R v Rawlinson; R v Proud; R v Spicer
[2014] NSWSC 171
•04 March 2014
Supreme Court
New South Wales
Medium Neutral Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 171 Hearing dates: 18-21, 24-28 February, 3-4 March 2014 Decision date: 04 March 2014 Before: Harrison J Decision: See [63]
Catchwords: CRIMINAL - evidence - admissibility of evidence - joint trial - whether evidence more prejudicial than probative - whether prejudice can be cured through appropriate jury directions - application for view -Evidence Act 1995 s 53 - whether view necessary in the circumstances - application granted Legislation Cited: Evidence Act 1995 Cases Cited: R v Hawi & ors (No 7) [2011] NSWSC 1653 Category: Procedural and other rulings Parties: Regina (Crown)
Bradley Max Rawlinson (Accused)
Michelle Sharon Proud (Accused)
Bernard Justin Spicer (Accused)Representation: Counsel:
C Maxwell QC (Crown)
W Terracini SC (Rawlinson)
D Pullinger (Proud)
N Steel (Spicer)
Solicitors:
Director of Public Prosecutions (Crown)
Archbold Legal Solutions (Rawlinson)
Medcalf Grant Lawyers (Proud)
George Smirilios (Spicer)
File Number(s): 2011/410710 (Rawlinson) 2011/410458 (Proud) 2011/410452 (Spicer) Publication restriction: Nil
Judgment
HIS HONOUR: All accused wish in various ways to contest the admissibility of certain material upon which the Crown proposes to rely. At the heart of the competing contentions is the question of whether material in a joint trial that is clearly admissible against one accused, but not admissible against the others, should be excluded upon the basis that its unfairly prejudicial effect upon either or both of the other accused cannot be ameliorated or eradicated by appropriate warnings or directions. The issue requires consideration, among other things, of whether directions to the jury, that they must disregard the evidence when considering the guilt or innocence of the accused in whose cases the evidence cannot be used, will be adequate or sufficient to neutralise or dispel the prejudice potentially arising if the directions were not heeded or followed.
The material in question has been helpfully collected in a folder with coded markings to indicate what is and what is not contentious. Agreement has already been reached with respect to much of the material. It will, however, be necessary for present purposes to set out in every case those parts of the evidence that remain in dispute.
Intercepted phone calls from gaol
On 15 January 2012, Bernard Spicer spoke on the telephone from gaol to Peggy Case in terms that included the following:
"Spicer: Everyone knows about me, it was on the news. Even, when I went to classo the other day he goes what are you, he looked he goes who did you murder, I said some solicitor. He goes the one in Wollongong.
Case: You're meant to say nobody.
Spicer: Yeah, but it's on there as that so they ask."
The Crown contends that this material is capable of amounting to an admission. Mr Spicer disagrees. He submits that the material is unfairly prejudicial to him because the context makes it plain that Mr Spicer was answering a question that asked in effect who it was that Mr Spicer is alleged to have murdered.
Mr Spicer is plainly repeating details in this call of the conversation he had with some prison officer or other official in the gaol. The conversation that Mr Spicer is talking about appears to have all the hallmarks of a provocative jibe by the prison official in question, baiting Mr Spicer with a request for details of why he was there, and proceeding on the unspoken and unqualified assumption that he must be guilty. Mr Spicer's answer also appears to me to have been given in the same vein.
I do not accept that Mr Spicer was making any admission of having committed the crime to which the prison officer referred. I am also of the view that the probative value of the evidence is outweighed by the danger of unfair prejudice to Mr Spicer.
On 27 January 2012, Mr Spicer again spoke on the telephone from gaol to Ms Case in terms that included the following:
"Spicer: But this one will determine how long I stay in gaol like they'll say all right we'll. ...Five years or something.
Case: Mmm.
Spicer: It's going to be better than fuckin' doing twenty-five.
Case: Yeah, that's true."
