Supreme Court New South Wales Medium Neutral Citation: R v White & ors (No 7) [2012] NSWSC 471 Hearing dates: 28 March 2012 Decision date: 28 March 2012 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Evidence admissible Catchwords: CRIMINAL LAW - evidence - post-offence conduct - large cash transactions in months following alleged robbery capable of supporting inference of involvement in robbery Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: Regina Jessica Tess Birkensleigh Representation: Counsel: Mr J McLennan (Crown) Mr E Johnston (Accused) Solicitors: Solicitor for Public Prosecutions James Fuggle Rummery File Number(s): 2011/329820 Judgment 1HIS HONOUR: This is an application by the accused Birkensleigh that evidence of certain post-offence conduct be excluded. The application is made, first, on the basis that the evidence is irrelevant, and secondly, in the alternative, on the basis that, if relevant, the probative value of the evidence is outweighed by unfair prejudice: s 137 of the Evidence Act 1995. 2The Crown case, very broadly, is that the accused White murdered the deceased in the course of carrying out what might colloquially be known as a drug rip-off. It is contended that the deceased was robbed of a substantial quantity of the drug known as speed. 3The Crown case, insofar as the accused Birkensleigh is concerned is that she was an accessory before the fact to robbery and that she was an accessory after the fact to murder. In relation to the robbery, the Crown contends that she was on notice of the proposal to rob the deceased and rendered assistance to the accused White, in particular by purchasing cable ties and probably duct tape that were used by the accused White in binding and gagging the deceased at the time of the robbery. The deceased was left in the location where that occurred and, if not dead at the time, subsequently passed away. 4The Crown case is that the accused White and the accused Birkensleigh were in a relationship. It was their plan to move to Victoria to establish a new life and the robbery of the deceased was for the purpose of obtaining funds to finance this plan. 5The evidence in question on this application concerns expenditure by the accused White and the accused Birkensleigh in Victoria. Almost immediately after the robbery and murder of the deceased, the accused Birkensleigh flew to Victoria and not long afterwards the accused White made his way there. 6The evidence of expenditure by these two accused in Victoria is to be found in a bundle of statements which was identified by the Crown Prosecutor during the course of his submissions. Copies were provided which I have read. There is a useful summary of the effect of that evidence in the statement of Detective Acting Sergeant Timothy Peck of 1 April 2010. At pages 6 and 7 he summarises the transactions made by the two accused which indicates some 15 transactions that occurred between January 2009 - I interpolate, not long after the robbery/murder - and 3 August 2009. Together with a sum of cash found at the time of the arrest of the accused, they total $157,653.70. They relate to the purchases of a speed boat, a caravan, various motor vehicles, accommodation, the deposit on a block of land and other items. 7Banking records were also provided in affidavits identified by the Crown Prosecutor in support of the proposition that the funding for the expenditure has no apparent legitimate source and supports the inference that it was from the proceeds of the robbery. 8The deceased was robbed of drugs and not money. There is evidence in the trial from the witness Peter Elefsen that he saw the accused White in possession of drugs on the evening of the day following the alleged offences. It was his evidence (T345) that there were three cryovac packages each containing "a pound of speed". His evidence was that Mr White said that he was going to get another powder to cut the speed so as to convert each one pound block into five pounds. He said the accused White said that each block of speed was pure and that what he saw of the drug in the cryovac bags was red in colour. 9There is evidence proposed to be led in the trial from a Detective Sergeant Stephen Yapp who is said to be an expert in drug matters. The effect of his evidence will be that a quantity of 70 grams of drug found upon the arrest of the accused, which was found by an analyst to be 14 percent pure, if converted back in a reverse manner to that allegedly described by the accused White to the witness Elefsen, it could have been from a primary source of 70 percent purity. That is, broadly speaking, about as pure as methylamphetamine gets. 10Detective Yapp speaks of there being five pounds of the drug in single pound blocks, whereas the witness Elefsen speaks of three one-pound blocks, but on any view of the matter the potential value of the drug stolen from the deceased, if the valuations and calculations of Detective Yapp are accepted by the jury, is in the hundreds of thousands of dollars. 