Written by Andrew Tiedt
July 11, 2016
Roger Rogerson and Glenn McNamara’s trial has ended with verdicts of guilty.
This high profile trial had been before the Supreme Court for a significant time. A first trial was aborted last year in peculiar circumstances, and suppression orders forbade reporting of the reasons why. A verdict having now been reached, those circumstances can be revealed.
According to the Sydney Morning Herald, the presiding judge discharged the first jury after McNamara’s barrister made reference to Rogerson being involved in “killing two or three people” whilst he was a member of the NSW Police Force.
That barrister was, at the instigation of the presiding judge, reported to the Supreme Court for investigation into whether he should be charged with contempt of court.
As a general rule, a jury (or a magistrate) cannot be told of a person’s previous criminal offending. This applies whether they have tried and convicted of the offences, or (as was the case with Rogerson) where no court had considered the matter.
There are exceptions to this rule. This includes when the defendant has attempted to prove that he or she is of good character, or when the defendant’s tendency to do a certain thing can be proved.
An example of what may be such a “tendency” might be where a convicted murder had a fixed modus operandi, and was being tried for a further murder that was strikingly similar.
Here it does not appear any of the exceptions applied, and as such any suggestion that Rogerson had killed before was unlikely to be admissible evidence.
It is of course speculation whether this information would have unfairly influenced a jury. Media reports suggested that the two defendants were blaming each other for the murder, and as such if one side was able to make the other look like an experienced killer then it may well have been crucial to the result.
In any event, the judge quite properly dismissed the jury, and when the trial was rerun (with McNamara represented by a different barrister) the case against him was proved beyond a reasonable doubt.