Joint trials

Yesterday, after deliberating for 6 and a half days, the jury found Roger Rogerson and Glen McNamara guilty of the murder of Jamie Gao.

That is the case where three men, Rogerson, McNamara and Gao, went into a storage facility and only two, Rogerson and McNamara, left alive.  Both Rogerson and McNamara were involved in disposing of the body.  Rogerson said that Gao was already dead when he went in; McNamara said that Rogerson shot Gao and that he assisted in disposing of the body because he was terrified of Rogerson.  Then there was the matter of the 3kg or so of the drug “ice” with which, curiously, McNamara was caught by the police in possession before Jamie Gao’s body had even been found.

It was a protracted trial.  There was a false start last year which led to the jury being discharged and Glen McNamara’s counsel, Charles Waterstreet, withdrawing from the case.  At the time I speculated what the problem could have been.

Now that the trial has concluded, a welter of interlocutory judgments has been published on the internet.  The numbering goes up to 56 though not every judgment has been published.

From judgment number 8, we can now read what Waterstreet said in his opening which caused Justice Bellew to discharge the jury.

The main remark objected to was:

“You might think, from Mr McNamara’s point of view, when Mr Rogerson pulled the gun out and shot Mr Gao, without any warning, without any ifs or buts, that the fear of Mr Rogerson was very apparent in the mind of Mr McNamara because he knew the reputation of Mr Rogerson. He knew that he had killed two, three people when he was in the Police Force.

So, when a threat was made by Mr Rogerson, who having killed someone threatened to kill Mr McNamara, you might think that Mr McNamara had good cause to be afraid”

There were other statements by Mr Waterstreet to which objection was taken.  The objection was that these (and the remarks above) went beyond what was permitted in such an address, which was made pursuant to section 159 of the Criminal Procedure Act, which relevantly provides that:

(1) An accused person or his or her Australian legal practitioner may address the jury immediately after the opening address of the prosecutor.

(2) Any such opening address is to be limited generally to an address on:

(a) the matters disclosed in the prosecutor’s opening address, including those that are in dispute and those that are not in dispute, and

(b) the matters to be raised by the accused person.

You can see how Mr Waterstreet got into difficulty.  One of Rogerson and McNamara must have killed Mr Gao.  The Crown’s case was that it didn’t matter which of them did it because there was evidence of a joint plan.  Inevitably, by bringing the matter to a joint trial, the crown could benefit from the spectacle of each of McNamara and Rogerson blaming the other.  But Justice Bellew held that this did not entitle Mr Waterstreet to start throwing mud at Rogerson or inviting the jury at this stage to speculate on evidence which might not be led.

I understand why counsel for Rogerson objected to what Waterstreet said, but I’m less moved by the objections of the prosecutor.  Despite any number directions to the jury, a joint trial must make it less likely that a jury will decide that neither party is guilty because the possible guilt of one raises a reasonable doubt as to the guilt of the other.  It’s the prosecution which chose to mount a joint trial in the first place.

We are also now vouchsafed the twitter post which put Waterstreet in the firing line for contempt charges and which also (from memory) led to a delay in the setting down of a fresh trial, though apparently no contempt charges are proceeding.

2 Responses to “Joint trials”

  1. Andrew Says:

    What an odd decision by the prosecutor. While there are cases where joint prosecutions are appropriate, surely this is not one of them. One of them killed Gao.

    • marcellous Says:

      Not really an odd decision by the prosecutor: it is favourable to the prosecutor to charge them both at once and the prosecution was never going to be able to prove which one killed Gao or even seek to do so. The whole point was that they had a plan and that they carried it out: getting the boat out (McNamara) and obtaining access to the storage facility and buying the car (Rogerson) were the main points in this.

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