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

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.

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].

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.

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.

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v White (No 6)

Details

AGLC: R v White (No 6) [2012] NSWSC 470
Case: [2012] NSWSC 470
Decision Date: 04 April 2012

CaseChat Overview and Summary

The appellant was convicted of the murder of his wife and appealed against the conviction on the basis that the trial judge should have directed the jury to return a verdict of not guilty. The Crown argued that the evidence was sufficient to sustain a guilty verdict and that the trial judge was correct in leaving the case to the jury. The High Court was required to determine whether the evidence at its highest was capable of sustaining a verdict of guilty. The court examined the evidence presented at trial and considered whether it was open to a properly directed jury to find the appellant guilty beyond reasonable doubt. The court found that the evidence, while circumstantial, was sufficient to sustain a guilty verdict. The court held that the trial judge was correct in leaving the case to the jury and dismissed the appeal. The conviction was upheld.

The court emphasised the importance of the trial judge's role in directing the jury on the appropriate verdict. The court noted that the trial judge is required to consider the evidence in its highest form and determine whether it is open to the jury to find the accused guilty beyond reasonable doubt. The court held that the trial judge had correctly considered the evidence and that it was open to the jury to find the appellant guilty. The court further held that the evidence, while circumstantial, was sufficient to sustain a guilty verdict. The court rejected the appellant's argument that the evidence was incapable of sustaining a guilty verdict and dismissed the appeal. The conviction was upheld.

Orders