Supreme Court New South Wales Medium Neutral Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 124 Hearing dates: 18-21, 24, 25 February 2014 Decision date: 25 February 2014 Before: Harrison J Decision: Application to discharge jury is dismissed Catchwords: CRIMINAL - jury trial - evidence - prejudicial evidence inadvertently led - application to discharge jury - whether prejudice capable of being cured by an appropriate jury direction 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: Sian Regal is a witness who was called yesterday to give evidence by the Crown. She provided a statement to the prosecution that was circulated to the accused before she did so. Paragraph 26 of her statement is in these terms: "26. Around the same time, I spoke to Wendy. I said 'I had heard Katie was burnt alive and found in the foetal position'. I was freaking out and I didn't know who had down [sic, done] it. Wendy had told me she was in with bikies and drugs, Wendy denied knowing about it. Wendy told me that Brad had told her that they had lit the fire down the stairs so she couldn't get out." 2That evidence was led from Ms Regal. No oral objection to it was taken at that time, but an application to discharge the jury was made at the conclusion of Ms Regal's evidence-in-chief. That application arose in the following circumstances. 3Mr Terracini SC for Mr Rawlinson indicated that he had provided a copy of Ms Regal's statement to the Crown with the last sentence of paragraph 26 highlighted in yellow, and with an asterisk and the word "object" written in the adjacent margins. The Crown was not provided with the statement marked in that way until sometime during Ms Regal's evidence-in-chief. The Crown has indicated that he inadvertently overlooked the markings on the copy of the statement that had been given to him and the evidence was put to the witness and accepted by her before it could be stopped. Although it might arguably be relevant in a different context, I do not consider that there is any present utility in exploring further the question of who, if anyone, was or may have been at fault in the circumstances. It is not in any event suggested by Mr Terracini that what occurred was deliberate or intentional. 4The issue for present purposes is whether or not the evidence has created a prejudice that is incapable of being cured by an appropriate direction to the jury. The prejudice arguably consists in the fact that, if accepted at face value, Ms Evans is suggesting that Mr Rawlinson was present at the scene of the fatal fire, or alternatively was a party to an agreement that included, or extended to, a detailed knowledge of what was to happen at the scene, including how and where the fire was to be started. 5The Crown case against Mr Rawlinson accepts that he was not present at the scene of the fire and that he did not take any physical part or play any physical role in what happened there. The Crown case against him is that he was a party to an agreement with his co-accused that the deceased should be killed by a fire set in her home while she was present. It is also the Crown case that the only people present at the scene on the morning of the fire were Wendy Evans and Mr Spicer. Consistently with this approach, the Crown case against Mr Spicer relies in part upon his record of interview with the police in which he admitted being at the scene and setting the fire in the company of Ms Evans. It is accepted, of course, that Mr Spicer's record of interview is not admissible as evidence in the Crown case against either of his co-accused. 6The Crown contends that the following direction is adequate and sufficient to cure the perceived or anticipated prejudice: "During the course of the evidence of Ms Sian Regal yesterday she mentioned some matters that Ms Evans had told her. The evidence is 'Wendy told me that she is in with bikie and drugs, Wendy denied knowing anything about it. Wendy told me that Brad had told her that they had lit the fire down the stairs so she couldn't get out.' This last sentence referring to what Brad was alleged to have said is not evidence against any of the accused. It came before you due to a misunderstanding between counsel and is not relied upon in any way by either the Crown or the defence. Accordingly you should completely disregard it. I direct that you should not use it in any way in your consideration of this case. It will not be the evidence that this fire was lit down the stairs and it is not the Crown case that it was. As I have said, you cannot use this piece of evidence of what Wendy Evans said Bradley Rawlinson said, in any way in this trial. It has been removed from the record and it is no part of the evidence." 7The material in question would appear to be, or is at least consistent with, an attempt by Ms Evans to paint a picture for Ms Regal of what happened that excluded entirely any involvement by her. If one accepts, upon the basis of evidence that has been presented so far, with the (admittedly limited) assistance of the Crown's opening, that only Mr Spicer and Ms Evans were there at the time, then Ms Evans' reference to "they", in the expression "that they had lit the fire", must be a lie. 8The Crown does not maintain a case against Mr Rawlinson that attributes or ascribes to him any of the detail to which Ms Evans has referred in her conversation with Ms Regal. Any direction capable of dispelling the prejudicial effect of a suggestion to the contrary should make that clear. 9There is the added possible prejudice that consists of a suggestion that the fire was set in a way that made the deceased's escape difficult or impossible. Three matters arise for consideration in that respect. First, as already mentioned, the Crown case is completely silent on such matters in the case against all accused. No evidence suggests that any detail of the sort referred to by Ms Evans in the evidence complained of will ever emerge. It can be isolated from all other material in the trial and effectively dispelled as entirely enigmatic. 10Secondly, the forensic evidence that is anticipated, and which to some extent is already before the jury, does not support the proposition that the fire was started either downstairs, in the sense that it commenced on the ground floor, or down the stairs, in the sense that the stairway leading down to the ground floor was itself set alight as the perpetrators made good their departure from the first floor. The photographs in the jury bundle do not depict fire damage to the staircase of the type consistent with the fire having been started in either way. The forensic evidence that has been foreshadowed as part of the Crown case in fact is entirely supportive of the proposition that the fire started in the deceased's bedroom upstairs. 11Thirdly, the prejudice alleged must be given consideration in proper context. The evidence appears likely to be, if it is not already, that the deceased was in fact unable to escape the fire. The horror and associated prejudice emanating from that fact alone necessarily, or at least arguably, dilutes the putatively prejudicial effect of the material in question. 12Mr Terracini has proposed that directions in or to the following effect would be preferable to the directions proposed by the Crown: "During the course of the evidence of Ms Sian Regal yesterday she mentioned some matters that Ms Evans had told her. The evidence is 'Wendy told me that she is in with bikie and drugs, Wendy denied knowing anything about it. Wendy told me that Brad had told her that they had lit the fire down the stairs so she couldn't get out.' This last sentence referring to what Brad was alleged to have said is not evidence against any of the accused. It came before you due to a misunderstanding between counsel and is not relied upon in any way by either the Crown or the defence. Accordingly you should completely disregard it. I direct that you should not use it in any way in your consideration of this case. It will not be the evidence that this fire was lit down the stairs and it is not the Crown case that it was. Members of the Jury, I direct you that it is not the Crown case or the case for the accused that Mr Rawlinson was ever present whilst a fire was started at the home of the deceased Ms Foreman. I should also remind you that Ms Evans will not be giving any evidence before you and thus any statements made allegedly by her cannot be tested in any way by any of the parties. As I have said you cannot use this piece of evidence of what Wendy Evans said Bradley Rawlinson said in any way in this trial. Indeed it would be quite wrong to do so. It has been removed from the transcript of this trial and it forms no part of the evidence." 13In providing these directions in draft, Mr Terracini does not, and I do not take him to, resile from his fundamental position that the jury should be discharged. 14In my view the expanded directions proposed by Mr Terracini are entirely adequate and sufficient to neutralise any real or perceived prejudice that may have arisen from the inadvertent admission of the evidence in question. I propose to reject the application to discharge the jury and to give them the directions last referred to. ********** 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: 09 December 2014