Supreme Court New South Wales Medium Neutral Citation: R v Spicer [2013] NSWSC 1907 Hearing dates: 6 December 2013 Date of orders: 18 December 2013 Decision date: 18 December 2013 Before: Harrison J Decision: Application for separate trial dismissed Catchwords: CRIMINAL LAW – application for separate trial – s 21(2)(b) Criminal Procedure Act 1986 – circumstantial case – where Crown proposes to lead evidence against co-accused which is inadmissible against applicant – whether evidence highly prejudicial to applicant – whether potential prejudice can be quarantined by directions to jury – where scope for potential prejudice is limited – application dismissed Legislation Cited: Criminal Procedure Act 1986 Cases Cited: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Madubuko v R [2011] NSWCCA 135 Regina v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1999) 107 A Crim R 432 R v Abrahams [2013] NSWSC 729 R v Iskander [2011] NSWSC 1192 R v Pham [2004] NSWCCA 190 R v Symss [2003] NSWCCA 77 Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 Category: Procedural and other rulings Parties: Regina (Crown) Bernard Justin Spicer (Defendant) Representation: Counsel: C Maxwell QC (Crown) N Steel (Spicer) Solicitors: Director of Public Prosecutions (Crown) George Smirilios (Spicer) File Number(s): 2011/00410452 Publication restriction: Nil Judgment 1. HIS HONOUR: Bernard Spicer and co-accused Michelle Proud and Bradley Rawlinson have been jointly indicted for the murder of Katherine Foreman on 27 October 2011. By his notice of motion filed on 30 October 2013, Mr Spicer seeks an order that he be tried separately from his co-accused Ms Proud pursuant to s 21(2)(b) of the Criminal Procedure Act 1986. That provision is in these terms: "21 Orders for amendment of indictment, separate trial and postponement of trial (1) … (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment." 1. The application is based on several grounds as follows: 1. That evidence that is to be led by the Crown against Ms Proud, which is not admissible against him, will be highly prejudicial to him in a joint trial. 2. That there is a significant risk that this highly prejudicial material could turn a potential acquittal into a conviction. 3. That the prejudice is so great that it will not be overcome by directions. 4. That it is in the interests of justice for him to be tried separately from Ms Proud as a positive injustice would be caused to him by a joint trial. 1. The Crown opposes the application. Legal principles 1. These principles are well established and were not in issue. 2. Where co-accused are said to have been acting in a joint criminal enterprise, a joint trial is the norm: see Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 89. The applicant for a separate trial bears the onus of establishing otherwise. The applicant must demonstrate that there is a real risk that a positive injustice would be caused to him as a consequence of a joint trial: Regina v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1999) 107 A Crim R 432 at [6]-[13]. 3. In R v Pham [2004] NSWCCA 190, Adams J said this at [38]-[40]: "[38] In R v Baartman (unreported, Court of Criminal Appeal 6 October 1994) this Court approved the following summary of the relevant principles enunciated by Hunt J in R v Middis (unreported, NSWSC 27 March 1991), an approval repeated by Fernando [1999] NSW CCA at [210] – 'Briefly, the relevant principles are that: 1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and 2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and 3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.' [39] Two phrases in this summary need some explanation. In ordinary speech, 'immeasurably' usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant 'significant, though incommensurable'. The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to 'positive injustice'. Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence. [40] I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case." 1. These observations were approved in Madubuko v R [2011] NSWCCA 135 at [32]. In R v Iskander [2011] NSWSC 1192, Davies J also observed at [32], [35]-[36] as follows: "[30] If the first principle in Middis has been modified in Pham so that the issue is not, in the first place, a consideration of the relative weakness and strength of the Applicant and the co-accused's case respectively, the enquiry is a similar one - whether there will be a positive injustice to the Applicant by the evidence being likely to turn a potential acquittal into a conviction: Pham at [39]. But as Adams J goes on to point out, if the likelihood is real as distinct from inconsequential then there will be a positive injustice to the Applicant. … [35] Two things can be said about that. First, although the assumption is as the High Court set out, there is the sort of exception to that assumption contained in what Hunt J said in Middis and in the various cases that have followed it. The prejudice may be such that directions are unlikely to overcome the prejudice, and hence, the discretion in appropriate cases to order a separate trial. So, for example, in R v Mahmoud Chami [2002] NSWCCA 136 Ipp AJA (with whom Bell J agreed) accepted at [19] - [20] that despite careful and explicit directions it might be difficult for a jury to remain entirely objective. [36] Secondly, and particularly in this case where the Crown relies on joint criminal enterprise, it would be extremely difficult for the jury to understand that admissions made by one participant in the joint criminal enterprise had to be entirely put out of their collective minds when considering the evidence against the other participant in the same enterprise in circumstances where they considered that that evidence about the admissions was reliable. They could readily conclude that Andrew always had the requisite intention. Since the case is put forward as a joint criminal enterprise it would be difficult for the jury not to conclude, on the basis of that evidence, that the Applicant also had the requisite intention at the earlier time." 1. This decision is referred to in more detail later in these reasons. Background 1. The Crown alleges that Mr Spicer murdered the deceased Katherine Foreman at her home at Corrimal on 27 October 2011. The deceased died from burns she sustained when her house was set alight in the early hours of the morning whilst she was asleep. Mr Spicer accepts that he was present at the house on the morning of the fire and threw petrol from a bucket into the deceased's bedroom. It was then ignited by Wendy Evans, who has pleaded guilty to the murder. Mr Spicer has maintained in an ERISP that Ms Evans assured him that the deceased would not be home and that the fire was "just to scare the shit out of her." He said that the house was in complete darkness and that he did not know that anyone was in the bedroom. 2. The Crown proposes to lead evidence during the trial against Ms Proud, which is not admissible against Mr Spicer. He maintains that such evidence will be highly prejudicial to him. That evidence can be summarised as follows. 3. First, on 31 December 2011 Ms Proud is recorded during a legally intercepted telephone conversation with Peggy Case discussing Mr Spicer: "MP So, what did Nicky say --- PC Oh. MP ---about it all? PC I was fuckin' fuming. She doesn't care. MP No, about me and BJ? PC No, nothing', she said, you know, I don't believe that they'd ever kill anybody. PC She said you know your brother's a heartless idiot and he does stupid things, but I don't even think he'd ever do it. MP He did. PC Mmm. MP He did, though. PC …… MP Stupid idiot did it, fuckin' because --- PC …… MP --- she wanted it, fuckin', how stupid is he, Peg, seriously? PC He didn't know there was anyone in the house, did he? MP Yeah. PC Fuck that. How could you fuckin do' that to somebody? MP It wasn't supposed to happen like that, but I can't really talk over the phone, you know what I mean, you'll have to book a visit --- PC Yeah. MP --- and I'd have to tell you about, because they --- PC Yeah. MP --- record messages, so I can't really ---" [Emphasis added] 1. Secondly, later on 31 December 2011 Ms Proud is recorded during another legally intercepted telephone conversation with Peggy Case discussing Mr Spicer: "PC Did you know about it before or after it happened? MP After. PC Why did he do it? MP I'll have to explain it to you when I see you. PC I just can't, I feel sick now, I never ever, in my life, thought he would do something like that, intentionally. MP But don't tell anyone, you know what I mean, just, just don't let anyone know he's, he did, you know what I mean, like fuckin', he doesn't need his whole family against him over it, you, you know. PC Yeah I know. MP Like, he's gunna need support when he gets out, he doesn't need the whole family and --- PC He's not gunna get out. MP He's lookin' at 25 to life. PC He's not gunna get out." 1. Thirdly, on 1 January 2012 Ms Proud is recorded during a legally intercepted telephone conversation with Celia Todorovich again discussing Mr Spicer: "CT So, how does she feel about all this? MP She asked me yesterday, Did he do it, and I said, Yes, and she goes, He knew there was no one in there, and, I said, Yeah, and then she was a bit upset. She just didn't believe he could do somethin' like that, she knew he could do petty shit but, like I said to her, it's a long story, I can't say it over the phone, I'd have to explain it to her, because --- CT Yeah MP --- he literally didn't do it how she thinks he's done it, you know what I mean, but yeah --- CT So, he, he was led to believe there was nobody in the house, that right, or not? MP No. CT Oh, OK. MP It's, I, it's hard to, because --- CT Yeah. MP --- my phone calls get recorded. CT Yeah, I know, love, no don't worry … MP But, yeah, I'd have to explain it to you more, when I see you next, how it really, what --- CT … MP --- really happened, for it to go like that, but yeah, it was only supposed to be a scare, not this total thing that it's turned out to be. CT Yeah. MP Yeah. So I'll have to explain, I can't explain it over the phone." [Emphasis added] 1. Fourthly, Ms Proud is secretly recorded on a listening device installed at 26 Karangi Road, Whalan speaking with Danielle Gallagher in the course of a conversation on 15 December 2011: "MP Can you keep a really, really big secret if I told you. You can't tell anyone. Got this letter I am being investigated by the Homicide Team. When I lost my licence my friend had a friend that was a solicitor for her and they ended up having a fight. She started getting people after her and that. She asked BJ if he could go down there and do something about it with her. That night we went down there they went down there they went and got fuel and they weren't supposed to kill her but they ended up killing her when they lit the house on fire. DG Who lit the house on fire? MP BJ and Wendy, it was only supposed to be a warning thing for her to back off but they actually ended up killing her cause she didn't run out of the house or anything and the house exploded. There was some gas or something in there and it just exploded it wasn't meant to happen. We're trying to find a story to keep BJ out of it. Cause as far as I they know I spoke to Wendy, Wendy came up here to pick us up and the story we are going to tell them is BJ booked the Hotel under his name because I wasn't home to do it and Wendy came to pick me and the three kids up and had to come back to pick my step daughter up to give us a holiday down there … … DG Is he upset? MP He was sick when he found out on the news she was killed. It was in the news the next day. He wasn't supposed to kill her; he was supposed to warn her to back off because she is a very nasty girl. The bloke Wendy is with now was her ex husband because she was fuckin' every copper she was fuckin' the, she was getting away sending people. She put her ex husband in hospital with concussion by hitting him with pots across