Mr Spicer contends that this material is completely irrelevant. It falls to be considered in the context of the conversation as a whole. Earlier in the conversation, Mr Spicer says, "they can't charge me with murder 'cause I didn't know she was home." He goes on to say, "they can only charge me with the fire so hopefully they'll turn around and say all right you plead guilty to this and we'll give you this." A review of the whole of the conversation reveals that Mr Spicer is hoping to come to some kind of plea bargain. He recognises that there is a risk of a sentence of 25 years if no such bargain is reached and he is convicted of murder.
There has always been a disinclination to place material before juries that deals with the length of any sentence that an accused person who is facing trial might be given or become liable to if convicted. The Crown's purposes are adequately and accurately served by the parts of the conversation to which no objection is taken. I consider that the words "It's going to be better than fuckin' doing twenty-five" should be rejected. The probative value of these words is in my view clearly outweighed by the danger of unfair prejudice to Mr Spicer.
On 31 December 2011, Michelle Proud spoke on the telephone from gaol to Ms Case in terms that included the following:
"Proud: What's wrong?
Case: Nothing.
Proud: Don't cry.
Case: I can't help it.
Proud: Huh?
Case: I can't help it.
Proud: Why, what's wrong?
Case: But, I just can't believe it. I never ever thought he'd do somethin' like this ...
Proud: I told you that I'd have to explain it to you, I can't explain it to you over the phone, but pretty much it wasn't supposed to happen like that, it was more ---
Case: Doesn't matter how it was meant to happen.
Proud: It's more the other person that's involved in it, but this, what's happened with this person, was not supposed to happen like that. It was just supposed to be a scare. But I'd have to explain it to you more, I can't do it over the phone, but it wasn't ---
Case: Yeah, yeah, yeah.
Proud --- it wasn't, it wasn't, BJ wasn't supposed to go in there and do that, it was more the other one, OK, so ---"
This material is admissible as evidence against Ms Proud but is not admissible as evidence in the case against Mr Spicer. Although there may be other evidence that touches the question, it is on one view not clear on the face of this material whether Ms Proud is speaking as a person who knew before the fire what had been planned, or as a person who only learned later what had occurred. It is nonetheless arguably important evidence in the Crown case against Ms Proud with obvious probative value that she had knowledge of what occurred at some time.
Whatever might ultimately be seen as the answer to that question, Mr Spicer says that this material is so unfairly prejudicial to him that no warning or direction to a jury that it cannot and should not be used by them to reason toward a guilty verdict or be used in any other way whatsoever in his case is capable of dispelling that prejudice.
It is not at all clear, in using the words, "I never thought he'd do somethin' like this" that Ms Case is referring to Mr Spicer. That remains so even in light of the words, "BJ wasn't supposed to go in there and do that, it was more the other one." However, in my view those latter words are definitively prejudicial to Mr Spicer. Even though Mr Spicer objects to the whole of the passage I consider that the unfair prejudice to him can be adequately and sufficiently overcome by the rejection of the words, "BJ wasn't supposed to go in there and do that, it was more the other one."
On 1 January 2012, Ms Proud spoke on the telephone from gaol to Cecilia Todorovic in terms that included the following:
"Proud: --- he literally didn't do it how she thinks he's done it, you know what I mean, but yeah ---
Todorovic: So, he, he was led to believe there was nobody in the house, that right, or not?
Proud: No.
Todorovic: Oh, OK.
Proud: It's, I, it's hard to, because ---
Todorovic: Yeah.
Proud: --- my phone calls get recorded.
Todorovic: Yeah, I know, love, no don't worry ...
Proud: But, yeah, but it wasn't supposed to turn out like the way it was, it was only supposed to be a scare.
Todorovic: Yeah.
Proud: But, I'd have to explain it to you more, when I see you next, how it really, what ---
Todorovic: ...
Proud: --- really happened, for it to go like that, but yeah, it was only supposed to be a scare, not this total whole thing that it's turned out to be."
Once again this material is admissible in the trial of Ms Proud but entirely inadmissible in the trial of Mr Spicer. He contends that it is unfairly prejudicial to him in a way that cannot be cured by an appropriate warning or direction to the jury.
It is not clear from this conversation taken in isolation whether Ms Proud is speaking about what she knew in advance of the fire or only about what she has later been told. The probative value of the material in the Crown case against her will have to deal with that uncertainty. It is nevertheless evidence of some value to the Crown in its case against Ms Proud.
