R v Rawlinson; R v Proud; R v Spicer

[2014] NSWSC 149

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 149
Hearing dates:	3-7, 10 February 2014
Decision date:	10 February 2014
Before:	Harrison J
Decision:	Discharge the jury and commence trials afresh
Catchwords:	CRIMINAL - jury trial - relationship between anticipated witness and juror - application to discharge jury - whether possible to discharge juror without the balance of the jurors remaining with knowledge of the relationship
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

EX TEMPORE Judgment

1. HIS HONOUR: This trial is currently in its fifth day and second calendar week. The proceedings got underway last Tuesday following the unfortunate discharge of the jury empanelled on the first day.

1. During the course of the four days utilised in this Court in these trials last week the matter proceeded - to my mind at least - in a very efficient fashion with the disposition of 27 witnesses who gave evidence in Court or by statement as well as with the tender of some documentary and electronic exhibits.

1. At the commencement of proceedings today, I was informed that the next witness is a Ms Lynette Howard. I am informed that Ms Howard is the mother of Wendy Evans, a woman who has received significant mention from many witnesses during the course of the evidence taken last week.

1. Ms Evans is significant in the scheme of things in as much as she has pleaded guilty to the murder of the deceased which is the same charge upon which the accused are all facing trial.

1. In the events that have occurred, the Crown has quite properly drawn to my attention a matter that came to his notice, being that Ms Howard is a member of a sporting or social club and sits as the president of that club on the same committee as one of the jurors. That juror is the secretary of the club. That club operates in the local geographical and social precinct.

1. The Crown has indicated that in the circumstances the continuation of this trial with this jury has been actually or potentially imperilled. I raised with counsel the prospect that a solution to the problem could lie in declining to call the prospective witness. That solution upon reflection and with the benefit of submissions from counsel is indeed no solution at all. That is partly if not principally for the reason that the notoriety of Ms Evans in the scheme of things so far and the potential relationship between the juror and her mother however close or distant, raises a significant and troublesome perception. It goes without saying that the appearance that this trial operates according to the rules is as important as the fact that it should actually do so.

1. The Crown raised with me the possibility that, in accordance with authority, I could take the course of interrogating the juror with a view to ascertaining if possible whether the other jurors knew about the relationship. As superficially attractive and practically helpful as that approach may at first sight appear to be, it remains in my view troubled by the same problem. Human nature being what it is, doubts could remain about the veracity of any denials by that juror that other members of the jury had already been told.

1. Counsel for each of the accused has indicated in helpful submissions to me that in the circumstances there is no option but to discharge this jury. As unfortunate and inconvenient as that outcome may appear to be, the guarantee that the accused should obtain a trial that is not only fair, but which also appears to be fair, is paramount and should prevail to the exclusion of all other factors.

1. In the circumstances I consider that there is no alternative but to discharge the jury and to commence these trials afresh as soon as it is possible to do so. I will raise with counsel in due course the practical matters attending the recommencement of this trial.

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