R v Rogerson; R v McNamara (No 1)

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

The joint trial of the accused is listed to commence on 20 July 2015.

By notice of motion filed on 18 April 2015 the accused Rogerson sought a number of orders including the following:

The accused McNamara filed a notice of motion on 24 April 2015 seeking (inter alia) orders in identical terms to those in [3] above.

Jessica McNamara is the daughter of the accused Glen Patrick McNamara. She has provided two statements to police. The Crown Prosecutor has indicated that he intends to call her to give evidence at the trial. Ms McNamara has objected to giving evidence. In doing so, she has sought to invoke the provisions of s. 18 of the Evidence Act 1995 (“the Act”).

Accordingly, the first matter for determination is Ms McNamara’s objection under s. 18. If I resolve that issue in her favour, that will also resolve those parts of the Notices of Motion filed on behalf of the respective accused seeking the exclusion of her evidence. If I do not uphold Ms McNamara’s objection under s. 18, it will be necessary for me to hear submissions from counsel for each of the accused as to why her evidence should otherwise be excluded.

In order to place the objection taken by Ms McNamara into its proper context it is necessary for me to set out, in summary form, the Crown case. I do so by reference to the Crown Case Statement filed in the proceedings which is in the following terms:

The following documentary evidence was tendered on the objection:

Ms McNamara, Det. Lindsay and Det. Jouni all gave oral evidence before me, as did Mr Paul Kenny, the solicitor for the accused Rogerson.

At the conclusion of the evidence and submissions Mr Thomas of counsel, who appears for the accused Rogerson instructed by Mr Kenny, indicated that he may wish to tender two file notes prepared by Mr Kenny in relation to one aspect of the evidence which is discussed more fully below. At that stage, the file notes had only just come into the possession of Mr Thomas and he had not had an opportunity to provide copies to the other parties. The matter was left on the basis that the parties could consider their respective positions and if there was no objection to the tender of the material it could be provided to me at some convenient time prior to judgment being delivered.

On 19 May 2015, having heard nothing further, I had my Associate enquire as to the position in relation to the tender of the additional material foreshadowed by Mr Thomas. I was advised that there were objections to such tender by one or more of the other parties. On the following day, 20 May 2015, the matter was mentioned before me at which time Mr Clark of counsel appeared on behalf of Mr Kenny. Mr Clark informed me on that occasion that he would make further enquiries regarding the matter. I indicated to Mr Clark that if the tender of any further material was pressed it would be necessary, absent the consent of all parties, to have the matter re-listed in order to hear submissions.

Mr Clark subsequently informed my Associate that he had been unable to make contact with Mr Kenny so as to seek his further instructions regarding the issue. In the end result, no documentary material over and above that set out in [8] above was tendered.

The accused McNamara was arrested and charged on 25 May 2014. Following his arrest, Det. Lindsay had a number of conversations with Ms Jessica McNamara. These conversations culminated in Dets. Lindsay and Jouni attending Ms McNamara’s residence on the afternoon of 17 June 2014. On that occasion, Det. Lindsay spoke with Ms McNamara about providing a statement regarding (inter alia) her knowledge of the relationship between her father and the accused Rogerson. Having obtained legal advice, Ms McNamara indicated that she would be prepared to make a statement. She was then taken by Det. Lindsay to the Cronulla police station for the purposes of doing so.

According to Det. Lindsay (para. 10 of Ex. 3) Ms McNamara became emotional when recounting events which were said to have occurred at her premises on 20 May 2014, the day on which it is alleged that the deceased was killed. In this regard, Det. Lindsay stated the following (para. 11 of Ex. 3):

Det. Lindsay’s statement (Ex. 3) is dated 10 November 2014. However in evidence before me he explained that the matters set out in [14] above were recorded by him in a separate document (attached to Ex. 3) on 25 and 26 June 2014, some 8 or 9 days after he had spoken with Ms McNamara. Despite the gap in time, Det. Lindsay said (T94 L11-13) that he was in no doubt that what Ms McNamara had said was accurately reflected in the document he prepared, the contents of which were later incorporated into his statement.

