen’s account of that meeting, with particular emphasis being placed upon those parts of paragraphs (18) to (26] which are in bold. It is noted that the references to the person “Key” are references to Chun:

McLannen identified McNamara (by a series of photographs) as the male he described at paragraphs (19) and following of the statement.

Following McNamara’s arrest a computer was seized from his premises. Bearing in mind the correspondence of 30 January 2014 between himself and Wrench (at [13] above), a document was downloaded from the computer which was headed:

The statement, which was unsigned, was dated 27 January 2014 and was in the following terms (omitting formal parts):

On 6 May 2015 McLannen made a second statement to police. Commencing at paragraph (3) he stated that he had been shown a copy of the statement found on McNamara’s computer. He went on to say (at [7]):

The present application for an advance ruling is made pursuant to s. 192A of the Act which is in the following terms:

Part 3.8 of the Act deals with evidence of the character of an accused person:

In making the present determination, the provisions of s. 192 are also relevant:

In R v PKS (NSWCCA unreported 1 October 1998) the Court (Wood CJ at CL, Sully and Ireland JJ) set out a series of propositions relevant to the operation of Part 3.8 of the Act:

Testimony which is said to raise an accused’s character must evince a conscious decision to intentionally and deliberately adduce evidence of positive good character: Huges (a Pseudonym) v R [2013] VSCA 338 at [23]-[24] per Priest JA (Coghlan JA and Lasry AJA agreeing); Gabriel v The Queen (FCA, 25 June 1997 unreported); R v Fuller (1994) 34 NSWLR 233 (at 236 per Hunt CJ at CL, Bruce and Dowd JJ agreeing). In the present case, given the terms in which counsel previously opened to the jury, and on the assumptions in [7] above, there is no issue that any evidence given by McNamara which was consistent with counsel’s opening would reflect the making of a conscious decision of the kind referred to in the authorities cited above.

The provisions of s. 110 of the Act are generally consistent with common law principles in respect of an accused person raising prior good character in the course of proceedings. In R v Stalder (1981) 2 NSWLR 9 Street CJ traced the history of statutory provisions governing the admissibility of evidence of the character of an accused, before observing (at 15):

His Honour referred to the judgment of the High Court in Attwood v R [1960] HCA 15; (1960) 102 CLR 353 in which the plurality (Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ) said (at 359-360):

In Stalder (supra) Street CJ also observed (at 20) that the reluctance of the common law to allow evidence of bad character turned essentially upon a recognition of the unfairness to an accused which could result. In this regard, he referred to the judgment of Mason J (as his Honour then was) in Donnini v R [1972] HCA 71; (1972) 128 CLR 114 where his Honour said (at 144):

The effect of s. 110(1) of the Act is that an accused is provided with an opportunity to put in issue his good character generally, or his good character in a particular respect. Which of those two courses an accused person takes will largely determine the extent to which any leave might be granted under s. 110. In R v Zurita [2002] NSWCCA 22 Howie J (with whom Hodgson JA and Levine J agreed) observed (at [14]) that the effect of s. 110(1) of the Act is to vary the common law attitude to evidence of good character from a position of “all or nothing”, to one of allowing an accused person to put forward that he or she is either generally, or in a particular respect, a person of good character.

Having regard to the provisions of s. 110(3), if an accused’s good character is raised only in a particular respect, any evidence in rebuttal must be limited to that aspect of the accused’s character. In Bishop v R [2013] VSCA 273 Redlich JA observed (at [8]):

In Huges (supra) Priest JA made the following observations regarding the provisions of s. 110 and s. 112 (at [20]):

Later (at [26]) his Honour referred to the judgment of the plurality (Mason CJ, Brennan, Wilson and Dawson JJ) in Phillips v The Queen (1985) 159 CLR 45 at 57-58 where it was observed that the discretion of a trial judge to permit the character of an accused to be attacked by reference to his bad character was one which is to be “sparingly and cautiously exercised.”

The observation of Priest JA as to the requirement to take into account the matters in s. 192 of the Act in making a determination such as the present was consistent with the observations of Gaudron, Kirby and Callinan JJ in Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115 at [44]; 126-127. However, the considerations in s. 192 are not exhaustive. Questions of the weight and relevance of the evidence must also be considered: Stanoevski (supra) at [47]; 127.

The application made by Rogerson was made independently of that made by the Crown. The issues, and the applicable principles, differ as between the two applications.

The principal issue arising from the application made on behalf of Rogerson is whether the evidence can be said to be relevant. In R v Gibb and McKenzie [1983] 2 VR 155 the Full Court of the Supreme Court of Victoria (Young CJ, Crockett and King JJ) observed (at 163):

Because there is more than one accused in the present trial, the test of relevance must be strictly applied: R v Bracewell (1979) 68 Cr App Rep 44. Evidence will be relevant if it tends to show that the version of the facts advanced by one accused is more probable than that advanced by another: Lowery v R [1974] AC 85 at 103.

