Supreme Court New South Wales Medium Neutral Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 336 Hearing dates: 18-21, 24-28 February; 3-7, 10-14, 17-21, 24-25 March 2014 Decision date: 26 March 2014 Before: Harrison J Decision: Application dismissed Catchwords: CRIMINAL - evidence - jury trial - cross-examination - application to change the order in which parties may question a witness - s 26(c) Evidence Act 1995 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: Following my rejection of Mr Spicer's application to discharge the jury after the unexpected evidence from Ms Proud on 24 March 2014, Mr Steel requested that he be permitted to cross-examine Ms Proud after the Crown had done so. That was said to be for the reason that he was unable to predict what other evidence might fall from Ms Proud in the course of what remained of her evidence and did not want to be left stranded between what emerges from his own cross-examination of her and what might ultimately be said by her when finally cross-examined by the Crown. 2The Crown opposes that application. One of the reasons for that opposition derives from the somewhat unusual, although by no means unique, position in which the Crown is now placed. That position arises from the fact that the Crown will no doubt wish to embrace Ms Proud's latest revelations of what Mr Spicer told her in bed at the motel in the early hours of 27 October 2011 as evidence inculpating Mr Spicer. On the other hand, the Crown will also wish to suggest that Ms Proud's exculpatory protestations in both her evidence in chief and elsewhere when interviewed by the police are untruthful and unreliable and cannot avail her in defence of the Crown case against her. That will involve a balancing exercise that the Crown insists can only fairly be carried out after either of her co-accused has completed his cross-examination of her. In that last respect I observe that Mr Terracini has already foregone his opportunity to cross-examine Ms Proud. 3Although the order proposed by the Crown is the usual or customary order for the cross-examination of an accused who gives evidence in a joint trial, the Court retains a discretion to alter the order in an appropriate case. Section 26 of the Evidence Act 1995 provides as follows: "26 Court's control over questioning of witnesses The court may make such orders as it considers just in relation to: (a) the way in which witnesses are to be questioned, and (b) the production and use of documents and things in connection with the questioning of witnesses, and (c) the order in which parties may question a witness, and (d) the presence and behaviour of any person in connection with the questioning of witnesses." 4I consider that there is presently no principled basis upon which to change the usual order of cross-examination. Neither the substance nor the fact of the unanticipated evidence that was given by Ms Proud two days ago reliably informs Mr Spicer's concern that further evidence of that type may yet emerge. There remains in any event the opportunity to consider whether he should be entitled additionally to cross-examine Ms Proud following conclusion of the Crown's cross-examination of her if some circumstances appear at that time to warrant it. It is obviously neither possible nor necessary to express a concluded view about that now. I observe in any event that both the Crown and Mr Pullinger have indicated that they would oppose that course if it were to arise. ********** 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