[1990] HCA 51
Fabre v Arenales (1992) 27 NSWLR 437
Gall v R
Gall v R [2015] NSWCCA 69
Jones v Dunkel (1959) 101 CLR 298
Source
Original judgment source is linked above.
Catchwords
[1990] HCA 51
Fabre v Arenales (1992) 27 NSWLR 437
Gall v RGall v R [2015] NSWCCA 69
Jones v Dunkel (1959) 101 CLR 298
Judgment (3 paragraphs)
[1]
Solicitors:
Office of the Director of Public Prosecutions (Crown)
PW & Associates (Accused)
File Number(s): 2016/00212466
[2]
EX TEMPORE Judgment
HIS HONOUR: Before the Court is an accused, Mr Byrnes, who is charged with accessory after the fact to murder. The principal offender is said to have been Mr Rossi-Murray, who, for present purposes, is unconcerned with that with which the Court is now required to deal.
The Crown case has closed and all of the evidence adduced on behalf of the Crown has concluded.
Counsel for Mr Byrnes, has applied for a directed verdict on the accessory after the fact to murder. The principles in relation to a directed verdict have been adumbrated on a number of occasions and discussed by much authority. The major cases include Doney v R (1990) 171 CLR 207; [1990] HCA 51; Director of Public Prosecutions v R (1991) 57 A Crim R 39 ("JMR"), to which I will turn. The principles upon which a Court may direct a verdict are strict and confined, but the test, once satisfied, is not discretionary.
It is the duty of a trial Judge to direct a verdict of acquittal, if the evidence could not sustain a guilty verdict or, as more commonly phrased, if there be no evidence upon which a jury, properly directed, could convict. That expression comes from Doney, supra, at 212.6.
In determining whether there is no evidence to sustain a guilty verdict, the Court is required to ignore contradictory evidence unfavourable to the Crown case and to take the Crown case at its highest, including any inferences that may arise from the evidence adduced.
It is for the jury, not the Judge, to resolve conflicting evidence. So much is found best expressed in the reasons for judgment of his Honour Gleeson CJ, when he was Chief Justice of this Court, in R v R (1989) 18 NSWLR 74 at 81. The test is a question of law; however, it necessarily involves an assessment of the facts that are proved by the evidence adduced.
Two issues are clear: First, as is made clear in Doney, to which I have referred, it is not for the trial Judge to determine the issues on the basis that a jury verdict would be unreasonable or, as it is often described, unsafe and unsound.
If there be evidence, even tenuous, inherently weak or vague evidence, which the jury is able to take into account and which, if accepted by the jury, would support a verdict of guilty, the matter must be left to the jury. It is not a matter for the trial Judge to pre-empt a potentially unreasonable verdict by a jury, but a matter for the Court of Criminal Appeal if the verdict ultimately reached be found to be unreasonable.
Secondly, it is insufficient, in determining whether to direct a verdict, for a trial Judge to come to the conclusion that a reasonable hypothesis, consistent with innocence, can be formulated. So much was expressed in JMR. If an inference be available from the evidence adduced, which is consistent with guilt, it is a matter for the jury, properly instructed, not for the trial Judge.
It is necessary to deal with the principles that apply to the crime of accessory after the fact. In order to find Mr Byrnes guilty of accessory after the fact to murder, the Crown must prove, on the evidence admitted against Mr Byrnes, beyond reasonable doubt that Matthew Shepherd, the deceased, was murdered by Mr Rossi-Murray; that after the alleged murder, Mr Byrnes assisted Mr Rossi-Murray in order that he escape detection or punishment; that the accessory, that is Mr Byrnes, knew the facts or enough of them that amount to the murder; and that Mr Byrnes intended, that is had an intention, which can be one of many intentions, to assist Mr Rossi-Murray by doing the act which in fact assisted him, knowing he is, or was, likely to be guilty of murder, or knowing the facts that would amount to him being guilty of murder.
