Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 355
Court: Supreme Court of New South Wales
Date: 28 March 2014
Judge(s): Harrison J
Background
Three accused were being tried jointly for offences connected with the death of a woman in a fire. The Crown alleged that one accused, referred to here as the first co-accused, arranged for the second co-accused to set the fire, with a third co-accused as a further participant. The deceased was killed in the blaze.
On day 28 of the trial, the second co-accused applied for a separate trial after his co-accused, the third co-accused, made a series of damaging statements during cross-examination. Those statements characterised the second co-accused as a murderer, a compulsive liar, a violent abuser, a person associated with outlaw motorcycle club members, and someone who had previously evaded police charges through dishonesty. She also referred to him as having been on parole at a relevant time.
The second co-accused had earlier applied unsuccessfully for a jury discharge arising from the same witness's evidence. This application for a separate trial was his second attempt to address the prejudice created by her testimony.
Legal Issues
- Whether the evidence given by the third co-accused during cross-examination created unfair prejudice to the second co-accused that could not be remedied by judicial direction, so as to justify ordering a separate trial under s 21 of the Criminal Procedure Act 1986.
- Whether the same evidence created unfair prejudice to the first co-accused, warranting a separate trial in his favour.
- Whether the third co-accused herself suffered unfair prejudice as a result of the evidence she gave, entitling her to a separate trial.
Decision
Harrison J accepted that the third co-accused's outbursts during cross-examination were a natural, if unfortunate, response to pressure applied by counsel for the second co-accused. The Crown submitted that this origin meant the material should not be treated as unfairly prejudicial. The court acknowledged that submission but did not accept it as determinative.
The court found that the references to the second co-accused's parole status and his alleged history of lying to police to avoid criminal charges were both unfairly prejudicial and incapable of adequate correction by direction. The material painted him in a comprehensively negative light: it revealed or strongly implied a criminal history, characterised him as violent and threatening, and associated him with organised criminal networks. Together, these matters destroyed any prospect of a fair trial for him in the existing proceedings. Harrison J described ordering the separate trial as a "somewhat reluctant" step.
The application by the first co-accused was refused. The court reasoned that he had allegedly arranged for the second co-accused to carry out the act that killed the deceased, and the jury already had powerful evidence of that connection. The prejudice from the second co-accused's unfavourable character was not unfair to the first co-accused in those circumstances. It would be surprising, the court observed, if someone of good repute had been engaged to perform the alleged act.
The third co-accused's application was also refused. The court held that she had chosen to give the very evidence that caused the second co-accused's trial to miscarry. Having authored that outcome herself, she was in no position to complain that her own credibility had been damaged as a consequence.
Orders Made
- The trial of the second co-accused (Spicer) was separated from the trial of his co-accused; he was to be tried by a different jury.
- Applications for separate trials by the first co-accused (Rawlinson) and the third co-accused (Proud) were refused.
Key Takeaways
- Under s 21 of the Criminal Procedure Act 1986, a court may order a separate trial where evidence from a co-accused creates unfair prejudice that cannot be remedied by direction to the jury.
- Revealing a co-accused's parole status and alleged history of evading criminal charges through dishonesty constituted unfairly prejudicial material sufficient to warrant severance of that accused's trial.
- The genesis of prejudicial evidence, including whether it was provoked by the accused's own cross-examination, does not necessarily defeat a separate trial application if the evidence is independently unfair.
- A co-accused who voluntarily gives damaging evidence about another cannot later claim unfair prejudice arising from the consequences of that evidence on the jury's assessment of her own credibility.
- Severance will not be ordered merely because one co-accused has an unsavoury character that might reflect poorly on another by association, where there is already powerful independent evidence connecting the two accused in the alleged offending.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 21
Cases:
- R v Rawlinson [2014] NSWSC 329 (earlier discharge application in the same proceedings)