However, there is an obvious and potentially unfair prejudice to Mr Spicer if all of this material is admitted. References to things like, "it wasn't supposed to turn out like the way it was, it was only supposed to be a scare", are contained in other statements made by Ms Proud in recorded conversations. They are not in my view prejudicial, and certainly not unfairly prejudicial, to Mr Spicer. The same cannot be said of the statements that deal with advance knowledge of who was in the house. That question has been foreshadowed by counsel for Mr Spicer as his response to the Crown case. It has nothing to do with the case against Ms Proud. It is apt to identify, or be assumed unfairly by the jury to identify, Mr Spicer as the person about whom Ms Proud is speaking. I am doubtful that any warning or direction to the jury could adequately neutralise or eradicate the prejudice that some of the words spoken by Ms Proud could create. In my opinion it is not necessary to reject all of that part of the conversation to which Mr Spicer takes objection, but the following words should be entirely rejected:
"Proud: --- he literally didn't do it how she thinks he's done it, you know what I mean, but yeah ---
Todorovic: So, he, he was led to believe there was nobody in the house, that right, or not?
Proud: No.
Todorovic: Oh, OK."
Recovered text messages and recorded phone messages
On 2 November 2011, a text message was sent from a public telephone to the mobile phone of Wendy Evans in these terms:
"HEY U HAVE 1 HR 2 PUT MY MONEY IN TAB OR IM GOIN 2 HIS 2 WEL U KNO I DNT CARE WHO GTS HURT IF NOT THERE I WIL HUNT U DWN DNT FUK ME."
There is no way of establishing who in fact sent this message. The highest point for the Crown in this respect is a contention that Mr Spicer has elsewhere used language that is redolent of that used in this text, and that the jury could fairly reason from the evidence as a whole that he was its author. Mr Spicer submits that the material is unfairly prejudicial to him, as he does not know who sent the text and has no way of verifying its authenticity or provenance. On the contrary, the Crown's submission that it was sent by him has little probative value when compared to other similar messages of which he is arguably the author and which strongly indicate that Mr Spicer was demanding his money.
The most fundamental difficulty with this material is that it cannot be sourced to Mr Spicer. It is unfairly prejudicial to him in the circumstances. Its probative value is also very limited, especially by comparison with other evidence of similar threats made from sources arguably traceable to Mr Spicer. I consider that the Crown's proposal to tender this message against Mr Spicer should be rejected.
On 17 November 2011, Mr Spicer left a recorded voice message on the mobile phone of Wendy Evans in these terms:
"I'm going to fucking kill you, you dog. Wait till I get you."
Mr Spicer's objection to this message is not that it cannot be shown to be from him, but that the language used is apt unfairly to sway a jury against him. References to killing Ms Evans are said to be likely to inflame sentiment against him in the particular context of his trial on a charge of murder.
I disagree. The jury has already heard, and by all accounts are likely to receive considerably more, violent and aggressive suggestions from a number of sources. I perceive nothing particularly prejudicial, and certainly nothing unfairly prejudicial, to Mr Spicer in the circumstances. On the contrary, the probative value to the Crown is high, especially given Mr Spicer's answer to the police at question 254 in his 21 December 2011 ERISP when he said, concerning Ms Evans, "Like I even told her not to worry about the rest of the money that she owes me. I just don't want anything to do with it."
I consider that the material to which objection is taken is admissible.
On 15 December 2011, Michelle Proud called Bernard Spicer. Towards the end of the conversation Mr Spicer said the following:
"'Cause I'm telling you, fuckin' (pause) I swear to God, if they fuck me they won't have to worry about fuckin' some cunt hunting them down 'cause I'll get them.
...
I don't care. You just tell her if she fucks me, if my name gets mentioned I'll dead set, I'll hunt her down and I'll kill her myself."
Mr Spicer objects to this material on similar grounds. (No objection was in fact taken to the first sentence but it seems to me that it deserves consideration in the same context as the second sentence). In my opinion the evidence is admissible for the same or similar reasons as those expressed with respect to the immediately preceding objection.