Det. Lindsay did not accept the truth of Ms McNamara’s account. In his statement he said (commencing at paragraph (12)):

Det. Lindsay explained in evidence (commencing at T91 L24) what he meant by the phrase “appeared to be rehearsed” (at para. 12 of Ex. 3):

He subsequently said (commencing at T93 L16):

Det. Lindsay said that the account given by Ms McNamara as to the events of 20 May 2014 appeared “very practiced (and) scripted” (T98 L13). He went on to give the following further evidence (commencing at T98 L15):

In circumstances where Det. Lindsay admitted telling Ms McNamara that he did not believe what she had said, his attempt when giving evidence to draw a distinction between telling Ms McNamara that her account was untrue, and “raising (his) concerns with her version,” is somewhat illusory. Further, and whilst it is not a matter which is central to the determination of Ms McNamara’s objection, I should state that in my view it was no part of the role of Det. Lindsay to take it upon himself to impose upon Ms McNamara his view about whether or not she was being truthful. It is not the role of an investigating police officer to be the arbiter of the truth or otherwise of what is being said by someone who is making a statement. This is particularly so where the investigating officer’s challenge is based (as it was in this case) upon little more than his opinion, and in the complete absence of any objective evidence to the contrary of the account which is being given.

Det. Jouni gave evidence which was generally consistent with that of Det. Lindsay (commencing at T112 L13):

Like Det. Lindsay, Det. Jouni also told Ms McNamara that he did not think that she was telling the truth (T113 L14). He saw it as his job “to get a true and accurate version off her” (T114 L1). My observations in [20] above as to the role of an investigating officer apply equally to Det. Jouni.

Ms McNamara gave evidence (commencing at T43 L40) that after being taken back to the police station she commenced to give an account of what she had seen in the lounge room of her premises on 20 May 2014. She said (commencing at T50 L45):

Det. Jouni (at T114 L16-24) denied saying the words attributed to him by Ms McNamara in this part of her evidence. Det. Lindsay also denied (at T100 L33-36) that such words were said by anyone in the course of speaking with Ms McNamara. It is not necessary, for the purposes of determining the present objection, to resolve that conflict in the evidence.

It will also be noted that Ms McNamara’s evidence (in the extract in [23] above) was that she had said to the police “sometimes things happen and it changes the way you think”. The evidence of Det. Lindsay (at para. 14 of Ex. 3 set out in [16] above; T93 L33-35) was that Ms McNamara had in fact said “When people put things in your head you see things that didn’t really happen”. The evidence of Det. Jouni (at T111 L1-5) was to the same effect. It is similarly not necessary, for the purposes of determining the present objection, to resolve that conflict in the evidence.

Left at that point, Ms McNamara’s evidence was that she had told police that she thought it was a gun that she had seen in the pocket of the accused Rogerson. However she gave the following further evidence (commencing at T51 L36):

Against the background I have set out, the first statement of Ms McNamara (Ex. 1) was made on 17 June 2014. The essence of that statement for present purposes commences at paragraph (15):

Some of the content of these passages is generally consistent with what Ms McNamara had initially said to the police as summarised by Det. Lindsay (at [14] above). The principal difference is that Ms McNamara’s first statement makes no reference to seeing any dark object protruding from the pocket of shorts worn by the accused Rogerson when he was at her premises on 20 May. The statement also contains no reference to such object being a gun, an assertion which Ms McNamara initially made to the police which she now says was untrue.

In her evidence before me, and leaving aside the assertion that she had seen a gun, Ms McNamara reverted, in part, to the account she initially gave the police. She said (inter alia) that when the accused Rogerson was at her premises on 20 May 2014 she observed what she described as a “lump” in his pocket (commencing at T45 L29):

She was then asked (at T51 L44):

Ms McNamara also said (commencing at T58 L33):

She then said (commencing at T79 L29):

In the course of being cross-examined by counsel for the accused Rogerson (commencing at T78 L25) Ms McNamara confirmed that she had told police that the accused was wearing shorts at the time she made her observations. Ex. 8 is a photograph of the two accused taken at 5:26pm on the afternoon of 20 May 2014, a short time prior to Ms McNamara making the observations about which she gave evidence. That photograph depicts the accused Rogerson wearing long trousers and not shorts. Ms McNamara conceded that she could be mistaken about what he was wearing at the time that she made her observations.