Further, and generally speaking, it is not relevant to enquire into an accused’s character, or to ask questions which tend to show that he has previously committed a criminal offence. The fact that an accused may have committed an offence on one occasion does not, in any way, show that he is likely to commit an offence on any subsequent occasion: R v Miller (1952) 36 Cr App Rep 169 at 171 per Devlin J.

The Crown submitted that the evidence of both Lam and McLannen disclosed matters which were fundamentally inconsistent with an assertion by McNamara that he is a person of good character. It was submitted, in particular, that the evidence of McLannen constituted “the complete antithesis of the image (McNamara) would leave to the jury”, such that if the Crown was denied the opportunity to cross-examine McNamara about, and then lead, such evidence, unfairness would result. The Crown went so far as to say that if the present application was refused “significant injustice to the fair prosecution” of the charges against McNamara would eventuate. In making these submissions, the Crown acknowledged the caution with the present issue must be approached (as to which see Phillips (supra) at [39] above). However, it was submitted that to permit McNamara to go to the jury in the way in which counsel had opened, without anything being put to the contrary, would be fundamentally unfair to the Crown.

The Crown stressed the importance of the evidence in the terms of s. 192(2)(c) of the Act. It was submitted, in particular, that the evidence of McLannen about what had occurred between himself and McNamara was corroborated by the finding of the statement on McNamara’s computer, and that the contents of that statement were “in complete harmony” with what McLannen says that McNamara told him.

The Crown accepted that it was also necessary that I consider the weight and relevance of the evidence. It was submitted that in the circumstances I have outlined, the weight of the evidence of both witnesses was significant. Although the Crown appeared to accept that there may be a distinction in this regard between McLannen’s evidence and that of Lam (due to the availability of independent corroboration of the former) it was submitted that the evidence of Lam nevertheless carried significant weight because it indicated that McNamara had used his position as a private investigator to elicit contacts and sources in order to involve himself in the distribution of illegal drugs.

Counsel for McNamara submitted that the Crown’s asserted importance of the evidence was “overrated” and that an assessment of such importance involved a consideration of its reliability. In this respect, counsel pointed to the fact that Lam had apparently made his statement without an interpreter, and in circumstances where his English was limited, and that these factors necessarily affected the reliability of his evidence. It was further submitted that Lam’s statement was entirely self-serving and was given “in hope of a reward for assistance”. It was also submitted that the statement exhibited a willingness, on the part of Lam, to “jump on the bandwagon of a ‘high profile’ and serious trial.”

Counsel further submitted that the evidence of both witnesses would add unduly to the length of the hearing because its admission “may also require the ventilation of further issues”. It was submitted, in particular, that there would be a consequent necessity for the jury to focus on the evidence which may, in turn, distract them from their task.

In terms of the evidence of McLannen, and when pressed for a response to the Crown’s submission that the finding of the draft statement on McNamara’s computer corroborated McLannen’s evidence, counsel for McNamara described the Crown as having advanced a “bootstraps” submission, before then saying (at T325 L11):

When I asked counsel whether he was suggesting that the existence of the statement which was found on McNamara’s computer had been disclosed to McLannen before he made his statement to police in January of this year, counsel replied:

It was further submitted that properly analysed, what was in fact said by McLannen involved “an implicit threat verbally on one single occasion”. It was submitted on this basis that the weight, and probative value, of the evidence were marginal at best.

As to the application made on behalf of Rogerson, it was submitted that the underlying reason for such application was to enable Rogerson to draw an inference (in the case of Lam’s evidence) that McNamara was the type of person who wanted to be involved in drug dealing, and (in the case of McLannen’s evidence) that he was the kind of person who would “commit perjury”. It was submitted that neither matter was relevant in terms of s. 55 of the Act and that the arguments of counsel for Rogerson disclosed tendency reasoning which should be rejected.

Finally, counsel foreshadowed that in the event that I came to the conclusion that Rogerson’s application should be granted, it was likely that McNamara would make a further application for a separate trial (a previous application having been refused: R v Rogerson, R v McNamara (No 3) [2015] NSWSC 965).

Counsel for Rogerson submitted that it was necessary to view his application in the context of a trial in which McNamara would not only seek to blame Rogerson for the deceased’s murder, but would, in doing so, assert serious (and uncharged) criminal conduct on the part of Rogerson. It was submitted that in these circumstances, what might otherwise be the expected limits of a so-called “cut throat” defence had been substantially extended, so as to permit the cross-examination of McNamara as to his character, independent of any position taken by the Crown.