On 18 December 2011, Ms Proud left a recorded voice message on the mobile phone of Wendy Evans in these terms:
"I want my fucking money bitch and this is Michelle. Where is my fucking money? I'll come down and I'll hunt you down. I know where Brad lives so don't fucking stuff me around. I'm nearly kicked out of my fucking house."
This material falls into a similar category. Ms Proud objects to it being admitted upon the basis that it will or may incite an unfair and emotional response from the jury, having regard to the language that she has used. In my opinion its probative value is high and it is not unfairly prejudicial to her. It is plainly admissible and I propose to allow it. To the extent that it throws up any question about who may be the author of the expression "hunt you down" to be found elsewhere in the evidence, it amounts to a classic jury question and they should be entitled to consider it.
Michelle Proud's ERISP
Ms Proud gave an electronically recorded interview with the police on 21 December 2011. Part of the interview is as follows:
"Q463 O.K. So what did Wendy also tell you about this?
A She just kept going on that she wants her done real good for all the threats and what she's put Brad through, what Katie's put Brad through. That Katie threatened Brad for a few times and that Brad has come over to Wendy's house with bruises on him and everything, where Katie's hit him with pots and pans and, and that Wendy was just sick of it. She was sick of being scared, she was sick of being threatened. She's my friend, she'd been stalked.
...
Q501 O.K. The $1,000 ---
A BJ told me that there was $1,000 put in the TAB account.
Q502 When?
A Ah, that day, the day Wendy came and picked us up.
Q503 O.K. What did he tell you about that $1,000?
A He told me that Wendy had told him Brad had put it in or something like that. I'm not, I'm not too sure, but he told me Wendy had put the money in to help us down at Wollongong.
...
Q512 And when you say they were going to pay three thousand, who was ---
A Brad and Wendy.
Q513 Who was going to pay her?
A Wendy was getting the money off Brad.
...
Q556 But when you say ---
A Because, because it's very confusing because I don't know most of it, I've just heard here and here what's going on. Um, the first thing Wendy told me in the car was it was um, Brad was going to leave the door unlocked when he went there. And then all of a sudden I'm hearing that there was a key dropped.
...
Q561 And what was the purpose of Brad going to the house?
A Apparently Wendy told me in conversations we've had that Brad would still go over there.
Q562 Right.
A Every afternoon.
Q563 O.K.
A He'd go there, sit with her or what not and then he'd leave. Because that's why Wendy said it was too hard for her to see him because he was always over at Katie's.
Q564 If the door was left, if Brad, if the plan was for Brad to leave and leave the door, the door unlocked or the sliding door unlocked?
A The door unlocked I think it was.
Q565 What's the purpose of the key?
A Well it must have changed. I don't know. He might've gave Wendy a key and that 'cause he had two keys. This is what Wendy told me. He had two keys, he gave her one.
Q566 He gave, Brad gave Wendy a key ---
A A key.
Q566 --- to the house?
A Yep.
Q567 Being 6 Doncaster Street, Corrimal, where Katie lives?
A Yeah."
Mr Rawlinson objects to question and answer 463 upon the basis that it is hearsay in the first place, about the state of mind of Wendy Evans who is not available for cross-examination in the second place, and inadmissible against him in the third place. His concern is that the frailty of the evidence alone, or in combination with the fact that the jury will have to be warned and directed about the use that can be made of it, causes him unfair prejudice.
The evidence is important in the Crown case against Ms Proud. It arguably places her before the fire with knowledge of what is to take place. It is on one view highly probative of Ms Proud's participation in the alleged joint criminal enterprise that led to the death of the deceased, albeit necessarily in combination with other evidence about that. However, these considerations are not relevant to the single question of whether or not the perceived prejudice to Mr Rawlinson can be adequately ameliorated or eradicated by a proper warning or direction to the jury.
I am unable to discern any particular prejudice from this evidence that might be caused to Mr Rawlinson at all. It is relatively inconsequential in the scheme of anything contributed in this ERISP by Ms Proud, particularly when compared to question and answer 459, and the earlier answers that provoked it, to which Mr Rawlinson takes no objection.
I consider that this evidence is admissible.