Leaving aside the absence of any express reference to a gun, the passages of Ms McNamara’s evidence at [29]-[32] above are, in some respects, not inconsistent with what she originally told the police (according to the summary prepared by Det. Lindsay at [14]) above). Det. Lindsay did not accept the truthfulness of what Ms McNamara said in those respects. The Crown Prosecutor takes a different view. If Ms McNamara were to give evidence at the trial, the Crown would seek to lead from her (inter alia) the essence of what appears in [29]-[32] above. It is not entirely clear whether the Crown will ask the jury to infer that the “lump” identified by Ms McNamara was a gun or whether the Crown will seek leave under s. 38 of the Act to cross-examine Ms McNamara about her statement to the police that she in fact saw a gun.

On 25 December 2014 a report (Ex. 8) was prepared by police following information being provided to them by Ms McNamara’s sister, Lucy. That report is in (inter alia) the following terms:

On 29 December 2014 Ms McNamara made a second statement to the police (Ex. 2). Commencing at paragraph (5) the statement reads as follows:

Photographs were attached to Ex. 2 depicting the scene described in para. 15.

In respect of paras. (7) and following of Ex. 2, Ms McNamara gave evidence (commencing at T40 L45) that she knew that Mr Kenny was coming to see her because “he called to say that we needed to talk and he would come to the apartment”. She went on to explain that she had met Mr Kenny the day before for breakfast and that when he had arrived on the following day he said that “he needed to talk about the case” (T41 L30-31). When asked how the meeting with Mr Kenny had come about, Ms McNamara responded (commencing at T41 L34):

She then gave the following evidence (commencing at T42 L6):

Mr Kenny, who as I have noted is the solicitor for the accused Rogerson, gave evidence before me. Prior to Mr Kenny being called, Mr James QC appeared before the Court and indicated that he had been retained to advise Mr Kenny. Mr James foreshadowed that in the event that Mr Kenny were to give evidence, it was likely that he would seek to invoke the provisions of s. 128 of the Act.

Mr Kenny gave evidence (commencing at T137 L13) that he had met with Ms McNamara on two occasions. The first was at breakfast at a café in Cronulla and the second was on the following day at Ms McNamara’s apartment. In answer to questions put to him by the Crown Prosecutor Mr Kenny said the following (commencing at T138 L1):

Mr Kenny was then asked the following question by the Crown (T139 L40):

At that point, Mr James QC raised the provisions of s. 128 of the Act and, on behalf of Mr Kenny, objected to the Crown’s question being answered. I then asked Mr Kenny (at T140 L10):

I subsequently indicated to Mr Kenny (at T141 L3) that I would issue a certificate under s. 128 of the Act, at which point the evidence then continued (commencing at T142 L1):

Mr Kenny was then cross-examined by Mr Boulten SC (commencing at T143 L41):

Mr Kenny was then asked about his second visit to Ms McNamara (commencing at T145 L19):

Ms McNamara said in her second statement (para. 7 of Ex. 2) that she had fears as a consequence of what Mr Kenny had said to her. In oral evidence before me she said the following (commencing at T39 L36):

She was then asked (at T40 L42):

Ms McNamara (at T55 L8-10) described her relationship with her father as a “really really close” one. In respect of the tension to which she had referred in that passage of her evidence set out at [47] above, Ms McNamara said (commencing at T55 L22):

Section 18 of the Act is in the following terms:

Senior counsel submitted that I should conclude that Ms McNamara was, generally speaking, an honest witness when giving evidence. It was submitted that although Ms McNamara admitted that she had not been truthful in telling the police that she had seen a gun in the pocket of the accused Rogerson on 20 May 2014, this had occurred at a confusing and frightening time for her and that this explained why she had acted as she did.

Senior counsel submitted that to the extent that there was a divergence between the evidence of Ms McNamara and Mr Kenny regarding what was said by Mr Kenny when he visited her, I should accept the account given by Ms McNamara. It was further submitted that even on Mr Kenny’s account of events, things had been said by him to Ms McNamara which gave her every reason to believe that in the event that she were to give evidence, she was vulnerable to harm at the hands of some criminal element associated with the accused Rogerson. This, it was submitted, had caused Ms McNamara considerable anxiety and concern. It was submitted that on the basis of such evidence I should conclude that there was a likelihood of harm, in the nature of emotional harm, to Ms McNamara if she was required to give evidence. Senior counsel also pointed to the evidence given by Ms McNamara as to the likely harm to her relationship with her father if she were required to give evidence. In each respect it was submitted that the term “harm” as it appears in s. 18(6)(a) and (b) should be given a broad interpretation, so as to include psychological and/or emotional, as well as physical, harm.

In terms of the factors set out in s. 18(7), senior counsel accepted that the nature and gravity of the offence with which the two accused are charged was a factor which weighed in favour of the objection being refused. Senior counsel also accepted, as I understood it, that the evidence which Ms McNamara could give was not otherwise available and that this was similarly a factor which assisted the Crown.

However, senior counsel submitted that in light of the Crown case as a whole, any evidence which Ms McNamara was able to give was of extremely limited significance. He also relied on the evidence of the nature of the relationship between Ms McNamara and her father. Senior counsel submitted that when these various matters were balanced the end result weighed in favour of the objection being upheld.

The Crown correctly identified that my determination of Ms McNamara’s objection necessarily involved a balancing exercise between the likelihood of the harm contemplated by s. 18(6)(a) and (b), and the desirability of the evidence being given. The Crown also correctly submitted that such exercise mandated that I take into account the factors listed in s. 18(7).

In terms of the harm which it was said would be caused to the relationship between Ms McNamara and her father if she were required to give evidence, the Crown submitted that any evidence which Ms McNamara might give would be more prejudicial to the accused Rogerson than to her father. The Crown submitted that in these circumstances I should conclude that the evidence of Ms McNamara as to the likelihood of harm to her relationship with her father was “potentially exaggerated”. However, in terms of the likelihood of any harm which might eventuate as a consequence of anything said by Mr Kenny, the Crown joined in the submission made by Mr Boulten that where there was any divergence between the evidence of Ms McNamara and Mr Kenny, the account of Ms McNamara ought be accepted. I did not understand the Crown to argue against the proposition that, accepting such submission, Mr Kenny’s statements at least had the capacity to cause Ms McNamara to have fears for her safety.

In terms of the factors set out in s. 18(7) the Crown pointed to the gravity of the offence (s. 18(7)(a)), and the fact that there was no other evidence of Ms McNamara’s observations (s. 18(7)(c)) as matters weighing in favour of a conclusion that the objection should be rejected. As I have outlined, so much was conceded by senior counsel for Ms McNamara.

The Crown took particular issue with the submission made by senior counsel for Ms McNamara that her evidence was of limited significance. In this context the Crown submitted, correctly, that although the factors in s. 18(7) were mandatory in terms of the balancing exercise, they were not exhaustive. The Crown submitted that in performing such a balancing exercise it was also appropriate to take into account, and give significant weight to, the duty which is imposed upon a citizen who is in a position to give relevant evidence in a criminal prosecution. It was submitted that the integrity of the rule of law in any society was dependent upon citizens discharging that duty. The Crown submitted that to uphold the objection made by Ms McNamara would result in the erosion of such principles, and that once it was accepted that her evidence was important, and that significant weight could (and would) be attached to it by a jury, upholding the objection would tend to breach the integrity of the system of justice.

The Crown appeared to accept that the fact that Ms McNamara had admitted to telling an untruth to police may bear upon the weight of any evidence she might give. However the Crown submitted that to the extent that this might be so, her admitted untruth should be viewed as being “as a less serious falsehood than an outright lie”. It was submitted that one of the most important factors in this respect was that I had had the opportunity to observe Ms McNamara as a witness. The Crown took no issue with the submission made by senior counsel for Ms McNamara that I would find her generally reliable and honest. It was submitted that having had the advantage of observing her, I should conclude that the evidence sought to be adduced from her was reliable, credible and accurate, and that a jury would be likely to accept it and place significant weight upon it.

