Citation: R v White & ors (No 2) [2012] NSWSC 466
Court: Supreme Court of New South Wales
Date: 21 March 2012
Judge: R A Hulme J
Background
This decision arose from a murder trial in which three accused faced charges connected with the death of the deceased, Saaid Zaiter. The Crown alleged that the deceased was killed at a cabin in Chinderah, New South Wales, and that his body had been bound with cable ties before being disposed of.
The Crown sought to lead evidence from a Mitre 10 store employee about a purchase of black cable ties made in Casino on 15 December 2008, the same day the accused Rodney White and another accused attended the cabin. The Crown contended that a third accused, Jessica Birkensleigh, made that purchase and that the cable ties were subsequently used in the murder.
Birkensleigh's counsel objected to the evidence on the basis that nothing sufficiently connected his client either to the purchase or to the use of cable ties at the scene of the killing. The trial judge was required to determine whether the evidence was admissible.
Legal Issues
- Whether the evidence of the cable tie purchase was sufficiently connected to the accused Birkensleigh to be admissible.
- Whether there was an adequate evidentiary basis to link the cable ties purchased at the Mitre 10 store to those found at the murder scene.
- Whether any other basis existed for excluding the evidence.
Decision
On the first issue, Hulme J found that a clear inference was available that Birkensleigh had used White's NAB Visa debit card to make purchases in Casino on both 15 and 19 December 2008. The card number and expiry details recorded at the Mitre 10 store matched those recorded at a caravan park on 19 December, and the corresponding debits appeared in White's bank account on both occasions. A female using Birkensleigh's mother's surname and home address had presented that card at the caravan park, and the same card was linked to a flight booking made in Birkensleigh's own name at a Casino travel agency shortly beforehand.
His Honour reasoned that if the jury drew the inference that Birkensleigh used White's card at the caravan park and travel agency, that conclusion strongly supported the further inference that she had also used it for the cable tie purchase four days earlier. Additional undisputed evidence from co-accused Stephen Orams placed Birkensleigh at the Mitre 10 store on the relevant date, and a reminder she had set on her mobile phone for that morning read "Zip ties tape."
On the second issue, the court found it would be open to the jury to infer that the purchased cable ties were used in the murder. A prosecution witness was expected to testify that the deceased's body had been bound with cable ties that were later removed and burnt, and burnt cable ties were recovered near the disposal site. Cable ties found by police in the cabin were of similar dimensions and appearance to those available at the Casino Mitre 10 store, and a packet purchased by a police officer at the same store for comparison purposes was tendered in evidence.
Hulme J concluded that the evidence was relevant and admissible, and that no other basis for exclusion had been advanced.
Orders Made
No orders were made in this decision.
Key Takeaways
- Circumstantial evidence of a pre-offence purchase can be admissible where a chain of inferences reasonably links the accused to the purchase and the purchased items to the alleged offence.
- A mobile phone reminder referencing items consistent with those later purchased was treated as one of several cumulative circumstantial factors capable of supporting the Crown's case.
- The identity of a card user can be inferred from a pattern of transactions across multiple occasions, particularly where other evidence corroborates the accused's presence at the point of sale.
- Physical similarity between items found at the crime scene and items available from a particular store can support an inference of connection, especially when combined with evidence about timing and the accused's movements.
- The Supreme Court confirmed that the threshold question for admissibility is whether the evidence is capable of supporting the inferences the Crown contends for, leaving the weight and ultimate conclusions to the jury.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.