Mr Rawlinson objects to questions and answers 501 to 503 and 512 to 513. There is independent evidence to support the allegation that Mr Rawlinson deposited $1,000 into a TAB account prior to the fire. To that extent there does not appear to me to be any unfair prejudice to him from the somewhat anodyne response by Ms Proud to these police questions.
I consider that this evidence should be admitted. An appropriate warning or direction can adequately deal with any potential prejudice arising from the fact that it cannot be used by the jury in the case against Mr Rawlinson.
Mr Rawlinson objects to question and answers 556 and 561 to 567. He is concerned that they are not evidence against him and if admitted as evidence in the trial they will require a warning and direction to the jury to that effect. They also contain hearsay material that cannot in any event be challenged.
The subject matter of this evidence is to some extent confusing and inconsistent. It contains contradictory suggestions that the door to 6 Doncaster Street, Corrimal was to be left unlocked on the one hand but also contains the suggestion that two keys were to be provided on the other hand. There is evidence in the trial already that a key was located by police somewhere outside the premises following the fire.
This evidence is arguably supportive of the Crown case against Ms Proud of her knowledge of the details of what was to occur at the scene of the fire beforehand. It obviously remains open to the suggestion that it is no more than Ms Proud's recitation after the event of what she had been told did occur, and therefore less helpful if not completely unhelpful to the Crown case against her.
It is significant in this context that Ms Proud does not suggest that she had any knowledge of what was to occur that derived from Mr Rawlinson. All of her assertions about his alleged involvement are hearsay statements that come from others. In the case against her, the truth of the assertions made to her is less important than her knowledge of them and the time relative to the fire that she acquired the knowledge.
The issue for determination is whether this material, if admitted, is capable of being effectively quarantined in the case against Mr Rawlinson as evidence upon which the jury cannot and should not rely in reasoning towards its verdict in his trial.
I have come to the conclusion that this material is so prejudicial to Mr Rawlinson that it should be excluded. The reliability of Ms Proud's assertions is arguably small. She disclaims in terms its source in the statement, "I've just heard here and here what's going on". Whilst that disclaimer may be wholly self-serving, it potentially adds to the prejudice that Mr Rawlinson identifies. Moreover, Ms Proud says in some of the material that, "[a]pparently Wendy told [her] in conversations [they've] had that Brad would still go over." Ms Proud's confidence in the correctness of this assertion is absent on its face. In addition, question 564 is egregiously leading and the answer to question 565 is inconclusive.
Taken as a whole I consider that this evidence is unfairly prejudicial to Mr Rawlinson in the sense that it cannot be made the subject of a warning or direction to the jury, that it is not to be treated in any sense as evidence in the Crown case against him, that I have any confidence will be, or is likely to be heeded or followed. There is a distinct prejudice to Mr Rawlinson that such a warning or direction will be disregarded because of the subject matter being discussed.
Bernard Spicer's ERISP
Bernard Spicer also gave an electronically recorded interview with the police on 21 December 2011. Part of the interview is as follows:
"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 a $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'.
...
Q135 O.K. Did she describe to you anything about that? Just basically checking that ---
A She wanted to, all, all she said, all she said, all she's ever said to me about Brad was that Katie didn't know her, him, like her and Brad were sleeping together.
...
Q139 Was Brad meant to have been at Katie's house?
A Brad, Brad was the one that gave Wendy the keys, his keys to the place because no one was there.
Q140 When, when ---
A Well that's what Wendy told me
...
Q167 Yeah.
A And Michelle turned around and she goes, 'Well Wendy said it's going to be all right'. Like because she had the keys and that, oh well, rightio.
Q168 O.K. So then what happened?
A Well, I, I didn't, I didn't want to go back. I went in the bathroom and I took some drugs and they weren't helping, nothing was. It was just something weird about the whole thing.
Q169 What did you say, you took some drugs, what do you mean?
A I took some drugs.
Q170 Like what?
A I had some Ice.
...
Q224 Yeah. And you gave it back to her?
A Well she had to give them back to Brad.
...
Q226 And what did Brad want to get done?
A I think it was more, about how, all this stuff on, like I said, on the phone and that.
