R v Rogerson; R v McNamara (No 14) [2015] NSWSC 1157

JUDGMENT – EX TEMPORE (REVISED)

1. These proceedings first came before me in April of this year. During the months of May and June, and as it turned out, into the month of July, I heard and determined a number of pre-trial applications which had been made by one or other of the parties. During the week of 13 July, it became apparent that there had been an increase in the number of applications which were to be brought on behalf of the accused McNamara, about which little or no notice had previously been given. As a consequence of the necessity to deal with those matters, it became necessary for me to put back the original trial date from 20 July 2015 until 27 July 2015. Even at that latter point there were pre-trial applications which remained to be determined. Nevertheless, the trial was in a position to commence.
2. A jury of 15 persons was empanelled on 27 July and the Crown proceeded with his opening address which concluded the following day, July 28. Unfortunately, immediately following the conclusion of an opening address by Mr Waterstreet of counsel who then appeared for the accused McNamara, the jury was discharged. The reasons leading to my decision to discharge the jury on that occasion were, and remain, suppressed. The reason they were, and remain, suppressed, is because I have formed the view that to publicise them may have an adverse effect on the right of one of the accused to a fair trial.
   Read more here: https://www.caselaw.nsw.gov.au/decision/55cd75c8e4b0a51fc30ef2cc

Glen McNamara's barrister says Roger Rogerson murdered Jamie Gao

Former NSW detective Glen McNamara has accused his former police colleague Roger Rogerson of murdering Sydney student Jamie Gao "in cold blood" and then threatening to kill him and his family if he refused to help him cover up the crime, a court has heard.

In an extraordinary opening address to the murder trial of Mr McNamara and Mr Rogerson in the NSW Supreme Court on Tuesday, Mr McNamara's barrister, Charles Waterstreet, also told the jury that his client had not been involved in Mr Gao's drug dealing but was simply interested in him as a source for an upcoming book about Asian triads titled The Ice Age.

But the evidence to support these claims may not be heard for weeks, after the judge in the murder trial discharged the jury for legal reasons.

"Glen McNamara says that he's not guilty," Mr Waterstreet told the NSW Supreme Court before the jury was discharged "He says that he saw Roger Rogerson pull out the gun that he had a discussion with Mr Gao about the drugs and that Mr Rogerson shot Mr Gao in cold blood.

"Glen McNamara says that he knows nothing about having any gun in the shed or when he came into the shed. He had no idea he would pull a gun on Mr Gao. He was at all times, from beginning to end, the property of Mr Rogerson."

Mr Waterstreet went on to say that, after killing Mr Gao, Mr Rogerson pointed the gun at his client and "threatened to kill him and his family".

"Mr McNamara has two daughters and Mr Rogerson knew that. Mr Rogerson threatened to kill Mr McNamara and threatened to kill his daughters if Mr McNamara did not comply."

He said that Mr McNamara was in fear that Mr Rogerson would carry out his threat and that his actions from that point were conducted under "duress".

The Crown alleges that, after killing Mr Gao, Mr Rogerson and Mr McNamara dumped his body in the ocean off the coast of Cronulla the next day.

In response to the Crown's claim that Mr McNamara had met with Mr Gao on a number of occasions prior to the murder, Mr Waterstreet claimed that his client was doing research for a book.

He alleged that Mr Gao had been a member of the Sydney-based Asian triad Sing Wah prior to his death, and that Mr McNamara's book was about the role of the triads in importing and selling the drug ice.

"Mr Gao was a valuable source for Mr McNamara as a writer and he kept notes of all his meetings with Mr Gao," Mr Waterstreet said.

"The activity of Mr McNamara is one of innocence and one of duress. And one wonders – what do you do?"

Mr McNamara and Mr Rogerson are accused of murdering Mr Gao on May 22 last year in a south-west Sydney storage shed.