Ms McNamara initially told police that she thought what she had seen in Rogerson’s pocket was a gun. She admitted in evidence before me that she later told police that what she saw was a gun. On Ms McNamara’s own admission, the latter statement was false. That obviously has the capacity to reflect adversely upon her credit generally, although the extent to which it may do so must necessarily be assessed in light of the circumstances which prevailed at the time that the false statement was made.

Ms McNamara’s father, with whom she obviously has a close relationship, had been arrested and charged with murder only a matter of weeks before she spoke with the police. Ms McNamara was being asked by police to provide a statement for use in the proceedings brought against her father. It was (and it continues to be) a particularly stressful time for her, a fact which was confirmed (if any confirmation were needed) by her sometimes distraught demeanor when giving evidence before me.

None of those factors excuse her conduct in telling an untruth. However, they may go some way to explaining why she did so. Generally speaking, having observed her carefully, I found Ms McNamara to be a person who was trying to be honest and truthful when giving evidence before me. For the reasons developed more fully below, I have no hesitation in accepting her account of the statements made to her by Mr Kenny.

I am satisfied that Ms McNamara has enjoyed, and continues to enjoy, a close relationship with her father. Her unchallenged evidence before me is that if she were required to give evidence at the trial, her relationship with her father would be significantly damaged, perhaps to the point of being fractured. I am satisfied that is the case.

I am unable to accept the Crown’s submission that Ms McNamara’s evidence in this regard was exaggerated. No such suggestion was ever put to her when she gave evidence. Moreover, given the way in which the Crown puts its case, and in light of the fact that Ms McNamara’s observations of the accused Rogerson on 20 May 2014 were made in the presence of her father, I am unable to accept the Crown’s position that the prejudicial effect of Ms McNamara’s evidence upon the accused Rogerson is likely to be substantially greater than upon the accused McNamara. In any event, I think it is highly unlikely that Ms McNamara would draw such a fine distinction. From her point of view, the more fundamental consideration is that her relationship with her father is likely to be significantly damaged if she is required to give evidence at the trial.

Ms McNamara has expressed fears for her personal safety. Those fears stem, at least in part, from statements she has attributed to Mr Kenny. As I have previously noted, both the Crown and Mr Boulten SC submitted that where there was conflict in the evidence between Ms McNamara on the one hand and Mr Kenny on the other, I should accept the account of Ms McNamara. For the reasons that follow, I accept that submission.

I observed Mr Kenny closely when he gave evidence, and I listened carefully to what he said. Generally speaking I found him to be a most unsatisfactory witness. Some of his answers to questions put to him were vague, evasive and imprecise. I am satisfied that some of the evidence that he gave was untruthful.

At the time that Mr Kenny spoke with Ms McNamara he was the solicitor for the accused Rogerson. I accept that Mr Kenny also knew the accused McNamara (other than in the context of this case). Whilst I am satisfied that Mr Kenny did wish to speak to Ms McNamara about matters pertaining to her personal security, I do not accept his evidence that this came about as the result of a request made by the accused McNamara.

The effect of Mr Kenny’s evidence was that the accused McNamara had expressed concerns about his daughter’s safety and that he wanted to somehow address those concerns by having Mr Kenny visit her. I do not accept that account. In my view, it defies common sense. Precisely how Mr Kenny, the solicitor for the co-accused, was possibly in any position to address the issue of Ms McNamara’s safety was not explained. Moreover, Mr Kenny’s account that he came to visit Ms McNamara at the request of her father does not sit comfortably with his evidence that he was “not really sure” of the purpose of the first of his two meetings with her.

I accept Ms McNamara’s evidence that Mr Kenny had expressed a desire to speak with her “about the case”. I am satisfied that such desire had nothing to do with security concerns expressed by Ms McNamara’s father. I am also satisfied that Mr Kenny’s visit had not come about as the result of any request by the accused McNamara. However for the reasons that follow I am satisfied that Mr Kenny’s desire to speak with Ms McNamara, and his attendance upon her on two separate occasions, had everything to do with making threats to her which were designed to, and did, instill in her a fear about her personal security and safety, and an associated fear of giving evidence.

It will be apparent from some of the extracts of his evidence set out above that Mr Kenny accepted that he had said at least some of the things that Ms McNamara attributed to him. Perhaps most importantly Mr Kenny conceded that he said words to the effect “It is Roger you need to be afraid of” along with “things will become complicated if there is going to be a trial”. He also conceded the possibility that there may have been a reference to “triads breaking into the place” in that context.

Bearing in mind these concessions, the account of Mr Kenny in this respect is not substantially different from the account of Ms McNamara. In light of the findings that I have reached regarding the catalyst for Mr Kenny’s visit to Ms McNamara, and in light of Mr Kenny’s concessions, I am satisfied that words Ms McNamara attributed to Mr Kenny were said by him. I am also satisfied that those things were said by Mr Kenny with the intention of instilling some fear into Ms McNamara about giving evidence. His statements are not, in my view, capable of explanation on any other rational basis. The seriousness of Mr Kenny’s conduct in this regard is exacerbated by the fact that, again on his own admission, the reference to “Roger” being a person to be feared was said in the context of possible complications in the forthcoming trial arising from the conduct, by the accused, of their respective cases.

Ms McNamara gave evidence that at the first of the two meetings Mr Kenny described her father as “stupid” and a “child playing with big boys”. Mr Kenny himself conceded that in referring to the accused McNamara he had said words to the effect of “he thinks he’s a big timer but he’s not in the big time”. Once again, the respective accounts are not substantially different. I accept Ms McNamara’s account. The only available conclusion is that when referring to “the big boys” Mr Kenny was referring to the accused Rogerson. Bearing in mind Mr Kenny’s (admitted) reference to the accused Rogerson being a person Ms McNamara should fear, and the associated reference to a complicated trial, I am satisfied that Mr Kenny was trying to intimidate Ms McNamara by conveying the fact that she should fear reprisals from the accused Rogerson if she gave evidence. In all of the circumstances, no other conclusion is reasonably open.

Having conceded that he said to Ms McNamara words to the effect “It is Roger that you need to be afraid of” Mr Kenny asserted that there was “more to the conversation”. When asked whether he had ever suggested to Ms McNamara that she should be afraid of physical repercussions at the hands of the accused Rogerson, Mr Kenny’s somewhat evasive and equivocal responses were “Not in those terms” and “Not in those words”. When pressed to tell the Court what in fact was said, Mr Kenny professed an inability to do so, and asserted (inter alia) that he “could not remember the exact words”. There is a degree of incongruity in affirmatively asserting, on the one hand, that other things were said and then being unable to say what those things were when given the opportunity to do so. Mr Kenny’s asserted inability to recall was an answer of convenience. His evidence in this regard was most unsatisfactory. It fortifies my view that he was an unreliable, and sometimes untruthful witness.

What is also of considerable concern is the fact that in the context of the statements which I have found were made by Mr Kenny, he admitted having made reference to the person Mick Drury. Although there is no specific evidence before me, it is a matter of public record that some years ago Mr Drury was shot at his home. The accused Rogerson was charged with conspiring to murder Mr Drury but was later acquitted of that charge by a jury. When asked in cross-examination why he talked about Mr Drury, Mr Kenny said (inter alia) that the subject “just came up in conversation”. In my view, the subject of Mr Drury could only have “come up in conversation” if Mr Kenny had himself introduced it. There would have been no reason for Ms McNamara to have done so.

Mr Kenny said that he simply told Ms McNamara of the circumstances in which the accused Rogerson had engaged him as his lawyer many years ago and the fact that he (Mr Kenny) had been a friend of Mr Drury. However there was no legitimate reason for Mr Kenny to make any reference to Mr Drury at all. In my view, Mr Kenny’s admitted reference to Mr Drury is completely consistent with the threatening tenor of the other statements that I have found that he made. The general undertone of Mr Kenny’s visits to Ms McNamara, and his statements to her, was one of intimidation. I am satisfied that in making reference to Mr Drury, Mr Kenny intended to further convey to Ms McNamara that the accused Rogerson was a person to be feared. Such a conclusion is completely consistent with Mr Kenny’s concession that he had said words to the latter effect to Ms McNamara.

