Supreme Court New South Wales Medium Neutral Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 251 Hearing dates: 18-21, 24-28 February; 3-7, 10-14 March 2014 Decision date: 17 March 2014 Before: Harrison J Decision: Allow paragraphs 8 and 9 in the statement of Detective Senior Constable Waldron dated 13 March 2014. Catchwords: EVIDENCE - whether evidence of searches of financial records probative - whether probative value substantially outweighed by danger of unfair prejudice to the accused - whether misleading or confusing - whether likely to cause or result in undue waste of time 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 Judgment 1HIS HONOUR: The Crown proposes to lead evidence from Detective Senior Constable Waldron. He has made a statement dated 13 March 2014, to paragraphs 8 and 9 of which Mr Rawlinson objects. Those paragraphs are as follows: "8. In my first statement dated 1 November 2011, I spoke in paragraph 97 and 98 about collecting Bank Account details from the Commonwealth Bank in the name Brad Rawlinson. Since this date the account was reviewed and no large purchases appear over $15,000 made. In September 2011 to December 2011 transactions of interest are as follows. 9. There were three cheques drawn from the account: 21 September 2011 - $4430 account 225910105749 14 October 2011 - $2444.58 account 225910105749 10 November 2011 -$2500 account 225910105749 These cheques were deposited into a Macquarie Bank Home Loan Account...held by Brad Rawlinson for property [in Queensland]. The account was opened on 29 February 2008." 2The Crown anticipates that Mr Rawlinson will contend that he was in a relationship with the deceased at the time of her death, or alternatively that they were still on good terms following the breakdown of their relationship, which they had had in the three or more years immediately prior to her death. The Crown has already led certain evidence suggesting that Mr Rawlinson had purchased various items for the deceased, including jewellery and an engagement ring, and that he spoke to witnesses following her death about certain things, and acted in a way, which indicated or suggested that he and the deceased were planning to announce their engagement shortly after what turned out to be the date of the death of the deceased. That evidence came from at least three witnesses, and is as follows. 3First, the deceased's mother Anne Foreman gave this evidence: "Q. On 30 and 31 October 2011 did you attend 6 Doncaster Street Corrimal with Mr Rawlinson to collect personal items from the house? A. I did. Q. Whilst at the house did he make a number of remarks relating to the amount of money that he had spent on her and on the premises? A. He made the remark that he had bought everything in the house, were his words. Q. Had he referred to a watch that he bought her? A. Yes, there was discussion of a watch. Q. Did he say how much? A. $8,000. Q. Did he mention at that time that he had purchased an engagement ring? A. Yes. Q. Did he say how much he paid for it? A. $30,000. Q. Did he tell you where he'd purchased it? A. No. Q. Did you ask him if you could see it? A. I can't remember exactly but I think I made a comment like, 'I'd like to see it but after you're engaged, after you've given it to Katie' . Q. Which at that time was obviously impossible? A. Yes. Q. Did you set up a garden memorial in your back yard? A. Yes. Q. In what form is that? A. It's a rose garden down near the pool. Q. Did Mr Rawlinson tell you that he intended to bury the engagement ring in the rose garden? A. He did. Katie's ashes are in the garden. Q. Did he ever do that? A. Not to my knowledge. Q. Did he also tell you that he and Katie were going to build a million dollar residence in Corrimal? A. Yes, that's correct. Q. And that the plans had been submitted to the Wollongong Council? A. Yes." 4Secondly, Emily McKinnon gave this evidence: "Q. When you met Bradley Rawlinson at the house did you engage in some conversation with him? A. Yes, I did. Q. Did he say, 'Katie and I are engaged, we were going to announce our engagement on 16 December 2011 which is Liam and Gemma's birthday'? A. Yes, he did. Q. Did you understand Liam and Gemma to be the grandchildren of Mrs Ann Foreman? A. Yes. Q. Did he go on to say, 'I bought Katie a Bvlgari engagement ring which is worth $65,000, I got it for $45,000'? A. Yes, he did. Q. Did he go on to say, 'Katie and I were in Melbourne, she saw the ring and loved it. I knew the guy who was doing the shop fitout and got from him a discount'? A. Yes. Q. Did he continue talking about how much he had spent and the things he had bought for her? A. Yes." 5Finally, Alicia Gibb said this: "Q. Amongst other things, did she tell you about occasions when Mr Rawlinson wanted to buy her