Citation: R v Rice & ors (No 5) [2014] NSWSC 1526
Court: Supreme Court of New South Wales
Date: 31 October 2014
Judge(s): Bellew J
Background
Four accused faced trial for conspiracy to murder a man referred to in the judgment as Dusan Krstic. The Crown alleged the conspiracy was brokered through a series of introductions and arrangements, including a promise of $250,000 to a Crown witness (referred to by the pseudonym Peter Taylor) to carry out the killing, with a further $150,000 per year promised for any time spent in custody.
Taylor gave evidence that a man known to him as "Rashko" had been introduced to him by one of the co-accused, driven him to locations in Western Sydney where the intended victim was said to be living, and supplied a pistol to be used in the murder. The Crown alleged that "Rashko" was the accused Vukovic.
At the close of the Crown case, counsel for Vukovic applied for a directed verdict of acquittal, arguing there was insufficient evidence to identify his client as the person Taylor knew as "Rashko."
Legal Issues
- Whether there was sufficient evidence, taken at its highest, to support a verdict of guilty against Vukovic as a participant in the alleged conspiracy.
- Whether the circumstantial evidence relied upon by the Crown was capable of supporting an inference that Vukovic and "Rashko" were the same person, or whether drawing that inference would amount to impermissible speculation.
- What test applies when a trial judge is asked to direct a verdict of acquittal at the close of the Crown case.
Decision
Bellew J applied the principle confirmed by the High Court in Doney v The Queen (1990) 171 CLR 207: a directed verdict of not guilty is only available where there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. Even evidence that is tenuous, inherently weak, or vague must be left to the jury if it is capable of supporting a guilty verdict.
His Honour also drew on authority establishing that the mere availability of competing inferences or alternative hypotheses does not warrant withdrawing a circumstantial case from the jury. It is the jury's role to weigh those competing inferences, not the trial judge's role at the directed verdict stage.
Applying those principles, Bellew J identified several pieces of circumstantial evidence pointing to Vukovic as "Rashko": Taylor's description of "Rashko" driving a red RAV4, a registered vehicle document (Exhibit K2) showing a red Toyota RAV4 registered to Vukovic's wife at the same address as Vukovic, Taylor's evidence of doing gyprocking work with "Rashko" at the co-accused Popovic's mother's home, and uncontested evidence that Vukovic had worked as a gyprocker at the relevant time. Taken as a whole, this evidence was, in the court's view, capable of satisfying a jury beyond reasonable doubt that Rashko and Vukovic were the same person.
Bellew J rejected the submission that drawing such an inference would be impermissible speculation, emphasising that the evidence must be assessed as a whole rather than dissected piece by piece, consistent with the High Court's approach in The Queen v Hillier (2007) 228 CLR 618.
Orders Made
• The application for a verdict by direction is rejected.
Key Takeaways
- The Supreme Court confirmed that a directed verdict of acquittal is only available where evidence, taken at its highest, cannot sustain a guilty verdict; even weak or vague evidence must go to the jury if it is capable of proving the offence.
- Where the Crown relies on circumstantial evidence, the existence of competing inferences or hypotheses consistent with innocence does not, of itself, justify withdrawing the case from the jury at the directed verdict stage.
- Circumstantial identification evidence must be assessed as a whole, not evaluated in isolated fragments; the cumulative effect of several pieces of evidence may be capable of supporting an inference that individually weaker items would not.
- Sufficient evidence existed in this case to leave the identification of the accused as "Rashko" to the jury, based on the convergence of vehicle registration records, occupational history, and Taylor's description, even in the absence of direct identification evidence.
- The decision illustrates the limited scope of the directed verdict jurisdiction: the threshold is not whether a conviction is likely, but whether the evidence is capable of supporting one.
Legislation and Cases Referenced
Cases:
- Doney v The Queen (1990) 171 CLR 207
- The Queen v Hillier (2007) 228 CLR 618
- R v JMR (1991) 57 A Crim R 39
- Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397
- Attorney General's Reference Number 1 of 1983 (1983) 2 VR 410
Legislation: No specific legislation cited in the judgment.