R v Rogerson; R v McNamara (No 39) [2016] NSWSC 358

R v Rogerson; R v McNamara (No 39) [2016] NSWSC 358

The first challenged passage from the 24 June 2014 conversation had little probative value and was excluded because its probative value was considerably outweighed by the danger of unfair prejudice. The second challenged passage from that conversation was relevant and probative and was admitted. The challenged passage from the 7 August 2014 conversation was highly relevant to facts in issue concerning events at Padstow on 20 May 2014, was not shown to be a confidential communication made for the dominant purpose of obtaining professional legal services, and its probative value was not outweighed by unfair prejudice or the danger of being misleading or confusing; it was therefore admitted.

Jurisdiction
Australia
Judgment Date
31 March 2016
Procedural Posture
Criminal Proceedings / Procedural Evidentiary Ruling on Admissibility of Recorded Conversations
Outcome
Objection upheld in part and otherwise dismissed; challenged evidence admitted in part and excluded in part.
Legal Topics
['recorded Conversations' 'relevance' 'litigation Privilege' 'unfair Prejudice' 'misleading or Confusing Evidence']
['criminal Law' 'evidence'] ['recorded Conversations' 'relevance' 'litigation Privilege' 'unfair Prejudice' 'misleading or Confusing Evidence']

Case Brief

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Procedural Posture

Criminal Proceedings / Procedural Evidentiary Ruling on Admissibility of Recorded Conversations

Legal Issues

  1. 1 ['Whether passages from a recorded conversation between Rogerson and his wife on 24 June 2014 were relevant and admissible.' 'Whether a recorded conversation on 7 August 2014 was relevant under s. 55 of the Evidence Act 1995 (NSW).' 'Whether the 7 August 2014 conversation was excluded by litigation privilege under s. 119 of the Evidence Act 1995 (NSW).' 'Whether the challenged evidence should be excluded under ss. 135 or 137 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The first challenged passage from the 24 June 2014 conversation had little probative value and was excluded because its probative value was considerably outweighed by the danger of unfair prejudice. The second challenged passage from that conversation was relevant and probative and was admitted. The challenged passage from the 7 August 2014 conversation was highly relevant to facts in issue concerning events at Padstow on 20 May 2014, was not shown to be a confidential communication made for the dominant purpose of obtaining professional legal services, and its probative value was not outweighed by unfair prejudice or the danger of being misleading or confusing; it was therefore admitted.

Court Disposition

Objection upheld in part and otherwise dismissed; challenged evidence admitted in part and excluded in part.

Orders

  • ['The first challenged passage from the 24 June 2014 conversation, at page 39 of the transcript, is excluded.' 'The second challenged passage from the 24 June 2014 conversation, at page 41 of the transcript, is allowed.' 'The challenged passage from the 7 August 2014 conversation, at page 158 of the transcript, is...