Citation: R v Perish; R v Lawton; R v Perish [2011] NSWSC 1135
Court: Supreme Court of New South Wales
Date: 25 August 2011
Judge(s): Price J
Background
The accused, Andrew Perish, faced a charge of conspiracy to murder Terrence Falconer, alleged to have occurred between January and November 2001. The charge named two co-accused: Anthony Perish and Matthew Lawton. The Crown case was entirely circumstantial, resting on a combination of witness accounts, financial transactions, intercepted conversations, and conduct before and after the alleged killing.
Human remains, identified as those of Terrence Falconer, were recovered from the Hastings River in late November 2001 and again nine months later. The remains had been cut into pieces and wrapped in plastic. The Crown alleged that Andrew Perish participated in the conspiracy from its outset and took steps to advance its unlawful object.
At the close of the Crown case, senior counsel for Andrew Perish applied for a directed verdict of not guilty, arguing that no prima facie case had been established against his client.
Legal Issues
- Whether the evidence was capable of sustaining a verdict of guilty against Andrew Perish, such that the matter should be left to the jury
- Whether the Crown had adduced sufficient evidence that Andrew Perish participated in an agreement to kill Terrence Falconer and intended that the killing be carried into effect
- Whether the conduct alleged involved one conspiracy or two separate conspiracies, and whether Andrew Perish was a participant in either or both
Decision
Price J applied the test from Doney v The Queen (1990) 171 CLR 207: a directed verdict of not guilty is only appropriate where there is a defect in the evidence such that, taken at its highest, it cannot sustain a guilty verdict. Even tenuous, weak, or vague evidence must be left to the jury if it is capable of supporting a conviction. Resolving conflicts in the evidence is the jury's function, not the judge's.
His Honour identified a substantial body of circumstantial evidence against Andrew Perish. That evidence included: his role in arranging meetings involving the payment of funds to Witness A; his presence at a dinner in Newtown where the plan to dispose of a body via a boat on the Karuah River was discussed; multiple personal payments to Witness A totalling thousands of dollars to facilitate the scheme; evidence that he was shown a document identifying the deceased as a police informer; recorded words attributed to him that the Crown contended amounted to an admission of participation; and post-offence conduct with co-accused in response to a Crime Commission inquiry.
Price J rejected the submission that the evidence disclosed two separate conspiracies from which Andrew Perish was absent in the later phase. His Honour held that a jury could capably conclude there was one continuous conspiracy and that Andrew Perish was a participant from the outset. Evidence of acts carried out by Andrew Perish and Matthew Lawton after the abduction was admissible to establish his participation, even though he was not present when certain later acts occurred.
Taking all the circumstances in combination and at their highest, Price J was satisfied the evidence was capable of supporting a verdict of guilty, properly directed. The application for a directed verdict was refused and the matter was left to the jury.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Doney v The Queen standard governs no prima facie case applications: a judge must refuse a directed verdict if any evidence, even if tenuous or weak, is capable of supporting a guilty verdict when taken at its highest.
- Resolving conflicts in the evidence, including disputes about the structure or scope of an alleged conspiracy, is a matter exclusively for the jury and not for the trial judge on a no-case submission.
- A wholly circumstantial case is capable of sustaining a conspiracy charge, provided the combined weight of the circumstances could, at their highest, satisfy a properly instructed jury beyond reasonable doubt.
- Evidence of acts carried out in furtherance of a conspiracy, even where an accused was not personally present, may be admissible to establish that accused's participation in the agreement and the achievement of its unlawful object.
- Where an accused is alleged to have participated in an ongoing conspiracy, a recorded statement capable of being construed as an admission of involvement is relevant circumstantial evidence that the jury is entitled to weigh.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207