Having said that, there is always available on a charge for accessory after the fact to murder for the jury to find an accused guilty of accessory after the fact to manslaughter, in circumstances where the Crown has not proved beyond reasonable doubt that Mr Byrnes had the information, or knew the facts, that would give rise to knowledge of an intention to cause grievous bodily harm, or an intention to kill or, indeed, a reckless indifference to human life.
The crime of accessory after the fact, as is made clear from the foregoing, requires that, in this case, Mr Byrnes, (and in any case, the accessory) must have as one of his intentions in doing the act which the Crown alleges assisted, to assist the offender to escape detection or punishment. So much was made clear in the R v Young; R v Phipps (Court of Criminal Appeal (NSW), 31 October 1995, unrep). There can be other intentions and there can be other motives, but the accessory must have an intention to do an act, in doing the act which assisted the offender, of assisting the offender escaping detection or punishment.
Leaving aside for present purposes the issue associated with whether the accessory at the time that the assistance was provided had knowledge of the essential facts that gave rise to the murder, or alleged murder, it seems that the material before the Court is sufficient to show that the intention of Mr Byrnes was to assist Mr Rossi-Murray in a range of ways, and, for that reason, I need to deal no further with the issue of such intention, which I will assume exists.
By using the word "assume", I do not want anyone to take the view that I have a concluded view as to the assistance or intention to assist or, indeed, that I am conjecturing as to such intention. It is only that the evidence, as it has been adduced by the Crown, is more than sufficient to leave to the jury the question of the mens rea, involving an intention to assist Mr Rossi-Murray. However, mens rea is, in and of itself, insufficient to prove accessory.
As already stated, a person is an accessory after the fact to murder, or to any felony, if the person receives, comforts, maintains or assists the principal offender, who has committed the felony. In doing so, the accessory must render a positive act of assistance and that does not include a failure to inform the Police. Thus, a failure to inform the Police of a fact or circumstance is not a sufficiently positive act to render the person guilty of accessory after the fact.
Secondly, the assistance must be one which tends to assist the principal to avoid justice. So much was made clear in the R v Stone [1981] VR 737 and R v Levy (1912) 1 KB 158.
As already stated, at the time that the act of assistance is given, the accessory or alleged accessory must know the essential facts of the crime. In the course of the argument, Counsel relied upon a passage from the well-known work by Peter Gillies, Criminal Law (2nd ed, 1990, Law Book Co.). In particular, he referred to the passage at 762-765, dealing with the actus reus.
To quote from that learned work, at the foot of page 762:
"… it has been held, or at least recognised that a person may become an accessory after the fact if he or she commits such an act as assisting a convicted felon to escape custody before he or she is punished; helping a thief to dispose of stolen goods, such as by buying them, or by finding a buyer for them; helping a thief carry off stolen goods at a time subsequent to the completion of the theft; concealing evidence of the commission of the crime; passing on information to the felon's wife so that she can conceal the evidence of the crime; driving the principal away from the scene of his crime; giving clothes to a fugitive felon; altering the engine number on a stolen car; or misleading the police by supporting the principal's false alibi." [Footnotes omitted.]
Part of the references to which the learned author refers include the reference to Levy, to which the Court has already referred. The learned author goes on to say:
"As well, relevant advice to the principal may constitute the adviser an accessory after the fact, as for example, where the latter advises the principal to flee the jurisdiction." [Footnotes omitted.]
The cases usually refer to the actus reus as consisting of those acts which assist the felon, or use an equivalent positive word or phrase, but there is little doubt that an act which has the potential to assist the felon to evade justice suffices, even as, in this particular case, it does not have this effect.
It is sufficient that the act tends to assist the felon, that is, has the potential of protecting her or him from the processes of justice, as was reflected in the statement of Erle J in the English case of Hansill (1849) 3 Cox C.C. 597, where he said that the act of assistance should, "imped[e] or tend … to impede the course of justice".
