R v Spicer

Consideration

I raised with the Crown the question of whether or not much, if not all, of the material to which Mr Spicer objected might either be excluded in response to objection by Mr Spicer if the Crown insisted on leading it, or in advance of that whether the Crown might not lead it in the first place. All parties recognised those possibilities as likely. They appeared very likely to me. As I cannot be certain of the answer to my inquiry, however, I have proceeded to determine this application principally upon the basis that the material in question remains potentially evidence that the Crown might seek to lead in the case against Ms Proud.
Mr Spicer's ERISP will in due course presumably be tendered as part of the Crown case against him. Some portions of it are instructive for present purposes. They are as follows: "Q69 What was the conversation you and Wendy had in the car on the drive down to Wollongong about, about Katie? A About Katie? Q70 Ah hmm. A She just told me that she's just been fucking her around. Like, Katie had a hit out on Wendy and the police knew about it but they weren't doing anything because, like, Katie was sleeping with the police. And just shit like that. Wendy's an idiot. Q71 Was there talk of any action that Wendy might have taken against Katie? A Oh, she turned around and said that she was going to get her, she wanted to hurt her. Q72 Did she specify how that was to occur? A No. Q73 Did she, did she ask you to help with that? A She did, but I turned around and said I didn't want anything to do with it. Q80 BJ, once we presented Michelle with the weight of evidence that we had gathered, she then told us certain things about what happened. About the reason for travelling to Wollongong. About your movements from the motel at Windang on the night of the 26th. Your association with Wendy Evans and discussions that you and Michelle had the following morning, O.K. So before you answer my questions, I want you to think about that, O.K. What can you tell me about what happened the night of the 26th of October? A This is fuckin' bullshit man. It wasn't supposed to happen. Q81 What happened? A Wendy rang me up, she'd had enough of this Katie chick fuckin' doing all this shit to her and that, threatening the kids, everything like, and about Scott. I wouldn't worry about Scott, Scott's a dickhead you know what I mean? But, and then she turned around, they told me no one was going to be home to start with --- Q82 Ah hmm. A --- and all they wanted to do was scare her. So I turned around and I said to her, 'What are you going to do?' She goes, 'I don't know'. She goes, 'Burn her car or something'. I turned around and said, 'All right, whatever'. Well they turned around and they offered me three grand. Q83 Who's they? A Well, Wendy, Wendy turned around and said Brad would pay me three grand to do it. Q84 O.K. A I turned around and I said, 'All right'. And set her car on fire, you know what I mean, like, well they put $1,000 in me sisters TAB account and Wendy come and picked us up. Q85 On that day? A On that day. Then I turned around and said to her, what did she want me to do? She turned around and she goes, 'Look, I'm going to get, Brad's going to give me the keys, all you have to do is just run inside or whatever, throw a bucket of petrol down and light it'. Q86 Ah hmm. A And I said to her, I said, 'But what about if Katie's there?' She goes, 'She won't be, I swear to you she's not going to be home'. I turned around and I said, well, I was a bit iffy about it, you know what I mean, like, but they had put the money in. And then she turned around and started saying to me like, 'I swear to you, she's not going to be home'. She swore, like, no one else is going to be there, all it was just to scare the shit out of her. Q87 Ah hmm. A So when she picked me up, like I said, I went to K-Mart, I got a container, went up the servo, filled the container. And then Wendy turned around and said that she was going to come in with me. I turned around, I ran up the stairs, I threw a bucket of petrol on there. Q88 Where? A In a room. Q89 Ah hmm. A Wendy turned around and threw a jiffy firelighter thing in there and the thing just exploded. Q90 While you were still in the house? A Yeah, while I was standing up the hallway. Q91 Did you get any injuries from that? A No. Q92 What happened then? A I was out of there. I was gone. I wasn't sticking around. And then the next day I seen on the news that someone was in the house. I rang Wendy up and what, what am I supposed to say to her? She's just fucked me over for life. Q93 Where was the room? A All, all I did was ran up the stairs, she said run up the stairs and she was right behind me and I went to throw it up the stairs and she turned around she goes, 'No, turn to your thing and throw it'. Q94 When you say turn to your thing, turn… A Like turn to your right. Q95 Yeah. A And she goes, 'Just throw it in there.' Because there was something about, in this room there was supposed to be videos or something of Wendy doing stuff or getting stuff