R v White & ors (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 1HIS 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. 2I 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]. 3Ms 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. 4Briefly, 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. 5The 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.