The learned author refers to the judgment of R v Maloney (1901) 1 SR (NSW) 77, which was relied upon by Counsel in the course of argument, and then expresses the following view, which in this case is important, and I quote:
"It has been expressly confirmed that an omission to act which assists the felon to evade justice does not make [an accused] an accessory after the fact."
It is necessary, because of the argument that has been put by both sides, to deal with two cases in more detail. They are R v Maloney, supra, and R v Dawson [1961] VR 773, but I will come to those matters shortly. Before that, it is necessary to deal with the drawing of inferences.
The Crown case is, not unusually, a circumstantial case. It depends upon the proving of certain facts from which the Crown asks, ultimately, the jury to infer certain other facts. In dealing with the facts that make up a case for the purposes of circumstantial evidence, one does not need to prove every underlying fact beyond reasonable doubt. It is sufficient to prove a number of facts or show the existence of a number of facts which, when coupled together, make the circumstantial inference irrefragable.
Often this process is described as analogous to the strands of a cable. Thus, whereas one strand may be insufficiently strong to prove the guilt of an accused, once all of strands are bound together, the cable formed by the combination of each of the weak strands is strong enough to prove, or to hold, to continue the analogy, the burden of proof that is reposited on the Crown. It is necessary, therefore, to deal with the issue of the drawing of inferences.
Much has been said and written about the drawing of inferences. Ultimately, what has been said describes the drawing of an inference as a matter of "plain common sense." The process, from my perspective, relevant to today will start with a passage from Dixon J, (as he then was), in Martin v Osborne (1936) 55 CLR 367 at 375; [1936] HCA 23.
In his reasons for judgment, Dixon J was there dealing with an appeal from the Supreme Court which, in turn, was dealing with an appeal from the Court of Petty Sessions, as it then was. Evidence was sought to be adduced at Petty Sessions. It related to the question of whether someone was utilising a car for hire contrary to the Act that regulated taxis back in the 1920s and 1930s.
The matter came before the High Court and at page 375 the judgment of Dixon J, which was later cited with approval in a number of cases, including Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 and Jones v Sutherland Shire Council [1979] 2 NSWLR 206, says:
"If an issue is be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the facts to be proved is so high that the contrary cannot reasonably be supposed.
The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.
The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the facts in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the facts to be proved also existed. The application of this, as of any other general statement about relevancy is subject to the well-known specific rules of exclusion."
I need read no further. In Fabre v Arenales (1992) 27 NSWLR 437, the Court of Appeal said:
"There is in this nothing esoteric or peculiar to legal reasoning. It is, as
Windeyer J said, 'plain commonsense'. A factual inference (if A, B, C exist,
Z exists) is open if, to quote the words of Knox CJ and Dixon J, 'human
experience would be contradicted if' Z did not exist."
The difficulty that the Court must deal with is that where there is more than one inference available from the facts, it is ordinarily for the jury to determine which of those inferences should be drawn.
The better analysis was the one, which predates Jones v Sutherland Shire Council, Jones v Dunkel and even Martin v Osborne and derives from the reasons for judgment of Chief Justice Sir Frederick Jordan, in Carr v Baker (1936) 36 SR (NSW) 301.
His Honour Sir Frederick Jordan CJ refers at length to the drawing of inferences and says (at page 306):
"In a Court of justice, the question whether a particular fact has been proved must be determined by considering evidence and seeing whether the existence of the fact is probable in the light of that evidence. In a civil matter, it is necessary, in order that a fact may be regarded as established, that the evidence should be such that it is more probable that it exists than that it does not. The position is the same whether the evidence is direct or circumstantial: Simpson v LM and S Rly Co ([1931] AC 351 at p. 359). In a criminal matter, it is necessary, if the fact is to be proved by the prosecution, that the evidence should be such that not only is it more probable than not that the fact exists, but that there is no reasonable probability that it does not: it must be proved that it is so probable that no reasonable doubt exists that it is the fact …
It has been clearly and emphatically laid down by the House of Lords that in no case can a fact be regarded as established unless its existence is at least a reasonable inference from some matter proved in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not of conjecture: Jones v Great Western Railway Co (47 TLR 39 at pp. 41, 45). The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability - a mere scintilla of probability such as would not warrant a finding in a civil action: Hiddle v National Fire and Marine Insurance Co of NZ (17 NSWLR 46 at p. 49) - to such practical certainty as would justify a conviction in a criminal prosecution."