Four days later, police allegedly found 2.78 kilograms of the drug ice stashed in Mr McNamara's car. The Crown suggests the drugs were stolen from Mr Gao by Mr McNamara and Mr Rogerson, and that this was part of their "joint criminal enterprise" to kill or cause serious injury to Mr Gao.

But Mr Waterstreet said that his client had deliberately left the drugs there as "a trail of breadcrumbs" for the police to find. 

Earlier, Crown prosecutor Chris Maxwell, QC, showed a series of still images from CCTV footage which he said would be help to prove beyond reasonable doubt that both men shot and killed Mr Gao.

This included images allegedly showing that about 40 minutes before the murder, Mr Rogerson and and Mr McNamara visited the Padstow unit block, going into and out of the storage unit in which Mr Gao was about to be killed.

"Something unusual is happening you might think in unit 803 at this time shortly before Jamie Gao meets his death in the unit and it involves both men," Mr Maxwell said.

At 2.15pm Justice Geoff Bellew discharged the jury for legal reasons which cannot be reported. Another jury is expected to be impanelled, however this is expected to take a number of weeks.

Read more: http://www.smh.com.au/nsw/glen-mcnamaras-barrister-says-roger-rogerson-murdered-jamie-gao-20150728-gimf5l.html#ixzz3hFjf5CD3

Roger Rogerson and Glen McNamara on trial over murder of Jamie Gao in storage unit

AMY DALE CHIEF COURT REPORTER THE DAILY TELEGRAPH JULY 28, 2015 4:50PM

Source File here

McNamara’s barrister claims Rogerson killed Jamie Gao ‘in cold blood’
Rogerson then allegedly threatened McNamara’s family

Receipt for used car Gao’s body was in found in McNamara’s house

Jury shown CCTV images of alleged planning of murder

THE jury in the murder trial of Roger Rogerson and Glen McNamara has been discharged, a day after opening addresses began.

Justice Geoffrey Bellew told the 15 men and women this was due to “a legal issue which has arisen.”

“I have to make an order discharging you,” he told them.

“It would be inappropriate for me to go into reasons.

“Sometimes these things happen. It’s important both the accused in this case receive a fair trial.”

Earlier the court heard Rogerson shot Jamie Gao “in cold blood” and turned the gun on Glen McNamara, threatening to kill him and his family, McNamara’s barrister claimed in his opening address to the jury.

Image tendered to court allegedly showing Rogerson and McNamara dragging a silver surfboard bag out of the unit and into a car. It is alleged Gao’s body was inside to bag. Picture: Supplied

Jamie Gao had told his cousin shortly before his death that “street level dealing is below him”.

Rogerson, 74, and McNamara, 56, have pleaded not guilty to murder and supplying a large commercial quantity of a prohibited drug, the 2.78kg of methylamphetamine, known as ice.

Mr Maxwell led the jury through the series of images that shows McNamara, Rogerson and Gao arrive at Rent a Space Padstow after 1pm on May 20 last year.

The jury heard that McNamara and Rogerson appear to test the roller door four times in the 30 minutes “shortly before Jamie Gao meets his death in the unit”.

Roger Rogerson is alleged to have shot Jamie Gao in cold blood. Picture Craig Greenhill

CCTV footage shows Rogerson park his car behind McNamara’s at the storage unit before Gao’s body is removed in a silver surfboard bag.

Mr Maxwell said there is further footage of the pair buying a two tonne chain block at a Taren Point store, in Sydney’s south.

Gao’s body was discovered 2.5km offshore in Cronulla, six days after he was shot.

Glen McNamara is led out of a prison van at the King St Courts. Picture: John Grainger

The jury heard a search warrant of McNamara’s Cronulla apartment found the receipt for the white Falcon, which had been purchased in the name Turnbull, the keys to that car and the access code for the storage unit.

Mr Maxwell said to the jury that at the conclusion of the evidence “you will be satisfied beyond reasonable doubt of the guilt of both of the accused for murder and supplying a large commercial quantity of methylamphetamine”.

The Crown has already told the jury it does not have to prove which of the men was the shooter, as they were engaged in a “joint criminal enterprise”.

