R v Spicer

1. [1]

   HIS HONOUR: Bernard Spicer and co-accused Michelle Proud and Bradley Rawlinson have been jointly indicted for the murder of Katherine Foreman on 27 October 2011. By his notice of motion filed on 30 October 2013, Mr Spicer seeks an order that he be tried separately from his co-accused Ms Proud pursuant to s 21(2)(b) of the Criminal Procedure Act 1986. That provision is in these terms:

2. [2]

   The application is based on several grounds as follows:

   1. (1)

      That evidence that is to be led by the Crown against Ms Proud, which is not admissible against him, will be highly prejudicial to him in a joint trial.

   2. (2)

      That there is a significant risk that this highly prejudicial material could turn a potential acquittal into a conviction.

   3. (3)

      That the prejudice is so great that it will not be overcome by directions.

   4. (4)

      That it is in the interests of justice for him to be tried separately from Ms Proud as a positive injustice would be caused to him by a joint trial.

3. [3]

   The Crown opposes the application.

Legal principles

1. [4]

   These principles are well established and were not in issue.

2. [5]

   Where co-accused are said to have been acting in a joint criminal enterprise, a joint trial is the norm: see Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 89. The applicant for a separate trial bears the onus of establishing otherwise. The applicant must demonstrate that there is a real risk that a positive injustice would be caused to him as a consequence of a joint trial: Regina v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1999) 107 A Crim R 432 at [6]-[13].

3. [6]

   In R v Pham [2004] NSWCCA 190, Adams J said this at [38]-[40]:

4. [7]

   These observations were approved in Madubuko v R [2011] NSWCCA 135 at [32]. In R v Iskander [2011] NSWSC 1192, Davies J also observed at [32], [35]-[36] as follows:

5. [8]

   This decision is referred to in more detail later in these reasons.

Background

1. [9]

   The Crown alleges that Mr Spicer murdered the deceased Katherine Foreman at her home at Corrimal on 27 October 2011. The deceased died from burns she sustained when her house was set alight in the early hours of the morning whilst she was asleep. Mr Spicer accepts that he was present at the house on the morning of the fire and threw petrol from a bucket into the deceased's bedroom. It was then ignited by Wendy Evans, who has pleaded guilty to the murder. Mr Spicer has maintained in an ERISP that Ms Evans assured him that the deceased would not be home and that the fire was "just to scare the shit out of her." He said that the house was in complete darkness and that he did not know that anyone was in the bedroom.

2. [10]

   The Crown proposes to lead evidence during the trial against Ms Proud, which is not admissible against Mr Spicer. He maintains that such evidence will be highly prejudicial to him. That evidence can be summarised as follows.

3. [11]

   First, on 31 December 2011 Ms Proud is recorded during a legally intercepted telephone conversation with Peggy Case discussing Mr Spicer:

4. [12]

   Secondly, later on 31 December 2011 Ms Proud is recorded during another legally intercepted telephone conversation with Peggy Case discussing Mr Spicer:

5. [13]

   Thirdly, on 1 January 2012 Ms Proud is recorded during a legally intercepted telephone conversation with Celia Todorovich again discussing Mr Spicer:

6. [14]

   Fourthly, Ms Proud is secretly recorded on a listening device installed at 26 Karangi Road, Whalan speaking with Danielle Gallagher in the course of a conversation on 15 December 2011:

7. [15]

   Fifthly, there is material contained in Ms Proud's ERISP dated 21 December 2011. Ms Proud was not present at the premises when the fire was lit. Even though the material in question is unlikely to become evidence against any accused in a joint trial, Mr Spicer relies upon it at this stage as material that, if admitted against Ms Proud, would not be admissible against him, and would necessarily have to be made the subject of a specific direction to the jury to that effect. The portion of the ERISP in question is as follows:

8. [16]

   It is accepted that all references to BJ are references to Mr Spicer.

Submissions

1. [17]

   The Crown proposes to tender these recorded conversations in the trial in the case against Ms Proud as admissions made by her. The Crown will seek to rely upon this evidence to prove her knowledge in relation to what occurred. These admissions are not admissible against Mr Spicer. In particular, Ms Proud's assertions as to Mr Spicer's involvement generally, or his knowledge of whether the deceased was in the house at the time in particular, are not admissible against him.