Then, the Chief Justice cites Jones v Great Western Railway Co (1931) 144 LT 194 to the following effect:
"In discussing whether there is in any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of a reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue."
Sir Frederick Jordan then continues in his own words:
"It is well established that if there is no piece of evidence which, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established: Cofield v Waterloo Case Co Ltd (34 CLR 363 at pp. 374-377). This situation may arise in two different ways. First, there may be no piece of evidence which suggests that the existence of the fact is more than possible. In such a case, since there is nothing to show whether the existence of the fact is probable or not, it is just as likely that it does not exist as that it does. There is no probability either way; and nothing equals nothing. Wakelin v L and SW Rly Co was a case of this type (12 App Cas 41 at p. 49). There may, however, be a case in which the evidence is such that in some aspects it raises a probability that the fact exists, and in other aspects it raises a probability that it does not. If, in such cases, the two countervailing probabilities are in perfect equipoise, the fact cannot be treated as established. It was pointed out, however, by Kay LJ in Smith v South Eastern Railway Co ([1896] 1 QB 178 at p. 188) that where a jury are judges of the facts 'it should be a very exceptional case in which the Judge could so weigh the facts and say that their weight on the one side and the other was exactly equal,' so as to justify him in taking the case from the jury. Lord Blanesburgh has recently expressed agreement with this view in Jones v Great Western Railway Co (47 TLR 39 at p. 42). 'If there are two reasonable views to be taken on the evidence, or if there is any inference to be drawn from the evidence, the case is one for the jury': Commissioner for Rlys v Leahy (2 CLR 54 at p. 62)."
Another way of dealing with the issue is to determine whether the Court is being asked to exercise a judgment on fact or a judgment on law, albeit mixed law and fact. There can be no doubt that an assessment of whether there is a case to answer or that a jury should be directed to acquit, is a mixed question of fact and law. The classic explanation or distinction between a question of fact and a question of law are such that if what the Court is doing is taking away from the jury a question of fact, upon which there is evidence that the jury would be capable of concluding supported a finding of that fact, then it is a question of fact, not a question of law, and not a matter for the direction of the jury.
It is only in circumstances where there is no evidence to support an inference that is sought to be drawn, or if the inference could not, as distinct from should not, be drawn to justify a finding of fact that is necessary in order for one or other of the elements of the crime to have been established, that the Court can direct an acquittal.
I turn then to the issues presently before the Court. Counsel described the Crown case as consisting of six issues. I have deliberately elided two of them.
The first of them is the accused, Mr Byrnes, failing to respond when the police knocked on the door at some point in time about midnight. The second issue is, at or about 10am, the accused informing the Police that the DVR did not record.
The third issue, which I have elided with Counsel's fourth, is the accused replacing the hard disc drive on the DVR and informing Mr Rossi-Murray of that fact.
The fourth issue is the accused deleting the text messages from the phone; and the fifth issue is the attempt by the accused to obtain the wallet.
Let me deal with the last one first. Counsel has relied in his submissions on the judgment of the Court of Criminal Appeal (in those days it would have been the Full Court of the Supreme Court) of Owen, GB Simpson and Cohen JJ, in R v Maloney, supra.
Counsel relies on it for a seemingly more general purpose, but at least insofar as we are dealing with the issue of the assistance offered by the search for or finding of the wallet, it is particularly relevant.