The trial continues before Justice Geoffrey Bellew.

Image tendered to court showing the drug ice which was found in a pillowcase. Picture: Supplied

Jamie Gao murder trial: Lawyer for Glen McNamara says Roger Rogerson shot student in 'cold blood'

By Ashleigh Raper and staff

Posted Tue at 1:54pm

The barrister for former police officer Glen McNamara has told a Sydney court it was fellow ex-cop Roger Rogerson who shot a 20-year-old student in "cold blood".

McNamara and Rogerson are on trial in the New South Wales Supreme Court for the murder of the University of Technology Sydney student Jamie Gao.

Yesterday the court heard from the prosecution that the two men allegedly killed Gao in a storage unit at Padstow in May 2014 over a drug deal gone sour.

The crown said CCTV cameras captured Gao entering the Rent-A-Space storage unit at 1:45pm on May 20 and 33 minutes later Rogerson and McNamara were seen dragging a silver surfboard bag from the shed and lifting it into a station wagon.

Gao's body was found floating in the sea by a fisherman off Cronulla six days later.

The body was in a silver surfboard bag which was bound in a blue tarpaulin tied with ropes.

In an opening address to the jury, defence barrister Charles Waterstreet, representing McNamara, said it was Rogerson who shot Gao twice in the shed and then threatened to kill his client.

He said McNamara's actions after Gao's death were undertaken in the shadow of that threat.

Mr Waterstreet said his client had "good cause to be afraid" and that Rogerson also threatened to kill McNamara's two daughters.

Earlier, the prosecution claimed that both men took part in planning the murder of Gao, but Mr Waterstreet told the court that McNamara "took no part in planning any murder".

The defence also said McNamara had "no idea" that Rogerson would bring a gun to the shed.

"The gun was at all time Mr Rogerson's ... from beginning to end," Mr Waterstreet told the court.

Yesterday, the court was told Gao met McNamara at a Sydney hotel and that they met on a number of occasions at a Hurstville hotel on the night and in the weeks before his death to arrange a major drug deal.

Crown prosecutor Chris Maxwell told the court Gao went to the meeting carrying 2.78 kilograms of methamphetamine, known as ice, and this package was found in McNamara's car two days after Gao's remains were found.

Jamie Gao death: Roger Rogerson and Glen McNamara hatched murder plot to kill student, court hears

By Jessica Kidd

Updated Mon at 6:41pm

PHOTO: Police allege Jamie Gao, 20, was killed during a drug deal gone sour. (Supplied: New South Wales Police)

MAP: Sydney 2000

Two men who allegedly killed Sydney student Jamie Gao during a drug deal hatched the plot as a joint criminal enterprise, a court has heard.

Roger Rogerson and Glen McNamara today went on trial in the New South Wales Supreme Court for the murder of the University of Technology Sydney student.

The court heard the two men allegedly killed 20-year-old Mr Gao in a storage unit at Padstow in May 2014.

In his opening address, crown prosecutor Chris Maxwell told the court CCTV cameras captured Mr Gao entering the Rent A Space storage unit at 1:45pm on May 20.

At 2:18pm on the same day, the same footage showed Rogerson and McNamara emerging from the storage unit, dragging a silver surfboard bag and lifting it into a station wagon.

The crown told the court Mr Gao's body was found by a fisherman floating in the sea off Cronulla six days later.

The body was in a silver surfboard bag, which was bound in a blue tarpaulin tied with ropes.

PHOTO: Glen McNamara and Roger Rogerson are on trial for the murder of student Jamie Gao. (ABC News: Vincent de Gouw )

The crown told the court a post-mortem conducted on the body revealed Mr Gao died of wounds caused by a 0.25-calibre handgun, and the doctor who performed the procedure would give evidence at the trial.

"He will say the cause of death was by two gunshot wounds to the chest, one of which perforated a major artery to the heart," Mr Maxwell said.

