R v Rogerson; R v McNamara (No 7)

Roger Caleb Rogerson and Glen Patrick McNamara have each pleaded not guilty to an indictment alleging:

A further count (in the alternative to (i) above) has been brought against Rogerson alleging an offence of being accessory after the fact to murder. Rogerson has pleaded not guilty to that alternative count.

By notices dated issued pursuant to s. 67 of the Evidence Act 1995 (“the Act”) the Crown has indicated an intention to adduce evidence of previous representations made by a person who is unavailable to give evidence, namely the deceased. Having heard argument, I outlined to the parties on 14 July 2015 those representations which I concluded should be admitted into evidence. My reasons for that determination now follow.

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. I have had regard to the Crown case in determining the present issue.

The Crown variously relied upon ss. 65, 66A and 81 of the Act in support of the admissibility of this evidence. Those sections are as follows:

The representations which are the subject of the present application are set out in each of the notices. They fall into a number of categories. Each of those categories, and the evidence falling within them, are set out below. It will be apparent that within some of the material nominated by the Crown as containing the representations there is evidence which is highly prejudicial to the accused McNamara. The transcript of submissions will reflect that in a number of these instances, the Crown conceded that such material was inadmissible.

The representations relied upon are set out in paragraphs [27], [29] and [34] of the statement of Lok Chun Lam of 20 June 2014 as follows:

In respect of the representations contained in [27] I accept the submission of counsel for McNamara that there is no evidence which satisfies the temporal requirements imposed by s. 65(2)(b), nor is there any evidence which would support the reliability of any representation as required by s. 65(2)(c). There is nothing contained within [27] which would bring any representation contained in it within s. 66A.

Paragraph [29] contains no representation of the deceased. The paragraph details a conversation between the witness and McNamara at which the deceased was present.

As to [34], the fact that McNamara may have told the deceased that he had “connections” is, in my view, irrelevant to any issue in the trial. In particular, I do not accept the Crown’s submission that the representations made by the deceased set out in that paragraph are relevant to the deceased’s state of mind and thus admissible under s. 66A. The Crown accepted in the course of oral argument that any relevance in that respect was “distant”.

The relevant representations are set out in paragraphs [15] and [17] of the statement of Hubert Sha dated 21 May 2014:

As to the representations in [15], references to McNamara being a “dangerous figure”, and references to the witness “googling” him, are plainly inadmissible. As to the balance of the representations, insofar as the Crown relied upon s. 65(2)(b) the temporal requirements imposed by that section are not established. As to any reliance upon s. 65(2)(c), there is nothing about the circumstances in which the representation was made that make it highly probable that it is reliable. None of the terms of any of the representations in that paragraph are such to fall within s. 66A.

As to [17], to the extent that the Crown relied upon s. 65(2)(b) I do not consider that the temporal requirements impose by that section have been satisfied. The evidence of the suggested “boast” by McNamara is in, in any event, irrelevant.

The relevant representations are set out in paragraph [5] of the statement of Terrence Wong dated 22 May 2014:

Obviously, the “impressions” of the witness are not admissible. To the extent that the Crown relied upon s. 65(2)(b), the temporal requirements of that section are not satisfied. The Crown’s attempted reliance upon s. 65(2)(c) fails in light of the absence of any identified circumstances which make it highly probable that the representation is reliable.

The relevant representations are set out in paragraph [4] of the statement of Henry Zheng dated 22 May 2014:

The deceased’s representation that he was going to see a male by the name of Glen McNamara is admissible under s. 66A.

The relevant representations are set out in paragraphs [8], [9] and [10] of the statement of Wayne Cai dated 23 June 2014:

The representations in [8] are so vague as to be meaningless. The witness says that the deceased “told him” about the accused but does not say what he was told. The representations in [9] are irrelevant and unfairly prejudicial. The representation in [10] that the deceased was going to hire McNamara to work with him is admissible under s. 66A. The balance of the representations are not admissible.

The relevant representations are set out in paragraphs [4], [5] and [6] of the statement of Mathew Vines dated 13 June 2014:

The representation in [4] is admissible under s. 66A.

The only relevant representation in [5] is that the deceased told the witness that McNamara was a former police officer and private investigator. It is to be inferred that the deceased ascertained that information by virtue of a representation by McNamara, in which case the evidence is second hand hearsay. The balance of that paragraph recites the asserted knowledge of the witness and contains no relevant representation.

Paragraph [6] contains, in summary, a series of representations made by the deceased about what McNamara had taught him about counter surveillance. In my view those representations are admissible under s. 66A.

The relevant representations are set out in paragraph [4] of the statement of Misaki Takebayashi dated 23 May 2014:

The only representation in [4] is that concerning McNamara being a bikie. Such representation is irrelevant and unfairly prejudicial.

The relevant representations are set out in paragraphs [8] and [13] of the statement of Kit Chun Lam dated 30 July 2014:

In my view, none of the representations of the deceased which are containing within these paragraphs is relevant to any issue in the trial.

The relevant representations are set out firstly in paragraph [6] of the statement of Matthew Lo dated 22 May 2014:

In my view, the deceased’s representation that he had to leave early to meet some “white guy” is admissible pursuant to s. 66A as a statement of intention.