It was further submitted that the evidence of both Lam and McLannen was relevant to facts in issue, and that it accordingly met the test of relevance in s. 55 of the Act. It was submitted, in particular, that an “ultimate fact in issue” in the present case was the acceptance or rejection of any defence propounded by McNamara, and the acceptance or rejection of any evidence that he gave. It was submitted that given the width of s. 55 of the Act, the evidence of both Lam and McLannen was relevant to that issue. It was further submitted that the evidence, if accepted, established that McNamara was a “stand over man” and that this was also relevant to the question of whether his account of the relevant events was accepted.

I turn firstly to the provisions of s. 192 of the Act.

In terms of s. 192(2)(a), the evidence of Lam and McLannen will obviously add to the length of the trial to some degree, both in terms of the Crown’s cross-examination of McNamara and having regard to a case in reply. However, the relevant consideration is whether the trial would be lengthened “unduly” or, in other words, whether it would be lengthened to an unwarranted or inordinate degree. In my view, this would not be the case.

The evidence in each case is relatively confined. Indeed, counsel for McNamara specifically pointed out in the course of submissions that in the case of McLannen, the evidence is limited to a single incident. Even though the Crown’s cross-examination of McNamara, and the case in reply, would obviously lead to the trial being lengthened, I do not consider that it would do so unduly, in the sense that I have described. The “further issues” referred to by counsel for McNamara, the ventilation of which, it was said, would add to the length of the trial, have not been identified. Further, I am not persuaded that the evidence would add unduly to the length of the trial because of the possibility of the jury being distracted. This is particularly so in circumstances where, as discussed further at [66] below, the jury would, if the evidence were admitted, be given a number of specific directions. Finally, in terms of the suggested undue lengthening of the trial, it is relevant to note that irrespective of the outcome of the present application, Lam will be called for the Crown in its case to prove the nature and extent of the association between the deceased and McNamara. It might reasonably be expected that at that time, there will be some cross-examination of Lam going to matters of credit.

As to s. 192(2)(b), I am necessarily mindful of the right of the accused to a fair trial. Equally however, there is force in the submission that if the Crown’s application was refused, the inaccurate picture of the accused’s character with which the jury might be left would be unfair to the Crown. Issues of fairness must obviously be considered with respect to both parties.

As to s. 192(2)(c), the evidence in each case is of obvious importance. That importance stems, in part, from the fact that it is wholly inconsistent with the case put on behalf of the accused as to his good character. In Lam’s case, I do not regard the fact that the statement was made without an interpreter as something which lessens its importance. Moreover, and although there is evidence of some assistance being given to Lam by the police, the proposition that the hope of such assistance was Lam’s motivation for making his statements is not supported by the evidence. It is also relevant that the assistance which has been provided to Lam was provided a long time after he had made his statements.

In terms of the evidence of McLannen, I do not accept the submission that the mere fact that the evidence is limited to a single episode of conduct is a factor which adversely affects its weight. This is particularly so in circumstances where the evidence is objectively corroborated. In that regard, and whilst emphasis was obviously placed upon the fact that a draft statement was found on McNamara’s computer, that is not the only evidence which supports McLannen’s account of what took place. In particular there is evidence which establishes that McNamara was retained on behalf of Lam to obtain statements from persons which might assist his case, and that McLannen was one such person. It is also evident from the correspondence I have previously set out that McNamara spoke to, and prepared a statement for, McLannen, at or around the time that McLannen says that McNamara spoke with him. Moreover, the contents of the draft statement found on McNamara’s computer are, generally speaking, consistent with McLannen’s account of what McNamara said to him.

I have noted (at [50]-[51] above) the submission made on behalf of McNamara that the weight of McLannen’s evidence was lessened by the fact that at the time of making his first statement to the police in January 2015, he was aware of the existence and content of the draft document found on McNamara’s computer. There is nothing within the terms of McLannen’s first statement which suggests, expressly or impliedly, that this is so. Moreover, the contents of McLannen’s second statement made in May 2015, tend to suggest that it was not until that time that he was made aware of the existence of the draft.

Further, I have also noted that when this issue was agitated in the course of submissions counsel for McNamara indicated that he was keeping his position “up his sleeve”, following which he impliedly suggested that Wrench had been given a copy of the draft found on McNamara’s computer, as a consequence of which McLannen knew of its contents prior to making his first statement. I am obviously left to determine the present application on the basis of the evidence which is put before me. There is no evidence that Wrench was given a copy of the draft statement, be it by McNamara or by anyone else. There is no evidence that he provided it to McLannen. There is also no evidence that he otherwise made McLannen aware of its contents.

In terms of s. 192(2)(d), these proceedings concern the prosecution of McNamara for serious criminal offences. It is obviously necessary to bear in mind, as I do, McNamara’s right to a fair trial. It is also necessary to bear in mind those authorities to which I have referred, which make it clear that caution must be exercised in determining whether the Crown should be permitted to take this course. That said, it is obviously not the case that the discretion can never be exercised in favour of allowing an application of this nature made by the Crown.

