Criminal Barrister in Hot Water

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He’s one of Sydney’s most well-known criminal barristers, but this won’t spare him from the wrath of court.

Charles Waterstreet, best known amongst laypersons as the inspiration behind the ‘brilliant but self-destructive’ barrister Cleaver Greene in the ABC hit series Rake, has been referred to the Registrar of the Supreme Court for investigation after he allegedly posted a photo on Instagram during the highly-publicised trial of Glen McNamara and co-accused Roger Rogerson.

The Instagram post (which has since been deleted) reportedly depicted Waterstreet and another male standing outside the Darlinghurst court building, and was posted early in the morning of August 7.

It was accompanied by a caption which, according to trial Justice Geoffrey Bellew, ‘may prejudice the rights of one of the accused to a fair trial.’ The content of the caption is not to be published.

Accordingly, His Honour was left with no choice but to vacate the trial just days before it was due to kick off on the 17th of August.

This means that the trial will not proceed on the scheduled date, and will instead have to be postponed until sometime next year – costing the court and taxpayers valuable time and money.

Commenting on his decision, Justice Bellew stated that ‘to say the vacation of the trial is unfortunate would be a gross understatement.’

Incredibly, His Honour warned the jury about using social media – but it was Waterstreet, a barrister with more than 40 years of experience acting in criminal matters – who made the slip-up.

Court Practice Notes state that in order to vacate (cancel) a trial date, there must be ‘cogent and compelling reasons’ to do so – and it must be in the interests of justice.

The trial has already been postponed once before – it was initially due to kick off on the 27th of July, but the jury was discharged for unknown reasons.

Rogerson and McNamara Accused of Murder

The Supreme Court trial centres upon 20-year-old UTS student Jamie Gao, who was killed in May last year, allegedly after a drug deal went sour.

His body was discovered in a silver surfboard bag floating off the coast of Cronulla.

Rogerson and McNamara, both former Police Detectives, are alleged to have murdered Gao on the afternoon of 20 May 2014 in a Padstow storage unit.

2.78 kilograms of methylamphetamine (ice) was located in a car parked underneath McNamara’s Cronulla unit.

This discovery, along with CCTV footage allegedly showing McNamara meeting with Gao the day before his murder, led police to suspect that the two accused persons were involved in supplying the drug to Gao – an accusation that both men have denied.

Further CCTV footage allegedly shows Rogerson and McNamara arriving at the Padstow storage unit at around 1pm on the 20th of May and testing the unit’s roller door several times.

Rogerson is said to leave the unit later on, before Gao arrives, enters the storage unit with McNamara, with Rogerson re-appearing two minutes later.

Around 30 minutes later, McNamara and Rogerson are allegedly seen loading a silver surfboard bag containing a heavy object into the back of a hire car – the receipt for which is found inside McNamara’s apartment, with Rogerson’s fingerprint on it.

Both Rogerson and McNamara are accused of murder and supplying a large commercial quantity of a prohibited drug.

The jury had previously heard four different versions of what occurred on the date of the alleged crime.

Crown Prosecutor Christopher Maxwell submitted that McNamara either shot Gao while Rogerson was inside the storage unit, or while Rogerson was outside.

He submitted, in the alternative, that Rogerson pulled the trigger while McNamara was inside the unit.

He argued that both men were involved in a ‘joint criminal enterprise’ to kill Gao, and should therefore both be found guilty of his murder.

But Waterstreet, who represented McNamara, submitted that Rogerson pulled the gun on Gao without warning, threatening to kill McNamara and his family if he didn’t comply. He then shot Gao in the chest twice.

According to Waterstreet, McNamara was totally unaware that Gao was to be shot.

Waterstreet May Be Charged With Contempt

Following the controversial Instagram post, which was reportedly also distributed through Waterstreet’s Twitter account, Justice Bellew referred the barrister to the Registrar of the Common Law Division of the Supreme Court for investigation.

Mr Waterstreet has since denied posting the image. He could potentially be charged with contempt of court if he is found to have done so.

Contempt of court is a common law public justice offence. It refers to any act:

‘which has the tendency to interfere with or undermine the authority, performance or dignity of the courts or those who participate in their proceeding.’

The offence requires proof that the publication has a ‘real and definite’ tendency to interfere with the course of justice in light of the nature of the material and the circumstances at the time of the publication.

It must be shown that there is a substantial risk of serious interference – either by influencing the judge, witnesses or jury.

Mr Waterstreet has since withdrawn from the trial, with former Attorney-General Greg Smith SC appearing on Mr McNamara’s behalf at the last court date.

But he still faces a criminal conviction if charged with contempt of court – as well as potential professional sanctions by the NSW Bar Association.

Media outlets have pointed out that there is an element of irony in the real-life Rake’s plight, as his on-screen adaptation spends time in prison during the series.

Perhaps it is a case of life imitating art.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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