Q227 Yeah. But why, why is Brad paying for this ---
A Because him and Wendy are together.
...
Q261 O.K.
A But that's not including the money that she give us for the motel and all that.
Q262 So that's on top of paying for the, how did you pay for the hotel?
A Cash.
Q263 Who's cash?
A The money that they give us.
...
Q268 Does Michelle have any money?
A No.
...
Q368 Yeah.
A --- and I even said to Michelle, I said, 'Oh, well we just scored a thousand bucks out of them'.
...
Q385 Have you been discussing with Wendy the last week, the payment of any further money for this matter?
A Michelle said something to her about money.
...
Q417 Yeah.
A I bought some drugs with it.
...
Q430 Right. And when you said you'd, you, you use Ice do you?
A Yeah.
Q431 O.K. And you'd had that when?
A I ended up having, I ended up buying half a gram. And I think I had a little between the time I got to Wollongong until about 2 o'clock."
Mr Rawlinson objects to questions and answers 83 to 85. The only prejudicial material in this sequence of questions are the words, "Brad's going to give me." They can be conveniently excised without doing injustice to the balance of the material. Leaving them in as part of the ERISP would in my view cause unfair prejudice to Mr Rawlinson. It could not be said that a jury direction or warning about the legitimate use that they could make of this evidence would likely be sufficient to eradicate or ameliorate the prejudice.
For precisely the same reasons I consider that questions and answers 139 and 140 should also be excluded. Question and answer 135 do not fall into that category and can remain.
Ms Proud objects to question and answer 167. This evidence is not admissible in the case against her. It is objectionable as evidence of the truth of what Wendy Evans is alleged to have said. Wendy Evans will not be called as a witness. It is unfairly prejudicial to Ms Proud in the sense that a jury might illegitimately reason from it that Ms Proud had foreknowledge of what was to occur at 6 Doncaster Street, Corrimal. It is inadmissible against her and I am fearful that a warning or direction to the jury about its unavailability as evidence in Ms Proud's trial may not be heeded or followed.
This evidence should be rejected.
Mr Spicer objects to questions and answers 168 to 170 and 430 to 431. They refer to his use of drugs, specifically ice. He maintains that this evidence is not probative of anything, is therefore irrelevant and is otherwise prejudicial.
I disagree. This is evidence out of his mouth. It touches a circumstance that the jury might consider to be relevant. It suffers from a lack of specificity, in the sense that the quantity of the drug consumed, as opposed to the quantity of the drug purchased, is not indicated. Be that as it may, whatever its underlying usefulness or lack of it, this evidence is an admissible part of the factual matrix. I am not satisfied that any prejudicial pejorative effect flows from the admission of drug use in this society in 2014. If it does, its prejudicial effect in the circumstances in question is not relevantly unfair to Mr Spicer.
Mr Rawlinson objects to question and answer 224. It refers to the issue of the keys. It falls to be assessed in the same fashion as the earlier evidence dealing with that issue. I consider that it should be rejected.
Mr Rawlinson also objects to questions and answers 226 to 227. This evidence is not admissible against him. This evidence has the potential to be used by the jury in consideration of the case against him even notwithstanding a warning or direction to the contrary. I consider that it should therefore be rejected.
Ms Proud objects to questions and answers 261 to 263 and 268. She contends that the material is not relevant, even though inadmissible against her. The material does not appear to me to create an unfair prejudice to Ms Proud, in the sense that the jury might illegitimately use it as evidence against her. There is other evidence in the proceedings so far dealing with payments of money. This evidence is entirely capable of being quarantined by a jury following an appropriate warning or direction. I have little doubt that the prospect of misuse of this material by the jury is negligible in the circumstances. It should be admitted.
Ms Proud objects to questions and answers 368 and 385. This evidence is not admissible against her. It is highly prejudicial inasmuch as it suggests that she and Mr Spicer had both earned money for what he had done. Her case is at the very least that she was not concerned to benefit in a monetary or financial way from any arrangement or agreement to kill the deceased. Given her relationship with Mr Spicer, this evidence is potentially inimical to that position and could easily be illegitimately used by the jury to her detriment even if an appropriate warning or direction were given. I consider that it should be rejected.
