R v Perish; R v Lawton; R v Perish

[2011] NSWSC 1135

Supreme Court

New South Wales

Medium Neutral Citation:	R v Perish; R v Lawton; R v Perish [2011] NSWSC 1135
Hearing dates:	25 August 2011
Decision date:	25 August 2011
Jurisdiction:	Common Law - Criminal
Before:	Price J
Decision:	Application denied
Catchwords:	CRIMINAL LAW - whether verdict of not guilty should be directed - circumstantial case
Legislation Cited:	Evidence Act 1995
Cases Cited:	Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207
Category:	Interlocutory applications
Parties:	Crown Anthony John Perish Matthew Robert Lawton Andrew Michael Perish
Representation:	Mr P Leask (Crown) Ms C Davenport SC (Anthony Perish) Mr S Hanley SC (Matthew Lawton) Mr W Terracini SC with J D O'Sullivan (Andrew Perish) Director of Public Prosecutions (Crown) William O'Brien & Ross Hudson Solicitors (Anthony Perish) Matouk Joyner Lawyers (Matthew Lawton) Archbold Legal (Andrew Perish)
File Number(s):	2009/145260 2009/148002 2009/150111

EX TEMPORE Judgment

1. HIS HONOUR: Mr Terracini SC for the accused, Andrew Perish, makes an application that there is no prima facie case against Andrew Perish and that a verdict of not guilty should be directed.

1. I will deal immediately with the principal submissions made on behalf of Andrew Perish as the jury is in waiting and the trial should proceed without delay.

1. Andrew Perish has pleaded not guilty to the charge that he, with Anthony John Perish and Matthew Robert Lawton, between 1 January 2001 and 17 November 2001, did conspire to murder Terrence Falconer. In order for the jury to find the accused guilty of that charge the Crown must establish beyond reasonable doubt each of the following legal elements:

(1)   that there was in fact an agreement between two or more persons to kill Terrence Falconer; and,

(2)   that Andrew Perish participated in that agreement in the sense that:

(a)   he agreed with one or more of Anthony Perish and Matthew Lawton that the unlawful objective of the conspiracy, that is the killing of Terrence Falconer, should be carried out; and,

(b)   at the time of agreeing to this, he intended that unlawful objective, the killing of Terrence Falconer, should be carried into effect.

1. Mr Terracini submits that there are, in fact, two conspiracies; the initial conspiracy involving Witness A, he ceasing to be part of the conspiracy. He submitted that there was no evidence of Andrew Perish saying anything to Witness A at the dinner or during the trips in the motor vehicle, which subsequently followed. Mr Terracini argued that there appears to have been a further conspiracy with Witness E to which Andrew Perish was not a participant.

1. The test to be applied in a no prima facie case submission is that referred to in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 in the joint judgment of the High Court of Australia where it was said at 212 [11]:

"The question whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory was adverted to but left unanswered in Whitehorn v. The Queen . There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict: see, for example, Plomp ; Reg. v. Prasad ; Reg. v. R. "

Further at 21 4 [17]:

"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."

1. The Crown case must be taken at its highest and it is for the jury, not the judge, to resolve conflicts of evidence: Doney at 215 [18].

1. The Crown case against Andrew Perish is a circumstantial one. The circumstances include:

• The evidence of Witness A that when Denise Lawton gave him $1 , 000 she said, "Andrew will come and see you in a couple of days" (T415.45-48). Between two and four days later, just before lunch, Andrew Perish went to see Witness A at his house in Bringelly. He said he would come back at 7 pm and Witness A should be ready because they would have dinner with "our mate" (T416.31-44). He returned around 7 pm and drove Witness A to Newtown where they met Anthony Perish.
• According to Witness A, Andrew Perish was present during the whole of the conversations that he had with Anthony Perish at the restaurant at Newtown. Those conversations included Anthony Perish offering Witness A money to enable him to repair his boat. Witness A testified that Anthony Perish turned to Andrew Perish and asked him if he could give Witness A a couple of grand on the way home. Witness A said Anthony Perish told him where he wanted the boat to be taken. He recounted that Anthony Perish said:

"I want you to put the boat in. Come up the Karuah River to Bulahdelah. There's a wharf up there, come up to the wharf and I'll be waiting for you just like a fisherman with an esky."

• Anthony Perish then added:

"Might be a couple of eskies."

• Witness A testified that Anthony Perish said something like:

"...because the cunt might be in a few pieces."