done to her and that. That's all I did. And I was out of there. Q96 Did you see inside the room? A No, it was pitch black in the whole house. Q97 Did you know if anybody was in the room? A No. Q209 What did you think was going to happen when you bought the petrol? A Like I, like I said all I, bought the petrol, all I, what do you mean what do I think was going to happen? Q210 Do you think that there was going to be some damage to property? Did you think you were just going to go and light a bonfire somewhere? What did you think would happen, was going to happen when you bought the petrol? A When I bought the petrol all I thought I was doing was just going to throw it over the car and that was it. Q211 And then why did it change to a room? A Oh, because all of a sudden the phone was supposed to be in the room and not in the car. Q212 The phone? A Yeah, there was something about this phone, that's all she kept carrying on about was a mobile phone that had pictures and, of Wendy being, like having things stuck inside of her and all that. And it was just the phone that she wanted. I told her I'd sooner walk, like go up there and get the phone out of the house. Q213 How did she know the phone would be in that room? A I don't know. Q214 Do you know what sort of room it was? A No. Q215 Did you know if it was a lounge room, a bedroom, a bathroom, a kitchen? A Oh, she said it was a bedroom. Q216 Ah hmm. So Wendy told you it was a bedroom? A Yeah, she said there was heaps of stuff in there, like, that Wendy, that was, I don't know if it was discriminating against, well it would have been discriminating against Wendy because it was photos of her and everything like that." [Emphasis added]
The Crown contends that this material supports a strong case against Mr Spicer and that a jury would be entitled upon this evidence to be satisfied beyond reasonable doubt, in the wider context of the whole of the evidence in the case but exclusive of the material to which exception is taken, that he was aware that the deceased was or may have been in her bedroom at the time of the fire. Alternatively, to the extent that it remains instructive, the Crown contends that the case against Mr Spicer on the issue of what he knew concerning the whereabouts of the deceased is not weak.
There is also other material to which the Crown has pointed in this context. Evidence led at the committal proceedings included forensic material concerned with the cause and probable seat of the fire in the deceased's bedroom. Two experts gave evidence about this.
First, Superintendent Robert Alexander from the Fire Investigation and Research Unit with the New South Wales police service. He was cross-examined by Mr Steel about pour patterns inside the bedroom as appears below: "Q. When you're expressing the term pour do you mean someone inside the room pouring it? A. Yes. Q. But that's a very large area, like several metres isn't it, where there's been petrol poured over? A. What I get from the burn patterns, the damage to the edge of the carpet is that there has been a pour from that western wall around the side of the bed towards the doorway. Normally when people use a liquid accelerant they light the fire from the doorway. … Q. Wouldn't you expect that if petrol had been poured alongside the northern side of the bed there would have been a deep charring along the exposed area where the carpet would have been, not underneath the bed? A. Well, as I said, it's a liquid and it flows to its lowest point and those points that I highlighted in that image which 87 shows pretty well were the lowest points. Now, the thing that you take into account is it's not just being poured on this wooden floor, it's being poured on carpet. So it's got to penetrate it, it's got to run to the lower point. So there'll be a certain amount of residue staying in the carpet and that residue is going to combust before the item, before the petrol underneath it or the liquid accelerant. Q. Given that, you couldn't rule out conclusively that the burn pattern you saw was inconsistent with it being thrown into the room from a bucket rather than someone walking in the room, could you? A. What I find hard to understand with a bucket being thrown into the room is how we've got two areas of heavier damage and areas in between and not. So if you imagine a bucket being thrown how do they concentrate two areas in those two spots? Q. Well, one explanation would be it hitting the western wall and flowing down there, and that's one explanation, and some on the bed, and the bed protecting the floor area except for runoff underneath, correct? A. Yes. Q. And the other one would be an additional throw to the other area where the low point in the room in the north-eastern corner, correct? A. So there was more than one throw? Q. Well, if there was is that consistent? A. Yeah, that could be consistent, yes. Sorry, I thought you said there was one throw, my apologies. Q. No, I did initially indicate that to you, but if it was two throws it would be consistent, is that right? A. Yes, it's possible."
Secondly, Detective Senior Constable Suzanne Payne from the Forensic Services Group at Wollongong Police Station. Some of her evidence was as follows: "Q. Your conclusion there at paragraph 15 what do you say generally about those areas of greater fire damage? A. My conclusion is that this fire was an incendiary or deliberately lit fire using petrol to accelerate the fire. The physical evidence is consistent with petrol having been poured in the northeast corner of the bedroom and on the bed. The petrol has flowed down behind the bed head that was against the western wall and also coated the bedside table on the northern side of the bed. The deceased was either in bed at the time it was dowsed or has come in contact with the petrol and flame at some point and in doing so her clothing has ignited. She has left the bedroom collapsing where she was located in the alcove. There was no other injury or trauma located on the deceased. There was no signs of disturbance in the house nor signs of a forced entry. A number of doors were unlocked at the time of my examination. … Q. What he indicated to the police in his interview is that he was responsible for throwing a bucket of petrol into the room while standing at the doorway, just the contents of the bucket and the area of damage that occurred to the western wall, the bed head area and where marker 3 and marker 5 was that would all be consistent with petrol having been thrown from the doorway location perhaps hitting the bed head, someone on the bed and the wall and seeping down behind, would you accept that? A. Yes. Q. And certainly in what occurred in the north-eastern corner that would be consistent with an additional throw of petrol into that area is that correct? A. Yes."
There will be a significant contest at the trial of what this and similar associated evidence about burn patterns and the like reveal about the position from which Mr Spicer threw or poured the petrol that accelerated the blaze, and the extent to which if at all he was in a position to see the deceased in her bed when he did so. It is sufficient for present purposes to observe that there is competing evidence about these issues. The inferences favourable to Mr Spicer are not necessarily the only inferences available.
The evidence that is likely to illuminate Mr Spicer's knowledge about the presence of the deceased in the house or the bedroom is predominantly, if not completely, circumstantial. His own ERISP contains no admission and on the contrary contains a denial. Other material in that ERISP might reasonably be thought to support a view at odds with that denial, but only inferentially. Anyone else's opinion about it, which is the bulk of the material that Mr Spicer is concerned has the potential to deny him the opportunity of an acquittal, is not admissible against him at his trial and is likely to be excluded in any event. Both the direction to the jury about its inadmissibility in the case against Mr Spicer and the jury's ability to comprehend and comply with that direction are of great potential significance. The question is whether the balance between the prospect that the evidence will adversely and prejudicially affect Mr Spicer's chance of an acquittal on the one hand, and the utility and effectiveness of any necessary direction to counter that prospect on the other hand, sufficiently weighs in favours of a separate trial.
The evidence of the intercepted conversations and the ERISPs is not strong. It is no more than a quite limited collection of conversational hearsay suggestions by some of the various participants that Mr Spicer knew that the deceased would be present in her bedroom. The statements do not explain, beyond mere assertion, how it is that the speakers "knew" what Mr Spicer's state of knowledge was at the time or how that asserted and proclaimed so called "knowledge" on their part came to be acquired.
It will be recalled that in Iskander Davies J was persuaded to order separate trials of the applicant father and his son Andrew Iskander, who were jointly accused of murdering the wife's/mother's lover. The allegedly prejudicial material about which the applicant was concerned included evidence from a school friend of Andrew Iskander about what Andrew had told his friend shortly after the killing. Those statements included details of how Andrew's father allegedly stabbed the deceased, including: "And then pretty much what they did was that they attacked him, eh (sic) smashed a hammer on his forehead and the he (sic) was nearly dead and his dad finished him off with a couple more stabs, into the back and stuff like that. … He just said he got a hammer or something and then he smacked him in the forehead and that's pretty much all he said and that he was nearly about to die and his dad finished him off with the knife so pretty much that's what he told me. … He indicated me like his dad finished him off and stabbed him so I'm presuming that pretty much had the knife."
Andrew Iskander also spoke to a fellow prisoner while on remand awaiting trial. That prisoner gave a statement of what Andrew Iskander told him, which included the following: "[4] ... I asked him what happened. He told me that he and his father were going to knock this guy. I asked him why, and he told me that his mum was having an affair with this guy. I asked him whereabouts, and he said, 'Outside of where the bloke lived'. He told me he did this in February this year. [5] He told me the first plan was to kidnap him, tie him up and take him in the boot to Woolloomooloo. Once they were there, they were going to kill him there. He told me the first thing that happened was his Dad hit him with the car. The man fell, and Andrew got out and chased him around the car. As Andrew got to him, Andrew hit him with the hammer. [6] Then the father jumped out of the car and stabbed the man with a knife. He told me that his father stabbed the man twice. They took off in the car they were in. Andrew told me that his father told him to get rid of all the evidence."