11The Crown will seek to link the drug found upon the arrest of the accused with the drugs stolen from the deceased through the evidence of Detective Yapp, particularly as to the purities, and also by the description of the drug. The analyst's certificate in respect of the drug found on the arrest of the accused indicates that the drug was "red powder". Mr Elefsen agreed in his evidence (T345) that the drug he saw in the possession of the accused White was red in colour. A witness, Simone Chaloub, will give evidence of seeing drugs in the possession of the accused White and the accused Birkensleigh in Melbourne in April 2009 which she described as "red ice". So from that evidence the Crown contends that the drug found upon the arrest of the accused was residue from the drugs stolen from the deceased. The Crown will contend that the majority of the drug stolen from the deceased had been cut and sold, and was the source of the money used in relation to the expenditure summarised in the statement of Detective Peck. 12The vast majority of the purchases in question were made by the accused White and the accused Birkensleigh with the use of false names. The objection extends to both the evidence of the making of the purchases and the evidence that they were made with the use of false names. However, Mr Johnston indicated that the two are bound together; in other words, it is all or nothing. 13Mr Johnston's objection was first as to relevance as I have indicated. It was his submission that there was an insufficient connection, or no connection, between the money used in the various transactions and the robbery of the deceased. It was also submitted that there was no evidence that the accused Birkensleigh herself was in possession of large sums of cash. The evidence showed that the accused White had the ability to have large sums of cash available to him through his activities as a drug dealer, and also through his activities in the purchase and sale of motor vehicles. 14As I understand it, it was suggested that even if I came to the view that the evidence was relevant, its probative value was outweighed by unfair prejudice because the link between the expenditure and the robbery of the deceased, even if potentially in existence, was so tenuous and it would be outweighed by the danger of the jury misusing the evidence by giving it a weight it did not deserve or that was not warranted on the evidence. 15It was submitted that there were a number of alternative explanations for the source of the money and for the use of false names. As to the latter, Mr Johnston had difficulty suggesting an alternative explanation without further evidence that may be forthcoming in the trial. 16I have come to the view that the evidence is relevant. There is a sufficient link between the drugs found upon the arrest of the accused with the drugs alleged to have been stolen from the deceased. It is a matter for the jury whether they find that link is established, but in my view it is open to the jury to draw that link. 17If the jury does conclude that some of the drugs stolen from the deceased were still in the hands of the accused in September 2009, it could also conclude that there had been a sale of the majority of the drugs stolen from the deceased over the course of the nine months between the two events. If the jury accept the evidence as to the quantities and value of the drug, it would be open to the jury to find that the expenditure was funded by those drug sales. 18Accordingly, the evidence is relevant to the involvement of both of the accused White and Birkensleigh in the robbery. I doubt that the evidence says much, if anything, about the culpability of the accused Birkensleigh for the accessory after the fact to murder charge, but that is not determinative. If it has relevance to one of the alleged offences, that is sufficient. 19I am not persuaded that there is any danger of unfair prejudice. It is not the case that there is said to be some embarrassment for the accused Birkensleigh in providing an explanation for the drugs found upon her arrest or for the money used to fund the various purchases. Indeed, there was no suggestion of there being some realistic competing inference that could be drawn for the presence of a red coloured quantity of methylamphetamine at the time of arrest (that is, it was acquired other than from the deceased). Further, there was no suggestion of there being some realistic competing inference that could be drawn for the accused having the ability to fund purchases in the order of over $150,000 in a nine month period. The submission that the jury might give more weight to the evidence than is warranted is not accepted. The jury will either accept the probative value of the evidence in the manner for which the Crown contends or it will not. The only prejudice that there seems to be is that the evidence is probative of the accused's guilt. That is not "unfair prejudice". 20If there does appear to be any danger of the jury misusing the evidence by the time all the evidence is in, I will hear counsel further as to any directions that I should give to the jury to guard against any impermissible process of reasoning that is potentially available. 21To conclude, I am satisfied that the evidence is relevant in the sense that that term is defined in the Evidence Act. I am satisfied there is no danger of the probative value being outweighed by a danger of unfair prejudice. 22The evidence is admissible. ********** 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