Mr Maxwell told the jury it was the crown's case that Mr Gao was murdered during the period after he entered the storage unit and when his body was dragged from the shed by the accused.

"What is abundantly clear is that Mr Gao was shot down behind closed doors at a point in time during this period," he said.

He told the jury the crown would not be able to establish which of the accused men was the shooter, but said that was not necessary to prove their guilt.

"Both were part of a joint criminal enterprise to kill, or cause serious injury, to Jamie Gao," he said.

Court told Gao met McNamara at a Sydney hotel

The court also heard that Mr Gao met McNamara on a number of occasions at the Meridien Hotel in Hurstville on the night, and in the weeks, before his death to arrange a major drug deal.

Crown prosecutor Chris Maxwell told the court Mr Gao told his cousin that "street-level drug deals were below him" and that "if you're going to do a deal you're better to do it in one big go".

The court heard that Mr Gao told his cousin that the deal with McNamara was "going to be massive" and that it "he was going to be rich".

Mr Maxwell told the court Mr Gao went to the meeting carrying 2.78 kilograms of methamphetamine, known as ice.

"He went to that meeting and stepped into that storage shed with the expectation that what was going to happen there was going to make him very rich," he said.

"Instead he was shot and killed ... and his body dumped out to sea."

Mr Maxwell told the jury the ice that Mr Gao took to the storage shed was later found in two separate parcels in McNamara's car at the Cote D'Azur apartments at Cronulla two days after Mr Gao's remains were found.

The drugs were secreted in two brown pillow cases, one of which was in a backpack found in the car.

The court heard Mr Gao first met Glen McNamara in early 2014 when he was acting as a Cantonese interpreter for a friend who was facing drugs charges.

Mr Gao's friend hired McNamara as a private investigator.

The crown will continue its opening address on Tuesday.

Former detective Roger Rogerson to go up against top prosecutor in Jamie Gao murder trial

Source file 

• BRENDEN HILLSCOURT REPORTERTHE SUNDAY TELEGRAPHJULY 05, 2015 12:00AM

CASE FILES - NSW Supreme Court from 26 May 2015 to 11 December 2015

CASE FILES from:  26 May 2015 to 11 December 2015

R v Rogerson; R v McNamara (No 15) [2015] NSWSC 1892

• Judgment of
• Bellew J
• Decision date
• 11 December 2015

Catchwords:

CRIMINAL LAW – Evidence – Accused charged with murder – Evidence of accused at shooting range before and after deceased’s murder – Whether evidence relevant

R v Rogerson; R v McNamara (No 14) [2015] NSWSC 1157

• Judgment of
• Bellew J
• Decision date
• 14 August 2015

Catchwords:

CRIMINAL LAW – Where counsel for accused given leave to withdraw from proceedings – Where accused left without counsel as a consequence – Necessity to vacate trial date – Referral of conduct of counsel to the Registrar with a direction that advice be obtained as to whether there has been a contempt of Court

R v Rogerson; R v McNamara (No 12) [2015] NSWSC 1099

• Judgment of
• Bellew J
• Decision date
• 11 August 2015

Catchwords:

CRIMINAL LAW – Evidence – Where counsel for accused opened to jury raising good character of the accused – Where Crown sought leave to cross- examine the accused and lead evidence of bad character in reply – Where advance ruling sought – Whether evidence would unduly add to the length of the trial – Whether evidence important – Weight to be attached to the evidence – Whether unfair to the accused – Advance ruling made granting the Crown’s application for leave   CRIMINAL LAW – Evidence – Where counsel for accused opened to jury raising good character of the accused – Where Crown sought leave to cross-examine the accused and lead evidence of bad character in reply - Where counsel for co-accused made application for leave to cross-examine on the same evidence – Where such application made independently of the application for leave made by the Crown – Whether evidence relevant and admissible – Advance ruling made refusing the application for leave   WORDS AND PHRASES – “Unduly”

R v Rogerson; R v McNamara (No 13) [2015] NSWSC 1120

• Judgment of
• Bellew J
• Decision date
• 10 August 2015

Catchwords:

CRIMINAL LAW – Practice and procedure – Jury trial – Necessity to ensure that there be no media publication of applications dealt with in the absence of the jury

R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066

• Judgment of
• Bellew J
• Decision date
• 06 August 2015

Catchwords:

CRIMINAL LAW – Evidence – Claim for client legal privilege – Where witness made a statement to the police – Where contents of statement made reference to legal advice provided to the witness in association with criminal charges brought against him – Where contents of the statement made reference to the charges having been the subject of discussion between the witness and his lawyers - Whether privilege lost

R v Rogerson; R v McNamara (No 10) [2015] NSWSC 1067

• Judgment of
• Bellew J
• Decision date
• 06 August 2015

Catchwords:

CRIMINAL LAW – Evidence – Application by Crown for view of locations relevant to the Crown case – Where view would assist the jury in understanding the evidence – Where application supported by both accused – Application granted

R v Rogerson; R v McNamara (No 9) [2015] NSWSC 1056

• Decision date
• 31 July 2015

Catchwords:

CRIMINAL LAW – Costs – Where Subpoena issued to the Australian Crime Commission for production of documents – Where Commission relied upon statutory immunity – Where statutory immunity and relevant authorities were drawn to the attention of the accused’s legal representatives – Where Commission repeatedly foreshadowed the making of an application for costs in the event that it was necessary to move to set the Subpoena aside – Where Commission afforded the accused’s representatives the opportunity to withdraw the Subpoena without seeking costs – Where matter proceeded to hearing and Subpoena was set aside – Whether costs should be awarded in favour of the Commission – Relevance of the right of an accused to a fair trial in determining whether costs should be awarded – Order for costs made in favour of the Commission

R v Rogerson; R v McNamara (No 8) [2015] NSWSC 1036

• Judgment of
• Bellew J
• Decision date
• 28 July 2015

Catchwords:

CRIMINAL LAW – Practice and procedure – Opening address to jury by counsel for accused following the opening address of the Crown – Where counsel commented upon suggested submissions which might be made by counsel for co-accused – Where counsel made reference to material which was prejudicial to the co-accused – Discussion of limitations placed upon an opening address by counsel for an accused - Where counsel’s address exceeded those limitations in a way which was prejudicial to the co-accused – Where application made by co-accused that the jury be discharged - Application granted – Jury discharged

R v Rogerson; R v McNamara (No 6) [2015] NSWSC 1015

• Judgment of
• Bellew J
• Decision date
• 27 July 2015

Catchwords:

EVIDENCE – Tendency Evidence relied upon by the Crown – Whether evidence met the test of significant probative value

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

• Judgment of
• Bellew J
• Decision date
• 27 July 2015

Catchwords:

EVIDENCE – Observations by witness as to demeanour of accused – Whether evidence of observations was evidence of opinion – Whether evidence relevant   EVIDENCE - Observations by witness of a “lump” in accused’s pocket - Where Crown sought to infer that the lump was a gun - Where deceased killed by a the hand gun - Where hand gun not recovered - Where observation of the lump was made several hours following the death of the deceased - Where co-accused asserting duress constituted by threats with firearm - Whether evidence relevant   EVIDENCE - Evidence threatening of statements made by the accused regarding the daughters of the co-accused - Where co-accused asserting duress constituted by threats with firearm - Whether evidence of statements relevant

R v Rogerson; R v McNamara (No 4) [2015] NSWSC 988

• Judgment of
• Bellew J
• Decision date
• 21 July 2015

Catchwords:

PRACTICE AND PROCEDURE – Juries – Where revised estimate of trial increased its likely length from 8 weeks to in excess of 12 weeks – Three additional jurors to be selected – No point of principle

R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965

Catchwords:

• Judgment of
• Bellew J
• Decision date
• 21 July 2015

EVIDENCE – Tendency evidence – Where both accused charged with murder and supplying a prohibited drug – Application by one-accused to rely upon certain evidence as tendency evidence – Whether such evidence relevant to a fact in issue – Whether the evidence went to the credibility of the co-accused – Applicability of Part 3.6 of the Evidence Act NSW 1995 (NSW) – Application refused   PRACTICE AND PROCEDURE – Applications by each of two co-accused for separate trials – Where both accused charged with murder and supplying a prohibited drug – Where Crown case in respect of murder count based upon a joint criminal enterprise – Where murder count and supply count linked - Where majority of evidence relied upon by the Crown admissible against both accused in respect of both counts – Where one accused foreshadowed application to cross-examine co-accused about prior criminal convictions – Where that same accused was allegedly threatened by co-accused – General principles applicable to the exercise of the discretion to order separate trials – Both applications for separate trials refused   PRACTICE AND PROCEDURE – Application by one accused for an order that the counts of murder and supply prohibited drug be tried separately – Where counts inextricably linked – No justification for separation of counts – Application refused

R v Rogerson; R v McNamara (No 7) [2015] NSWSC 1029

• • Judgment of
• Bellew J
• Decision date
• 14 July 2015

Catchwords:

EVIDENCE – Evidence of hearsay representations of deceased – Whether admissible

R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592

• Judgment of
• Bellew J
• Decision date
• 26 May 2015

Catchwords:

EVIDENCE – Two accused charged with murder and supplying a prohibited drug – Where proposed Crown witness was the daughter of one of the accused – Where witness made statements to police – Evidence of statements made to the witness by the Solicitor for one of the accused which were threatening in nature – Objection taken by the witness to giving evidence – Objection based upon likelihood of harm to the witness, as well as likelihood of harm to the relationship with her father – Balancing exercise – Objection upheld – Ordered that the witness not be required to give evidence   WORDS AND PHRASES – “likelihood” – “harm”

R v Rogerson; R v McNamara (No 2) [2015] NSWSC 619

• Judgment of
• Bellew J
• Decision date
• 26 May 2015

Catchwords:

PRACTICE AND PROCEDURE – Application to set aside Subpoena – Statutory immunity from production – Whether appropriate or necessary to cross-examine the deponent of affidavit in support of the application to set aside   PRACTICE AND PROCEDURE – Subpoena seeking production of documents by the Australian Crime Commission – Where Commission not required to produce documents unless (inter alia) necessary for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the Commission in performance of its functions – Where evidence that prosecution of accused was not so instituted – Subpoena set aside   WORDS AND PHRASES – “necessary” – “prosecution”

Former detectives Roger Rogerson and Glen McNamara face murder trial over Jamie Gao death

PHOTO: Police allege Jamie Gao, 20 was murdered at a Padstow storage unit during a drug deal gone sour.(Supplied: New South Wales Police)

ABC By Thomas Oriti

Updated 22 Jan 2015, 7:50pm

Police allege Mr Gao was murdered in a storage unit in the Sydney suburb of Padstow in May 2014.Former police detectives Roger Rogerson and Glen McNamara have been committed to stand trial over the death of Sydney student Jamie Gao.

It is alleged the 20-year-old was involved in a drug deal with Rogerson and McNamara that went sour.

Mr Gao's body was found floating in the water off Cronulla Beach.

Rogerson and McNamara appeared at Sydney's Central Local Court via video link on Thursday, sitting next to each other in prison greens.

They were committed to stand trial in the Supreme Court on March 6.

Bail was formally refused.

Rogerson's lawyer Paul Kenny told reporters outside court his client wanted the matter dealt with as quickly as possible.

"He just wants to get to trial as soon as possible. I think it's in the interests of justice to do things as quickly as we can," he said.

"I think you'll find in many respects, there might not be too much dispute in relation to the police case. So we're anxious to get to trial as soon as possible."

Mr Kenny added that Rogerson was "not in the best of health".

"He's doing the best he can, but he's being treated very well by Corrective Services, they're looking after all his medical needs," he said.