the head and that. And they had enough and she got people out on Wendy and her kids. DG How did they know that BJ was involved? MP No one knows that BJ is involved Wendy just told them that she spoke to me on the night it happened. That's why I have been brought into it. Don't tell BJ I told you. Don't say anything to anyone he will kill me. But it wasn't supposed to kill her it was just a warning thing. When they left apparently the house blew up because it was gas and it killed her instantly. DG (inaudible) MP No. No. Well he is not going to get caught cause if Wendy doesn't come undone which she hasn't yet. (knock on door) hang on. DG (inaudible) MP The story is to keep BJ out of it is that when BJ booked the hotel under our name we went there cause we were there all night, meant to be all night. How am I supposed to go anywhere with four fuckin' kids you know that late at night. It happened at 2.30 in the morning. DG I do not know … (inaudible) MP No we are not saying BJ was there at all. BJ is finding an alibi now saying he stayed here it was just me and the kids that went down and Wendy came to pick us up and then she had to come and pick my step daughter up cause they have got it all on thing that she had done two trips up here. Took us down. DG Is that the one who died who did the trips. MP It's the one who organised this woman to be done. DP Are you not talking to this woman now? MP No. No. I knew she was talking to the Police about it but she was using me as an alibi. DP I think I remember hearing about this on the news. MP Well it was a big thing. She was a high up solicitor. DP So what was the headline on the news? MP Fuck there was heaps. Solicitor killed … They have already told Wendy they have got no evidence who has done it. There was no evidence left behind no nothing. They can't prove anyone. The only reason they are hounding Wendy and that was that Wendy used to be best friends with her. DP (Inaudible) MP But it wasn't supposed to kill her they were only supposed to warn her to back off. DP So was she in the house. MP She was in the house asleep. DP (Inaudible) MP She woke up. See all BJ was supposed to do, like I say BJ all you do is you go in there mess her up a bit. I said damage her face because she thought she thought she was crash hot so that cause she could fuck anyone she wanted and that, I said damage her face and what not bash her a bit and that put her in hospital to the point her face cant be fixed and that because coppers never believed Wendy that Katie was doing all this shit. Katie was a nasty woman when I met her too. The stuff with Wendy's ex Scott who is in jail now. What she was planning on doing to Scott for what Scott did to Wendy. She was going to have Scott done in jail. She was going to have Scott killed in jail this Katie girl bit nobody believed Wendy's story cause Katie was well with the Judges she was fucking every copper in Wollongong and all this and that so Wendy asked if the knew anyone who could to the job. She would pay them and … DP Is that why you were getting the money? MP Yeah. And BJ said we need the cash cause we wanted it to get another car. She … BJ said I will do it for you Wendy. It wasn't supposed to [kill?] her it was just supposed to scare her. DP (Inaudible) MP They have got nothing no evidence. … BJ will get 25 to life if he gets caught. She is ringing me back tonight so we can go over the story." [Emphasis added] 1. Fifthly, there is material contained in Ms Proud's ERISP dated 21 December 2011. Ms Proud was not present at the premises when the fire was lit. Even though the material in question is unlikely to become evidence against any accused in a joint trial, Mr Spicer relies upon it at this stage as material that, if admitted against Ms Proud, would not be admissible against him, and would necessarily have to be made the subject of a specific direction to the jury to that effect. The portion of the ERISP in question is as follows: "Q492 OK. And both BJ and Wendy went into the house? A (NO AUDIBLE REPLY) Q493 And who poured the petrol? A BJ. Q494 And, and Wendy… A Lit it. Q494 …lit it. OK Where was, where was Katie? A In her bed. Q495 OK. Was she asleep? A I don't know. Um, I think she woke up 'cause she heard noises or something. Q496 Where were you when this was happening? A I was at the motel with the four kids." [Emphasis added] 1. It is accepted that all references to BJ are references to Mr Spicer. Submissions 1. The Crown proposes to tender these recorded conversations in the trial in the case against Ms Proud as admissions made by her. The Crown will seek to rely upon this evidence to prove her knowledge in relation to what occurred. These admissions are not admissible against Mr Spicer. In particular, Ms Proud's assertions as to Mr Spicer's involvement generally, or his knowledge of whether the deceased was in the house at the time in particular, are not admissible against him. 2. It was submitted on behalf of Mr Spicer that in a joint trial, the telephone intercept and listening device material will be played to the jury and that there is a real risk that the Crown case against him will impermissibly be made immeasurably stronger. That is said to be because even a properly directed jury will be unlikely to disregard Ms Proud's statements that Mr Spicer was aware that the deceased was in the house at the time. Mr Spicer is concerned that such a jury will not realistically be able to disregard what Ms Proud has said about him when speaking to third parties, and that her statements that Mr Spicer knew that the deceased was present, even though not evidence in the case against him, will influence their deliberations in a highly prejudicial way. 3. Mr Spicer is concerned that even though the jury would be directed that it must consider the evidence against each accused separately, and that it could not use this evidence in considering the case against him, there remains nonetheless a very real risk that the jurors will be unable to comply with such a direction. Whether that failure were conscious or unconscious, it would if it existed lead to an unjust result in his case. 4. It goes without saying that Mr Spicer contends in these circumstances that evidence of this type led in a joint trial would create a prejudice that could not be overcome by directions. He is concerned that there would be a significant risk that this highly prejudicial inadmissible material could convert a potential acquittal into a conviction. He maintained that it is in the interests of justice that he be tried separately from Ms Proud as a positive injustice may otherwise be caused to him by a joint trial. 