R v Evans [2014] NSWSC 735

Supreme Court New South Wales

Medium Neutral Citation: R v Evans [2014] NSWSC 735 Hearing dates: 11 April 2014 Decision date: 06 June 2014 Before: Harrison J Decision: Application dismissed Catchwords: SENTENCING - murder - separate proceedings arising out of the same set of facts - application for separate sentencing hearing - whether in the interests of justice for the proceedings to be heard concurrently Cases Cited: Dwayhi & Bechara [2011] NSWCCA 67 Perrin v R [2006] NSWCCA 64 R v H [2005] NSWCCA 282 Rae v R [2011] NSWCCA 211 Category: Procedural and other rulings Parties: Wendy Evans (Applicant) Crown (Respondent) Representation: Counsel: C Maxwell QC (Crown) Solicitors: Aboriginal Legal Service (Evans) Director of Public Prosecutions (Crown) File Number(s): 2011/412091 Publication restriction: Nil

Judgment 1HIS HONOUR: Wendy Evans, Bradley Rawlinson and Michelle Proud are due to be sentenced on 3 and 4 July 2014 for the murder of Katherine Foreman on 27 October 2011. Ms Evans pleaded guilty to the murder of the deceased on 14 June 2013. A jury found Mr Rawlinson and Ms Proud guilty of the murder of the deceased on 11 April 2014 following a trial in Sydney that commenced on 18 February 2014. 2The Crown proposes that all three prisoners be sentenced in the one proceeding. Ms Evans does not oppose her sentencing hearing being listed either immediately before or immediately after the sentencing proceedings for Mr Rawlinson and Ms Proud. She does however object to the three matters being dealt with concurrently, and contends that the evidence in her proceedings should be kept separate from the evidence in the other matters. Her application is generated by a concern that there may potentially be a significant difference between the facts led or agreed in her case on the one hand and those facts that in due course I might find were those upon which the jury verdicts were based on the other hand. 3Ms Evans' concerns in this respect have so far not been given any particular content. They remain purely theoretical. That would appear to be because the facts upon which Ms Evans' plea has been offered and accepted have so far not been completely agreed. Certain areas of dispute have been identified. It is anticipated that I will be provided with a set of agreed facts but I have been informed that some evidence may be led by the Crown to overcome the parties' inability to find common ground on all facts to be considered by me in Ms Evans' case. 4There appear to be two significant areas of dispute. The first concerns Ms Evans' intention at the time of the lighting of the fire that killed the deceased. The second relates to Ms Evans' role in the events that led to the death of the deceased, particularly the extent to which she was a driving force in the conception of the plan, and the implementation and execution of the acts, that caused the death. 5Ms Evans does not dispute the proposition that it is desirable that the same judge sentence co-offenders: see, for example, Dwayhi & Bechara [2011] NSWCCA 67 and Rae v R [2011] NSWCCA 211. However, she relied upon the uncontroversial proposition, clearly stated in Perrin v R [2006] NSWCCA 64 at [29] that "it is an error for a sentencing judge to sentence an offender on the basis of material not in evidence against that offender, but which emerges in the trial of a co-offender": see R v H [2005] NSWCCA 282 at [67] and [69]. In that case the Court of Criminal Appeal determined that certain factual findings made by the sentencing judge put a more serious complexion on the applicant's culpability concerning offences to which he had pleaded guilty than the agreed facts allowed, and were based upon material that was not in evidence but which had been led in related proceedings. 6Ms Evans contended that it was not in the interests of justice for the proceedings to be heard together. Her concern is that I may erroneously have regard to evidence presented at the trial of Mr Rawlinson and Ms Proud as well as other evidence that may be presented in their cases during the sentencing proceedings. Ms Evans has submitted that because she was not present during the trial of her co-accused, and was not otherwise represented there, a possibility exists that I might find facts adverse to her that are based upon evidence led at the trial in her absence, and by implication which she has not had an opportunity to contest. 7In my opinion Ms Evans' concerns are more apparent than real. It is not in doubt that she is entitled to be sentenced only upon facts that are either agreed for sentencing purposes in her case or, if disputed, are properly led in evidence against her. Correspondingly, Ms Evans is entitled to expect that evidence falling outside those categories is inadmissible and irrelevant to the formulation of any sentence in her case. There will undoubtedly be evidence that is common to her case and that of Mr Rawlinson and Ms Proud. That fact does not alter the principles to which I have just referred. 