R v Rogerson; R v McNamara (No 30) [2016] NSWSC 168

R v Rogerson; R v McNamara (No 30) [2016] NSWSC 168

The proposed evidence was clearly relevant to the issue of duress to be raised for McNamara, and no party submitted that the conditions for s. 66 were not met. Although the evidence could be prejudicial to Rogerson and to some extent the Crown, its probative value was not substantially outweighed by any danger of unfair prejudice, nor was it likely to be misleading or confusing. The evidence would therefore be allowed, with a jury warning under s. 165 as to possible unreliability arising primarily from its hearsay quality.

Jurisdiction
Australia
Judgment Date
02 March 2016
Procedural Posture
Criminal Law Evidence Ruling / During Cross Examination; Ruling on Admissibility of Hearsay Statement in Absence of the Jury
Outcome
Evidence admitted; jury warning to be given pursuant to s. 165 of the Evidence Act 1995 (NSW).
Legal Topics
['admissibility of Hearsay Statement' 'duress' 'unfair Prejudice' 'jury Warning']
['criminal Law' 'evidence'] ['admissibility of Hearsay Statement' 'duress' 'unfair Prejudice' 'jury Warning']

Case Brief

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Procedural Posture

Criminal Law Evidence Ruling / During Cross Examination; Ruling on Admissibility of Hearsay Statement in Absence of the Jury

Legal Issues

  1. 1 ['Whether evidence of a statement allegedly made by Glen Patrick McNamara to Jessica McNamara after his arrest was admissible under the Evidence Act 1995 (NSW).' 'Whether the evidence should be excluded under s. 135 of the Evidence Act 1995 (NSW) because its probative value was substantially outweighed by danger of unfair prejudice, or of being misleading or confusing.' 'Whether a warning should be given to the jury under s. 165 of the Evidence Act 1995 (NSW) if the evidence was admitted.']

Ratio Decidendi

The proposed evidence was clearly relevant to the issue of duress to be raised for McNamara, and no party submitted that the conditions for s. 66 were not met. Although the evidence could be prejudicial to Rogerson and to some extent the Crown, its probative value was not substantially outweighed by any danger of unfair prejudice, nor was it likely to be misleading or confusing. The evidence would therefore be allowed, with a jury warning under s. 165 as to possible unreliability arising primarily from its hearsay quality.

Court Disposition

Evidence admitted; jury warning to be given pursuant to s. 165 of the Evidence Act 1995 (NSW).

Orders

  • ['The evidence of Jessica McNamara as to the statement made by her father was allowed.' "The jury will be warned pursuant to s. 165 of the Evidence Act 1995 (NSW) that this part of Ms McNamara's evidence may be unreliable, primarily because of its hearsay quality."]