R v Rogers (No 6) [2019] NSWSC 688

R v Rogers (No 6) [2019] NSWSC 688

The phrase 'dead man walking' was excluded because the witness, Ms Douglas, was able to provide sufficient physical description of the accused's state, and the opinion was not necessary to understand her perception as required under s 78(b). Further, the minimal probative value was outweighed by the risk that the phrase would mislead or confuse the jury under s 135(b) of the Evidence Act 1995 (NSW).

Parties
Crown: Regina; Accused: Warren Rogers
Jurisdiction
Australia
Judgment Date
21 May 2019
Procedural Posture
Criminal / Evidentiary Ruling During Trial
Outcome
Phrase excluded
Legal Topics
Admissibility of Evidence, Lay Opinion Evidence, Exclusion of Evidence Under S 135
Criminal Law Evidence Admissibility of Evidence Lay Opinion Evidence Exclusion of Evidence Under S 135

Case Brief

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Parties

Regina

Crown

Warren Rogers

Accused

Procedural Posture

Criminal / Evidentiary Ruling During Trial

Legal Issues

  1. 1 Whether the phrase 'dead man walking' is admissible as lay opinion evidence under s 78 of the Evidence Act 1995 (NSW)
  2. 2 Whether the evidence should be excluded under s 135 of the Evidence Act 1995 (NSW)

Ratio Decidendi

The phrase 'dead man walking' was excluded because the witness, Ms Douglas, was able to provide sufficient physical description of the accused's state, and the opinion was not necessary to understand her perception as required under s 78(b). Further, the minimal probative value was outweighed by the risk that the phrase would mislead or confuse the jury under s 135(b) of the Evidence Act 1995 (NSW).

Court Disposition

Phrase excluded

Orders

  • The reference in the evidence of Rosalie Douglas to 'dead man walking' is excluded.