Citation: R v White & ors (No 6) [2012] NSWSC 470
Court: Supreme Court of New South Wales
Date: 4 April 2012
Judge: R A Hulme J
Background
This decision arose mid-trial in a criminal prosecution involving multiple accused. The Crown alleged that on 16 December 2008 at Chinderah, NSW, the accused White robbed and murdered a drug dealer, Saaid Zaiter, at a cabin in a caravan park. A co-accused, Humphries, had already pleaded guilty to manslaughter and was awaiting sentence.
The accused Birkensleigh was White's girlfriend at the time. The Crown alleged she was an accessory before the fact to the robbery, having purchased cable ties and tape used to bind the victim, and that she later became an accessory after the fact to murder by receiving, harbouring, and assisting White in the period following Zaiter's death.
At the close of the Crown's case, counsel for Birkensleigh applied for a directed verdict of not guilty on both counts charged against her.
Legal Issues
- Whether the evidence, taken at its highest, was capable of sustaining a verdict of guilty on the robbery count against Birkensleigh as an accessory before the fact.
- Whether the evidence, taken at its highest, was capable of sustaining a verdict of guilty on the count of accessory after the fact to murder.
- In particular, whether the Crown had adduced evidence capable of establishing that Birkensleigh knew White had killed Zaiter (as distinct from merely knowing he had bashed him).
Decision
Hulme J began by confirming the applicable legal standard. A directed verdict of acquittal is available only where the evidence contains a defect such that, taken at its highest, it cannot sustain a conviction. The judge has no power to direct an acquittal simply because a guilty verdict would be unreasonable or unsafe and unsatisfactory, following Doney v R (1990) 171 CLR 207 and R v R (1989) 18 NSWLR 74.
On the robbery count, the application was refused. The Crown's case was circumstantial but, taken at its highest, was capable of proving Birkensleigh's guilt as an accessory before the fact. Evidence that she had set a phone alarm to remind herself to purchase zip ties and tape, made that purchase the day before the robbery, and received a text from White saying "job's done okay on way back now" was collectively capable of establishing her foreknowledge of a plan to rob Zaiter. The existence of other possible explanations for that conduct did not undermine a no-case submission, as the Crown's case need only be taken at its highest.
On the accessory after the fact to murder count, the application succeeded. The Crown relied on two pieces of evidence to show Birkensleigh knew White had killed Zaiter: a conversation in which she told a witness she knew White "had bashed someone," and her subsequent purchase of mobile phones that afternoon. Hulme J found this evidence capable of establishing that she knew, after the event, that a bashing had occurred and that something upset her. It was not, however, capable of establishing that she knew Zaiter had been killed. That gap in the evidence was fatal to the count, and Hulme J directed the jury to return a verdict of not guilty on the accessory after the fact to murder charge.
Orders Made
- Application for directed verdict refused on the robbery count (accessory before the fact).
- Jury directed to return a verdict of not guilty on the count of accessory after the fact to murder.
Key Takeaways
- A directed verdict of acquittal requires a defect in the evidence itself. The test, drawn from Doney v R, is whether the evidence, taken at its highest, is incapable of sustaining a guilty verdict. A judge's personal view that a conviction would be unreasonable is insufficient.
- Where a Crown case is circumstantial and multiple explanations exist for the accused's conduct, the existence of innocent explanations does not ground a no-case submission. The jury is entitled to consider which explanation it accepts.
- Accessory after the fact to murder requires proof that the accused knew the principal offence was murder. Evidence that Birkensleigh knew White had bashed Zaiter was held to fall short of evidence that she knew Zaiter had been killed.
- The Supreme Court drew a careful distinction between knowledge of a serious assault and knowledge of a killing, treating that distinction as legally significant and not merely a matter of degree.
- Foreknowledge of a plan to disable and rob a victim, evidenced here by purposeful purchases of binding materials and a confirmatory text message, was sufficient to leave the robbery accessory charge to the jury.
Legislation and Cases Referenced
Cases:
- Doney v R [1990] HCA 51; (1990) 171 CLR 207
- R v LK [2010] HCA 17; (2010) 241 CLR 177
- R v R (1989) 18 NSWLR 74
Legislation: No specific legislation was cited in the judgment.