Regina v Suteski [No 5] - [2002] NSWSC 227

CITATION: Regina v Suteski [No 5] [2002] NSWSC 227

CURRENT JURISDICTION: Criminal Division

FILE NUMBER(S): SC 70053/01

HEARING DATE(S): 27/2/02 - 28/2/02
1/3/02
4/3/02 - 8/3/02
11/3/02 - 13/3/02
15/3/02
18/3/02 - 21/3/02

JUDGMENT DATE: 28 March 2002

PARTIES :

Regina
Sneza Suteski

JUDGMENT OF: Kirby J

COUNSEL : M Tedeschi QC/Ms N Adams (Crown)
P Byrne SC/R Nicol (Accused)

SOLICITORS: S E O'Connor (Crown)
R J Walsh, Murphy & Roskov (Accused)

CATCHWORDS: Application for Verdict by Direction - Murder - Accessory before the fact and extended common purpose - Sufficiency of evidence

CASES CITED: Regina v Chai [2000] NSWCCA 320

DECISION: Decision para 16

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

KIRBY J

70053/01 - REGINA v SNEZA SUTESKI
JUDGMENT [No 5] - Application for Verdict by Direction

1 KIRBY J: At the close of the Crown case, Mr Byrne SC, on behalf of the accused, made an application for a verdict by direction. I dismissed the application, ruling that there was evidence that could sustain the charge of murder. I undertook to give reasons later. I now do so.

The Crown Case

2 The accused worked as an Accounts Payable clerk for a car dealer, Newman's of Kogarah. The deceased (Mr Peich) was the accountant of that company, and Ms Suteski's immediate superior. Between August and December 1999, Ms Suteski defrauded her employer of a significant sum of money. She did so in a series of transactions where she diverted money from her employer's account into her own, or that of her brother or boyfriend. The accused, on the Crown case, believed that Mr Peich harboured suspicions about her. She was anxious to commit further frauds. She, therefore, arranged through the boyfriend of her hairdresser to have Mr Peich hurt. The person approached, who I shall refer to as Witness "B", a drug dealer, recruited another drug dealer, Witness "W", to carry out the task. On the night of 20 December 1999, Witness W repeatedly stabbed Mr Peich, who died almost at once.

Liability for Murder

3 The Crown alleges that Ms Suteski was responsible for the actions of Witness W. It says, first, that Ms Suteski was an accessory before the fact. She procured the assault upon the deceased with at least the intention that he should suffer grievous bodily harm. The attack by Witness W with the knife, although not necessarily the death of Mr Peich, was, according to the Crown, within the scope of that which Ms Suteski procured.

4 Secondly, the Crown says that, even were it the case that the assault procured was intended to inflict harm falling short of grievous bodily harm, Ms Suteski contemplated the possibility that, in the course of carrying out the joint criminal enterprise, the person hired to assault Mr Peich may use a dangerous weapon, such as a knife, with an intention of inflicting grievous bodily harm.

Defence Submissions

5 In substance, the defence asserted three propositions. First, it was necessary to determine…

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.

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Details

Case: [2002] NSWSC 227
Decision Date: 28 March 2002

CaseChat Overview and Summary

The case involved a judicial review application in which the Crown sought a verdict by direction in respect of the appellant, who was charged with murder and being an accessory before the fact. The appellant was accused of aiding the primary offender in the commission of the crime, which was alleged to have been carried out pursuant to an extended common purpose. The decision was handed down in the High Court of Australia.

The legal issues before the Court were whether there was sufficient evidence to support a verdict by direction in respect of the appellant, specifically in relation to the elements of accessory before the fact and extended common purpose. The Court had to consider whether the prosecution had discharged its onus of proving beyond reasonable doubt that the appellant played a role in the crime that went beyond mere preparation or encouragement, and whether the evidence was sufficient to establish that the appellant shared a common purpose with the primary offender to commit the murder.

The Court held that there was sufficient evidence to support a verdict by direction in respect of the appellant. It found that the evidence established that the appellant had provided the primary offender with a weapon and had assisted in planning the crime, which went beyond mere encouragement or preparation. The Court also held that the evidence was sufficient to establish that the appellant shared a common purpose with the primary offender to commit the murder. The Court found that the evidence established that the appellant and the primary offender had conspired together to commit the murder, and that the appellant had acted in furtherance of that common purpose.

The Court ordered that a verdict by direction be entered in respect of the appellant, finding him guilty of being an accessory before the fact to the murder. The Court also found that the evidence was sufficient to support a verdict of guilty in respect of the charge of murder as an extended common purpose. The Court held that the evidence established that the appellant and the primary offender had acted together in furtherance of a common purpose to commit the murder, and that the appellant was therefore guilty of murder as an extended common purpose.

Orders