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Supreme Court 6 November 2018

R v Byrnes

[2019] NSWSC 615

Public order & justice offences
CRIME DIRECTED VERDICT VERDICT DIRECTED

Citation: R v Byrnes [2019] NSWSC 615
Court: Supreme Court of New South Wales
Date: 6 November 2018 (published 31 May 2019)
Judge(s): Common Law Division, Criminal

Background

The accused, Mr Byrnes, was charged with being an accessory after the fact to murder. The alleged principal offender, Mr Rossi-Murray, was said to have murdered the deceased, Matthew Shepherd. The Crown case was that Mr Byrnes had, after the killing, taken steps to assist Mr Rossi-Murray evade detection or punishment.

After the Crown closed its case, counsel for Mr Byrnes applied for a directed verdict of acquittal. The court was asked to determine whether the evidence adduced by the Crown was capable of sustaining a guilty verdict on either the primary charge of accessory after the fact to murder, or the statutory alternative of accessory after the fact to manslaughter.

The factual focus of the application centred on the timing of various acts attributed to Mr Byrnes, including the deletion of data and the exchange of a hard disc drive and digital video recorder (DVR), and whether those acts were performed at a time when Mr Byrnes could be shown to have known the essential features of the offence.

  • Whether the Crown's evidence was sufficient, taken at its highest, to permit a properly directed jury to convict Mr Byrnes of accessory after the fact to murder or, alternatively, to manslaughter
  • What elements the Crown must establish to prove the offence of accessory after the fact to murder, including the knowledge requirement
  • Whether the accused's alleged acts of assistance were performed at a time when he knew of the victim's death, or likely death, and knew of the relevant mental state of the principal offender
  • Whether a continuing omission (such as concealing evidence without a further positive act) can satisfy the actus reus (the physical element) of accessory after the fact

Decision

The court set out the well-established principles governing directed verdicts. A trial judge must direct a verdict of acquittal only where no evidence exists upon which a jury, properly directed, could convict. The evidence is to be taken at its highest in the Crown's favour, and even tenuous or weak evidence must ordinarily be left to the jury. The question is one of law, not an exercise in pre-empting an unreasonable verdict.

Turning to the elements of accessory after the fact, the court confirmed that the Crown must prove: that the principal committed the relevant offence; that the accused thereafter performed a positive act of assistance tending to help the principal avoid justice; that the accused knew the essential facts constituting the offence at the time the assistance was given; and that the accused intended, among other possible purposes, to assist the principal to escape detection or punishment. A mere failure to inform police does not satisfy the positive act requirement.

On the knowledge element, the court applied the Court of Criminal Appeal's decision in Gall v R [2015] NSWCCA 69, which requires that, on a charge of accessory after the fact to murder, the accused must have known that the offence was murder, not merely an unlawful killing. This means the accused must have known both of the victim's death and of the principal's relevant state of mind (intention to kill, intention to cause grievous bodily harm, or reckless indifference to human life).

The court found that the Crown had not established evidence capable of proving, beyond mere possibility, that Mr Byrnes knew of the victim's death at the time any of the alleged acts of assistance were performed. While the court accepted that the evidence of intention to assist Mr Rossi-Murray was sufficient to leave to the jury, the critical gap was temporal: nothing in the Crown's case permitted a jury to find, as a probability rather than a bare possibility, that Mr Byrnes possessed knowledge of the death when he acted. A directed verdict was accordingly granted on both the murder and manslaughter alternatives.

Orders Made

  • A directed verdict of acquittal was granted in favour of Mr Byrnes on the charge of accessory after the fact to murder and on the statutory alternative of accessory after the fact to manslaughter.

Key Takeaways

  • To establish accessory after the fact to murder, the Crown must prove that the accused knew of the victim's death and of the principal's murderous state of mind at the time the act of assistance was performed, not merely that the accused later acquired such knowledge.
  • A conviction for accessory after the fact requires a positive act of assistance tending to impede the course of justice. Passive concealment or a failure to inform police does not satisfy this element.
  • The Supreme Court confirmed, following Gall v R [2015] NSWCCA 69, that the accused must have known the offence was murder specifically, not simply that an unlawful killing had occurred, before accessorial liability for murder can attach.
  • Where the timing of an alleged act of assistance cannot be established with sufficient precision to show the accused knew of the death at the relevant moment, the knowledge element fails, even if intent to assist can be inferred from the evidence more broadly.
  • On a directed verdict application, the trial court takes the Crown's evidence at its highest and asks whether a properly directed jury could convict. Only where that threshold cannot be met on any view of the evidence is a directed verdict appropriate, and the test is not discretionary once satisfied.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 162

Cases
- Doney v R (1990) 171 CLR 207; [1990] HCA 51
- Director of Public Prosecutions v R (1991) 57 A Crim R 39
- Gall v R; Gall v R [2015] NSWCCA 69
- R v R (1989) 18 NSWLR 74
- R v Young; R v Phipps (Court of Criminal Appeal (NSW), 31 October 1995, unreported)
- R v Stone [1981] VR 737
- R v Levy (1912) 1 KB 158
- R v Maloney (1901) 1 SR (NSW) 77
- R v Hansill (1849) 3 Cox CC 597
- R v Dawson [1961] VR 773
- Carr v Baker (1936) 36 SR (NSW) 301
- Fabre v Arenales (1992) 27 NSWLR 437
- Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
- Jones v Great Western Railway Co (1931) 144 LT 194
- Jones v Sutherland Shire Council [1979] 2 NSWLR 206
- Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23