Citation: R v Spicer [2013] NSWSC 1907
Court: Supreme Court of New South Wales
Date: 18 December 2013
Judge(s): Harrison J
Background
Three co-accused, Bernard Spicer, Michelle Proud, and Bradley Rawlinson, were jointly indicted for the murder of Katherine Foreman, who died when her home in Corrimal was set alight in the early hours of 27 October 2011. The Crown alleged that Spicer attended the property and threw petrol into the deceased's bedroom, which was then ignited by a fourth person who had pleaded guilty to the murder.
Spicer did not dispute his presence at the scene. His position was that he had been assured the deceased would not be home and that the fire was intended only as a scare, not to harm anyone. The Crown's case against him was circumstantial and turned significantly on whether he knew the deceased was present in the house.
Spicer applied by notice of motion for a separate trial from co-accused Proud, on the basis that evidence the Crown intended to lead against Proud was inadmissible against him and would be highly prejudicial in a joint trial.
Legal Issues
- Whether the evidence the Crown proposed to lead against Proud, which was inadmissible against Spicer, was sufficiently prejudicial to warrant a separate trial under s 21(2)(b) of the Criminal Procedure Act 1986
- Whether that prejudice could be adequately addressed by directions to the jury
- Whether a joint trial would cause a positive injustice to Spicer, in the sense that inadmissible material could turn a potential acquittal into a conviction
Decision
Harrison J applied the well-established principles governing separate trial applications. The starting point is that a joint trial is the norm where co-accused are alleged to have acted in a joint criminal enterprise. The applicant bears the onus of demonstrating a real risk of positive injustice, meaning that the inadmissible prejudicial material would be likely to turn a potential acquittal into a conviction.
His Honour identified the prejudicial material at issue as statements made by Proud in a legally intercepted telephone call, in which she made comments that could suggest Spicer knew the deceased was home when the fire was lit. Spicer contended these statements were highly damaging and could not be cured by jury directions.
Harrison J concluded the potential prejudice was limited, for five reasons. The material was confined to statements by one person, made outside Spicer's presence, which he elsewhere denied. The discrete nature of the statements meant they could be efficiently quarantined through clear and concise jury directions, potentially in writing. The admissible evidence against Spicer was substantial and capable on its own of supporting the jury's conclusions without resort to the objectionable material. There was also a real prospect that the Crown would not ultimately lead the impugned evidence at all, or that it would not be admitted over objection. Finally, his Honour gave weight to the general presumption that juries follow directions given to them.
His Honour was not satisfied that the material, if admitted, could convert a potential acquittal into a conviction, nor that any resulting prejudice was beyond the reach of appropriate directions. The application was dismissed.
Orders Made
• Application for separate trial of Mr Spicer rejected
• Mr Spicer to be tried jointly with Ms Proud
Key Takeaways
- A joint trial remains the norm for co-accused alleged to have engaged in a joint criminal enterprise, and the applicant for a separate trial bears the onus of demonstrating a real risk of positive injustice.
- The central question in a separate trial application is whether inadmissible prejudicial evidence against a co-accused is likely, in a real rather than inconsequential sense, to turn a potential acquittal of the applicant into a conviction.
- Where prejudicial material is narrow in scope, discrete, and attributable to a single source denied by the applicant, the Supreme Court found that jury directions, including written directions, may adequately quarantine the risk.
- The strength of the admissible Crown case against an applicant is a relevant contextual consideration: a substantial body of admissible evidence may reduce the capacity of inadmissible material to distort the jury's deliberations.
- Uncertainty about whether prejudicial evidence will ultimately be admitted at trial is a factor a court may weigh when assessing the real as opposed to hypothetical risk of prejudice.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 21(2)(b)
Cases
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- Madubuko v R [2011] NSWCCA 135
- Regina v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1999) 107 A Crim R 432
- R v Abrahams [2013] NSWSC 729
- R v Iskander [2011] NSWSC 1192
- R v Pham [2004] NSWCCA 190
- R v Symss [2003] NSWCCA 77
- Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41