R v Rogerson; R v McNamara (No 53) [2016] NSWSC 653

R v Rogerson; R v McNamara (No 53) [2016] NSWSC 653

The Crown was not entitled to the requested consciousness of guilt direction because, for most alleged lies, a finding that the statements were deliberate lies depended on acceptance of the Crown case as a whole and would involve impermissible circular reasoning. For the remaining individual statements, any possible consciousness of guilt use raised issues of materiality or likely jury confusion, so s. 136 of the Evidence Act 1995 (NSW) supported limiting their use to credit.

Jurisdiction
Australia
Judgment Date
19 May 2016
Procedural Posture
Criminal Law Evidence / Procedural Ruling on Proposed Jury Direction During Trial
Outcome
The Crown's requested direction that the alleged lies could be used as evidence of consciousness of guilt was refused.
Legal Topics
['lies as Evidence of Consciousness of Guilt' 'jury Directions' 'credit' 'circular Reasoning' 'limitation of Evidence Under S. 136 of the Evidence Act 1995 (nsw)']
['criminal Law' 'evidence'] ['lies as Evidence of Consciousness of Guilt' 'jury Directions' 'credit' 'circular Reasoning' 'limitation of Evidence Under S. 136 of the Evidence Act 1995 (nsw)']

Case Brief

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Procedural Posture

Criminal Law Evidence / Procedural Ruling on Proposed Jury Direction During Trial

Legal Issues

  1. 1 ['Whether the jury should be directed that alleged lies by each accused were capable of being used as evidence of consciousness of guilt.' 'Whether the alleged lies could instead be used only to assess the credit of the accused.' 'Whether use of the alleged lies as consciousness of guilt evidence would require impermissible circular reasoning.' 'Whether s. 136 of the Evidence Act 1995 (NSW) should limit the use of particular evidence.']

Ratio Decidendi

The Crown was not entitled to the requested consciousness of guilt direction because, for most alleged lies, a finding that the statements were deliberate lies depended on acceptance of the Crown case as a whole and would involve impermissible circular reasoning. For the remaining individual statements, any possible consciousness of guilt use raised issues of materiality or likely jury confusion, so s. 136 of the Evidence Act 1995 (NSW) supported limiting their use to credit.

Court Disposition

The Crown's requested direction that the alleged lies could be used as evidence of consciousness of guilt was refused.

Orders

  • ['The direction sought by the Crown will not be given.' 'The jury will be directed that if they find that any statement relied upon by the Crown constitutes a lie, it can be used to assess the credibility of the particular accused who made such statement.']