R v Rogerson; R v McNamara (No 5) [2015] NSWSC 1014

R v Rogerson; R v McNamara (No 5) [2015] NSWSC 1014

Subject to proper form, Jessica McNamara's evidence was admissible. Her observations of demeanour were not opinion evidence if confined to what she observed. Rogerson's statement about McNamara's daughters and tapping of his pocket were relevant to McNamara's asserted defence of duress on the drug count and should not be excluded under s. 135. The observation of a dark lump in Rogerson's pocket was relevant in the context of the Crown's circumstantial case and McNamara's proposed duress defence; Jessica McNamara's earlier untruthful assertion that she saw a gun did not remove the evidentiary basis for the Crown to invite the jury to infer that the lump was a gun.

Jurisdiction
Australia
Judgment Date
27 July 2015
Procedural Posture
Criminal Proceedings on Indictment for Murder, Drug Supply, and an Alternative Count of Accessory After the Fact to Murder / Procedural and Evidentiary Ruling on Admissibility of Evidence of Jessica Mc Namara
Outcome
Evidence allowed subject to any issue of form.
Legal Topics
['relevance' 'opinion Evidence' 'circumstantial Evidence' 'duress' 'discretionary Exclusion of Evidence' 'witness Observations' 'threat Evidence']
['criminal Law' 'evidence'] ['relevance' 'opinion Evidence' 'circumstantial Evidence' 'duress' 'discretionary Exclusion of Evidence' 'witness Observations' 'threat Evidence']

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Procedural Posture

Criminal Proceedings on Indictment for Murder, Drug Supply, and an Alternative Count of Accessory After the Fact to Murder / Procedural and Evidentiary Ruling on Admissibility of Evidence of Jessica Mc Namara

Legal Issues

  1. 1 ["Whether Jessica McNamara's observations of McNamara as skittish, uneasy and upset were opinion evidence or admissible observations." "Whether evidence of Rogerson's statement about McNamara's daughters and tapping his pocket was relevant to McNamara's asserted defence of duress and should be admitted." "Whether evidence that Jessica McNamara saw a dark lump in Rogerson's pocket was relevant and admissible where the Crown sought to invite an inference that it was a gun." 'Whether the evidence should be excluded under s. 135 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

Subject to proper form, Jessica McNamara's evidence was admissible. Her observations of demeanour were not opinion evidence if confined to what she observed. Rogerson's statement about McNamara's daughters and tapping of his pocket were relevant to McNamara's asserted defence of duress on the drug count and should not be excluded under s. 135. The observation of a dark lump in Rogerson's pocket was relevant in the context of the Crown's circumstantial case and McNamara's proposed duress defence; Jessica McNamara's earlier untruthful assertion that she saw a gun did not remove the evidentiary basis for the Crown to invite the jury to infer that the lump was a gun.

Court Disposition

Evidence allowed subject to any issue of form.

Orders

  • ['The evidence of Jessica McNamara set out in [10] and [11] was allowed, subject to any issue of form.']