Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 124
Court: Supreme Court of New South Wales
Date: 25 February 2014
Judge(s): Harrison J
Background
Three accused were on trial for murder, with the Crown alleging they conspired to kill the deceased by setting fire to her home while she was inside. The Crown's case against one accused, Rawlinson, was that he was party to an agreement to have the deceased killed, but was not physically present at the scene. The Crown accepted that only two of the co-accused were present when the fire was started.
During the evidence-in-chief of a Crown witness, a statement was led that included an account of what another person (Evans, who was not giving evidence at trial) had allegedly told her Rawlinson said about how the fire was set. Defence counsel for Rawlinson had flagged an objection to this passage in writing before it was led, but the Crown inadvertently overlooked the notation and the evidence came in without objection being taken orally.
At the conclusion of the witness's evidence-in-chief, counsel for Rawlinson applied to have the jury discharged. The court heard argument on whether an appropriate jury direction could adequately address the prejudice arising from the inadvertent admission.
Legal Issues
- Whether the inadvertently admitted evidence created a prejudice incapable of being cured by a jury direction
- Whether the jury should be discharged, or whether a direction to disregard the evidence was sufficient
Decision
The prejudice arising from the evidence:
The evidence was prejudicial because it could suggest, contrary to the Crown's own case, that Rawlinson had been present at the scene or had detailed prior knowledge of how the fire was to be started. Harrison J identified two aspects of potential prejudice: the implication of Rawlinson's presence or involvement at the scene, and the suggestion that the fire was deliberately set to prevent the deceased from escaping.
Whether a direction could cure the prejudice:
Harrison J found that the prejudice was capable of being cured by an appropriate direction. Three factors informed this conclusion. First, the Crown's case made no allegation of the kind suggested by the impugned evidence, meaning it could be isolated as entirely irrelevant to anything the jury was asked to decide. Second, the anticipated forensic evidence was inconsistent with the detail in the impugned statement, as the evidence pointed to the fire starting upstairs in the deceased's bedroom rather than near the staircase. Third, the jury was already aware that the deceased had been unable to escape the fire, which diluted the additional prejudicial force of the specific detail introduced by the statement.
The form of the direction:
Harrison J preferred the expanded direction proposed by defence counsel over the Crown's shorter version. The preferred direction made explicit that it was not the Crown's case that Rawlinson was ever present while the fire was started, and reminded the jury that Evans would not be giving evidence, meaning her alleged statements could not be tested. The judge accepted that direction as entirely adequate to neutralise any real or perceived prejudice.
Orders Made
- Application to discharge the jury is dismissed
Key Takeaways
- Prejudicial evidence inadvertently led before a jury does not automatically warrant discharge; the critical question is whether any prejudice is capable of being cured by an appropriate direction.
- Where the impugned evidence is inconsistent with the Crown's own case theory and is unsupported by other anticipated evidence, those factors weigh against discharge and in favour of a curative direction.
- An expanded direction proposed by defence counsel was preferred over the Crown's shorter version because it more precisely addressed the specific prejudicial inferences the jury might otherwise draw.
- The court found that evidence capable of being isolated as entirely inconsistent with the facts otherwise before the jury is more amenable to cure by direction than evidence that reinforces or dovetails with other prejudicial material.
- No finding of fault was made against either party regarding the inadvertent admission; the court expressly noted the conduct was not deliberate or intentional.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated