R v Rawlinson; R v Proud; R v Spicer

Judgment 1HIS HONOUR: On the 28th day of the trial, Mr Spicer applied for an order that the present trial be discontinued against him and that in due course he be tried by another jury. The basis for that application is to be found in certain portions of the evidence given by his co-accused Ms Proud in the course of her cross-examination by Mr Steel. I dealt previously with an application by Mr Spicer with respect to Ms Proud's evidence in which Mr Spicer sought a discharge of the jury upon the basis that he was embarrassed by what she said about his role in the setting of the fire that killed the deceased: see R v Rawlinson [2014] NSWSC 329. I rejected that application. 2The evidence upon which Mr Spicer now relies is included in the material that follows: "T1225 Q. The reality, Ms Proud, is that you are lying about this conversation? A. I'm not lying about the conversation. I know what took place in that motel that night and I know what he told me and what he did is sick. Q. I suggest to you that you are lying because you want to make the rest of your evidence sound believable? A. No, I'm not lying. I know what he said to me. He's sick. ... T1227 Q. I suggest that yesterday, after court had finished sitting, that you made a comment, very loudly, to Mr Rawlinson in a position where Mr Spicer could hear, 'I'm only doing this for the kids. I don't care what happens to BJ' that's what you said, isn't it? A. No. Q. The reality is, isn't it, this evidence that you're giving about this conversation that supposedly happened when he returned home, you're giving that because you believe it will make the rest of your evidence more reliable or more believable? A. No, your client is a murderer. Q. And you're also doing it, I suggest, so that you can be in a position following this trial where you're able to care for your children? A. No. But my kids would always be number one to me. My kids are my world and I'm sitting in here because of something he did. Q. You're prepared to say whatever it takes, whether it's true or not, aren't you? A. No, I want to tell the truth of what he did, what he did to that poor woman. ... T1228 Q. I suggest that you're prepared to lie if it will help you assist your children? A. No. Q. Even if that's at his expense, you're prepared to lie about things that weren't said? A. No, a murderer shouldn't walk free, a murderer should do their time. Q. You certainly didn't have that view when the police told you they needed the truth, did you? A. Because I was scared, he threatened to kill me too. He's done it once, he can do it again, he said to me. Q. You were in the custody of police officers? A. I don't care, I've lived with eight years of abuse from that bloke. Q. You knew there was a huge investigation going on; correct? A. I don't want to end up like Katie. Q. You did everything to assist him, didn't you, to not come to the police's attention; correct? A. Yes. Q. I suggest the reason you did that is not because of any threat by him to kill you; do you agree or disagree? A. He threatened me. Q. I suggest if that had really happened, you would have gone to the police? A. No, because the police can't save you all the time. Look at Katie. Q. You knew that the information that you had, if that was believed by the police, would take him into custody; you would have known that? A. Yes. Q. You would have known you would have been protected? A. How do I know that? How? At the time how do I know my family is protected when you've got him threatening the Rebels on you all the time? ... T1229 Q. You made no enquiries of the police whatsoever to see if they could protect you, did you? A. No. Q. This is just another convenient lie to explain why your evidence is in court is inconsistent with - A. No, your client is just a liar all the time, a compulsive liar. He always has been, he always will be. He always has been when he's been charged by police and always lied his way out of those too. ... T1235 Q. And that on that particular morning BJ said to you that he was taking the car to go to work and he was doing scrapping; right? A. No. Why would he use the sedan for scrapping? Q. To take him to work? A. He wasn't working at the time. He was on parole and he wasn't working. ... T1238-39 Q. You are saying that's what Wendy told you; is that a lie or is that the truth? A. I can't remember what Wendy had told me. Q. That's what you are telling the police there that Wendy had told you; you accept that? A. Well, then I have to be mistaken with that. Q. When you say 'mistaken', are you saying you are mistaken that that's what Wendy told you? A. I don't know, I was listening to a conversation those two were having on the phone, laughing it up what they frigging did. Q. You had a conversation on the pay phone? A. That conversation didn't