This evidence went directly to the issue of the father's physical involvement in the killing of the deceased. It was evidence that included particular details of how the father stabbed the deceased in circumstances where provocation was raised and where it was potentially inimical to that defence. It was not admissible in the father's trial and yet it would have been difficult for the jury to put out of their mind a statement by the co-accused son that directly placed his father at the scene and involved in acts of violence against the victim that were arguably premeditated rather than responsive or reactive.
In the present case, there is undisputed evidence that Mr Spicer was physically involved in the events that caused the death of the deceased. Mr Spicer has made admissions to that effect. That includes evidence that he threw petrol into the bedroom. There is also evidence that he was interested in the presence of the deceased's phone located in that room. The Crown case will be that the pour and burn patterns suggest that he could not have thrown the petrol from the doorway but that he must have entered the room. The Crown contends that this material is all consistent with a positive case from which a respectable inference could be drawn that Mr Spicer must have known the deceased was present in the bedroom, so that the possible or potential prejudice arising from the material that is objected to is small by comparison, or alternatively non-existent if it is either not led or is rejected. That prejudicial material, by way of contrast, consists of limited and inadmissible hearsay assertions by a co-accused who was not present at the scene concerning what she believed to be Mr Spicer's state of mind or state of knowledge at the time.
In Regina v Patsalis & Spathis [No 1] at [6] Kirby J said: "[6] There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (R v Oliver (1984) 57 ALR 543)."
In R v Symss [2003] NSWCCA 77 at [68] Sheller JA said: "[68] The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts."
The extent to which Mr Spicer will suffer prejudice depends upon what the evidence properly admissible against him is capable of establishing.
The cases against Mr Spicer and Ms Proud are different and distinct. The case against Ms Proud will presumably be based upon her knowledge and agreement to commit the joint criminal enterprise before it occurred. The issues in her trial are therefore likely to be whether she was ever aware that petrol would be thrown into the deceased's bedroom, and that with such an awareness she either participated, or continued to participate, in the enterprise.
The case against Mr Spicer involves the narrower issue of whether he knew the deceased was at home at the time that he threw the petrol into her bedroom. It is not controversial that he was involved in at least a joint criminal enterprise to do that. His case, however, is that the scope of the enterprise was limited to arson, and that he relied upon the assurances given to him by Ms Evans that the deceased was not at home. His case will be in those circumstances that he had an intention neither to kill nor cause really serious injury when he did what he did. Alternatively, Mr Spicer will contend that he did not foresee that such an act would probably cause the death of the deceased.
The Crown case against Mr Spicer is wholly circumstantial in relation to his knowledge and awareness of whether or not the deceased was home at the time. He takes issue with the proposition that the case against him is strong. Before he could be convicted of murder or manslaughter the Crown would need to prove beyond reasonable doubt that he knew or was aware at the time of the act causing her death that the deceased was present in the home. In order to prove that beyond reasonable doubt, the Crown will have to establish that there is no other reasonable conclusion from the circumstances other than he had the requisite knowledge or awareness. The Crown will have to eliminate as a reasonable possibility that Mr Spicer was told by Ms Evans that the deceased was definitely not home and that he believed and relied upon these assertions by her.
There is no direct evidence in the Crown case that Mr Spicer was aware that the deceased was at home at the time. The nature and extent of the prejudice said to arise from the inadmissible statements made by Ms Proud about his knowledge have therefore to be assessed in that context. Mr Spicer submitted that the prejudice is "enormous" and that the Proud material does make the case against him immeasurably stronger. Mr Spicer submitted that it would be asking too much of the jury to put to one side as inadmissible any material that conveys an impression that Mr Spicer knew that the deceased was in the house. In particular, it is said that it is a relevant consideration that the source of the material is not merely from a co-accused in a joint criminal enterprise but from Mr Spicer's de facto partner. The fear is that the jury in such a case would be likely to find the statements to be highly credible.
