R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 329

Supreme Court New South Wales

Medium Neutral Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 329 Hearing dates: 18-21, 24-28 February; 3-7, 10-14, 17-21, 24 March 2014 Decision date: 25 March 2014 Before: Harrison J Decision: Application dismissed Catchwords: CRIMINAL - procedure - jury trial - application for separate trial - s 21 Criminal Procedure Act 1986 - whether defence of accused embarrassed by unexpected evidence - application dismissed Legislation Cited: Criminal Procedure Act 1986 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 case closed before morning tea on 24 March 2014, at the start of week six of the trial. After lunch on that day, Mr Pullinger of counsel for Ms Proud called her to give evidence. Part of that evidence was in the following terms: "Q. Just stopping there, after he had left to go to Kmart, did he return only once or more than once to the unit that evening? A. As far as I know, just the once. Q. Are you aware what time it was he returned? A. I thought it was 1.30 but I can't be sure. Q. Where were you and what were you doing when he returned? A. I was in bed. I woke up to him coming in. Q. Did you speak with him? A. Yes. Q. What did you say to him and what did he say to you? A. He just jumped into bed and he told me it was all done. Q. Did you say anything in reply to that? A. I said, 'What was all done?' Q. What did he say? A. He said that he went and bought petrol from the servo and Jiffy Firelighters. He then went around to Katie's house with Wendy. He went upstairs, poured the petrol around the bed. Katie woke up screaming, and he doesn't understand why she didn't get up and run, and then he left after that and Wendy lit the cloth but couldn't go through with it and threw it away. He re picked it up and threw it towards the bed. Q. Did you become aware that there had been a significant house fire and Katie Foreman had been killed in that house fire? A. Yes. Q. When did you become aware of that? A. The afternoon of that day morning. Q. In the afternoon of 27 October? A. Yes. Q. When Mr Spicer told you about pouring petrol and picking up the cloth and throwing it towards, didn't you appreciate that somebody might have been killed? A. I just didn't think about it because I thought I was going on a holiday and I just wanted to go fishing and shopping." 2At the conclusion of Ms Proud's evidence in chief, Mr Steel of counsel for Mr Spicer indicated that he wished to make an application for a separate trial. He submitted that the evidence in question came without notice and was embarrassing to his client, in the sense that it was unexpected and that he could not meet it. It was also inimical to the case that he opened to the jury and which through cross-examination he has consistently maintained on Mr Spicer's behalf throughout the trial. 3In context, Mr Spicer contends that he had no knowledge that the deceased was in her bedroom at the time he admittedly entered her house, ascended the stairs to the first floor and threw petrol from a bucket into the room where she lay sleeping. He contends that he had no foreknowledge of the presence of the deceased and did not acquire that knowledge while he was there. Principal among the reasons for that are that he threw the petrol into the bedroom from a position in the doorway to the bedroom from where his view of the deceased's bed was blocked by the built-in wardrobe on the southern wall immediately on his left. Further, the room was unlit and a blind shaded the window so that he was unable to see anything in the darkness of the bedroom with the naked eye. It is presumably also part of his case that there were no signs or other indications, either physically or circumstantially, from which or with the benefit of which he could reasonably have foreseen or anticipated the presence of the deceased in her bed at the time. 4The evidence given by Ms Proud is potentially wholly destructive of Mr Spicer's case. It is entirely contradictory, taken at face value, of his avowed unawareness of the deceased's presence at the time. It is also arguably very powerful in its specific terms as it contains or reveals details that Ms Proud could not ever otherwise have known, as she was not present at the premises at the time, and which had not until it was given by her, emerged directly or inferentially from any other source during the whole of the Crown case. There is no basis upon which the admissibility of the evidence can be or has been challenged: it constitutes an admission by Mr Spicer to Ms Proud immediately following his return to their motel room following the fatal fire that he entered the room and poured petrol around the deceased's bed, and that he was aware that she was present at the time. 5Mr Steel has already made two applications for a separate trial. I did not accede to either. He characterised the present application as a revival of those applications. In my opinion, the present application cannot be considered to be a revival of any previous application for a separate trial for at least two reasons. First, the present application does not proceed upon the original basis that it would not be possible, by the giving of an appropriate direction or warning to the jury, to cure potential prejudice to Mr Spicer that could arise from evidence against his co-accused that was inadmissible as evidence in the case against him. Secondly, the present application does not seem to me to be an application for a separate trial at all, so much as an application to discharge the jury and start again with his trial separated from those of his co-accused. 6Mr Steel referred to s 21 of the Criminal Procedure Act 1986, which is in the following relevant 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. (3)..." 7I do not accept that this provision applies to the present circumstances. 8There is no doubt that the evidence given by Ms Proud was unexpected. As I have indicated, there had been no foreboding of any evidence of that kind or of such force at any time throughout the trial. That is probably all the more so having regard to the fact that Ms Proud and Mr Spicer had been in a long term relationship and had three children of their own together, as well as from evidence tendered by the Crown in the course of which Ms Proud was seen to be loudly and emphatically loyal to Mr Spicer and consistently supportive of him at all times. It is not presently profitable to speculate about whether the recent evidence given by her was inadvertent or otherwise. There remains a distinct possibility approaching certainty, that subject to the outcome of Mr Spicer's present application, the question of the veracity or reliability of Ms Proud's evidence will be explored at some length and in some detail in the cross-examination of her by Mr Steel. 9I recognise that Mr Spicer now finds himself in a difficult and unenviable position. The question that underpins consideration of his application is whether that bespeaks some unfairness or other prejudice that is not simply a legitimate function of the conduct of a joint trial. There can of course be no certainty or other lesser assurance that the evidence given by Ms Proud could not or would not also be given by her at some later trial if that course were facilitated. Be that as it may, it remains important to understand and to determine whether Mr Spicer has been exposed or subjected to an unfairness in the trial process that imperils the likelihood or even the possibility of a just outcome on the one hand, or whether he has simply been dealt an unwanted and potentially fatal blow that is both contrary to his interests and completely at odds with the position he has chosen to adopt by evidence that is in all other respects admissible as evidence of an admission by him on the other hand. 10The apparently unexpected timing and content of this evidence are undoubtedly either alone or in combination embarrassing to Mr Spicer. They constitute a forensic challenge of significant proportions. They do not to my mind, however, also constitute an unfairness to him that is not the legitimate product of the trial process. They do not warrant the cessation of this trial so as to permit Mr Spicer to be given a trial alone, or the discharge of the jury upon some basis suggesting that a fair trial can no longer be achieved. 11The question can to my mind be tested in the following way: would the evidence of Ms Proud, to which exception is now taken, have been capable of supporting a successful application for a separate trial if it had originally been foreshadowed and notified by the Crown as part of its case in the first place? I am unable to see that it could have been. Mr Spicer may well have had more time to come to terms with the evidence and to employ and prepare a forensic approach with knowledge of it, but the potentially destructive effect of the evidence would have been no less. It would not have been grounds for a separate trial. 12The late emergence of the evidence is the only issue about which any acceptable complaint can be made. To the extent that Mr Steel requires some reasonable accommodation to permit him to adjust his position so as to be able to deal with this development, it goes without saying that it should be given to him. I will hear any submissions about that if it becomes necessary.