R v White & ors

Judgment 1HIS HONOUR: On 21 March 2012 I announced my decision that certain evidence sought to be adduced on behalf of the accused Todd Serone was not admissible as tendency or coincidence evidence (T243.15). These are my reasons. 2This trial formally commenced with the empanelment of the jury on Tuesday 13 March 2012. The accused Rodney White is charged with the murder of Saaid (Sid) Zaiter at Chinderah on 16 December 2008. The accused Serone and the accused Birkensleigh are charged with being accessories after the fact to that murder. Birkensleigh is also charged with the robbery of the deceased (she is alleged to have been an accessory before the robbery). 3When the matter was mentioned before me on Monday 12 March 2012, Mr Bodor QC, who appears for the accused White, made an application for a trial separate to the accused Serone. The bases of the application are fully set out in my judgment refusing that application: R v White & ors (No 1) [2012] NSWSC 465. One basis of the application was that there would be prejudice to White through the manner in which it was understood Serone was going to conduct his defence. Mr Walmsley SC, who appears for Serone, had informed Mr Bodor, and confirmed to me, that his instructions were that Serone was acting under duress when he performed the acts that the Crown alleges give rise to his accessorial liability. It was said, in short, that Serone will claim that he had been threatened by White. In relation to that basis of the application, I was of the view that it was premature to take it into account because it would only become evidence before the jury if Serone entered the witness box. There was no guarantee that it would. 4I will not set out the factual complexity of the Crown case in this judgment. Reference may be made to the overview that I set out from the Crown Case Statement in the separate trial judgment. Suffice to say for present purposes, it is the Crown case that after the accused White killed Mr Zaiter in a cabin in a caravan park at Chinderah, near Tweed Heads, he enlisted the accused Serone to obtain a tow truck in order to tow the deceased's car to a remote bushland location near Kyogle where it was set alight and destroyed. He then had the accused Serone, with the assistance of others, hire a car, go to the cabin, retrieve the body of the deceased and transport it back to another similarly remote bushland location. There the body was transferred to another vehicle. Serone departed at that point and White, and others, proceeded to take the body elsewhere and dump it in a location where it was thought that it would never be found. I understand the Crown to be relying on the acts undertaken to dispose of the body as establishing the liability of the accused Serone as an accessory after the fact. It would seem that the Crown accepts that when he was involved in retrieving the vehicle and assisting in it being towed to the Kyogle area he was not aware, or the Crown cannot prove, that he had any knowledge that a murder had been committed. 5One of the principal witnesses for the Crown, Mr Stephen Orams, commenced giving evidence on Monday 19 March 2012. Mr Orams was an acquaintance of the accused White. He had observed White's behaviour in a variety of situations on a number of occasions in the 6 years or so that he had known him prior to the alleged murder. He set out an account of his observations in some of his statements to police, principally in the first statement that he made on 29 December 2008. The Crown led very little from Mr Orams as to these matters in his evidence in chief. They were not relevant. 6Mr Bodor was the first to cross-examine Mr Orams. Towards the end of his cross-examination he asked that a matter be raised in the absence of the jury (he had foreshadowed doing so earlier in the day). Mr Bodor indicated that he understood that Mr Walmsley proposed to cross-examine Mr Orams as to those matters that appear in his statements that concern the prior behaviour of the accused White. Generally speaking, Mr Bodor was concerned that such evidence would be prejudicial to his client. 7Mr Walmsley confirmed that he intended cross-examining Mr Orams, and others, as Mr Bodor had suggested. The matters were said to be relevant to the claim by the accused Serone that White had threatened him, which he claims were relevant to the issue of duress. It seems to be common ground that Messrs Orams and Serone did not know each other and that, therefore, the experiences and observations of Mr Orams were not within the knowledge of Serone. By way of example, he took me to paragraph 44 of Mr Orams statement of 29 December 2008 and submitted in respect of it: "[I]t is an example of what might be seen to be a tendency of Mr White to conduct himself in a certain way in circumstances where I, on behalf of Mr Serone, will be seeking to argue that that's precisely the sort of thing that was in my mind as a consequence of similar threats." (T209.27) 8It quickly became clear that Mr Walmsley was intending to adduce tendency evidence and that he had not provided any notice of such an intention to any of the other parties: s 97(1)(a) Evidence Act 1995. The matter was adjourned until Tuesday 20 March 2012 in order for necessary steps to be taken. It was not a case of considering whether the notice requirements should be dispensed with (s 100) because no application to do so was made and, more particularly, because it was important that the terms of the proposed evidence should be identified with some particularity in order to permit the other parties to consider it. 9I observe that it is regrettable, at least, that the statutory requirement to give notice had been completely overlooked until drawn to counsel's attention during the course of the trial and then only because of the concern expressed by the representatives for another accused. The requirement to give notice is not a meaningless matter of routine. It serves a very useful purpose in enabling the orderly consideration by other parties and, if necessary, the court, in dealing with questions of admissibility of tendency and coincidence evidence. It is also regrettable that I was given to understand before the trial commenced that there were no issues that could be dealt with prior to the jury being empanelled. If proper notice had been given, this would have been an appropriate matter to be dealt with prior to empanelment, or at some point during the trial chosen to avoid or minimise inconvenience to the jury. 10A notice was prepared and served in the late afternoon of Monday 19 March and I heard submissions in relation to the issue on Tuesday 20 March. Coincidentally and fortunately, a juror rang in ill that morning. The jury were notified that they would not be required until the following day and so were not inconvenienced while time was taken to deal with the issue.