5. The Crown has submitted that there are many joint trials that occur regularly in which this very situation arises. Judicial directions crafted to alleviate the prejudice, by explaining what material is admissible, and what material is inadmissible, are regularly given. The Crown contends that Mr Spicer's arguments assume that the jury will disregard such directions and act contrary to them. That argument is not in accordance with long established judicial authority. The Crown submitted that I should assume that jurors will do what their oath requires them to do, which is to consider the evidence impartially, to follow directions of law that they are given and not to be influenced by material that they are directed is inadmissible against Mr Spicer. I was referred to Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [31] and R v Abrahams [2013] NSWSC 729 at [55]. McHugh J's comments in Gilbert are worth repeating: "[31] The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it. But that only means in Lord Mansfield's words that, although '[i]t is the duty of the Judge ... to tell the jury how to do right ... they have it in their power to do wrong'." 1. The Crown has also contended that the evidence to which the current application relates must be considered against the background of the admissible case against Mr Spicer. In particular, the Crown contends that there is admissible evidence that suggests that Mr Spicer did know that the deceased was present in the bedroom when the fire started. The allegedly prejudicial effect of the inadmissible material had, on this view, to be assessed against the admissible evidence that the Crown contends supported the proposition that Mr Spicer knew that the deceased was in her bedroom. In a contextual way, the alleged prejudice would be lessened or minimised because the jury could arguably come to a conclusion adverse to Mr Spicer about the extent of his knowledge independently of the inadmissible material. 2. The burden of this material, contained in Mr Spicer's own ERISP dated 21 December 2011, is to the effect that he was aware that Ms Evans wanted to "hurt" the deceased, as opposed merely to frighten her. Additionally, Mr Spicer gave an account of there being illicit material, apparently recorded on the deceased's mobile phone located in her bedroom, about which Ms Evans was concerned or sensitive. The Crown contended that throwing petrol into the bedroom, as opposed to calmly searching for the mobile phone and taking it if he knew the deceased was not there, was more consistent with her presence in the bedroom than otherwise. This is referred to below. 3. The Crown accepted that there might be exceptional cases where a separate trial should be granted. This was not such a case. Consideration 1. I raised with the Crown the question of whether or not much, if not all, of the material to which Mr Spicer objected might either be excluded in response to objection by Mr Spicer if the Crown insisted on leading it, or in advance of that whether the Crown might not lead it in the first place. All parties recognised those possibilities as likely. They appeared very likely to me. As I cannot be certain of the answer to my inquiry, however, I have proceeded to determine this application principally upon the basis that the material in question remains potentially evidence that the Crown might seek to lead in the case against Ms Proud. 2. Mr Spicer's ERISP will in due course presumably be tendered as part of the Crown case against him. Some portions of it are instructive for present purposes. They are as follows: "Q69 What was the conversation you and Wendy had in the car on the drive down to Wollongong about, about Katie? A About Katie? Q70 Ah hmm. A She just told me that she's just been fucking her around. Like, Katie had a hit out on Wendy and the police knew about it but they weren't doing anything because, like, Katie was sleeping with the police. And just shit like that. Wendy's an idiot. Q71 Was there talk of any action that Wendy might have taken against Katie? A Oh, she turned around and said that she was going to get her, she wanted to hurt her. Q72 Did she specify how that was to occur? A No. Q73 Did she, did she ask you to help with that? A She did, but I turned around and said I didn't want anything to do with it. Q80 BJ, once we presented Michelle with the weight of evidence that we had gathered, she then told us certain things about what happened. About the reason for travelling to Wollongong. About your movements from the motel at Windang on the night of the 26th. Your association with Wendy Evans and discussions that you and Michelle had the following morning, O.K. So before you answer my questions, I want you to think about that, O.K. What can you tell me about what happened the night of the 26th of October? A This is fuckin' bullshit man. It wasn't supposed to happen. Q81 What happened? A Wendy rang me up, she'd had enough of this Katie chick fuckin' doing all this shit to her and that, threatening the kids, everything like, and about Scott. I wouldn't worry about Scott, Scott's a dickhead you know what I mean? But, and then she turned around, they told me no one was going to be home to start with --- Q82 Ah hmm. A --- and all they wanted to do was scare her. So I turned around and I said to her, 'What are you going to do?' She goes, 'I don't know'. She goes, 'Burn her car or something'. I turned around and said, 'All right, whatever'. Well they turned around and they offered me three grand. Q83 Who's they? A Well, Wendy, Wendy turned around and said Brad would pay me three grand to do it. Q84 O.K. A I turned around and I said, 'All right'. And set her car on fire, you know what I mean, like, well they put $1,000 in me sisters TAB account and Wendy come and picked us up. Q85 On that day? A On that day. Then I turned around and said to her, what did she want me to do? She turned around and she goes, 'Look, I'm going to get, Brad's going to give me the keys, all you have to do is just run inside or whatever, throw a bucket of petrol down and light it'. Q86 Ah hmm. A And I said to her, I said, 'But what about if Katie's there?' She goes, 'She won't be, I swear to you she's not going to be home'. I turned around and I said, well, I was a bit iffy about it, you know what I mean, like, but they had put the money in. And then she turned around and started saying to me like, 'I swear to you, she's not going to be home'. She swore, like, no one else is going to be there, all it was just to scare the shit out of her. Q87 Ah hmm. A So when she picked me up, like I said, I went to K-Mart, I got a container, went up the servo, filled the container. And then Wendy turned around and said that she was going to come in with me. I turned around, I ran up the stairs, I threw a bucket of petrol on there. Q88 Where? A In a room. Q89 Ah hmm. A Wendy turned around and threw a jiffy firelighter thing in there and the thing just exploded. Q90 While you were still in the house? A Yeah, while I was standing up the hallway. Q91 Did you get any injuries from that? A No. Q92 What happened then? A I was out of there. I was gone. I wasn't sticking around. And then the next day I seen on the news that someone was in the house. I rang Wendy up and what, what am I supposed to say to her? She's just fucked me over for life. Q93 Where was the room? A All, all I did was ran up the stairs, she said run up the stairs and she was right behind me and I went to throw it up the stairs and she turned around she goes, 'No, turn to your thing and throw it'. Q94 When you say turn to your thing, turn… A Like turn to your right. Q95 Yeah. A And she goes, 'Just throw it in there.' Because there was something about, in this room there was supposed to be videos or something of Wendy doing stuff or getting stuff done to her and that. That's all I did. And I was out of there. Q96 Did you see inside the room? A No, it was pitch black in the whole house. Q97 Did you know if anybody was in the room? A No. Q209 What did you think was going to happen when you bought the petrol? A Like I, like I said all I, bought the petrol, all I, what do you mean what do I think was going to happen? Q210 Do you think that there was going to be some damage to property? Did you think you were just going to go and light a bonfire somewhere? What did you think would happen, was going to happen when you bought the petrol? A When I bought the petrol all I thought I was doing was just going to throw it over the car and that was it. Q211 And then why did it change to a room? A Oh, because all of a sudden the phone was supposed to be in the room and not in the car. Q212 The phone? A Yeah, there was something about this phone, that's all she kept carrying on about was a mobile phone that had pictures and, of Wendy being, like having things stuck inside of her and all that. And it was just the phone that she wanted. I told her I'd sooner walk, like go up there and get the phone out of the house. Q213 How did she know the phone would be in that room? A I don't know. Q214 Do you know what sort of room it was? A No. Q215 Did you know if it was a lounge room, a bedroom, a bathroom, a kitchen? A Oh, she said it was a bedroom. Q216 Ah hmm. So Wendy told you it was a bedroom? A Yeah, she said there was heaps of stuff in there, like, that Wendy, that was, I don't know if it was discriminating against, well it would have been discriminating against Wendy because it was photos of her and everything like that." [Emphasis added] 1. The Crown contends that this material supports a strong case against Mr Spicer and that a jury would be entitled upon this evidence to be satisfied beyond reasonable doubt, in the wider context of the whole of the evidence in the case but exclusive of the material to which exception is taken, that he was aware that the deceased was or may have been in her bedroom at the time of the fire. Alternatively, to the extent that it remains instructive, the Crown contends that the case against Mr Spicer on the issue of what he knew concerning the whereabouts of the deceased is not weak. 2. There is also other material to which the Crown has pointed in this context. Evidence led at the committal proceedings included forensic material concerned with the cause and probable seat of the fire in the deceased's bedroom. Two experts gave evidence about this. 3. First, Superintendent Robert Alexander from the Fire Investigation and Research Unit with the New South Wales police service. He was cross-examined by Mr Steel about pour patterns inside the bedroom as appears below: "Q. When you're expressing the term pour do you mean someone inside the room pouring it? A. Yes. Q. But that's a very large area, like several metres isn't it, where there's been petrol poured over? A. What I get from the burn patterns, the damage to the edge of the carpet is that there has been a pour from that western wall around the side of the bed towards the doorway. Normally when people use a liquid accelerant they light the fire from the doorway. … Q. Wouldn't you expect that if petrol had been poured alongside the northern side of the bed there would have been a deep charring along the exposed area where the carpet would have been, not underneath the bed? A. Well, as I said, it's a liquid and it flows to its lowest point and those points that I highlighted in that image which 87 shows pretty well were the lowest points. Now, the thing that you take into account is it's not just being poured on this wooden floor, it's being poured on carpet. So it's got to penetrate it, it's got to run to the lower point. So there'll be a certain amount of residue staying in the carpet and that residue is going to combust before the item, before the petrol underneath it or the liquid accelerant. Q. Given that, you couldn't rule out conclusively that the burn pattern you saw was inconsistent with it being thrown into the room from a bucket rather than someone walking in the room, could you? A. What I find hard to understand with a bucket being thrown into the room is how we've got two areas of heavier damage and areas in between and not. So if you imagine a bucket being thrown how do they concentrate two areas in those two spots? Q. Well, one explanation would be it hitting the western wall and flowing down there, and that's one explanation, and some on the bed, and the bed protecting the floor area except for runoff underneath, correct? A. Yes. Q. And the other one would be an additional throw to the other area where the low point in the room in the north-eastern corner, correct? A. So there was more than one throw? Q. Well, if there was is that consistent? A. Yeah, that could be consistent, yes. Sorry, I thought you said there was one throw, my apologies. Q. No, I did initially indicate that to you, but if it was two throws it would be consistent, is that right? A. Yes, it's possible." 1. Secondly, Detective Senior Constable Suzanne Payne from the Forensic Services Group at Wollongong Police Station. Some of her evidence was as follows: "Q. Your conclusion there at paragraph 15 what do you say generally about those areas of greater fire damage? A. My conclusion is that this fire was an incendiary or deliberately lit fire using petrol to accelerate the fire. The physical evidence is consistent with petrol having been poured in the northeast corner of the bedroom and on the bed. The petrol has flowed down behind the bed head that was against the western wall and also coated the bedside table on the northern side of the bed. The deceased was either in bed at the time it was dowsed or has come in contact with the petrol and flame at some point and in doing so her clothing has ignited. She has left the bedroom collapsing where she was located in the alcove. There was no other injury or trauma located on the deceased. There was no signs of disturbance in the house nor signs of a forced entry. A number of doors were unlocked at the time of my examination. … Q. What he indicated to the police in his interview is that he was responsible for throwing a bucket of petrol into the room while standing at the doorway, just the contents of the bucket and the area of damage that occurred to the western wall, the bed head area and where marker 3 and marker 5 was that would all be consistent with petrol having been thrown from the doorway location perhaps hitting the bed head, someone on the bed and the wall and seeping down behind, would you accept that? A. Yes. Q. And certainly in what occurred in the north-eastern corner that would be consistent with an additional throw of petrol into that area is that correct? A. Yes." 1. There will be a significant contest at the trial of what this and similar associated evidence about burn patterns and the like reveal about the position from which Mr Spicer threw or poured the petrol that accelerated the blaze, and the extent to which if at all he was in a position to see the deceased in her bed when he did so. It is sufficient for present purposes to observe that there is competing evidence about these issues. The inferences favourable to Mr Spicer are not necessarily the only inferences available. 2. The evidence that is likely to illuminate Mr Spicer's knowledge about the presence of the deceased in the house or the bedroom is predominantly, if not completely, circumstantial. His own ERISP contains no admission and on the contrary contains a denial. Other material in that ERISP might reasonably be thought to support a view at odds with that denial, but only inferentially. Anyone else's opinion about it, which is the bulk of the material that Mr Spicer is concerned has the potential to deny him the opportunity of an acquittal, is not admissible against him at his trial and is likely to be excluded in any event. Both the direction to the jury about its inadmissibility in the case against Mr Spicer and the jury's ability to comprehend and comply with that direction are of great potential significance. The question is whether the balance between the prospect that the evidence will adversely and prejudicially affect Mr Spicer's chance of an acquittal on the one hand, and the utility and effectiveness of any necessary direction to counter that prospect on the other hand, sufficiently weighs in favours of a separate trial. 3. The evidence of the intercepted conversations and the ERISPs is not strong. It is no more than a quite limited collection of conversational hearsay suggestions by some of the various participants that Mr Spicer knew that the deceased would be present in her bedroom. The statements do not explain, beyond mere assertion, how it is that the speakers "knew" what Mr Spicer's state of knowledge was at the time or how that asserted and proclaimed so called "knowledge" on their part came to be acquired. 4. It will be recalled that in Iskander Davies J was persuaded to order separate trials of the applicant father and his son Andrew Iskander, who were jointly accused of murdering the wife's/mother's lover. The allegedly prejudicial material about which the applicant was concerned included evidence from a school friend of Andrew Iskander about what Andrew had told his friend shortly after the killing. Those statements included details of how Andrew's father allegedly stabbed the deceased, including: "And then pretty much what they did was that they attacked him, eh (sic) smashed a hammer on his forehead and the he (sic) was nearly dead and his dad finished him off with a couple more stabs, into the back and stuff like that. … He just said he got a hammer or something and then he smacked him in the forehead and that's pretty much all he said and that he was nearly about to die and his dad finished him off with the knife so pretty much that's what he told me. … He indicated me like his dad finished him off and stabbed him so I'm presuming that pretty much had the knife." 1. Andrew Iskander also spoke to a fellow prisoner while on remand awaiting trial. That prisoner gave a statement of what Andrew Iskander told him, which included the following: "[4] ... I asked him what happened. He told me that he and his father were going to knock this guy. I asked him why, and he told me that his mum was having an affair with this guy. I asked him whereabouts, and he said, 'Outside of where the bloke lived'. He told me he did this in February this year. [5] He told me the first plan was to kidnap him, tie him up and take him in the boot to Woolloomooloo. Once they were there, they were going to kill him there. He told me the first thing that happened was his Dad hit him with the car. The man fell, and Andrew got out and chased him around the car. As Andrew got to him, Andrew hit him with the hammer. [6] Then the father jumped out of the car and stabbed the man with a knife. He told me that his father stabbed the man twice. They took off in the car they were in. Andrew told me that his father told him to get rid of all the evidence." 1. This evidence went directly to the issue of the father's physical involvement in the killing of the deceased. It was evidence that included particular details of how the father stabbed the deceased in circumstances where provocation was raised and where it was potentially inimical to that defence. It was not admissible in the father's trial and yet it would have been difficult for the jury to put out of their mind a statement by the co-accused son that directly placed his father at the scene and involved in acts of violence against the victim that were arguably premeditated rather than responsive or reactive. 2. In the present case, there is undisputed evidence that Mr Spicer was physically involved in the events that caused the death of the deceased. Mr Spicer has made admissions to that effect. That includes evidence that he threw petrol into the bedroom. There is also evidence that he was interested in the presence of the deceased's phone located in that room. The Crown case will be that the pour and burn patterns suggest that he could not have thrown the petrol from the doorway but that he must have entered the room. The Crown contends that this material is all consistent with a positive case from which a respectable inference could be drawn that Mr Spicer must have known the deceased was present in the bedroom, so that the possible or potential prejudice arising from the material that is objected to is small by comparison, or alternatively non-existent if it is either not led or is rejected. That prejudicial material, by way of contrast, consists of limited and inadmissible hearsay assertions by a co-accused who was not present at the scene concerning what she believed to be Mr Spicer's state of mind or state of knowledge at the time. 3. In Regina v Patsalis & Spathis [No 1] at [6] Kirby J said: "[6] There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (R v Oliver (1984) 57 ALR 543)." 1. In R v Symss [2003] NSWCCA 77 at [68] Sheller JA said: "[68] The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts." 1. The extent to which Mr Spicer will suffer prejudice depends upon what the evidence properly admissible against him is capable of establishing. 2. The cases against Mr Spicer and Ms Proud are different and distinct. The case against Ms Proud will presumably be based upon her knowledge and agreement to commit the joint criminal enterprise before it occurred. The issues in her trial are therefore likely to be whether she was ever aware that petrol would be thrown into the deceased's bedroom, and that with such an awareness she either participated, or continued to participate, in the enterprise. 3. The case against Mr Spicer involves the narrower issue of whether he knew the deceased was at home at the time that he threw the petrol into her bedroom. It is not controversial that he was involved in at least a joint criminal enterprise to do that. His case, however, is that the scope of the enterprise was limited to arson, and that he relied upon the assurances given to him by Ms Evans that the deceased was not at home. His case will be in those circumstances that he had an intention neither to kill nor cause really serious injury when he did what he did. Alternatively, Mr Spicer will contend that he did not foresee that such an act would probably cause the death of the deceased. 4. The Crown case against Mr Spicer is wholly circumstantial in relation to his knowledge and awareness of whether or not the deceased was home at the time. He takes issue with the proposition that the case against him is strong. Before he could be convicted of murder or manslaughter the Crown would need to prove beyond reasonable doubt that he knew or was aware at the time of the act causing her death that the deceased was present in the home. In order to prove that beyond reasonable doubt, the Crown will have to establish that there is no other reasonable conclusion from the circumstances other than he had the requisite knowledge or awareness. The Crown will have to eliminate as a reasonable possibility that Mr Spicer was told by Ms Evans that the deceased was definitely not home and that he believed and relied upon these assertions by her. 5. There is no direct evidence in the Crown case that Mr Spicer was aware that the deceased was at home at the time. The nature and extent of the prejudice said to arise from the inadmissible statements made by Ms Proud about his knowledge have therefore to be assessed in that context. Mr Spicer submitted that the prejudice is "enormous" and that the Proud material does make the case against him immeasurably stronger. Mr Spicer submitted that it would be asking too much of the jury to put to one side as inadmissible any material that conveys an impression that Mr Spicer knew that the deceased was in the house. In particular, it is said that it is a relevant consideration that the source of the material is not merely from a co-accused in a joint criminal enterprise but from Mr Spicer's de facto partner. The fear is that the jury in such a case would be likely to find the statements to be highly credible. 