Citation: Regina v Suteski [No 5] [2002] NSWSC 227
Court: Supreme Court of New South Wales, Criminal Division
Date: 28 March 2002
Judge(s): Kirby J
Background
The accused was employed as an accounts payable clerk at a car dealership. Her immediate superior, the company accountant, was suspected of harbouring suspicions about a series of fraudulent transactions she had carried out over several months, diverting employer funds to herself and her associates.
To protect her ability to continue the frauds, the accused arranged through an intermediary for the accountant to be physically harmed. That intermediary recruited a third party, who stabbed the accountant multiple times on the night of 20 December 1999. The victim died almost immediately.
At trial for murder, and at the close of the Crown case, defence counsel applied for a verdict by direction, arguing that the evidence was insufficient to sustain the charge. Kirby J dismissed the application and later delivered written reasons.
Legal Issues
- Whether the evidence was sufficient to support a finding that the accused was an accessory before the fact to murder, having procured an assault with intent to cause grievous bodily harm.
- Whether, even if the intended assault fell short of grievous bodily harm, the evidence supported a finding that the accused contemplated the possibility that dangerous weapons might be used to inflict grievous bodily harm, under the extended common purpose doctrine.
- Whether the manner in which the killing was carried out (repeated stabbing) differed so materially in kind from the assault procured as to take it outside the scope of the common design.
- Whether the Crown could properly define the act procured by reference to its intended consequences rather than by reference to the specific method of harm.
Decision
Kirby J held that there was sufficient evidence for the jury to conclude the accused had procured a severe assault intending that the victim suffer grievous bodily harm. The judge pointed to testimony from the person who carried out the killing, who recounted that the accused, when asked how she wanted the victim hurt, responded that he could be bashed, stabbed or killed, and that the choice of method was left entirely to those she had hired. A witness who was also present at earlier discussions similarly recalled that the accused had described wanting the victim stabbed or with broken limbs.
On the scope of the common design, Kirby J found it was open to the jury to conclude that the use of dangerous weapons, including the knife ultimately deployed, was within the broad discretion the accused had conferred upon the perpetrators. The evidence also supported a finding that the knife was used after the victim physically resisted a hammer attack, placing its use within the circumstances that had been contemplated.
Kirby J rejected the defence argument that the Crown could not define the procured act by reference to consequences. On the evidence, the accused had specified the outcome she required (injuries severe enough to keep the victim away from work for two weeks) and left the means to those she hired. That framing, the judge found, reflected a level of violence amounting to grievous bodily harm rather than minor injury, and was a coherent basis on which the jury could assess the scope of what had been procured.
Regarding the argument that repeated stabbing differed materially in kind from the procured assault, Kirby J considered the principle from Regina v Chai that the execution of an offence must not differ materially from what was agreed. He found that, on this evidence, the question was one properly for the jury, and that the manner of the killing was arguably within the scope of the crime as procured.
Orders Made
No formal orders were recorded in this decision beyond the ruling that the matter proceed to the jury. The application for a verdict by direction was dismissed.
Key Takeaways
- An application for a verdict by direction succeeds only where no evidence could sustain the charge; Kirby J confirmed the threshold requires the court to assess whether the evidence, if accepted, could rationally support a conviction.
- Where an accused procures an assault and confers a broad discretion on the perpetrator as to the means of harm, evidence of that discretion is capable of supporting a finding that dangerous weapon use was within the scope of the common design.
- Under the extended common purpose doctrine, liability for murder may arise where the accused contemplated the possibility that the principal offender might use a dangerous weapon with intent to inflict grievous bodily harm, even if that exact method was not specified.
- The Court confirmed, applying Regina v Chai, that the execution of an offence must not differ materially in kind from the common design, but held that this question is properly resolved by the jury where the evidence is genuinely capable of supporting liability.
- Defining the procured act by reference to the intended consequences (a specified level of injury) rather than a specific method is capable of being a valid characterisation of what was agreed, provided the evidence supports it.
Legislation and Cases Referenced
Cases:
- Regina v Chai [2000] NSWCCA 320 (Mason P, Sperling and Bergin JJ)
- Markby v The Queen (1978) 140 CLR 108 (cited within Chai)
Legislation: No specific legislation was cited in the judgment.