Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 171
Court: Supreme Court of New South Wales
Date: 4 March 2014
Judge(s): Harrison J
Background
Three accused faced a joint criminal trial arising from a fatal fire at a residential premises in Corrimal (6 Doncaster Street). The Crown alleged the fire was deliberately lit and resulted in the death of the occupant. Each accused was represented separately, and the charges against them were not identical.
In the lead-up to trial, all three accused challenged the admissibility of various items of evidence the Crown proposed to tender. The disputed material included intercepted telephone calls made by two of the accused from gaol, as well as a Crown application for the jury to conduct a view (an in-person inspection) of the premises.
The central difficulty was that some of the contested material was clearly admissible against one accused but inadmissible against the others. The court had to determine whether the prejudice flowing to the other accused from hearing that material could be adequately addressed by jury directions, or whether exclusion was necessary.
Legal Issues
- Whether intercepted gaol phone calls constituted admissions by the accused who made them, or were instead unfairly prejudicial statements of no real probative value
- Whether evidence admissible against one accused in a joint trial should be excluded because its prejudicial effect on the other accused could not be cured by jury directions
- Whether specific portions of recorded conversations by one accused unfairly implicated a co-accused in a way that could not be neutralised by a limiting direction
- Whether the Crown's application for a jury view of the fire-damaged (and since-restored) premises should be granted under section 53 of the Evidence Act 1995
Decision
Issue 1: Spicer's gaol call of 15 January 2012
Harrison J rejected the Crown's submission that Spicer's remark, "I said some solicitor," amounted to an admission of guilt. The conversation arose in the context of a provocative exchange with a prison official who appeared to be baiting Spicer with the assumption of his guilt. The court found the probative value of the statement was outweighed by the danger of unfair prejudice to Spicer, and excluded it.
Issue 2: Spicer's gaol call of 27 January 2012
The phrase "It's going to be better than fuckin' doing twenty-five" was excluded. The court noted a longstanding reluctance to place before juries material about the length of potential sentences an accused faces. The Crown's case was adequately served by other parts of the same conversation to which no objection was taken, so the prejudicial words were unnecessary as well as unfair.
Issue 3: Proud's gaol calls of 31 December 2011 and 1 January 2012
These calls were admissible against Proud but inadmissible against Spicer. The court found that much of the language, such as references to the event being "only supposed to be a scare," did not create unfair prejudice to Spicer. However, specific words directly implicating another person's prior knowledge of who was inside the house, most notably "BJ wasn't supposed to go in there and do that, it was more the other one," were found to be definitively prejudicial to Spicer in a way a jury direction could not adequately cure. Those specific passages were excluded. The remainder of the conversations could be admitted, with appropriate limiting directions.
Issue 4: Crown application for a jury view of the premises
The court granted the application for a jury view of 6 Doncaster Street. Harrison J applied the principles in R v Hawi & ors (No 7) [2011] NSWSC 1653 and found that a view would assist the jury in understanding the physical layout of the premises, which Spicer himself had flagged as relevant to his defence. The court acknowledged that the premises had been restored since the fire but found this would limit rather than amplify any prejudicial effect. Concerns about subtle changes such as altered stair noise were noted but treated as unlikely to have any material bearing on the utility of the view.
Orders Made
No orders were made in this decision.
Key Takeaways
- In a joint trial, evidence admissible against one accused but inadmissible against another may still be received if the prejudice to the other accused can be adequately cured by a limiting jury direction; however, where specific passages are found to be definitively and unfairly prejudicial, partial exclusion of those passages is an available and appropriate remedy.
- A statement made by an accused person in the context of repeating a provocative exchange initiated by a prison official, and not intended as a direct assertion of guilt, may not constitute an admission for the purposes of tendering it as evidence.
- Material disclosing the length of a potential sentence an accused faces carries a presumptive risk of unfair prejudice that can outweigh its probative value, particularly where the Crown's case can be adequately made without it.
- Under section 53 of the Evidence Act 1995, a jury view of premises may be ordered even where those premises have been altered or restored since the events in question; the restored state may actually reduce rather than increase the potential for prejudice.
- Where an accused has foreshadowed a defence turning on the physical characteristics of a location, restricting the Crown to photographic or diagrammatic evidence alone may itself risk misleading the jury, lending additional weight to a view application.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- R v Hawi & ors (No 7) [2011] NSWSC 1653