R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 171

Supreme Court New South Wales

Medium Neutral Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 171 Hearing dates: 18-21, 24-28 February, 3-4 March 2014 Decision date: 04 March 2014 Before: Harrison J Decision: See [63] Catchwords: CRIMINAL - evidence - admissibility of evidence - joint trial - whether evidence more prejudicial than probative - whether prejudice can be cured through appropriate jury directions - application for view -Evidence Act 1995 s 53 - whether view necessary in the circumstances - application granted Legislation Cited: Evidence Act 1995 Cases Cited: R v Hawi & ors (No 7) [2011] NSWSC 1653 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

Judgment 1HIS HONOUR: All accused wish in various ways to contest the admissibility of certain material upon which the Crown proposes to rely. At the heart of the competing contentions is the question of whether material in a joint trial that is clearly admissible against one accused, but not admissible against the others, should be excluded upon the basis that its unfairly prejudicial effect upon either or both of the other accused cannot be ameliorated or eradicated by appropriate warnings or directions. The issue requires consideration, among other things, of whether directions to the jury, that they must disregard the evidence when considering the guilt or innocence of the accused in whose cases the evidence cannot be used, will be adequate or sufficient to neutralise or dispel the prejudice potentially arising if the directions were not heeded or followed. 2The material in question has been helpfully collected in a folder with coded markings to indicate what is and what is not contentious. Agreement has already been reached with respect to much of the material. It will, however, be necessary for present purposes to set out in every case those parts of the evidence that remain in dispute.