Rejection of duress
26In my view it is not hard to understand why the jury rejected as a reasonable possibility that the offender was acting under duress. His evidence on the subject was, in my view, incapable of belief. I say that for the following reasons.
27As a starting point I acknowledge that Rodney White was a devious and manipulative man. I said in sentencing Ricky Humphries: R v Humphries [2012] NSWSC 419 at [41]:
I also have the advantage of having presided over the trial of White and have observed him giving evidence. I have no doubt that he is a most belligerent, arrogant and manipulative person.
28The offender and Rodney White were on friendly terms. So too were Humphries and Elefsen. It does not make sense that it was necessary for White to enlist the offender's assistance by threatening him and his family with death. There had been nothing to indicate to White that the offender, his friend, would not be prepared to co-operate. There was no suggestion of him enlisting the assistance of Humphries and Elefsen by doing any more than simply telling them what he wanted them to do. This is the primary reason why I regard the offender's claim as incredible but there are other reasons that contribute to my conclusion.
29The offender said that when they were stopped in Murwillumbah, and Rodney White directed Alan Waters and himself to take Humphries and Elefsen to Coolangatta airport in order to hire a car, White directed in relation to Humphries and Elefsen, "Don't speak to these blokes" or "Don't look at them and don't talk to them" (T1047). It is difficult to understand how that could be possible when it was supposedly White's plan that "these blokes" were to accompany the offender from Murwillumbah to Coolangatta and then to Chinderah, retrieve a body and then drive it back into the hinterland.
30There were a number of things that the offender said that he did that are inconsistent with the actions of somebody who was reluctant to assist. He was the one who did the talking when the men arrived at the hire car desk at the airport. When they were told they could not hire a car without a credit card, rather than indicating to the others that the situation was hopeless, he took the initiative of arranging with Mr and Mrs Waters for a credit card to be made available. When they were supposedly at the Bunnings store and Peter Elefsen spoke of the need to cut some carpet, it was the offender who made the suggestion that they should purchase a Stanley knife. These are not the actions of an unwilling accessory after the fact.
31The claim that a visit was made to a Bunnings store came only from the offender. Elefsen denied it and appeared completely nonplussed when the proposition was put to him in cross-examination (T420-421). He did not even know there was a Bunnings store in Tweed Heads.
32I have mentioned that the offender was asked what he did as Ricky Humphries and Peter Elefsen carried the body out of the cabin and that he replied, "I just picked up the box of tape and the gloves and the plastic wrapper and so forth". He also said that he closed the door of the cabin as he left. It is rather extraordinary that someone concealing evidence of a murder, but only because of duress, would take it upon himself to be so helpful and thorough.
33Another matter that is detrimental to the credibility of the offender is that Megan Waters gave evidence that she went with him to the car hire counter at the airport while the other two men (Humphries and Elefsen) waited outside (T504.40). She was not challenged about that. Her evidence in this respect was consistent with what Mr Elefsen had said (T316). The offender, on the other hand, claimed that Elefsen accompanied them while Humphries waited at the door, watching from a distance (T1050.6).
34If the version of Mrs Waters and Mr Elefsen was correct, there was a clear opportunity for the offender to have either raised the alarm or to have otherwise thwarted Rodney White's plan. Similar is the failure of the offender to say anything to his brother while he was at home, waiting for the Waters to come up with a credit card; and the failure to take the opportunity to call the police when he went inside the house to fetch glasses of water while Humphries and Elefsen waited in the backyard.
35It did not help the offender's cause, either, that he was forced to admit that he had lied to the jury about making calls to Mr Zaiter's phone in the days following the murder even though he knew that he was dead. He was also forced to concede in cross-examination by the Crown Prosecutor that he was "a frequent relentless liar" in what he had told the police. (T1075 - 1082)
36He also lied when he told the jury "I don't source drugs or take drugs or sell them" (T1061.20). The offender well knew that he had been a frequent user of drugs since about 2004. He was to later concede that he was a daily user of up to two grams of amphetamine at the end of 2008 (T1126).
37The issue of duress largely depended upon the evidence of Elefsen on the one hand and the offender on the other. White, of course, denied the offender's claims but his evidence could not be believed on any issue where it was not independently supported. Elefsen impressed as a witness who gave evidence in a straightforward, matter of fact style. His memory as to conversations was obviously hampered by the passage of time. He was an accomplice and the jury were warned as to the potential unreliability of evidence from such a person. However, I did not have any suspicion at any stage of his evidence that he was doing anything other than trying to give an account from an honest recollection of what actually happened. He was a far more impressive witness than the offender.
38Mr Elefsen's account was generally to the effect that it was the offender who directed what was to occur from the time when they left Murwillumbah through until they returned with the body to where Rodney White was waiting. He had no idea that the purpose of their journey was to retrieve a body until they arrived at the caravan park. He had been given to understand by White that the purpose of hiring a car was so that White could travel to Western Australia.
39When asked if there was any evidence that supported the offender's claim of duress, Mr Walmsley SC referred to the evidence of the tow truck driver, Mr Waters. It included that there had been some conversation on the way to the airport about the weather in Melbourne. It was submitted that this supported the offender's account that there had been reference to Messrs Elefsen and Humphries to Mr Waters and the offender as being "hitmen from Melbourne". Rhetorically, why else would there have been the reference to Melbourne?
40Clearly, there was some discussion in the tow truck concerning Melbourne. Peter Elefsen gave evidence of it as well. He explained that he and Humphries were not acquainted with the pair in the tow truck. Rodney White had told them before they got into the tow truck, "Don't tell him where you live". That was supposedly because White had told either the offender, or Mr Waters, or both, at the roadside at Murwillumbah that he and Humphries were from Melbourne (T311).
41Mr Elefsen, however, denied in cross-examination that there was any conversation in the tow truck about he and Humphries being "hitmen". It was not put directly to Mr Waters that there was such a conversation and he said nothing to support the proposition.
42Mr Waters also gave some other evidence that, if accepted, could be regarded as supporting the claim of duress (T490). This related to things Mr Waters had said in a statement he made the Friday before the Monday on which he gave his evidence. It is unsurprising that no reliance was placed upon it in the submissions on sentence because it was ultimately left in the trial in a confused and unsatisfactory state (T497 - 501).
43To conclude on this issue, whilst I am prepared to accept that Rodney White was a manipulative and domineering character, I am not prepared to accept that he threatened the offender in the way that has been claimed.