R v Perish; R v Lawton; R v Perish

EX TEMPORE Judgment 1HIS HONOUR: Mr Terracini SC for the accused, Andrew Perish, makes an application that there is no prima facie case against Andrew Perish and that a verdict of not guilty should be directed. 2I will deal immediately with the principal submissions made on behalf of Andrew Perish as the jury is in waiting and the trial should proceed without delay. 3Andrew Perish has pleaded not guilty to the charge that he, with Anthony John Perish and Matthew Robert Lawton, between 1 January 2001 and 17 November 2001, did conspire to murder Terrence Falconer. In order for the jury to find the accused guilty of that charge the Crown must establish beyond reasonable doubt each of the following legal elements: (1)that there was in fact an agreement between two or more persons to kill Terrence Falconer; and, (2)that Andrew Perish participated in that agreement in the sense that: (a)he agreed with one or more of Anthony Perish and Matthew Lawton that the unlawful objective of the conspiracy, that is the killing of Terrence Falconer, should be carried out; and, (b)at the time of agreeing to this, he intended that unlawful objective, the killing of Terrence Falconer, should be carried into effect. 4Mr Terracini submits that there are, in fact, two conspiracies; the initial conspiracy involving Witness A, he ceasing to be part of the conspiracy. He submitted that there was no evidence of Andrew Perish saying anything to Witness A at the dinner or during the trips in the motor vehicle, which subsequently followed. Mr Terracini argued that there appears to have been a further conspiracy with Witness E to which Andrew Perish was not a participant. 5The test to be applied in a no prima facie case submission is that referred to in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 in the joint judgment of the High Court of Australia where it was said at 212 [11]: "The question whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory was adverted to but left unanswered in Whitehorn v. The Queen . There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict: see, for example, Plomp ; Reg. v. Prasad ; Reg. v. R. " Further at 21 4 [17]: "It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, 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." 6The Crown case must be taken at its highest and it is for the jury, not the judge, to resolve conflicts of evidence: Doney at 215 [18]. 7The Crown case against Andrew Perish is a circumstantial one. The circumstances include: