R v White & ors

Judgment 1HIS HONOUR: In this trial the accused Rodney White is charged with the murder of Saaid Zaiter on 16 December 2008. The accused Todd Serone is charged with being an accessory after the fact to that murder. A third accused, Jessica Birkensleigh is charged with robbery and accessory after the fact to murder. 2The trial was due to commence on Monday 12 March 2012 at Lismore. That morning, Mr Bodor QC for the accused White indicated that he had received some information from counsel for the accused Serone, Mr Walmsley SC, that had caused him to consider whether an application should be made for a trial for his client separate from the trial of the accused Serone. 3The matter was stood down until 2.00pm on that day to allow Mr Bodor further time to consider the issue. When the matter was resumed it was confirmed that such an application would be made.

Overview of Crown case 4Before dealing with the basis of the application it is appropriate to say something briefly about the Crown case. The following is drawn from the Crown Case Statement. 5The deceased was a drug dealer who was well known to New South Wales and Queensland authorities for his drug supply activities. The accused White was an associate of the deceased and bought drugs from him from time to time. At some stage the deceased would not sell drugs to White because of a debt of $25,000 that White owed to him. 6On 12 December 2008, the deceased had a number of telephone conversations with White in which White said that he was arranging for people from Melbourne to purchase a large quantity of "speed" from the deceased. The deceased told his nephew that he intended to sell three kilograms of the drug to these people for a substantial amount of money. 7On 14 December 2008, White sent a text message to the deceased's former defacto partner, Ms Kristie-Lee Wilson, requesting that she get in touch with the deceased and ask him to make contact with White urgently because some people had come a long way to see the deceased. Ms Wilson forwarded the message to the deceased. 8At the time, White was living in a de facto relationship with the accused Jessica Birkensleigh, in a cabin in a caravan park at Chinderah. Various activities were carried out on the day prior to the murder which I understand the Crown will argue showed planning for a confrontation, at least, with the deceased (for example, hiring a car after providing false identity information; purchase of plastic cable ties; and moving out of the cabin). 9It is unnecessary to go into all of the detail that is set out in the Crown Case Statement. Suffice to say that the deceased attended the cabin at Chinderah on 16 December 2008. White and one Ricky Lee Humphries, who has recently pleaded guilty to manslaughter, assaulted him. The deceased's hands were tied behind his back with black cable ties and tape was placed across his mouth and nose. 10White and Humphries then left the cabin and were driven away by a friend of White's, Stephen Orams, who had been waiting nearby at White's request. White told Orams, "I just bashed the cunt and I think he's dead". 11White then made various arrangements to get rid of the deceased's car which was parked outside the cabin, and to get rid of the body of the deceased. These arrangements included ringing the accused Todd Serone and asking, "Is the tow-truck free? I need you to pick up a car at the front of my unit". He told Serone to call after he had the car on the back of the tow truck. 12White then called Peter Elefsen and asked for his help for a few hours. He told Elefsen to obtain a jerry can with some fuel and to drive towards the Murwillumbah turn-off at Kyogle and to keep his eyes out for the silver Commodore station wagon that White, Humphries and Orams were in. He told Elefsen that he had a car on a trailer with an electrical or fuel problem and he wanted Elefsen to help get it started. 13White, Humphries and Orams were driving along in the silver Commodore towards Kyogle. White had a conversation with Humphries about places where a body could be disposed of so that it would not be found. Eventually they met up with Elefsen. At White's direction, Orams took Elefsen's car home and Elefsen joined White and Humphries in the silver Commodore. 14Meanwhile, following the telephone call from White, Serone contacted an associate, Alan Waters, who operated a tow-truck business. Waters picked up Serone and they went to the cabin at Chinderah where they found the deceased's car. They proceeded to drive through Murwillumbah and on towards Kyogle, presumably in accordance with directions that had been earlier given by White. 15After Orams had left them, White, Humphries and Elefsen drove off. During the journey, White said that he had "bashed this cunt and taken his car for payment. That's the car we're picking up". The silver Commodore and the tow truck passed each other when they were in the vicinity of Mount Burrell, about half way between Murwillumbah and Kyogle. At White's direction, the Commodore was turned around and followed the tow truck. White produced a handgun and fired it in the direction of the tow truck, which then pull over. White alighted from the Commodore and went and spoke with Serone. He then returned to the Commodore which drove away with the tow truck following. 16The two vehicles were driven to a remote bushland location. The deceased's car was taken off the tow truck. White and Serone removed packets of drugs which were secreted within the door cavities. White then threw fuel over the car and set it alight. Serone returned to the tow truck and said to Waters, "You're not going to believe it. They've just torched this thing". Waters expressed surprise and decided they should "get out of here". Waters drove the tow truck back to the road and proceeded in the direction of Murwillumbah. 17White, Humphries and Elefsen got back into the silver Commodore which was also then driven to Murwillumbah. They caught up to the tow truck when it was stopped at traffic lights. The three occupants of the Commodore alighted and stood in front of the tow truck. Serone got out of the tow truck and walked towards them. White approached him and they had a short conversation. White gave Serone some money. White returned to Humphries and Elefsen and told them to go with the tow truck driver. He told them, "Don't tell them who you are or where you live. I've told them you're from Melbourne". 18White had told Humphries and Elefsen that he planned to move to Western Australia and he wanted another hire car for that purpose. At his direction, Humphries and Elefsen travelled with Waters and Serone in the tow truck to Coolangatta where, ultimately, another Commodore, a blue sedan, was hired. Serone drove this car away with Humphries and Elefsen as passengers. 19Serone drove to White's cabin at Chinderah. He alighted and went into the cabin. He then returned to Humphries and Elefsen and said, "He's still there". All three men then went into the cabin. They saw the body lying on the floor, hands bound with the cable ties, and tape across the mouth and nose. Serone asked, "Did you boys knock him?" The three then participated in collecting the body and certain other incriminating items and loaded them into the back of the blue Commodore. 20Serone, Humphries and Elefsen drove away with the body in the boot. They drove towards the Mount Burrell area but stopped along the way. White came along in the silver Commodore and also stopped. White and Serone had a short conversation and while they did so, Humphries and Elefsen got into the silver Commodore. White returned to the silver Commodore and drove off with Serone following in the blue Commodore. 21The two cars stopped in close proximity to each other at an unspecified location. The body of the deceased was transferred from the blue Commodore to the silver Commodore. Serone then drove off on his own in the blue Commodore. White drove the silver Commodore away with Humphries and Elefsen as passengers and the body in the rear. 22White, Humphries and Elefsen then proceeded to a remote bushland location where the body of the deceased and other items were dumped. They left that area, but returned when White decided he would prefer the body to be dumped in a more remote location. Ultimately, the body was pushed over a cliff and various other incriminating items were set alight. 23The balance of the Crown Case Statement refers to various post-offence conduct of some of the accused and other participants. It includes that White was in possession of three blocks of "speed" taken from the deceased's car that he said he would cut with powder to produce five times the quantity. 24Ultimately, White and Birkensleigh were arrested near Bendigo, Victoria. There is evidence of considerable purchases made by the pair in the intervening period, mostly in false names, in the order of $157,000. 25Serone provided a statement to police on 24 December 2008. He said that he knew White and the deceased but had not seen them since 13 and 15 December 2008 respectively. He was interviewed on 24 February 2009. He said that he had been contacted by White who had asked that he move a vehicle that was parked at the cabin at Chinderah. He and Waters took the vehicle to the Nimbin/Kyogle area where they met White who fired a shot to get them to pull over. They then took the vehicle to a remote location and as soon as the vehicle was off the tow truck, they left due to the shot being fired earlier. He told police that at the time he gave his first statement he was frightened because he had learnt that the deceased had disappeared, his vehicle had been found burnt out and White was involved in some way. He was afraid of being bashed by members of the deceased's family for being involved in moving his car. 26Serone was arrested and charged on 9 March 2010.