Justice Owen, who delivered the judgment of the Court, said this:
"In my opinion since neither the box nor the letter reached Watson there was in point of fact no act done which did assist him in his endeavours to escape. There was an attempt to assist, but no act done which actually had that effect. It appears to me, therefore, that the learned Judge should have directed the jury under s. 427 that they could on the evidence find the prisoner guilty of an attempt to assist the principal. That section provides that where, on the trial of a person for any failure or misdemeanour, the jury are not satisfied that he is guilty thereof, but are satisfied that he is guilty of an attempt to commit the same, they may acquit him of the offence charged and find him guilty of such attempt."
The Crown relies upon the judgment of the Full Court of Victorian Supreme Court, (Lowe, Smith and Monahan JJ) in R v Dawson.
In that case the Full Court of the Victorian Supreme Court seems to have distinguished the judgment in Maloney and made the comment that the conduct, at which the Court was there looking, was not mere preparation to assist, but actual assistance, and not the less so because it failed in its object to get rid of the goods. That acts such as these are sufficient to make out an act that is accessorial seem clear upon the authorities.
The Crown submits that the two cases are inconsistent. I do not take that view.
In the case of Maloney, what was sought to be done by way of assistance was the provision of clothes to the principal offender. In order to achieve that purpose the alleged accessory sent the clothes in a box. The box never reached the principal offender. As a consequence, he was never given the assistance of being provided the clothes.
The fact, if it were the fact, that the clothes may not have avoided the principal offender's detection would not have meant that the provision of clothes was not an act that gave rise to accessory. The point in Maloney was that the clothes were never provided. Therefore, the act was an attempt, rather than the completed act of being an accessory.
In Dawson, on the other hand, the act that was sought to be done was the destruction of goods by conduct, which conduct was, in fact, performed. The act that was performed was not sufficient to get rid of the goods.
It seems to me there is no inconsistency between the two judgments. In Dawson, the act that was sought to be done to assist was completed and the offender, Mr Dawson, was held to be an accessory. In Maloney, the act that was sought to be done to assist was not completed and the offender was held only to have committed an attempt to be an accessory.
I come back, if I might, to the issues raised by the Crown. Applying those principles and dealing with what I have called the fifth issue, the attempt to obtain the wallet, it seems to me that the obtaining of the wallet and presumably its destruction or provision to Mr Rossi-Murray, would have been an act that was accessorial and would give rise to the felony or the serious offence of accessory after the fact to whatever crime was then known to the alleged accessory. But no wallet was obtained.
The attempts to obtain the wallet are just that. They are attempts. No assistance was in fact rendered by the alleged accessory looking for the wallet and not finding it. I can, therefore, dismiss that aspect as one which simply does not come within either the indictment as preferred or the manner in which the Crown has sought to run the case that is before the Court. To utilise s 162 of the Criminal Procedure Act 1986 (NSW) would be to alter the matter now before the Court.
I then deal with the issue of failing to respond. As was made clear in earlier comments, a failure to inform, or a situation where a person does nothing, cannot amount to accessory. Therefore, the failure to respond at or about 12 midnight to a knock at the door by Police is not a matter that can be a basis for the jury finding Mr Byrnes guilty of accessory after the fact.
The second matter is that at or about 10am on 3 July 2016, at a time when it is uncontroversial that Mr Byrnes was aware that a murder had been committed and was aware of the fact which gave rise to a belief that Mr Rossi-Murray had committed the murder, he informed the Police that the DVR, which has been a central feature in the case against Mr Byrnes, did not record.
The evidence of this fact can be found at p 445 of the Transcript and following. It is sufficient for me to say that the Police arrived at the door. Mr Byrnes identified himself and the Police asked if they could check the CCTV footage, to which Mr Byrnes said "yes".
Now the question and answer is in the following terms in the evidence of Plain Clothes Senior Constable Trovato, at line 34:
"Q. And did Byrnes respond and tell you it didn't record?