As a consequence of what Mr Kenny said to her, Ms McNamara has expressed concerns for her safety. Those concerns have been heightened as a consequence of her discovering a disturbance at her premises in December 2014. I am satisfied that as a consequence of these matters, Ms McNamara has suffered, and continues to suffer, psychological harm in the form of stress and anxiety about her safety. For the reasons already expressed I am satisfied that her fears in that regard are well founded.

I have set out (at [50] above) the provisions of s. 18 of the Act. Section 18(6) is expressed in mandatory terms. In the event that I am satisfied that if Ms McNamara gives evidence there is a likelihood that harm would, or might be, caused directly or indirectly:

The provisions of s. 18(6)(a) are couched in terms of there being a “likelihood” of harm. The Oxford English Dictionary defines the term “likelihood” as:

That definition is generally consistent with the observations of Deane J in Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 where his Honour said (at 380):

However, the likelihood of harm being caused is qualified by the use of the alternative “might” in s. 18(6)(a). The word “might” connotes a possibility, as distinct from a probability or a certainty. It follows that in order for the section to be engaged I am not required to find that harm is certain.

The word “harm” is not defined in the Act, nor is the phrase “harm to the person”. In my view, there is no warrant for restricting the notion of “harm” to the likelihood of physical harm. In the context of being called to give evidence, the likelihood of psychological harm can be equally serious. This is particularly so in the context of the possible disruption to, or break down of, a marital or domestic relationship.

Section 18(6) contemplates a likelihood of two separate kinds of harm. The first is the likelihood of harm to the person. For the reasons previously set out, and although Mr Kenny did not expressly threaten Ms McNamara with reprisals if she gave evidence, that is how she interpreted his statements. That interpretation is completely understandable. For the reasons I have given, it is the only reasonable interpretation which is open on the evidence. Ms McNamara has expressed her fears stemming from Mr Kenny’s statements. Having heard and observed Ms McNamara give evidence before me, I am satisfied that her fears are genuinely held. As a consequence of those fears, Ms McNamara has concerns about giving evidence.

Needless to say, simply because a person may develop fears for his or her own safety does not, of itself, mean that there is a likelihood that physical harm would or might eventuate. A person’s fears, even though genuinely held, may be unfounded. However in the present case, the fears of Ms McNamara have an identified evidentiary basis in the statements made by Mr Kenny, as well as the disturbance at her home.

Moreover, as I have noted, there is no warrant for restricting the term “harm” in s. 18 as referring only to physical harm. I am satisfied that Ms McNamara has already suffered emotional harm as a consequence of prospect of giving evidence. In my observation of her, it would not be an exaggeration to say that she is traumatised by the prospect of having to do so. In light of the concerns about giving evidence which Ms McNamara expressed before me, I am satisfied that such emotional harm would continue, and would in fact become worse, if she were required to give evidence.

The second type of harm contemplated by s. 18 is harm to the relationship between Ms McNamara and her father. It has been observed that if a spouse is required to give evidence in proceedings brought against her partner, there is a potential for harm to be caused to the relationship even if no particular harm can be readily identified: R v Flentjar (No. 2) [2008] NSWSC 648 at [4]. In my view, the position is no different when the witness in question is the daughter, as opposed to the spouse, of the person against whom proceedings have been brought. I have already set out the evidence given by Ms McNamara, which I accept, as to the likely harm which would be caused to her relationship with her father if she were to give evidence. Prior to the events leading up to his arrest, Ms McNamara enjoyed a close relationship with her father. I accept her evidence that there is a likelihood that such relationship would be fractured if she were to be required to give evidence at the trial. It follows that I am satisfied that there is a likelihood that harm would or might be caused to the relationship between Ms McNamara and her father if she were required to give evidence.

I am satisfied that the nature and extent of the identified harm in each case is significant. The harm to Ms McNamara herself stems from (inter alia) the threatening statements made by Mr Kenny and the later disturbance at her premises. Those matters are not speculative. They are real. Having observed Ms McNamara give evidence, I am satisfied that they have already been productive of significant emotional trauma which would be increased if she were to give evidence. For the reasons given, the nature of the harm which is likely to be occasioned to Ms McNamara’s relationship with her father is considerable.