things? A. Yes. Q. Did she mention anything in particular? A. Yes, a watch. Q. Did she say anything about that? A. Yes, she had said that it was an $8,000 watch. Q. Did she describe it to you? A. Yes, she did. It had white and black diamonds down the band and a silver face. Q. Did you ever see it? A. Yes, I did." 6Far from accepting that Mr Rawlinson remained in any kind of affectionate relationship with the deceased at the date of her death, the Crown alleges that Mr Rawlinson entered into an agreement with his co-accused to set her house on fire when she was asleep there in order to cause her death or really serious injury. A full and precise characterisation of the ways in which the Crown puts its case against Mr Rawlinson is to be found elsewhere and it is presently unnecessary to repeat it in detail here. It is part of the Crown case that Mr Rawlinson did and said things both before and after the death of the deceased that implicate him as a party to such an agreement and which are entirely inconsistent with his acts and words to the witnesses concerned that suggest otherwise. The Crown will contend that such actions and words are lies or amount to conduct intended to give the impression that he had nothing to do with the death of the deceased. 7The Crown has in fact already led evidence that is capable of supporting a submission, if not an inference, that Mr Rawlinson was telling lies to these witnesses. For example, evidence had already been tendered of intercepted telephone calls and recovered text messages that respectively either involve Mr Rawlinson or were sent by him, which are arguably inconsistent with his protestations of pre and post mortem love and affection for the deceased. Alicia Gibb has also given evidence that Mr Rawlinson was so grief stricken following the death of the deceased that his legs collapsed under him and he fell to the ground at the prospect of re-entering the house where she died. That has to be compared with his somewhat sanguine presentation on 9 November 2011, less than two weeks after the fire, when he took investigators through the house in a rather matter-of-fact way to assist them with their inquiries. 8The evidence of Mr Waldron is said to fall into this category. The Crown wishes to establish that Mr Rawlinson did not purchase an engagement ring for the deceased of any value for which he used funds in the account to which Mr Waldron's attention has been directed. It is not tendered as evidence of lies told suggesting a consciousness of guilt so much as evidence contradicting any suggestion that Mr Rawlinson was in love with the deceased or otherwise on good terms with her when she died. 9Mr Rawlinson contends that the evidence should be excluded pursuant to s 135 of the Evidence Act 1995 because its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to him, or misleading or confusing, or cause or result in undue waste of time. I disagree. 10The material has obvious probative value. Even though it may be inimical to an interpretation of the evidence in the Crown case that Mr Rawlinson wishes to embrace, it is not unfairly prejudicial to him. Indeed, as the evidence to which I have drawn attention suggests, Mr Rawlinson on one view was actively concerned to present a picture of his relationship with the deceased that was inconsistent with any involvement in her death. The evidence that the Crown wishes to tender is evidence that goes to precisely the same issue or area of interest. Its tender is not associated with any unfairness at all. 11It is also not material that is potentially misleading or confusing. I accept that the bank records searched by Mr Waldron are not the whole of the records of financial transactions that Mr Rawlinson may have engaged in at the relevant times. For example, he may have had credit cards or access to other funds from which the purchase of the engagement ring may have come. That merely means that, on one view, the records referred to by Mr Waldron do not paint the whole picture. That goes simply to the question of the weight of the evidence. It does not render it misleading or confusing. 12Finally Mr Rawlinson says that some delay may be occasioned if his legal team requires time to examine his financial records to discover whether there are any other sources of the funds that he used to purchase the ring. On the other hand, it may be that Mr Rawlinson could tell his lawyers where the funds came from in order to shorten the search. I find it difficult to see how this issue has even the faintest potential to result in or cause delay, let alone an undue waste of time. 13The material in Mr Waldron's statement, to which objection is taken, is not objectionable and should be admitted. ********** 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