R v White (No 6)

[2012] NSWSC 470

Supreme Court

New South Wales

Medium Neutral Citation:	R v White & ors (No 6) [2012] NSWSC 470
Hearing dates:	4 April 2012
Decision date:	04 April 2012
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Not guilty verdict directed on one count
Catchwords:	CRIMINAL LAW - procedure - jury trial - directed verdict - application for direction to return verdict of not guilty - whether evidence at its highest capable of sustaining a verdict of guilty
Cases Cited:	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
Category:	Procedural and other rulings
Parties:	Regina Jessica Tess Birkensleigh
Representation:	Counsel: Ms J McLennan (Crown) Mr E Johnston (Accused) Solicitors: Solicitor for Public Prosecutions James Fuggle Rummery
File Number(s):	2011/329820

Judgment

1. HIS HONOUR: At the close of the Crown case, Mr Johnston, counsel for the accused Jessica Tess Birkensleigh, made an application that I direct the jury to return verdicts of not guilty in respect of the two counts on the indictment referable to her.

1. I have a duty to direct an acquittal if, at the conclusion of the prosecution case, the evidence is incapable of proving an alleged offence. I have no power to direct a verdict merely because I have formed a view that a guilty verdict would be unreasonable, or in the terminology formally used, unsafe and unsatisfactory: R v R (1989) 18 NSWLR 74 at 85. 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": Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 215; see also R v LK [2010] HCA 17; (2010) 241 CLR 177 at [29].

1. Ms Birkensleigh is charged that on 16 December 2008 at Chinderah in the State of New South Wales, she did rob Saaid Zaiter of prohibited drugs, the property of Saaid Zaiter. She is further charged that between 16 December 2008 and 4 September 2009 in the State of New South Wales and elsewhere, knowing afterwards that Rodney Boyd White did on 16 December 2008 at Chinderah in the State of New South Wales murder Saaid Zaiter she did receive, harbour, maintain and assist Rodney Boyd White.

1. Briefly, the Crown case is that the accused White robbed a drug dealer, Saaid Zaiter, of a substantial quantity of drugs at a meeting with him at White's cabin in a caravan park at Chinderah on Tuesday 16 December 2008. It is also the Crown case that the accused White beat Mr Zaiter severely enough to either kill him or to disable him to the point where he could be bound and gagged, and left for dead.

1. The accused Birkensleigh was the accused White's girlfriend at the time. She was with him in the days before and after the alleged robbery and murder. Ultimately, the pair went to Victoria where they set up a new life for themselves. The Crown alleges that they used the proceeds of the sales of the drugs stolen from the deceased to engage in substantial purchases that they made in cash and in false names.

Robbery

1. The Crown contends that the accused Birkensleigh is liable for the count of robbery upon the basis that she was an accessory before the fact to the robbery committed by White. The Crown case was described by the Crown Prosecutor in his opening address as follows:

As far as Birkensleigh is concerned, it is the Crown case that she assisted White in the theft of drugs by doing acts beforehand designed to help and that she did them knowing of course what was on foot. In particular, the Crown says they purchased the cable ties and very probably the duct tape used by White ultimately to bound and gag Zaiter when he was unconscious.

Now, the Crown doesn't say that Birkensleigh knew or was aware that White intended to bash Mr Zaiter to death. What the Crown says is she was part of a plan to rob but that necessarily in the circumstances that robbery of the drugs must have at least involved disabling Zaiter to some extent so that drugs could be stolen from him. That is, she must have always appreciated that in disabling him so that the drugs could be stolen, there would have to be, in these particular circumstances, some binding of him and that was the whole point of the purchase of the cable ties.

To be clear, the case against Birkensleigh is she was part of the plan to rob but did not know and did not believe that there was going to be an assault of such ferocity that Mr Zaiter would be killed.

What tends to support her advanced knowledge of the drug rip-off is events that happened after, in particular the text message that was sent to her by White to the effect that "the job's done". There was her purchase of the mobile phones that afternoon at about 5 pm from Phone Scene knowing at that time that Mr White had bashed someone as she told Sarah Orams. More importantly, you might think there's her continued association with Mr White, not only in the day immediately following but then of course in the months that follow up until her arrest, her continued association with him where in the Crown case she lives off the proceeds of the sale of drugs and she adopts and uses false names to assist in the purchase of property in Victoria which is a way of concealing, of course, money from the drugs so intimately involved in the plan to rob. (T47)

1. Mr Johnston contends that the Crown case, taken at its highest, only establishes that there was a plan by the accused White to trick Mr Zaiter out of drugs that were expected to be in his possession. For this he points to evidence that on the evening of the day following the robbery and murder of the deceased, White was in possession of a bundle of paper wrapped in $50 notes. It was submitted, "the clear and only real explanation of why White had the paper with $50 notes on each side is that White had intended to trick Zaiter out of the drugs, not rob him." The taking of Mr Zaiter's drugs that in fact occurred was opportunistic and occurred "after the intended plan had come unstuck and the opportunity arose ... after Zaiter was beaten in the ensuing fight."