A. That is right.
Q. Then you asked if you could check the equipment?
A. That's correct yes.
Q. Did Byrnes then allow you to enter the house?
A. He did.
Q. Did you then follow him to a bedroom?
A. Yes.
Q. Was that the room, the bedroom where the wires had gone through the window?
A. Yes.
...
Q. Was there a TV screen with multiple images on the screen?
A. That is right.
Q. Was there someone under the covers in the bed?
A. That is correct.
....
Q. The TV you said had multiple images on it, do you remember what it showed at the time?
A. Images of the front of 61 Durham of what would be if you looked outside.
Q. Did Byrnes show you the screen and say something to you?
A. He did.
Q. What did he say?
A. I believe he mentioned that that is the CCTV and it doesn't record.
Q. Did you then say something to him?
A. I said could you please let me have a look.
Q. I didn't say please - I said - can you let me have a look. I think it records - and what did he then say?
A. He said no."
The expert evidence before the Court makes clear that as at 10 o'clock, when this exchange between Plain Clothes Senior Constable Trovato and Mr Byrnes occurred, the DVR did not and could not record, because the hard disc drive of the DVR was not formatted to the system that was utilized by the DVR.
Thus the provision of the information by Mr Byrnes that the DVR does not record, as is the evidence of Plain Clothes Senior Constable Trovato, was accurate. In that sense, it can hardly be said to be information that assisted Mr Rossi-Murray in evading detection.
The third matter is the replacing of the hard disc drive on the DVR. It seems to me, on the material before the Court and in particular Exhibit P, which is a schedule of relevant phone calls and SMS messages, that an inference is available to the jury (query whether they could or should draw it) that, at or about 2:36:04 on 3 July, Mr Rossi-Murray asked Mr Byrnes to delete the hard drive and the inference that is available is that it is the hard drive on the DVR. At 4:17:55, Mr Byrnes responds "and the hard drive gone".
There are at least two inferences that are available in relation to that: first, that there was a request by Mr Rossi-Murray to delete the hard drive; secondly, that by hook or by crook, thus by one or other method, by 4:17:55 the hard drive had gone.
I have little doubt that the jury would have open to them the drawing of an inference that Mr Byrnes in fact exchanged the hard drive sometime between 2:36:04 and 4:17:55. The second aspect which I arrived at in this matter as summarised by Counsel, being a summary of the Crown case, is that he informed Mr Rossi-Murray of that fact.
I am not sure how the relaying of the information, as distinct from the replacement of the hard disc drive, makes the assistance any greater or worse. That is why I have elided the two. The difficulty with this issue is a difficulty that arises from the principles to which I have earlier referred.
At the time that the hard disc drive was removed and replaced, Mr Byrnes, as an alleged accessory, would have needed to know or, more accurately, the Crown would need to prove, either directly or by inference, that Mr Byrnes had knowledge of the essential elements of the crime to which he is said to be an accessory.
The only evidence before the Court as to when Mr Byrnes became aware of the death of the deceased is that it occurs at 8:19am. The Crown concedes that there is no evidence before the Court, upon which the Crown could rely, to show that Mr Byrnes was aware of the death of the deceased between 2:36:04, when requested by Mr Rossi-Murray to delete the hard drive, and 4:17:55, when he informs Mr Rossi-Murray that the hard drive has gone. I will return to that fact.
The last aspect is the deleting of the messages on the phone being, it seems, all of the messages, but in terms of assistance the messages between Mr Byrnes and Mr Rossi-Murray. This is a more difficult issue.
The records, such as they are, jump from 7:59:36 to 9:09:16. The 9:09:16 reference is a reference to a Facebook message between Mr Byrnes and Mr Rossi-Murray.
There are then a series of Facebook messages all of which had been deleted up to and including a message at 9:28:16. All of the text messages, records, and, for want of a better term, metadata of calls before 7:59:36 were also deleted.
I have no doubt that the deletion of the phone records is a matter that could give rise to the charge and conviction of accessory after the fact. I will return in a moment, if I might, to the argument more generally put by Counsel in relation to attempts.
The material that is before the Court and that is sought to be put to the jury is material from which the jury could draw an inference that the act of deleting the messages was an act that was performed with the intention of assisting Mr Rossi-Murray. Further, it is an act that was performed and did, even though temporarily, assist Mr Rossi-Murray.
Counsel argues, on behalf of his client, that the fact that Police had the capacity to obtain material from a hard disc or chip that has been deleted, assuming for present purposes that it has not been wholly written over, means that the act of Mr Byrnes in deleting the phone messages or records is an act that would never have assisted Mr Rossi-Murray.
That argument depends upon a knowledge by Mr Byrnes that Police have the capacity to obtain such material once deleted. The fact is, however temporary the assistance may be, assistance was or would have been effected by the deletion of the messages.
The expert evidence that has been adduced, and I think the evidence of the officer-in-charge, Detective Gardiner, is to the effect that the program that the Police use, to retrieve what would otherwise have been deleted messages, does not retrieve the whole of the message, but only the first part of a message and, therefore, some aspects of the messages would have been deleted.
Further, although the law takes a while to catch up with electronic data and modern technology, it is no different, in principle, to a person hiding someone in a cupboard, in circumstances where the Police ultimately have the capacity to issue a search warrant and search the cupboard. The fact that the person was hidden in the cupboard in the first place is an act that is accessorial in nature. The assistance that is given is temporary.
It may or may not have been known by Mr Byrnes that the Police had the capacity to read deleted messages (or parts of them) but there is simply no evidence that such a knowledge existed and the deletion of the records serves no purpose other than the assistance of Mr Rossi-Murray. I consider that the act, which was completed, that is the deletion of the records, was an act done which can give rise to accessorial liability and was done, for the purpose of assisting Mr Rossi-Murray. In the foregoing findings, I make it clear that when I say I find, I am saying that the evidence exists that would allow a jury to so find.
Nevertheless, the issue arises as to when the deletion occurred and whether, if it occurred after 8:19am, anything was done, which was capable of assisting Mr Rossi-Murray. In this regard the matters raised on this issue and on the third issue, to which I said I would return are decided in the same way.
Ultimately, the Crown has not proved facts from which a jury could find that there was a probability (as distinct from merely a possibility that is not reasonable) that any act was done at a time when Mr Byrnes knew the essential features of the offence that had been committed. The judgment to which I was referred in Gall v R; Gall v R [2015] NSWCCA 69 makes it clear that, for a trial of accessory after the fact to murder, the jury must be directed that the accused knew that the offence committed was murder and not simply an unlawful killing.
In order to be an accessory to murder, one must know there was the relevant state of mind in the principal offender. Further, there must be knowledge of the death. Nothing that the Crown has shown allows a jury to find more than a mere possibility, as distinct from a probability, that the death of the deceased was known by Mr Byrnes at the time that any of these acts were done.
I return, if I might, to the issue of the exchanges of the hard disc drive and the DVR. During the course of discussion about this matter with counsel, I referred to the hiding or concealing of the formatted DVR as being a continuing act. However sensible that approach may be, it seems to me to be inconsistent with the authorities that require a positive act and not merely the failure to inform to give rise to accessorial conduct.
As a consequence of the foregoing, the Crown case on accessory to murder or manslaughter does not have evidence from which the jury could find guilt, either to accessory to murder or accessory to manslaughter. There is no charge, before the Court, of accessory to an unlawful wounding or malicious wounding, about which there is abundant evidence. I grant the application to direct a verdict in relation to the accessory to murder charge against Mr Byrnes and the statutory alternative of accessory to manslaughter.
[3]
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Decision last updated: 31 May 2019