Further representations relied upon by the Crown are set out in paragraphs [7] and [8] of the statement of the same witness dated 30 May 2014:

Read in conjunction with the contents of paragraph [6] of the statement of Lo dated 22 May 2014, the representation by the deceased (contained in paragraph [7] of Lo’s second statement) that the “white guy was an ex cop”, is in my view admissible pursuant to s. 66(2)(b) of the Act.

Further, the deceased’s representation in paragraph [8] of Lo’s second statement, namely that he was “meeting a mate” is admissible as a statement of intention pursuant to s. 66A.

The relevant representations are set out in paragraphs [4] and [5] of the statement of Justin Gao dated 23 June 2014:

The representations in [4] and [5] to the effect that the deceased said he had to “go and meet Glen” are representations of an intention and are admissible pursuant to s. 66A.

The relevant representations are set out in paragraphs [11] and [12] of the statement of Hubert Sha dated 3 June 2014:

In my view the representations contained in these paragraphs are second hand hearsay. They are not caught by s. 65(2)(b) or (c) upon which the Crown relied. They similarly do not fall within s. 66A.

The relevant representations are set out in paragraph [12] of the statement of Henry Zheng dated 2 June 2014:

The representations themselves are in imprecise terms, as evidenced by the attempt by the witness to interpret them. Even if I were to come to the view that they were admissible, they should be excluded under s. 135(b) and/or s. 137 of the Act.

The first of the representations are set out in paragraphs [11] and [12] of the statement of Justin Gao dated 22 May 2014:

The representation in [11] that the deceased was going to meet with McNamara is admissible pursuant to s. 66A. The entirety of paragraph [12] is inadmissible.

Further representations relied upon the Crown are set out in paragraphs [6] and [10] of a second statement of this witness dated 23 June 2014:

The representations in [6] are admissible as representations of intention, knowledge or state of mind pursuant to s. 66A.

The representations in [10] are irrelevant.

The relevant representations are set out in paragraphs [7] and [8] of the statement of Mathew Vines dated 13 June 2014:

The representation in [7] by the deceased that the business he was doing with McNamara was “drugs” is admissible pursuant to s. 65(2)(c). There is ample evidence to support a conclusion as to its reliability. The balance of that paragraph is irrelevant, as are the contents of [8].

The relevant representations are set out in paragraph [5] of the statement of Misaki Takebayashi dated 28 May 2014:

The representation that the deceased asked for a small plastic bag is admissible. However the requirements of ss. 65(2)(b) and/or (c) are not fulfilled so as to allow the Crown to rely upon the representation that the deceased had received a sample from Hong Kong and was to show it to McNamara.

The relevant representations are set out in paragraph [11] of the statement of Matthew Lo dated 30 May 2014:

In my view, there is nothing contained in this paragraph which is relevant to any issue in the trial.

The relevant representations are set out in paragraph [7] of the statement of Justin Gao dated 23 June 2014:

In my view, the following representations by the deceased contained in this paragraph are admissible pursuant to s. 66A, namely:

Further in my view, there is available evidence of the deceased’s activities (including his presence in the storage shed at the time of his death) to allow the Crown to rely, pursuant to s. 65(2)(c) upon the deceased’s representation that the drop offs were for possible customers. Finally, I am satisfied that the representation as to the upcoming deal is admissible pursuant to s. 66A.

The relevant representations are set out in paragraphs [6], [7] and [12] of the statement of Wayne Cai dated 23 June 2014:

The deceased’s representation in [6] about (inter alia) wanting to be a “gangster”, along with his representation in [7] about not wanting to work a “nine to five job” are admissible pursuant to s. 66A.

The deceased’s representation in [12] that he was going to meet up with a person by the name of “Chook Chook” is in my view not relevant. As Counsel for McNamara pointed out, the Crown is not able to identify the person “Chook Chook”.

The relevant representations are set out in paragraph [12] of the statement of Kit Chun Lam dated 30 July 2014:

In my view it has not been established that any representation of the deceased which is contained in this paragraph is relevant to any issue in the proceedings.

The relevant representations are set out in paragraphs [9], [11] and [12] of the statement of Hubert Sha dated 3 June 2014:

The Crown submitted that the representations contained within these paragraphs went to the state of mind and the intention of the deceased regarding the events of 20 May and what he expected would happen and were thus admissible under s. 66A. I am not able to accept that submission.

Firstly, some of the material is second hand hearsay. In other words, the witness is recounting something that the deceased had said was told to him by the accused. Secondly, references to guns and bikie gangs are not relevant to any issue in the trial. Thirdly, the representations do not, in my view, evidence any relevant state of mind on the part of the deceased. The attempt made by the witness to assess what the deceased was thinking is obviously not admissible. Fourthly, to the extent that the Crown relied upon ss. 65(2)(b) and (c), the requirements for admissibility imposed by those sections have not been satisfied.

The relevant representations are set out in paragraphs [10] and [12] of the statement of Kit Chun Lam dated 30 July 2014:

The deceased’s representation in [10] that he was going to meet with Glen is admissible pursuant to s. 66A.

In my view, the various representations in [12] are irrelevant.