6. Mr Spicer contended that it would be, "virtually impossible, as a matter of common sense, for a jury to disregard this prejudicial material in their consideration of the case against" him. 7. The Crown contends that there is a strong circumstantial case, which is capable of establishing that Mr Spicer either knew that the deceased was present in the home at the time or was at the very least recklessly indifferent to whether she was there or not. 8. The offence took place at around 2.30am. Mr Spicer knew it was the deceased's home. Her car was parked in the driveway. Mr Spicer had spoken with the co-accused Ms Evans prior to the offence about how she wanted the deceased hurt. Telephone records allegedly show that Ms Proud and/or Mr Spicer and Ms Evans made contact on 38 separate occasions in the twelve-hour period between 2.18pm on the afternoon before the fire and 2.59am the following morning. Mr Spicer had driven from Sydney to Wollongong with Ms Evans the day before the fire. The deceased's bedroom was very small, and it is entirely conceivable that the jury might be satisfied that even if Mr Spicer had not entered it he would nonetheless have been aware that the someone was asleep in the bed. The fire expert evidence indicates seats of fire consistent with petrol having been poured at two locations within the bedroom. Mr Spicer initially denied in his ERISP even going to the house until confronted with listening device product. The Crown contends that his denials are lies evidencing a consciousness of guilt. Mr Spicer was also paid for his role. There is evidence that he belligerently demanded the balance of this money after the event in a way that the Crown submits is consistent with an awareness of the successful completion of the job. The Crown also contends that an inference is available that Mr Spicer was with Ms Evans when she received a text message from the co-accused Mr Rawlinson, who had been with the deceased earlier in the evening, telling Ms Evans that the deceased was by then asleep in her bed. 9. In all of these circumstances the Crown submits that the prejudice associated with the admission of the Proud material, if it is admitted, is "fairly minimal" considering what the admissible evidence against Mr Spicer alone is potentially capable of establishing. Can it therefore be said that the case against Mr Spicer becomes immeasurably stronger if the Proud material were heard by the jury? 10. The case against Mr Spicer for murder is fairly strong. It establishes in its own right at least an intention to inflict serious bodily harm upon the deceased or a reckless indifference to her life. Each of these possibilities is capable of being established by the fact that Mr Spicer took an extremely flammable substance to the deceased's home to set her bedroom alight without doing anything beforehand to establish, consistently with his denials that he did not intend to harm her, that she was in fact not there at the time. There is an available conclusion that Mr Spicer did know that she was there. 11. In my opinion the potential prejudice is small. This is for at least five reasons. First, the prejudicial material complained of is in a narrow compass. It consists of statements made by only one person, not in Mr Spicer's presence, and he otherwise and elsewhere denies its truth. The inadmissible evidence is therefore quite confined, correspondingly discrete and easily distinguishable from the balance of other admissible evidence against him. Secondly, because the statements are so limited and narrow, they are capable of being efficiently and conveniently quarantined for the purposes of formulating appropriately concise and straightforward jury directions, possibly in writing, about disregarding them entirely for any purpose in the case against Mr Spicer. Thirdly, there is a wealth of admissible evidence, albeit circumstantial, with the benefit of which the jury could confidently formulate its conclusions, whatever they might be, unburdened by the lurking but inadmissible influence of the objectionable material. The Crown's submission on the strength of its case against Mr Spicer was formulated on this application as one that would effectively swamp the potential prejudice arising from the inadmissible material that may become evidence in the case against Ms Proud. Fourthly, there seems to me to be a highly likely and ever present prospect that none of the material to which Mr Spicer takes objection will ultimately either be led by the Crown at all or admitted over objection from Mr Spicer if it is. Finally, I am required to give effect to the wisdom that the jury can be expected to consider the evidence in the light of and according to the directions that they are given and the oaths by which they are bound: for example, Gilbert at [31]. 12. I do not consider that this is a case in which the prejudicial material, if it is admitted, could turn a potential acquittal into a conviction. I do not consider that the prejudice is so great that it cannot be overcome by appropriate directions. It is not therefore in the interests of justice that Mr Spicer be tried separately from Ms Proud. I do not consider that a positive injustice will otherwise be occasioned to Mr Spicer. 13. I am not prepared in the circumstances to order a separate trial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 July 2015