Having reached those conclusions I am required to consider whether the nature and extent of the likely harm that I have identified outweighs the desirability of having the evidence given. That, as I have previously noted, involves a balancing exercise which mandates consideration of the factors set out in s. 18(7).

In terms of s. 18(7)(a), the nature and gravity of the offences faced by each accused will be self-evident. That circumstance favours the Crown.

Paragraphs (17)-(44) of the Crown Case Statement set out what is alleged to have occurred between the two accused on 20 May 2014, that being the day on which Ms McNamara made her observations. The evidence which the Crown will lead concerning the events of that day (other than that of Ms McNamara) includes the following:

Against this background, the deceased’s body was recovered on 26 May floating approximately 2.5 kms off the shore of Shelly Beach, Cronulla. His body was within a silver surf board cover.

The inferences the Crown will ask the jury to draw from the evidence in [89]-[90] above will be obvious. In my view, in these circumstances, any evidence from Ms McNamara that she saw a “lump” in the pocket of the accused Rogerson adds little to the Crown case. The Crown may ask the jury to infer that the lump was a gun. The somewhat general description of the “lump” given by Ms McNamara in evidence before me is such that there may be other inferences available. Moreover, Ms McNamara told the police that Rogerson was wearing shorts at the time. There is evidence which suggests that Ms McNamara’s recollection in this regard is not accurate. Ms McNamara accepted that she could be mistaken in this respect. All of those factors have the capacity to bear adversely upon the weight of any evidence she might give.

Further, if the Crown were to seek to elicit the fact that Ms McNamara originally told the police that she saw a gun in the pocket of the accused Rogerson, it would be necessary to seek leave to cross examine her under s. 38 of the Act. That would obviously necessitate Ms McNamara conceding that she told the police an untruth. That at least has the capability of affecting the weight which might be attached to the evidence by a jury.

The evidence of Ms McNamara may not be unimportant. However for the reasons expressed, and on the assumption that the Crown is in a position to establish those matters in [89]-[90] above, it is my view that her evidence assumes limited significance when the Crown case is viewed overall.

As to s. 18(7)(c) there is no suggestion that any other evidence of Ms McNamara’s observations is reasonably available to the Crown from any other source. Whilst that is a factor which favours the position of the Crown, it is one which is tempered by the fact that the evidence is of limited significance in any event.

As to s. 18(7)(d), I have already set out my findings as to the nature of the relationship between Ms McNamara and her father. That is a factor which favours the position of Ms McNamara.

It is not suggested that s. 18(7)(e) has any application to the present case.

The Crown correctly submitted that although I must take into account each of the factors in s. 18(7), I am not limited to those factors in conducting the necessary balancing exercise. In this regard the Crown placed significant emphasis upon the rule of law, and the obligation placed upon members of the community who are in a position to give evidence in criminal proceedings. That is obviously a relevant factor to take into account. However, the balancing exercise I have to perform is just that – a balance. The obligation to which the Crown referred is not determinative of the issue. It must also be considered by reference to the substance of the evidence which, for the reasons I have already given, is limited.

There are a number of sound policy considerations which underpin s. 18: Flentjar (supra) at [4]. Those policy considerations were explained by the Australian Law Reform Commission (in ARLC 80) as being:

Taking into account all the factors to which I have referred, and for the reasons I have expressed, I am satisfied that the balance in the present case favours the objection being upheld. I am satisfied that there is a likelihood that harm would be caused to Ms McNamara, and to the relationship between her and her father, if she were to give evidence. I am further satisfied, having performed the balancing exercise required by s. 18(7) that the nature and extent of that harm outweighs the desirability of having the evidence given.

In view of the conclusions that I have reached regarding the actions of Mr Kenny and the statements made by him, a copy of this judgment will, when the suppression order in [101](3) below is vacated at the conclusion of the trial, be forwarded to the Professional Standards Division of the Law Society of NSW for such consideration and action as may be thought appropriate in the circumstances.

I make the following orders: