HEADNOTE

[This headnote is not part of the Court’s reasons for judgment]

Roger Rogerson and Glen McNamara were charged with the murder of Jamie Gao at Padstow on 20 May 2014 and supplying a large commercial quantity of methylamphetamine at Sydney between 20 and 24 May 2014. In 2016 they were convicted by a jury of both offences following a lengthy trial before Bellew J. They were each sentenced to imprisonment for life for the murder and to 12 years of imprisonment for the drug supply offence.

The Crown case was circumstantial. It alleged that both accused were part of a joint criminal enterprise to steal drugs from the deceased and kill him. According to the plan, McNamara lured the deceased to a rented self-storage unit with the drugs and then Rogerson attended as the supposed purchaser. The deceased was shot and killed by one of them in the storage unit and then both accused cooperated to dispose of the body at sea. The body surfaced and was found on 26 May 2014.

The Crown relied on 29 circumstances to prove its case. These circumstances included: (a) preparatory conduct by the two accused prior to the murder, (b) CCTV footage from outside the storage unit around the time the murder took place, and (c) post-offence conduct by the two accused designed to conceal the offences and their involvement. The Crown also argued that the case for each accused lacked any credibility because they were inherently unlikely and were inconsistent with the other evidence.

Both accused ran cut-throat defences, each arguing that the other had organised to meet the deceased at the storage unit and that it was the other who shot the deceased. Both denied the existence of a joint criminal enterprise to kill the deceased.

Held, dismissing the appeals by both Rogerson and McNamara (per the Court)

Rogerson Ground 1: The learned trial judge erred in failing to consider, and failing to allow, cross-examination of Mr McNamara upon the contents of the NSW Crime Commission Information Report: R v Rogerson & McNamara (No 32) [2016] NSWSC 200.

(i) On 4 June 2014, McNamara attended the NSW Crime Commission and gave a detailed version of events surrounding the death of Jamie Gao. An Information Report was prepared by an officer of the Commission who was present at the meeting. The report summarised what McNamara said. The trial judge made a ruling under s 192A of the Evidence Act 1995 (NSW) that all forms of questioning about or using the contents of the Information Report were precluded. That ruling was erroneous: [377], [381]-[383].

While McNamara could not be questioned “about” the Information Report because it was merely a summary of what he had said, there remained two available avenues for Rogerson’s counsel to use the contents of the report to question McNamara in a way which did not expressly or impliedly refer to the existence of the Report. First, it could be used in accordance with s 44(3) of the Evidence Act 1995 (NSW). Second, with leave under s 104(6) of that Act, counsel for Rogerson could have questioned McNamara about his oral statements to the Commission as prior inconsistent statements under s 43. If McNamara denied the statements, counsel for Rogerson could then have rebutted the denial by adducing oral evidence from other persons present at the meeting under s 106: [339], [344], [359]-[340], [363]-[368].

Rahme v R [2001] NSWCCA 414 distinguished.

(ii) The trial judge’s erroneous ruling invoked the second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) because it was both a wrong decision of a question of law and a miscarriage of justice: [384]-[388].

(iii) Rogerson’s guilt was proved beyond reasonable doubt notwithstanding the limitations of appellate review of a criminal trial. Therefore, the erroneous ruling did not cause a substantial miscarriage of justice and the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied to dismiss the appeal. The error did not prevent the Court from assessing the proviso because it had the advantage of the jury’s comprehensive rejection of the credibility of both Rogerson and McNamara which was unaffected by the error. Ground 1 was dismissed: [321]-[327], [402]-[405], [411]-[412].

Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46; R v Beattie (1996) 40 NSWLR 155; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 referred to.

Rogerson Ground 3: The verdicts are unreasonable and cannot be supported having regard to the evidence.

(i) It was well open to the jury to be satisfied beyond reasonable doubt of Rogerson’s guilt of both counts: [306].

The Crown’s circumstantial case established with considerable force that there was a joint criminal enterprise between Rogerson and McNamara to steal drugs from Jamie Gao and kill him. The case for Rogerson was substantially damaged by his lack of credibility: [303]-[305].

Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 applied.

Rogerson Ground 5: There has been a miscarriage of justice by reason of the absence at trial of evidence of Annabelle Ballard and [Witness A].

(i) Witness A’s evidence, given before this Court, about having given a gun to McNamara before the murder of Jamie Gao was fresh because Witness A did not come forward until after Rogerson was sentenced: [459].

MRW v R [2011] NSWCCA 260 referred to.

(ii) A reasonable jury would not have accepted the fresh evidence from Witness A. His evidence was not “apparently credible” because of his record of dishonesty, his longstanding association with Rogerson, the inherent improbability of his evidence and its inconsistency with other evidence. This ground was dismissed: [435]-[437], [469]-[471], [473].

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 referred to.

McNamara Ground 1: The trial judge erred in excluding evidence of conversations between the applicant and his co-accused in which the co-accused admitted having participated in several homicides and other criminal violence.

(i) The trial judge was correct to apply s 135(a) of the Evidence Act 1995 (NSW) to exclude evidence, sought to be adduced by McNamara, to the effect that Rogerson had told McNamara on two separate occasions that he had participated in several homicides in the past. The evidence had limited probative value in proving that the reason McNamara helped cover up the murder was that he was under duress by Rogerson. This was because there was other evidence in the trial which provided much greater support to McNamara’s duress argument. The limited probative value of the evidence was substantially outweighed by the highly prejudicial nature of the evidence to Rogerson in the context of a joint murder trial: [549], [552], [554]-[558].

(ii) The trial judge had power to exclude the evidence under s 135(a) of the Evidence Act 1995 (NSW) because a co-accused is a “party” to a criminal proceeding against an accused. This conclusion is supported by a number of factors, including that: (a) s 29(2) of the Criminal Procedure Act 1986 (NSW) expressly permits joint trials; (b) it is consistent with other provisions in the Evidence Act 1995 (NSW); (c) the word “party” is apt to describe a co-accused in a criminal trial; and (d) a similar position existed at common law: [514]-[523], [540].

R v Carranceja (1989) 42 A Crim R 402; R v Gibb and McKenzie [1983] 2 VR 155; Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12; R v Darrington and McGauley [1980] VR 353; R v Qaumi (No 24) [2016] NSWSC 505 considered.

Court not bound to follow R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248.

(iii) Section 135(a) involves an evaluative judgment, rather than the exercise of a judicial discretion. Therefore, the appropriate standard of review of the trial judge’s decision to exclude the evidence under s 135(a) is the “correctness” standard, not the standard set out in House v The King (1936) 55 CLR 499; [1936] HCA 40. The appellate court is to decide for itself whether the evidence should have been excluded, subject to “natural limitations” that exist when such an exercise is undertaken: [544], [547]-[548].

R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40; Taylor v R [2020] NSWCCA 355; Director of Public Prosecutions (NSW) v RDT  [2018] NSWCCA 293; Sidaros v The Queen (2019) 15 ACTLR 64; [2020] ACTCA 11 applied.

R v BWM (1997) 91 A Crim R 260; R v Glossop [2001] NSWCCA 165; R v Taylor [2003] NSWCCA 194; Australian Securities and Investments Commission v Rich (2005) 54 ACSR 326; [2005] NSWCA 152; Vickers v The Queen (2006) 160 A Crim R 195; [2006] NSWCCA 60; Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21; R v SJRC [2007] NSWCCA 142; Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56; James Hardie Industries NV  v Australian Securities and Investments Commission [2009] NSWCA 18 on this point no longer good law.

McNamara Ground 2: The trial judge erred in failing to discharge the jury when inadmissible evidence was given by a prosecution witness, Steven Farley.

(i) The trial judge was correct to refuse the application to discharge the jury because of inadmissible evidence from Mr Steven Farley that he knew McNamara from the past as a detective and “drug dealer” in Kings Cross. The effect of the evidence on the jury would have been minimal because: (a) there was already evidence of McNamara’s bad character; (b) the two accused were running cut-throat defences and it was clear that the comment was deliberately planned to assist Rogerson; (c) the trial judge gave a carefully crafted direction; and (d) there was an agreed fact which made clear that the evidence was not correct: [573], [587]-[592], [599].

Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 applied.

McNamara Ground 3: That in all the circumstances the sentence imposed upon the applicant for murder was manifestly excessive.

McNamara Ground 4: That the sentencing Judge erred in the application of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

(i) An offender’s culpability under s 61(1) is to be assessed by reference to the “circumstances surrounding or causally connected to the offence”. Such circumstances include the objective seriousness of the offence, the motive, the offender’s background, criminal history and any mental disease, disorder or incapacity. When applying s 61(1) it is unhelpful to distinguish between the objective gravity of the offence and the subjective circumstances of the offender. The sentencing judge correctly considered all of the factors relevant to s 61. There was no error: [623]-[624], [634]-[635], [636].

R v Garforth (unreported, CCA, 23 May 1994); R v Harris (2000) 111 A Crim R 415; [2000] NSWSC 285; R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469; Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292; CC v R; R v CC [2021] NSWCCA 71 considered.

A two-stage approach to s 61(1) is appropriate. The two-stage approach is of a different kind to that rejected in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 in favour of the “instinctive synthesis” approach. The first stage is to assess whether the offence warrants a life sentence because of the circumstances surrounding or causally connected to the offence. The second stage is to assess whether a lesser sentence is warranted because of other matters such as remorse, confessions, pleas of guilty and prospects of rehabilitation: [628]-[629], [636].

Dean v R [2015] NSWCCA 307; Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 considered

Approach to Crimes (Sentencing Procedure) Act 1999, s 61(1) in R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 rejected.

(ii) The categories of murder warranting a life sentence are not closed. It was open to the sentencing judge to determine that a life sentence should be imposed in this case because the killing was a premeditated and cold-blooded execution: [645].

McNamara Ground 5: That the sentencing judge erred by finding that the intention to kill the deceased or to inflict grievous bodily harm as part of a joint criminal enterprise did not crystallise in storage unit 803.

(i) The sentencing judge was correct to find that the joint criminal enterprise to kill the deceased was formed well before 20 May 2014: [610], [612].

TABLE OF CONTENTS

1	Introduction
7	Overview of the Crown case
13	The defence cases
14	The case for McNamara
17	The case for Rogerson
19	Rogerson’s appeal
22	Rogerson Ground 3: The verdicts are unreasonable and cannot be supported
23	The Crown case in detail
197	Principles
201	Submissions and consideration
302	Conclusion
308	Rogerson Ground 1: Refusal to allow cross-examination of McNamara on the contents of a Crime Commission report
311	The Information Report
328	Applications to the trial judge
351	Evidence Act provisions
369	Rahme v R [2001] NSWCCA 414
374	Erroneous ruling
389	Proviso in s 6(1) of the Criminal Appeal Act
415	Rogerson Ground 5: Fresh evidence concerning the source of the gun
418	The evidence
458	Fresh evidence principles
463	Consideration
474	Rogerson Ground 4: Sentence is Manifestly Excessive
475	Orders in respect of Rogerson appeal
477	McNamara’s appeal
478	McNamara Ground 1: Erroneous exclusion of conversations with Rogerson about his participation in several homicides and other criminal violence
498	The proper construction of s 135: was Rogerson a “party” for the purposes of s 135?
542	Appropriate standard of review
549	Was the evidence properly excluded?
563	McNamara Ground 2: Failure to discharge jury when inadmissible evidence was given by Steven Farley
564	The evidence
568	Applications to discharge the jury
572	Refusal of the applications
576	Direction to the jury
578	Agreed fact
580	Submissions
585	Consideration
601	McNamara’s application for leave to appeal against sentence
607	McNamara Ground 5: Error in finding a murderous intention did not crystallise in storage unit 803
614	McNamara Grounds 3 and 4: Section 61(1) and manifestly excessive sentence
616	Section 61 of the Sentencing Procedure Act
638	Balance of Ground 4: The sentencing judge’s approach
643	Manifest excess
647	Orders in respect of McNamara appeal

Judgment

1. THE COURT: Roger Caleb Rogerson and Glen Patrick McNamara were found guilty by a jury after a lengthy trial in 2016 before Bellew J and a jury of the following crimes:

Murder of Jamie Gao at Padstow on 20 May 2014.

Supply of a large commercial quantity (2.78 kg) of a prohibited drug (methylamphetamine) at Sydney between 20 and 24 May 2014.

2. On 2 September 2016, Bellew J sentenced each offender to imprisonment for life for the murder and for 12 years for the drug supply offence.

3. Rogerson seeks to appeal in respect of his convictions. If he is successful in respect of the murder conviction but not the drug supply conviction he also seeks to appeal against the sentence for the latter.

4. McNamara seeks to appeal in respect of his convictions and sentences for both offences.

5. Leave to appeal and an extension of time is required in both men’s cases. Given the gravity of the offences, the terms of the sentences and that at least some of the proposed grounds of appeal are arguable, it is appropriate that the necessary extensions of time and leave to appeal be granted. In the end, however, each appeal must be dismissed.

6. In the course of this judgment there will be reference to various counsel by name. For clarity, Rogerson’s counsel at trial was Mr Thomas and on appeal it was Mr Stratton SC and Ms Avenell SC. McNamara was represented at trial initially by Ms Shead and then by Mr Wendler, and on appeal his counsel were Mr Odgers SC and Mr Wendler.

Overview of the Crown case

7. Jamie Gao died from the infliction of two gunshot wounds in a storage unit at Rent-a-Space, Padstow on the afternoon of 20 May 2014.

8. The Crown case was that Rogerson and McNamara were engaged in a joint criminal enterprise to steal a large quantity of drugs from the deceased and to kill him in order to cover their tracks. It was not essential for the Crown to establish beyond reasonable doubt whether it was Rogerson or McNamara who fired the fatal shots. Each gave evidence in which they blamed their co-accused.

9. The Crown Prosecutor put it this way in his closing address to the jury: ^[1]

“The Crown's case is that both accused are guilty of murder and the supply of a large commercial quantity of methylamphetamine. This is based on a joint criminal enterprise where both agreed to engineer and organise a pretended drug deal. This agreement was simply that it would be held out to Jamie Gao that he was supplying the ice for a massive deal, but that no money in fact would be forthcoming or paid.

Instead, the ice would be stolen or ripped off. Essential to such a plan, you might think, would be to make Jamie Gao vanish without a trace. The only way this could be achieved was by killing him and getting rid of him in a way that would mean he could never be found, like on the bottom of the sea.”

10. Important events and circumstances in establishing the existence of the alleged joint criminal enterprise included the following:

• Frequent phone contact and face-to-face meetings between McNamara and the deceased with Rogerson often in contact with McNamara by phone around the time of many of those meetings.

• Having a storage unit at Rent-a-Space at Padstow available which ultimately became the scene of the murder.

• The acquisition of a car to be used in relation to the joint enterprise; one that could not easily be traced to them.

• The availability of a boat owned by McNamara that could be used for the disposal at sea of the deceased’s body.

11. The Crown relied upon a number of post-shooting activities designed to conceal the crime and the culpability of the offenders as evincing a consciousness of guilt and further proving the joint criminal enterprise:

• Concealing the body in a surfboard cover, surreptitiously removing it from the storage unit and taking it to McNamara’s garage at his home in Cronulla where his boat and trailer had been taken the previous day.

• Wrapping the body and surfboard cover in tarpaulin and securing it with rope in McNamara’s garage.

• Hiring a chain block to enable the body to be lifted up and placed within the boat.

• Tying a heavy chain to the body before launching the boat, travelling out to the ocean and disposing of it.

• Miscellaneous activities included returning the chain block to the hiring outlet; returning the boat and trailer to storage; securing the drugs stolen from the deceased; and arranging for the disposal of the untraceable vehicle.

12. On the Crown case, the joint enterprise unravelled when the deceased’s cousin and friends became concerned that he had gone “missing”. A report was made to police. There was information suggesting the possible relevance of Rent-a-Space to what had become of the deceased. Investigations there by police provided a strong lead to the identity of the perpetrators who were soon arrested.

The defence cases

13. The defence cases were not only contrary to the Crown case but polar opposites of each other. Each sought to inculpate the other while the Crown simply sought to establish a joint criminal enterprise whereby it would not matter which of the accused actually shot and killed the deceased.

The case for McNamara

14. Bellew J summarised the case for McNamara as follows: ^[2]

“In summary, McNamara’s case was that having met the deceased in the early part of 2014, the deceased informed him that he (the deceased) was in a position to provide information about the operation of Asian crime gangs. McNamara asserted that he had formed an intention to publish a book on that subject, and that all of his subsequent association with the deceased was to further that purpose.

McNamara and Rogerson were previously known to one another. According to McNamara, he was contacted by Rogerson in about April of 2014 and asked to go and look at some furniture in a storage unit. McNamara asserted that he later discussed with Rogerson the sale of that furniture.

McNamara said that at a subsequent meeting with the deceased at the Meridian Hotel at Hurstville, the deceased had informed him that he (the deceased) had been accused of stealing $130,000.00, and that his lawyers had advised him that Rogerson could assist him. According to McNamara, the deceased informed him in about mid-May 2014 that he was concerned that members of Asian crime gangs had been following him, and that as a consequence he had become fearful that such persons had also become aware of the fact that McNamara was in the process of writing a book about them.

McNamara said that the deceased confirmed these fears with him in a meeting on 19 May 2014. He said that at this meeting, the deceased had said that he would call McNamara the following morning to let him know, in effect, that he was safe. McNamara also stated that the deceased had said on that occasion that he (the deceased) was to meet with Rogerson on the following day. On McNamara’s account, the deceased invited him to the meeting with Rogerson. McNamara maintained that he declined the invitation and advised the deceased that he too should not go.

McNamara told the jury that on the morning of 20 May 2014 he spoke with Rogerson and informed him that he was worried about the deceased, and that in his (McNamara’s) view, Rogerson should not go to any meeting. Later that day, McNamara travelled to Padstow. He said that this was in response to Rogerson telling him that he was to meet the deceased there. On McNamara’s account, Rogerson told him to wait at McDonald’s at Padstow, and that once Rogerson had finished his meeting with the deceased, he would “drop him back” to McNamara. According to McNamara, whilst waiting at that location, the deceased entered the rear of his vehicle, telling McNamara that Asian gang members had been chasing him all day, and advising him that on Rogerson’s instructions, he was to drive to the premises of Rent-a-Space which were nearby. McNamara did so, and he and the deceased entered a storage unit, with Rogerson entering a short time thereafter.

According to McNamara, when Rogerson entered the storage unit, he asked the deceased for ‘the gear’, to which the deceased replied that he wanted ‘money first’. The effect of McNamara’s account was that such conversation, which was obviously about drugs, came as a complete surprise. McNamara said that after some further words were exchanged, the deceased produced a knife, following which Rogerson produced a gun and shot the deceased twice. According to McNamara, he was hiding under a table within the storage unit when this occurred. McNamara asserted that he questioned Rogerson about why he had shot the deceased, following which Rogerson threatened him with death, and threatened the safety of members of his family. Whilst McNamara conceded that he engaged in certain conduct over the ensuing days, he denied being a party to any joint criminal enterprise and asserted that everything he did on and from the time at which the deceased was shot, was done under duress.”

15. It is worth setting out in full McNamara’s account of seeing Rogerson kill the deceased as ultimately it was the Crown case that the credibility of both men was questionable. McNamara gave the following evidence: ^[3]

“Q. How long had you been in the storage facility before, as best you can remember, before Mr Rogerson entered the facility?

A. About three minutes.

Q. When he entered, was there conversation between you and him at that point?

A. No.

Q. What happened?

A. Mr Rogerson entered the storage unit. He immediately spoke to Mr Gao.

Q. You overheard the conversation?

A. Yes.

Q. What did Gao say to Rogerson and what did Rogerson say to Gao using first person speak?

A. Rogerson said to Gao, ‘You were supposed to come to me, you fucking idiot’. Gao said to Rogerson, ‘It's better to have a witness, where is the money?’ Rogerson said to Gao, ‘Where's the gear?’ Gao said to Rogerson, ‘The two guys I came with are holding it. It will be here in half an hour, but money first’. Rogerson said, ‘Those two idiots who got out of your car? Bullshit. Give me the gear’. Gao said, ‘No, it will be half an hour, money first’. Rogerson said, ‘There's no money for you, fuckwit’. Gao said, ‘Fuck you, I'm going’. Rogerson said, ‘I want the gear’.

Q. What happened after that conversation?

A. Gao was seated in a chair that had wheels on it, on its base. He had the bag that he had brought in on his lap. Rogerson was standing in front of him, about a metre in front of him, and as Gao said, ‘fuck off’, he unzipped the bag and pulled a knife out.

Q. Stop you there. You saw Mr Gao produce a knife. Are you able to give us any more information about this knife, the description of it?

A. It was a combat style knife. It had a hilt on the handle and the blade started off thin (indicated) but thick stout—

HIS HONOUR.

Q. You are indicating a measurement there with your hands, is that the thin part of the blade?

A. That is right.

Q. How wide was the thin part of the blade approximately?

A. Approximately an inch and it flared out in a combat style to a pointed end on the blade. Simultaneously I saw Rogerson pull a gun from the right pocket of his pants and again, simultaneously, I took about two and a half steps, three steps diagonally backwards away from Rogerson and secreted myself under a table.

Q. Stop you there. During this episode, did you hear any words exchanged between Rogerson and Mr Gao at the point where Gao produced this knife and Rogerson produced a firearm?

A. It was ‘fuckwit’, ‘liar’, ‘fuckwit’, ‘liar’.

Q. Were you able to make any assessments as to Mr Rogerson's demeanour at that point?

A. He was seething with anger.

Q. What about Mr Gao?

A. Mr Gao was the angriest I had ever seen him as well.

Q. Was there any more exchange of words beyond expletives between the two of them?

A. Gao said ‘fuck off, I'm going’ and he had the knife and he attempted to get up.

Q. I think you told us you then made a line for a table or something, is that right?

…

HIS HONOUR

Q. The last question you were asked was, by Mr Wendler, ‘I think you told us you then made a line for a table or something, is that right?’ Can you answer that question?

A. That is right, but I did that simultaneously to the knife and the gun being drawn.

WENDLER

Q. Following your move in that direction what is the next thing you recall happening?

A. Mr Gao attempted to get up. He was seated on this chair with all the cross brace of wheels on the bottom, it was like a concrete floor and he was a large man, a tall man, so he had to flick himself backwards to move up, if you like, to stop the chair from going backwards. As he moved, I could see that when he stood up he was going to be directly in front of Rogerson's chest with the knife. As he flicked to go up, he moved his body up slightly and Rogerson shot him.

Q. How many shots did you hear?

A. Two.

Q. What happened, what did you see happen to Mr Gao after the discharge of the firearm?

A. After the first shot, he was erect and moving upwards and he went - he was splayed (indicated) back like this.

HIS HONOUR

Q. Indicating with the arms out?

A. Arms out and splayed like that (indicated).

Q. But still in the chair?

A. It had knocked him back in the chair, and he dropped the knife. I remember hearing a tinkle, you know, it sounded so loud. Rogerson didn't move but held aim on him and then Gao was moaning. He held aim on him and shot him again, and forced him even further back in the chair. Gao stopped moving, there was no noise, he just killed him instantly.

WENDLER

Q. At this point where were you, are you still under the table somewhere or where were you?

A. Under the table.

Q. Did you say something following the second shot?

A. Yes. Not straight away. It might have been a minute or two minutes. I said to him, "Why? Why? Why?"

Q. I will just stop you there.

[There was some legal argument in the jury’s absence and an overnight adjournment before the evidence continued.]

…

Q. Just before we adjourned yesterday, you described to us the circumstances of the shooting of the deceased, Mr Jamie Gao. You told us yesterday that following the shooting, you said the words or asked the questions, ‘Why? Why? Why?’ Do you remember giving that evidence yesterday?

A. Yes, I do.

Q. Following those questions, did Mr Rogerson say anything to you?

A. Yes, he did.

Q. What did he say?

A. He turned on me, he pointed the gun directly towards my head, and he said, ‘I'll do you, get up and help me you weak cunt, or you will be on the floor next to him’. I got up. He had the gun pointed directly at my head and he said, ‘Fuck me, he pulled a knife on me. Help me with him, otherwise you will be lying on the ground next to that cunt and then I'll kill your girls’.

Q. When he said those words to you, what was the reaction that you had in your mind? How did you react to those words?

A. I was terrified but paralysed altogether, just stunned. I have never felt like that before.

Q. Did you respond by saying anything yourself?

A. I said, ‘Drugs, why?’ And he said, ‘Do as I tell you or I'll kill your girls’.”

16. Rogerson’s account of what McNamara told him about how the deceased was killed before Rogerson entered the storage unit is provided below (at [265]-[267]).

The case for Rogerson

17. His Honour summarised the case for Rogerson in this way: ^[4]

“Rogerson, who admitted having known McNamara for some years, said that he and McNamara had spoken about his proposed book on the subject of Asian crime gangs. Rogerson said McNamara had later told him about meeting with the deceased and had said that the deceased was providing him with information for the book.

Rogerson said that in early 2014 Michael Maguire, a friend of his, had told him that some office furniture was being moved to a storage facility at Rent-a-Space at Padstow. According to Rogerson, he told Maguire that he might be able to sell some of that furniture for him. He said that he went to the Rent-a-Space premises on 2 April 2014 for the purposes of looking at the furniture, and the storage facility. He said that he told McNamara about these items, and that McNamara had expressed some interest in them.

Rogerson said that on the afternoon of 18 May 2014, McNamara spoke to him about the deceased, saying that he was trying to arrange a meeting at McDonald’s at Padstow, but that the storage unit at Rent-a-Space might be a safer place. According to Rogerson, McNamara phoned him on 19 May to tell him that things were ‘hotting up’.

Rogerson stated that McNamara visited him at his home on 20 May 2014 at about 1.00pm. According to Rogerson, McNamara told him that he was to meet with the deceased at McDonald’s at Padstow, but that because the deceased was being ‘hassled by the Triads’ it may be necessary to use storage unit 803 at Rent-a-Space as a default meeting place. According to Rogerson, he acceded to McNamara’s request to follow him to Arab Road, Padstow (where McDonald’s was located) to ‘keep an eye out for suspicious cars with Chinese on board’ and be the ‘second set of eyes’.

Rogerson admitted going to Arab Road, and later going to Rent-a-Space. He said that upon entering storage unit 803, McNamara was already present, and the deceased lay dead on the floor. According to Rogerson, McNamara told him (inter alia) that the deceased had ‘pulled a gun’ on him and that, in an ensuing struggle, the deceased had shot himself twice in the chest.”

18. To that summary may be added the following from Rogerson’s written submissions in this Court: ^[5]

“Mr Rogerson said Mr McNamara said calling the police would make things worse, as the Triads would not respond well to police involvement. He said he believed Mr McNamara and so assisted him to deal with Mr Gao’s body. Mr Rogerson denied having anything to do with the drugs.”

Rogerson’s appeal

19. Rogerson’s notice of application for leave to appeal was filed on 9 March 2020 with amended grounds filed on 20 March 2020. The grounds are:

1. The learned trial judge erred in failing to consider, and failing to allow, cross-examination of Mr McNamara upon the contents of the NSW Crime Commission Information Report: R v Rogerson & McNamara (No 32) [2016] NSWSC 200.

2. The learned trial judge erred in admitting the evidence of Dr Stephanie Hales relating to gunshot residue located on a cap and black pants of Mr Rogerson: T pp 1132-1140, 1172-1218; Exhibits AV, AW; R v Rogerson & McNamara (No 23) [2016] NSWSC 103.

3. The verdicts are unreasonable and cannot be supported having regard to the evidence.

4. The sentence is manifestly excessive.

5. There has been a miscarriage of justice by reason of the absence at trial of evidence of Annabelle Ballard and [Witness A].”

20. Ground 2 was not pressed. ^[6]

21. Ground 3 requires the Court to consider all of the evidence and so it will be dealt with first to provide a context for later consideration of other grounds.

Rogerson Ground 3: The verdicts are unreasonable and cannot be supported

22. The evidence will be reviewed in detail before turning to the relevant principles, the submissions and an analysis of the merits of the ground.

The Crown case in detail

23. Rogerson and McNamara were former police officers. Rogerson, who was 75 years old at the time of the trial, had worked in the building trade since he left the police force, up until about 2001 or 2002. ^[7] He said he first met McNamara (aged 55 in 2014 ^[8] ) in about 2011 through a former police colleague. They developed a strong friendship. McNamara worked as a private investigator and it came about that Rogerson would refer work to him. In that context he introduced McNamara to a barrister, Charles Moschoudis. ^[9]

24. McNamara had written two books in a capacity he described as a “hobby author”. They were in the non-fiction genre he called “true crime”. The books were published in 2010 and 2012. He said in 2013 he had started thinking about a third book; he was interested in Asian crime. ^[10]

25. Jamie Gao was a 20-year-old university student. There was evidence that he regularly associated with persons who engaged in drug supply.

26. McNamara became acquainted with the deceased when they attended conferences with Charles Moschoudis and a client, Chun Lok Lam. Lam had been charged with supplying a large commercial quantity (about 2.2kg) of crystal methylamphetamine. McNamara had been engaged in his capacity as a private investigator. The deceased was a friend of Lam and he attended the conferences as an interpreter. ^[11] Accordingly, the initial association between McNamara and the deceased was lawful but it transformed from early March 2014.

27. In the period leading up to his death, the deceased spoke to his family and friends about a person named Glen, and about meeting Glen in relation to a “deal” which he said would be “massive” and would make him “rich”. For example, his cousin, Justin Gao, said the deceased spoke of meeting Glen in relation to a deal concerning ice, saying “it was going to be massive” and “he would be rich soon”. ^[12] These were taken to be references to McNamara and to a proposed supply of methylamphetamine.

Meetings between McNamara and the deceased

28. The deceased was absent from Australia from 2 February until 28 February 2014. ^[13] On 2 March 2014, there was an exchange of text messages between him and McNamara. ^[14] He said he had just returned from Hong Kong and they arranged to meet. McNamara gave evidence he was curious about what happened in Hong Kong, but not about whether the deceased had sourced drugs. ^[15]

29. The exchange of text messages between the deceased and McNamara on 2 March 2014 marked the commencement of a 2½ month period in which there was frequent phone contact as well as 27 meetings in person. McNamara claimed the contact related to research for his proposed book on Asian crime gangs. Prior to meeting the deceased he had only carried out some anthropological reading at the Sutherland Library. ^[16] A little later in his evidence in chief he said the research had progressed “a long way with many different subheadings into Asian crime”. ^[17]

30. The Crown did not dispute that McNamara had thought about writing a book, but the prosecutor submitted in closing address that McNamara had exaggerated how far he had progressed in his research and that he had used this to conceal the true reason for his association with the deceased. ^[18] There was a dearth of notes or other records that could be expected to have been generated from the extent of consultation and research that McNamara claimed. A subsequent police search found only 2¼ pages of notes written following a meeting on 6 March 2014. ^[19] There was nothing relating to the 19 meetings between McNamara and the deceased after that date. Other notes produced in evidence were made in January or February 2014. ^[20]

31. The Crown also contended that McNamara’s credibility in relation to this assertion was impacted by a lie he told. He said that by February 2014 when the deceased left for Hong Kong he had approached the publisher of his first two books, New Holland, and spoken to Fiona Schultz about his interest in writing a book on Asian crime and Triads. ^[21] He was confronted in cross-examination with a recorded gaol phone call to his wife on 16 May 2015 in which he said he had not seen Ms Schultz for a couple of years. ^[22] He sought to explain that he had lied to his wife to protect her and their daughters, but the explanation was quite unconvincing. ^[23]

32. McNamara’s assertion that his meetings with Jamie Gao were for the purpose of research for a third book were of quite doubtful credibility.

Rogerson’s awareness of the meetings between McNamara and the deceased

33. There was an issue as to what knowledge, if any, Rogerson had of the meetings between McNamara and the deceased. His evidence was that McNamara had told him that he wanted to write a book about Chinese Triads and their involvement in the importation of drugs into Australia. McNamara had told him in 2014, probably in March, he had an informant who would be beneficial to him in relation to the book. He said the next occasion McNamara mentioned this person was on 18 May 2014 when he spoke of arranging a meeting with the informant and possibly using the unit at Rent-a-Space they had access to for the purpose. ^[24] Rogerson emphatically denied having any knowledge of meetings between McNamara and the deceased. ^[25]

34. The Crown relied upon telephone contact between Rogerson and McNamara that occurred before and after a number of the meetings as a basis for inferring Rogerson was aware of them. ^[26] The analysis presented to the jury drew upon the content of two exhibits, Exhibit CU (text messages between McNamara and Gao) and Exhibit DE (spreadsheet of call charge records). A summary of relevant aspects was conveniently provided in Bellew J’s sentence judgment: ^[27]

“(i)   On 2 March 2014, following the deceased’s return from Hong Kong, a series of text messages passed between he and McNamara, in the course of which they arranged to meet on 4 March 2014. The last of those text messages was sent at 6.11pm on 2 March 2014. At 6.50pm McNamara telephoned Rogerson and they had a conversation lasting almost 12 minutes.

(ii)   On 8 March 2014 at 3.27pm, and in response to two earlier messages from McNamara attempting to arrange a meeting, the deceased responded by telling McNamara that he did not have ‘good news’. [45 minutes before the first of McNamara’s messages he had called Rogerson with a call duration of about 4½ minutes.] Further text messages passed between them, culminating in McNamara sending a message to the deceased at 4.01pm saying ‘I’m here’. Clearly, the deceased and McNamara met at about 4.00pm on that day. McNamara telephoned Rogerson and left a voice message at 4.44pm, a time consistent with the meeting with the deceased having concluded. [Rogerson returned McNamara’s call the following day.]

(iii)   On 17 March 2014 at 4.04pm, McNamara sent the deceased a text message stating ‘??’. The deceased responded one minute later, telling McNamara that things were ‘not ok’, prompting McNamara to tell the deceased in a message sent at 5.09pm to ‘be calm’. At 7.31pm that evening Rogerson called McNamara. McNamara called back at 7.42pm and they spoke for more than three minutes.

(iv)   On 18 March 2014 at 5.59pm, McNamara again sent the deceased a text message stating ‘??’. At 6.04pm McNamara called Rogerson and they spoke for 50 seconds. At 6.05pm the deceased replied by again telling McNamara that things were ‘still not ok’. At 6.06pm Rogerson called McNamara, and they spoke for more than 8 minutes.

(v)   On 3 April 2014 commencing at 12.26pm, a series of text messages passed between McNamara and the deceased which culminated in a meeting being arranged to take place between 3.45pm and 4.00pm that afternoon. Rogerson telephoned McNamara at 1.00pm. At 3.43pm the deceased sent a message to McNamara saying that he was ‘here’. McNamara responded at 3.47pm, saying that he would be ‘5 min’. Photographs taken from CCTV footage … at the Meridian Hotel show the deceased arriving at 3.50pm, and McNamara at 4.02pm. They are then seen to depart separately, the deceased at 4.30pm and McNamara at 4.32pm. The meeting having finished, McNamara called Rogerson at 4.33pm (i.e., 1 minute after leaving the hotel) and left a message for him. He called him again 2 minutes later at 4.35pm and left another message. He called him again 4 minutes later at 4.39pm, at which time they spoke for more than 5 minutes.

(vi)   On 15 May 2014, only 5 days before the deceased’s murder, an exchange of messages took place between McNamara and the deceased arranging a meeting for 3 pm on that day. At 2.22pm, Rogerson called McNamara. They spoke for 14 minutes and 29 seconds, the call concluding at 2.36pm. At 2.37pm, McNamara communicated his arrival to the deceased by sending him a message saying ‘here’. The overwhelming inference is that McNamara and Rogerson spoke for a lengthy period immediately before the meeting between McNamara and the deceased. Following that meeting, Rogerson called McNamara at 7.11pm and again at 10.21pm.

(vii)   On 17 May 2014 a series of text messages passed between the deceased and McNamara arranging a meeting for the following day, 18 May 2014. On that day at 12.30pm, McNamara sent a message to the deceased that he was ‘parking’ and would be ‘5 min’. At 1.21pm McNamara called Rogerson. He called him again at 1.30pm. Rogerson called McNamara at 5.55pm and they spoke for more than 2 minutes.

(viii)   On 19 May 2014, McNamara called Rogerson at 2.34pm and they spoke for more than 3 minutes. McNamara and the deceased later arranged to meet at the Meridian Hotel at 7.45pm. Photographs taken from CCTV footage confirm that they did so. McNamara left the hotel at 8.22pm and the deceased at 8.23pm.”

35. The foregoing indicates there were six meetings: on 4 and 8 March, 3 April, and 15, 18 and 19 May 2014. There does not appear to have been a meeting directly related to the contact on 17 and 18 March between McNamara and the deceased but the juxtaposition of contact between McNamara and Rogerson with that between McNamara and the deceased may have been regarded by the jury as significant nonetheless.

36. The jury may also have had regard to the following evidence of telephone contact between Rogerson and McNamara and a further five meetings between McNamara and the deceased:

1. On 5 March 2014 at about 6pm, McNamara sent a text to the deceased proposing a meeting the following day at 2pm. Subsequent messages indicate the meeting occurred at about that time on 6 March 2014. Rogerson called McNamara about an hour before the meeting (12.56pm) with the call lasting just over four minutes.

2. On 12 March 2014 at 6.48pm, McNamara initiated a series of messages in which the deceased agreed to meet him at 1pm on 13 March 2014. At 12.05pm and 12.24pm on 13 March 2014, McNamara called Rogerson, but the calls diverted to message bank. There was a successful call at 12.38pm with a call duration of almost 9 minutes.

3. On 1 April 2014 there was a series of messages between McNamara and the deceased which culminated in an apparent meeting scheduled for 10.30pm. Rogerson called McNamara at 7.30am the next day and the call duration was about 10½ minutes. The late time of the meeting may explain the contact being deferred to the next morning.

4. On 16 April 2014 there was an apparent meeting at about 4pm which was the culmination of messages between McNamara and the deceased over preceding days. McNamara sent a message indicating he was at the location at 4.09pm (“Here”). He rang Rogerson an hour and a half later, at 5.39pm, with the call lasting almost 5 minutes.

5. There was an apparent meeting at about midnight on 28 April 2014. McNamara rang Rogerson at 7.04am the next morning with the call lasting about 2¾ minutes.

37. This juxtaposition of contact between McNamara and the deceased on the one hand, and between McNamara and Rogerson on the other, was a significant feature of the Crown’s circumstantial case. It was a powerful indication that Rogerson knew of the fact, purpose and frequency of the meetings. It also supported the inference that the meetings were not about research for a book.

Rent-a-Space and storage unit 803

38. The murder occurred in storage unit 803 in Rent-a-Space Padstow, a self-storage facility at 57 Davies Road, Padstow.

39. Upon entering a written agreement, customers of Rent-a-Space were provided with an access code to enter or leave the facility via a security gate at the front or rear entrance. They could secure the roller door to their unit with their own lock or purchase a padlock from Rent-a-Space. The padlocks on sale came with three keys. Storage unit 803 was combined internally with unit 804 so there were two doors. The combined internal space was about 4.7 metres in depth and 3.8 metres in width. ^[28] The customer would need two padlocks and would be provided with six keys. ^[29]

40. An alarm system recorded when a customer entered or left the facility and it disengaged the alarm to their unit while they were present. Each unit was fitted with a device that electronically recorded each time the roller door was opened or closed. Sometimes there was no recording of a person leaving the facility. That would occur if they went through the gate while it remained open after another customer had activated it (i.e. tailgating). ^[30]

41. Michael Maguire, a friend of Rogerson’s, entered an agreement to lease units 803 and 804 on 21 February 2014. His purpose was to store excess office furniture. Mr Maguire had passed away by the time of the trial in 2016 and his two police statements were read by consent. ^[31]

42. Mr Maguire said in early March 2014 he offered Rogerson the opportunity to go to storage unit 803 and look at the furniture in the event that he wanted a chair and printer for his home office. Rogerson said he was “interested in having a look”. Three days later he gave Rogerson an envelope containing padlock keys with the code for the security gate written on the outside. He could not recall how many keys there were on the key ring but assumed there was “about six or eight”.

43. Michael Maguire said Rogerson returned the keys a couple of days later, saying he was not interested in anything in the unit. From that point, Mr Maguire retained possession of the keys Rogerson had returned until he handed them to police on 26 May 2014. There were five keys.

44. The inference was available that Mr Maguire had initially received six keys upon purchasing two padlocks; handed them all over in the envelope he gave to Rogerson; and only received five keys back from him. Absent Mr Maguire noticing the missing key, Rogerson had retained access to the storage unit without his knowledge. This state of affairs was in place contemporaneously with McNamara pursuing his meetings with the deceased. Rogerson’s account (as will be described shortly) was that he did not return any keys to Mr Maguire until after 20 May 2014, portraying that there was no secret about him having access to the storage unit during the entire period.

45. Rogerson’s evidence was to the effect he received the information and keys from Michael Maguire a day or two before 2 April 2014. He fixed on that date because he had derived from the brief of evidence it was when he first visited the storage unit. ^[32]

46. The Rent-a-Space records showed that up to and including the day of the murder there were visits on 2 April, 4 April, 19 May and 20 May 2014. ^[33] Rogerson was present on each occasion; he was with McNamara on 4 April and 20 May and alone on 2 April and 19 May.

Rent-a-Space visit 2 April 2014 – Rogerson only

47. Rogerson was alone when he visited Rent-a-Space on 2 April 2014. He said he went there to look at the furniture and to have a look at the unit itself to “see whether it maybe later on would have suited my requirements”. These requirements included storing his box trailer and things that were cluttering up his garage. He saw the unit “was pretty full” of furniture. It would have been impossible to put his 6 by 4 box trailer in it because each of the doors were too narrow. ^[34]

48. The claim of having looked inside unit 803 on 2 April 2014 was not supported by the records of Rent-a-Space. They indicated that Michael Maguire’s access code was used for entry to the facility on that date but there was no activation of the open/close electronic detection on the roller door to the unit. Rogerson could provide no explanation for this when confronted in cross-examination, aside from “I didn’t go there for nothing”. He denied the Crown Prosecutor’s suggestion he went there to have a look around and to “suss out CCTVs, things like that”. ^[35]

Rent-a-Space visit 4 April 2014 – Rogerson and McNamara

49. Both Rogerson and McNamara visited Rent-a-Space on 4 April 2014. A controversial aspect was that they were in their own cars and McNamara entered first. ^[36] This indicated he had the access code to enter the security gate.

50. McNamara at first gave evidence that he had followed Rogerson to the storage unit on 4 April 2014. He said Rogerson gave him the access code and a key after they looked at Michael Maguire’s stored furniture and he agreed to help Rogerson try and sell some of it. After being shown the CCTV footage indicating Rogerson followed him into Rent-a-Space on this day, he conceded Rogerson must have provided the access code and key prior to 4 April 2014. ^[37]

51. The Crown Prosecutor contrasted this with Rogerson’s evidence that he did not provide them to McNamara until 20 May 2014. This was significant, the Crown submitted, because on Rogerson’s account, the first time McNamara would need access to storage unit 803 at Rent-a-Space was to use it as a quiet place to talk with Jamie Gao on 20 May. Contrary to that account, however, McNamara had access to the storage unit “[d]uring all of that time that the massive deal that Jamie Gao had told his cousin Justin Gao and others was coming to fruition”. ^[38]

Return of the keys to Michael Maguire

52. Rogerson gave evidence he returned the keys to Michael Maguire after 20 May 2014; he thought it was 23 May. He said there were five or six keys, but he was not certain. ^[39] There was evidence a police officer recovered five keys from Michael Maguire on 26 May 2014 and there was a photograph of them. ^[40] The Crown contended that Rogerson received six keys, returned five of them to Maguire a couple of days later, but kept one. ^[41]

53. Rogerson’s account about possession of the keys was challenged by the prosecutor in relation to Rogerson’s attendance at the unit on 19 May 2014. Rogerson said that McNamara was talking about meeting with his informant on 20 May and about the possibility of using the storage unit as a meeting place. Rogerson’s evidence was that he thought he should go to the unit to “make sure that it was still suitable for him to hold this meeting”, because he, Rogerson, had not seen it since 4 April. ^[42] In cross-examination by counsel for McNamara, Rogerson explained: ^[43]

“The last time I saw it, that was back in April, 4 April, and he'd been there the two days before with me, and things hadn't changed, it was quite suitable, but I wasn't certain whether Mick Maguire might have added more stuff, I don't know. I wanted to make sure that it would be suitable for him to use.”

54. The Crown Prosecutor asked Rogerson how Michael Maguire could have “added more stuff”, given Rogerson’s version was that he did not return the keys to Mr Maguire until after 20 May 2014: ^[44]

“Q. He didn't have any keys, you had the keys?

A. Well he gave me a bundle of keys.

Q. He gave you all the keys you say?

A. He gave me a bundle of keys.

Q. How could Maguire have gone back and added more stuff if he didn't have the keys?

A. He could have had a key.

Q. You say he gave them to you and that's what he says?

A. He gave me a bundle of keys. Whether that was the whole lot. I think his own statement says he didn't know whether there were 6 or 8.

Q. The reason you said that sir is that you had given him back five keys as he said three days after you had first took them. That is why you give the answer that you weren't sure whether Mick might have added some stuff?

A. That's completely wrong, completely wrong.”

55. The Crown Prosecutor submitted to the jury that Rogerson’s thinking that Michael Maguire could have accessed unit 803 was a “powerful indicator” and perhaps “conclusive” that he had returned some of the keys but kept one himself. ^[45] This supported the proposition Rogerson had deceived Michael Maguire and had surreptitiously retained for himself the means of accessing the storage unit.

McNamara’s home at Cronulla

56. Some of the features of McNamara’s home at Cronulla become relevant to key events so it is appropriate to describe the home in a little detail.

57. McNamara and his two adult daughters (Jessica and Lucy) moved into a ground floor unit of the “Cote D’Azur” building at 1 McDonald Street, Cronulla on about 25 March 2014. Car parking was provided on basement levels B1 and B2. Visitor parking spaces were on B1 and disabled parking spaces on B2. The parking assigned to McNamara’s unit was a side-by-side double garage on B2. ^[46]

58. A neighbour, Wayne Hall, gave evidence that there was usually a blue Ford XR6 sedan and a small blue car (Jessica McNamara’s) parked in McNamara’s garage. There was cyclone wire mesh separating each garage with two manually operated metal tilting doors that had 10mm perforations. ^[47]

The acquisition of BV67PX, a white Ford Falcon station wagon

59. It was the Crown case that Rogerson and McNamara used a 2002 white Ford Falcon station wagon, registered BV67PX (the “white Falcon wagon”), in relation to the murder because it could not be traced to them. ^[48] The acquisition of this vehicle was one of the elements of the Crown case to show the killing of the deceased was premeditated. It was McNamara who drove the white Falcon wagon at critical times and kept possession of it generally. In closing address, the Crown Prosecutor anticipated a defence argument that Rogerson used his own car and did not attempt to conceal his physical appearance in comparison to McNamara. He put a number of arguments to the jury, including that there was little point in Rogerson concealing himself by clothing or using an untraceable car because of his distinctive gait. The prosecutor submitted, “concealing your identity at times … might only draw more attention to yourself”. ^[49]

60. Police seized the white Falcon wagon from the carpark of McNamara’s unit block at Cronulla on 24 May 2014 at about 4.50am. At that time it was registered with the then Roads and Traffic Authority to Sandra Dawes who had an address in Lethbridge Park. Police inquiries identified the car had been advertised for sale on eBay. ^[50]

61. Kenneth Barton was a wholesale used car trader. He purchased the white Falcon wagon from another wholesaler on 29 July 2013 for $1000. His records indicated he sold it to Paul Wheeler of Outback Used Cars for $1500 on 27 April 2014. ^[51]

62. Paul Wheeler was the manager of Outback Used Cars at Lethbridge Park. He was the husband of Sandra Dawes and they co-owned the business which they operated from their home. Mr Wheeler said he acquired the white Falcon wagon in late-March or early April 2014 from Kenneth Barton and 27 April 2014 was “the day I officially bought the car off Ken”. He described an ongoing practice of Mr Barton providing him with cars that he would sell; Barton being paid when the sale was made. Mr Wheeler said Mr Barton remained “the title owner” of the car until he sold it. ^[52] (This conflicted with the white Falcon wagon being registered to Sandra Dawes.) ^[53]

63. Paul Wheeler placed an advertisement on eBay for the sale of the white Falcon wagon on 6 April 2014. At about 5pm on a Sunday (27 April 2014), a person who was “possibly Aboriginal” and who identified himself as “Marvin”, knocked on his door and expressed an interest in purchasing this car. He offered $2000. Mr Wheeler rang Kenneth Barton and they agreed with the proposed sale price. ^[54]

64. Statutory forms were completed showing the car was acquired by Outback Used Cars on 26 April 2014 and was sold on 27 April 2014 to “Marvin James Turnbull”. An address in Mt Druitt and driver licence details for this person were included. Mr Wheeler said he saw the buyer’s driver licence and took the details. He maintained that he sighted a copy of a driver’s licence in that name but said he did not take a copy of it; that was not his practice. He could not read the details on the licence because he did not have his glasses; to enable him to insert the details on a Sale Notice he asked the man to read the details out. ^[55]

65. Mr Wheeler identified the carbon copy of the receipt he completed in relation to the sale of the white Falcon wagon and subsequently provided it to the police. He also identified its original. The latter had been found by police in a shoe box in McNamara’s apartment at Cronulla. ^[56]

66. Police found no trace of a Marvin James Turnbull. No person by that name lived at the nominated Mt Druitt address. ^[57] Mr Wheeler denied that he had fabricated his evidence. ^[58]

67. Rogerson’s fingerprint was found on the back of the receipt. There was evidence that the purchase price of $2,000 for the car was provided from monies withdrawn from a bank account operated by McNamara. ^[59]

68. Mr Wheeler agreed he knew a man called Karl Bonnette. He could not remember if he spoke with him at the time of selling the car on 27 April 2014, although it was possible. He was shown some call charge record data and agreed they confirmed he called Kenneth Barton late on the afternoon of 27 April, as he had said. He agreed they also showed three instances of telephone contact between himself and Karl Bonnette earlier that day. He maintained, however, that this was in relation to an unrelated matter; a car he was repairing for an associate of Mr Bonnette. ^[60]

69. Karl Bonnette happened to be a friend of Rogerson. When Mr Bonnette was spoken to by police on 26 June 2014, he denied knowing anything about the supposed sale of the white Falcon wagon by Paul Wheeler. When the vehicle was recovered by police there was a copy of a newspaper in it, the Hawkesbury Gazette, dated 9 April 2014. ^[61] That was Mr Bonnette’s local paper. ^[62]

70. On 27 June 2014, the day after police had spoken to Mr Bonnette, there was a telephone call from gaol by Rogerson to his wife. ^[63] She told him “Karl Bonnette’s coming to see you tomorrow … the coppers … been out, police”. Rogerson said, “well, that’s, that’s all right, I know what it’s about … the car, that’s right … It was his mate that that Glen bought it off”. The brief of evidence had not been served by this time. ^[64] The Crown relied upon this as demonstrating Rogerson knew that McNamara acquired the car from Karl Bonnette’s mate. ^[65] It was also indicative of Bonnette’s involvement with Rogerson in relation to the car the police had just been asking Bonnette about.

71. The Crown relied upon telephone contact between Bonnette and Wheeler, and Bonnette and Rogerson as set out in the following table to support propositions that Rogerson was involved in the acquisition of the white Falcon wagon and that Bonnette and Wheeler had been untruthful. ^[66] (The data in the table is sourced from Exhibit DE. References to Wheeler are to the phone service subscribed to by Dawes and Wheeler.)

Date and Time	Contact
22 April 2014
9.08am	Bonnette called Rogerson
9.10am	Rogerson called McNamara
9.24am	McNamara called Rogerson
9.28am	Rogerson called Bonnette
23 April 2014
6.57pm	Bonnette called Rogerson
24 April 2014
8.57am	Bonnette called Wheeler
10.49am	Wheeler called Bonnette
11.35am	Wheeler called Bonnette
11.54am	Bonnette called Rogerson – divert to message bank
11.55am	Rogerson retrieved from message bank
11.56am	McNamara called Rogerson
11.56am	Rogerson called Bonnette
5.58pm	Bonnette called Wheeler
25 April 2014
12.51pm	Wheeler called Bonnette
1.15pm	Bonnette called Rogerson – divert to message bank
1.21pm, 1.36pm, 1.37pm	Rogerson three times retrieved from message bank
1.40pm	Rogerson called Bonnette
1.46pm	Bonnette called Wheeler
27 April 2014
12.39pm	Bonnette called Wheeler
2.41pm	Wheeler called Bonnette
2.41pm	Bonnette called Wheeler
2.59pm	Wheeler called Bonnette
5.23pm	Wheeler called Barton
5.54pm	Wheeler called Barton
28 April 2014
7.36am	Bonnette called Wheeler
7.37am	Wheeler called Bonnette

72. Karl Bonnette agreed that he and Rogerson met from time to time at McDonald’s at Auburn. When shown a photograph of his and Rogerson’s cars at that place on 23 April 2014 at 11.45am he agreed he met Rogerson on that occasion. He also agreed their telephone contact on 22, 23 and 24 April was “extensive” and in contrast to what was usual. He agreed with a description of a “flurry” of telephone contact between about 21 and 25 April 2014 and that there was none after. ^[67] Nevertheless, he maintained his denial of having supplied a car to Rogerson in that time.

73. The Crown Prosecutor submitted this evidence showed it was Rogerson, not McNamara, who was arranging the acquisition of a car that could not be traced to them. McNamara knew about the car by 28 April. Rogerson’s case was that McNamara told him he acquired a car to help him carry out surveillance work. ^[68]

74. Another aspect of the Crown case concerning the acquisition of the white Falcon wagon concerned events of 28 April 2014. The police officer in charge of the investigation, Detective Sergeant Phillips, gave evidence of there being a $2000 cash withdrawal at Auburn from McNamara’s bank account on that date. ^[69] In cross-examination by counsel for McNamara, Karl Bonnette agreed he went to McDonald’s Auburn that day and met Rogerson. However, he described as “absolutely ridiculous” a proposition that he was driving the white Falcon wagon. ^[70]

75. McNamara’s evidence was that he first saw the white Falcon wagon in late April or early May 2014 on a day when Rogerson said Karl Bonnette had organised an old car for him that he had to pick up at Auburn. Rogerson asked McNamara to give him a lift to Auburn and he agreed. A couple of days later they went to the McDonald’s at Auburn and met Karl Bonnette with the car. Rogerson asked, “Can I get that $2000 that you owe me” (for past referrals of private investigation work). He wanted it in cash. The three of them drove to the Auburn shopping centre where McNamara went to a bank and withdrew the cash and gave it to Rogerson. Rogerson gave it to Bonnette. Rogerson drove the white Falcon wagon back to near his home in Padstow and McNamara drove Rogerson’s car. ^[71]

76. The Crown Prosecutor submitted that if the jury should accept this part of McNamara’s evidence (although there was a lot of his evidence they would not), it would show that it was Rogerson’s money that was used, at his request, for the acquisition of the white Falcon wagon. ^[72]

77. McNamara said he next saw the white Falcon wagon on about 14 May 2014 when Rogerson told him he did not want to leave it at Padstow and asked if it could be left at Cronulla. McNamara agreed, saying he could use it for taking things to the tip. He did not want to use his own car for that purpose because he had “spent a lot of money on tyres and wheels and exhaust systems, I didn’t want to be running through a tip in it”. He said he parked the white Falcon wagon in an area of North Cronulla where there was no timed parking; streets such as Elouera Road, Prince Street and Mitchell Road. He said he would park in such areas when he returned from the tip. ^[73]

78. Rogerson categorically rejected McNamara’s version. ^[74]

79. McNamara was contradicted by a photograph of the white Falcon wagon parked in Prince Street, Cronulla, some 200 or 300 metres from his apartment building on 5 May 2014, nine days earlier than when he said it came into his possession. ^[75]

80. There was a further contradiction. After McNamara had given evidence about using the white Falcon wagon for trips to the tip he became aware police had made inquiries at his local tips and there was evidence he had not been to them. ^[76] Subsequent to becoming aware of this he said he had “made a mistake”; he had not been to the tip in the white Falcon wagon at all. He maintained, however, that it was available for him to use for that purpose. ^[77]

81. Rogerson provided a rather bold explanation for how his fingerprint came to be on the receipt for the car. It had been “very stressful” for him to have “witnessed a dreadful scene and something I had never seen in many, many years, a dead person lying on the floor. Being involved in putting that person into the back of McNamara’s car”. But shortly after these events, on the way to Kennards to hire equipment to help them load the dead body into a boat in order to dispose of it at sea, he heard “a whine coming from the dif”. It prompted him to think, rather trivially, that the white Falcon wagon may have once been a taxi. ^[78] He explained: ^[79]

“A.   I said to Glen McNamara, ‘I think this car might have been a taxi’, and I said, ‘I'll show you how to find out if it was a taxi or not’. And with that I opened the console lid and saw that there was a lot of letters, papers.

Q.    Why did you open the console lid?

A.    My idea was to look into the bottom of the console to see if there had been any extra holes placed in there and if there were also maybe some taped off wiring which would have been taped off once the car was no longer used as a taxi. All the paperwork I put on my lap. There were a heap of lolly wrappers in the body of the console, I took those out as well, and saw that there were no extra holes in the bottom of the console as well as no extra wires coming down from under the dashboard in front of the gear stick area, and I said, ‘No, it's not a taxi …’.”

82. Rogerson emphatically claimed this was how his fingerprint came to be on the receipt; the receipt had been in the console. ^[80]

83. McNamara denied this. ^[81] It was described by the Crown as “a desperate invention”. ^[82] Bellew J described it as “frankly absurd”. ^[83] The jury may well have come to the same view.

84. The fundamental issue in relation to the white Falcon wagon is that it was the car used to transport the deceased to the scene of the killing and then to transport his body to the boat to which it was transferred in readiness for disposal at sea. The white Falcon wagon was not traceable to either Rogerson or McNamara. When it was recovered by police, it could be traced via the registration to Mr Wheeler and Ms Dawes at Outback Used Cars but the records of the transfer of ownership of the car from that point would lead to a dead end.

18 May 2014

85. Rogerson gave evidence that McNamara came past his home on the afternoon of Sunday 18 May. McNamara said, “I’m trying to arrange a meeting with someone up at McDonald’s in Davies Road in Padstow, just up the road from Mick’s unit and I think Mick’s unit might be a good place for me to meet him. He’s mixed up with the Triads, he’s got some problems with them, but he’s a very important informant for me in regard to this book that I’m putting together. Look, Mick wouldn’t mind if I could use his unit to catch up with this bloke. We’ll probably only be there for half an hour”. Rogerson replied, “I’m sure Mick wouldn’t mind at all”. ^[84]

86. According to Rogerson, McNamara held some (unspecified) fear and “in his mind Mick’s unit would be, for want of a better word, a safe place for this meeting to take place”. McNamara said, I’ll give you a ring tomorrow and give you a bit of an update”. ^[85]

19 May 2014

87. McNamara owned a 4.5 metre Quintrex aluminium boat which he purchased in 2008. ^[86] He had stored the boat at Hunter Self Storage at Caringbah for part of 2013 and recommenced storing it there on 9 April 2014. ^[87] CCTV captured McNamara removing it from storage on 19 May 2014. He towed it with his blue Falcon sedan back to his home at Cronulla. ^[88] He took it down into the underground carpark and parked it in his double garage. ^[89]

88. McNamara gave a number of reasons for removing the boat from storage on 19 May 2014. His evidence in chief was: ^[90]

“Q.    What was the reason that you removed it on the 19th from Hunter Storage?

A.    I wanted to take Jessica [his daughter] fishing before she went to Europe. She was due to go to Europe in early June. I wanted to take her fishing. But I needed to have some time to give the boat a service.

Q.    Was there any other reason that you removed the boat on the 19th and took it to the apartment complex?

A.    I was keen to see if the boat fitted in the unit complex in the garage, it could have saved me $150 a month but it was mainly to take Jessica fishing before she went away and also to - I had to put a charger on the boat, put oil in the boat, charge the battery up, things I couldn't do whilst it was in the storage.”

89. Jessica McNamara gave evidence that she and her father planned to go fishing on Saturday 31 May; she was due to leave for Europe on 1 June 2014. It was something they had been talking about for a while. ^[91]

90. There was no dispute the boat was used for the disposal of the body of the deceased and was then returned to Hunter Self Storage on 21 May 2014. It was the Crown case that the boat was removed from storage on 19 May for precisely that purpose. McNamara, however, agreed “it was just a complete coincidence” that he had got the boat out on 19 May 2014 and it was there ready to put the deceased’s body in on 20 May 2014. ^[92]

91. The Crown contended the reasons given by McNamara for removing the boat on 19 May 2014 were contradicted by other evidence. For example, far from maintenance work being required, it was only the previous month that McNamara had paid $525 for the boat to receive a service at Neptune Marine at Taren Point on 7 April 2014, just before he put it into storage. ^[93]

92. The call charge records showed McNamara called Rogerson at 2.34pm on 19 May 2014. Rogerson said, “Glen McNamara rang me and told me that things were hotting up in regard to what he had spoken about yesterday, so I decided that I would, if he wanted to use Mick’s shed or Mick’s unit, as I called it, I better make sure, because I had not been there since 4 April or early April, make sure that it was still suitable for him to hold this meeting”. ^[94]

93. Rogerson went to storage unit 803, arriving at about 3.12pm and leaving at about 3.30pm. He removed two office chairs and put them into the rear of his silver Ford station wagon. ^[95] His explanation for doing this conflicted with other evidence he had given. He claimed that when he went to unit 803 in early April, he had seen some “nice leather” chairs which he thought he could use in his office at home. One of his purposes on 19 May was to make sure there was space for McNamara in the event his proposed meeting with his informant took place at the storage unit, but the other purpose was to look for two chairs for his home office. He acknowledged in cross-examination that he did not take anything to measure chairs to ensure they would fit under a bench in his home office. ^[96] He said that as it turned out, “they were unsuitable because I could not remove the handles [arm rests presumably] off the side of them so they would fit under the bench top” and they were later returned. ^[97]

94. Rogerson’s evidence was also inconsistent with that of Michael Maguire who included in his statement of 29 May 2014 that he was happy to give Rogerson an office chair and a printer but after having had a look in the storage unit Rogerson said, “the office chair was unsuitable, and he didn’t want the printer”. ^[98]

95. The Crown contended that Rogerson’s visit to storage unit 803 was nothing to do with his stated purposes but all to do with ensuring everything was in order for what was anticipated would occur, and in fact occurred, the following day. ^[99]

96. The deceased’s car, a white Nissan Silvia, was picked up on CCTV leaving the M5 Motorway at Fairford Road, Padstow at 4.18pm and next seen entering the driveway of Rent-a-Space at about 4.22pm on 19 May 2014. It then made a U-turn and left, re-entering the M5 at Fairford Road at 4.49pm. The Crown theory was that the deceased “was scoping the scene in advance of the meeting” the following day. ^[100]

97. Later that evening, after an exchange of text messages, there was a meeting between the deceased and McNamara at the Meridian Hotel for about 20 minutes. ^[101]

20 May 2014

98. The deceased sent a text message to McNamara at 12.34am on 20 May 2014. In the context of the Crown case as to what was going on between the two men, it appears strangely innocuous: “Hey thanks for the drink today, much appreciated, maybe we can meet up again in our free time and hang out again”. The Crown suggested “there is some coding in that”. ^[102] McNamara replied at 6.42am simply, “No worries”.

99. A few hours later McNamara took the unusual step of going to Cronulla Mall to use a payphone to call the deceased at 11.37am. A minute later the deceased sent another seemingly innocuous text message to McNamara, but which included a suggestion of having lunch together that afternoon. ^[103] McNamara replied, “No. I’m sick. Food poisoning. Can’t spend too much time away from bathroom. I’ll call you in a couple of days.” The deceased sent a sympathetic response, adding, “I’ll just catch up on my studies and spend some time with the mrs”. ^[104]

100. The combination of these events strongly suggests something nefarious; a fact which was consistent with the Crown case. It may be, as the Crown contended, that McNamara was creating a false alibi (and the deceased appears to have been joining him in that effort). On McNamara’s own account he was intending to meet with the deceased later that day. ^[105]

101. McNamara drove the white Falcon wagon into the underground carpark of his apartment building at 12.04pm. He drove out again 7 minutes later. ^[106] He said he was going to Rogerson’s home and he intended to go to the tip on the way home. For that purpose he had put in the car some boxes of rubbish from his garage. He said this was the reason he was driving the white Falcon wagon; it was part of the arrangement with Rogerson of parking it at Cronulla that he could use it to take rubbish to the tip. The rubbish he put in the car included a surfboard cover. ^[107]

102. Rogerson said McNamara arrived at Rogerson’s home at about 1pm. McNamara told him of his intention to meet up with his informant at McDonald’s Padstow. According to Rogerson, McNamara said, “He’s been getting hassled by the Triads … and he believes that they are following him and I may have to use Mick’s unit as the default meeting place”. Rogerson said he responded, “I’ve actually got the keys and the code in my car”; referring to the security code for Rent-a-Space and the keys for storage unit 803. He offered to give the code and one of the keys to McNamara but McNamara asked if he would follow him “up to Arab Road and find a spot where you’ll be able to keep an eye out for any suspicious cars with Chinese on board”. Rogerson said he agreed to this; he would be “his second set of eyes”. He said, “I could see no reason why not to help him”. ^[108]

20 May 2014 – first visit to Rent-a-Space

103. Rogerson, in his silver Ford station wagon AF70SR, and McNamara, driving the white Falcon wagon, arrived at Rent-a-Space at about 1.15pm. The white Falcon wagon was parked near the entrance and they went together in AF70SR inside to storage unit 803. ^[109]

104. The circumstances of their arrival and entry at Rent-a-Space were controversial as to whether Rogerson was the passive assistant following McNamara and as to whether Rogerson provided the code and keys to McNamara on this occasion or at some time in the past.

105. Rogerson gave evidence to the effect that it was McNamara’s decision to first attend Rent-a-Space before going to meet his informant near McDonald’s. He had been asked to follow McNamara up to Arab Road; McDonald’s being on the corner of Arab Road and Davies Road. Just before Rogerson got into his car, McNamara said, “Follow me”, and that is what Rogerson did. However, as they were proceeding north on Davies Road and about to pass by Rent-a-Space on their way to Arab Road, McNamara swung his car into the turning lane to make a right turn into Bridge Street. Rogerson swung in behind him, thinking McNamara was going to the rear entrance to Rent-a-Space. Events that then occurred, according to Rogerson, led to him arriving at Rent-a-Space before McNamara.

106. Mr Stratton SC (who, as mentioned, appeared for Rogerson in this Court) maintained there was nothing unusual about two people heading off on a journey and the last to leave arriving first. ^[110] That is true, but the point is concerned with the credibility of the explanation Rogerson gave for how that came about.

107. Davies Road, at the relevant point, provided two lanes each for traffic heading north (towards McDonald’s and Arab Road) and south and there is a right turn lane for northbound traffic turning into Bridge Street. The turn is not controlled by traffic signals so right turning traffic has to give way to southbound traffic. ^[111] Davies Road appeared to be at least moderately busy, as best as can be gleaned from the CCTV footage.

108. Rogerson’s evidence continued: ^[112]

“A.   His car suddenly stopped. The rear of my car was stuck out in the third or the outside lane, the main lane of Davies Road heading north. I realised it was dangerous to be where it was, so I swung around him and got in front of him, and then I turned right into Bridge Road. I saw him almost right behind me. He started the car up, I think it stalled, and I drove down and then I swung left onto the apron outside the back sliding gate of 57 Davies Road.

Q.    Why were you going there?

A.    Well, when he made the right-hand turn, I realised that he was going – we were heading to the back gates of the units. I'd only pulled up a short time. Glen McNamara got out of his car, I saw him get out of his car. He came up to the left-hand door of my car, opened it up. He said, ‘I've actually brought a light. If I'm going to use Mick's unit, I might need it’ and saw he was carrying a white carry bag with something in it about 200ml long, about the size of a Thermos flask.”

109. The CCTV footage showed Rogerson’s car stopped or almost stopped in the right turn lane while an oncoming car travelling south approached and passed. Then he proceeded to make his right turn and McNamara’s car followed immediately and closely behind. ^[113] Rogerson’s account was to the effect that to avoid the rear of his car impeding northbound traffic behind him in the lane from which he was departing (which he considered “dangerous”), he chose to go around McNamara’s car. He did not say directly whether he went around the left or right side of McNamara’s car, whether into the path of oncoming southbound traffic or that of traffic coming from behind him, but implied the latter. ^[114] Neither, however, coincides with what is apparent in the CCTV footage.

110. The second controversial aspect in relation to this evidence related to whether Rogerson provided the Rent-a-Space access code and a key to storage unit 803 to McNamara on 20 May 2014, as he insisted, or at some earlier time. The significance of this, as indicated earlier (at [51]), was that on Rogerson’s account the first time McNamara needed the key to storage unit 803 was on 20 May when he needed a quiet place to talk to the deceased. ^[115]

111. Rogerson gave evidence that after making their turns into Bridge Street, he and then McNamara stopped outside the rear entrance to Rent-a-Space. McNamara alighted and came over to his car. Rogerson wrote out the access code for him on a piece of paper. McNamara used the code, the gate opened, and Rogerson drove in. As he stopped to wait for McNamara to come and get into his car, Rogerson said he took a key off the ring of keys for the storage unit that Michael Maguire had given him. He gave that key to McNamara. ^[116]

112. It might be recalled that on Rogerson’s account he had not returned any keys to Maguire by this stage so that meant he had six keys, three for each of the padlocks for storage units 803 and 804 (see above at [38]-[55]). McNamara used the key he was given to open unit 803. Rogerson agreed when shown a photograph of the keys (subsequently provided by Mr Maguire to police) that there was no way of distinguishing one from the other. The Crown Prosecutor pressed him as to how he managed to give McNamara one that was for unit 803 as opposed to unit 804 and he said it was “probably luck”; “my betting was pretty good that out of a 50-50% chance I scored”. ^[117]

113. Rogerson denied the Crown’s propositions that he had given a key to McNamara soon after he had received the keys from Michael Maguire. Included in the support for the Crown’s proposition that he had given a key to McNamara prior to 20 May 2014 was Rogerson’s writing in subsequent commentary upon the Crown case (Exhibit M41, which Rogerson had agreed was truthful) that “McNamara … had previously been given a key to Unit 803 and the code to the entrance gates”. Rogerson also denied the prosecutor’s proposition that the reason for the earlier provision of the access code and key to McNamara was because they were together organising for the deceased to bring a large quantity of drugs to the storage unit. ^[118]

114. According to the CCTV footage, the two men were at the door of storage unit 803 at about 1.17pm. McNamara opened the door and they both entered. McNamara was carrying an object, presumably the light Rogerson referred to in his evidence extracted above (at [108]). Neither McNamara nor Rogerson had any object with them when they left so it may be inferred the light was left in the storage unit. Rogerson agreed in cross-examination that if the door was to be closed “right down you would definitely need a light”. ^[119]

115. Almost 2 minutes after they entered the unit the door was closed but it was opened immediately, and McNamara emerged. He pulled the door down to fully close it but immediately raised it up gain. He returned to join Rogerson inside the unit and closed the door. The door opened about five minutes later and both men emerged. Rogerson walked to his car. McNamara attended to closing and locking the roller door and then joined him. Rogerson had been inside the unit for about eight minutes and McNamara was inside for about seven minutes. For most of this time the door was closed. ^[120]

116. Rogerson was cross-examined about what he did at the storage unit on this occasion. He had said in his evidence in chief the door was jammed; it “seemed just a little hard to push up”. He said McNamara “gave it a couple of shakes and a bit of a whack and up it went”. ^[121] The Crown Prosecutor played to him the relevant part of the CCTV footage compilation and he agreed it did not show McNamara banging the door. He maintained the door was “a little bit hard to get up”; there “might have been a couple of pushes or a couple of shakes” but “not a whack, no”. ^[122] The Rent-a-Space “site activity” report confirms the door was closed once when McNamara went outside, leaving Rogerson inside the unit. ^[123] He then opened the door and re-entered. The CCTV footage simply shows him pulling the door down and lifting it back up again; there is no apparent force or manipulation. ^[124]

117. Rogerson said there was a short conversation during this visit in which McNamara referred to the CCTV camera being “nice and handy”. McNamara said he would “make sure that the roller stays up for safety”; that “if anyone follows us here they’ll be on camera” and, “so we’ll be safe”. That was the extent of what was a short conversation. ^[125] As to what they were talking about during the eight minutes he was inside the unit, Rogerson said he had “no idea”; when pressed, he could not recall. He agreed there was no light on in the unit. ^[126]

118. The Crown Prosecutor submitted to the jury: ^[127]

“Something is happening there that is completely inconsistent with the account Mr Rogerson gives and the account that Mr McNamara gives about some problem with the door. Something quite different is happening and the Crown says at that time, half an hour before Jamie Gao enters the shed with Glen McNamara, it is of great significance.

What are they doing? It can’t be established with precision. The Crown says they are both lying about what they were doing. … and the Crown submits what you would accept is they were doing something in relation to that unit with the knowledge of how it was to be used in … half an hour or so to shoot dead Jamie Gao in the unit.”

20 May 2014 – events in Arab Road, Padstow

119. After leaving Rent-a-Space, the pair proceeded to the vicinity of McDonald’s, Padstow, on the corner of Davies Road (the main road) and Arab Road (a side street). It is not possible to turn right from Davies Road into Arab Road. Rogerson described driving past it, turning right at the traffic lights at Watson Road, right into Stuart Street, then right into Arab Road. Thus the cars driven by McNamara and Rogerson came into Arab Road, travelling west back towards Davies Road. McNamara in the white Falcon wagon was first, followed by Rogerson in his car.

120. Activity in Arab Road was captured on CCTV cameras attached to various business premises. The following description of the movement of cars and people is derived from the footage. ^[128]

121. McNamara drove the white Falcon wagon west along Arab Road towards Davies Road. He pulled into the left hand or southern kerb and parked outside Crow Tae Kwon Do at 17A Arab Road.

122. Rogerson’s car was seen almost immediately travelling in the same direction but at the moment McNamara drew into the kerb and parked ahead of him, Rogerson made a U-turn and parked against the northern kerb outside Micks Meats at 2C Arab Road.

123. The two business premises mentioned appear to be about 50 metres apart on opposite sides of the street. Rogerson and McNamara remained in their respective vehicles which were facing in opposite directions.

124. About five minutes later, a white Nissan Silvia came along Arab Road, away from Davies Road. (It had come from the M5 Motorway a short distance away and thereby must have turned left into Arab Road. ^[129] ) Immediately after it passed Rogerson’s car parked outside of Micks Meats, Rogerson made a left turn into the driveway and carpark of Micks Meats and parked, now facing towards Davies Road. Simultaneously, the Nissan came back along Arab Road and, replicating Rogerson’s earlier manoeuvre, it made a U-turn outside Micks Meats and parked against the kerb in the space he had just vacated. Rogerson’s car was now only 10-15 metres away from, and facing, the deceased’s car. The conclusion is inescapable that Rogerson was aware the deceased was in the Nissan and deliberately made room for him to park.

125. The deceased alighted from the driver’s door of the Nissan at about 1.39.46pm (according to the Micks Meats CCTV) and, carrying something in his hand, walked fairly quickly towards where McNamara was waiting in the white Falcon wagon. Within 14 seconds, Rogerson drove out of the Micks Meats driveway and turned left, away from Davies Road and from where the white Falcon wagon was parked. By the time he drove away he would have been able to see the deceased heading towards McNamara’s location as well as the fact that two other men had alighted from the passenger side of the Nissan. When the deceased arrived at the white Falcon wagon at 1.40.08pm he entered the rear nearside door which had been left ajar for him. The white Falcon wagon was driven away at 1.40.15pm and proceeded to Rent-a-Space.

126. Rogerson said he went to Arab Road in response to a request by McNamara to be his “second set of eyes”. He said, “I could see no reason why not to help him or to be of assistance to him”. McNamara had told him to “find a spot and keep an eye out for suspicious cars with Chinese on board”. He told Rogerson that the informant had a white Nissan sports sedan. ^[130]

127. Rogerson was asked by his own counsel whether there was any conversation about what he should do if anything happened and he replied, “I wasn’t expecting anything to happen”. When directed to answer the question, he replied, “No”. In cross-examination by counsel for McNamara he was asked what he was going to do if he saw “a suspicious car with Chinese on board”. He answered, “We, we never covered that point.” There was no suggestion of beeping the horn or ringing him on the phone or anything. ^[131] When pressed about this for some time in cross-examination by the Crown Prosecutor, Rogerson offered, “It was a, it wasn’t much of a good job. It wasn’t a very good job at all”. ^[132] The complete absence of any planned action if the anticipated concern arose makes this part of Rogerson’s account particularly difficult to accept.

128. The Crown Prosecutor argued that Rogerson’s presence in Arab Road was nothing to do with being a “second set of eyes” but everything to do with him being McNamara’s partner in a plan to have the deceased bring a large quantity of drugs to them. Circumstances supporting that conclusion included that he immediately drove off after seeing the deceased walking in the direction of where he understood McNamara to be waiting. He did not stay until the deceased had arrived at the safety of McNamara’s car, looking for suspicious cars or Chinese people. ^[133]

20 May 2014 – back at Rent-a-Space with the deceased

129. McNamara and the deceased in the white Falcon wagon arrived at the front entrance to Rent-a-Space at 1.42.12pm. ^[134] McNamara entered the access code, drove in and parked outside storage unit 803. The rear of the vehicle was facing the CCTV camera and the storage unit was on its nearside. McNamara alighted and went around to the nearside and unlocked and opened the roller door to the unit. He returned to the offside, entered and reversed the car a little. This had the effect that the rear nearside door was more closely aligned with the open door to the unit. He returned to the nearside, opened the rear door, looked around behind him and then looked back. He did this twice. Only then did the deceased alight and rather quickly step into the unit and out of sight. His white shoes were briefly visible, but the rest of his body was shielded from view by McNamara. This appears to have been a careful and planned exercise in getting the deceased from the car to the storage unit without being seen by any person or CCTV camera.

130. As Bellew J noted, McNamara’s manner of dress at this time was significantly different to the way he was dressed earlier and later in the day. ^[135] In the late morning when he went to Cronulla Mall, he was wearing sunglasses, shorts, a light coloured “hoodie” (not pulled over his head) and no cap. Later in the day when he went to Kennards Hire, he wore a t-shirt, shorts or rolled up long pants and no hoodie, cap or sunglasses. At Rent-a-Space on both visits this day he was wearing a dark hoodie, long dark tracksuit pants, sunglasses and a cap with the top of the hoodie stretched over it. He explained he was trying to conceal his identity because of his fear of the immediate presence of members of Asian crime gangs. ^[136]

131. Rogerson gave evidence that McNamara pulled the hoodie up when he was about to get out of the car on their first visit to Rent-a-Space on 20 May 2014. He was asked by counsel for McNamara, “did you say, ‘Glen, what’s with the hood, what’s with the sunglasses, what’s with the cap’?” He said he did not, “Because I had seen him wearing a hoodie before”. ^[137]

132. The corrected CCTV time for the deceased’s entry to storage unit 803 is 1.45.58pm. ^[138] McNamara entered the unit immediately after him and closed the roller door.

133. Rogerson arrived in his silver Ford station wagon via the rear entry at about 1.46.54pm. ^[139] He drove a complete circuit of that part of Rent-a-Space, passing the white Falcon wagon and storage unit 803 as he did. He did not park directly near the unit but in an adjacent lane between storage units. He said he drove around first before parking “to make sure that there were no suspicious cars or no suspicious people or no suspicious anything”. ^[140]

134. The door to storage unit 803 was closed. It had been closed by McNamara immediately after the deceased and he entered, and it was still closed when Rogerson arrived. This was contrary to the assertion by McNamara during the earlier visit that he would ensure the roller door remained up because of the reassuring presence of the CCTV camera (see above at [117]).

135. The Crown Prosecutor put to Rogerson that the door was closed because McNamara was inside with the deceased waiting for him, as the supposed “money man”, to arrive. He described that as “complete nonsense”. ^[141]

136. Rogerson alighted and started walking towards 803 at about 1.48.45pm. He paused momentarily at the roller door and then pulled it up. He did not pull it up completely but ducked slightly in order to enter. (Rogerson’s evidence was that the door was opened for him from the inside, but nothing appears to turn on this. ^[142] ) The door was immediately closed. His entry was at about 1.49.16pm or about 3 minutes and 19 seconds after the entry of the deceased and McNamara.

137. Rogerson’s evidence was that Jamie Gao was dead on the floor and McNamara gave an account of how he came to have been shot by having his own gun turned back on him in a struggle. Rogerson suggested they should call the police, but McNamara was concerned about the Triads, that the place would soon be “swarming with Chinese assassins”, and that innocent people could be killed. He saw no reason not to believe McNamara, so he agreed to help. ^[143] The full text of Rogerson’s evidence is provided below (at [265]-[267]).

138. The Crown submitted in this Court that Rogerson’s account was “far-fetched”. ^[144] Mr Stratton SC submitted the Court might think that what McNamara said to Rogerson was “a fanciful version”, but submitted “Rogerson’s evidence was not that that version was true, but that’s what he was told”. ^[145] The significant point, however, is that Rogerson did not accept it was “pretty farfetched”. ^[146] He said he believed it: ^[147]

“Q. Did you believe what he was telling you?

A. I had no reason not to. I had no reason not to believe everything he said.”

139. McNamara’s account has been set out in full above (at [15]). Briefly, it was that Rogerson killed the deceased soon after entering the storage unit. Rogerson demanded drugs, but the deceased had insisted on seeing the money. The deceased produced a knife, and Rogerson shot him in self-defence. He said that Rogerson then threatened to kill McNamara and his daughters if he did not help in getting rid of the body and associated activities. ^[148]

140. More will be said about these accounts later.

141. After about eight minutes (1.58pm), the roller door went up and Rogerson emerged. He drove his car over to the vicinity of storage unit 803 and reversed it up to the rear of the white Falcon wagon. He pulled up the tail gate of his station wagon which had the effect of impeding the CCTV camera’s view of the white Falcon wagon and some of the activity immediately outside the unit.

20 May 2014 – the transfer of the deceased’s body to Cronulla

142. McNamara retrieved the surfboard cover from the white Falcon wagon and took it inside the storage unit. Rogerson had in his car “an old rug wrapped around an old blue tarp and some old ropes” that he retrieved and brought in. The body was placed in the surfboard cover and “Glen McNamara then pushed the rug under and brought the rug over the top of his legs”. ^[149]

143. About nine minutes later, the deceased’s body within the surfboard cover was dragged out and placed in the rear of the white Falcon wagon. The pair went back inside the unit where McNamara picked up the deceased’s bag, Rogerson’s tarp and the ropes and put them in the white Falcon wagon. ^[150] This was at about 2.18pm. Storage unit 803 was locked up at about 2.22pm. Rogerson drove off in his own car and McNamara left in the white Falcon wagon, both at about 2.24pm. ^[151]

144. It was an extraordinary coincidence if McNamara had the surfboard cover and other items in the car because he intended going to the tip to dispose of rubbish. The same applies to the tarpaulin and ropes in Rogerson’s car. The Crown Prosecutor described the bringing of the surfboard cover as a matter of “great importance in the Crown case”. Together with the untraceable car, storage unit 803, and the boat, it supported the Crown case that “they intended what in fact happened”. ^[152]

145. Rogerson in his own car and McNamara in the white Falcon wagon arrived at McNamara’s apartment block at Cronulla at about 3.03pm. Rogerson parked outside and got into the white Falcon wagon which was then driven by McNamara into the underground carpark, down to his double garage on the B2 level where the boat and trailer had been parked the previous day. ^[153] There were no CCTV cameras covering the area where the garages were on level B2. ^[154]

20 May 2014 – preparing the body for disposal at sea

146. The body was taken from the white Falcon wagon and placed on the floor. According to Rogerson, McNamara closed the door and then leaned over the body: ^[155]

“He was saying, ‘This arsehole nearly killed me, this arsehole nearly killed me’. I said, ‘Are you alright, mate?’ He said, ‘As best as I can be under the circumstances. He can’t hurt me but his mates can, and I’m very worried about my daughters. They are vulnerable’. Again, he said, ‘This arsehole almost killed me’. He said, ‘What about give me a hand getting him into the boat and I’ll take him away in the morning? That’s my only chance.’ He said, ‘I’ve got to distance myself from him’. He said, ‘As long as he’s around’ – sorry – ‘I’ve got to distance myself from him. If his body’s found with the bullets in it, I know his mates will come after me’.”

147. The body was wrapped with tarpaulin and ropes. The tarpaulin was the one Rogerson retrieved from his car at Rent-a-Space and which McNamara had brought to Cronulla in his car with the body. An unsuccessful attempt was made to lift it up into the boat. ^[156] (The evidence each man gave about these events varied in terms of who did certain things and who made decisions, but nothing turns on it.)

148. The pair went to Kennards Hire at Taren Point after they realised they could not lift the body into the boat. CCTV footage within the store showed them being served by an employee, Jack Bridge. He was told that there was a need for something to lift a wood lathe weighing 200-300 kg. He suggested a metal structured pulley system. He was questioned about this and showed the men some chain blocks at the back of the store. It was Rogerson who initiated the inquiry about what was required and why. McNamara asked about alternative equipment. They hired a 2-tonne chain block. McNamara paid by credit card and provided his own name, telephone number and the old address that remained on his driver’s licence. Mr Bridge observed the men leave in the white Falcon wagon. ^[157]

149. The white Falcon wagon returned to the carpark at McNamara’s apartment block at 4.56pm and was parked in a visitor’s car space on level B1. ^[158] At some point in McNamara’s garage on level B2 the body of the deceased was lifted up with the help of the chain block and placed in the boat.

20 May 2014 – a few beers in McNamara’s apartment

150. After loading the body into the boat the two men went to McNamara’s unit and drank some beer. McNamara said he could see the shape of a pistol in Rogerson’s pocket and the weight of it was dragging down the material of his tracksuit pants. ^[159]

151. Jessica McNamara was present. She gave evidence she saw Rogerson touching the right pocket of his trousers in “a tapping rubbing motion”. She could see “a lump” and “the top of whatever was in his pocket and it was a dark colour”. It was a part of the evidence in the case for McNamara that Rogerson had made subtle threats in relation to McNamara and his “lovely lovely daughters”. ^[160] The Crown Prosecutor submitted to the jury that this was “some circumstantial evidence that you could and should take into account on this question of where the gun was at that time”. ^[161]

21 May 2014 – disposal of the body

152. At 7.28am on 21 May 2014, McNamara’s blue Ford sedan, with the boat and trailer in tow, was driven out of the carpark. A large object wrapped in blue tarpaulin within the boat is evident in the CCTV footage. The car and trailer were parked out the front and McNamara re-entered the building. At 7.32am, Rogerson and McNamara were seen entering a lift at the B2 level. McNamara was holding two fishing rods. They emerged at the ground floor and walked towards the blue Ford. ^[162]

153. McNamara claimed Rogerson suggested they go to Grays Point in order to go out through Port Hacking to sea and dispose of the body. McNamara drove there with the boat and Rogerson followed in his car. ^[163] Rogerson thought they went to a boat ramp around Gymea, but wherever it was he followed McNamara there. McNamara claimed both of them went out on the boat and disposed of the body into the sea. Rogerson claimed McNamara did this alone while he waited for about an hour until he returned. ^[164]

154. Rogerson was asked in cross-examination by counsel for McNamara why he waited, and he replied: ^[165]

“I wanted to talk to him about cleaning up Mick's unit. I had a lot of things to think about, a lot of things to think about, and it was quite, I thought, quite - what's the word? It just gave me an hour to think about all the things, the dreadful things that had happened in that 24 hours or so and what was going to happen following it all. I just sat in the car, peace and quiet, and had a think about what had happened.”

155. There are a number of difficulties with this aspect of Rogerson’s account. They include that there was no reason for Rogerson to attend McNamara’s home at Cronulla, follow him to wherever the boat was launched and then wait for a considerable time for him to return if all he wanted to do was discuss cleaning up storage unit 803. Further, if he had not sufficiently been able to reflect overnight on what had occurred and what might follow, he would have been just as able to do that if he had stayed at home. His evidence of McNamara making a vague allusion to concern about retribution from criminal associates of the deceased and asking the previous night for Rogerson to follow him the next morning to the boat ramp “just to be on the safe side” strained credulity. ^[166]

156. Another issue with Rogerson’s account is the difficulty one person would have had in lifting up the deceased’s body and discarding it overboard, even in the calmest of seas. The two men required a mechanical aid to lift the body into the boat in McNamara’s garage. According to Rogerson, “neither of us or collectively could lift the body any more than just inches off the floor”. ^[167] (This is discussed below at [192].)

21 May 2014 – returning the boat and cleaning the storage unit

157. McNamara said once they returned to shore, Rogerson told him, “Drop your boat off and come over, I’ve got to clean up the shed, pick me up”. (Rogerson also gave evidence that cleaning up the shed was his idea. ^[168] ) McNamara returned his boat to Hunter Self Storage, despite the claimed twofold purpose of taking the boat out of storage on 19 May 2014 being to take Jessica on a fishing trip and having the boat serviced. ^[169] When challenged by the Crown Prosecutor about the return of the boat on 21 May, McNamara said: ^[170]

“Nothing mattered after that date. Nothing mattered. You know, I didn't want the boat there, nothing mattered. The saving of money or going out fishing or using that boat, I didn't want anything to do with it. Nothing mattered.”

158. As to cleaning up storage unit 803, Rogerson said the previous day he had seen a small amount of blood on the floor and some of the stored furniture was “a bit skewiff”. He drove home and McNamara came over and picked him up. Rogerson took a green bucket, a sponge and a plastic bottle of water and they went to Rent-a-Space in McNamara’s car. McNamara’s evidence was that they each found a fired cartridge case. Rogerson said he was unaware of any cartridge cases being found. McNamara dropped Rogerson home after they had cleaned and tidied up. ^[171]

22 May 2014

159. McNamara said the white Falcon wagon was parked out on the street and on the morning of 22 May 2014 he searched it. He found drugs secreted under the driver’s seat. There were two bundles in a green pack and one of the bundles had spilled. He considered this was dangerous as “it could catch fire or explode and cause some injury”. The drugs needed to be sealed. He went to Kmart and bought a measuring jug, a cooking spoon and two pillowcases. ^[172] He said he returned to where the white Falcon wagon was parked outside his apartment building. He got down on his hands and knees and repackaged the drugs using the items he had purchased. There were plastic labels on the pillowcases. He feared they might cause a chemical reaction with the drugs, so he ripped them off. The green pack had some sludge in it, so he took it to his apartment, cleaned it and returned it to the car. The repackaged drugs were replaced into the green pack which was returned to underneath the driver’s seat. ^[173] (It was the Crown case that he had repackaged the drugs in his unit: see below at [166].)

160. McNamara returned the chain block to Kennards Hire later that morning. ^[174]

161. Rogerson went (alone) back to storage unit 803. As mentioned above (at [93]), he returned chairs he had taken on 19 May 2014 but which he claimed turned out to be unsuitable for his home office. ^[175] An available inference is that the chairs had been removed temporarily to allow more room for what was intended to occur on 20 May 2014. ^[176]

162. Rogerson drove up to storage unit 803 at about 11.13am, according to the CCTV footage compilation. ^[177] As he did so, three men were walking away from that vicinity, one dressed casually and the others in long trousers, long-sleeve shirts and identical looking striped ties. Rogerson was later to tell his wife that they were police and “they saw me, because they were lookin’ at me”. ^[178]

163. The Crown contended that awareness of the police being at Rent-a-Space was relevant to Rogerson’s contribution to the arrangements to get rid of the white Falcon wagon. It also gave rise to cautiousness about speaking on the phone for fear of police interception of his communications. ^[179]

164. Rogerson said he met up with McNamara on 22 May 2014 at the Crown Hotel at Revesby. Sometime prior to that he had spoken to a friend, Adam Borg, and told him McNamara might be needing a tow. Rogerson gave McNamara a handwritten note which included, “Adam Borg Maroubra Smash Repairs”, a mobile and landline phone number, and “Funeral Monday 11-1pm phone off”. ^[180] This was cited by the Crown as an example of Rogerson’s reticence to use the phone, an easier and quicker way to convey such information to McNamara. ^[181]

165. Telephone call charge records confirmed Rogerson had called Borg at 10.19am on 22 May 2014. The following afternoon at around 4.15pm, McNamara rang Borg from a payphone. On 24 May 2014, Borg first called McNamara at 8.18am and then Rogerson at 9.12am. Rogerson called McNamara shortly after, at 9.32am. There was then an SMS message from Borg to McNamara at about 11.05am that day. ^[182]

23 May 2014

166. McNamara was seen on CCTV footage carrying a dark green backpack when he left his building in order to move the white Falcon wagon into the underground carpark at about 9.45pm on 23 May 2014. When police later found the drugs in the white Falcon wagon they were in a dark green backpack. Contrary to his version (see above at [159]), it was the Crown case that he had repackaged the drugs in his apartment and was now putting them into the white Falcon wagon which he then needed to put in a more secure place. ^[183]

167. The Crown disputed McNamara’s claim of repackaging the drugs out in the street by reference to his claim of ripping off labels on the pillowcases that were used. He was shown one of the pillowcases during cross-examination and it was put to him that the labels had been cut off, indicative of that occurring in his apartment and not in the street. McNamara did not agree with the proposition. ^[184] The Crown Prosecutor put to the jury that repackaging the drugs in his apartment was consistent with McNamara having an interest in the drugs in a way that was completely inconsistent with his version. ^[185]

24 May 2014

168. Police arranged for a tow truck to enter the secure carpark of McNamara’s building and seize the white Falcon wagon at 4.50am on 24 May 2014. ^[186]

169. Later that morning, police found the drugs in two brown pillowcases, one of which was in a green backpack, under the driver’s seat. Upon analysis it was found to be methylamphetamine weighing a total of about 2.78 kg. The Crown adduced expert evidence to the effect that the purity was at a relatively high level for crystal methylamphetamine (or “ice”) and the monetary value was within a range of $540,000 to $702,000. ^[187]

170. McNamara became aware that the white Falcon wagon was “missing” by at least the time he spoke with the building superintendent later that morning to whom he claimed a car belonging to his brother had been “stolen”. ^[188]

171. Rogerson was due to fly to Brisbane at midday on 24 May 2014.

172. A call on 24 May 2014 at 9.32am by Rogerson to McNamara was intercepted. ^[189] Rogerson’s part of the conversation was concerned with the arrangements to be made between McNamara and Borg for the towing of the white Falcon wagon while McNamara seems to have been more intent on obtaining the details of Rogerson’s flight departure. Having been given that information, McNamara went to the airport and met Rogerson. ^[190] This is consistent with McNamara being concerned about the “disappearance” of the white Falcon wagon that morning; not wanting to speak on the phone about it; and intending to go to the airport to discuss it with Rogerson before his departure. It is consistent with McNamara knowing that Rogerson had an interest in the issue.

173. Rogerson said McNamara told him at the airport that either one of the deceased’s Triad mates or an opportunistic thief had taken the white Falcon wagon. ^[191]

174. McNamara said he went to the airport for two reasons. One was to ensure Rogerson was leaving Sydney because McNamara was fearful of what Rogerson’s response might be on finding out the white Falcon wagon had gone missing. The other was to ascertain whether Rogerson knew that it was missing. He said Rogerson asked him, “Where’s my fucking car?” McNamara replied that he thought it had been towed. Rogerson’s response was, “If you’ve done anything with that car, I’ll kill you”. McNamara said, in effect, he protested ignorance and that was the end of the conversation. ^[192]

175. McNamara called Karl Bonnette from a payphone at Caringbah that afternoon. ^[193] That this occurred in the context of the white Falcon wagon having just gone “missing” tends to support the proposition that Karl Bonnette was involved in the provision of the car to Rogerson and McNamara.

Male 1 and Male 2

176. It was the Crown case that two Asian males referred to as Male 1 and Male 2 were in Australia to play a role in the proposed supply of methylamphetamine by the deceased to McNamara. ^[194] Immigration records indicated Male 1 travelled from Hong Kong to Australia on 8 February 2014, returned to Hong Kong on 3 March 2014, arrived again in Australia on 3 April 2014 and departed for Hong Kong on 24 May 2014. Male 2 arrived on 22 April 2014 and departed for Hong Kong on 29 May 2014. ^[195]

177. Multiple phone numbers for Male 1 and Male 2 were identified. Phone contact between Male 1 and the deceased was of increasing frequency from 22 April with a significant amount of interaction by voice and text on 19 and 20 May 2014. ^[196]

178. Det Sgt Phillips gave evidence that police had been unsuccessful in efforts to contact Male 1 and Male 2 with a view to furthering the investigation. ^[197]

179. It was the Crown case that Males 1 and 2 were the two men with the deceased when he alighted from the Nissan Silvia in Arab Road, walked to the white Falcon wagon and was then driven away at 1.39-1.40pm on 20 May 2014 by McNamara. ^[198]

180. The last voice call between the deceased and Male 1 was 20 minutes earlier at 1.18pm on 20 May 2014. The Nissan driven by the deceased and parked in Arab Road at 1.39pm was captured exiting the M5 tollway at Fairford Road, Padstow at 1.35pm. ^[199] It may be inferred that Male 1 had become a passenger in the Nissan not long before. ^[200] It may therefore be inferred that he shared the deceased’s interest in what was anticipated to transpire soon in the meeting with McNamara.

181. After the deceased departed from Arab Road with McNamara, Males 1 and 2 were seen apparently waiting at the nearby McDonald’s. There was a series of attempts by Male 1 to contact the deceased from 2.23pm until 6.25pm. At 5.21pm, the Nissan stopped outside Rent-a-Space and two men alighted. Male 1 was captured on CCTV as he stood at the entrance. ^[201]

182. In his closing address, the Crown Prosecutor concluded his analysis of the CCTV footage, call charge records and immigration entry and exit data by submitting the jury would find that Males 1 and 2 travelled to Australia and attended Arab Road with the deceased on 20 May 2014 in order to oversee or certainly to take part in a drug transaction. ^[202] Proof that there was intended to be a drug transaction was a central feature of the prosecution case.

Police investigation

183. Det Sgt Phillips gave evidence that a police investigation into the possible kidnapping of the deceased commenced on the night of 21 May 2014. Telephone interception warrants were obtained in relation to some associates of the deceased. CCTV footage from Rent-a-Space was obtained and reviewed and then a covert search warrant was executed at storage unit 803 in the early hours of 24 May 2014. Later that day a warrant was obtained for the interception of Rogerson’s phone.

184. McNamara was arrested at his home on the evening of Sunday 25 May 2014. Rogerson was arrested at his home after his return from Queensland on Tuesday 27 May 2014. ^[203]

185. Police seized McNamara’s boat from Hunter Self Storage, Caringbah, at 1.40am on 26 May 2014. ^[204]

186. The deceased’s body was found floating in the ocean about a kilometre off Shelly Beach, Cronulla on the morning of Monday 26 May 2014. An officer with the Diving Unit who attended the scene described it as wrapped in a blue tarpaulin, securely tightened with a number of ropes and chains. The chain was around the centre of the body with the chain hanging down below the surface to a depth of three metres. There was nothing at the end of the chain. The head and body were completely covered with only the lower legs and shoes protruding. ^[205]

187. Rogerson agreed the chain appeared “very similar” to that which he kept in his car but denied it was his. ^[206]

188. An autopsy revealed the cause of death was gunshot wounds to the chest and abdomen. Bullets of .25 calibre were recovered from the body. They had been fired by the one firearm. ^[207] The bullets were capable of having been fired by a number of types of firearms including some that McNamara had been making inquiries about (see below at [193]). ^[208]

189. The forensic pathologist’s evidence included that the body remained wrapped when it was received. She described the chain as “a large link metal chain” and a “heavy metal chain”. ^[209]

190. The chain was later examined by a crime scene officer. It was six metres long with links about 55mm long and 35mm wide. ^[210] There does not appear to have been any evidence as to the weight of the chain, but it would seem to have been relatively heavy from the way it was described when it was required to be handled in court. ^[211]

191. The Crown Prosecutor emphasised the weight of the chain in his closing address. ^[212] He referred to the body having “a heavy chain attached to it”. He reminded the jury of McNamara’s evidence that it had an anchor attached to it. ^[213] He invited the jury to “feel the weight” of the chain.

192. The fact that the body was accompanied by the weight of the surfboard cover, the tarpaulin, various ropes, and particularly the heavy chain, would have made it a difficult task for McNamara alone to lift it up and dispose of it over the side of his boat while maintaining control of the boat itself. The two men were unable to lift it more than a few inches off the ground in McNamara’s garage and that was before the chain was attached to it, let alone an anchor. However, it would be necessary to consider the different circumstances; particularly that lifting the body into the boat, while it was out of the water on a trailer, would involve a higher lift than pushing it with the attached items up and over the side of the boat when in the water.

193. Detective Senior Constable Brook Clingan examined McNamara’s computer including its history of internet searching. It was found that on 9 April 2014 he had visited at least 30 pages using the phrases, “Baby Browning”, “.25 Baby Browning”, “.25 single action” and “Baby Browning .25 technical”. There was a visit to Wikipedia on 10 April 2014 using the search term, “FN Baby Browning”. ^[214]

194. In cross-examination by counsel for McNamara, DSC Clingan agreed that there had been searches in February and March 2014 for other firearm related matters: shooting ranges, rim fire ammunition, Sig Sauer pistols, 9mm hollow point and other 9mm ammunition. ^[215]

195. Gunshot residue was found on three items of clothing seized in a search at Rogerson’s home on 25 May 2014. The items were a cap and pants thought to have been worn by Rogerson on 20 May 2014 and a shirt thought to have been worn by him the following day. Dr Stephanie Hales, forensic chemist, gave evidence that the residue could have been deposited and retained on the items because Rogerson fired a gun; he was in close proximity to a gun when fired; or he had come into contact with an object or surface that was contaminated with such residue. She described these as equal possibilities. ^[216] The Crown Prosecutor submitted in closing address that the combination of the evidence of Jessica McNamara of seeing something that could have been a gun in Rogerson’s pocket, the possibility that the gun that fired .25 calibre ammunition was small, perhaps a Baby Browning, that could fit in the palm of a hand, and the finding of gunshot residue on his clothing might justify a conclusion he was the shooter. ^[217]

196. In summary, it was the Crown case that both accused were involved in a drug “rip off”. It was McNamara’s role to lure the deceased to storage unit 803 with the drugs. Rogerson would then attend as the supposed purchaser, “the money man”. The plan was to steal the drugs and cover their tracks by killing the drug supplier and getting rid of his body. ^[218]

Principles

197. Bathurst CJ summarised the principles applicable to an unreasonable verdict ground in Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84]-[86] as follows:

“84   The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the Court is required to make its own ‘independent assessment of the evidence’. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’ and ‘[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred’: see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59].

85   As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.

86   In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]-[48].”

198. The last of those paragraphs is particularly pertinent to the present case which was clearly one based to a very large extent upon circumstantial evidence.

199. Two other matters referred to in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] relating to the role of the jury deserve emphasis:

“65   It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. …

66   With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.” (footnotes omitted)

200. The reference to s 668E(1) of the Criminal Code (Qld) was a reference to the common form appeal provision for the “Determination of appeal in ordinary cases” that applies in New South Wales under s 6(1) of the Criminal Appeal Act 1912 (NSW): that the Court shall allow an appeal against conviction “if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”.

Submissions and consideration

201. The closing address for the Crown ranged widely over the evidence that had emerged in a trial of considerable length and with some extraordinary features, not the least being the extent of the “cut-throat” nature of the defence cases. In the end, the prosecutor sought to characterise the trial as involving a powerful circumstantial evidence case presented by the Crown, with the defence cases relied upon by each accused completely lacking in credibility. He advanced the first of those propositions by listing 29 circumstances upon which the Crown relied. The lack of credibility of the defence cases was said to be based upon the strength of the prosecution case and a number of asserted lies told by each accused. ^[219]

202. Counsel for Rogerson approached this ground of appeal in both written and oral submissions by addressing each of the 29 components of the circumstantial case that had been identified by the Crown Prosecutor below. The following comprises a discussion of these circumstances and the submissions made about them. A view will be expressed about some of them but it is unnecessary to express a finding or a view about every single circumstance as it is the combined force of them all that must be assessed.

203. The submissions sometimes referred to exculpatory explanations provided by Rogerson and McNamara for some of the circumstances. It needs to be borne in mind that their credibility was very much in issue and the verdicts indicate the jury concluded on that subject unfavourably towards them.

1. McNamara’s 27 meetings with the deceased from January 2014 to 20 May 2014. ^[220]

204. The evidence in relation to meetings between McNamara and the deceased, and Rogerson’s awareness of those meetings, has been reviewed earlier (see [28]-[37]).

205. It was submitted there was no evidence of any contact in any form between Rogerson and the deceased. Aside from evidence of telephone contact between Rogerson and McNamara around the time of meetings between McNamara and the deceased, there was no evidence contradicting Rogerson’s evidence that he did not know about any such meetings.

206. Rogerson’s evidence was that he had never met the deceased. (The Crown accepted this.) The first time he had anything to do with him was when he was dead on the floor of the storage unit. The first time he heard his name was later that day. McNamara’s evidence aside, there was no evidence challenging this.

207. The Crown Prosecutor anticipated in his closing address that a submission of this type may be made on Rogerson’s behalf. To counter it he relied upon the phone contact between Rogerson and McNamara that coincided with a number of the meetings. This evidence has been summarised earlier (at [33]ff).

208. The Crown submitted in this Court that the phone calls went to show Rogerson’s interest and participation in what McNamara was doing with the deceased. ^[221] More appears below (at [228]) in relation to the seventh circumstance.

2. The lack of meeting notes or research material relating to a book said by McNamara that he was getting information for. ^[222]

209. It was submitted that this point did not involve Rogerson. It challenged McNamara’s explanation for ongoing contact with the deceased.

210. If the contact between McNamara and the deceased was not of the character that McNamara maintained, it was more likely to be something nefarious that he was unwilling to be truthful about. That is not a proposition that assists Rogerson.

3. Rogerson obtaining six keys from Michael Maguire in March 2014 and giving him back five keys a few days later. ^[223]    

211. Michael Maguire’s and Rogerson’s conflicting accounts concerning the keys to storage unit 803 have been summarised earlier (at [38]ff).

212. Submissions were made about the quality and reliability of Mr Maguire’s account. There were differences between his two statements made only four days apart. He had died before the trial and so his account could not be tested by cross-examination, for example as to whether he was mistaken about dates, and whether he had retained a key when he gave keys to Rogerson and then neglected to give that key to police.

213. It was submitted that Rogerson’s denial of the Crown’s assertion of his purpose vis-à-vis the storage unit was supported by consistency between his and Mr Maguire’s explanation for why he had access in the first place (to look at the office furniture inside).

214. Resolution of the return of keys issue was not determinative but it was amenable to a view that did not assist Rogerson. The Crown’s characterisation of the evidence was not without validity. It was, in effect, that while the initial reason for access to the storage unit might have been legitimate, the retention of opportunity to access it enabled use for an illegitimate purpose.

4. The arrival of Male 1 and Male 2 in Australia, their contact with Jamie Gao and their presence in Arab Road on 20 May 2014. ^[224]

215. It was accepted in the written submissions that the two Asian males who accompanied the deceased in his car to Arab Road on 20 May 2014 were involved in his drug supply activities. However, it was submitted there was no evidence of Rogerson having any knowledge of them, let alone contact with them.

216. The Crown case and evidence in relation to Male 1 and Male 2 appears above (at [176]). Whether Rogerson had knowledge of these two men was immaterial. It had no bearing on the viability of the Crown case against him.

5. The attendance at Rent-a-Space by Rogerson on 2 April 2014, and by Rogerson and McNamara on 4 April 2014. ^[225]

217. A summary of the evidence relating to these visits to Rent-a-Space may be found above (at [47]-[51]).

218. Rogerson rejected suggestions made to him by the Crown Prosecutor in cross-examination that on 2 April 2014 he was conducting surveillance and having a look around. He also rejected suggestions that on 4 April 2014 he and McNamara were looking at the space together and discussing whether it was suitable for what eventually happened on 20 May 2014.

219. Rogerson said he could not explain why the Site Activity log did not record the door to the storage unit being opened or closed on 2 April 2014. He claimed that he did open it. That assertion was consistent with the Crown case as well; “one might have expected him to inspect the shed if he were attending for the purpose suggested by the Crown”. ^[226]

220. It was further submitted that the benign explanation Rogerson gave of being there to have a look at the office furniture was consistent with the reason given by Mr Maguire for giving the key and access code to Rogerson. It was also consistent with that given by McNamara, even though he had the date wrong.

221. Mr Stratton SC submitted on the appeal that this circumstance was neutral. ^[227] However, the observation made above (at [214]) applies similarly to this circumstance.

6. The Baby Browning searches on 9 and 10 April 2014, and the associated relevance of .25 calibre ammunition. ^[228]

222. This circumstance related to the search history on McNamara’s computer and the expert evidence of Mr Jackson as to .25 calibre ammunition used to kill the deceased: see above at [188] and [193].

223. It was submitted there was no evidence Rogerson was involved in or had knowledge of McNamara’s internet searches in relation to firearms.

224. If Rogerson did have such knowledge, it could be adverse to him in relation to his asserted participation in the alleged joint criminal enterprise. If he did not have such knowledge, it could at least demonstrate that the person with whom he was alleged to be a co-participant in a joint criminal enterprise was researching weapons of the type in fact used to kill the deceased.

7. The frequency of telephone contact between Rogerson and McNamara from January to May 2014, in particular, around the meetings between McNamara and the deceased. ^[229]

225. Rogerson submitted that the temporal correspondence between his and McNamara’s telephone contact and McNamara and the deceased’s meetings was diminished by it occurring in relation to only 6 out of 27 meetings and Rogerson and McNamara otherwise being in regular telephone contact because they were friends and had some work associations. ^[230]

226. It was noted that Rogerson denied the calls were to update him on the progress of an anticipated supply of drugs by the deceased and nor did McNamara suggest this was the topic of their calls.

227. The evidence in relation to the telephone contact between Rogerson and McNamara has been summarised earlier (at [33]ff). It would have been open to the jury to conclude there was telephone contact between the pair that was around the time of up to 11 meetings between McNamara and the deceased rather than just 6.

228. To repeat what was said earlier (at [37]): “This juxtaposition of contact between McNamara and the deceased on the one hand, and between McNamara and Rogerson on the other, was a significant feature of the Crown’s circumstantial case. It was a powerful indication that Rogerson knew of the fact, purpose and frequency of the meetings. It also supported the inference that the meetings were not about research for a book.”

8. The purchase of the white Falcon wagon and the associated telephone contact involving Karl Bonnette and Paul Wheeler and Karl Bonnette and Roger Rogerson. ^[231]

229. The circumstances of the sale of the white Falcon wagon were rather convoluted. A summary is provided above at [59].

230. Rogerson denied involvement in the purchase of the white Falcon wagon. Even assuming the purchase by “Marvin Turnbull” was fictitious, it was submitted that having regard to the following matters it was little more than supposition that Rogerson was involved in the acquisition of it, let alone for the nefarious purpose of transporting drugs and disposing of a body three weeks later.

1. Paul Wheeler and Rogerson did not know each other.

2. There was contact between Rogerson and Karl Bonnette between 7 and 25 April 2014 but not after. However, they were old friends. Bonnette said they spoke on the phone two to three times a week but sometimes two weeks would go by without a call.

3. Bonnette and Wheeler were also in phone contact between 12 and 28 April 2014, but they had known each other for years and had involvement with each other’s cars, even if they also spoke about the white Falcon wagon as well.

4. Wheeler denied Bonnette was involved in the transaction and that Rogerson and McNamara purchased the car. Bonnette denied involvement. The presence of Bonnette’s local paper was insignificant in that it had been in the car at the time it was photographed for the sale advertisement.

5. Bonnette gave an acceptable explanation for contacting Rogerson’s wife and visiting Rogerson shortly after he had been spoken to by police.

6. Even if Bonnette was involved in the sale of the white Falcon wagon, it was McNamara who withdrew money to pay for it and cell tower records put McNamara and Bonnette in the same general area (Lidcombe-Auburn) at the same time on 28 April 2014.

7. Bonnette said he met Rogerson in the same general area at the same time, but they occasionally met there (at Auburn McDonald’s) and there was no other evidence Rogerson was in the area at around the time McNamara withdrew the purchase money from his bank account.

8. On 5 May 2014, the white Falcon wagon was parked near McNamara’s home in Cronulla.

9. On 25 May 2014, police found in McNamara’s unit the keys to the white Falcon wagon; the for sale sign was found in the glove box of McNamara’s blue Ford; and the handwritten tax invoice for the sale was found with a large number of other receipts from a desk in the living area of McNamara’s unit.

10. Rogerson’s fingerprint on the back of the tax invoice was acceptably explained by him; viz, he unwittingly touched it while rummaging through the console of the white Falcon wagon to determine if it was an old taxi.

11. The only evidence of Rogerson being in the white Falcon wagon was on the trip to Kennards on 20 May 2014.

231. The Crown submitted that the white Falcon wagon played a central role in the commission of the subject offences. It was the vehicle in which the deceased was collected on Arab Road by McNamara on 20 May 2014 and taken to Rent-a-Space where he was killed. His body was conveyed in it to McNamara’s home at Cronulla where it was transferred to the boat which was to take it to sea for disposal. The advantage to Rogerson and McNamara was that it was a vehicle that could not be linked to them. Anyone who witnessed a significant event involving the white Falcon wagon, including Male 1 and Male 2 who may have seen the deceased get into it on Arab Road, would not be able to provide evidence directly inculpatory of either Rogerson or McNamara.

232. There are a number of matters that could have caused the jury to question the analysis advanced by Rogerson. He described Karl Bonnette as someone he knew very well, having met him in 1968, and as a “very very good friend”. ^[232] However, he was also the person McNamara contacted after the car went “missing” on 24 May 2014, and after McNamara had gone to the airport to speak in person with Rogerson before his departure for Queensland. The presence of Mr Bonnette’s local paper in the car also supported his involvement with it.

233. Most of all, however, Rogerson’s entire argument about the white Falcon wagon was seriously damaged by his unlikely account (described by the prosecutor as a “desperate invention” and by the trial judge as “frankly absurd”) of how his fingerprint came to be upon the receipt for the car: see above at [81]-[83].

A “very persuasive” overarching submission

234. In the course of addressing this aspect of the Crown’s circumstantial case at the hearing of the appeal, Mr Stratton SC added what he described as “a very persuasive point”. It was that the proposition Rogerson would go to considerable lengths to procure a car which could not be traced back to him was inconsistent with the fact that he attended the scene of the murder at Rent-a-Space on 20 May 2014 in his own car. The point was subsequently expanded to apply to the entire Crown case of Rogerson being involved in the alleged joint criminal enterprise.

235. Mr Stratton SC submitted this was, on the Crown case, a carefully premeditated and serious crime. The greatest risk of detection was not when the deceased’s body was in the car but at the time of the crime and immediately afterwards when somebody might walk by and see a body being put into the car. It was submitted to be inconceivable that Rogerson, an experienced criminal investigator, would not have thought through such a basic flaw in the plan that even the simplest criminal would have detected. ^[233]

236. A difficulty with this theory is that it seems to assume someone would discover that a murder had occurred in storage unit 803 at Rent-a-Space. The CCTV footage shows there was no one in the vicinity. McNamara, particularly, appears to have been looking around to ensure that was so. Rogerson drove around the surrounding area and would have seen that no other storage unit in the immediate area of Rent-a-Space was being accessed at the time.

237. Assuming the deceased had been killed by the time Rogerson emerged from storage unit 803 at about 1.58pm, there was another 20 minutes of Rogerson and McNamara going in and out of the unit before the body was dragged out and placed in the white Falcon wagon. It would have been apparent to both men that no-one else was around in that entire period. ^[234] In short, there was nobody around at the time of the crime or in the immediate aftermath as counsel’s submission suggested.

238. True it is that some of the activity was captured on CCTV. But if a viewer did not know what had occurred inside storage unit 803, they would not have seen anything that would have caused concern.

239. Detection of Rogerson and McNamara accessing storage unit 803 would not have attracted suspicion given they had the permission of the lawful lessee to do so. Rogerson cleaned up the storage unit the day after so anyone who did not have the skills and equipment of a crime scene investigator would not have been any the wiser.

240. The Crown Prosecutor addressed such an argument in his closing address. He argued that the accused had done everything they possibly could to make the deceased disappear and reduce the risk of detection. He submitted this was the answer to the proposition that “if you were going to plan a murder, why do it there at Rent-a-Space with the CCTV”. The argument referred to three unexpected things occurring: the deceased’s friends speaking to the police; ^[235] the police having a lead to go and investigate at Rent-a-Space; and the body coming to the surface and being discovered. ^[236]

241. This argument that a man as experienced and astute as Rogerson would not have been so careless fails equally upon a consideration of his own account. He gave evidence of returning to storage unit 803 on 21 May 2014 in order to clean up and again on 22 May 2014 in order to return the two chairs he had taken on 19 May 2014, supposedly because he had found they did not fit into his office. On this account, he had by this point conducted himself in a highly questionable manner in relation to the shooting death of a man in that storage unit, including by subsequently giving assistance to the man who may have been held responsible for it by helping to dispose of the body. Yet he took no steps to conceal his identity and used his own car in relation to those activities.

242. Perhaps the answer was unwittingly given by Rogerson himself. While accepting in the course of the prosecutor’s cross-examination that he once was a very experienced police officer, Rogerson protested that as at 20 May 2014 he had started to think he was naïve; “I have got to 75 years of age and I am not the man I used to be”. ^[237]

243. No-one at the trial contended that either Rogerson or McNamara was a criminal genius. Nonetheless, the view was open that they made the best of the resources that were available. If it were not for the unforeseen or unintended matters referred to by the Crown Prosecutor, they may well have succeeded in their criminal enterprise.

9. The statements made by Jamie Gao to his friends and associates. ^[238]

244. There was evidence the deceased had mentioned McNamara to his friends and associates, but no evidence he had mentioned Rogerson. Rogerson’s evidence was he had never heard of nor met any of them.

10. McNamara removing the boat from storage on 19 May 2014 and returning it on 21 May 2014. ^[239]

245. There was no evidence Rogerson knew McNamara had retrieved his boat from storage on 19 May 2014. He gave evidence he knew nothing about it until he saw it in McNamara’s garage on 20 May 2014. He and McNamara gave evidence he was not present when McNamara returned the boat to storage on 21 May 2014.

11. Rogerson’s attendance at Rent-a-Space on 19 May 2014 and the removal of two chairs which were returned on 22 May 2014. ^[240]

246. The evidence in relation to these events has been reviewed above (see at [93]-[95]). Briefly, Rogerson claimed he attended Rent-a-Space on 19 May 2014 to ensure the storage unit was in a suitable state for the meeting that McNamara was possibly going to have with his informant (the deceased) the following day. While there he took two office chairs for use at his home. As it turned out they did not fit, and he returned them on 22 May 2014. The Crown Prosecutor was critical of this account.

247. In summary, Rogerson submitted that his evidence of attending the storage unit on 19 May and returning on 22 May 2014 was credible and contrary to the inferences for which the Crown contended. There was no direct evidence contradicting Rogerson’s account.

248. The Crown challenged Rogerson on his claim that Mr Maguire might have “added more stuff”, and if so, the unit might not have been suitable for McNamara’s proposed meeting with his informant. The Crown put to him that Maguire could not have done this because, on Rogerson’s account, he did not have a key; Rogerson had them. (The evidence as to this has been referred to earlier, at [53]-[54].) It was submitted, however, that Mr Maguire had not been asked, and so there was no evidence as to whether he had a key.

12. McNamara parking the blue Ford 260BOS on the street overnight on 19 May 2014. ^[241]

249. McNamara parked his blue Ford on the street overnight on 19 and 20 May 2014. The boat occupied one spot in his double garage in the basement carpark.

250. There was no evidence Rogerson had anything to do with where McNamara chose to park his own car.

13. The way McNamara was dressed on 20 May 2014. ^[242]

251. McNamara acknowledged he was dressed in a manner designed to conceal his identity when he attended Rent-a-Space on 20 May 2014 (see above at [130]-[131]). In relation to this it was submitted there was no evidence Rogerson had anything to do with how McNamara dressed that day. He gave an explanation for not questioning how McNamara was dressed when they first went together to Rent-a-Space on 20 May 2014, because he had seen McNamara dressed in a hoodie before.

252. Mr Stratton SC contrasted Rogerson’s manner of dress with that of McNamara. ^[243] The CCTV footage depicts Rogerson in a short-sleeved shirt, long pants and with a cap on his head. This is a significant contrast to the way McNamara was attired, but then, Rogerson’s very distinctive gait is something that would have been impossible to conceal with clothing so there may not have been any point in trying.

14. McNamara’s possession of the gate code and the key to storage unit 803 on 20 May 2014. ^[244]

253. The Crown Prosecutor submitted to the jury that on Rogerson’s account, the first time McNamara would need the key to storage unit 803 would have been on 20 May 2014 when he had spoken to Rogerson about needing a quiet place to talk to the deceased. ^[245] Rogerson said he gave McNamara the access code for the facility and the key for the storage unit when the pair first arrived at Rent-a-Space on that date. ^[246] However, this was contradicted by the fact that McNamara had been the first to enter Rent-a-Space on 4 April 2014. That was the order in which their respective cars were seen arriving on that date. ^[247]

254. McNamara conceded the prosecutor’s point. He was cross-examined about the CCTV footage for 4 April 2014 and accepted that he must have been given the access code and key shortly before. ^[248] The prosecutor submitted this contradicted Rogerson and indicated McNamara had the key to the storage unit as early as 4 April 2014. ^[249]

255. The submissions for Rogerson referred to him having been cross-examined with three suggestions as to why his evidence of only providing the access code and key to McNamara on 20 May 2014 was incorrect. ^[250] The first two have been summarised earlier (at [112]-[113]). The third was because McNamara’s car had been in front of Rogerson’s car when they were captured on CCTV driving towards the entrance gate of Rent-a-Space on 4 April 2014, which indicated that McNamara already had a key. Rogerson disagreed. He accepted the CCTV footage showed McNamara’s car heading towards the entrance gate before his car but suggested either he overtook and arrived at the gate first or they stopped, and he alighted and walked to the gate to enter the code. He conceded, however, that he could not recall either of those possibilities occurring. ^[251]

256. Mr Stratton SC submitted that even if Rogerson did give McNamara a key shortly after he received the keys from Michael Maguire, it did not follow that it was for the purpose contended for by the Crown. ^[252] Further, there was nothing suspicious about Rogerson having earlier given the code to McNamara because on any view they both intended to enter the space. ^[253]

257. Those submissions appear to present a fall-back position that is inconsistent with Rogerson’s evidence. The submissions avoid the important issue in relation to this point which is not so much to do with when McNamara received the access code and key but Rogerson’s credibility in denying a circumstance relied upon by the Crown to establish the existence of the alleged joint criminal enterprise. Rogerson had been quite adamant in his denial: ^[254]

“Q.   I put it to you that you had given one key to Glen McNamara very shortly after you’d received the keys from Michael Maguire, what do you say about that?

A.    That’s untrue and there was no need for him to have a key or the code.

Q.   I suggest the need was because you were, together with him, organising or attempting to organise for Jamie Gao to bring a large quantity of drugs to that unit, what do you say about that?

A.   That’s absolutely rubbish. We are talking about 4 April compared to 20 May.”

258. The fall-back position now offered is markedly at odds with the strident position taken by Rogerson in that short exchange.

15. The actions of both Rogerson and McNamara and the respective positioning of their cars in Arab Road on 20 May 2014, including the opening of the back door by McNamara of the white Falcon wagon. ^[255]

259. The evidence relating to this is set out above at [119]-[128]. It included that when the Nissan driven by the deceased approached, Rogerson moved his car from its parking position on the street by turning into Micks Meats and parking there. This enabled the deceased to make a U-turn and park in the space just vacated by Rogerson.

260. It was submitted there was no specific evidence of an arrangement with the deceased that Rogerson would make available a parking space for him. It was also submitted that because, on any version of events, there was intended to be a meeting between McNamara and Gao, there was therefore no sinister intent in Rogerson moving his car into the carpark of Micks Meats to make a space for the deceased to park his Nissan at the kerb.

16. The positioning of the white Falcon wagon outside storage unit 803 and the shielding of Jamie Gao by McNamara as Mr Gao entered the storage unit. ^[256]

261. This circumstance is concerned with the apparently careful way in which the deceased moved from the car to the storage unit without being seen by any person or CCTV camera. (See above at [129].)

262. Rogerson submitted there was no evidence he had anything to do with this.

17. Rogerson entering storage unit 803 three minutes and nineteen seconds after Jamie Gao and McNamara. ^[257]

263. It was submitted the fact there was this gap in time between McNamara and the deceased, and then Rogerson, entering the storage unit meant there was ample time for McNamara to have twice shot the deceased.

264. The point is a valid one. However, assuming McNamara did shoot the deceased, it does not follow that it must have been in the way Rogerson said McNamara described it. The difficulty for Rogerson is that he claimed McNamara gave an account of how the deceased was shot which he said he saw no reason not to believe. The terms of Rogerson’s account of what confronted him as he entered the storage unit and what McNamara told him was open to be regarded as inherently unbelievable; perhaps even third grade fictional. Thus, Rogerson’s credibility was brought into question no matter the truth of the proposition that McNamara was the shooter. (The account Rogerson gave of what McNamara said when the body was unloaded from the car into McNamara’s garage at Cronulla was in similarly theatrical and incredible terms: see above at [146].)

265. Rogerson’s account of what McNamara told him after Rogerson entered the storage unit was as follows: ^[258]

“[A]s the door went up, there was Glen McNamara … he was as white as a ghost. He was shaking uncontrollably. … And sweating like a pig. The first thing he did when I was looking at him was he took off his jumper. Then I looked down and I saw an Asian man lying on the floor with his head to my right. … he was dead.”

266. Rogerson’s evidence continued:

“Q.    Was there a conversation?

A.    Yes, there was an in instant conversation. He said, Glen McNamara said, ‘He pulled a gun on me, he tried to kill me’. I said, from memory, ‘What the fuck happened?’ He said, ‘He stuck me up for the car keys. He kept saying that he had outsmarted everyone and he'd ripped those blokes off’ and when Glen McNamara said that he was sort of indicating up towards Arab Road. He said—

Q.    What did you say?

A.    Can I have a drink of water for a moment, please.

HIS HONOUR: Certainly.

WITNESS:    I said, ‘What did you do?’ He said, ‘He had the gun pulled on

Me’. He said, ‘He kept screaming, he kept saying that nobody would find him. He kept screaming for the car keys’. He said, ‘I knew he was going to shoot me’. He said, ‘I made a grab for his hands’. He said, ‘It was a very very – he was very very strong’. He said, ‘It was a real struggle’. He said, ‘I was able to grab hold of his hands and I was lucky enough to twist the gun around’. He said, ‘It went off twice’. And he said, ‘He shot himself in the chest. He kept saying that I would be the decoy, I would be left as the decoy’.”

267. Rogerson said he had not heard any sounds of gunshots from outside. He continued:

“Q.    In the events, what did you say at what happened?

A.    I saw - well, the next thing I saw was that this dead man, this Asian man,

there was a small gun lying on the floor on the concrete floor alongside his right hand. I saw that this deceased person had a - was wearing a glove on his right hand. Next thing McNamara said to me, ‘He told those blokes up there, he told me that those guys were expecting him back within half an hour’. He said, ‘If he's not back there soon, this place will be swarming with Chinese Assassins’. He said, ‘We're going to be killed if we don't get out of here as quick as we can’.

Q.    Did you believe what he was saying?

A.    Yes.

Q.    Did you say anything about the police?

A.    Yes.

Q.    What did you say?

WENDLER: I object to leading.

WITNESS:    I said to him, ‘Glen, I think the only thing we'll be doing here is

calling the cops’. And he said, ‘Roger, that will only make it worse’. He said, ‘These lunatics will shoot the police’. He said, ‘For all I know about them, this place will become a blood bath’. And he said, ‘I couldn't live with myself if some innocent person was killed’. He said, ‘What we ought to do, he was going to rip these blokes off and piss off’. He said, ‘We should make it look

the same’. And he said, ‘You know, these guys, they just laugh at the police’. He said, ‘They're 14Ks, they're all murderers from Hong Kong’. He said, ‘Life means nothing to them’. I said, ‘Well, thanks very much, Glen, I'm a bit old for all this’. I said, ‘What are we going to do?’ And then I looked at him and he was - in my opinion he was--

HIS HONOUR

Q.    Don't give us your opinion, please.

THOMAS

Q.    What was his demeanour at that time?

A.    He was hyperventilating.

Q.    Did you believe what he was telling you?

A.    I had no reason not to. I had no reason not to believe everything he said.

Q.    Did you do anything after that?

A.    Well, I said to him, ‘Glen’ - as I said, he was hyperventilating. I said, ‘Glen, pull yourself together, calm down’. I said, ‘Look, sit down’, and he actually went across and one of these chairs that I had seen earlier was on its side, and he picked it up and he sat down. And he just had his hands up to his forehead and, as I said, he was sweating—

HIS HONOUR

Q.    You have told us that, Mr Rogerson.

THOMAS

Q.    What happened after that?

A.    He must have sat there for three or four minutes and then I said, ‘Well,

look, what are we going to do, Glen?’ And he said, ‘Well, we have to take him away from here’. I said, ‘How are we going to do that?’ He said, ‘I've got some props in the car, I'll go and have a look’, so he left the unit. At this point of time I heard what I thought was a truck horn, and I thought it might have been a truck coming down that laneway that I'd come down, so I thought I'd move my car. I saw him go to his car, I went and moved my car down, and I parked it adjacent to where the unit is, and you've seen where my car was parked on the video.

I opened the back lid up. He came in, at that time he had a silver surfboard cover.

Q.    Had you ever seen that thing before?

A.    Never, no.

Q.    Did you know that it was in the white car?

A.    No.

Q.    Right?

A.    He brought it in. He said, ‘Look’, he said, ‘Give me a hand getting him into my car’. He said, ‘I'll take him over to Cronulla’, he said, ‘And I'll try and work things out there’. I got down on my right knee, I can't get down on my - sorry, my left knee. I can't get down on my right knee.

Q.    Why is that?

A.    I have had a complete knee replacement and it's impossible to put your

knee - kneel on anything hard. You must have cushions or soft spongey.

Q.    So you got down on one knee?

A.    I got down on one knee. I actually - he had the surfboard cover in his

hands and he was - I thought he was suffering from shock.

Q.    Just what happened?

A.    I picked - I got his hands and I put them on his chest.

Q.    Whose hands?

A.    The deceased's hands, his arms, I put his arms across his chest. At that

point of time, McNamara bent down and picked up the small gun that was there, and I didn't see what he did with it. I obviously had my head down, and I said, ‘Look, you'll have to give me a hand if you want to put him in that board’.”

268. The Crown theorised Rogerson attended the storage unit a little after McNamara had taken the deceased there because that was the plan. The Crown Prosecutor submitted to the jury that the planned joint criminal enterprise required two people; McNamara to lure the deceased to the storage unit and Rogerson to go there pretending to be “the money man”. ^[259] This was a viable theory. It would entail an unlikelihood the deceased was shot before Rogerson arrived at the storage unit.

18. McNamara taking the surfboard cover to Rent-a-Space on 20 May 2014. ^[260]

269. McNamara claimed he put the surfboard cover and two boxes of rubbish into the white Falcon wagon so he could take them to the tip: see above at [101].

270. Rogerson submitted there was no evidence he had anything to do with this. McNamara’s evidence was that he told Rogerson he would use the white Falcon wagon to take rubbish to the tip, but he did not tell Rogerson what he was taking to the tip.

19. Rogerson taking the ropes and tarpaulin to Rent-a-Space on 20 May 2014. ^[261]

271. Three ropes and the chain found around the deceased’s body were consistent with ropes and chain found in Rogerson’s silver Ford.

272. The tarpaulin that was found wrapped around the body was one that he had carried around in his car for “years, months” and was used to cover loads in his trailer with the use of rope that was kept with it for that purpose. ^[262]

273. The chain found in Rogerson’s car was an old safety chain for his trailer. ^[263] Although he agreed it was very similar to that which was recovered with the deceased’s body, that was submitted to be coincidental.

274. It was submitted there was no evidence to contradict Rogerson and to suggest that he purposefully brought the tarpaulin and ropes that were used to wrap the body to Rent-a-Space on 20 May 2014. Reference was made to other similar items being found in his silver Ford: other pieces of tarpaulin, six lengths of rope, work gloves and sundry other items. Mr Stratton SC also submitted that this was another example of a lack of planning; “they were making it up as it went and … Mr Rogerson used material which he had at hand which happened to be in his car in order to tie up the deceased”. ^[264]

275. For two men who were “making it up as it went” there was a lot of happenstance that fell their way, like McNamara having taken his boat out of storage only the day before.

20. The use of the garage on B2 at Cote D’Azur, including the presence of the boat there in that garage. ^[265]

276. It was submitted there was no evidence that Rogerson had been to McNamara’s apartment block (“Cote D’Azur”), or that McNamara had described its features, prior to Rogerson going there with McNamara and the deceased’s body on the afternoon of 20 May 2014. There was no evidence he knew the boat was in the garage.

277. It was submitted “[t]he use of McNamara’s garage is hardly what one might expect from persons attempting to conceal their involvement in a murder”. ^[266] It was in McNamara’s own garage, in a building with CCTV, and the sides and door were perforated such that others could see in.

278. This could be considered one of a number of examples of the pair using the resources that were available to them at the time rather than being able to use what might have been more optimal facilities and methodology.

21. Rogerson’s role at Kennards Hire. ^[267]

279. The written submissions acknowledged that Rogerson took an active role at Kennards Hire. His evidence was that it was McNamara’s suggestion they obtain a block and tackle from Kennards Hire but he agreed that he did a lot of the talking once there. He denied the Crown Prosecutor’s suggestion he was “directing operations” in relation to loading the body onto the boat but effectively accepted that he was “directing operations down at Kennards”. However, “it was pretty simple – it was a problem solved”. ^[268]

280. Mr Stratton SC referred to this as another example of Rogerson acting in a way that was inconsistent with there being prior planning: “it’s bedlam, he’s doing the best that he can after the event to get rid of the body”. ^[269]

22. Rogerson’s actions inside apartment C3, including tapping the “lump” in his pocket. ^[270]

281. The written submissions referred to the evidence of Jessica McNamara seeing a lump in Rogerson’s pocket and Rogerson tapping and rubbing it as he made subtle threats. This is when the men were in McNamara’s apartment following the transfer of the deceased’s body to the boat in his garage. (See earlier at [151].)

282. It was submitted that Ms McNamara’s evidence suffered a number of problems: her lack of objectivity or independence from McNamara; inconsistencies in her account in relation to this and other issues; her frequent contact with McNamara post-arrest and prior to trial; and her having spoken in unfavourable terms about Rogerson in conversations with her father.

283. Reference was made to Rogerson’s evidence that rather than having a gun in his pocket he had his wallet and keys (with a remote control).

284. Given the Court is not required to determine whether it was open to the jury to be satisfied beyond reasonable doubt that Rogerson fired the fatal shots there is nothing to be gained by dwelling upon this circumstance.

23. Gunshot residue on the hat and inside a pocket on pants worn by Rogerson on 20 May 2014. ^[271]

285. The gunshot residue evidence summarised above (at [195]) was the subject of Ground 2 which was withdrawn at the hearing. Mr Stratton SC nevertheless submitted in relation to the present ground that this part of the Crown’s circumstantial case was neutral. He submitted it was just as consistent with the case for Rogerson as the case against him. ^[272]

286. Although that submission ignores the requirement for a holistic consideration of circumstances in a circumstantial evidence case, there is no point in dwelling upon it for the same reason as indicated above (at [284]).

24. The disposal of the body of Jamie Gao at sea on 21 May 2014. ^[273]

287. It was the Crown case that Rogerson’s account of McNamara disposing of the body of the deceased at sea by himself was unlikely.

288. Mr Stratton SC referred to the weight of the body of the deceased as having been 72.5kg. It was submitted that it was not obvious that McNamara would not have been able to discard the body over the side of the boat by himself. ^[274]

289. Reference has been made earlier (at [190]-[192]) to the additional weight of the items wrapped around or attached to the body, particularly the “heavy chain” and, if McNamara’s evidence be accepted, an anchor.

290. Also to be borne in mind is the evidence given by Rogerson that he went with McNamara to the place where the boat was launched but he declined to assist further by going out on the voyage with him: see above at [153]-[156]. His claim that he declined and simply waited on the shore, using the time for quiet reflection upon what had occurred, was hardly persuasive.

291. It appears far more likely that both men went on the voyage, a proposition supported not only by the physical activity required but also by the pretence of bringing two fishing rods. ^[275]

25. McNamara disposing of a bag of clothing on 21 May 2014. ^[276]

292. The simple point in relation to this circumstance was that there was no evidence of Rogerson disposing of clothes he wore on 20 May 2014 while there was evidence suggesting McNamara did.

293. This was one of the least compelling of the circumstances relied upon by the Crown. Police did not find clothing matching that which McNamara had worn at Rent-a-Space on 20 May 2014 and there was some evidence suggesting he may have disposed of it. He denied it. ^[277]

26. McNamara’s purchase of items at Kmart on 22 May 2014 and the repackaging of the drugs. ^[278]

294. Rogerson relied upon there being no evidence of his involvement in the purchase by McNamara of pillowcases, a kitchen spoon and a measuring jug at Kmart on the morning of 22 May 2014 which were used to repackage the drugs McNamara said he found underneath the driver’s seat of the white Falcon wagon. (See above at [159].)

295. This was a circumstance directly incriminating of McNamara but only indirectly of Rogerson, being dependent upon proof of the overall joint criminal enterprise.

27. The involvement of Adam Borg and the attempts to arrange the towing of the white Falcon wagon. ^[279]

296. The evidence in relation to the efforts to engage Adam Borg in the disposal of the white Falcon wagon has been summarised earlier (at [164]-[165]). Rogerson’s submissions characterised the evidence as being to the effect that it was McNamara who wanted the vehicle towed. It was accepted, however, that Rogerson was involved in speaking to Borg about the possible tow; that he told Borg that McNamara “might have wanted a tow or something”; and that he passed on to McNamara some contact information relating to Borg.

297. It was submitted that there was no specific evidence to contradict Rogerson’s denial of having played a very active role in orchestrating or attempting to orchestrate the towing of the white Falcon wagon. That would appear to be correct. It appears that he facilitated the connection between McNamara and Borg and left the arrangements to them.

28. The meeting at Sydney Airport on 24 May 2014 between Rogerson and McNamara. ^[280]

298. The evidence concerning this circumstance is summarised above at [168]-[174]. Briefly, the white Falcon wagon was surreptitiously seized by police in the early hours of 24 May 2014. After McNamara realised the car had been taken (not necessarily knowing police were responsible) there was contact between him and Rogerson. Rogerson gave evidence to the effect that when he was told about this by McNamara his responses were exculpatory. It was submitted that this did not advance the Crown case. ^[281]

299. The Crown case in respect of this circumstance appears to have been that both Rogerson and McNamara were concerned about the disappearance of the white Falcon wagon. ^[282] To the extent that Rogerson’s responses upon being told by McNamara that the white Falcon wagon was missing were characterised as “exculpatory”, it would not have been lost on the jury that on Rogerson’s account, McNamara would have had no need to concern Rogerson with this news. However, although they were obviously able to communicate by telephone, McNamara took the unusual step of travelling to the airport to speak with Rogerson before he departed on a flight to Queensland. This indicated, as the Crown submitted, that there was a pressing interest in the fate of the white Falcon wagon which was shared by both men. ^[283]

29. McNamara’s attempts to contact Karl Bonnette on 24 May 2014. ^[284]

300. There was evidence of two calls made from a payphone by McNamara to Karl Bonnette on the afternoon of 24 May 2014: see above at [175]. It was submitted this did not, at least directly, involve Rogerson.

301. McNamara said in his evidence that he wanted to see if Bonnette had taken the car, but he did not get to speak to him. The Crown case in closing was that these calls were indicative of both accused being concerned that the white Falcon wagon was missing and was supportive of the link of Karl Bonnette to the vehicle. It was submitted the far more likely explanation was that the two accused were concerned about the police getting to Bonnette. ^[285]

Conclusion

302. There is a variation in the nature and degree of significance of the 29 circumstances relied upon in the Crown’s case. Some matters are of real substance in establishing the alleged joint criminal enterprise to steal drugs and “get rid” of the deceased. Some matters are of significance in directly inculpating and/or affecting the credibility of one more than the other.

303. The case for Rogerson was substantially damaged by a number of matters that were adverse to his credibility. The following are examples:

1. The unlikely (“desperate invention” or “frankly absurd”) explanation Rogerson gave for his fingerprint being on the receipt for the white Falcon wagon (above at [81]).

2. The account of overtaking McNamara on Davies Road when he was in the right turn lane for Bridge Street on 20 May 2014: above at [107]-[109].

3. The unsatisfactorily explained reason for the first visit by Rogerson and McNamara to Rent-a-Space on 20 May 2014, including the inability to recall what occurred or was said in the seven or eight minutes the pair were together at the storage unit with the door closed: above at [116]-[118].

4. The proposition that Rogerson was acting as McNamara’s “second set of eyes”, but without any discussion, let alone plan, about what he was to do if he saw something of concern: above at [126]-[127].

5. The claim that McNamara went alone on the boat and dumped the deceased’s body overboard: above at [287]-[291].

6. Rogerson’s explanation for not going out on the boat and why he waited on shore: above at [154].

7. The substance and terms of the account Rogerson attributed to McNamara for how the deceased came to be killed: above at [265]-[267].

8. Rogerson’s evidence that he believed without question the account he claimed McNamara gave of the deceased having shot himself twice: above at [264].

304. There were a number of factual propositions that were indisputable, or at least compelling. They included:

1. Jamie Gao was involved in drug supply.

2. He was cultivated as a contact by McNamara over several months, during which time McNamara was in frequent contact with Rogerson.

3. On 20 May 2014, Jamie Gao was in possession of a large commercial quantity of methylamphetamine he intended to sell in a “massive deal” he had previously spoken to close confidants about.

4. He went to storage unit 803 at Rent-a-Space with McNamara. They were joined by Rogerson after he had ensured there was no-one in the vicinity.

5. Jamie Gao was shot and killed in the storage unit.

6. The body and the drugs were taken away from Rent-a-Space.

7. The body was dumped at sea with the intention that it would never be found.

305. These indisputable or compelling facts, combined with the various circumstances relied upon by the Crown, provided a case that established with considerable force the joint criminal enterprise between Rogerson and McNamara to steal the deceased’s drugs and to kill him. The case relied upon by Rogerson was completely lacking in credibility and did not raise any doubt about his guilt.

306. It was well open to the jury to be satisfied beyond reasonable doubt of Rogerson’s guilt of both counts upon which verdicts of guilty were returned.

307. We grant leave to appeal but dismiss Ground 3 of Rogerson’s appeal.

Rogerson Ground 1: Refusal to allow cross-examination of McNamara on the contents of a Crime Commission report

308. Ground 1 of Rogerson’s appeal contends that the trial judge “erred in failing to consider, and failing to allow, cross‑examination of McNamara” upon the contents of an “Information Report” prepared by the NSW Crime Commission (the “Commission”).

309. As explained below, the Information Report was prepared by an officer of the Commission on or about 6 June 2014. It purported to summarise a meeting between McNamara, his then counsel, and officers of the Commission on 4 June 2014, during which McNamara gave a version of events surrounding the killing of Jamie Gao. As will be explained, prior to and during the trial, there was a debate between Rogerson on the one hand, and McNamara and the Crown on the other, as to whether this document should be admitted into evidence in the case of Rogerson, whether it could be “used” in the cross-examination of McNamara on behalf of Rogerson and, if so, how?

310. Ultimately, the trial judge ruled that the Information Report could not be tendered: R v Rogerson; R v McNamara (No 32) [2016] NSWSC 200. The essence of the complaint in Ground 1 is that, even though the ruling that the Information Report could not be tendered is not challenged, the trial judge wrongly ruled that Rogerson could not cross‑examine McNamara on the contents of the document. In the end result, the debate in this Court concerned whether or not the trial judge in fact made such a ruling. For the reasons that follow we consider that his Honour did make such a ruling, that the ruling was too wide and involved a “wrong decision of any question of law” within the meaning of the second limb of s 6(1) of the Criminal Appeal Act and a “miscarriage of justice” within the third limb. As a consequence, it is necessary to consider the application of the “proviso” to that section.

The Information Report

311. On about 3 June 2014, McNamara’s then counsel contacted the NSW Crime Commissioner and advised that his client wished to attend the Commission for the purpose of providing information about Jamie Gao’s death. Even though the Commission was not investigating this case, McNamara was apparently concerned about the independence of the police who were investigating the murder.

312. McNamara attended the Commission on 4 June 2014 with his legal representatives. The trial judge found that, prior to speaking to the Commission, McNamara was advised by a senior officer that “anything you say here today cannot be used against you for the purpose of prosecuting you or for the purposes of civil proceedings against you”. ^[286]

313. During the meeting McNamara provided a detailed narrative of what he said was his involvement and the involvement of Rogerson in the disappearance of the deceased. Three members of the Commission were present. Only one of those persons, referred to as the “Intelligence Analyst”, took notes. Those notes were later destroyed in accordance with Commission policy. The intelligence analyst stated that in preparing the notes there was an attempt to take down word‑for‑word what McNamara had said. However, that had not been possible. The trial judge was satisfied that those notes were never produced to McNamara or his legal representatives for the purpose of them being reviewed or adopted by them. ^[287]

314. The following morning, the intelligence analyst commenced preparing the Information Report. The trial judge accepted the analyst’s evidence that the report did not purport to be a word‑for‑word account of what McNamara had said; that in some respects what McNamara had said had been condensed; and that the analyst had otherwise supplemented notes recorded at the time with a memory of what had been said. The most senior Commission officer who was present at the meeting told the trial judge that, in his view, the Information Report was an “accurate summary of what took place” (emphasis added). ^[288]

315. The trial judge made four observations concerning the Information Report with which we respectfully agree. ^[289] First, his Honour noted that it was prepared in summary form and apart from certain quotations it does not purport to be a complete verbatim account of what McNamara told the Commission. Second, the Information Report includes comments and observations by the intelligence analyst which are clearly not those of McNamara. Third, the trial judge noted that the Information Report had been broken up into the following headings: (i) association with Roger Rogerson; (ii) association with Gao; (iii) events of 20 May 2014; (iv) events of 21 May 2014; and (v) events of 22 May 2014. Fourth, the trial judge noted that the copy of the Information Report made available at the trial was heavily redacted.

The contents of the Information Report

316. In their written submissions in this Court, counsel for Rogerson undertook a comparison of the version of Jamie Gao’s disappearance described in the Information Report and that given by McNamara in his evidence at the trial. It was submitted that his evidence was “not consistent with, or not supported by, what he was recorded as saying in the Information Report”. ^[290] This can be accepted, but the overall version of events conveyed by the Information Report was nevertheless highly incriminatory of Rogerson. It identified him as the person who shot the deceased and who organised the killing. Otherwise, we note that the submissions on appeal about the significance of the Information Report are far more detailed than those made on his behalf at the trial (see [340] below).

317. Rogerson’s written submissions in this Court suggested there were discrepancies between what McNamara said in his evidence was his understanding of the nature of the contact between the deceased and Rogerson prior to the killing and what the Information Report alleges he told the Commission about that topic. These asserted discrepancies do not appear to be of much importance in that the differences appear to be attributable to the fact that the Information Report appears to record McNamara conveying his asserted knowledge of their dealings after the event. For example, the written submissions contended that the effect of McNamara’s evidence was that, as far as McNamara was aware, Rogerson was assisting Jamie Gao “with his money and Triads difficulties” and that he, McNamara, “was unaware of drug dealing between them”. ^[291] The submissions noted that the Information Report suggested that McNamara said Rogerson and the deceased were arranging for the supply of drugs from the deceased to Rogerson. ^[292] In his evidence, McNamara said that he only deduced that the confrontation in the storage unit concerned a proposed drug deal between Rogerson and the deceased.

318. However, there appear to have been discrepancies on material matters such as McNamara’s description of the killing of Jamie Gao. In his evidence, McNamara said that when the deceased entered storage unit 803, he was carrying a light-coloured bag at his chest and McNamara later found a green backpack in the white Falcon wagon, being that bag. ^[293] The Information Report asserted that McNamara said that when the deceased entered the white Falcon wagon and then later entered storage unit 803, he was carrying a dark (either black or blue) duffle bag, which McNamara thought contained drugs. ^[294] In his evidence, McNamara said that at one point inside storage unit 803 the deceased said “fuck off”, unzipped his bag and pulled out a combat-style knife ^[295] and at the same time, Rogerson pulled out a gun. ^[296] According to the Information Report, McNamara said Rogerson pulled out a gun and at the same time the deceased reached for a knife from the front of his pants or in his right-hand pants pocket. ^[297] In his evidence, McNamara said that when he was shot, the deceased dropped the knife, that it was on the ground, but once the body of the deceased was wrapped up, he did not see it again. ^[298] According to the Information Report, McNamara said Rogerson put the knife on the table next to the deceased’s bag. ^[299]

319. There were also material discrepancies between McNamara’s evidence and the contents of the Information Report concerning the immediate aftermath of the killing. In their evidence, both McNamara and his daughter, Jessica, said that after Rogerson left McNamara’s apartment on 20 May 2014, they went to dinner with Lucy McNamara. This was consistent with CCTV footage that showed them leaving and returning. ^[300] However, according to the Information Report, McNamara told the Commission that after Rogerson left, he stayed home and drank alcohol. ^[301] In his evidence, McNamara said, when they were on the boat on 21 May 2014, Rogerson had a small gun from which he fired two shots. ^[302] According to the Information Report, McNamara said that Rogerson produced and discharged two guns when they were on the boat. ^[303]

320. Under cross-examination, McNamara said that, on 22 May 2014, when he located the green backpack in the white Falcon wagon, he repacked the drugs in the car and took only the backpack to his unit. He denied taking drugs into the unit. ^[304] The Information Report suggests that McNamara told the Commission he took the drugs up to his unit, attempted to dispose of them but could not and then put them back in the white Falcon wagon. ^[305]

321. Rogerson’s written submissions in this Court went further and contended that parts of the Information Report could “have [been] deployed to positively assist [Rogerson’s] efforts to impugn the Crown case against him”. ^[306] The submissions referred to the white Falcon wagon and the events in McNamara’s apartment on the night of the killing.

322. The significance of the white Falcon wagon to the Crown case against both McNamara and Rogerson is outlined above (at [231]). The Information Report asserted that McNamara told the Commission that on 20 May 2014 Rogerson told McNamara that they should travel in separate cars. It also stated: ^[307]

“McNAMARA used a white Ford station wagon that he had obtained approximately 3 to 5 weeks earlier with ROGERSON’s help through a ‘bent’ car dealer known to Karl BONNETTE (DOB 08/06/1935). The vehicle had 3 months’ registration left and the deal was that McNAMARA pay $2,000 for the vehicle and keep the car registered to the dealership until the registration expired. McNAMARA purchased the vehicle as running his V8 was costing him too much and his daughters were not licenced to drive the V8. When the vehicle was purchased, it came with 2 sets of keys and ROGERSON had use of it for a short time.” (underlined emphasis added)

323. Rogerson’s written submissions contended that somehow this part of the Information Report could have been used to assist Rogerson’s case. It was submitted as follows: ^[308]

“What was more significant was that in the Information Report, Mr McNamara asserted that he bought the white Ford, for his own innocuous purposes. The reason in the report that his daughters weren’t licensed to drive the blue Ford was consistent with what Mr Rogerson said Mr McNamara told him on the way to Kennards. The reason that running the blue Ford was costing too much was not inconsistent with what Mr Rogerson said Mr McNamara said on the way to Kennards (and earlier), about it being for surveillance work especially given the blue Ford’s special features.

Mr McNamara’s statements, so far as recorded in the Information Report, had the capacity not only to support Mr Rogerson’s evidence about the provenance of the white Ford, but also question the Crown’s case that Mr Rogerson was involved in the obtaining of the white Ford for the purpose of carrying out the joint criminal enterprise.”

324. We do not accept that the elucidation at the trial of the assertion by McNamara in the Information Report that he bought the white Falcon wagon to reduce his costs would have somehow assisted Rogerson resist the Crown case against him. While an exposure of this part of the Information Report would have further destroyed McNamara’s credit, it would also have implicated Rogerson by tying him to the procurement of the car and its use. Save for the specious assertion by McNamara in this passage that he wanted to reduce his costs of running a vehicle, the above version is completely consistent with the Crown case. It identifies Mr Bonnette as an associate of Rogerson and asserts Rogerson used the car. A cross‑examination of McNamara at the trial which attempted to suggest this version of events to him as the truth, or otherwise referred to it, would have been disadvantageous to Rogerson.

325. The other part of the Information Report that it was asserted could have been deployed to assist Rogerson in positively resisting the Crown case was the following, which related to the events of 20 May 2014 at McNamara’s apartment: ^[309]

“By this stage it was approximately 1730hrs and ROGERSON said, ‘let’s go see your lovely daughters’ …

McNAMARA and ROGERSON went up to McNAMARA’s apartment where McNAMARA’s daughters Jess and Lucy were. ROGERSON told the girls they have been fixing McNAMARA’s boat and suggested he and McNAMARA were going to go fishing the next day. ROGERSON consumed 2 beers whilst at the apartment and washed his hands with Palmolive soap that he had asked Lucy McNAMARA to fetch from her bathroom as McNAMARA did not have soap in his bathroom that was strong enough to remove the grease from ROGERSON’s hands.

After some time, ROGERSON departed saying to McNAMARA, ‘I’ll see you about 7:30 if the fishing is on’. McNAMARA agreed.”

326. The written submissions contrasted this account with various parts of Jessica McNamara’s evidence where she gave a different version of the “Palmolive story” and, in particular, whether her father used the soap to wash his hands or Rogerson did. They also referred to a passage of Jessica McNamara’s cross‑examination about a telephone call with her father in which she appeared to discuss with him the possibility of telling her sister, Lucy McNamara, about the Palmolive story (“tell Lucy Palmolive dishwashing liquid”). ^[310] Rogerson’s submissions contended that “[t]he utility” of the deployment of the above section of the Information Report was its “capacity to further Mr Rogerson’s allegation of collusion between Mr McNamara and his daughters”, specifically the contention that “they concocted a story about what happened in the unit on the evening of 20 May 2014 but could not keep it consistent”. ^[311]

327. It is conceivable that McNamara could have been cross‑examined to the effect that he advised the Commission that his daughter provided Rogerson with Palmolive dishwashing liquid to wash his hands and then set about ensuring his daughters confirmed that story. However, assuming the achievement of unbridled success in such a cross‑examination, it would not have had the effect of “positively assist[ing Rogerson’s] efforts to impugn the Crown case against him” as this part of Rogerson’s submissions assert. ^[312] Nothing in the Crown case turned on any aspect of this evidence. Instead, like the other parts of the Information Report, this material could only have been deployed to attack McNamara’s credit. We do not accept that such a cross‑examination could have affected Jessica McNamara’s credit. The document is not hers and does not purport to record any statement made by her. As explained below, although the issue of its admissibility and use arose during the course of her cross‑examination, trial counsel for Rogerson did not seek to cross‑examine Jessica McNamara on the document or its contents.

Applications to the trial judge

328. At some stage the parties, including Rogerson’s legal team, obtained access to a redacted version of the Information Report.

329. On 13 November 2015, prior to the empanelment of the jury on 1 February 2016, a notice of motion was filed on behalf of McNamara seeking various orders including the following: ^[313]

“6.   An order that the ‘Information Report’ prepared by the New South Wales Crime Commission be excluded as evidence in these proceedings (pursuant to s 90 of the Evidence Act 1995).

7.   An advance ruling that cross-examination of the applicant [ie, Mr McNamara] on the content of the said ‘Information Report’ not be permitted (pursuant to s 192A of the Evidence Act 1995).

8.   An order that all copies of the said ‘Information Report’ be returned to the custody of the Court.” (emphasis in original)

330. On 27 November 2015, detailed written submissions were filed on behalf of McNamara in support of the relief sought in his notice of motion. Various provisions of the Evidence Act 1995 (NSW) were relied on in support of prayer 6. In relation to prayer 7, it was conceded that there was a speculative aspect in seeking an advance ruling in circumstances where it was not yet determined that McNamara would give evidence in the trial and, if so, what he would say. Nevertheless, it was contended that any cross‑examination based on the Information Report could only be relevant as to McNamara’s credit and that both the Crown and Rogerson would require leave under s 104 of the Evidence Act to do so, which should be refused in advance. ^[314] The Crown filed written submissions shortly thereafter indicating that it did not seek to tender the Information Report, nor to cross‑examine McNamara on the document or any information contained within it. ^[315]

331. On or about 1 December 2015, a notice of motion was filed on behalf of Rogerson which in part sought relief contrary to that sought by McNamara, namely: ^[316]

“5.   Order that during the course of the trial … the accused Rogerson:

a.   As a matter of lawful right is authorised, permitted, capable and able to adduce, admit or otherwise introduce evidence or information concerning the contents of the NSW Crime Commission Information Report dated 10 June 2014 … provided the evidence or information is relevant to the assessment of facts in issue in the trial proceedings within the meaning of s 55 of the Evidence Act 1995 (Declaratory Order);

b.   In the alternative to the Declaratory Order in (a) above, to the extent necessary, be granted … leave to adduce, admit or otherwise introduce evidence or information concerning the contents of the said NSW Crime Commission Information Report, dated 10 June 2014, on the grounds of:

i.   Credibility of the accused McNamara pursuant to s 112 of the Evidence Act 1995; and

ii.   Prior inconsistent statement by the accused McNamara pursuant to s 43 of the Evidence Act 1995.”

332. When these notices of motion returned before the trial judge in December 2015, his Honour declined to give an advance ruling at that stage but indicated it would be revisited during the trial when the question of the admissibility and potential use of the document arose.

333. The issue arose on the 25^th day of the trial, 4 March 2016, during the cross‑examination of Jessica McNamara by counsel for Rogerson. ^[317]

334. The trial judge determined to conduct a voir dire which commenced on 7 March 2016 in the absence of the jury. The trial judge was provided with written submissions on behalf of Rogerson, which addressed the admissibility of the Information Report. ^[318] The submissions noted that “the accused Rogerson seeks to adduce evidence of the representations made by McNamara” to an officer of the Commission. ^[319]

335. To address this ground of appeal it is necessary to identify with some precision exactly what counsel for Rogerson said he wanted to do with the “contents” of the Information Report and the report itself if the opportunity to cross‑examine McNamara arose.

336. At the commencement of argument on 7 March 2016, counsel for Rogerson confirmed that he sought to tender the document. The trial judge then asked: ^[320]

“Are you also seeking to use it in the event that some issue arises in the course of cross‑examination of Mr McNamara?

THOMAS:   Yes.” (emphasis added)

337. The trial judge returned to the “use” that counsel for Rogerson was seeking to make of the document and any possible cross‑examination of McNamara that was to occur at a later stage of the trial in the following extract: ^[321]

“HIS HONOUR:    Do I take it, then, Mr Thomas, that on the assumption that Mr McNamara gives evidence, and on the assumption that the account that he gives either departs from what is contained in the report or does not include a matter or matters in the report, you are going to seek use the report to cross-examine him as to his credit, is that right?

THOMAS:       I will be seeking to use the report to cross-examine him.

HIS HONOUR:    As to credit?

THOMAS:    As to facts in issue, as to what he was representing concerning important facts in issue on the--

HIS HONOUR:    What he was representing is one thing. Are you seeking to cross-examine him at least partly as to credit--

THOMAS:       Partly.

HIS HONOUR:    --by the use of the document?

THOMAS:    Partly as to credit, yes. Can I be as clear as I can be with the Court. We say that on 4 June 2014, Mr McNamara attended the Commission and gave a false version of events in order to shift the blame for the matters with which he had been charged onto my client. And that includes, in relation to the charge of murder, the representation that my client was the shooter. And in relation to his defence of duress to the extent that it is relevant, that my client stated words and engaged in conduct that is relevant to the duress argument that he propounds.

For that reason we say that these representations are critical to the facts in issue that the jury ultimately needs to decide and, in terms of the charge of murder, the ultimate issue of who the shooter was, because it is our submission that based on these representations made on 4 June and the act of going to the Commission to do it, and when one looks at a number of important representations that were made, it is clear that he was exhibiting or demonstrating a consciousness of guilt.

HIS HONOUR:    One of the matters put against you is the document containing these, what are said to be, representations has not been adopted by Mr McNamara at any stage and, to that extent and to the extent it might be relevant, the document cannot constitute a prior inconsistent statement. What do you say about those propositions?

THOMAS:    The representations can be adduced through evidence of the people that were present and heard and perceived the representations.” (emphasis added)

338. The relevant provisions of the Evidence Act governing the deployment of the Information Report or its contents in any potential cross‑examination of McNamara on behalf of Rogerson are set out below at [351]-[368]. At this point it suffices to note three matters.

339. First, the submissions made on behalf of Rogerson to the trial judge proceeded on the misapprehension that the Information Report was evidence of “representations” made by McNamara. As explained below, it was not. Instead, the Information Report was evidence of representations by the intelligence analyst who prepared it about what McNamara had supposedly said in her presence.

340. Second, although there was an attempt in trial counsel’s oral and written submissions to suggest that the potential inconsistencies, between what the Information Report asserted McNamara had told the Commission and his anticipated evidence, revealed a “consciousness of guilt” on his part of the commission of the offence, ^[322] in substance the submissions were only foreshadowing a use of the document to attack McNamara’s credit (and that of Jessica McNamara). ^[323] Evidence of a consciousness of guilt on the part of McNamara is not evidence of Rogerson’s innocence.

341. Third, this exchange reveals that the trial judge was proceeding on the basis that counsel for Rogerson was intending to “use” the document itself in cross‑examination, as opposed to just the information gleaned from it (ie, its contents).

342. After the exchange extracted at [337] above, an officer of the Commission gave evidence on the voir dire concerning the circumstances in which the Information Report came into existence. ^[324] The effect of his evidence has been summarised above. His Honour then adjourned the hearing of the voir dire until 11 March 2016. Other witnesses gave evidence before the jury in the meantime. ^[325]

343. When the voir dire resumed on 11 March 2016, counsel for Rogerson made submissions that anticipated the possibility that the tender of the Information Report would be rejected. He relevantly submitted: ^[326]

“[THOMAS]:    For my client to be restrained from the use - if the document doesn't go in, we accept the judgment of the Court, but to be restrained and not capable of using any of its content in my client's separate trial, is a completely different proposition. ...

HIS HONOUR:    As I have endeavoured to point out more than once, before I get to questions of unfairness, there are questions arising from various provisions of the Evidence Act concerning the use of and admissibility of the document. Is there anything else you want to put?

THOMAS:    I addressed your Honour in relation to the business record provisions. I made a concession in relation to s 48.

HIS HONOUR:    Is there anything else you want to put?

THOMAS:    We say even if the document is not admissible as a document, its content should be available to my client to use in cross-examination of Mr McNamara …

...

THOMAS:    I am assuming for the purpose of 86 I am assuming that the document doesn’t go in. This is about the use of the content of the document as a matter of fairness to my client on his separate trial. What does happen in my submission if Mr McNamara, who has exercised his right to silence, that's fair enough, we've had very little indication even with directions from your Honour under the Criminal Procedure Act as to disclosure, but what do we do in our separate trial when Mr McNamara gives evidence which is blatantly inconsistent with the content of the document? Does it then become an artificial exercise in the conduct of my client's separate trial, knowing full well that at a meeting Mr McNamara brought about, he said a number of highly probative and material things about facts in issue

HIS HONOUR:    That is the whole point, Mr Thomas. You can only put that proposition if you can make good the proposition that this is Mr McNamara's document. That is the basic – one of the basic and fundamental questions in all of these issues.

THOMAS:    I am accepting that he didn’t sign it, your Honour, but the evidence says that it is an accurate record of the representations that he made even as a summary.

…

THOMAS:    The contents should be available to my client, even as a summary, to use in cross-examination of Mr McNamara as to any prior inconsistent statement that he has made.

HIS HONOUR:    Anything further?

THOMAS:    And the content of the document should be available to my client to use in his separate trial to demonstrate a consciousness of guilt on the part of Mr McNamara in shifting blame to my client for the charges that they both face in this joint proceeding.” (emphasis added)

344. These passages again involve counsel misapprehending that the Information Report was evidence of a representation by McNamara. However, unlike the previous exchange, counsel for Rogerson now made it clear that, even if the tender of the document was rejected, he sought to deploy its “contents” to cross‑examine McNamara concerning a “prior inconsistent statement”, which in context could only be a reference to what he in fact told the Commission on 4 June 2014.

Ruling and judgment

345. Argument on the voir dire concluded on Friday, 11 March 2016. The trial judge reserved his decision. At the commencement of proceedings on 14 March 2016, in the absence of the jury, his Honour announced as follows: ^[327]

“For reasons that I will publish later in the week, I have determined that the document about which I heard submissions in closed court on Friday is not admissible and not available to use for the purpose of cross‑examining the accused McNamara”. (emphasis added)

346. On or about 5 April 2016, the trial judge distributed to the parties the reasons in R v Rogerson; R v McNamara (No 32). ^[328] In those reasons (at [45]), his Honour identified the issues arising for determination as follows:

“(a)   is the [information] report admissible to prove the contents of any representation(s) made by McNamara to the Commission?

(b)   are the representations attributed to McNamara in the report admissible pursuant to s 69(3) of the Evidence Act …;

(c)   is it open to counsel for Rogerson to rely upon s 48(1)(b) of the [Evidence Act] to tender the report?

(d)   in the event that any of the questions in (a) to (c) above were answered in the affirmative, should evidence of the report nevertheless be excluded in light of [the] inducement [given] to McNamara?” (emphasis added)

347. It is apparent that each of these issues concerns the admissibility of the Information Report and not the use of its content in any cross‑examination of McNamara. In identifying the issues in that way, his Honour had attributed to counsel for Rogerson a purpose “that in the event that McNamara were to give evidence before the jury which was not consistent with what was contained in the report, he would seek to cross‑examine him on the basis of its contents, and would then seek to tender the relevant part(s) of it as evidence of what McNamara had said when present at the Commission”. ^[329]

348. Consistent with his Honour’s identification of the issues noted above, his Honour then proceeded to address the admissibility of the Report. In doing so, his Honour proceeded, without determining the issue, on the basis that it contained representations made by McNamara. ^[330] Nevertheless, his Honour concluded that the tender of the Information Report was rendered inadmissible by s 86(2) of the Evidence Act. ^[331] His Honour also found that the Information Report could not be tendered as a business record under s 69 because any relevant representation contained within the document was “made in connection with an investigation relating or leading to a criminal proceeding” (Evidence Act, s 69(3)(b)). ^[332] His Honour further found that the Information Report was not admissible under s 48(1)(b) of the Evidence Act. Ultimately, his Honour concluded that the “report is not admissible on any of the bases advanced by [c]ounsel for Rogerson” and that having regard to that conclusion it was not necessary to consider whether the Report should otherwise be excluded, presumably by the exercise of a discretion under the Evidence Act. ^[333]

349. The reasons in R v Rogerson; R v McNamara (No 32) do not contain a record of any express order or ruling being made in relation to the tender of the Information Report or the cross‑examination of McNamara as to its content. Against the title “Decision”, the coversheet to the judgment states “See [87]‑[88]”. Those paragraphs note that the Information Report is not admissible and that certain parts of a conversation between McNamara and his daughters “are excluded”. This is consistent with R v Rogerson; R v McNamara (No 32) being reasons in respect of a ruling that had already been given.

350. McNamara commenced giving evidence‑in‑chief on 14 April 2016. ^[334] His cross‑examination by counsel for Rogerson commenced on 20 April 2016. ^[335] During the course of that cross‑examination (as well as the cross‑examination by the Crown Prosecutor) his credit was attacked. However, the issue of what he told the Commission on 4 June 2014 was not raised.

Evidence Act provisions

351. Before addressing the submissions in support of this ground of appeal it is necessary to explain how the provisions of the Evidence Act were engaged especially in light of the “ruling” noted above (at [345]) and the findings in R v Rogerson; R v McNamara (No 32).

352. Section 192A of the Evidence Act provides:

“Where a question arises in any proceedings, being a question about--

(a)   the admissibility or use of evidence proposed to be adduced, or

(b)   the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or

(c)   the giving of leave, permission or direction under section 192,

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.”

353. This provision was introduced into the Evidence Act after the decision in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 cast doubt on whether trial judges could make rulings on the admissibility of evidence in advance of it being adduced (at [40]-[45] per Gaudron J; Australian Law Reform Commission Report No 102 at [16.98] and [16.108]-[16.109]). Both of the notices of motion described above appear to have sought to invoke this provision. For present purposes, it is sufficient to note that s 192A confers a discretion on a trial judge to make such a ruling. In some circumstances a trial judge could, and perhaps should, decline to make a ruling because it would be so dependent on future circumstances that it cannot be properly said that the “question arises” or otherwise any answer that might be given would be of no utility (see TKWJ at [11] per Gleeson CJ). As the following demonstrates, the answer to any question about whether the contents of the Information Report could be “used” in cross‑examination was dependent on, inter alia, what could be described as semantic differences between the formulation of the relevant question that might be asked.

354. As noted, the trial judge found that the Information Report was inadmissible under s 86 of the Evidence Act which relevantly provides:

“(1)   This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.

(2)   A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.

(3)   The acknowledgement must be made by signing, initialling or otherwise marking the document.

...”

355. Section 86(2) operates to exclude the tender of a “document”. It presupposes that the document is otherwise admissible. In this case, the suggested basis for admission was not specifically identified, but it was presumably s 55 on the basis that the evidence of the representations in the document were otherwise relevant evidence. It was suggested to the trial judge that the hearsay rule in s 59 did not operate to exclude the evidence of the representations in the Information Report because it was a business record for the purposes of s 69 of the Evidence Act. The trial judge rejected that contention (see [348] above). As noted, that finding was not challenged and we respectfully agree with it.

356. The question of what “use” might have been made of the Information Report or its contents in the cross‑examination of McNamara was potentially governed by ss 43, 44 and 104 of the Evidence Act. Section 44 should be addressed first. It provides:

“(1)   Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.

(2)   A cross-examiner may question a witness about the representation and its contents if--

(a)   evidence of the representation has been admitted, or

(b)   the court is satisfied that it will be admitted.

(3)   If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows--

(a)   the document must be produced to the witness,

(b)   if the document is a tape recording, or any other kind of document from which sounds are reproduced--the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents,

(c)   the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given,

(d)   neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.

(4)   A document that is so used may be marked for identification.” (emphasis added)

357. To the extent that s 44 precludes the questioning of a witness about a statement made by persons other than that witness then, save for the method of questioning identified in s 44(3), it reflects the common law position in NSW prior to the enactment of the Evidence Act (see MH McHugh, “Cross‑examination on Documents” (1985) 1 Aust Bar Rev 51). This appears to have been the intended operation of the provision (see Australian Law Reform Commission Report No 26 at [636]). At common law, The Queen’s Case (1820) Brod & Bing 284; 129 ER 976 established that a witness could not be asked any questions about the contents of any document unless the document was first shown to the witness and put into evidence by the cross‑examiner (which had consequences for the order of address in jury trials). This was modified by s 55 of the Evidence Act 1898 (NSW) so that a witness could be cross‑examined on the contents of a previous statement made by them and, even if it was shown to the witness, the cross‑examiner was not obliged to put it into evidence (see Alister v The Queen (1984) 154 CLR 404 at 443; [1984] HCA 85, per Wilson and Dawson JJ). Further, through various cases, the form of questioning contemplated by s 44(3) emerged as a common law exception to the strictness of The Queen’s Case (see McHugh supra at 54-56). One aspect of that procedure was that the document could not be identified and, if the witness was not the author, no question could be put suggesting the nature of the document or its contents (Alister at 443; R v Yousry (1914) 11 Cr App R 13 at 18; McHugh supra at 56).

358. Turning to the Information Report and the Evidence Act, clause 6 of part 2 of the Dictionary to the Evidence Act provides:

“For the purposes of this Act, a representation contained in a document is taken to have been made by a person if--

(a)   the document was written, made or otherwise produced by the person, or

(b)   the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.”

359. It follows from the trial judge’s findings in R v Rogerson; R v McNamara (No 32) that the representations in the Information Report are not taken to have been made by McNamara (nor could that be alleged). As noted above, it was only a representation by the intelligence analyst about what McNamara said during the meeting on 4 June 2014. Thus, s 44(1) operated to preclude a cross‑examiner questioning McNamara “about” a “previous representation alleged to have been made by” another person, namely the intelligence analyst, the evidence of which was the Information Report itself. Further, as a consequence of the rejection of its tender, s 44(2) was not engaged in that evidence of the representations in the Information Report was not admitted and the Court could not have been satisfied that it would have been admitted.

360. So far as the Information Report, McNamara and s 44 are concerned, and leaving aside s 43, this only left available the form of questioning referred to in s 44(3). Consistent with the common law position, s 44(3)(d) precluded both the cross‑examiner and the witness from “identifying the document or disclos[ing] its contents”. This confirms that the prohibition in s 44(1), on cross‑examining a witness “about” a previous representation made by another person where it is contained in a document, precludes any questioning that expressly or impliedly refers to the existence or identity of the document.

361. Thus, the finding of the trial judge that the Information Report was not admissible and his findings about its preparation meant that it necessarily followed that McNamara could not be cross‑examined “about” the representations made by the intelligence analyst recorded in that document save for the adoption of the procedure referred to in s 44(3), a possibility that was not raised with his Honour.

362. However, that still left s 43. It provides:

“(1)   A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not—

(a)   complete particulars of the statement have been given to the witness, or

(b)   a document containing a record of the statement has been shown to the witness.

(2)   If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner--

(a)   informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and

(b)   drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence.

(3)   For the purpose of adducing evidence of the statement, a party may re-open the party's case.” (emphasis added)

363. The Dictionary to the Evidence Act defines a "prior inconsistent statement" of a witness to mean “a previous representation that is inconsistent with evidence given by the witness”. It follows that the Information Report itself was not a “prior inconsistent statement” of McNamara. However, any oral statement that McNamara made to the Commission on 4 June 2014 would be such a statement if it was inconsistent with the evidence he ultimately gave. Neither a determination that the Information Report was itself inadmissible or s 44(1) precluded McNamara from being cross‑examined about what he told the Commission, provided that the form of questioning made no express or implied reference to the Information Report. Hence, a question posed to McNamara to the effect that “you told officers of the Crime Commission that Mr Rogerson had two guns with him on the boat on 21 May 2014” was not precluded by a determination that the Information Report was inadmissible or by the operation of s 44(1). Further, while the exclusion of the tender of the Information Report under s 86(2) precluded any denial of such a question by McNamara being contradicted by the tender of the Information Report, of itself that ruling did not prevent his denials being contradicted by other evidence of what he told the Commission, including by adducing oral evidence from the other persons present at the meeting.

364. Finally, in considering whether McNamara could have been cross‑examined by counsel for Rogerson about a prior inconsistent statement, being what he told the Commission’s officers on 4 June 2014, it is necessary to refer to ss 104 and 106 of the Evidence Act which were the subject of debate before the trial judge and in this Court. ^[336] Section 104 provides:

“(1)   This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103.

(2)   A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant's credibility, unless the court gives leave.

(3)   Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant--

(a)   is biased or has a motive to be untruthful, or

(b)   is, or was, unable to be aware of or recall matters to which his or her evidence relates, or

(c)   has made a prior inconsistent statement.

(4)   Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that--

(a)   tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and

(b)   is relevant solely or mainly to the witness's credibility.

(5)   A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to--

(a)   the events in relation to which the defendant is being prosecuted, or

(b)   the investigation of the offence for which the defendant is being prosecuted.

(6)   Leave is not to be given for cross-examination by another defendant unless--

(a)   the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine, and

(b)   that evidence has been admitted.”

365. Section 106 provides:

(1)   The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if--

(a)   in cross-examination of the witness--

(i)   the substance of the evidence was put to the witness, and

(ii)   the witness denied, or did not admit or agree to, the substance of the evidence, and

(b)   the court gives leave to adduce the evidence.

(2)   Leave under subsection (1)(b) is not required if the evidence tends to prove that the witness--

(a)   is biased or has a motive for being untruthful, or

(b)   has been convicted of an offence, including an offence against the law of a foreign country, or

(c)   has made a prior inconsistent statement, or

(d)   is, or was, unable to be aware of matters to which his or her evidence relates, or

(e)   has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.”

366. Section 104 operates as an exception to the credibility rule in s 102 which provides that “credibility evidence about a witness is not admissible”. We have referred to the relevance of what the Information Report asserts McNamara told the Commission above. It was only relevant to the credibility of McNamara and was thus “credibility evidence” (s 101A(a)). As a defendant in a criminal trial, McNamara could not be cross‑examined about a matter that was relevant to the assessment of his credibility without a grant of leave (s 104(2)). However, no such leave was required if he was cross‑examined by the prosecutor about whether he had “made a prior inconsistent statement” (s 104(3)(c)). The position was different for Rogerson as he was not the prosecutor. Thus, for Rogerson’s counsel to have cross‑examined McNamara about a prior inconsistent statement, being what he supposedly told the Commission on 4 June 2014, a grant of leave under s 104(6) was required. If leave was granted, and McNamara denied making the statements, then Rogerson could have adduced evidence to rebut those denials (s 106(2)(c)). As noted, that could not have been done by tendering the Information Report, but it might have been undertaken by adducing oral evidence from the persons present at the meeting on 4 June 2014.

367. So far as s 104(6) is concerned, the voir dire was conducted on the assumption that McNamara would give evidence that would incriminate Rogerson; ie, it was a common assumption that both ss 106(a) and 106(b) would be satisfied. Nevertheless, a considerable part of the submissions of McNamara in support of his notice of motion was devoted to the topic of whether leave should be refused to Rogerson under s 104(6). ^[337] Such an application would have had to address the factors in s 192(2) (see IW v R [2019] NSWCCA 311 at [185]). The principal contention was that it would be unfair to allow him to do so given the warning that was given to McNamara prior to his speaking to the Commission on 4 June 2014 (see above at [312]). It is not necessary for us to determine whether such leave should or must have been granted or refused. What is relevant for present purposes is to note that nothing in R v Rogerson; R v McNamara (No 32) addressed that issue.

368. The end result is that, while the rejection of the tender of the Information Report and the findings about the creation of that document in R v Rogerson; R v McNamara (No 32) necessarily meant that s 44(1) operated to prevent counsel for Rogerson from cross‑examining McNamara “about” the Information Report, it did not necessarily preclude Rogerson from cross‑examining McNamara about what he told the Commission on 4 June 2014, provided that the form of questioning made no express or implied reference to the Information Report or suggested that there existed a document with its contents. Whether such questioning would have been allowed would have depended on whether leave was granted under s 104(6), a step that was not embarked upon. If leave had been granted and McNamara denied making the statements, then under s 106(1) Rogerson could have sought to adduce oral evidence from the other persons present at the meeting without any further grant of leave.

Rahme v R [2001] NSWCCA 414

369. It is appropriate to address one of the decisions referred to in the submissions of the parties, namely Rahme v R [2001] NSWCCA 414 as it bears some resemblance to this case. In Rahme, the appellant was tried jointly with his co‑accused on a charge of attempting to obtain possession of a prohibited import. Each of the co‑accused gave evidence denying the offence and claiming that the other accused misled them. The Crown sought to tender a video recording of an interview with the appellant. However, it withdrew the tender after the appellant objected and the trial proceeded on the basis that the interview was inadmissible against the appellant under s 84 of the Evidence Act. The trial judge granted the co‑accused leave to adduce the statements of the appellant in the interview for the purpose of establishing his innocence and prior inconsistent statements destructive of the appellant’s credit, bearing in mind that the appellant’s evidence was adverse to the co‑accused (at [26]). This Court set aside the conviction because, even though leave was only granted for this limited purpose, the trial judge had allowed the material from the excluded record of interview to be treated as “substantive evidence adverse to the appellant’s interests in his own case” (at [28]).

370. Three matters should be noted about Rahme. First, unlike this case, the excluded record of interview in Rahme clearly constituted representations made by the appellant in that case so that the prohibition in s 44(1) was not engaged.

371. Second, the analysis of the permitted use of the excluded material by the trial judge and this Court in Rahme was otherwise consistent with the above.

372. Third, in Rahme this Court sounded a warning about the sustainability of a joint trial if evidence emerges in this way, noting (at [27]):

“Had matters remained there [ie, as the trial judge ruled], there would still have been very real problems in achieving a fair trial given the difficulty that the jury would have had in separating material adduced in cross-examination of the appellant that could (1) support the case of his co-accused and (2) undermine the appellant’s credibility but not (3) operate as substantive evidence in the trial of the appellant adverse to the appellant’s interests. The appellant’s credibility as a witness was indiscerptible.”

373. It is not necessary to consider the relevance of these concerns to the trial in this case given the way events in fact unfolded.

Erroneous ruling

374. Rogerson’s written submissions in support of this ground contended that the trial judge should “have permitted Mr Rogerson to cross‑examine Mr McNamara on his representations in the Information Report and, if needed, call the others present at the meeting to give evidence of what Mr McNamara said” (emphasis added). ^[338] The fallacy in that assertion, namely, that the Information Report did not contain “representations” of McNamara, has been addressed above. Another part of the submissions moved closer to the ultimate complaint in that it contended that “Mr Rogerson’s counsel should have been able to cross‑examine Mr McNamara on the primary facts asserted, at least without reference to the source of the information”. ^[339]

375. On behalf of Rogerson in this Court, the submissions of Mr Stratton SC fully embraced the above analysis of the application of the Evidence Act provisions to the trial judge’s ruling rejecting the tender of the Information Report. He then developed Ground 1 as follows. First, he contended that the trial judge’s statement as extracted at [345] above amounted to a “ruling” for the purposes of s 192A of the Evidence Act. Second, he contended that the ruling had two components, namely that the Information Report was inadmissible and that the “document is … not available to use for the purpose of cross‑examining the accused McNamara”. ^[340] Third, he contended that the second component of this ruling was not the subject of the reasons in R v Rogerson; R v McNamara (No 32). Fourth, he submitted that the scope of that ruling extended beyond any cross‑examination that referred to or was “about” the Information Report to preclude all questioning of McNamara on the topic of what he told the Commission on 4 June 2014. Fifth, he contended that, in the absence of any reasons indicating that all forms of questioning of McNamara on the topic of what he told the Commission on 4 June 2014 were excluded in the exercise of a discretion, then this component of the ruling was erroneous. Sixth, Mr Stratton SC contended that the effect of the ruling was wrongly to preclude any cross‑examination by McNamara on behalf of Rogerson on the topic of what McNamara told the Commission on 4 June 2014. ^[341]

376. The Crown’s written submissions contended that nothing the trial judge did purported to preclude any cross‑examination of McNamara on what he told the Commission or the calling of witnesses in response. ^[342] It contended that, if that had been pressed, then a grant of leave would have been required, but as there was no such decision or ruling the occasion did not arise and it followed that there was no error on the part of the trial judge. ^[343] In oral submissions the Crown responded to the argument just formulated by contending that the passage noted above at [345] does not evince any “ruling” for the purposes of s 192A of the Evidence Act, ^[344] and that even if it did it went no further than precluding any attempted tender of the document in the course of cross‑examining McNamara or otherwise in response to his evidence as contemplated by R v Rogerson; R v McNamara (No 32) at [47]. ^[345]

377. The statement made by the trial judge set out at [345] does not constitute a judgment determining the proceeding or any form of “order”, in that it neither commanded that something be done or not be done (R v Steffan (1993) 30 NSWLR 633 at 636). However, it clearly constituted a “ruling” or “finding” as to the admissibility and use of the Information Report for the purposes of s 192A. It was not merely some preliminary indication of what the trial judge might later rule if a question arose (see R v Hyman (1990) 46 A Crim R 217 at 221, 223 and 236). The reasons in R v Rogerson; R v McNamara (No 32) do not record the making of any ruling by the trial judge even in relation to the tender of the Information Report. Instead, as noted above at [349], they recorded the reasons for a decision or ruling that had already been given.

378. That said, the fact that the statement amounts to a “ruling” for the purposes of s 192A is not of any particular significance in its own right. Section 192A does not give a “ruling” any more force of law than it otherwise bears (WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [39] per Basten JA; R v Cornell [2015] NSWCCA 258 at [104]). What is significant is the effect of the ruling upon the trial and whether it was erroneous. This requires a close consideration of the scope and meaning of the ruling to the extent that it stated that the Information Report was “not available to use for the purpose of cross‑examining the accused McNamara” (see above at [345]).

379. As noted, the Crown contended that this ruling went no further than what was stated in R v Rogerson; R v McNamara (No 32) at [47], that is, it precluded the tender of the Information Report in the cross‑examination of McNamara or otherwise in response to his evidence. This has the attraction of affording symmetry between the ruling and the reasons that were published later in respect of the ruling. However, the difficulty with construing the ruling in that way is that it meant that the contention of Rogerson’s trial counsel that he should be able to cross‑examine McNamara by reference to the contents of the documents was unaddressed. It seems unlikely that was intended given that the trial judge did not invite any further consideration of the issue of cross‑examination by reference to the contents of the Information Report.

380. Another possibility is that the ruling simply embodied the effect of s 44(1) on the cross‑examination of McNamara in light of the determination that the Information Report was inadmissible and thus s 44(2) was not engaged. As explained, the consequence of that ruling meant that McNamara could not be cross‑examined “about” the representations (made by the intelligence analyst) in the Information Report. If that was the effect of the “ruling” then that would have correctly recorded the effect of ruling the Information Report inadmissible on any cross‑examination of McNamara. However, again the difficulty with such a construction of the ruling is that it would not have dealt with every form of intended “use” that was being put forward on behalf of Rogerson to the trial judge. In particular, the passages from counsel’s submissions set out above at [343] made it clear that, even if the Information Report was ruled inadmissible, counsel still proposed to cross‑examine McNamara on its “contents”, in that those “contents should be available to my client … to use in cross‑examination of Mr McNamara as to any prior inconsistent statement that he has made”.

381. We are satisfied that these passages involved counsel for Rogerson submitting to the trial judge that, even if the tender of the Information Report was rejected, he should be able to cross‑examine McNamara about what he supposedly told the Commission, without necessarily making reference in the questioning to the document itself. We are further satisfied that in his ruling the trial judge determined that, and all other forms of questioning about or using the contents of the Information Report, were precluded. A review of the entirety of this part of the trial confirms that the trial judge intended to deal authoritatively with all suggested permutations by which McNamara could be cross‑examined about the Information Report or its contents. Even without the benefit of an affidavit from counsel for Rogerson at the trial we are satisfied that it was understood by him and the other counsel who appeared at the trial that the ruling was meant to have that effect. Having pursued this topic for many months it is inherently unlikely that counsel for Rogerson would have given up on the topic if he understood that the submission he advanced (at [343] above) was still unresolved.

382. It further follows from the above analysis that the ruling was in this respect erroneous. It did not automatically follow from the finding that the Information Report was inadmissible that the form of questioning suggested by counsel for Rogerson was precluded. That could only have been determined had he been refused leave under s 104(6). In R v Rogerson; R v McNamara (No 32), the trial judge did not address that provision.

383. Accordingly, the effect of the trial judge’s ruling was wrongly to preclude counsel for Rogerson from either having the opportunity to cross‑examine McNamara in the manner outlined or at least to seek leave to do so under s 104(6). What follows from that? The Crown contended that it had not been shown that the inability to cross‑examine McNamara by reference to the contents of the Information Report occasioned the loss of a chance of acquittal to Rogerson. ^[346] This submission treats this ground as directed towards the third limb of s 6(1) of the Criminal Appeal Act (“on any other ground whatsoever there was a miscarriage of justice”).

384. There are two difficulties with the Crown’s response. First, the incorrect denial to Rogerson’s counsel of the ability to cross‑examine McNamara on the contents of the Information Report (or to at least address whether leave should be granted for that to occur), amounts to an “irregularity or failure to strictly comply with the rules of procedure and evidence” and as such “is a miscarriage of justice within the third limb” of s 6(1): GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40 at [24].

385. Second, the misconstruction of ss 43 and 44 of the Evidence Act that is revealed by the trial judge’s approach also invokes the second limb of s 6(1) (“wrong decision of any question of law”). In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [13], French CJ, Bell, Keane and Nettle JJ described a "wrong decision of any question of law" as “includ[ing] misdirections on matters of substantive law as well as misdirections on matters of adjectival law”. Their Honours added that the “question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law” (emphasis added). This passage from Filippou cites Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [17]-[18] which includes the following statement:

“What the history reveals is that a ‘miscarriage of justice’, under the old Exchequer rule, was any departure from trial according to law, regardless of the nature or importance of that departure. By using the words ‘substantial’ and ‘actually occurred’ in the proviso, the legislature evidently intended to require consideration of matters beyond the bare question of whether there had been any departure from applicable rules of evidence or procedure.” (emphasis in original)

386. The effect of these passages from Filippou and Weiss is that the second limb of s 6(1) will be satisfied where it is established that the trial judge made “a wrong decision of any question of law” that resulted in a “departure from trial according to law”. If so, then regardless of the nature or importance of that departure, but subject to the proviso, that will be sufficient to oblige the Court to allow the appeal (as it will constitute a “miscarriage of justice” under the old Exchequer rule). These passages contemplate the possibility that a trial judge might make “a wrong decision of a question of law” that does not constitute a “departure from trial according to law”. The most obvious example is a decision on a question of law that is immaterial to the conduct of the trial or the content of a jury instruction.

387. In this case, the ruling concerning cross‑examination involved a wrong decision of a question of law, specifically the proper construction of ss 43 and 44 of the Evidence Act. Based on that misconstruction, the trial judge concluded that all questioning of McNamara about what he told the Commission on 4 June 2014 was precluded. This ruling affected the scope of counsel for Rogerson’s ability to cross‑examine McNamara. That is sufficient to establish an error under the second limb of s 6(1).

388. For the sake of completeness, we note that this reasoning can be contrasted with Cornell where it was held that an advance ruling that evidence was only admissible for tendency purposes did not of itself mean that a summing up which assumed that the same evidence was also admissible for coincidence purposes necessarily involved a “misdirection … on matters of adjectival law” (Cornell at [102] citing Filippou at [13]). This was so because s 192A does not have the effect that any subsequent admissible use of the evidence which was inconsistent with the advance ruling is necessarily contrary to law (Cornell at [104]).

Proviso in s 6(1) of the Criminal Appeal Act

389. Once it is found that the second and/or third limb of s 6(1) of the Criminal Appeal Act is engaged, then the conviction cannot be sustained unless the “‘proviso’ to this section is satisfied, namely, this Court is satisfied that no substantial miscarriage of justice has actually occurred”: WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 at [70], citing Weiss at [17]-[18] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ; Filippou at [13].

390. The Crown submitted that, if the Court upheld Ground 1 of the appeal, then the Court would find that there was “no substantial miscarriage of justice” and dismiss the appeal. The Crown submitted in writing that “[a]n examination of the record of the trial, including the jury’s verdicts, should satisfy this Court of the necessary condition that the evidence properly admitted at trial proved the applicant’s guilt beyond reasonable doubt”. ^[347]

391. In Filippou (at [15]), French CJ, Bell, Keane and Nettle JJ described a “substantial miscarriage of justice” as meaning “that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description”. That said, we do not understand that description as conveying anything different to the observation in Weiss at [44] that “[n]o single universally applicable description of what constitutes ‘no substantial miscarriage of justice’ can be given” (emphasis in original) and (at [45]) that, “[l]ikewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt”.

392. A critical aspect of any consideration of the application of the proviso is that which is required by the “negative proposition” whereby “[i]t cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty” (Weiss at [44]). Where the court is not satisfied that an accused’s guilt has been proved beyond reasonable doubt on the admissible evidence, then there “will always be a substantial miscarriage of justice”: Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [13] per Kiefel CJ, Bell, Keane and Gordon JJ. However, there may be cases where, notwithstanding the appellate court may be “persuaded to the requisite degree of the appellant's guilt”, the court would, having regard to the nature of the case, not be satisfied that no substantial miscarriage of justice has occurred (Weiss at [45]). Weiss nominated cases where there has been a “significant denial of procedural fairness” at the trial as potentially providing an example of that kind (Weiss id).

393. The High Court in Weiss identified three fundamental propositions attending the application of the proviso (at [39]):

“First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.”

394. The Court expanded upon the second of these propositions in Weiss as follows (at [41]):

“That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence … and determine whether, making due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial.” (emphasis added)

395. Five particular issues concerning the application of the proviso to this case should be noted.

396. First, in each and every case concerning the exercise of the proviso the appellate court must consider the nature and effect of the error on the trial process (Kalbasi at [15] per Kiefel CJ, Bell, Keane and Gordon JJ). This is so because the nature of the error may preclude the appellate court from being able to assess whether guilt was proved beyond reasonable doubt (Kalbasi id). As noted below, Mr Stratton SC submitted that this was such a case. On the other hand, it may be that the error was so immaterial to the outcome or conduct of the trial that it can be concluded that there was no substantial miscarriage “even though it could not be said that a conviction was inevitable” (Kalbasi at [14]). This is more likely to occur where the second limb of s 6(1) is engaged (Filippou at [15]).

397. In this case, the relevant error of the trial judge was in ruling that all forms of cross‑examination of McNamara on the Information Report, including on its contents, were precluded. As explained above, leaving aside questioning of the kind referred to in s 44(3) of the Evidence Act, which was not suggested to the trial judge, it may have been that all such relevant forms of cross‑examination would have been excluded had the trial judge refused leave to Rogerson under s 104(6). If we were satisfied to the requisite degree that such leave must have been refused, then this may have brought this matter into the type of case just noted, ie, one in which it could be concluded that there was no substantial miscarriage “even though”, or perhaps regardless of whether or not, “it could not be said that a conviction was inevitable” (Kalbasi at [14]). It is not necessary to consider this further as we will consider the matter on a basis favourable to Rogerson, namely that such leave would have been granted.

398. Second, there are some cases where it has been found that the appellate court was unable to assess whether guilt was proved beyond reasonable doubt (eg, Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46). This may be because of the nature of the error at trial (Kalbasi at [15]) or because the “natural limitations” that exist in appellate proceedings “require the appellate court to conclude that it cannot reach the necessary degree of satisfaction” (Weiss at [41]) or a combination of both.

399. Castle is an example of this. There, both appellants stood trial for murder. One of the appellants, Mr Bucca, was alleged to have shot the deceased. The other, Mr Castle, was alleged to have been a party to either a joint criminal enterprise to kill the deceased or an extended joint criminal enterprise to assault and detain the deceased (at [2]-[3]). The trial judge was found to have erred in leaving to the jury evidence of a conversation between a witness and the appellant Mr Bucca on the basis that it could have been an admission to the killing, when it was in fact exculpatory (Castle at [64] per Kiefel CJ, Bell, Keane and Nettle JJ). The Crown case was otherwise circumstantial, but the South Australian Court of Criminal Appeal concluded that the proviso was satisfied because the balance of the evidence was of “such strength that a reasonable jury properly instructed would inevitably have convicted the appellants and accordingly … no substantial miscarriage of justice actually occurred” (at [65]). This was held to be erroneous because it failed to recognise that the relevant evidence was in fact exculpatory and thus could in itself have provided a basis for a reasonable doubt (at [65]). It was also erroneous because proof of guilt depended on the disputed oral evidence of a Crown witness whose credibility was challenged (at [66]-[67]), including on the basis of her acknowledged drinking, drug consumption and psychotic episodes (at [19]). In those circumstances, the High Court found, consistent with Weiss, that the “natural limitations of proceeding on the record precluded a conclusion that guilt was proved beyond reasonable doubt” (at [68]).

400. Third, as noted, Weiss requires the appellate court to conclude for itself whether “the accused was proved beyond reasonable doubt to be guilty” (at [39] and [41]). To express a conclusion on guilt by reference to what a “jury properly instructed would inevitably have [done]” (Castle at [65]) has the potential to “distract attention from the statutory task” if that means something more “than the high standard of proof of criminal guilt” or the “natural limitations” that operate on appellate review of a criminal trial undertaken by reference to the record of the trial (Weiss at [40]). Further, just because it might be observed that another jury to the one that convicted “might take a different view of the credibility of witnesses” does not of itself warrant the conclusion that the negative proposition has not been satisfied (Weiss at [38]).

401. Fourth, what use, if any, is to be made of the jury’s verdict? In Weiss, it was observed that “[t]he fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of the trial” (at [43]). Thus, in some circumstances the jury’s verdict may assist in overcoming the “natural limitations” that operate upon the appellate court. However, the utility of the jury’s verdict will very much depend on the nature of the error that gives rise to the need to apply the proviso. Hence in Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14, it was observed that “the significance to be given to the fact that the jury has returned a guilty verdict must be assessed paying proper regard to what were the issues that the jury were directed to determine in order to arrive at a verdict of guilt” (at [28]). In that case, the trial judge erred in failing to direct the jury on a particular issue critical either to an element of the Crown case, or at least a defence, and thus it was concluded that “the verdict returned by the jury said nothing about that question” (at [28]). Similarly, in Castle the jury’s verdict was of no assistance given the misuse of exculpatory evidence in the summing up.

402. In this case, the trial judge directed the jury that, “if you accept the evidence of either [accused], then you must find that accused not guilty because it would follow, if you were to accept the evidence, that the Crown had failed to prove its case beyond reasonable doubt”. ^[348] His Honour further directed them that “even if you [do not] positively accept the evidence of an accused person, but you are nevertheless left with a reasonable doubt about his guilt, then you must find him not guilty”. ^[349] At appropriate points throughout the summing up the trial judge referred to the respective versions of events given by each of Rogerson and McNamara in their evidence. It follows that the jury’s verdict in this case can be taken as a comprehensive rejection of the credibility of both McNamara’s evidence and Rogerson’s evidence.

403. In considering the utility of the jury’s assessment of Rogerson’s and McNamara’s credibility it is important to note that, as explained above and unlike the supposed admission in Castle, the Information Report was not exculpatory of Rogerson. Further, there is no basis to conclude that any cross‑examination of McNamara about what the document asserts he told the Commission would have yielded any evidence exculpatory of Rogerson. It follows that the jury’s comprehensive rejection of Rogerson’s credit in this case was completely unaffected by the error that has been established. Further, while it can be accepted that the contents of the Information Report could have been used to undermine McNamara’s credit, the significance of that lost opportunity must be considered in circumstances where his credibility was, in the view of the jury, otherwise destroyed.

404. Mr Stratton SC submitted that this was a case where the proviso was incapable of being applied. He referred to R v Beattie (1996) 40 NSWLR 155, in which this Court upheld a ground of appeal concerning the rejection by the trial judge of questions posed in cross‑examination of a police officer suggesting that he had acted corruptly (at 162-163 per James J with whom Grove J and Hamilton AJ agreed). Mr Stratton SC referred to a passage in Beattie in which this Court observed that “an admission by the witness in an answer to [the disputed questions] would have had substantial probative value on the question of the witness’ credibility and the fact that the witness might have been unlikely to make any such admission did not affect the admissibility of the questions” (at 163 per James J). Mr Stratton SC argued, by analogy with that passage, that one cannot speculate what answers might have been given to questions based on the content of the Information Report. ^[350] He submitted that Beattie suggests that the possibility that McNamara might have denied making the assertions in the Information Report does not matter because there is “the possibility that he might have admitted that he made these prior inconsistent statements”. ^[351]

405. We do not accept that the absence of knowledge as to what answers McNamara might have given if he was cross‑examined on the contents of the Information Report prevents the application of the proviso. The analysis at [403] above does not involve speculation that McNamara might have rejected the suggestion that he told the Commission anything different to what he stated in his evidence. Instead that analysis is directed towards the ultimate issue that the proposed questioning was relevant to, namely, according to Mr Stratton SC, whether or not McNamara had made “prior inconsistent statements”, ie, his credit. In the view of the jury, and to the extent that it is relevant, this Court, McNamara’s credit was comprehensively destroyed by all the other evidence in the trial.

406. This reasoning is consistent with Beattie. The disallowed questions addressed in Beattie also related to the witness’ credit (at 163), however it was the credit of a prosecution witness, not a co‑accused. Further, in Beattie, James J considered that, if the rejection of questions concerning the witness’ alleged involvement in corruption was the only basis upon which the appellant succeeded in that case, then “a serious question would have arisen as to whether the proviso in s 6(1) of the Criminal Appeal Act should have been applied” (at 164). The “serious question” did not arise in Beattie because the appeal succeeded on other grounds. However, the “serious question” has arisen here and, unlike the Court in Beattie, this Court has the advantage of the jury’s comprehensive rejection of the credibility of the witness who was sought to be questioned further, namely McNamara.

407. Fifth, contrary to Mr Stratton SC’s submission, ^[352] we do not accept that the error in this case was of a kind that would mean that, even if we were persuaded of Rogerson’s guilt beyond reasonable doubt, we would still allow the appeal (Weiss at [45]). The error of the trial judge did not involve a “significant denial of procedural fairness” or any other form of error which has been found to necessarily preclude satisfaction of the proviso (see Weiss at [45]-[46]; AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [112]).

408. This leaves the issue of whether, on our “own independent assessment of the evidence” Rogerson was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict (Weiss at [4]).

409. The Crown case and Rogerson’s case in response are summarised above. As the trial judge repeatedly told the jury, the Crown’s “case [was] not a contest, as it were, between the two accused”. ^[353] The jury was told that the Crown’s primary case was of a joint criminal enterprise between both accused “[b]ut if you reject the Crown’s case on the basis of a joint criminal enterprise, it will be open to you to find one accused guilty of murder, if you are satisfied that the elements of murder are made out, and one accused not guilty of murder”. ^[354] It follows from the jury’s verdict that the latter approach never arose for consideration.

410. In terms of evidentiary strength, the Crown case against Rogerson and McNamara consisted principally, if not overwhelmingly, of CCTV footage. In broad terms, such oral evidence as the Crown called consisted of witnesses who supplemented or explained the chronology of events either shown in that footage or which placed that footage in context. As the submissions made by Rogerson in support of Ground 3 of his appeal make clear, the only truly disputed evidence in his case was his attempt to explain the inculpatory effect of the Crown case, especially the CCTV footage. As noted at [403] above, the error complained of had no effect on the jury’s comprehensive rejection of that explanation. Further, the error does not preclude this Court reaching its own conclusion, to the requisite standard, to the effect that the strength of the Crown’s case was overwhelming, and that Rogerson’s evidence was completely lacking in credibility. If any of the “natural limitations” on this Court’s review of the record of the trial affect our ability to form that conclusion, and we do not consider that they do, then the jury’s assessment in this case fortifies that conclusion. So far as McNamara’s evidence is concerned, no part of the Crown case against Rogerson relied on evidence adduced from McNamara. A further attack on his credibility via the use of the contents of the Information Report was irrelevant to the Crown case against Rogerson based on joint criminal enterprise and to any assessment of his guilt.

411. Even allowing for the error that has been identified, the Court is satisfied that Rogerson “was proved beyond reasonable doubt to be guilty of the offence[s] on which the jury returned its verdict[s] of guilty” (Weiss at [41]). Although it is not necessary to express a conclusion in these terms, the Court is also satisfied that any reasonable jury properly instructed would have reached the same conclusion.

412. It follows that no substantial miscarriage of justice was occasioned to Rogerson and hence the proviso must be applied (Baiada Poultry at [25]; Filippou at [15]).

413. As this ground does not involve a question of law alone within the meaning of s 5(1)(a) of the Criminal Appeal Act, leave to raise it is required (s 5(1)(b)).

414. We grant leave to raise Ground 1 but dismiss it.

Rogerson Ground 5: Fresh evidence concerning the source of the gun

415. Ground 5 of Rogerson’s appeal contends that a miscarriage of justice was occasioned at his trial by reason of the absence of evidence from two witnesses: Witness A and Ms Annabelle Ballard.

416. Rogerson contended that their evidence was capable of demonstrating that, in the period prior to the murder of the deceased, Witness A obtained a handgun from Ms Ballard that was ultimately used to shoot Jamie Gao and supplied it to McNamara. This was said to support Rogerson’s evidence that when he entered storage unit 803 the deceased was already dead ^[355] because McNamara had brought a handgun to the storage unit and shot him. It was also submitted that this evidence undermined Jessica McNamara’s evidence that, on the evening of 20 May 2014 at her father’s apartment, she “noticed a dark black object sticking out of Rogerson’s pocket” which she thought was a gun ^[356] and McNamara’s evidence that Rogerson said he made a phone call after the killing arranging to have the handgun used in the shooting altered by boring out its barrel. ^[357]

417. The test for the reception of fresh evidence on appeal is addressed below. The evidence in support of this ground consisted of statements made by Witness A, Ms Ballard and other persons to police, as well as various affidavits and expert certificates. Witness A, Ms Ballard and four other witnesses gave oral evidence in this Court. All of those witnesses received a certificate under s 128 of the Evidence Act.

The evidence

Witness A

418. Witness A is in his late 60s. For a number of years, he was a serial fraudster. He was in custody from 2000-2006 for a number of fraud offences. Witness A was interviewed by police in March 2020. During that interview he told police that he first met Rogerson when they were both in gaol in 2005 and they became friends. ^[358] In his evidence in this Court he said he maintained contact with Rogerson between 2005 and 2014. ^[359]

419. Witness A returned to custody in 2013 following his being sentenced for recklessly dealing with the proceeds of crime, namely, funds defrauded from a bank by others. ^[360] Some weeks prior to his incarceration, Witness A met McNamara ^[361] and then a few weeks later McNamara visited him in custody. ^[362] They met a number of times over the following months as well as after Witness A was released from custody in February 2014. Witness A had provided the authorities with a statement implicating his co-offenders in the fraud offence from which he received proceeds (the “induced statement”). ^[363] McNamara was working as a private investigator for one of those co-offenders and was seeking to prepare a “further statement” for Witness A. ^[364]

420. On 25 May 2014, a personal computer was seized by police during a search of McNamara’s residence. ^[365] Located on the computer was an audio file of a conversation between McNamara and Witness A which took place on or around 15-16 April 2014. ^[366] Part of that discussion appears to relate to a proposal by McNamara for Witness A to provide a statement that varied from his previous induced statement. ^[367] In his evidence in this Court, Witness A said that McNamara attempted to have him change his induced statement. ^[368] The Crown contended that Witness A agreed to do so, but Witness A denied that. ^[369] It is not necessary to resolve that dispute.

421. In his interview with the police in March 2020, Witness A told the police that sometime after he was released in 2014, he was speaking with his friends Geoffrey O’Brien and Annabelle Ballard. Witness A said that Ms Ballard mentioned that her marriage to a veterinarian had broken down, that she had found a handgun her husband used to “put horses and cattle down with” and that “someone had told her she’d get into trouble if she took it to the police”. ^[370]

422. Witness A said that he spoke to McNamara a few days later and he then told Ms Ballard that “there’s a bloke who can get rid of that without any questions and you’ll never get into trouble”. ^[371] He said that Ms Ballard said she would wrap the handgun in a towel and it was later dropped at his house. Witness A said that he found the gun on his doorstep. Witness A told the police that he “put it in the back of my old Commodore, drove down to the park” ^[372] and left it there until McNamara’s car was close. Witness A told the police: ^[373]

“Glen [McNamara] pulled up in his big blue car … hopped out of his car and I said it’s on the floor of the back, get rid of it … and he opened it up and I remember his words clear – he opened it up and said oh it’s a little fucking beauty isn’t it … and it was like he had won the lotto and as he was leaving he said oh we’ll talk soon mate and I’ll buy you lunch soon and oh by the way don’t tell Rogerson about this …” (emphasis added)

423. Three matters should be noted about Witness A’s evidence.

424. First, Witness A has a long record of dishonesty offences. In 1999 he received a three-year suspended sentence for fraud in Queensland. ^[374] The custodial sentence he served from 2000-2006 related to a large number of fraud offences, including multiple counts of obtaining a financial advantage by deception and using a false instrument. Those offences concerned a number of different fraudulent schemes. One scheme involved raising finance based on sales of aircraft between related companies at falsely inflated prices. In his evidence in this Court, Witness A agreed that, as part of that fraudulent scheme, he forged his wife’s signature and signed false airworthiness certificates. ^[375] He said these offences were committed around 1989 or 1990. ^[376] Another scheme involved raising loans from banks based on inflated land values. ^[377]

425. Regarding the offence of recklessly dealing in proceeds of crime, Witness A’s induced statement revealed that he received $1.2 million into his bank account which were the proceeds of a fraud on a bank perpetrated by others. Of that sum, $550,000 was a “loan” to Witness A and the balance was to be used by the perpetrators of the fraud. ^[378] In the induced statement, Witness A also admitted that he and two of the perpetrators agreed to defraud a bank of a further $1.8 million by attempting to bribe a manager. ^[379]

426. Second, in his oral evidence in this Court, Witness A confirmed that his recollection was that the handgun was left on his doorstep by either Ms Ballard or Mr O’Brien, or both, and not handed to him personally. ^[380] As explained below, this was inconsistent with their evidence.

427. Third, in his interview with the police, Witness A was asked about when and how he came forward after Rogerson’s conviction. Witness A said that he did not talk to anyone about the handover of the handgun until after Rogerson was sentenced ^[381] on 2 September 2016 ^[382] He said that he was contacted by Rogerson’s wife and told her that, in the period prior to the killing of Jamie Gao, McNamara had been trying to have him sign the further statement referred to above at [420]. Witness A said that Mrs Rogerson asked him “well can I pass it onto to Roger’s solicitor”, Peter Katsoolis. Witness A said that “Peter Katsoolis [then] rang me and I went and saw him”. ^[383] Later in the interview, Witness A said that he first saw Rogerson “at the end of 2016 … just before Christmas” and that he visited him twice “just after I heard, when I talked to Peter Katsoolis, I went and saw him and he knew, he said he knew all about it – the gun”. ^[384] Thus, Witness A told the police that he spoke to Rogerson’s wife, then to his solicitor, Mr Katsoolis, and only then did he speak to Rogerson in gaol.

428. In his oral evidence in this Court, Witness A confirmed that the order of events was that when Rogerson’s wife rang him in September or October 2016 after Rogerson was sentenced, Witness A mentioned to her the statement that McNamara had been endeavouring to have him sign and Rogerson’s wife provided his contact number to Mr Katsoolis. ^[385] Under cross-examination in this Court, Witness A said that he only intended to discuss the false statement issue with Mr Katsoolis and the history of his providing a gun to McNamara emerged serendipitously during the conversation: ^[386]

“Q.   Just came out of the blue did it?

A.   Well we [Witness A and Mr Katsoolis] were just having a general talk about everything to do with Rogerson’s history and everything else and that came out. Not from me mate.

Q.   The thing that you never wanted to speak about suddenly just came out did it?

A.   I guess so.

Q.   Because there’s no other explanation is there?

A.   I didn’t go there with the intention of telling him if that’s what you’re trying to say.

Q.   Because there’s no other explanation is there Witness A it must have just come out?

A.   I don’t know how it came out to be honest with you but I wish it hadn’t.

Q.   Well let me tell you again Witness A on our case it came out because it was a carefully crafted version for you to get your mate Mr Rogerson out of trouble after his conviction, isn’t that right?

A.   No.” (emphasis added)

429. Earlier in the cross‑examination, Witness A was pressed about whether he saw Mr Katsoolis before or after he visited Rogerson in gaol and whether he told Rogerson about the false statement that McNamara tried to have him sign: ^[387]

“Q.   And you didn’t talk to her husband, Roger Rogerson, at this time about the false draft statement?

A.   No, no, I didn’t no.

Q.   Is that actually correct, Mr Witness A?

A.   Well, I didn’t see Roger - at the gaol is when I told him about it - until after I’d seen Peter. I had no contact with Roger from the time - before he was arrested right through to when I visited him in gaol.

Q.   Didn’t you visit Mr Rogerson on 1 October 2016?

A.   I can’t remember the date. Do you have a record there?

Q.   Yeah, we do have a record. I’d suggest to you that you visited Mr Rogerson on 1 October 2016?

A.   I did not visit him before I saw Peter Katsoolis …

Q.   I suggest that you did?

A.   No, I did not.

Q.   Right, so you swear that? You swear that you did not--

A.   I did not talk to Roger Rogerson before I talked to Peter Katsoolis. I spoke to [Rogerson’s wife].” (emphasis added)

430. There was then an objection and reference to documents that suggested Witness A visited Rogerson in gaol on 1 October 2016. Witness A was then asked: ^[388]

“Q.   Mr Witness A, I’ll go back to it. Do you swear that you didn’t have contact with Roger Rogerson before you went to see Mr Katsoolis for the first time?

A.   I’m pretty - I’m 90% sure I didn’t, but if the documents are there, I’m wrong.

Q.   Yes?

A.    I always thought I saw Peter Katsoolis before I saw Roger.”

431. In fact, the evidence overwhelmingly demonstrates that Witness A did see Rogerson in gaol before he saw Mr Katsoolis. On or about 5 October 2016, being a month after Rogerson was sentenced, Mr Katsoolis visited him in gaol. ^[389] In that conference, Rogerson provided Mr Katsoolis with a written set of instructions. ^[390] Those instructions refer to Witness A and Rogerson’s wife visiting him on the morning of 1 October 2016. This is consistent with the prison records. ^[391] The instructions set out Rogerson’s “history” with Witness A commencing from when they first met in gaol in or around 2006. Rogerson recorded Witness A saying that he had been discouraged from speaking to Rogerson while he was on trial by a mutual acquaintance. ^[392]

432. Rogerson’s note also stated: ^[393]

“[Witness A] told me that during the week prior to the week of the 20-5-16 [sic] – the fatal day. [Glen McNamara] met up with him. He told him words to the effect that he, [Glen McNamara] was coming into a lot of money, he wanted [Witness A] to do something BUT under no circumstances was he to tell ROGERSON what he had in mind. [Witness A] was shocked when [Glen McNamara] referred to me by my surname and not Roger. This was the information he wanted to pass onto [Mr Rogerson’s wife] some time ago now, but was put off by [the mutual acquaintance].

Please check with [Mr Rogerson’s wife] re her observations of [Witness A] and her conversations with him, not in my presence, as to his genuineness etc.

This is another example of [Glen McNamara] going behind my back to people that introduced him to [indistinct] of Karl Bonnette.” (underlining and capitals in original; italicised emphasis added)

433. According to Mr Katsoolis, on 13 October 2016 Witness A attended his office and “told me about how he asked McNamara to dispose of a gun for the wife of a vet and that he gave McNamara the gun”. ^[394] Thereafter, both he and counsel spoke with Witness A and he received independent legal advice. However, no statement was taken from him until he was interviewed by the police in March 2020. ^[395]

434. At this point, three matters should be noted about Rogerson’s note of his meeting with Witness A on 1 October 2016.

435. First, that note and the prison records overwhelmingly demonstrate the falsity of Witness A’s strenuous denials of speaking to Rogerson before he spoke to Mr Katsoolis.

436. Second, Rogerson’s note is opaque as to the exact dealing that Witness A told Rogerson that he had with McNamara in the week before the deceased was shot. On the evidence, it could have only been either a reference to a payment for making a false statement, which is a topic that Witness A strenuously denied discussing with Rogerson (above at [429]), or a reference to dealings with a handgun which would only bolster the Crown’s suggestion that Rogerson and Witness A jointly concocted this story to exonerate the former.

437. Third, the reference in Rogerson’s note to McNamara telling Witness A that “under no circumstances was he to tell ROGERSON what he had in mind” has an obvious similarity to that part of Witness A’s version of events concerning what McNamara said when the pistol was supposedly handed over (“oh by the way don’t tell Rogerson about this”): see [422] above.

Annabelle Ballard

438. Ms Ballard provided a statement to the police on 16 March 2020. ^[396] In that statement she said that in 2013 her then-husband Jan Slowiaczek, a veterinarian, was overseas. She said she discovered a handgun in a drawer in their home. She said her friend Jacqueline Carter was present. Although she had never seen the handgun before Ms Ballard recalled her husband stating that he obtained the gun “many years ago… from a [p]olice [o]fficer”. ^[397] She assumed her husband had used it to put animals down.

439. Ms Ballard said that by March 2014 she knew Witness A and that he had recently been released from gaol. Witness A and his wife were living with her friend, Geoffrey O’Brien. She mentioned finding the gun to both Witness A and Mr O’Brien. She recalled Witness A insisting that she could not keep it in the house. He said to her “I know people on the Police Force, let me ask around and see if I can find some way of handing it in”. ^[398] She recalled that a “short time later” he said that he had “found someone to hand the gun to and it will be destroyed” and he requested her to “wipe it down and wrap it” and bring it to him. ^[399] About a “day or two” later she followed his instructions and drove to Witness A’s home. She said that “I met [Witness A] in the driveway and either I took the gun out of the boot or he took it out himself”. ^[400]

440. In her oral evidence in this Court, Ms Ballard reiterated that she wrapped the gun in a towel, put it in the boot of her car and drove to where Witness A was living. She said that Witness A met her but she could not “remember whether I actually physically got it out of the boot and handed it to him or whether he [or] I opened the boot and he reached in and got it I don’t remember”. ^[401] Ms Ballard was adamant that she did not leave the gun at the front of Witness A’s premises (“No. No, I definitely didn’t leave it. I wouldn’t leave it that’s completely something I wouldn’t do”). ^[402]

441. Ms Ballard also reiterated that when she found the gun her friend, Jacqueline Carter, was present. The Crown read an affidavit from Ms Carter. Ms Carter said that she was present when Ms Ballard found a small handgun at her home. She recalled that Ms Ballard was involved in a “difficult separation” from her husband at the time and that he was overseas. ^[403] Ms Carter said that “possibly the next time” she saw Ms Ballard “which would have been four to six weeks later” Ms Ballard told her that “[i]t’s gone, I got rid of it”. ^[404] This was not consistent with Ms Ballard’s version of events. Ms Ballard said that after she found the gun, she hid it and sometime later gave it to Witness A. ^[405] Ms Ballard agreed that Ms Carter was present when she found it but denied telling her later that she “got rid” of the gun. She said she “would have told” Ms Carter that she hid the gun. ^[406]

Geoffrey O’Brien

442. Mr O’Brien was an acquaintance of both Ms Ballard and Witness A. He participated in a record of interview with the police on 2 April 2020. ^[407] He recalled Ms Ballard saying that she had found a revolver or “handgun” at her house and Witness A telling her that she should not have it because it was dangerous. ^[408] He recalled that Witness A “suggested that he could get rid of it to a [p]oliceman”. ^[409] He recalled that sometime later Ms Ballard said she had given the gun to Witness A adding “look [it is] Annabelle’s word that she said she’d wrapped it up and given it to [Witness A]” but “I don’t know if she left it out for [Witness A] or left it on the doorstep, or he knocked, or he, or she put it in his hands, I don’t know”. ^[410] In his evidence in this Court, he confirmed that he never saw the gun being handed over to Witness A. ^[411]

443. In a discussion with a police officer on 1 April 2020, Mr O’Brien noted that, at the time of these events, Witness A “suggested he could hand the gun into a Policeman he knew” ^[412] and he, Mr O’Brien, assumed it was an officer associated with a matter in which Witness A had given evidence. Mr O’Brien said that “sometime in the past 2 years” (ie, between 2018 and 2020) Witness A told him that he had given the gun to Rogerson and that he was assisting Rogerson with his trial. ^[413] In his interview with police on the following day, Mr O’Brien said that he was mistaken and that Witness A said he gave the gun to McNamara. ^[414]

444. In his interview, Mr O’Brien also mentioned finding some old ammunition at Ms Ballard’s house in a “six pack esky”, ^[415] which he provided to the police immediately after the interview. ^[416] He said he found it in March 2020. ^[417]

Jan Slowiaczek

445. Mr Slowiaczek is a retired veterinarian who was previously married to Ms Ballard. He participated in an interview with police on 20 March 2020 ^[418] and a further interview on 5 May 2020. ^[419] He also gave evidence in this Court.

446. In his oral evidence Mr Slowiaczek said that he was licensed to possess a Browning .22 calibre rifle and a 12-gauge shotgun but not a pistol. ^[420] Mr Slowiaczek said that in about 1984 or 1985 he obtained a pistol from a police officer. ^[421] When prompted, he recalled that the name of the officer was Guy Hull. ^[422] Mr Slowiaczek recalled that the gun was .32 calibre. ^[423] He described the pistol as having the marking of “.65mm” on it ^[424] and that it had “5.65mm” marked along the barrel and on the handle. ^[425] Mr Slowiaczek obtained ammunition for the pistol by reference to the details that were marked on it. ^[426] In his interview of 20 March 2020, Mr Slowiaczek told police that he thought the calibre was marked on the barrel as “756”, but having looked up pistols on the internet the marking was “765mm”. ^[427] Mr Slowiaczek gave evidence that the pistol was a Browning and was marked accordingly on the barrel and the handle. He said the pistol grip had a stylised “FN” on it which is a Browning insignia. ^[428] Mr Slowiaczek denied that it could have been a Beretta. ^[429] He said that he received “.32 calibre bullets … from the gentleman that supplied me with” the pistol along with .22 calibre bullets for a rifle he owned and recalled keeping it in a “foam esky”. ^[430]

447. Two further matters should be noted about Mr Slowiaczek’s evidence.

448. First, in his interview on 20 March 2020 Mr Slowiaczek told the police that he found the handgun wrapped in a towel on his property and cleaned it up. ^[431] He said he found it with no ammunition. ^[432] In his subsequent interview on 5 May 2020 Mr Slowiaczek was asked whether he previously made statements to the police that “weren’t the truth”, following a phone conversation he had with a detective on 6 April 2020 in which he made an acknowledgement to this effect. ^[433] He said he purchased the pistol from a policemen for $200. ^[434] He said he could not remember the officer’s name but said his wife had the surname “Hill”, ^[435] “Hall” ^[436] or “Hull”. ^[437] In his evidence in this Court, Mr Slowiaczek stated that when Mr Hull gave him the pistol, he said that, while interviewing a suspect in a park, his boot had felt something hard near the suspect’s groin. ^[438] Mr Hull’s evidence is summarised below but it suffices to state that he denied ever saying that or that any such incident occurred. ^[439]

449. Second, in cross‑examination in this Court ^[440] Mr Slowiaczek was taken to the following part of the interview he conducted with police on 20 March 2020: ^[441]

“Q.   And the .32 calibre ACP that you nominated earlier, and …

A.   .32, okay. I didn’t know. Maybe, okay I’ll check that because I didn’t know there was a .32 and .25. I didn’t know that was calibre, but the gun looked the same as the one that had 25 ACP [Automatic Colt Pistol], but I’ll have a look.”

450. Mr Slowiaczek said that in giving that answer “I think I was deluded there”. ^[442] In re‑examination, Mr Slowiaczek stated that he said that he had “confabulated” the memory of the pistol having “25 ACP” stamped upon it and that he “used to dispense a medication that was called ACP 25, so maybe that was stuck in my head”. ^[443] In fact in that interview, shortly after the above passage, Mr Slowiaczek undertook some internet searches and stated “I’ll clarify it, it’s definitely a .32, not the .25”. ^[444] In his interview on 5 May 2020 Mr Slowiaczek stated that he acquired the “best part of a box of bullets” and was “pretty sure it’s .32”. ^[445]

Nicholas Bartels

451. Mr Bartels was a cadet at the Royal Military College from 1978-1982. ^[446] While he was a cadet, he purchased two Beretta .32 pistols from a security company which he intended to use for combat pistol competitions. ^[447] He said he found the pistols unsuitable as the size and shape of the grip did not suit his hand. Mr Bartels was asked as follows: ^[448]

“Q.   Why is it that you know that these two pistols were Berettas?

A.   With virtually all firearms and certainly, with the Beretta, they have the name of the firearm imprinted on the side of the firearm and in a quirk which is unusual the Beretta 32 also has its calibre printed on the side the pistol.”

452. Mr Bartels said that he recalled purchasing one box of ammunition for the pistols. ^[449] Mr Bartels said that he handed one of the pistols to the Queensland police in 1987 and provided the other to a “gentleman by the name of Mr Guy Hull” in the early 1980s. ^[450] He said he had known Mr Hull for many years before he gave him the pistol. ^[451]

Guy Hull

453. Mr Hull is a former policeman. He said that he received a pistol from Mr Bartels. He said that “[t]o the best of my memory… I think it was a Beretta 32 calibre centre-fire pistol”. ^[452] He said that he later provided the pistol to a “vet in exchange for some veterinary services” ^[453] and identified the recipient as Mr Slowiaczek. ^[454] When pressed in cross‑examination, he said he was “certain it was a 32 calibre Beretta” ^[455] and that he never owned any pistol other than the one provided to him by Mr Bartels. ^[456]

454. Beyond this, Mr Hull did not recall the circumstances in which he gave the pistol to Mr Slowiaczek. ^[457] In cross‑examination, Mr Hull said that he thought that he had traded something with Mr Slowiaczek. He had no memory of putting the gun on the desk of Mr Slowiaczek’s office and offering to sell it for $200. ^[458] As noted above at [448], Mr Hull denied that he told Mr Slowiaczek that he had acquired the gun while arresting a man in a park. ^[459]

Other evidence

455. The Crown also read an affidavit from a forensic ballistics investigator and firearms examiner, Mr Daniel Paine. Mr Paine said that none of the models of Browning pistols would have the marking “.756mm” on their barrels, ^[460] however there are various Browning pistols that are marked “CAL 7^m/m65” which refers to the calibre of the firearm, namely “7.65mm Browning calibre” being the equivalent to “.32 Automatic Colt Pistol (ACP calibre)”. The bullets recovered from the body of the deceased and the scene of his shooting were .25 calibre. ^[461] Mr Paine said that some but not all Browning pistols had a “FN logo” on their grip plates. ^[462] His report included a photograph of a 6.35mm Browning pistol model 1906 which he said was often incorrectly called a “Baby Browning”. ^[463] A 6.35mm Browning calibre is the equivalent of a .25 ACP calibre.

456. In May 2020, Mr Paine received the ammunition that had been provided to police by Mr O’Brien. ^[464] This consisted of a dozen 12-gauge shotgun cartridges, 17 .22 long rifle calibre cartridges and 87 “.32 Automatic calibre” cartridges. He said that none of that ammunition matched the bullets recovered from the deceased’s body and the “.32 Automatic calibre” ammunition could be used in a Browning .32 calibre pistol. ^[465] On or about 1 September 2020, he performed various experiments to confirm that .25 calibre ammunition cannot be discharged from a .32 calibre Beretta unless the cartridge or the pistol was modified. ^[466]

457. Both Mr Katsoolis and Rogerson’s trial counsel swore affidavits stating that prior to Rogerson being sentenced they did not receive any instructions or information about Witness A giving McNamara a gun prior to the death of the deceased. ^[467]

Fresh evidence principles

458. On behalf of Rogerson, it was submitted that the evidence the subject of this ground was “fresh evidence”. In MRW v R [2011] NSWCCA 260 at [46], Bathurst CJ identified three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on this basis:

"First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial: see Ratten [v The Queen (1974) 131 CLR 510; [1974] HCA 35] … at 512; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant."

459. As to the first question, where the relevant material is evidence that was in existence as at the time of the trial, the relevant issue is whether that material “could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case” (Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 at 516 per Barwick CJ). The evidence of Rogerson’s solicitor and trial counsel is noted above at [457]. Having regard to that evidence, and the fact that Witness A did not come forward until after Rogerson was sentenced, we accept that the evidence of Witness A and Ms Ballard is relevantly “fresh”.

460. The second and third questions are interrelated with the consequence that the factual inquiry is not necessarily the same as that required of a trier of fact at first instance. This is best illustrated by a decision that is in some respects analogous to this case, namely Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26. In Gallagher, special leave to appeal was refused from a decision of this Court dismissing an appeal where evidence was given on appeal by a prisoner that he, and not the appellant, stabbed the deceased in gaol. This Court concluded that the evidence was false and was given with the intention of perverting the course of justice by the quashing of the appellant’s conviction (at 394).

461. In addressing the second limb of the test for fresh evidence, Gibbs CJ in Gallagher (at 396) described the “critical question [as] whether the evidence was apparently credible” (emphasis added). In describing the approach of this Court to an assessment of that “critical question”, his Honour stated (at 397):

“In some cases the Court of Criminal Appeal will be able to reach a firm conclusion as to whether the evidence is trustworthy or unreliable, but in many cases it will be able to do no more than decide whether or not the evidence is apparently credible, or capable of being believed.

...

If the court concludes that the fresh evidence is apparently credible, or not incapable of belief, when considered in conjunction with the other evidence given in the case, the question then arises what influence it might have had upon the jury if it had been available at the trial. This question, which really subsumes the issue of credibility, has been stated in the authorities in different ways and with different degrees of emphasis.”

462. Gibbs CJ considered the various formulations of the test concerning the effect of the evidence upon the jury’s verdict before expressing agreement with the approach of Mason and Deane JJ (at 402) that there will have been a miscarriage of justice “if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence” had been available at the trial (at 399). This is the formulation stated by Bathurst CJ in MRW at [50]. In Gallagher, Mason and Deane JJ treated the emphatic finding of this Court concerning the credibility of the supposed confessor as inconsistent with the existence of the “significant possibility” of acquittal of the appellant had his evidence been available at the trial (at 403 and 407; see at 399 per Gibbs CJ and at 422 per Dawson J). Similarly, in Gallagher Brennan J explained that, because an acquittal follows if the jury has a reasonable doubt about an applicant’s guilt, “[i]t is not necessary that the court should think it likely that the fresh evidence would have been believed: it is enough that it is judged to be likely to have resulted in an acquittal” (at 410).

Consideration

463. The significant discrepancy between the evidence of Ms Ballard and that of Witness A as to how the pistol was delivered to him has given us considerable reason to pause before determining that her evidence of delivering a pistol to Witness A was “apparently credible”. Ms Carter’s evidence adds to that doubt. Nevertheless, having had the opportunity to observe Ms Ballard give evidence, we accept that her evidence of finding her husband’s pistol, discussing its disposal with Witness A and providing it to him is “apparently credible” or “capable of belief”. However, two further issues remain, namely, which pistol was provided to Witness A and whether he then provided it to McNamara?

464. In relation to the type of pistol that was found by Ms Ballard, the evidence overwhelmingly demonstrates that it was .32 calibre. Mr Stratton SC focussed on the differences in the evidence between Mr Bartels and Mr Hull on the one hand, and Mr Slowiaczek on the other, as to whether the pistol was a Beretta or a Browning. ^[468] He submitted that that dispute, and the dispute between Mr Hull and Mr Slowiaczek as to how the pistol was acquired, broke the “chain of custody” sought to be relied on by the Crown and suggested that the gun Mr Slowiaczek acquired was different to the one that Mr Hull supplied. ^[469] We disagree. The evidence only permits of the conclusion that the handgun Mr Slowiaczek owned was the one he acquired from Mr Hull who in turn acquired it from Mr Bartels.

465. Further, if we were required to determine what make of pistol was supplied, then having regard to the evidence of Mr Bartels and his obvious knowledge of firearms and the differences in Mr Slowiaczek’s versions as to how he acquired the pistol, we would conclude it was a Beretta. However, it is unnecessary to consider this further because the evidence of all three witnesses was completely consistent in asserting that the pistol was .32 calibre. Their evidence in this respect is confirmed by the ammunition that was located by Mr O’Brien that included .32 calibre bullets and did not include .25 calibre bullets. The evidence does not suggest any possible reason for Mr Slowiaczek possessing .32 calibre bullets if he was in fact in possession of a .25 calibre pistol.

466. It was submitted on behalf of Rogerson that “it would be well and truly open to a jury to conclude that the gun which Witness A was given was a .25 Browning”. ^[470] It follows that we reject that contention. Any reasonable jury considering this evidence would be bound to conclude that any pistol discovered by Ms Ballard was of .32 calibre.

467. In relation to whether Witness A provided the pistol to McNamara, the only evidence of this occurring came from Witness A. Mr O’Brien’s evidence does not corroborate Witness A’s evidence that the gun was given to McNamara. The effect of Mr O’Brien’s evidence, taken at its highest, was that Witness A did not inform him of that until sometime in the two years prior to his speaking to the police in 2020.

468. Witness A is an experienced fraudster and an accomplished liar. He has been a reasonably close associate of Rogerson for many years. On behalf of Rogerson, it was submitted that most of Witness A’s crimes were “committed last century”. ^[471] In fact, he spent the first six years of this century in gaol for those crimes which presumably limited his capacity to sell aircraft at inflated values. His induced statement suggests that, upon his release, his approach to the 21^st century was no different to the end of the 20^th century. It was submitted that Witness A’s evidence in this Court was honestly given in that he candidly admitted the circumstances of his own offending. ^[472] That is so but that only occurred in circumstances where he would have known that the details of his crimes were well within the knowledge of the Crown. In contrast, he would not have necessarily known that the Crown had obtained Rogerson’s note of his visit on 1 October 2016 prior to his first conference with Mr Katsoolis.

469. We are satisfied that, in denying that he spoke to Rogerson prior to speaking to Mr Katsoolis, Witness A lied. He rightly perceived that if the true position was disclosed then it may be suspected that he had concocted or at least moulded his story about providing a pistol to suit Rogerson’s interests. Further, Witness A’s explanation of how his account of providing a gun to McNamara just “came out” in his conference to Mr Katsoolis lacked any credibility. According to Witness A, in agreeing to speak to Mr Katsoolis, he agreed that he was going to assist Rogerson by discussing a completely tangential inquiry concerning McNamara’s attempts to have him change his induced statement, but then he serendipitously happened to divulge something that was far more central to the case against Rogerson and McNamara, namely, who sourced the gun that might have shot the deceased. In providing that version of events to Mr Katsoolis and then later to the police, Witness A included a comment that Rogerson recorded Witness A attributing to McNamara in relation to what appears to be the attempt to have the induced statement changed, namely a direction not to tell Rogerson. This evidence was not “apparently credible”: Gallagher at 396.

470. Finally, as pointed out in argument, ^[473] Witness A’s evidence that he contacted McNamara to provide him with the pistol in 2014 does not accord with the objective circumstances he faced as he described them. According to Witness A, upon his release from custody he was being pursued by McNamara to effectively retract his induced statement and sign a statement exonerating those who provided him with illicit funds. In those circumstances, when gifted with a relatively untraceable pistol, it seems unlikely that he would contact the ex‑policeman who was harassing him and offer him a pistol, rather than selling it to someone else. It is at least equally probable that he would have provided it to another ex-policeman acquaintance who was not harassing him, namely Rogerson.

471. Given Witness A’s record of dishonesty, his association with Rogerson, the unpersuasive nature of his version of events and the circumstances in which that version of events emerged, we are satisfied that no reasonable jury would accept his uncorroborated evidence of having provided a pistol to McNamara, much less that McNamara expressly told him not to tell Rogerson that he had done so.

472. On behalf of Rogerson it was submitted that, even if it was concluded that it was not open to a jury to conclude that a .25 Browning pistol was given to McNamara by Witness A, Witness A’s evidence to the effect that “McNamara was keen to have a gun, that he delivered a gun of low calibre (whether .25 or .32) to McNamara, and that, in particular, McNamara told [Witness A] not to tell [Rogerson], strongly supports [Rogerson’s] case that he was not part of a plan to commit an armed robbery or murder of Mr Gao”. ^[474] This was said to be supported by the fact that the injuries were caused by a .25 calibre gun and the internet searches conducted by McNamara about the “Baby Browning .25” on 10 March 2014. ^[475] This submission falls away given our finding that no reasonable jury would accept Witness A’s uncorroborated evidence of having provided a pistol to McNamara.

473. Leave to raise Ground 5 of the appeal will be granted but the ground is dismissed.

Rogerson Ground 4: Sentence is Manifestly Excessive

474. Ground 4 of Rogerson’s notice of appeal seeks leave to appeal against his sentence on the basis that it is manifestly excessive. At the hearing of the appeal, Mr Stratton SC confirmed that this application was only pressed in the event that he succeeded in overturning his conviction for murder but not his conviction for drug supply. ^[476] As he has not overturned his conviction for murder it follows that leave to appeal against sentence is refused.

Orders in respect of Rogerson appeal

475. At the hearing of the appeal, orders were made under the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of certain aspects of the subject matter of Ground 1 of Rogerson’s appeal. The parties and the New South Wales Crime Commission requested the opportunity to review that part of the judgment that addresses that ground before it is published at large. The orders made in respect of the appeal will provide for a short period for that to occur.

476. Accordingly, in relation to the appeal by Rogerson the Court orders:

1.   Extend time to file notice of application for leave to appeal against conviction and sentence to 9 March 2020.

2.   Grant leave to appeal in respect of Grounds 1, 3 and 5 but refuse leave in respect of Ground 4.

3.   Appeal dismissed.

4.   Pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010, on the grounds specified in s 8(1)(e) thereof, order that until 23 July 2021, paragraphs [308] to [413] of this judgment and that part of the headnote referring to them not be published other than to the parties or the NSW Crime Commission.

5.   Order 4 is to operate throughout the Commonwealth of Australia.

6.   Direct that on or before 21 July 2021 the parties and the NSW Crime Commission file any submissions not exceeding four pages concerning paragraphs [308] to [413] of this judgment.

7.   Access to the Court file will only be permitted to a non-party with the leave of a Judge of the Court, and only after the parties and the NSW Crime Commission have had notice of the non-party’s application for access and have been afforded an opportunity to be heard with respect to the application.

McNamara’s appeal

477. McNamara’s notice of appeal raised the following four grounds with a fifth ground being added later.

1. The trial judge erred in excluding evidence of conversations between the applicant/appellant and his co-accused in which the co-accused admitted having participated in several homicides and other criminal violence.

2. The trial judge erred in failing to discharge the jury when inadmissible evidence was given by a prosecution witness, Steven Farley.

3. That in all the circumstances the sentence imposed upon the applicant for murder was manifestly excessive.

4. That the sentencing Judge erred in the application of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

5. That the sentencing judge erred by finding that the intention to kill the deceased or to inflict grievous bodily harm as part of a joint criminal enterprise did not crystallise in storage unit 803.

McNamara Ground 1: Erroneous exclusion of conversations with Rogerson about his participation in several homicides and other criminal violence

478. This ground of appeal relates to a ruling given on the 50th day of the trial, after the Crown had closed its case and early in the course of McNamara’s evidence-in-chief: see R v Rogerson; R v McNamara (No 45) [2016] NSWSC 452. The effect of this ruling was to exclude, pursuant to s 135(a) of the Evidence Act, the admission into evidence of portions of two conversations said to have occurred between the co-accused Rogerson and McNamara.

479. On day 49 of the trial and during McNamara’s examination-in-chief, Mr Wendler, who appeared for McNamara, properly foreshadowed the evidence intended to be led from him relating to these two conversations. Their relevance lay in McNamara’s claim to have acted under duress in the aftermath of Jamie Gao’s murder, in response to the Crown’s reliance on the events after the murder to demonstrate a joint criminal enterprise between Rogerson and McNamara or, as Mr Odgers SC put it on appeal, “to provide an innocent explanation for what would otherwise be highly incriminating conduct” after the death of the deceased, including the attempt to dispose of his body. ^[477]

480. The first conversation was said to have occurred during February 2014, in a social setting, about three months prior to the murder, in the context of McNamara having agreed to write a book concerning Rogerson’s life and career as a police officer. In this conversation, Rogerson is said to have admitted to McNamara that he had killed or conspired to kill a number of people, including Michael Drury, Alan Williams, Christopher Flannery, Warren Lanfranchi, Sallie-Anne Huckstepp and Luton Chu.

481. The terms of the first conversation, as outlined by Mr Wendler, were as follows: ^[478]

“Rogerson said to the accused, ‘When I was charged with conspiracy to murder Drury, that cunt, Clive Small, got Alan Williams to give me up. Williams only did three years for pleading guilty to conspiracy with Flannery and me to murder Drury. Williams is dead now. It looked like suicide but it wasn’t. I never let anyone get away with giving me up. I couldn’t let Williams get away with that, the cunt of a thing’.

The rejoinder from McNamara was, ‘You arranged his murder?’ Response from Rogerson, ‘Yeah, I’m connected everywhere. He though[t] he was living the quiet life after getting out of gaol; not so’.

It went on as follows:

Mr McNamara said: ‘Flannery was never a witness in the Drury trial, what happened to him?’ It is alleged that Mr Rogerson said ‘He was real close to Alan Williams, both Melbourne blokes. As soon as I heard that fucking Small was working on Williams to rollover, I couldn’t leave it to chance that Chris wouldn’t roll as well. He was a coke fiend. He wasn’t as tough as everyone thought. It was the coke. Kath, his missus, used to dose him up before he went out and did a job to hype him up. He was with me when I done Drury, off his head on coke, the useless cunt. If the two of them had been against me I would have been fucked’.

Mr McNamara then said, ‘What happened?’ The reply was in these terms, ‘Chris had the twitches from too much coke so I shot Drury. Chris was just a useless drug addict’.

Mr McNamara then said, ‘Why did you even go with Flannery to Drury’s house?’ Mr Rogerson said, ‘We alibied each other’. Mr McNamara asked the question, ‘But why were you even involved?’ Rogerson’s response was, ‘Drury was a smart arse, stumbled across Williams who was a big time crook and he was stupid, he knocked back 25 grand, a lot of money in those days. Williams was desperate. He offered 100,000 to get rid of Drury’.

Mr McNamara asked the question, ‘So where is Flannery?’ Rogerson said, ‘Chris had run out of mates in Sydney, he’s killed most of them. He had to go. I was his only friend. It was easy. I met with him and put two in his chest, then we put him on a boat, went out three miles off Sydney Heads, mate, he’s never coming back. Chris would have rolled on me for sure if Small had of got to him’.

The conversation moved to the circumstances of Mr Lanfranchi. Mr McNamara asked, ‘What happened with Lanfranchi?’ He replied, ‘I shot Lanfranchi twice, once in the neck and then one in the chest. That was close. The jury said I didn’t act in self-defence. Those fucking lefties at the Herald and the ABC gave me fucking heaps but I got through it’.

Mr McNamara said, ‘Why did you shoot Lanfranchi for a second time?’ And Mr Rogerson said, ‘He had to die, he ripped off Ned’s gear which was my gear. Only one thing for a bloke like that. He was wanted for attempted murder of a police motorcyclist so it was easy to justify’.

Mr McNamara said, ‘What happened to Huckstepp?’ Mr Rogerson said, ‘Fuck me, she had to go. Even after I sued Channel Nine she was still into me, the fucking junkie bitch. It was a problem for Ned as well, one we solved. You know she drowned in a shallow pond’.

Mr McNamara said, ‘Yes, but why?’ And it is alleged that the response was, ‘After I knocked Lanfranchi she never let it go.’ ‘Why not just ignore her?’ Rogerson said, ‘No-one puts shit on me, I always win’.

There was further conversation where Mr Rogerson said to Mr McNamara, ‘Fucking drug dealers won’t pay if you don’t stand on them’. And Mr McNamara said, ‘What do you mean?’ Mr Rogerson said, ‘Ever heard of a bloke Luton Chu?’ Mr McNamara said, ‘No’. Mr Rogerson said, ‘Heroin dealer, up and down between Australia and Hong Kong. Thought he could outsmart his suppliers. I helped my Chinese friends fix him up for good as well’.

Mr McNamara said, ‘When did that happen?’ ‘A while ago, cops thought about Ned for it, no-one was ever charged’.

That’s in broad terms.

HIS HONOUR: It is all in the one conversation in February 2014?

WENDLER: As I understand it but there is some background to that in the sense I expect there will be evidence the accused McNamara also sought to write a book about Mr Rogerson’s background, being a crime writer himself but had intimated, or guaranteed is probably a better word, from Mr Rogerson that he would never publish it until Mr Rogerson had died and part of this material was material which, as a crime writer, he was interested in talking about, I supposed, put it that way.”

482. Mr Thomas, who appeared for Rogerson at the trial, accepted that this conversation was likely relevant for the purposes of s 55 of the Evidence Act as it bore on what McNamara claimed by way of exculpation was his fear of Rogerson, a fear advanced as a reason for and explanation of McNamara’s cooperation with Rogerson in disposing of Jamie Gao’s body.

483. Mr Thomas objected strongly, however, to the admission of McNamara’s foreshadowed recount of the first conversation on the basis that it would occasion “overwhelming unfair prejudice to [Rogerson], overwhelming and incapable of being cured by any reasonable direction your Honour can give the jury”. ^[479] Mr Thomas advanced his argument by asking rhetorically what direction could be given to the jury to cure or negate the potential for unfair prejudice to Rogerson: ^[480]

“… what is the Court supposed to say to the jury, I ask rhetorically: Look, you’ve heard this, ladies and gentlemen, it is only put on the basis that it was said. You are not to infer that it was true. You are to undertake this particular inquiry in relation to the determination as to the state of mind of the accused McNamara. If you accept that these particular things were said, but at all times don’t accept that they were true.

How is it that on a direction of that kind, or some other more eloquent direction that your Honour would formulate, that the jury would be able to remove from their thinking the enormous prejudice associated with five or six other murders that my client is said to have been involved in?”

484. The second foreshadowed conversation was much shorter and was said to have occurred in storage unit 803 on 20 May 2014, immediately after (on McNamara’s account of events) the killing of Jamie Gao by Rogerson in circumstances where McNamara claimed to have taken cover under a table. Immediately after the murder, McNamara claimed to have asked Rogerson “why? why? why?” in response to the firing of a fatal second shot at the deceased. Rogerson was said to have “turned and approached [McNamara] pointing the gun directly at his head” and said: ^[481]

“I did Drury, I did Drury. I'll do you too. Get up and fucking help me you weak cunt or I'll leave you on the floor lying next to him … He pulled the fucking knife first, get up and help me or you’ll be as dead as him, then I’ll kill your girls.”

485. In respect of this second conversation, as with the first, Mr Thomas accepted that it satisfied the test of relevance in s 55 of the Evidence Act but he objected to the admission of the words “I did Drury, I did Drury”, again on the basis that the danger of its unfairly prejudicial effect on Rogerson substantially outweighed its probative value.

486. Trial counsel for McNamara submitted that the admissions by Rogerson in these conversations, to the effect that he had killed the six people referred to in the first conversation, and had “done”, ie conspired to kill, Drury (in the case of the second conversation) reinforced and strengthened the potency of Rogerson’s alleged order to McNamara to “get up” and “help” him in the aftermath of Jamie Gao’s murder otherwise he and his daughters would be killed. McNamara’s counsel had opened to the jury (following the Crown opening address) as follows: ^[482]

“After shooting Mr Gao though Rogerson immediately threatened and made multiple threats to harm Mr McNamara and his family. These threats continued. Given the content of the threats and Mr McNamara’s state of mind, he genuinely feared for his safety and that of his family.

For this and other reasons he went along with the disposal of Mr Gao’s body, he used his boat to do so, he was acting under duress in the same way the dealings he had with the drugs that were in the car were done under duress. They were done with the belief that he would be killed by Roger Rogerson or more particularly his daughters would be killed. He had seen Roger Rogerson shoot and kill Jamie Gao in front of his eyes and he was terrified.

Mr McNamara did not want to contact the police directly. He was fearful that Rogerson would find out about him contacting the police and he and his daughters would thereby be placed in jeopardy but he did keep some evidence and the police found it, they found it and it had Roger Rogerson’s fingerprints on it in terms of a receipt. He did a number of things in an endeavour to lead police to evidence of what had occurred. Mr McNamara at that point, from the point in time of the shooting, was in fear for his own life and the life of his family members. What he did, he did under duress.

Mr McNamara, members of the jury, will give evidence and he will tell you what happened to him and what he saw Roger Rogerson do when he shot Jamie Gao twice and killed him in the storage shed.”

487. Consequently, and as already noted, it was not in contention that the proposed evidence of the two conversations was relevant for the purposes of s 55 of the Evidence Act.

488. Section 135 of the Evidence Act supplies a basis for the discretionary exclusion of otherwise relevant evidence. It provides that:

“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

(a)   be unfairly prejudicial to a party, or

(b)   be misleading or confusing, or

(c)   cause or result in undue waste of time.” (emphasis added)

489. No point was taken during the trial that Rogerson was not a “party” to the Crown’s case against McNamara, although that point is an important component of the first Ground of appeal, it being contended that s 135 was only available to exclude evidence as between McNamara and the Crown and supplied no basis for exclusion by reason of unfair prejudice to Rogerson, who was not relevantly “a party”. The term “party” is not defined in the Evidence Act.

490. No opposition was taken by the Crown to the raising of this point on appeal but, because the point was not taken at the trial, the only material question for the trial judge, in considering whether or not to exclude the proposed evidence pursuant to s 135, was whether the admission of each conversation would give rise to a danger of unfair prejudice to Rogerson which “substantially outweighed” its probative value in McNamara’s defence. His Honour held that it would give rise to such a danger and wholly excluded the first conversation and the repeated words “I did Drury” in the second conversation.

491. The balance of the second conversation was not objected to and in due course evidence of it was led from McNamara. The consequence of this was that, notwithstanding the exclusion of the first conversation and the words “I did Drury” in the second conversation, evidence was still led of Rogerson’s threat to kill McNamara and his daughters in the immediate aftermath of the murder.

492. As to the probative value of the evidence sought to be led, the trial judge said at [32]-[35] of the s 135 ruling: ^[483]

“32   Having regard to the terms of s. 135, I must firstly assess the probative value of the evidence. In my view, accepting that duress will be an issue, the probative value of the evidence is limited for a number of reasons.

33   Firstly, although part of the evidence centres upon a conversation there is no precision as to the time at which the conversation took place, other than the fact that it was in February 2014.

34   Secondly, accepting that the conversation did take place at about that time, that was some months prior to the events of 20 May 2014.

35   Thirdly, although relevant to the issue of duress, the evidence adds very little to that issue. As the Crown and Mr Thomas pointed out, the real basis of the duress asserted by McNamara stems from a combination of seeing the deceased shot in cold blood, and the threat made by Rogerson immediately thereafter.”

   This was the threat to kill McNamara and his daughters.

493. The trial judge then continued his analysis as follows:

“36   Bearing in mind my conclusion that the probative value of the evidence is limited, I must then consider whether such probative value as the evidence might have is outweighed by the danger that it might be unfairly prejudicial to Rogerson. It is important to bear in mind that in order to exercise the discretion to exclude the evidence I do not have to be satisfied that it will be unfairly prejudicial. I need only to be satisfied that its probative value is substantially outweighed by the danger that it might be so: Seven Network Limited v News Limited (No 8) [2005] FCA 1348 at [16] per Sackville J. In considering that question I must be mindful of any danger that it might be misused by the jury in some unfair way: Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 at [91] and [98] per McHugh J.

37   It has been made clear in the course of the argument that the evidence is not sought to be adduced for the purposes of proving the truth of what Rogerson is alleged to have said. Rather, the evidence is sought to be led as evidence of the fact that such things were said, and as evidence bearing upon McNamara's subjective belief that they were true. I am not able to accept Mr Thomas' submission that that approach is artificial. If the evidence is admitted, it will be admitted as evidence of the fact of things having been said by Rogerson. McNamara will give evidence that he believed those things to be true. The fact that he may have believed that such things were true does not necessarily mean that they were true. Objective truth of a statement on the one hand, and a person's subjective belief as to the truth of that statement on another, are two different things.

38   However all of that said, there is a clear danger that the evidence might be unfairly prejudicial to Rogerson. In my view the probative value of the evidence, such as it is, is substantially outweighed by that danger. I have come to that view for a number of reasons.

39   It cannot be assumed that this evidence, if admitted, will be the only evidence dealing with these matters. Obviously, McNamara will be cross-examined about it. Equally obviously, Rogerson will deny the statements attributed to him. He will be cross-examined about that denial. One does not have to pause for any length of time to reflect upon, and appreciate, the significance that such evidence would assume if it were admitted.

40   In those circumstances there is, in my view, a real danger that if the evidence were admitted the jury would be left with a distinct impression that the accused Rogerson was complicit in the murder of a number of other people. Rogerson is obviously not on trial for the murder of any person other than the deceased. The circumstances in which other people may have been murdered are not matters about which the jury will be asked to return a verdict. Viewed in that way, and as a result of a combination of the circumstances to which I have referred, any probative value that the evidence might have is substantially outweighed by the danger that it might be unfairly prejudicial to Rogerson.

41   In reaching that conclusion I am conscious of those authorities which recognise the fact that a jury can be expected to follow any direction given by a trial judge: R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 at [45]-[49]. Equally however, those authorities do not go so far as to say that a trial judge’s directions are capable of dealing with every instance where there is danger of unfair prejudice. There arise, from time to time, circumstances where the danger of unfair prejudice is so great that it cannot be cured by a direction, no matter what its terms. The present is such a case.

42   In those circumstances, and for those reasons, I propose to exclude the evidence of the conversation of February 2014. For the same reasons I exclude the reference to Mr Drury which is said to have been made by Rogerson in the storage unit.” (emphasis in original)

494. McNamara’s arguments under Ground 1 of his appeal were that:

1. there was no power to exclude the evidence under s 135(a) of the Evidence Act because Rogerson was not “a party” to McNamara’s trial for the purposes of s 135; and

2. even if there was power under s 135 to exclude the evidence of the two conversations, that evidence should not have been excluded.

495. The first of these arguments involves a very important question of statutory construction relating to s 135 in the context of joint trials of co-accused. As noted above, this argument was not raised at first instance and indeed McNamara himself successfully applied for the exclusion of evidence proposed to be adduced through Rogerson’s cross-examination of a prosecution witness on the basis of s 135(b) of the Evidence Act: R v Rogerson; R v McNamara (No 21) [2016] NSWSC 79. No suggestion, however, was made by the Crown that the argument was not available to McNamara on appeal.

496. The first argument also involves a consideration of the position at common law immediately preceding the passage of the Evidence Act because of an argument advanced by Mr Odgers, by analogy with Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12, that if the legislature was intending to alter the position at common law, it should have made its intentions plain, which it did not do. That argument presupposes that s 135 effected a change in the common law position insofar as it related to the discretionary exclusion of evidence sought to be led or tendered by an accused on the objection of a co-accused in a joint trial.

497. The second argument includes a consideration as to whether or not the appropriate standard of appellate review is the so-called “correctness’ standard (see The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40) or the more circumscribed House v The King (1936) 55 CLR 499; [1936] HCA 40 standard of review.

The proper construction of s 135: was Rogerson a “party” for the purposes of s 135?

498. Whether or not the present case is one of the “few” occasions where it may be open and appropriate in the exercise of the discretion under s 135 to reject evidence tendered by an accused in the course of criminal proceedings (see R v Taylor [2003] NSWCCA 194 at [130]) is ultimately a question of statutory construction and precedent, to the extent that any exist which are binding on this Court.

499. The contention advanced by Mr Odgers SC on behalf of McNamara was quite a simple one, namely that, where there are two trials proceeding together, neither accused is “a party” in the trial of the other accused. Thus McNamara’s co-accused, Rogerson, was not a “party” to McNamara’s trial. As such, the potential prejudicial effect on Rogerson of the admittedly relevant evidence McNamara sought to adduce in aid of his own defence should not have been considered, still less weighed, for the purposes of potential exclusion under s 135 and that, as there was no suggestion that the evidence that McNamara sought to lead was unfairly prejudicial to the Crown, the full evidence of both conversations should have been admitted.

500. Section 135 of the Evidence Act applies both to civil as well as criminal proceedings; cf, for example, s 137 which is, in terms, confined to criminal proceedings. The Evidence Act does not contain a definition of “party” and the indication in s 21(1) of the Interpretation Act 1987 (NSW) that “party” “includes an individual, a corporation and a body corporate or politic” does not assist for present purposes.

501. In R v Qaumi (No 24) [2016] NSWSC 505 at [47], Hamill J observed that:

“On a restrictive view, and on the basis that there a number of individual trials being conducted together, the parties are Mr Kalal and the Crown. The broader view, and the view I accept, is that in a joint criminal trial each of the accused is ‘a party’ for the purpose of the application of s 135.”

In Director of Public Prosecutions (Vic) v Hills (Ruling No 6) [2010] VSC 486 at [28], Kaye J (as his Honour then was) proceeded on the basis that s 135(a) could be used to exclude relevant evidence that was prejudicial to a co-accused in a joint trial but did not advert to any question in relation to whether a co-accused was a “party” to the trial of the other accused.

502. Whilst Hamill J was conscious of the issue raised by the legislature’s use of the expression “to a party” in s 135(a), neither Qaumi (No 24) nor Hills contains any detailed reasoning as to the preferred view in the former case and the assumed position in the latter. That is not to be critical as both decisions were rulings in the course of complex and lengthy trials.

503. The Crown also drew the Court’s attention to R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248, which was an urgent appeal under s 5F of the Criminal Appeal Act challenging an order that three accused be tried separately. The charges alleged a conspiracy between the three accused together with two other men including one Mohamed Alchikh who had already pleaded guilty and had undertaken to give evidence against his co-accused. One of the issues central to the decision to hold separate trials was that certain evidence proposed to be led on behalf of one of the accused from Alchikh created a real risk of positive injustice to another of the accused.

504. In Henry, Nettle AJA, sitting as an Acting Judge of Appeal of the Supreme Court of New South Wales and with whom McClellan CJ at CL and Simpson J (as her Honour then was) agreed, said at [24] that:

“On further reflection, however, I do not think that one can at this stage exclude the possibility that something of what Alchikh told the police about the conspiracy and of Henry’s involvement in it may be admissible in Swansson’s defence - in order perhaps to demonstrate the depth and completeness of the admissions which Alchikh made to police and thus to imply that what he says about Swansson is equally deep and complete (See and compare R v Su [2003] VSC 306; (2003) 142 A Crim R 379). Another possibility, which was advanced by counsel for Swansson in the course of oral argument, is that he will seek to lead those details from Alchikh in order to demonstrate that there was a detailed criminal enterprise in myriad aspects of which Swansson plainly never took part. If so, it would not be sufficient to exclude the evidence that it might be prejudicial to Henry. Subject to the s 135 discretion, a trial judge cannot exclude evidence favourable to one accused on the ground that it might be prejudicial to another (R v Gibb and McKenzie [1983] 2 VR 155, 171; Lui Mie-Lin v The Queen [1989] 1 AC 288; cf. R v Darrington and McGauley [1980] VR 353, 384–385), and when it comes to contrasting probative value against prejudice for the purposes of s 135, it is of course prejudice to the accused, not a co-accused, which must be borne in mind.” (emphasis added)

505. This decision was unsurprisingly embraced by Mr Odgers SC. Although the decision did not concern an evidentiary ruling, it involved an understanding that the potentially prejudicial evidence of Alchikh would be unable to be excluded pursuant to s 135(a), or under the common law, in any joint trial. It also appears that the co-accused had been presented for trial on a joint indictment, it being the failure of this to have occurred in an earlier trial that had led to the quashing of earlier convictions: see R v Swansson; R v Henry (2007) 69 NSWLR 406; [2007] NSWCCA 67.

506. Although Nettle AJA did not in terms consider the possibility that the word “party” would extend to a co-accused on a joint indictment, his Honour’s use of the expression “of course” suggests that he did not see any scope for what Hamill J in Qaumi (No 24) described as the “broader view” of the term “party”. It does not appear, however, from the judgment in Henry that there was any argument as to the meaning of the expression “to a party” in s 135(a) of the Evidence Act nor any argument to the effect that Alchikh’s evidence would, contrary to Nettle AJA’s assumption, have been able to be excluded under that section. Moreover, as the Crown pointed out and with respect to Nettle AJA, to the extent that his Honour referred in Henry at [24] to R v Gibb and McKenzie [1983] 2 VR 155 at 171 in support of the proposition that “subject to the s 135 discretion, a trial judge cannot exclude evidence favourable to one accused on the ground that it might be prejudicial to another”, Gibb and McKenzie does not appear to go that far (see further at [538]-[539] below).

507. Whether and to what extent Nettle AJA’s limited reference to s 135 was influenced by his understanding of the common law position which pre-dated its passage – an approach which had been favoured in Dupas v R (2012) 40 VR 182; [2012] VSCA 328 – is not possible to gauge. To the extent that it was, we would respectfully endorse the observations of Basten JA in R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121 at [57]-[58].

508. The Crown submitted that the observations by Nettle AJA at [24] of Henry were obiter and, if they formed part of the ratio of that decision, this Court should not follow or apply it. Henry stands for the conclusion, contrary to ground 1(b) of the Crown appeal in that case, that the trial judge did not err in ordering separate trials on the facts of that case because of the potential prejudice that he considered could be generated from the risk that Alchikh could be a “loose cannon”.

509. Although any view expressed by Nettle AJA is entitled to the greatest of respect, that observation must be tempered by reference to the fact that it was made in the context of the determination of an urgent appeal (the decision was given only two days after the hearing of the appeal) and where the precise point that arises in the present case – namely the construction of s 135(a) – does not appear to have been the subject of any detailed or even fleeting argument. Nor has it spawned a subsequent line of authority applying or giving effect to it, cf Jackmain v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 at [161]-[164]. According to our researches, the only two cases in this Court that have referred to Henry do not refer to Nettle AJA’s reference to s 135 in the final sentence of [24] of Henry. ^[484]

510. The argument having been fully raised and argued before this Court, we do not consider ourselves to be bound by Henry.

511. The question as to whether the term “party” in s 135(a) of the Evidence Act extends to a co-accused in a criminal trial must be considered as one of statutory construction having regard to the text of the section read in context (in the widest sense of the word) and having regard to the purpose of the statute or statutory provision in question: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]. The context may be or include statutory, historical or other context such as the procedural or practical context in which the statute is to operate. The immediate context is of course the other provisions of the Evidence Act itself, a point emphasised in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (see also at [34]).

512. One of the practical contexts in which s 135 is to operate is a criminal trial. Section 135 applies equally to civil and criminal trials as does the closely related s 136 which provides that:

“The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—

(a)   be unfairly prejudicial to a party, or

(b)   be misleading or confusing.”

“Party” must have the same meaning when used in ss 135 and 136.

513. Both the Commonwealth and New South Wales legislatures in enacting their respective Evidence Acts must be taken to have been well aware of the fundamental rule of criminal procedure that, in a trial upon indictment, the jury is and can only be empanelled and sworn to try the issues on a single indictment: Munday v Gill (1930) 44 CLR 38 at 76 and 87; [1930] HCA 20. This is why, where there is a joint trial, there must be a single indictment; it is also why a simultaneous trial of more than one accused on several indictments will be incompetent: Swansson at [14]-[35]. In Munday v Gill at 87, Dixon J said:

“When prisoners are jointly indicted they may sever or they may join in their challenges, and the consequences which ensue are prescribed by law. But there is no way allowed by law of putting in charge of one jury at one time two or more prisoners arraigned upon separate indictments. The jurors are specially chosen for the single purpose of trying one indictment or such of the prisoners arraigned on one indictment as they may have in charge.”

514. Moreover, s 29(2) of the Criminal Procedure Act 1986 (NSW) expressly permits a court in New South Wales to hear and determine together proceedings relating to offences alleged to have been committed by two or more accused persons in certain circumstances including where the offences arise out of the same set of circumstances. There are strong reasons of policy and principle, moreover, why persons charged with committing an offence jointly ought to be tried together, especially where one accused may seek to cast blame on the other: Webb v The Queen (1994) 181 CLR 41 at 88-89; [1994] HCA 30; Director of Public Prosecutions (Cth) v Burrows [2017] NSWCCA 105 at [47].

515. Whilst it is more common, and perhaps much more common, to speak of a party or parties to civil proceedings, because there is no doubt that ss 135 and 136 extend to criminal trials, “party” as referred to in the expression “prejudicial to a party” in ss 135(a) and 136(a) must be understood to include an accused in criminal proceedings. So much also follows from the definition of “admission” referred to in the Dictionary in the Evidence Act where a “party to a proceeding” is specified to include a defendant in a criminal proceeding.

516. A reference in a statute to a word or expression in the singular form includes a reference to the word or expression in the plural form except in so far as the contrary intention appears in the Act: Interpretation Act (NSW) ss 5(2) and 8(b). It follows that, at least subject to a contrary intention being shown, the reference to “a party” in s 135(a) of the Evidence Act refers not only to an accused but to multiple accused or defendants in a criminal proceeding.

517. That a co-accused is also a “party” to a criminal proceeding against an accused is supported by s 83 of the Evidence Act. Section 81(1) of the Act makes the hearsay rule inapplicable to an admission by a party. Section 83(1) however does not prevent the application of the hearsay rule to evidence of an admission in the case of a third party. “Third party” is defined by s 83(4) as:

“a party to the proceeding concerned, other than the party who—

(a) made the admission, or

(b) adduced the evidence.”

Thus, an admission made by an accused will not be admissible against a co-accused unless the prior representation constituting the admission was made in furtherance of a common purpose (including an unlawful common purpose) that the maker had “with the party or one or more persons including the party”: s 87(1)(c).

518. The key point for present purposes is that the definition of third party in s 83(4) contemplates that there may be multiple parties to a criminal proceeding and whilst, subject to s 87(1)(c), an admission by one defendant will not be admissible against a co-accused, a co-accused is treated as a “party to the proceeding concerned” which is the proceeding in which evidence of the defendant’s admission is received.

519. In a joint trial, all relevant evidence within the meaning of s 55 of the Evidence Act will, subject to the operation of any exclusionary provision, be admitted against all accused unless specifically confined to the case against one accused by a provision such as s 83(1) (see also s 65(4) of the Evidence Act). It would be surprising if a provision such as s 83(1) could operate to limit the use of evidence of an admission against a co-accused but s 136 was not available to limit a particular use to be made of evidence where there is a danger that that use may be “unfairly prejudicial to a party”.

520. If the reference to “party” in s 136(a) did not extend to a co-accused or “third party”, to pick up the language and definition in s 83(4) of the Evidence Act, then s 136 would be robbed of much of its practical value in a joint trial where issues of fairness may require the nuanced and differential treatment of evidence. That may be effected to a certain extent by “express and careful” directions to the jury (Webb at 89) but also by orders limiting the use to which particular evidence can be put. Indeed, where a court directs a jury in a joint trial as to the use to which the jury may put certain evidence against one particular accused, the source of its power to do so may well derive from s 136 of the Evidence Act. Directions of this kind are commonly made in joint trials because of concern that particular evidence may be unfairly prejudicial to one or more of the co-accused. To the extent that the power to make such directions derives from s 136, the expression “unfairly prejudicial to a party” must extend to a co-accused. If this be correct, the same expression – “to a party” – in s 135(a) must also extend to a co-accused.

521. McNamara’s submission that, where there is a joint indictment, “[t]here are two trials proceeding together and neither defendant is a ‘party’ in the trial of the other defendant” ^[485] is inconsistent with the above analysis. The submission is also inconsistent with other provisions of the Evidence Act including:

1. s 20, which applies only in a criminal proceeding for an indictable offence and where multiple defendants in such a proceeding are referred to as parties to that single proceeding;

2. s 27, which provides that a “party may question any witness, except as provided by this Act”. This is the source of one defendant’s entitlement to cross-examine a co-accused in a joint trial;

3. s 41(4), which provides that “a party may object to a question put to a witness on the ground that it is a disallowable question”. This is the source of a defendant’s ability to object to a question put to a witness by counsel for a co-accused in a joint trial; and

4. s 104(6), which provides that leave is not to be given for cross-examination of a defendant by another defendant unless: “(a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine, and (b) that evidence has been admitted”. This sub-section proceeds on the basis that, at least for the purposes of the Evidence Act, an accused and co-accused in a joint trial are parties to the same proceeding.

522. These textual and contextual considerations, all of which inform the proper construction of the word “party” in s 135(a), support the “broader view” of the section to which Hamill J referred in Qaumi (No 24), namely that the reference to “a party” extends to a co-accused in a joint trial. The “broader view” does not involve a straining of language. “Party” is an expression which is apt to describe those persons who are participating in a legal proceeding and whose rights and liabilities may be affected by the evidence adduced in that proceeding.

523. This “broader view” is also consistent with the principle of statutory interpretation that a provision conferring a power to be exercised judicially should be construed as liberally as its terms and context permit: PMT Partners Pty Ltd (in liq) v Australian National Parks & Wildlife Service (1995) 184 CLR 301 at 313; [1995] HCA 36.

524. As the Crown contended and as senior counsel for McNamara fairly acknowledged, the Australian Law Reform Commission (“ALRC”), in its seminal report which led to the introduction of the Evidence Act 1995 (Cth) and its state counterparts (Evidence (Report No 26, 1985)), contemplated that a provision of the kind that became s 135 would apply to the circumstances of co-accused jointly tried in a single hearing. That is significant because s 3(3) of the Evidence Act provides:

“Without limiting the effect of, and subject to, section 34 of the Interpretation Act 1987, material that may be used in the interpretation of a provision of this Act includes any relevant report of a Law Reform Commission laid before either House of the Parliament of the Commonwealth before the provision was enacted.”

525. At [811] of the ALRC Report, it was stated that:

“if no judicial discretion exists in this area it is suggested that it should be introduced, so that the court, in considering the legitimate interests of the two accused, can balance the value of the evidence to one against the dangers to the other”.

526. The provision of the draft bill designed to effect this balancing was identified in a footnote to this passage as “the relevance discretion ... contained in cl 114”. Intriguingly, given the language in which s 135 was ultimately expressed, that clause was in terms that did not include any reference to prejudice “to a party”. It simply provided:

“Where the probative value of evidence is substantially outweighed by the danger of unfair prejudice or confusion or the danger that the evidence might mislead or cause or result in undue waste of time, the court may refuse to admit the evidence.”

527. This clause was modified by the addition of the expression “unfairly prejudicial to a party” in the Evidence Bill 1993 (Cth). Nothing in either the second reading speech nor the explanatory memorandum to that Bill, however, suggests that any significance was intended to attach to the redrafted form of the clause and, in particular, the introduction of the words “to a party”.

528. Mr Odgers SC advanced an argument by way of limited analogy with Cornwell but with a twist. In Cornwell, Gleeson CJ, Gummow, Heydon and Crennan JJ had noted, in the context of s 128 of the Evidence Act, that where the ALRC had intended to recommend a significant alteration to the pre-existing position at common law, it was normally careful to indicate its intention to do so: at [72]. The absence of any such indication in either the ALRC or New South Wales Law Reform Commission Reports suggested a lack of intention to recommend a significant change to the pre-existing position. Mr Odgers SC correctly acknowledged that the ALRC had made its intentions clear as to the reach of what was then cl 114, namely that evidence sought to be led by one accused could be excluded on the basis of unfair prejudice to a co-accused, but argued that this intention was at least obscured if not overridden by the parliamentary draftsman’s modification of cl 114 to introduce the words “to a party” to what eventually became s 135 of the Evidence Act.

529. At the end of the day, the alteration in wording between the ALRC draft bill and the Evidence Act, unexplained by anything said in either the second reading speech or the explanatory memorandum, and the originally stated intention of the ALRC, does not greatly advance the issue. It is significant to note, however, that the passage from [811] of the ALRC Report extracted above begins with the words “if no judicial discretion exists in this area”. Those words reflect a degree of apparent uncertainty as to the state of the common law in the years immediately prior to the passage of the Commonwealth and New South Wales Evidence Acts.

530. The position, as can be best discerned (see, for example, R Pattenden, Judicial Discretion and Criminal Litigation (2nd ed, 1990, Oxford University Press) at 234), appears to have been that there was Victorian intermediate appellate authority which supported the existence of a discretion to exclude exculpatory evidence sought to be led by one accused on the objection of a co-accused in a joint trial, whilst the position in England and other Commonwealth jurisdictions (other than Manitoba: see R v Nielsen (1984) 16 CCC (3d) 39 at 70) was different: see, for example, Lui Mei-Lin v The Queen [1989] AC 288, a decision of the Privy Council on appeal from the Hong Kong Court of Appeal in which earlier English authority (Murdoch v Taylor [1965] AC 574 at 593) upholding the unfettered right of an accused in a joint trial to advance his or her case in any way was applied. (It may be noted parenthetically that the right of one accused to cross-examine another accused on a question of credit which was the subject of Lui Mei-Lin has been qualified in New South Wales by ss 103 and 104 of the Evidence Act).

531. The line of Victorian authority supporting the existence of a discretion to exclude exculpatory evidence sought to be led or tendered because of the prejudicial effect it would have on a co-accused included R v Darrington and McGauley [1980] VR 353 at 384-385 and R v Carranceja (1989) 42 A Crim R 402. It is instructive to consider Darrington and McGauley in some detail.

532. The appellants, Ms Darrington and Mr McGauley, were jointly charged with the murder of Mr Peter Darrington and were convicted by a jury. At trial, counsel for Mr McGauley had sought to tender statements made by three witnesses, to the effect that the accused Ms Darrington:

1. shot or was a party to the shooting of James Darrington (the brother of the deceased); and

2. would “fix the deceased like she fixed James Darrington”.

533. It was argued that these statements were relevant to the issue of duress, as Mr McGauley had advanced a defence whereby his “discharge of the rifle was the result of [Ms] Darrington’s manipulation of his disordered mind in pursuit of her objective to have [the deceased] killed”: at 383. On Mr McGauley’s case, the improbability of this defence was “greatly diminished by proof of those statements by [Ms] Darrington”. Notwithstanding that they were otherwise admissible on the issue of duress, the trial judge excluded these statements from the evidence on the basis of unfair prejudice to Ms Darrington, with the potential to warrant the discharge of the jury.

534. It was contended on appeal that the trial judge had fallen into error by excluding the statements in question, with particular reliance placed upon the advice of the Board in Lowery v The Queen [1974] AC 85, which affirmed the Full Court of the Supreme Court of Victoria’s statement in R v Lowery and King (No 3) [1972] VR 939 at 947 that “it is fundamental to the administration of criminal justice that a person accused must be completely free to meet the charge against him by all legitimate and relevant means”. However, as noted by Jenkinson J (with whom Young CJ agreed) in Darrington and McGauley at 383, the Privy Council in Lowery v The Queen left undecided the question of whether any discretion resided in a trial judge, at common law, to exclude admissible evidence tendered by an accused against their co-accused.

535. It was held by Jenkinson J that such a discretion did reside in the trial judge, with the result that no error was disclosed by the decision to exclude the statements regarding Ms Darrington’s involvement in the shooting of Mr James Darrington. This ground of appeal was consequently dismissed. In coming to this conclusion, Jenkinson J (at 384-385) provided the following qualification to the English position regarding the inalienable right of an accused to pursue a defence unfettered, so as to admit of the discretion:

“[T]here are considerations just as fundamental and, in my opinion, of greater weight in favour of the conclusion that the freedom claimed is subject to discretionary control by the trial Judge. First, the exercise of an uncontrollable right to adduce any relevant evidence tending to exculpate one of several accused jointly charged with a crime and tending to inculpate another of them may subject the jury to intellectual and emotional burdens of such a character that the administration of criminal justice by jury trial is quite stultified. Second, to obviate or lessen the burdens of that character by the exercise of the power to order separate trials of several accused jointly charged would in some cases frustrate one of the primary purposes of the criminal law, by enabling a party to a criminal offence to secure acquittal by giving at his separate trial an explanation, of the circumstances proved against him, which exculpated him and which was controvertible only by one or more of the others charged. Third, the probative value, rationally considered, of a particular of what this Court comprehended in … R v Lowery and King (No 3), by the expression ‘all legitimate and relevant means’ may in some cases be assessable by the trial Judge as slight enough to justify, in my opinion, subordination of the interest of the accused who seeks to utilise that particular means of defence to those other interests which the system of trial of criminal issues by jury is designed to serve. Those three considerations in my opinion lead to the conclusion that a discretion is reposed in the trial Judge to exclude evidence otherwise admissible which is tendered by one of several accused in disproof of his guilt of a crime charged against them jointly.” (emphasis added)

536. Counsel for McGauley sought to rely on the decision of the Privy Council in Murdoch v Taylor as authority for the absence of any such discretion in view of the paramount nature of the right to an unfettered defence. This reliance was distinguished by Jenkinson J (at 385) as failing to appreciate the risk of prejudice to Ms Darrington and the efficiencies and benefits of a joint trial, in the following terms:

“[T]hat reasoning affords no guidance to the solution of the question under present consideration. The prolongation of a trial and the distraction of a jury by cross-examination as to previous convictions or to show bad character cannot be so great as to frustrate the ends of justice.

The circumstances relating to the evidence which is the subject of … Mr McGauley’s application [for leave to appeal] were in my opinion such as imperatively to require the exercise of the trial Judge’s discretion against admission of the evidence. Proof of the fact that [Ms] Darrington had murdered Jimmy Darrington did not add so substantially to the persuasiveness of the rest of the material before the jury to a conclusion that she had instigated the killing of Peter Darrington, that justice to [Mr] McGauley required the admission of evidence tending to prove that fact. In any event, the statements of [Ms] Darrington were not admissible to prove that fact in the trial of the issues joined between the Crown and McGauley. Proof that [Ms] Darrington had entertained and had expressed an intention to kill Peter Darrington, and that her attitude to him was sometimes very hostile, was given in evidence, and the excluded evidence did not so substantially improve the case for Mr McGauley that justice required its admission, in my opinion, when regard is had to the grave impediments in the way of a fair trial and of satisfactory adjudication by the jury to which the admission of the evidence was likely to have given rise.”

537. In Carranceja at 407, the Full Court of the Supreme Court of Victoria observed that:

“Broadly speaking, the discretion to exclude the evidence in Darrington was upheld by this Court because the evidence was either irrelevant or unable substantially to improve the case for the accused on whose behalf the cross-examination was made, or alternately, that its probative value was slight compared to its prejudicial effect.” (emphasis added)

538. In Gibb and McKenzie, the decision which Nettle AJA had cited in Henry as authority against any discretion to exclude evidence sought to be tendered by one co-accused on the application of the other, the Full Court, although distinguishing Darrington and McGauley at 383 on the facts and indicating that it offered no guidance to any possible exercise of discretion in the present case, nevertheless accepted that a discretion in the nature of that exercised in Darrington and McGauley at 383 did exist at common law. Thus, at 163, the Court said:

“Joint trials of course raise difficulties, some of which cannot be foreseen at the outset. It is for this reason that a Court of Criminal Appeal must retain the power relied upon in R v Demirok. But that power will not generally be exercised merely because evidence which has been properly admitted in the case of one accused is inadmissible in the case of another and prejudicial to that other. Speaking generally, although the Crown may be inhibited to some extent by the evidence it can lead, an accused should be allowed to lead in his defence, whether by way of calling witnesses, or by a statement from the dock or by way of the cross-examination of any witnesses called at trial, any evidence which is relevant to his defence. See Lowery v R [1974] AC 85 at 102. A trial judge, however, retains a discretion to exclude such evidence in a proper case: R v Darrington and McGauley [1980] VR 353 at 385. But such an exercise of discretion will necessarily be rare. It is not to be exercised simply because one accused wishes to elicit evidence of the bad character of another accused.” (emphasis added)

539. Also to be noted in this regard was the Full Court’s observation at 171 that:

“The conclusion that evidence was wrongly rejected in the present case should not be regarded as authorising the unlimited reception of evidence at the instance of an accused who alleges that he has acted under the duress of another accused. A trial judge always has to ensure that the trial is fairly and properly conducted and this duty will sometimes involve ensuring that the freedom granted to accused persons is not abused.” (emphasis added)

540. If the position at common law in Australia immediately prior to the passage of the Commonwealth and New South Wales Evidence Acts was, as appears to have been the case, that there was a discretion, albeit one carefully and cautiously to be exercised, to exclude evidence sought to be led by an accused because of its unfairly prejudicial effect on another co-accused in a joint trial, Mr Odgers SC’s argument based on Cornwell is not advanced. All that can be concluded is that the “broader view” of the s 135(a) discretion accords with the pre-existing common law position in Australia and is consistent with the intention of the ALRC.

541. For completeness it may be observed that, by way of contrast to the position at common law in Australia as it stood immediately prior to the passage of the Evidence Act, the position at common law in Australia at the time of the trial in the present case was far less clear cut. This was because of the decision of the Full Court of the Supreme Court of South Australia in R v Murch; R v Logan (2014) 119 SASR 427; [2014] SASCFC 61, which followed the English position as augmented by the Privy Council’s decision in Lobban v The Queen [1995] 1 WLR 877 at 887-888 (which was also followed by the New Zealand Court of Appeal in R v Hartley [2007] 3 NZLR 299; [2007] NZCA 31 at [60]-[62]) in preference to the line of Victorian intermediate appellate authority referred to above and which was subsequently reinforced by the decisions of the Full Court of the Supreme Court of Victoria in Caine & Goddard v R (1993) 68 A Crim R 233, the Victorian Court of Appeal in R v Su, Katsuno, Katsuno, Katsuno, Asami & Honda (1997) 1 VR 1 at 65-66 and the Queensland Court of Appeal in R v Roughan; R v Jones (2007) 179 A Crim R 389; [2007] QCA 443.

Appropriate standard of review

542. On the assumption, which we consider to be correct, that the trial judge had power to exclude evidence of the two conversations pursuant to s 135(a), McNamara challenged the correctness of the trial judge’s decision to exclude that evidence. The Crown asserted that the review of the trial judge’s decision in this regard should be by reference to the House v The King standard (the view stated in R Weinstein et al, Uniform Evidence Law in Australia (3rd ed, 2020, LexisNexis) at [135-17]) whilst McNamara contended, by analogy with Bauer at [61], that  it was for this Court itself to determine whether or not the probative value of the excluded evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to Rogerson, and not simply to consider whether it was open to the trial judge to conclude that it was.

543. What the High Court said in Bauer at [61] was that:

“The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was.”

544. Just as the assessment of probative value under s 97 and probative value and prejudicial effect under s 101(2) of the Evidence Act involves the making of an evaluative judgment as opposed to an exercise of judicial discretion (see R v Cook [2004] NSWCCA 52 at [38];  R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 at [63]; BC v R [2019] NSWCCA 111 at [60]; Taylor v R [2020] NSWCCA 355 at [122(xix)]; Vagg v R [2020] NSWCCA 134 at [45]), so too does a trial judge’s assessment of whether or not to exclude evidence under s 135 of the Evidence Act. That has implications for the standard of appellate review and what the High Court said in Bauer at [61] in relation to s 97 of the Evidence Act must apply equally to s 135.

545. To this extent, earlier decisions of this Court to the effect that House v The King supplied the appropriate standard for review on a conviction appeal in relation to an evidentiary ruling under s 135(a) of the Evidence Act or that such a ruling involved the exercise of a discretion must no longer be regarded as good law: see, for example, R v BWM (1997) 91 A Crim R 260 at 266; R v Glossop [2001] NSWCCA 165 at [53]; R v Taylor [2003] NSWCCA 194 at [130], using the language that it was “open” to the trial judge to have reached the discretionary decision he did under s 135; Australian Securities and Investments Commission v Rich (2005) 54 ACSR 326; [2005] NSWCA 152 at [163]; Vickers v The Queen (2006) 160 A Crim R 195; [2006] NSWCCA 60 at [76] (“[s]ince the questions under s165(4) and s135 involved discretionary determinations, those determinations may only be reviewed on appeal on the principles stated in House v The King”); Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21 at [49]; R v SJRC [2007] NSWCCA 142 at [34]; Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56 at [79]; James Hardie Industries NV  v Australian Securities and Investments Commission [2009] NSWCA 18 at [29]-[32].

546. McNamara’s submission as to the appropriate standard of appellate review is also supported by Bell P’s observation in Taylor v R at [113] and that of Basten JA in Director of Public Prosecutions (NSW) v RDT  [2018] NSWCCA 293 at [39] where his Honour said, in the context of appellate review of a tendency ruling under s 101(2) of the Evidence Act, that “[t]his Court must decide for itself whether, in the terms of the section, ‘the probative value of the evidence substantially outweighs any prejudicial effect’”; see also Riley v R [2011] NSWCCA 238 at [161]-[162]. RDT was an appeal under s 5F of the Criminal Appeal Act and it is to be noted that both Johnson J (at [55]) and R A Hulme J (at [59]) refrained from expressing a view on the standard of appellate review on the basis that it was not fully argued and was unnecessary to decide in the circumstances of that case as their Honours were satisfied on either basis that the trial judge erred in his consideration and determination of the question of admissibility of the evidence.

547. Basten JA’s analysis in RDT was adopted in Sidaros v The Queen (2019) 15 ACTLR 64; [2020] ACTCA 11 at [38]. Basten JA’s dissenting view in R v Zhang (2005) 158 A Crim R 504; [2005] NSWCCA 437 at [45], to the same effect as his judgment in RDT, was also cited with approval by the High Court in Bauer at [61].

548. It should be remembered that, in applying the correctness standard of appellate review, an appellate court may be subject to “natural limitations” that exist when such an exercise is undertaken: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [34]. These may include the lack of the advantage enjoyed by a primary judge in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole: Fox v Percy at [23]; CSR Ltd v Della Maddalena (2006) 224 ALR 1; [2006] HCA 1 at [17]; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 at [90]. That is of some significance in the present case when it is recalled that the ruling under s 135(a) of the Evidence Act in relation to the two conversations occurred on day 50 of the trial.

Was the evidence properly excluded?

549. In our opinion, the trial judge’s decision to exclude the evidence of the two conversations was correct, as was his evaluation that the evidence sought to be adduced was of limited probative value: see at [32] of the s 135 ruling in R v Rogerson; R v McNamara (No 45), extracted at [492] above.

550. Senior counsel for McNamara attacked the bases identified by the trial judge for this conclusion and, in particular, the trial judge’s assessment that the evidence added very little to the issue of duress because the real basis of the duress asserted by McNamara flowed from the combination of seeing the deceased shot, on McNamara’s case, in cold blood and Rogerson’s threat to kill McNamara and his daughters immediately thereafter if he did not cooperate and assist. McNamara was especially critical of the trial judge’s use of the expression “shot in cold blood” in his reasoning as to the limited probative value of the proposed evidence.

551. Criticism of this expression is of little moment given that the task of this Court is to make its own evaluation of the probative value of the proposed evidence and to consider whether or not it was substantially outweighed by the danger of unfair prejudice to Rogerson. The same may be said of a number of the other specific criticisms of the trial judge’s ruling. If the correctness standard of review applies, it is for this Court to make the requisite evaluative judgments as part of its appellate function, and shortcomings of or in the reasoning of the trial judge recede in importance.

552. The evidence sought to be tendered by McNamara was, of course, probative. Were this not the case, it would never have passed the s 55 threshold and s 135 would never have been reached. Its probative value was, however, limited in circumstances where the immediate source of duress on McNamara’s own case was Rogerson’s threat to kill both him and his daughters if he did not cooperate with him in the immediate aftermath of his killing of the deceased.

553. It is necessary to appreciate the state of the evidence immediately prior to the application to lead evidence of the two conversations. McNamara had described how the deceased came to be shot by Rogerson. He described Rogerson as “seething with anger”. He said Jamie Gao produced a knife whilst sitting in a chair with Rogerson standing in front of him. Rogerson then pulled a gun from his right pocket. Whilst Gao was attempting to get out of the chair, Rogerson shot him twice. There then followed this passage of evidence: ^[486]

“Q.    What happened, what did you see happen to Mr Gao after the discharge of the firearm?

A.    After the first shot, he was erect and moving upwards and he went - he was splayed (indicated) back like this.

HIS HONOUR

Q.   Indicating with the arms out?

A.    Arms out and splayed like that (indicated).

Q.    But still in the chair?

A.   It had knocked him back in the chair, and he dropped the knife. I remember hearing a tinkle, you know, it sounded so loud. Rogerson didn't move but held aim on him and then Gao was moaning. He held aim on him and shot him again, and forced him even further back in the chair. Gao stopped moving, there was no noise, he just killed him instantly.”

554. It was in this context that the application was made to lead evidence of the two conversations. In relation to the conversation immediately following the shooting, the evidence sought to be adduced in answer to McNamara’s questions “why? why? why?” was as follows: ^[487]

“I did Drury, I did Drury. I'll do you too. Get up and fucking help me you weak cunt or I'll leave you on the floor lying next to him … He pulled the fucking knife first, get up and help me or you’ll be as dead as him, then I’ll kill your girls.”

It was only the words “I did Drury, I did Drury” that were disallowed.

555. The evidence in fact given by McNamara should also be noted. It was slightly different and more powerful than that outlined by Mr Wendler in that it involved Rogerson both pointing a gun at McNamara’s head and also pulling a knife on him. The evidence was as follows: ^[488]

“Q.    Just before we adjourned yesterday, you described to us the circumstances of the shooting of the deceased, Mr Jamie Gao. You told us yesterday that following the shooting, you said the words or asked the questions, ‘Why? Why? Why?’ Do you remember giving that evidence yesterday?

A.    Yes, I do.

Q.   Following those questions, did Mr Rogerson say anything to you?

A.    Yes, he did.

Q.    What did he say?

A.    He turned on me, he pointed the gun directly towards my head, and he said, ‘I'll do you, get up and help me you weak cunt, or you will be on the floor next to him’. I got up. He had the gun pointed directly at my head and he said, ‘Fuck me, he pulled a knife on me. Help me with him, otherwise you will be lying on the ground next to that cunt and then I'll kill your girls’.

Q.    When he said those words to you, what was the reaction that you had in your mind? How did you react to those words?

A.    I was terrified but paralysed altogether, just stunned. I have never felt like that before.”

556. Understood in the context of McNamara’s case on duress, the words rejected – “I did Drury, I did Drury” – were only of marginal probative value even assuming that the reference to Mr Drury, and what it implied, was meaningful to the jury.

557. The probative value of the evidence in the first conversation was, in our opinion, more limited both because of its remoteness in time (some three months, on McNamara’s own evidence) from the killing of the deceased, the context in which it occurred and the very great remoteness of the events described in it, dating back almost four decades. The first conversation did not occur in a hostile or threatening context. To the contrary and on McNamara’s own evidence, it took place in an entirely non-threatening context – indeed Mr Odgers SC described it as a “relatively social context” – which involved him speaking cooperatively to Rogerson in the context of a proposed book about Rogerson’s life. ^[489] Moreover, the fact that Rogerson had killed Lanfranchi was and remains notorious. It was the subject of a much publicised inquest. It cannot have been news to McNamara who himself had been in the police force for many years. Mr Odgers SC accepted that “one can take judicial notice of the fact that there is no doubt that Mr Rogerson shot Mr Lanfranchi”. ^[490]

558. As to the question of whether the limited probative value of the evidence of the two conversations would be substantially outweighed by the danger that it might be unfairly prejudicial to Rogerson, we are comfortably satisfied that that was the case even though the evidence was not proposed to be used either for tendency or for the truth of the fact that Rogerson had committed the murders in question. We agree with the trial judge’s assessment for the reasons he gave in this respect. Those reasons have been set out at [493] above. The subject matter of the evidence sought to be adduced was highly prejudicial to Rogerson in the context of the killing of the deceased.

559. To the trial judge’s observation that, notwithstanding well-known statements in the authorities to the effect that a jury may be expected to follow a trial judge’s directions, those authorities do not go so far as to say that a trial judge’s directions are capable of dealing with every instance where there is danger of unfair prejudice, we would add reference to the reflections on this topic of Button J in Allen v R [2020] NSWCCA 173 at [152]-[160]. The greater the danger that the evidence in question will have an unfairly prejudicial effect, the less likely a direction to the jury is capable of negativing that unfairly prejudicial effect.

560. We do not consider that the trial judge erred in excluding the evidence of the two conversations sought to be adduced by McNamara.

561. One final point to be made relates to a submission made by Mr Odgers SC to the effect that the decision to exclude the evidence was flawed because the trial judge did not consider the possibility of severing the trials of the two co-accused in the context of his s 135 ruling. We would reject this submission. One can envisage a circumstance where an application for severance could be made following a ruling under s 135 either to admit or to exclude particular evidence in the case of a joint trial. But consideration as to whether or not to sever a trial forms no part of the analysis under s 135. McNamara made no application to sever the trial following the trial judge’s ruling to exclude the evidence of the two conversations that he had sought to adduce.

562. We reject Ground 1 of McNamara’s appeal.

McNamara Ground 2: Failure to discharge jury when inadmissible evidence was given by Steven Farley

563. This ground of appeal concerns evidence given by Mr Steven Farley on the 32nd day of the trial. It included that he knew McNamara from the past as a detective and a drug dealer in Kings Cross. The latter was volunteered unresponsively to a question and gave rise to an application for the jury to be discharged which Bellew J refused.

The evidence

564. The significance of the evidence Mr Farley was anticipated to give, and in fact gave, was relatively minimal. He commenced his evidence at 2.38pm on 15 March 2016. He said he knew Rogerson as a friend. On Sunday 25 May 2014 he met Rogerson in Redcliffe, a suburb of Brisbane. They went to a boxing promotion together. The following morning there was news on the radio about Rogerson being wanted in connection with a kidnapping. Rogerson said, “I don’t know anything about it”. Rogerson subsequently said he wanted to return to New South Wales because he had a meeting with the police. ^[491]

565. The evidence was admitted over objection. The Crown contended that the statement made by Rogerson that he knew nothing about the kidnapping was untrue and it either indicated a consciousness of guilt or went to his credit. The evidence was allowed: R v Rogerson; R v McNamara (No 33) [2016] NSWSC 247. In the end, the Crown included it in a list of lies told by Rogerson that affected the credibility of his denial of the asserted joint criminal enterprise. ^[492]

566. In cross-examination by counsel for McNamara, Mr Farley said he had known Rogerson for 21 years and agreed he was “a very good friend of his”. Counsel continued by eliciting some evidence that is inconsequential to the present ground. (It concerned Mr Farley providing Rogerson with a mobile phone and a car.) ^[493]

567. Counsel for Rogerson then moved to the topic of him returning to Sydney to speak with police. Next was the following series of questions about Mr Farley’s knowledge of McNamara, which led to the answer which prompted counsel for both accused applying for the jury to be discharged: ^[494]

“Q. You knew Glen McNamara?

A. Yes.

Q. Correct?

A. Yes.

Q. How did you know Glen?

A. He was at the Cross the same time I was there.

Q. Was he working as a detective or police officer at Kings Cross when you

were there?

A. He was a detective and a drug dealer at Kings Cross.

Q. He was in the what –

HIS HONOUR: Just a moment. Members of the jury, would you step outside for a moment, please.” (emphasis added)

Applications to discharge the jury

568. The evidence came about mid-afternoon. After a short discussion, his Honour agreed to hear submissions on foreshadowed applications for the discharge of the jury the following morning.

569. Counsel for McNamara submitted that prejudice arose in a number of ways. It was an allegation of criminal activity, albeit in the 1980s, that was of the same type as was alleged by the Crown in the trial. The drug aspect was inextricably bound up with the murder charge. Further, McNamara proposed to raise his good character before the jury and this evidence would deprive that part of his case of its probative force. ^[495]

570. Counsel for Rogerson submitted the jury should be discharged because it might infer that his client had put Mr Farley up to giving the evidence in question. ^[496]

571. The Crown opposed the applications, arguing the prejudice could be overcome by appropriate judicial directions. ^[497]

Refusal of the applications

572. The trial judge refused the applications and provided ex tempore reasons: R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259.

573. His Honour characterised Mr Farley’s reference to McNamara as a drug dealer as “a gratuitous and non-responsive comment made by a person who, on his own admission, is a close friend of the co-accused Rogerson”. ^[498]

574. He referred to relevant authorities for the principles appertaining to an application of this type including Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 and R v Ahola (No 6) [2013] NSWSC 703. He also referred to authority for the proposition that juries will follow and apply judicial instructions and directions: R v Glennon (1992) 173 CLR 592; [1992] HCA 16; Munday v R (1984) 14 A Crim R 456; and Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15.

575. In applying those principles, his Honour concluded the applications should be refused for three reasons, the first two of which may be summarised but the third warrants quoting in full: ^[499]

(1)    The offending statement “was effectively constituted by two words”, and it was isolated, gratuitous and non-responsive.

(2)    The trial had reached its 33^rd day; there had been almost 50 witnesses called; there were more than 2000 pages of transcript; and the jury had been on an extensive view of a number of areas relevant to the trial. His Honour acknowledged that these matters were not conclusive.

(3)    “Thirdly, although I am mindful of the fact that McNamara will raise good character in his case, I am not satisfied that Mr Farley's utterance places McNamara in a position where his case of good character will have no probative force at all. In that regard, I am particularly mindful of the principles to which I have referred which make it clear that a trial judge, and indeed all parties in a trial, should proceed in the confidence that a jury will accept, and act upon, such directions as are given to them. This is particularly the case in circumstances where the offending statement really amounted to the two words ‘drug dealer’. That is not to say that those words do not assume any significance at all. But there is, in my view, no difficulty or complexity in giving a jury a direction that such evidence is to be ignored. There is some substance in the Crown’s submission to the effect that if a decision was made to discharge a jury in circumstances such as this, the jury system could never operate effectively, and in the manner in which it was intended to operate.”

Direction to the jury

576. A direction to be given to the jury was formulated by his Honour, with the assistance of counsel, and it was delivered before Mr Farley resumed his evidence at about 2.30pm on 16 March 2016. The direction was as follows: ^[500]

“We are in a position to proceed with the evidence of Mr Farley but before we do there is one thing I want to say to you.

What I am about to say to you is a direction that I am giving you in my capacity as the trial judge and, as is the case with every other direction I give you, you are bound by it and you are bound, in particular, to apply it to your consideration of the issues in this case.

Yesterday afternoon you will recall that Mr Farley was being cross-examined by counsel for the accused Mr Rogerson and you will recall some questions put to Mr Farley about his knowledge of the accused Mr McNamara. In the course of that cross-examination Mr Farley was asked this question:

‘Q. Was he" - in reference to Mr McNamara - "working as a detective or police officer at Kings Cross when you were there?

A. He was a detective and a drug dealer at Kings Cross.’

Members of the jury, the reference to Mr McNamara being a drug dealer was not in any way responsive to the question that was asked. The Crown does not accept that to be the case, that Mr McNamara was a drug dealer and indeed Mr McNamara is, as I understand it in due course, putting evidence before you of his good character. In all of those circumstances I propose to exercise the power that I have to strike that evidence from the court record because it is completely irrelevant and it should never have been given.

Because I have taken the view that the evidence should be struck from the record, what was said by Mr Farley forms no part whatsoever of the evidence in this case. Because it has been struck from the record, it is not part of the evidence that you are entitled to consider in your deliberations. And for all of those reasons, members of the jury, you are to ignore and completely put out of your minds anything that Mr Farley said in the course of giving that answer.”

577. Counsel for Rogerson subsequently resumed his cross-examination of Mr Farley. It was short. There was no re-examination and he withdrew. ^[501]

Agreed fact

578. Later in the trial, almost at the end of the Crown case, there was an agreed fact (Exhibit EQ) which the trial judge told the jury was as follows: ^[502]

“There is no evidence supporting the proposition that Mr McNamara was a drug dealer whilst he was a serving police officer at Kings Cross Police Station”.

579. It was clearly stated by the Crown Prosecutor, and repeated to the jury by the trial judge, that this was an agreed fact between the Crown and McNamara. ^[503]

Submissions

580. Mr Odgers SC submitted on behalf of McNamara that the trial judge erred in assessing the impact of Mr Farley’s offending statement. Referring to it as being “effectively constituted by two words” did not provide a proper basis to minimise its potential prejudicial impact. The answer linked McNamara’s occupation as a police officer with a capacity to deal in illegal drugs. It also included reference to Kings Cross, a place notoriously associated with criminal activity. The answer had the potential to undermine or negate McNamara’s future evidence of good character that predominantly relied upon his long service as a decorated police officer. It was a statement made in circumstances where he was defending a serious drug supply charge. ^[504]

581. It was submitted that in the circumstances of the case the instructions given by the trial judge to the jury could not rectify the forensic damage occasioned by Mr Farley’s evidence for three reasons. ^[505] The first two reasons related to timing. The judge sent the jury out immediately after Mr Farley gave the answer. First, it was very likely the jury would have focussed their attention on the evidence and discussed it while waiting to be brought back into the courtroom. As it happened, they were soon sent home, but they were not brought back in until 2.30pm the following day. Secondly, it was submitted that this was a significant period and allowed the evidence to “embed itself in the minds of the jury”.

582. Thirdly, it was submitted that “the Court had no way of knowing or forecasting the impact of the prejudicial statement upon the attitude of any one of the jurors. The evidence may have had a sub-conscious impact even if the jurors successfully put it out of their conscious deliberations.”

583. In oral submissions to this Court Mr Odgers SC described this ground as “supplementary to the first ground”. If the argument under the first ground was accepted, the evidence referred to in the second ground further created a risk of a miscarriage of justice in combination, and so there was a “powerful case for this Court concluding that a new trial is required”. It appears, however, that the ground was pressed as substantive regardless of the fate of the first ground. ^[506]

584. The Crown submitted that this ground should be rejected for various reasons, some of which accord with that which follows. ^[507]

Consideration

585. The principles relating to the exercise of a trial judge’s discretion whether to discharge a jury following some irregularity ^[508] were summarised recently in Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [112]-[115] (Bell P). They are consistent with the principles referred to in the judgment of Bellew J in the present case.

586. Mr Odgers SC did not suggest error on the part of the trial judge in his appreciation of the principles he was required to apply and nor did he raise any controversy about the principles an appellate court is to apply in the resolution of a ground of appeal of the present type. Those principles were also usefully summarised in Hamide at [116]-[128] which included:

”117    The starting point is the following passage from the plurality judgment in Crofts (at 441):

‘Nevertheless, the duty of an appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?’ (footnote omitted)

118    In Miller, this Court distilled the principles in the following terms (at 511 [126]):

‘… (4)   The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that ‘[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict’, and in Crofts, at 441, the question was put similarly as whether, in the circumstances, the appellate court can ‘say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable’.

(5)   Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind:

“… that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript”: Crofts at 440-441.

(6)   Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge ‘is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind’: Crofts at 441, but rather must apply the broader test stated at (4) above.’

See also Samadi at 277-8, Trieu at [26]−[28] and Younan at 128-130 [32]−[40].

119   Additionally, the authorities are replete with statements expressing the trust that our legal system places in juries to follow judicial directions. In The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 (Glennon), Mason CJ and Toohey J said at 603:

‘The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.’

120   In the same case, Brennan J (as he then was) said at 614-5:

‘Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced. In Munday, Street CJ repeated an unreported passage from one of his Honour’s earlier judgments:

“…it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury.”

If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial.’ (footnotes omitted)

See also Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at 425 [31]; R v Bartle [2003] NSWCCA 329; 181 FLR 1 at 16-7 [82]−[83]; TS at [21]; Samadi at 278 [136]; Scott at [188]; and Wilson v R [2019] NSWCCA 38 at [173]−[175] (Wilson).”

587. In considering the effect, if any, the impugned answer by the witness may have had upon the jury it is necessary to have regard to the context of the trial overall. It would have been obvious to the jury that the two accused, former good friends, were figuratively at each other’s throats in laying blame for the murder of the deceased, albeit they each attributed to their co-accused a motivation of self-defence. The cross-examination of each accused by counsel for their co-accused was extensive.

588. McNamara claimed to be a person of good character but there was evidence led by the Crown in rebuttal. It included that he had engaged in words and gestures fearfully intimidating (including threats of death) of a person who was a potential prosecution witness in a commercial drug supply case. ^[509]

589. There was also evidence of McNamara speaking to Chun Lok Lam, a friend of the deceased and alleged drug supplier who was a client of the barrister Charles Moschoudis. McNamara was engaged as a private investigator in relation to the drug supply charge Mr Lam was facing. Mr Lam gave evidence that McNamara told him he would be able to have his trial adjourned by shooting him in the leg with a small calibre firearm causing a minor injury. McNamara also told Mr Lam he was a former policeman and he could teach Lam about ways to avoid the attention of police. ^[510]

590. It is significant that in his direction to the jury the trial judge specifically described the answer given by Mr Farley as not in any way responsive to the question that was asked. This would have made clear to the jury that Mr Farley was not asked to provide the information, so he likely did so deliberately and for a purpose, namely, to assist his long-term friend Rogerson at the expense of McNamara.

591. It is also significant that the judge told the jury that what Mr Farley said was not correct: “The Crown does not accept that to be the case, that Mr McNamara was a drug dealer”. He went on to explain there would be evidence of McNamara’s good character. The statement that Mr Farley was wrong was subsequently confirmed, perhaps reinforced, by the agreed fact in Exhibit EQ.

592. The statement of the trial judge that he proposed “to exercise the power that I have to strike that evidence from the court record because it is completely irrelevant and it should never have been given” likely impressed upon the jury how seriously his Honour regarded the matter. It served to lend the authority and weight of his office to his instruction in absolute terms that jurors were “to ignore and completely put out of your minds anything that Mr Farley said in the course of giving that answer”. ^[511]

593. Mr Odgers SC submitted the trial judge had minimised the potential prejudicial impact of the evidence in his judgment because he referred to it as “effectively constituted by two words”. Moreover, the two words were accompanied by reference to McNamara’s occupation as a police officer and the relevant location being Kings Cross.

594. The latter matters did not appreciably add to the prejudice in the description of McNamara as a drug dealer. The jury were otherwise aware that McNamara had previously been a police officer, and drug dealing is reprehensible conduct no matter who is involved and where it is carried out.

595. A consideration of the entirety of what his Honour said in the course of his exchanges with counsel, the time he allowed for debate on the issue, the very detailed and considered terms of his judgment, albeit delivered ex tempore, and the powerful terms of the carefully crafted direction given to the jury all militate against any likelihood the judge under appreciated the potential prejudicial impact of the evidence. His reference to the utterance comprising two words conveyed that the issue was confined to something quite precise and limited. It was a single epithet, “drug dealer”, with no basis given for it by the witness, let alone elaboration.

596. The submissions of Mr Odgers SC implied that jurors might not have understood and complied with the judge’s instruction and that they may have taken into account, detrimentally to McNamara, the unresponsive utterance of a friend of his cut-throat co-accused about what he supposedly did as a police officer decades earlier whilst the Crown made it clear this was incorrect. To the contrary, the manner in which the judge dealt with the issue was most effective in expunging it entirely from the jury’s consideration. If any juror needed reminding that what Mr Farley said was wrong, that was forthcoming by way of the agreed fact tendered as Exhibit EQ a month later in the trial. ^[512]

597. The time that elapsed between the evidence being given and the judge striking it out and directing the jury to ignore it was unfortunate but necessary. Sometimes judges elect to remain mute when something potentially inadmissible falls from the lips of a witness in order not to highlight it. In this instance it was necessary for the judge to intervene immediately because cross-examining counsel had embarked upon another question which might have provided the witness an opportunity to say more on the subject. It may be that jurors thought about and discussed the evidence that had prompted the judge to intervene and send them out. However, the clear and emphatic terms of the direction ultimately delivered was more than adequate in undoing any “embedding” of the subject in the jurors’ minds.

598. The third point raised in the written submissions (see above at [582]) is redolent of the observation made in Weiss at [36], and quoted by Bell P in Hamide at [93], in the context of consideration of the proviso in s 6(1) of the Criminal Appeal Act. The Court said:

“[W]here evidence that should not have been adduced has been placed before the jury, it will seldom be possible, and rarely if ever profitable, to attempt to work out what the members of the trial jury actually did with that evidence. … [R]ecognition of the possibility that the jury might have used wrongfully received evidence against the accused cannot be treated as conclusive of the question presented by the proviso.” [i.e. whether there has been a substantial miscarriage of justice]

599. The trial judge was correct to refuse the application to discharge the jury. The action taken by way of striking the evidence out and directing the jury to ignore it, coupled with the subsequent agreed fact to the effect that the evidence was patently incorrect, were all directed to avoiding, and we are satisfied did avoid, a miscarriage of justice.

600. Ground 2 of McNamara’s appeal must be rejected.

McNamara’s application for leave to appeal against sentence

601. McNamara seeks leave to appeal against the life sentence imposed on him on the basis of Grounds 3 to 5 set out above (at [477]). Before addressing each ground, it is necessary to briefly describe Bellew J’s reasons for imposing that sentence: R v Rogerson; R v McNamara (No 57) [2016] NSWSC 1207 (“the sentencing judgment”). In those reasons, his Honour extensively canvassed the evidence and issues at the trial. His Honour then made findings on the various factual disputes that remained after considering the jury’s verdict, bearing in mind that the Crown bore the onus of proving, beyond reasonable doubt, any asserted finding of fact against each of Rogerson and McNamara who in turn bore the onus of proving, on the balance of probabilities, factual matters in mitigation. ^[513]

602. Thus, while his Honour was satisfied that the deceased was shot by one of Rogerson or McNamara, his Honour was not able to find which one fired the pistol. ^[514] His Honour found that the joint criminal enterprise to kill Jamie Gao was formed “well before 20 May 2014”. ^[515] This finding is the subject of complaint by Ground 5 of McNamara’s appeal and is addressed next. His Honour found that, after they killed the deceased and stole his drugs, “both offenders disposed of his body at sea with the clear intention that it would never be recovered”. ^[516] In addition, his Honour found that McNamara removed his boat from storage on 19 May 2014 “specifically for the purpose” of “dispos[ing] of the deceased’s body once he had been murdered”. ^[517] His Honour was satisfied that, in the days that followed, both McNamara and Rogerson were “engaged in steps to make arrangements for the white Falcon [wagon] to be towed from Cronulla to another location”. ^[518]

603. Having regard to those findings, his Honour described “the joint criminal enterprise to which each offender was a party” as “extensive in its planning, brutal in its execution, and callous in its aftermath”. ^[519] His Honour found that both offenders acted with “complete disregard for the life of another human being” and the disposal of the deceased’s body “at sea was both cruel and insensitive”. ^[520] His Honour concluded that the killing “was of an exceptionally high degree of seriousness”. ^[521] His Honour also concluded that the drug offence was of “utmost seriousness”. ^[522] His Honour found that “this was not just a case where the offending as a whole was motivated by the prospect of financial gain”, instead “it was a case in which that financial gain was to be realised by the participation in further serious criminal activity”. ^[523] His Honour found that “there is nothing at all to materially distinguish the respective roles played by each” of Rogerson and McNamara. ^[524]

604. Under the heading “The Case for each Offender”, his Honour addressed each of McNamara’s and Rogerson’s personal circumstances. His Honour addressed and rejected a contention made on behalf of McNamara that he was acting under duress (Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Procedure Act”), s 21A(3)(d)). ^[525] . His Honour then described McNamara’s personal circumstances. He was 57 years of age and had no prior convictions. He joined the New South Wales Police Force in 1974 and subsequently became a detective. For a period, he was seconded to the National Crime Authority and then worked as a detective in Darlinghurst and Kings Cross. According to his Honour, McNamara exposed a number of police who were acting corruptly, and he became the target of death threats. At some point he was diagnosed with post-traumatic stress disorder and was placed into witness protection. His Honour noted that McNamara claimed that he received psychiatric and psychological treatment for some years after the left the police force. His Honour noted that “[a]lthough there is no medical evidence before the court, it is apparent that McNamara is currently prescribed a number of separate forms of medication, including antidepressants”. His Honour described in detail the support he received from his family including his ex-wife and the testimony of various character witnesses. ^[526]

605. His Honour accepted that McNamara was a person of otherwise good character. In relation to a contention that he is unlikely to re-offend and has good prospects of rehabilitation, his Honour concluded that the “absence of evidence simply does not allow me to reach a finding in relation to either of these issues”. ^[527]

606. His Honour then addressed Rogerson’s personal circumstances before addressing and accepting the Crown’s contention that a life sentence should be imposed. ^[528] His Honour’s reasons for doing so are the subject of complaint by Grounds 3 and 4. They are addressed below (at [614]ff).

McNamara Ground 5: Error in finding a murderous intention did not crystallise in storage unit 803

607. Given the significance of the finding in question to the sentence imposed it is appropriate to address this ground first.

608. The relevant part of the sentencing judgment that contains the finding the subject of complaint by this ground of appeal is as follows: ^[529]

“121   The proposition that it is open to me to find that any joint criminal enterprise to kill the deceased was formed in storage unit 803, and only a short time before the deceased was killed, has two particular difficulties. Firstly, the acceptance of such a proposition depends, to a greater or lesser extent, upon accepting parts of one or other of the accounts given by each offender. Having observed each offender giving evidence over a lengthy period of time, I formed the view that the evidence of each of them was unreliable in a number of respects, some of which I have already identified. Each of them had a propensity, particularly when being cross-examined, to answer questions in a way which was wholly or partly non-responsive, and in terms which appeared to be deliberately formulated to suit their own purposes.

122   Secondly, the proposition that the joint criminal enterprise to kill the deceased was formed only minutes before the fatal shots were fired is completely at odds with everything that had occurred up until that time, as well as everything that occurred subsequently. Whilst the evidence does not enable me to be precise as to the time of the formation of the joint criminal enterprise, I am satisfied that it was well before 20 May 2014, encompassing as it did the various preparatory steps to which I have referred, commencing with McNamara’s meetings with the deceased in March 2014. For reasons to which I will come, the events which took place after the deceased’s murder only serve to confirm that the joint criminal enterprise was formed well in advance of 20 May.” (emphasis added)

609. McNamara’s written submissions in support of this ground contend that the evidence of events “before May 20, 2014 was consistent with [McNamara] and [the deceased] forming a criminal association” for the purpose of the supplying of drugs that would be stored in storage unit 803. It was contended that explained the handover of drugs “in a public storage facility on an ordinary week day covered by CCTV footage” and that was inconsistent with a prearranged plan to murder Jamie Gao. ^[530] As for the events after the shooting, the submissions contended that they were “equally explicable as amateurish behaviour born out of panic following the unscripted events in shed 803”. ^[531] It was submitted that there was “no evidence” that, prior to 20 May 2014, McNamara and Rogerson formed an agreement to kill Jamie Gao. ^[532]

610. McNamara’s contention that there was “no evidence” to support the above finding is consistent with the principles concerning a challenge to factual findings made in sentence proceedings (R v O’Donoghue (1988) 34 A Crim R 397; Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at [119]) although a different test has been suggested (Hordern v R [2019] NSWCCA 138 at [20]). However, regardless of the standard of review to be applied, the challenge to his Honour’s finding must fail. His Honour’s finding was overwhelmingly supported by the evidence adduced at the trial.

611. As noted (above at [602]), McNamara removed his boat from the storage facility shortly after 10.00am on 19 May 2014. ^[533] That conduct had nothing to do with the storage of any drugs stolen from the deceased and was only explicable on the basis that it was intended to be used to dispose of his body. When asked about this in oral argument on the appeal, counsel for McNamara referred to his client’s explanation for the removal of the boat, namely, to take his daughter on a fishing trip and “potter” around with it, explanations which the jury and the sentencing judge rejected. ^[534] The same observation applies to McNamara’s conduct in travelling to the storage unit with a surfboard cover which was used to carry the deceased’s body. In this Court, counsel submitted that the possession of a cover to carry the body by McNamara at the murder scene and his access to a boat that had already been removed from storage to dispose of it was a “coincidence”. ^[535] That submission must be rejected.

612. McNamara’s contention that the CCTV coverage of the storage unit was inconsistent with a preconceived plan to kill has been sufficiently addressed on the similar argument raised by Rogerson (above at [234]ff). In short, Rogerson and McNamara did not expect the deceased’s body to be discovered and neither expected that the CCTV footage at the storage unit would be scrutinised. So much is evident from their efforts to distance themselves from any direct link to the storage unit, McNamara’s altered dress on the day and the surveillance drive around the storage premises that Rogerson undertook prior to his entry to the unit. Otherwise, in addressing this issue in light of the jury’s verdict, it is to be borne in mind that the Crown case at trial was that the agreement to kill Mr Gao was formed well prior to 20 May 2014. Each of McNamara’s and Rogerson’s cases was that no such agreement was ever formed. There was no case put before the jury that such an agreement was only formed in the storage unit and no evidence to support such a case.

613. We reject Ground 5 of McNamara’s appeal.

McNamara Grounds 3 and 4: Section 61(1) and manifestly excessive sentence

614. Ground 3 of McNamara’s appeal contends that “in all the circumstances the sentence imposed upon [him] for murder was manifestly excessive”. Ground 4 contends that his Honour erred in “in the application of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)”.

615. It is appropriate to address Ground 4 first. In summary, it was submitted that the sentencing judge erred in adopting and applying a two-stage test for the application of s 61(1) of the Sentencing Procedure Act as articulated in Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292. ^[536]

Section 61 of the Sentencing Procedure Act.

616. Section 19A(1) of the Crimes Act 1900 (NSW) renders a person who commits the crime of murder liable to imprisonment for life. Section 19A(2) provides that if an offender is sentenced to imprisonment for life then they are to serve that sentence for the term of their natural life.

617. Sections 21 and 61 of the Sentencing Procedure Act relevantly provide:

“21    General power to reduce penalties

(1)   If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.

…

61    Mandatory life sentences for certain offences

(1)   A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

(2)   …

(3)   Nothing in subsection (1) affects section 21(1).” (emphasis added)

618. The origin of s 61 is the decision of this Court in R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep). In Garforth, the offender was sentenced to life imprisonment for sexually assaulting a nine-year-old girl and then drowning her by throwing her into a dam with her arms and legs bound. The offender pleaded guilty to murder. On appeal, it was submitted that the sentencing judge had committed an error of the kind identified in R v Young [1990] VR 951 where the sentencing judge had announced that he would have imposed a 12-year sentence but for mitigating circumstances which warranted the imposition of a six-year sentence. However, in Garforth, this Court (Gleeson CJ, McInerney and Mathews JJ) rejected the characterisation of the sentencing judge’s approach as “being two tiered”. The Court stated that, instead, the sentencing judge only “list[ed] various features capable of producing the result that this should be regarded as a case of the worst type, and then asked himself whether there were mitigating circumstances which required a different conclusion” (at 6). The Court then addressed and rejected a contention that life sentences should be reserved for cases where the offender is likely to remain a continuing danger for the rest of their life or where there is no reasonable prospect of rehabilitation, stating (at 13):

“We reject the applicant’s submission that it is only where there is no chance of rehabilitation that the maximum penalty of life imprisonment can be imposed. There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty.”

619. Following Garforth, there was introduced into the NSW Parliament the Crimes Amendment (Mandatory Life Sentences) Bill 1995 (NSW) which sought to amend the Crimes Act by the inclusion of s 431B which was not relevantly different to what ultimately became s 61 of the Sentencing Procedure Act. The relevant part of s 431B(1) adopted the above passage from Garforth although it added references to “community protection and deterrence” in the sentencing objectives to be considered.

620. In his speech in reply on this Bill, the Attorney‑General, the Hon JW Shaw QC, stated (New South Wales Legislative Council, Parliamentary Debates (Hansard), 11 October 1995 at 1515-1516) inter alia:

"It has been said that this bill will make little or no practical difference to the present law with respect to the crime of murder. However, the bill expands upon and codifies a sentencing principle which was articulated by the Chief Justice of New South Wales in the Supreme Court in the matter of Garforth. This principle was outlined in a judgment of the Court of Criminal Appeal of 23 May 1994. In rejecting Garforth's appeal his Honour referred to those offences which demonstrated an extreme degree of culpability, such that the community interest in retribution and punishment can be met only through the imposition of the maximum penalty. The provisions of the Bill add to that formulation of an acknowledged sentencing principle by the inclusion of community protection and deterrence as relevant factors.

The elevation of a common law principle into legislation gives statutory expression to the will of the Parliament, and in that sense it strengthens the application of those principles in appropriate cases. In the absence of legislation, the application of common law principles remains a matter of precedent which is capable of being overruled on appeal to a higher court. Moreover, legislation, as opposed to the common law, is accessible to and therefore capable of being more readily understood by the wider community." (emphasis added)

621. The emphasised passage is of particular present significance because, at the heart of the submissions for McNamara and recent attempts to revisit the interpretation of s 61 is the contention that, since the time of Garforth and the early cases which applied the provision, the relevant “common law principles” have been overruled or least qualified by the High Court, most notably in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. However, even if that contention is accepted, it does not matter because the Parliament’s clear intention was to embody the approach stated in Garforth so far as any consideration of life sentences for murder is concerned.

622. The Crimes Amendment (Mandatory Life Sentences) Bill 1995 was referred for an inquiry and returned to Parliament as the Crimes Amendment (Mandatory Life Sentences) Bill 1996 (NSW). The only substantive difference for present purposes was the exclusion of persons under the age of 18 from the application of proposed s 431B. (This is now reflected in s 61(6) of the Sentencing Procedure Act). The Attorney-General’s second reading speech for the 1996 Bill referenced the debate over the 1995 Bill (New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 April 1996 at 84). The 1996 Bill was subsequently enacted as the Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW) and came into force on 4 June 1996. Section 431B was re-enacted as s 61 of the Sentencing Procedure Act when it came into force on 3 April 2000.

623. The proper interpretation of s 61(1) was considered by Bell J, as her Honour then was, in R v Harris (2000) 111 A Crim R 415; [2000] NSWSC 285 at [76]-[86] (“R v Harris (Bell J)”). Having regard to that section’s origin in Garforth and the decision in R v Bell (1985) 2 NSWLR 466, her Honour construed the provision as follows (at [84]-[85]):

“84   ….Section 61(1) operates … to take away a discretion and to require a judge to impose the maximum sentence if he or she is of the specified opinion. Such a provision should be construed restrictively. Nonetheless, having regard to the language of the provision, it seems to me that the assessment of the prisoner’s culpability required by the section is directed to circumstances surrounding or causally connected to the offence. Again, I consider this to be consonant with the position at common law having regard to Garforth.

85   … Thus, I put to one side for present purposes consideration of such evidence as there is of the prisoner’s remorse, his confessions, pleas of guilty and prospects of rehabilitation and I consider whether the prisoner’s culpability for his crimes is so extreme that the community interest in the various stated objectives of sentencing requires the imposition of a life sentence.” (emphasis added)

624. Consistent with this approach, Bell J considered the offender’s “troubled background” because it “may [have been] relevant to the assessment of the prisoner’s culpability for his crime in the sense of being a causative influence upon it” (R v Harris (Bell J) at [86]-[87]).

625. The construction of s 61(1) adopted by Bell J is supported by so much of the provision as refers to “culpability in the commission of the offence” and also by its specification of the relevant considerations as “retribution, punishment, community protection and deterrence”, they being only four of the seven purposes of sentencing listed in s 3A of the Sentencing Procedure Act. The promotion of the rehabilitation of the offender is one of the other three objectives listed in s 3A (see sub-section (d)). It is omitted from s 61(1).

626. Although the outcome in R v Harris (Bell J) was overturned in this Court on appeal, Bell J’s construction of s 61 was specifically endorsed: R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [60] per Wood CJ at CL, Giles JA and James J agreeing (“R v Harris (CCA)”). This was subsequently accepted in R v Valera [2002] NSWCCA 50 and R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19. In Merritt at [37], Wood CJ at CL (Tobias JA and Hidden J agreeing) described R v Harris (CCA) as “recognis[ing] the two-step process, including the discretion” which must be followed in applying s 61.

627. Later, in Knight at [23], McClellan CJ at CL summarised the relevant principles that had been distilled, as at that time, in relation to s 61(1) as follows:

“•   the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452.

•   it is not possible to prescribe a list of cases falling within the worst category – ingenuity can always conjure up a case of greater heinousness: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; R v Petroff (unreported, 12 November 1991 – Hunt CJ at CL).

•   a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment: R v Kalazich (1997) 94 A Crim R 41 at (50-1); R v Baker (unreported, CCA 20 September 1995); R v Garforth (unreported CCA 23 May 1994).

•   in many cases a two stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50.

•   it is the combined effect of the four indicia in s 61(1) which is critical: R v Merritt (2004) 59 NSWLR 557.

•   the absence of any one or more of the indicia of retribution, punishment, community protection or deterrence may make it more difficult for a sentencing judge to reach the conclusion that a life sentence is required although will not be determinative: Merritt at 559.” (emphasis added)

628. Knight did not refer to R v Harris (Bell J) or R v Harris (CCA). However, it referred to R v Bell which was relied on in R v Harris (Bell J). Knight also referred to Valera and Merritt, each of which endorsed R v Harris (CCA) and referred to a two-stage test. The principle from Knight, emphasised above, delineates between the “objective gravity of the offence” and the “subjective circumstances of the offender”, a distinction that was articulated in Valera at [7] which, as noted, referred to R v Harris (CCA). This distinction is meant to encapsulate that drawn in R v Harris (Bell J) (at [84]-[85]) between the “circumstances surrounding or causally connected to the offence” and such matters as “remorse, …confessions, pleas of guilty and prospects of rehabilitation”. However, to describe that distinction by reference to “objective gravity” and “subjective circumstances” is potentially misleading. The judgments in R v Harris (Bell J) and R v Harris (CCA) make it clear that the “circumstances surrounding or causally connected to the offence” potentially extend to such matters as an offender’s “troubled background” because it “may be relevant to the assessment of the prisoner’s culpability for his crime in the sense of being a causative influence upon it” (R v Harris (Bell J) at [86]-[87]). Such circumstances could also include any mental illness relevant to the commission of the offence.

629. In the progression of cases it is important to note Markarian which was decided by the High Court in 2006. In that case, Gleeson CJ, Gummow, Hayne and Callinan JJ stated that “in general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed” (at [37]). Their Honours then cited a passage from Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [74]-[76] which described that process as an “instinctive synthesis” and rejected a “two-stage” sentencing approach “in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities”. This is the form of two‑stage test that was also rejected in Garforth. The plurality in Markarian stated that, following Wong, it “cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison” although there may be a “simple case” where some “indulgence in an arithmetical process” may be appropriate (Markarian at [39]).

630. Markarian concerned the imposition of sentence for a drug offence under the Sentencing Procedure Act, a power which is undoubtedly discretionary. The plurality’s judgment in Markarian made it clear that the analysis begins with the relevant statute governing the imposition of sentence and that the principles it enunciates apply subject to express statutory provision to the contrary: see Markarian at [26]-[27] and [35].

631. The issue of whether Markarian required a reconsideration of the interpretation and application of s 61 arose in Dean v R [2015] NSWCCA 307. In Dean, it was contended that, in imposing a life sentence, the sentencing judge had erred in adopting and applying a two-stage test in accordance with Knight (Dean at [78]). Ward JA (at [92]) held that the sentencing judge had not “start[ed] with the maximum penalty for murder (i.e., life imprisonment) and then add[ed] to or subtract[ed] from the figure as various aspects of the sentencing process were considered”, being the form of reasoning said to be inconsistent with Markarian. Instead, the sentencing judge had applied a two-stage test of the kind contemplated by Knight and the other cases noted above. Ward JA held (at [96]) that neither Markarian nor Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 “render[ed] impermissible such an exercise”. Further, her Honour held (at [110]) that, in considering the offender’s drug use and personality disorder which were said to be causally related to the offending, the sentencing judge had not erred in her assessment of the objective seriousness of the offence. Implicit in Ward JA’s analysis is that those matters could be considered in applying s 61(1). That assumption is consistent with R v Harris (CCA).

632. The offender in Dean sought special leave to appeal to the High Court which was refused: Dean v The Queen [2016] HCATrans 278. Care needs to be exercised in drawing conclusions from either the short reasons provided in refusing special leave which have no binding precedential status (Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [112] and [119]) or observations made in the course of argument. That said, in refusing special leave to appeal, Bell and Nettle JJ observed that while they “would not wish to be taken to be endorsing everything stated by the Court of Criminal Appeal”, there was no prospect the appeal in that case would be successful. Of greater present relevance is their Honours’ observations in the course of argument that a determination of an offender’s “culpability” for the purposes of s 61 included matters concerning the offender’s mental state at the time of the offending (at 11). Perhaps not surprisingly, those observations reflect the approach stated in R v Harris (Bell J).

633. In R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 (“Qaumi”) at [183]-[194], Hamill J reviewed some of these authorities and concluded that Markarian, Muldrock and R v Kilic (2016) 259 CLR 256; [2016] HCA 48 require the rejection of a two-stage approach. His Honour determined that the correct approach to s 61 is for the sentencing judge to consider “all of the evidence relevant to the sentencing discretion, apply the relevant sentencing principles (common law and statute) and make an assessment of the extremity of the offender’s culpability and the ‘community interest in retribution, punishment, community protection and deterrence’”: at [193].

634. The proper construction of s 61(1) arose recently before this Court, constituted by five members, in CC v R; R v CC [2021] NSWCCA 71. Three members of the Court determined that it was not necessary to decide whether s 61(1) permitted a two-stage approach, concluding that the sentencing judge, who had not imposed a life sentence, did not adopt that approach: at [50] per Bathurst CJ; [73] per Hoeben CJ at CL; and [96] per Wilson J. Hamill J (at [93]) adhered to the view he stated in Qaumi. Adamson J held that the correct approach was that stated in R v Harris (Bell J) as approved in R v Harris (CCA), stating as follows (at [81]-[83]):

“81   It is important to note, in response to CC’s detailed submissions, that there is an important distinction, which is plain from the wording of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) between the factors germane to the matter about which the court is to be satisfied and the factors germane to the sentence to be imposed on an offender. The focus of the court’s attention in s 61(1) is the offender’s ‘level of culpability in the commission of the offence’. The assessment of this matter involves consideration of objective factors, such as the objective seriousness of the offence, as well as subjective matters, such as the offender’s background, criminal history and any mental disease, disorder or incapacity. By contrast, the instinctive synthesis required as part of the exercise of the sentencing discretion involves a consideration of all relevant matters, not merely those that affect the offender’s level of culpability in the commission of the offence. There is a significant overlap in the matters germane to s 61(1) and those germane to sentencing but the matters relevant to s 61(1) are, inevitably, a subset of the matters relevant to sentencing: see R v Burke [1983] 2 NSWLR 93 at 101C-D (Nagle CJ at CL). Matters relevant to sentence which fall outside the purview of s 61(1) of the Act include whether the offender has demonstrated remorse or contrition, whether the offender has pleaded guilty and at what time the plea has been offered or entered, and whether the offender has given assistance to authorities in respect of this offence or other offences committed by the offender or by others.

82   The distinction was drawn by Bell J in R v Harris [2000] NSWSC 285; (2000) 111 A Crim R 415 at [83]-[84] and approved by this Court on appeal from her Honour’s decision in R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [60] (Wood CJ at CL, Giles JA and James J agreeing).

83   If s 61(1) arises for consideration, the sentencing judge will be obliged to consider the matters that affect the offender’s level of culpability for the offence. Even if the judge reaches the state of satisfaction provided for in s 61(1), there remains a discretion to impose a lesser sentence. The order in which relevant matters are addressed in the reasons is a matter for the sentencing judge.” (emphasis added)

635. We consider that Adamson J’s approach is correct. It accords with R v Harris (CCA) and R v Harris (Bell J) and the Parliament’s intention in enacting the predecessor to s 61(1). To that end we note five further matters.

636. First, as noted, the proper approach to s 61(1) is that stated in R v Harris (CCA) and R v Harris (Bell J). Second, that embodies a form of two-stage test, although for the reasons stated in Dean, it is not the form of two-stage test disavowed in Markarian. Third, even if the form of two stage test envisaged by R v Harris (CCA) and R v Harris (Bell J) was inconsistent with Markarian, then it would not matter because, for the reasons set out above, that approach reflects the clear intention of Parliament in enacting s 431B of the Crimes Act after Garforth, which was later re-enacted in the Sentencing Procedure Act. Fourth, care must be taken in describing s 61 as differentiating between an assessment of the “objective gravity” of the offending and the offender’s subjective circumstances. As explained, what differentiates the two stages is whether the relevant factor is a “circumstance surrounding or causally connected to the offence” and that can include matters such as the offender’s mental state, motive or personal background. Some matters may be relevant to both stages. Fifth, that said, a reference by a sentencing judge to Knight, or the adoption of a two-stage approach that differentiates between the “objective gravity” of the offending and the offender’s subjective circumstances, will not constitute error of the kind stated in House v The King. Instead, the relevant question is whether the sentencing judge applied s 61 (and s 21(1)) in accordance with R v Harris (Bell J) and R v Harris (CCA).

637. McNamara’s submissions in support of Ground 4 contend that the sentencing judge erred in adopting the discredited “two-stage” approach to the application of s 61(1) and that the correct approach was that stated by Hamill J in Qaumi. ^[537] We will address the sentencing judge’s approach next, but it suffices to state that, properly understood, the two-stage test for s 61(1) is not “discredited” and we reject the approach to s 61 stated by Hamill J in Qaumi.

Balance of Ground 4: The sentencing judge’s approach

638. The sentencing judge set out the terms of s 61(1) and the passage from Knight at [23] set out above (at [627]). ^[538] . His Honour then observed: ^[539]

“I have canvassed, at length, the circumstances of the offending, and I have identified those matters which, in my view, characterise its objective seriousness. There are, in my view, no factors which mitigate the offending.”

639. The various matters that his Honour “canvassed” included the motivation of Rogerson and McNamara for the offence, namely the “prospect of financial gain”. ^[540] His Honour then referred to Merritt and the sentencing considerations in s 61(1). In doing so, his Honour noted that the “offenders murdered the deceased in order to engage in further offending, the commission of which would have brought them considerable financial gain” and added: ^[541]

“In my view, there is no relevant distinction to be drawn between a deliberate killing for payment in the nature of what is often described as a ‘contract killing’, and the circumstances of the present offending. On any view of it, the present offending was a form of deliberate killing for payment. The fact that the payment in the present case was to be derived by the offenders, not from monies received from a third party pursuant to a ‘contract’, but rather by engaging in further serious criminal activity, does not, in my view, render the present offending any less serious.”

640. In discussing the sentencing factors in s 61(1), his Honour referred to the absence of any remorse on the part of either McNamara or Rogerson. ^[542] As noted above (at [603]), earlier in the sentencing judgment his Honour found that “the joint criminal enterprise to which each offender was a party was extensive in its planning, brutal in its execution, and callous in its aftermath”. ^[543] Ultimately, his Honour concluded: ^[544]

“The subjective features in McNamara’s case are limited. They are even more so in the case of Rogerson. Mitigating factors are necessarily relevant to the determination of an appropriate sentence. However in the present case, they are of limited significance. The nature of the offending was, in my view, so grave that such subjective circumstances as are made out on the evidence should be disregarded: Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404 at [34] citing R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [103].

In all of these circumstances it is my view that the provisions of s. 61(1) of the Sentencing Act are applicable, and that in respect of the murder count, a life sentence should be imposed in each case.” (emphasis added)

641. Although his Honour referred to the two-stage test in Knight, there is no basis for contending that his Honour impermissibly confined the analysis only to considering the objective factors surrounding the offending. To the contrary, his Honour addressed the motives of McNamara and Rogerson in murdering the deceased. Otherwise, his Honour considered all the factors relevant to sentencing in determining whether a life sentence should be imposed. No error has been shown.

642. We reject Ground 4.

Manifest excess

643. In relation to Ground 3, the submissions on behalf of McNamara alleged a number of distinct errors on the part of the sentencing judge. Thus, it was contended that his Honour erred in equating the murder of the deceased to a contract killing and that it was an error of the kind described in House v The King for his Honour to “in effect [find] that because the applicant’s offending was equivalent to a contract killing, ipso facto, the sentence was to be a life sentence.” ^[545] It suffices to state that it was well open to compare the murder to a “contract killing” and that his Honour did not reason from that characterisation to a conclusion that a life sentence ought necessarily be imposed.

644. The submissions also contend that his Honour erred by supposedly affording “no weight to [McNamara’s] subjective circumstances” ^[546] specifically his family, his absence of prior convictions, his character references, his period of service as a police officer and his medical conditions. As noted above, all these matters were considered by his Honour in detail. ^[547] Ultimately, his Honour attached to them “limited significance” in light of the gravity of the offending.

645. Ultimately, McNamara’s contention is that it was not open to the sentencing judge to form the conclusion noted above. It was submitted that “[h]istorically, and generally speaking, indeterminate sentences for murders have been imposed in cases of multiple killings, killings involving great cruelty, killing of vulnerable victims including children and killings where the perpetrator has killed before”. ^[548] Assuming that assertion is correct, the categories of murder warranting a life sentence are not closed. A conclusion that a life sentence should be imposed is a severe one. In Garforth, it was noted that life sentences can impose “intolerable burdens upon most prisoners because of their incarceration for an indeterminate period” and cause difficulties in prison management (at 11). Nevertheless, this was a premediated and cold-blooded execution. It was open to the sentencing judge to determine that a life sentence should be imposed.

646. We reject Ground 3.

Orders in respect of McNamara appeal

647. In relation to the appeal by McNamara the Court orders:

1.   Extend time to file notice of application for leave to appeal against conviction and sentence to 9 August 2019.

2.   Grant leave to appeal in respect of Grounds 1 to 5.

3.   Appeal dismissed.

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Amendments

23 July 2021 - Cover sheet, Headnote, [308]-[413] - redactions removed

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Decision last updated: 23 July 2021