Citation: R v White & ors (No 7) [2012] NSWSC 471
Court: Supreme Court of New South Wales
Date: 28 March 2012
Judge(s): Hulme J
Background
The accused White faced charges of murder and robbery, with the Crown alleging he killed the deceased during a drug robbery, stealing a substantial quantity of methylamphetamine. A co-accused, referred to here as the female accused, faced charges as accessory before the fact to robbery and accessory after the fact to murder. The Crown alleged she assisted White by purchasing cable ties and duct tape used to bind and gag the victim.
The Crown's case was that the two accused planned to relocate to Victoria and carried out the robbery to fund that move. Shortly after the alleged offences, the female accused flew to Victoria; White followed. Over the next nine months, the pair made purchases totalling approximately $157,000, including a speedboat, a caravan, motor vehicles, accommodation, and a deposit on a block of land. The majority of those purchases were made under false names.
The female accused applied to exclude evidence of this post-offence expenditure, arguing it was irrelevant and, alternatively, that any probative value was outweighed by unfair prejudice under s 137 of the Evidence Act 1995.
Legal Issues
- Whether evidence of large cash expenditure in Victoria in the months following the alleged robbery was relevant to the charges against the female accused.
- Whether, if relevant, the probative value of that evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995.
- Whether the absence of an apparent legitimate funding source was sufficient to connect the expenditure to the alleged robbery proceeds.
Decision
Hulme J found the evidence was relevant. The key link ran through the drugs: a witness had seen White in possession of three one-pound blocks of red-coloured speed the day after the alleged offences, and a quantity of red methylamphetamine was found on the accused at arrest months later. Expert evidence from a detective sergeant in drug matters indicated the drug found at arrest could, on a reverse purity calculation, have originated from the same high-purity source as the drugs allegedly stolen from the deceased.
His Honour reasoned that if the jury accepted that connection, it would be open to conclude that the majority of the stolen drugs had been sold over the intervening nine months. Combined with banking records showing no apparent legitimate source for the funds, the jury could find the substantial expenditure was financed by those drug sales. That chain of reasoning made the spending evidence relevant to the involvement of both accused in the robbery.
On the unfair prejudice question, Hulme J was not persuaded any danger existed. No realistic competing inference was identified to explain the presence of red methylamphetamine at arrest or the capacity to spend over $150,000 in nine months. His Honour noted that evidence being probative of guilt does not, by itself, constitute "unfair prejudice" within the meaning of s 137. He reserved the possibility of giving jury directions if, by the time all evidence was in, any risk of impermissible reasoning emerged.
The evidence was ruled admissible.
Orders Made
• The evidence is admissible.
Key Takeaways
- Post-offence expenditure can constitute relevant post-offence conduct where a sufficient inferential chain connects the funds spent to the proceeds of the alleged offence, even when the chain involves intermediate steps such as the conversion and sale of stolen drugs.
- Under s 137 of the Evidence Act 1995, evidence that is simply probative of an accused's guilt does not attract "unfair prejudice"; something more is required before a court will exclude otherwise relevant evidence on that basis.
- The absence of any apparent legitimate source for substantial funds, combined with corroborating physical evidence linking assets to alleged crime proceeds, was sufficient for relevance to be established as a threshold matter.
- Relevance to a single charge is sufficient for evidence to be admissible, even where its bearing on other charges against the same accused is limited or unclear.
- Where a risk of jury misuse of evidence is identified only hypothetically at the time of the ruling, a court may admit the evidence and defer consideration of any protective direction until the full evidentiary picture emerges at trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137 (exclusion of evidence where probative value is outweighed by danger of unfair prejudice in criminal proceedings)
Cases cited: None identified in the judgment text or provided metadata.