Supreme Court New South Wales Medium Neutral Citation: R v White & ors (No 2) [2012] NSWSC 466 Hearing dates: 21 March 2012 Decision date: 21 March 2012 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Evidence admissible Catchwords: CRIMINAL LAW - evidence - admissibility of evidence of purchase of cable ties prior to alleged robbery and murder - evidence capable of supporting inferences for which Crown contends - no other basis to exclude shown Category: Procedural and other rulings Parties: Regina Rodney Boyd White Todd Andrew Serone Jessica Tess Birkensleigh Representation: Mr J McLennan (Crown) Mr P Bodor QC (White) Mr B Walmsley SC (Serone) Mr E Johnston (Birkensleigh) Solicitor for Public Prosecutions Gregory J Goold Matouk Joyner Lawyers James Fuggle Rummery File Number(s): 2009/203701 2010/60565 2011/329820 Judgment 1HIS HONOUR: The Crown proposes to adduce evidence from Ms Vikki Mazzaracca in relation to a purchase of cable ties at the Mitre 10 store in Casino on 15 December 2008. 2Briefly, it is alleged that the accused, Jessica Birkensleigh, was the person who made the purchase. It is also the Crown case that the cable ties obtained by that purchase were used in connection with the murder of the deceased, Mr Saaid Zaiter. 3The crux of Ms Mazzaracca's evidence is that somebody purchased a packet of black cable ties on 15 December 2008 at 1.35pm at the C.S & B Mitre 10 Solutions Store at 127 Walker Street, Casino. The purchase price was $14.95 and a cash withdrawal of $110 was made, so the total transaction was $124.95. 4The Crown case is that this purchase occurred before Mr Stephen Orams and the accused Rodney White attended the cabin at Chinderah on 15 December 2008 when the accused White was expecting or hoping to meet with the deceased. 5Mr Johnston, on behalf of the accused Birkensleigh, objects to the admissibility of Ms Mazzaracca's evidence. In brief, his submission is that there is no evidence linking his client to the purchase of the cable ties and no evidence that such cable ties as were purchased were taken to the cabin at Chinderah and used in connection with the murder. 6The Crown case that the accused Birkensleigh purchased the cable ties on the occasion in question is circumstantial; it relies on a number of matters that I will briefly relate. 7Ms Birkensleigh set a reminder or alarm on her mobile phone for 7.45am on 15 December 2008, "Zip ties tape". 8Next, Ms Birkensleigh did in fact go to the Mitre 10 store in Casino on 15 December 2008, according to the undisputed evidence in that respect of Mr Orams. Mr Orams was unable to say what was purchased by Ms Birkensleigh except that she came out with an item or items in a bag. 9The card used in the purchase at the Mitre 10 store, according to the store records, was a NAB Visa card. The records include the number and expiry details of the card. The accused White, who was then the boyfriend of the accused Birkensleigh, had a NAB EFTPOS card according to NAB Bank records. His account was debited with an amount of $124.95 in respect of a purchase and cash withdrawal at the Mitre 10 store at Casino on 15 December 2008. 10Next, there is a clear inference available to be drawn that the same card was used to pay for accommodation at the Glenn Villa Caravan Park at Casino on 19 December 2008. The caravan park records show that a NAB Visa card, with the same number and expiry as that used at the Mitre 10 store, was used at 9.18 a.m. This transaction was also debited to the accused White's bank account according to NAB Bank records. 11There is evidence already before the jury (Exhibit W) that it was a female who used that card at the caravan park. She told the proprietor that her surname was Folinazzo. This happens to be the surname of the accused Birkensleigh's mother, Anne Maria Folinazzo. There is evidence of other use by the accused Birkensleigh of the surname Folinazzo in documents found at the place where she was arrested in Victoria on 4 September 2009. 12Further, the female who used the name Folinazzo at the caravan park gave an address which was identical to that of Ms Birkensleigh's mother's address in Victoria. 13The evidence of Mr Orams, which was not disputed, is that he took the accused Birkensleigh to a caravan park to book into a cabin at about 9.00 a.m. on 19 December 2008 (T170). 14Next, there is an inference available that Ms Birkensleigh also used a card attached to Mr White's bank account when making an airline reservation. Mr Orams' evidence is that on the morning of 19 December 2008 he took Ms Birkensleigh to a travel agency in Casino where she booked a flight to Melbourne for the Saturday morning, 20 December. An airline booking was made at the Casino Travel shop in the name of Jessica Birkensleigh at a cost of $372 and it was made at about 9.02am on 19 December 2008 (statement of Janeice Pashby). There is a corresponding entry in the record of Mr White's bank account by way of a debit of $372 at 9.04am on 19 December 2008. 15In my view there is an inference quite clearly available for the jury to draw that Ms Birkensleigh used the accused White's NAB Visa debit card at the caravan park and at the Casino Travel shop. If that inference is drawn, it strongly supports the inference that she also used that card for the purchase of the cable ties at the Mitre 10 hardware store on 15 December 2008. 16The second issue is whether the cable ties purchased at the Mitre 10 store were used in the murder. 17The prosecution witness, Peter Elefsen, is expected to give evidence that he saw the body of the deceased in the cabin at Chinderah and it was bound with cable ties. The hands and probably the feet were so bound. His evidence is expected to also be that shortly prior to the body being disposed of, the cable ties were removed and burnt. Burnt cable ties were subsequently found by police near to where the body had been disposed of and where Mr Elefsen had said they had been burnt. 18More cable ties were found in the cabin when police later conducted a search. They were of a similar type to those available at the Mitre 10 store in Casino. It will be open to the jury to infer that these were left over from a quantity that were purchased and taken to the cabin. 19There is evidence of cable ties having been purchased by a police officer at the Mitre 10 store at Casino in late January 2009 (Exhibit E). This is a packet of cable ties of the same description of those involved in the transaction at the Mitre 10 store on 15 December 2008. Cable ties which were found by the police at the cabin, (Exhibit F) are of a similar dimension and appearance as those in the packet from the Mitre 10 store. 20In my view, having regard to all of those matters, it would be open to the jury to infer that the accused Birkensleigh purchased cable ties at the Mitre 10 store on 15 December 2008. It would also be open to the jury to infer that those cable ties were used in connection with the murder. The evidence is relevant, it is admissible and no basis has been otherwise suggested for it to be excluded. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2012