take place over the pay phone. That conversation took place at home. Q. (Witness shown exhibit AAAS). Please have a read of question 517 and the answer. The relevant part is down the bottom on page 52. A. (Witness complied). Yes. Q. You agree now, don't you, that that is a conversation that you are saying you had with Wendy on the pay phone on that very day, correct? A. No, I'm saying that's a conversation I had Friday and underneath I'm going on about another conversation I had at home. That's where I'm trying to tell the police what she had told me at home. Q. So that's what she told you, it is not a conversation between her and BJ, is it? A. Yes, they had a conversation, on either the Saturday or Sunday, laughing up on the phone what they did to her, talking about how funny it was going in there lighting the fire, pouring the petrol around the bed. Real funny. Q. You didn't tell the police that? A. No." 3The principal matters upon which Mr Spicer relies are twofold. First Mr Spicer contends that he has been irreparably and unfairly prejudiced by Ms Proud's reference to his having been on parole at a particular time as a reason why he was not then working. Secondly, Mr Spicer submits that Ms Proud's references to him always lying his way out of charges on previous occasions gives rise to a not dissimilar but equally prejudicial inference that he has been regularly in trouble with the police for which he has faced the prospect of being charged. Mr Spicer contends that this reference to his actual or inferential criminal past is material to which the jury should not have been exposed, and that in the circumstances it creates an impression of him that is both prejudicial and incapable of correction by any appropriate direction or warning. 4It is timely to observe that this material was revealed at a point in the trial when Ms Proud had already given the evidence that prompted the earlier application to which I have referred. It is uncontroversial that Ms Proud's evidence of Mr Spicer's admission to her significantly, if not entirely, confounded the basis of his defence to the Crown case, which was that he had been unaware of the presence of the deceased in the bedroom when he participated in setting the fire that killed her. It followed quite reasonably that Mr Spicer's counsel should thereafter attempt, within the confines of his instructions, to discredit Ms Proud in order to limit if possible the damaging effect of her evidence about Mr Spicer's admission. 5Equally reasonably, Ms Proud would appear to have responded to the pressure of cross-examination by turning her attention to Mr Spicer. I accept immediately that whatever may have been the genesis for her outbursts, it is irrelevant for present purposes. What is relevant in this context is the Crown's submission that, to the extent that Ms Proud was attempting to shore up or resurrect her own credibility, it was a natural and not unexpected product of questions put to her by counsel for Mr Spicer and should not, for at least that reason, be considered as material that is unfairly prejudicial to him. 6It should not pass without comment that there was little to be found in the substance of what Ms Proud said that directly assists her own position in this trial. For example, characterising Mr Spicer as an associate of bikies, as a violent man who treated her badly or physically abused her and who even threatened to kill her to keep her silent, or as a person who callously conversed with Ms Evans in humorous terms about the death of the deceased, does little to establish that Ms Proud was criminally unconcerned with it. To like effect, characterising Mr Spicer as "sick" or calling him a "murderer" who should do his time or a "compulsive liar" are matters that are wholly irrelevant to her own culpability. On the contrary, whether taken in isolation or in combination, the effect upon Mr Spicer is negative in every respect and prejudicial to him in the proceedings. 7I also consider that the material complained of is unfairly prejudicial to Mr Spicer. At one level this is so simply because it paints Mr Spicer in a particularly negative light. It must remain in considerable doubt whether the jury could be expected to put such lurid material out of their minds in considering the question of his guilt. 8The more obvious and fundamental reason why the material is unfairly prejudicial appears to me to be because it has had, or might be taken to have had, a direct and profound effect upon Mr Spicer's decision about whether or not to give evidence in his trial. At one level Mr Spicer was faced with the prospect that if he stayed away from the witness box, he would be left to confront the inevitable inference that his failure to counter Ms Proud's evidence, that he admitted what he had done to the deceased, would or could be treated as an acceptance that what she said was true. However, in the events that occurred, Ms Proud's additional evidence significantly complicated that decision to the extent that it required Mr Spicer to decide in addition whether he should or should not give evidence to meet the series of additional and extraneous allegations made about him. At a forensic level, that placed Mr Spicer in a potentially intolerable position because he would necessarily thereby expose himself to cross-examination by the Crown about his alleged admission as the price of attempting to establish that he was none of the other irrelevant things that Ms Proud said he was. In the case of his criminal record and status as a person on parole, the situation is even worse insofar as Mr Spicer would presumably never have been able to neutralise such evidence because it is true but should never have been mentioned. 9But there is to my mind an even more compelling reason why what has occurred should lead to the separation of Mr Spicer's trial. Up until the time that Ms Proud gave the evidence that Mr Spicer had confessed to a significantly greater involvement in the death of the deceased than he had until then conceded, there arguably remained scope for him to maintain the position that his knowledge of the presence of the deceased was either nonexistent or limited. Ms Proud's evidence was on one readily available view wholly destructive of that position. However, the evidence was never part of the original Crown case against Mr Spicer but fell unexpectedly from a witness about whose other evidence the jury would have had extensively to be warned. In such circumstances there arises the distinct but untestable prospect that the jury might improperly disregard a judicial warning about some parts of Ms Proud's evidence because they wished to endorse and utilise the otherwise apparently compelling evidence given by her about Mr Spicer's alleged admission. Such an exercise carries with it the risk that the jury might illegitimately fail to take into account in Mr Spicer's favour the potentially important and detrimental effect upon Ms Proud's credibility, which the cross-examination of Ms Proud upon the areas that the jury is being asked simultaneously to disregard could have produced. As tortured or even as unlikely as that path or line of reasoning might appear to be, its mere possibility raises the spectre of irremediable prejudice to Mr Spicer. 10It was for these reasons that I somewhat reluctantly ordered that the trial of Mr Spicer should be separated from the trial of his co-accused. 11Mr Spicer's application provoked similar applications by Mr Rawlinson and Ms Proud. Mr Rawlinson contended that the evidence from Ms Proud, suggesting Mr Spicer was an unsavoury and distasteful character with a violent predisposition and a criminal history, would have the effect of tainting Mr Rawlinson by association. As appears clear, Mr Rawlinson was involved in arranging for someone to carry out his plan at least to harm the deceased if not more than that. There is powerful evidence that he deposited money into a TAB account of a woman closely connected to Mr Spicer and that Mr Spicer received it. It is equally apparent that Mr Spicer carried out an act together with Wendy Evans that led to the death of the deceased. Mr Rawlinson's concern is to maintain as much distance as he can from the insalubrious aspects of Mr Spicer's past. 12Mr Rawlinson's concerns appear to me to be the result of an unrealistic sensitivity. There is a wealth of evidence from which the jury could reason that Mr Spicer performed or participated in the act that killed the deceased and that he did so at Mr Rawlinson's bidding. How that evidence ultimately translates in terms of the jury's verdict remains to be seen. However, it is a little difficult to see that Mr Rawlinson is unfairly prejudiced just because Mr Spicer's actions at 6 Doncaster Street, Corrimal have a tendency to support or confirm Ms Proud's phlegmatic opinions about him. It would be surprising in the extreme if Mr Rawlinson had been able to solicit the services of anyone of good repute or unblemished character to do what Mr Spicer did. The outcome in Mr Rawlinson's trial is more likely to be swamped by considerations of what he did or did not do than by reference to the character and antecedents of some person he is alleged to have employed to achieve his objectives. 13Ms Proud is in an even weaker position. She chose to give the very evidence that has caused Mr Spicer's trial to miscarry. It lies ill in her mouth in my view to protest about the effect that what has occurred may have upon the jury's assessment of her credibility when she is the author of her own destiny in that respect. I perceive plainly that no unfair prejudice to Ms Proud has arisen in the circumstances.