1. Accordingly, it was submitted that if the accused Birkensleigh had prior knowledge of anything, it could only have been knowledge of a plan to steal, not a plan to rob.

1. In proving that the accused Birkensleigh was an accessory before the fact to robbery, it is of course necessary for the Crown to provide evidence capable of establishing that she was aware that robbery was the crime intended. If she only had knowledge of a plan to steal, the Crown case would necessarily fail and a verdict of not guilty would be appropriate.

1. Mr Zaiter was beaten and then bound with tape and cable ties. There is evidence that Ms Birkensleigh purchased tape and cable ties at 1.35 pm on 15 December 2008, the day before the robbery and murder (Exhibit X). She had set an alarm on her mobile phone to remind her to make this purchase: "Zip ties tape". The alarm was set to sound at 7.45 am on 15 December 2008 (Exhibit AF). She had been taken into Casino by Mr Stephen Orams at the request of the accused White in order for her to purchase, according to what White allegedly said to Orams, "some cigarettes, a roll of tape, sticky tape and a padlock I believe" (T171).

1. The purchase of the cable ties and tape was made before the accused White attended the cabin in the caravan park at Chinderah on 15 December 2008 where he intended to meet with Mr Zaiter (T171-172). It was submitted, "There is no evidence of White ... taking zip ties on this trip to Chinderah." That submission ignores the fact that there is also no evidence that White did not take such items; in other words, the direct evidence is neutral on this point.

1. The intended meeting between White and Zaiter on 15 December did not take place because Mr Zaiter failed to appear. It was rescheduled for the following day.

1. Reference was correctly made to the evidence that White only carried a box containing a portable stereo when he walked to the cabin on 16 December 2008 (T157). There was no suggestion that he was carrying any cable ties. Assuming that evidence is accepted, it does not prevent the conclusion that White had taken the cable ties purchased by the accused Birkensleigh when he went to the cabin on the afternoon/evening of 15 December 2008.

1. Cable ties of the very same size and colour as had been purchased by Ms Birkensleigh were found in the cabin when the police searched it on 21 December 2008 (T58; T68; Exhibits D, E and X). It would be open to the jury to conclude that these cable ties were part of what White took to the cabin on 15 December 2008 and were left over after he bound Mr Zaiter on 16 December 2008.

1. Another matter relied upon by the Crown in proof of the accused Birkensleigh's knowledge of the plan by White is that after he had robbed and killed the deceased, he sent a text to her which said, "Job's done okay on way back now." That White would make this representation to her is capable of showing that he had shared with Ms Birkensleigh his plan and was confirming to her that it had been carried out. It is capable of confirming that the plan, of which she was aware, was one to, at least, rob Mr Zaiter.

1. Mr Johnston submitted that the Crown case is circumstantial. That is correct. He submitted, "the Crown's theory is only one of a number of possible 'scenarios' available to explain the accused's behaviour." That may be true. However, provided that one "scenario" is capable of establishing the accused's guilt, the existence of other scenarios is irrelevant to consideration of a no case submission. The Crown case must be taken at its highest.

1. There may be cogent arguments available to be put to the jury as to why the Crown case should not be accepted on the question of whether the accused Birkensleigh had knowledge of a plan by White to rob Zaiter at the time she rendered assistance by purchasing for him some cable ties and tape. However, there is a basis upon which the jury could draw the inferences for which the Crown contends.

1. I refuse the application that I direct the jury to return a verdict of not guilty of the accused Birkensleigh on the charge of robbery.

Accessory after the fact to murder

1. The Crown put its case against the accused Birkensleigh on the charge that she was an accessory after the fact to murder in the opening address to the jury as follows:

Birkensleigh is also charged with being an accessory after the fact to murder. What the Crown points to here is her state of extreme upset as seen by Orams at the time when she comes back into his house after she has been speaking to White for some 5 to 10 minutes. She comes back in, she is very upset, obviously crying, has to be consoled on the couch, remains in that mood, really, you will see, up until she left.