8I am unable in practical terms to discern any meaningful difference between what Ms Evans suggests on the one hand and what the Crown suggests on the other hand. There are three separate and distinct proceedings. They each arise out of the same basic set of facts. There are some facts that are unique to each case. It is undoubtedly convenient to hear the evidence and submissions on sentence in each case either concurrently or consecutively. The overriding concern is to ensure that none of the parties is sentenced upon the basis of facts that are not facts properly admissible against him or her. That concern is as real if the proceedings are heard together as if they are heard in turn. 9The Crown has offered to make available for cross-examination any witness who gave evidence at the trial of Mr Rawlinson and Ms Proud upon whose evidence the Crown proposes to rely for sentencing purposes in Ms Evan's proceedings. Such an approach appears to me to be not only helpful but also in fact unavoidable, if agreement about the evidence to be led from the particular witness cannot otherwise be reached. 10The Crown has fairly foreshadowed that it will argue that Ms Evans had an intention to kill the deceased and that I would be satisfied of this beyond reasonable doubt. The Crown proposes to rely in this respect upon the large series of text messages leading up to the fire that became evidence in the trial as well as some of the intercepted telephone calls between Ms Evans and Mr Rawlinson. The Crown will also rely upon the expert evidence led at the trial to establish that Mr Spicer poured petrol in the deceased's bedroom. The Crown wishes to contend that Ms Evans was present when this occurred, during which time she must have been or become aware of what Mr Spicer was doing and why. 11I am informed that there will be no issue that Ms Evans picked up Mr Spicer and Ms Proud from Sydney and drove them to Wollongong, and no issue that she was with Mr Spicer when the petrol container, bucket, torch and petrol were purchased. The Crown will argue that this is all material relevant to Ms Evans' intent. The Crown wishes to argue that what happened inside the house immediately before the fire was lit is clearly relevant to any findings concerning Ms Evans' intent. There is unlikely to be evidence upon this from Ms Evans and nothing said by Mr Spicer will be admissible against her. The Crown observes in such circumstances that the risks of the admission of or reliance by me upon inadmissible evidence of which Ms Evans complains are therefore unlikely to materialise. 12The Crown has also indicated, not unexpectedly, that it proposes to rely upon what became exhibit "AE" in the trial of Mr Rawlinson and Ms Proud. That exhibit consisted of a schedule of text messages among a group of people including Mr Rawlinson, Ms Evans and the deceased. The Crown will argue that this exhibit is relevant to the question of Ms Evans' intent, but that a potential injustice to her might arise if evidence concerning it were taken or received separately as between Mr Rawlinson and Ms Evans. The Crown anticipates that Ms Evans will contend that she was under the thrall of Mr Rawlinson, and was significantly influenced and utilised by him as a tool to carry his plan to kill the deceased. The Crown also anticipates, not unreasonably in the circumstances having regard to the way in which his case was conducted at trial, that Mr Rawlinson will argue to the opposite conclusion. In that event, the determination of who influenced who will be at the forefront of matters calling for decision in the sentencing proceedings of each of them. The Crown contends that if either or both of Mr Rawlinson or Ms Evans gives evidence about this, it would be procedurally preferable if the cross-examination of Mr Rawlinson were available for use by Ms Evans, and vice versa, for submissions on sentence, and in turn by me in forming my conclusions for sentencing purposes. Any other approach would, according to the Crown, work a potential injustice to one or other of Mr Rawlinson or Ms Evans, and would also possibly imperil a just outcome in all of the circumstances. 13In my opinion all three sentencing hearings should be heard at the same time. The prospect that inadmissible evidence may be relied upon in the case of Ms Evans or Mr Rawlinson or Ms Proud has clearly been brought to the fore, if only by reason of the detailed arguments exposed in the course of Ms Evans' present application. It seems to me to be preferable, and also advantageous, if all parties have an opportunity to hear and if necessary to challenge all of the evidence upon which the Crown may seek to rely in all cases. Provided that care is taken to ensure that I use no material in Ms Evan's sentencing proceedings that is neither agreed nor properly led in her case, the administration of justice is better served if all three sentencing proceedings are conducted simultaneously.