• Witness A said that there was a discussion at the dinner that a mobile 'phone would be dropped off. On the way home from the dinner Andrew Perish stopped at his place in Eagle Vale and gave Witness A $2 , 000 to commence repairs on the boat.
• Witness A said at some point he would have spoken to Andrew Perish about the quote he had received from Marine Scene for the repairs to the boat (T427.37-428.2). Witness A told him additional work would cost $4 , 000 and Andrew said, "Just get it done".
• Witness A gave evidence that the 'phone delivered by Matthew Lawton was not to be used to contact anyone other than Andrew and Anthony Perish (T431.21-24).
• After the dinner at Newtown, Witness A said Andrew Perish visited him at home more than three times. About a week after the dinner at Newtown, Andrew Perish picked up Witness A at his home in Bringelly and drove him to Daniel Perish's home at Rossmore. At Daniel Perish's house he received $3 , 000, which was for the balance of the cost of the boat. Witness A confirmed that Andrew Perish was present when he received that money. Andrew Perish then dropped him back home.
• Prior to receiving the $3,000 , Witness A received $1,500 from Andrew Perish at his home in Greendale Road, Bringelly. Andrew Perish handed him the cash and no one else was present. Witness A recalled that Andrew Perish asked him if he was right for money. Witness A said "no". Andrew Perish said he had a couple of grand on him but needed to keep $500. Witness A then received $1,800 from Andrew Perish at his home in Bringelly for his expenses relating to travelling to Newcastle.
• Elizabeth Falconer gave evidence that in March/April 2001 she showed a document, Exhibit F, to Andrew Perish at a hotel in Penrith. The document identified Mr Falconer as being prepared to assist police as an informer in respect of the activities of the Rebels Motor Cycle Club at Dubbo. At the meeting Mrs Falconer and Andrew Perish had a conversation about the death of his grandparents before she showed him the document. She said that she put it on the table and he looked at it. She could not remember if he read the document or not.
• Detective Inspector Ruse gave evidence that he met Andrew Perish on 9 July 2001 during which he recorded that Terry Falconer or Faulkner had admitted to the murder of Anthony and Frances Perish, the grandparents of Andrew Perish. He had a further meeting with Andrew Perish on 30 July 2001 during which Andrew Perish had concerns about the past police investigation and asserted that there may be a cover-up by police and he was genuinely dissatisfied.
• On 26 November 2001, six packages wrapped in blue coloured plastic and bound with wire and duct tape were found floating in various places along the Hastings River and found to contain human remains. Nine months later another package containing human remains was found. It is not an issue in the trial that those remains were that of Terrence Falconer.
• There is evidence from Witness E given during his electronically recorded interview (ERISP) that Mr Falconer's body was cut into pieces at Girvan.
• Witness A gave evidence that during the recorded conversation on 16 October 2002 (exhibit V), Andrew Perish said to him:

"Nosey, Nosey, nobody knows we done it."

• Witness B gave evidence that in October 2006 he received a summons to appear before the New South Wale s Crime Commission in respect of their inquiry into the murder of Terrence Falconer. He met with Andrew and Anthony Perish at a time after he received the summons and after he had appeared at the Crime Commission. Anthony's mother and his brother Matthew were present. Witness B said Anthony Perish said to Andrew "This cunt's been talking" and Anthony touched his nose at the time. It is the Crown case that the only rational inference to be drawn from Anthony Perish's action of touching his nose was that he was referring to Witness A whose nickname was Nosey.
• According to Witness B he said that Anthony and Andrew stood up and walked across to the other side of the room. He said that after they spoke amongst themselves they returned to the table. Anthony said to him "And you don't know anything about those police uniforms" (T178.20). Witness H, at the time of the abduction of Terrence Falconer, was wearing a police shirt.

1. There is ample evidence in my view, taking the Crown case at its highest and in combination, from which the jury could capably conclude that Andrew Perish had the motive to participate in a conspiracy to kill Terrence Falconer and took steps that were aimed at ensuring that its unlawful object, the killing of Terrence Falconer, would be carried into effect.

1. The jury could capably conclude, viewing the evidence as a whole and at its highest, that there was one conspiracy. The jury could also capably conclude that Andrew Perish was a participant in the conspiracy to kill Mr Falconer from its outset. Witness E's evidence of the acts done by Andrew Perish and Matthew Lawton following the abduction of Mr Falconer is admissible to establish that Andrew Perish participated in the conspiracy and the object of the conspiracy was achieved even though Andrew Perish was not present at that time.

1. The jury could also find that during the recorded conversation with Witness A, Andrew Perish admitted that he had participated in the agreement to kill the deceased.

1. Viewing the circumstances that I have outlined in combination and taking the Crown case at its highest, the evidence is capable of satisfying the jury, properly instructed, beyond reasonable doubt that Andrew Perish is guilty of the offence of conspiracy to murder Terrence Falconer.

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Decision last updated: 22 September 2011