It is that state of her mind, her mood, her behaviour, in combination with her knowledge already that White has bashed someone which, in the Crown case, will lead you to be satisfied that at that point in time she knew that White had killed Mr Zaiter.

What has she done to assist? The Crown says she came back up to Wagga in response to a phone call. She came back with her family members, her father and brother. She provided the means, the transport by which Mr White could leave Wagga, leave the jurisdiction of New South Wales and go down into Victoria pursuant the Crown says to the plan that both of them had all along to start off their new life being subsidised by drug money. (T47-48)

1. The evidence the Crown Prosecutor was referring to is as follows.

1. On the afternoon of Tuesday 16 December 2008, after she had heard from White, subsequent to the alleged robbery and murder, Ms Birkensleigh said to Ms Sarah Orams, "Something's happened and I think Rob's bashed someone" (T276).

1. Mr Steve Orams gave evidence (T167, T173) that on the afternoon of Thursday 18 December 2008, the accused White and the accused Birkensleigh were at the Orams' home. White and Birkensleigh went outside. When they came inside, Ms Birkensleigh was more subdued than she had been in the preceding days. She was upset and there were tears in her eyes. She curled up on the lounge and the accused White comforted and cuddled her.

1. There is also evidence from a woman who worked at the Casino Travel Shoppe that a person who entered the shop, who must have been, or is capable of being regarded as having been, the accused Birkensleigh, was "really upset and nervous and was crying and had tears running on her face". That was on 19 December 2008.

1. There is clearly evidence available for the jury to conclude that the accused Birkensleigh rendered assistance to the accused White after the alleged robbery and murder. There is no dispute that, at least, she helped him to flee the State by collecting him in Wagga Wagga and taking him to Victoria. But it is also necessary for the Crown to establish that at the time she did so she knew that White had killed Zaiter.

1. There is an issue between the parties about whether such knowledge needs to extend to whether the killing was murder or manslaughter. I find the Crown submissions on that point persuasive but it is not a matter that is necessary for present purposes to decide.

1. Mr Johnston submitted, "the Crown has not proved the elements of murder committed by White beyond reasonable doubt." That is not the test; the test is whether the Crown has provided evidence capable of establishing the elements of murder beyond reasonable doubt. Clearly, the Crown has.

1. There is a considerable body of evidence, but it is unnecessary that I refer to it all. It includes evidence that the deceased attended White's cabin on 16 December 2008. Present were the accused White and a former co-accused Ricky Humphries (he has pleaded guilty to manslaughter and is awaiting sentence). Mr Zaiter was not seen alive again. White told Mr Stephen Orams a short time later, that is immediately after leaving the cabin, "I've just bashed the cunt and I think he's dead" (T159). A dead body, bound and gagged, was found in the cabin when the accused Serone, Humphries, and a prosecution witness, Peter Elefsen, attended a few hours later; that body was removed and taken into remote bushland and dumped.

1. A year later, with information provided by Elefsen, police recovered remains that were positively identified as those of the deceased.

1. There is evidence that was adduced in cross-examination by Mr Bodor QC on behalf of the accused White (T378) that on the evening of 17 December 2008, Humphries told Mr Elefsen that Mr Zaiter had got into a scuffle in the cabin with White the day before. Humphries himself became involved in the fight. White jumped on to Mr Zaiter's chest, pinned him down and punched him until he stopped.

1. This evidence that I just referred to is not all that the Crown relies upon but it, alone, is capable of establishing beyond reasonable doubt that the accused White murdered Mr Zaiter.

1. The two pieces of evidence referred to in the Crown Prosecutor's opening, and in respect of which I have set out the details above, represent the only evidence relied upon by the Crown to establish that the accused Birkensleigh had knowledge that the accused White had killed Mr Zaiter.

1. The evidence I have referred to earlier in relation to the robbery count is capable of establishing that Ms Birkensleigh had foreknowledge that Mr Zaiter was going to be robbed. The evidence referred to in the Crown Prosecutor's opening is capable of establishing that she knew, after the event, that he had been bashed. It is capable of establishing that she knew, after the event, that something had occurred which she found upsetting. It is not capable of establishing that she knew that Mr Zaiter had been killed.

1. I propose to direct the jury to return a verdict of not guilty on the count of accessory after the fact to murder.

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Decision last updated: 09 May 2012