Mr Spicer contended that it would be, "virtually impossible, as a matter of common sense, for a jury to disregard this prejudicial material in their consideration of the case against" him.
The Crown contends that there is a strong circumstantial case, which is capable of establishing that Mr Spicer either knew that the deceased was present in the home at the time or was at the very least recklessly indifferent to whether she was there or not.
The offence took place at around 2.30am. Mr Spicer knew it was the deceased's home. Her car was parked in the driveway. Mr Spicer had spoken with the co-accused Ms Evans prior to the offence about how she wanted the deceased hurt. Telephone records allegedly show that Ms Proud and/or Mr Spicer and Ms Evans made contact on 38 separate occasions in the twelve-hour period between 2.18pm on the afternoon before the fire and 2.59am the following morning. Mr Spicer had driven from Sydney to Wollongong with Ms Evans the day before the fire. The deceased's bedroom was very small, and it is entirely conceivable that the jury might be satisfied that even if Mr Spicer had not entered it he would nonetheless have been aware that the someone was asleep in the bed. The fire expert evidence indicates seats of fire consistent with petrol having been poured at two locations within the bedroom. Mr Spicer initially denied in his ERISP even going to the house until confronted with listening device product. The Crown contends that his denials are lies evidencing a consciousness of guilt. Mr Spicer was also paid for his role. There is evidence that he belligerently demanded the balance of this money after the event in a way that the Crown submits is consistent with an awareness of the successful completion of the job. The Crown also contends that an inference is available that Mr Spicer was with Ms Evans when she received a text message from the co-accused Mr Rawlinson, who had been with the deceased earlier in the evening, telling Ms Evans that the deceased was by then asleep in her bed.
In all of these circumstances the Crown submits that the prejudice associated with the admission of the Proud material, if it is admitted, is "fairly minimal" considering what the admissible evidence against Mr Spicer alone is potentially capable of establishing. Can it therefore be said that the case against Mr Spicer becomes immeasurably stronger if the Proud material were heard by the jury?
The case against Mr Spicer for murder is fairly strong. It establishes in its own right at least an intention to inflict serious bodily harm upon the deceased or a reckless indifference to her life. Each of these possibilities is capable of being established by the fact that Mr Spicer took an extremely flammable substance to the deceased's home to set her bedroom alight without doing anything beforehand to establish, consistently with his denials that he did not intend to harm her, that she was in fact not there at the time. There is an available conclusion that Mr Spicer did know that she was there.
In my opinion the potential prejudice is small. This is for at least five reasons. First, the prejudicial material complained of is in a narrow compass. It consists of statements made by only one person, not in Mr Spicer's presence, and he otherwise and elsewhere denies its truth. The inadmissible evidence is therefore quite confined, correspondingly discrete and easily distinguishable from the balance of other admissible evidence against him. Secondly, because the statements are so limited and narrow, they are capable of being efficiently and conveniently quarantined for the purposes of formulating appropriately concise and straightforward jury directions, possibly in writing, about disregarding them entirely for any purpose in the case against Mr Spicer. Thirdly, there is a wealth of admissible evidence, albeit circumstantial, with the benefit of which the jury could confidently formulate its conclusions, whatever they might be, unburdened by the lurking but inadmissible influence of the objectionable material. The Crown's submission on the strength of its case against Mr Spicer was formulated on this application as one that would effectively swamp the potential prejudice arising from the inadmissible material that may become evidence in the case against Ms Proud. Fourthly, there seems to me to be a highly likely and ever present prospect that none of the material to which Mr Spicer takes objection will ultimately either be led by the Crown at all or admitted over objection from Mr Spicer if it is. Finally, I am required to give effect to the wisdom that the jury can be expected to consider the evidence in the light of and according to the directions that they are given and the oaths by which they are bound: for example, Gilbert at [31].
I do not consider that this is a case in which the prejudicial material, if it is admitted, could turn a potential acquittal into a conviction. I do not consider that the prejudice is so great that it cannot be overcome by appropriate directions. It is not therefore in the interests of justice that Mr Spicer be tried separately from Ms Proud. I do not consider that a positive injustice will otherwise be occasioned to Mr Spicer.
I am not prepared in the circumstances to order a separate trial.

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