2. [18]

   It was submitted on behalf of Mr Spicer that in a joint trial, the telephone intercept and listening device material will be played to the jury and that there is a real risk that the Crown case against him will impermissibly be made immeasurably stronger. That is said to be because even a properly directed jury will be unlikely to disregard Ms Proud's statements that Mr Spicer was aware that the deceased was in the house at the time. Mr Spicer is concerned that such a jury will not realistically be able to disregard what Ms Proud has said about him when speaking to third parties, and that her statements that Mr Spicer knew that the deceased was present, even though not evidence in the case against him, will influence their deliberations in a highly prejudicial way.

3. [19]

   Mr Spicer is concerned that even though the jury would be directed that it must consider the evidence against each accused separately, and that it could not use this evidence in considering the case against him, there remains nonetheless a very real risk that the jurors will be unable to comply with such a direction. Whether that failure were conscious or unconscious, it would if it existed lead to an unjust result in his case.

4. [20]

   It goes without saying that Mr Spicer contends in these circumstances that evidence of this type led in a joint trial would create a prejudice that could not be overcome by directions. He is concerned that there would be a significant risk that this highly prejudicial inadmissible material could convert a potential acquittal into a conviction. He maintained that it is in the interests of justice that he be tried separately from Ms Proud as a positive injustice may otherwise be caused to him by a joint trial.

5. [21]

   The Crown has submitted that there are many joint trials that occur regularly in which this very situation arises. Judicial directions crafted to alleviate the prejudice, by explaining what material is admissible, and what material is inadmissible, are regularly given. The Crown contends that Mr Spicer's arguments assume that the jury will disregard such directions and act contrary to them. That argument is not in accordance with long established judicial authority. The Crown submitted that I should assume that jurors will do what their oath requires them to do, which is to consider the evidence impartially, to follow directions of law that they are given and not to be influenced by material that they are directed is inadmissible against Mr Spicer. I was referred to Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [31] and R v Abrahams [2013] NSWSC 729 at [55]. McHugh J's comments in Gilbert are worth repeating:

6. [22]

   The Crown has also contended that the evidence to which the current application relates must be considered against the background of the admissible case against Mr Spicer. In particular, the Crown contends that there is admissible evidence that suggests that Mr Spicer did know that the deceased was present in the bedroom when the fire started. The allegedly prejudicial effect of the inadmissible material had, on this view, to be assessed against the admissible evidence that the Crown contends supported the proposition that Mr Spicer knew that the deceased was in her bedroom. In a contextual way, the alleged prejudice would be lessened or minimised because the jury could arguably come to a conclusion adverse to Mr Spicer about the extent of his knowledge independently of the inadmissible material.

7. [23]

   The burden of this material, contained in Mr Spicer's own ERISP dated 21 December 2011, is to the effect that he was aware that Ms Evans wanted to "hurt" the deceased, as opposed merely to frighten her. Additionally, Mr Spicer gave an account of there being illicit material, apparently recorded on the deceased's mobile phone located in her bedroom, about which Ms Evans was concerned or sensitive. The Crown contended that throwing petrol into the bedroom, as opposed to calmly searching for the mobile phone and taking it if he knew the deceased was not there, was more consistent with her presence in the bedroom than otherwise. This is referred to below.

8. [24]

   The Crown accepted that there might be exceptional cases where a separate trial should be granted. This was not such a case.

Consideration

1. [25]

   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.

2. [26]

   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:

3. [27]

   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.

4. [28]

   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.

5. [29]

   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:

6. [30]

   Secondly, Detective Senior Constable Suzanne Payne from the Forensic Services Group at Wollongong Police Station. Some of her evidence was as follows:

7. [31]

   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.

8. [32]

   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.

9. [33]

   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.

10. [34]

    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:

11. [35]

    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:

12. [36]

    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.

13. [37]

    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.

14. [38]

    In Regina v Patsalis & Spathis [No 1] at [6] Kirby J said:

15. [39]

    In R v Symss [2003] NSWCCA 77 at [68] Sheller JA said:

16. [40]

    The extent to which Mr Spicer will suffer prejudice depends upon what the evidence properly admissible against him is capable of establishing.

17. [41]

    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.

18. [42]

    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.

19. [43]

    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.

20. [44]

    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.

21. [45]

    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.

22. [46]

    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.

23. [47]

    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.

24. [48]

    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?

25. [49]

    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.

26. [50]

    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].

27. [51]

    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.

28. [52]

    I am not prepared in the circumstances to order a separate trial.