R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 16

Supreme Court New South Wales

Medium Neutral Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 16 Hearing dates: 3 February 2014 Decision date: 04 February 2014 Before: Harrison J Decision: Application dismissed Catchwords: CRIMINAL - evidence - ss 135, 137 Evidence Act 1995 - discretion to admit or exclude evidence - whether evidence unfairly prejudicial - whether prejudicial nature of evidence outweighed by probative value Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: Regina (Crown) Bradley Max Rawlinson (Accused) Michelle Sharon Proud (Accused) Bernard Justin Spicer (Accused) Representation: Counsel: C Maxwell QC (Crown) W Terracini SC (Rawlinson) D Pullinger (Proud) N Steel (Spicer) Solicitors: Director of Public Prosecutions (Crown) Archbold Legal Solutions (Rawlinson) Medcalf Grant Lawyers (Proud) George Smirilios (Spicer) File Number(s): 2011/410710 (Rawlinson) 2011/410458 (Proud) 2011/410452 (Spicer) Publication restriction: Nil

Ex TEMPORE Judgment 1HIS HONOUR: Mr Pullinger of counsel for Michelle Proud has foreshadowed an objection to certain evidence upon which the Crown proposes to rely. The point has not yet arrived when the tender of that material is imminent. However, the Crown is shortly to open the case to the jury and has fairly indicated an intention to rely upon certain paragraphs in the Crown case statement in the course of that opening. A number of these paragraphs draw upon the material to which the foreshadowed objection will be taken. I am asked at this early stage in the proceedings to determine whether the impugned paragraphs in the Crown case statement should be rejected. The application is made under ss 135 and 137 of the Evidence Act 1995. 2The paragraphs that are the subject of concern are as follows: "49. A day or so later Ms Hull spoke with PROUD, who said, 'I was going to do a grocery shop and was waiting for Wendy to put money into her account' The witness said, 'What a couple of hundred dollars' PROUD said, 'No a couple of thousand'. 50. A day or two later, PROUD was very distressed and said to Hull, 'Wendy had not paid the money that she owes us and BJ and I are going to bash the shit out of her if she does not pay in the next day or so'. 52. Telephone intercept material revealed that PROUD contacted EVANS numerous times enquiring about the money that was owed. PROUD left voice and text messages for EVANS. These messages include: 'Hey, Wendy, whats going on, its Michelle, I need that money. Today', 'BJ's going to Berry tonight. He's going to drop into Brad's. He's got a job to do. Um, either have the money in the tab account by seven or he'll be around at Brad's house'; and: 'I want my fucking money bitch and this is Michelle. Where is my fucking money? I'll come down and I'll hunt you down. I know where Brad lives so don't fucking stuff me around. I'm nearly kicked out of my fucking house'. 53. On Saturday 5 November 2011 at 5:53pm EVANS sent a text message to PROUD and SPICER. EVANS wrote in the message, 'Dad put it in at dimond beach rec 495 000 143 478 929 903 $50'. 61. At 3:34pm PROUD contacted EVANS on her mobile phone. They discussed how the TAB was investigating transactions relating to the account. PROUD said, 'Apparently she's in trouble for TAB account, 'cause large amounts of monies have gone in from Wollongong to here'. EVANS said 'I've just whacked $350 in now'. SPICER can be heard in the background. 'Oh my God - I hope on ... you know ... on the other end, nothing's gone wrong'. EVANS replied 'No, it's all sweet down here'. PROUD said, 'Yeah'. EVANS said, 'Apparently they're just doing their final parts of the investigation now'. At 4:00pm, the $350 was withdrawn from the TAB account by SPICER's sister. 63. At 9:54pm on 14 December 2011, PROUD and SPICER engaged in a telephone call. SPICER said, 'What's going on with that other putrid dog?' PROUD said, 'Who?' SPICER said, 'Wendy'. PROUD said, 'I don't know; I'll have to try calling her'. SPICER said, 'I have'. PROUD said, 'Have ya? I called her last week and left a message'. SPICER said, 'She still owes me 600 fuckin' dollars. (pause) ...[something about working] ... [hope] she's locked up. If I knew where that cunt's house was exactly, I'd go around there'." 3The burden of Mr Pullinger's objections is that the paragraphs concerned convey an impression, which Ms Proud denies, that she is demanding money as payment in return for her involvement in organising or participating in the events that led up to or caused the death of the deceased. His concern is that there is little or no evidence of any other sort that implicates Ms Proud in the death of the deceased so that her arguably vociferous demands for money could, in the particular factual context of this case, be unfairly misconstrued by the jury as evidence of her guilt. 4Mr Pullinger contends that there is no evidence that Ms Proud was consciously aware, in advance of the death of the deceased, that others had planned to set fire to her house, or had arranged to acquire the paraphernalia, including petrol, a cigarette lighter, a bucket and fire starters, to assist them in their plan. He is concerned that the evidence in question, if admitted, may potentially and inappropriately lead a jury retrospectively to reason that her latter-day conversations about money that came to light after the death of the deceased are connected with an assumed, but not proved, involvement with that event. He reasons that there will be prejudice to Ms Proud in the circumstances that is relevantly unfair if, or as, her involvement in the death of the deceased cannot otherwise be clearly established or reasonably inferred. 5Sections 135 and 137 of the Act are as follows: "135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 6As I have indicated, this trial is at an early stage. The Crown has not opened its case to the jury and quite obviously no evidence has been called. To that extent there is some uncertainty about precisely what evidence will be ultimately tendered and admitted. Correspondingly, the context within which to determine this application is to a like extent somewhat uncertain. 7Doing the best I can it seems to me that other material, that for present purposes I am prepared to accept will be likely to become evidence in the proceedings, arguably implicates Ms Proud in the events that led to the death of the deceased, quite apart from the material to which objection is taken. It is unnecessary for present purposes to elaborate upon that material or to express a view about its probative value. I am satisfied, however, that the material to which Ms Proud takes objection is not the only material that is likely to become evidence in the case against her. In that sense the material objected to does not sit alone as potential evidence that the jury could unfairly misunderstand or misconstrue to the relevant prejudice of Ms Proud. As presently advised it appears to me to be evidence that a jury might ordinarily be expected to receive and assess in the context of the trial as a whole. It does not amount to material that is bereft of context so that an irremediable unfairness infects it from the start. I accept that the material is potentially inimical, and therefore prejudicial, to Ms Proud's interests in these proceedings, but not unfairly so. I am not presently satisfied that the probative value of the evidence flagged in the paragraphs in the Crown case statement to which objection is taken is outweighed by the danger of unfair prejudice to Ms Proud. 8I am therefore not prepared to restrict or to constrain the Crown in opening to the jury upon the paragraphs of the Crown case statement referred to earlier in these reasons. I make no comment upon the question of whether or not at some later point in the trial Ms Proud may have available to her a viable application to oppose the tender of some or any of the evidence upon which the paragraphs in question are based.