As to s. 192(2)(e), in the event that the Crown’s application is granted, the jury will be directed as to how the evidence relied upon by the Crown can (and cannot) be used. In particular, the jury will be directed (inter alia) that:

In my view, the considerations mandated by s. 192 weigh generally in favour of granting the Crown’s application. However, it was made plain in Stanoevski that those considerations are not exhaustive, and that factors such as the weight of the evidence, and its relevance, must also be taken into account. For the reasons already expressed, and from the point of view of the Crown’s application, the evidence is clearly relevant. There are factors which might affect its weight. In Lam’s case, those factors include the assistance which he appears to have been given by the police. In McLannen’s case, those factors include that his statement, which includes reference to his own drug dealing activities, was induced. That said, in all of the circumstances, I am not persuaded that any of these factors affect the weight of the evidence to such an extent that the Crown’s application should be refused.

In the course of submissions counsel for McNamara took me, at some length, to the decision in Huges. He relied, in particular, on that part of judgment of Priest JA at [31] where his Honour said:

In Huges, the appellant had been indicted on 17 charges of sexual offending against his biological daughters. Part of the evidence sought to be led by the Crown in respect of bad character concerned a violent rape (with which the appellant had not been charged) of one of those daughters. The observations of Priest JA at [31] must be viewed in that light. Coghlan JA observed (at [46]) that an application to rebut an assertion of general good character by leading evidence of uncharged acts from a complainant in the trial was “completely novel”. Those circumstances do not apply in the present case.

Further, in Huges some significance was placed on the fact that the Crown had left the making of its application to cross-examine the appellant until the completion of his evidence in chief (Priest JA at [32]). In this respect Lasry AJA said (in a passage to which my attention was specifically drawn) at [51]:

Again, a clear distinction can be drawn between those circumstances and the present case.

Counsel for McNamara also relied on Lasry AJA’s observation that prejudice had arisen because the evidence in question was “the last thing the jury heard from the witness box”. That will be the position in every case in which an application such as the present is granted. Whilst it is obviously a relevant consideration, I am not persuaded that it operates, either of itself or in combination with those other factors upon which McNamara relied, to defeat the Crown’s application in the present case. The observations of Lasry AJA were obviously made in the context of the evidence that the court was considering at that time. For the reasons that I have already expressed, the position in the present case is quite different. Moreover, the jury will be directed at length as to how the evidence can be used.

For all of these reasons, the relevant considerations weigh in favour of the Crown’s application being granted. That being so, I must then consider whether the evidence ought be excluded having regard to the provisions of s. 137 of the Act. In my view, for the reasons I have stated, the probative value of the evidence in each case, as to the limited issue of McNamara’s character, is high. The directions that I have outlined will ensure that it is made plain to the jury that the evidence is before them on a limited basis, and for a limited purpose. In these circumstances, I am satisfied that there will be no danger of the evidence being misused in any way. For these reasons, the probative value of the evidence is not outweighed by the danger of unfair prejudice to McNamara.

Finally, I should note that it was submitted on behalf of McNamara that if the evidence of good character were limited to leading evidence of the fact that McNamara has no prior convictions, it would not be open to the Crown to lead any of the evidence at all. I do not accept that submission. The nature of the evidence relied upon by the Crown, if accepted, discloses criminal conduct on the part of McNamara.

It follows that in my view, the Crown’s application for leave to cross-examine McNamara, and to lead a case in reply, should be allowed.

The fundamental question to be resolved in determining the application made on behalf of Rogerson is whether the evidence is relevant. If it is not, then the application cannot succeed. I have previously outlined the submissions made by Mr Thomas as to the asserted relevance of the evidence. I am not able to accept those submissions for a number of reasons.

In the response to the Crown case statement filed on behalf of Rogerson pursuant to s. 143 of the Criminal Procedure Act 1986 (NSW) the following was stated:

That response raises two issues, namely whether Rogerson:

The evidence the subject of the present application does not bear upon either of those issues. Even if the evidence established that McNamara was a “stand over man”, that does not bear upon any identified fact in issue in the present trial. I have noted (at [43] above) that evidence will be relevant if it tends to show that the version of the facts advanced by one accused is more probable than that advanced by another: Lowery (supra). That proposition encapsulates one of the submissions advanced on behalf of Rogerson. However the evidence in the present case is not relevant to that issue. The present circumstances are clearly distinguishable from those in Lowery where the evidence in question went directly to the likelihood or otherwise of the appellant’s account being accepted.

For all of these reasons, I am not persuaded that the evidence is relevant to the issues identified on behalf of Rogerson and the application made on his behalf is refused.