A view of the scene
R A Hulme J recently mused that if a "picture is said to be worth a thousand words... sometimes a firsthand look can be worth a thousand pictures": see R v Hawi & ors (No 7) [2011] NSWSC 1653 at [1]. In this case the Crown proposes a view of 6 Doncaster Street, Corrimal, preferably at night or in conditions that otherwise mimic or resemble as closely as possible the conditions on the night that the deceased was killed. The premises were partly destroyed by the fire but have since been restored to a habitable condition.
A significant issue in the proceedings against Mr Spicer is whether or not he could have become aware that the deceased was asleep in her bed in the upstairs bedroom when the fire was set. He agrees that he threw petrol into her bedroom but denies that at the time he did so he was aware of her presence, whether by reason of knowledge already acquired or, significantly for present purposes, by reason of anything that he saw or observed inside the bedroom when he did so. I anticipate that it will be contended on his behalf that Mr Spicer did not enter the bedroom at all, and that the deceased's presence inside it could not be observed from the position that he took. It may well also be his case that, to the extent that he might be thought to have moved inside the deceased's bedroom to any greater extent than a position in the doorway, he could even so still not see the deceased in her bed and that he in fact did not see her.
Evidence in the form of a video recording of a walk through of the premises in their burnt and damaged condition has been tendered on this application. I am informed that it will become evidence in the Crown case without objection. It depicts the interior of the deceased's house, including the stairway leading up to the first floor, the landing where the body of the deceased was discovered and her bedroom as well.
The Crown contends that the precise scope of the premises and the relative relationships and sizes of these rooms in particular cannot be adequately discerned from the video material. The Crown submits that a view is essential to enable the jury properly to appreciate the layout of the premises and to assess what are foreshadowed to be the competing contentions concerning them.
Mr Spicer maintains that the view is unnecessary. He submits that there is a danger that any inspection of the premises might be unfairly prejudicial to him, and might also be misleading or confusing, quite apart from potentially causing or resulting in an undue waste of time: see s 53(3)(c) of the Evidence Act 1995.
Mr Spicer's submissions appear to proceed upon the basis that transporting the jury to the scene of the fire and subjecting them at close and confined quarters to the cramped spaces where the deceased lived and ultimately died could only stir emotions and sentiments that would be unfairly prejudicial to him. I accept that the proposed inspection may, but will not certainly, be accompanied by some prejudice. I disagree that such prejudice will be unfair. I do not consider that Mr Spicer would be exposed to any greater disadvantage than already exists in the face of his admission, through his counsel and his pleas, that he was present and directly involved in the commission of acts that killed the deceased.
On the contrary, to the extent to which Mr Spicer has foreshadowed a defence that seeks to rely upon the internal layout or configuration of the premises, it would be potentially misleading to restrict the Crown to a reliance on photographic, diagrammatic and video evidence. Moreover, the fact that the premises have been restored since the fire limits and constrains the potentially prejudicial effect that might possibly have flowed from an inspection conducted in the damaged conditions that existed when, and in which, the body of the deceased was discovered.
Some suggestion has been made that the altered state of the premises may in fact add to the prejudice. Visual and aural aspects or characteristics of the house may now be consciously observable or subliminally detectable that formerly did not exist. For example, for all anyone presently knows, the stairs may now creak when walked upon in possible contrast with the position in October 2011 or vice versa. This to my mind is difficult to identify or assess, but is not unlike the prospect that an inspection of a bushland setting some years after the event must necessarily take account of the fact that vegetation may have grown or may have been removed. It seems highly unlikely to me that any differences of this type that can be shown to exist will have a relevant effect upon the benefit that a view might otherwise provide.
I consider that the Crown's application for an inspection of 6 Doncaster Street, Corrimal should be allowed.
Conclusions
The conclusions I have reached will be apparent from what appears above. I will grant liberty to the parties to apply without notice in the event that there is any dispute about the scope or content of my evidentiary rulings. I will also hear the parties if and when required concerning any outstanding or remaining rulings if the prospect of agreement among the parties about them has not materialised.
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Decision last updated: 09 December 2014
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