Regina v Suteski

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

JUDGMENT [No 5] - Application for Verdict by Direction 1 KIRBY J: At the close of the Crown case, Mr Byrne SC, on behalf of the accused, made an application for a verdict by direction. I dismissed the application, ruling that there was evidence that could sustain the charge of murder. I undertook to give reasons later. I now do so.

The Crown Case 2 The accused worked as an Accounts Payable clerk for a car dealer, Newman's of Kogarah. The deceased (Mr Peich) was the accountant of that company, and Ms Suteski's immediate superior. Between August and December 1999, Ms Suteski defrauded her employer of a significant sum of money. She did so in a series of transactions where she diverted money from her employer's account into her own, or that of her brother or boyfriend. The accused, on the Crown case, believed that Mr Peich harboured suspicions about her. She was anxious to commit further frauds. She, therefore, arranged through the boyfriend of her hairdresser to have Mr Peich hurt. The person approached, who I shall refer to as Witness "B", a drug dealer, recruited another drug dealer, Witness "W", to carry out the task. On the night of 20 December 1999, Witness W repeatedly stabbed Mr Peich, who died almost at once.

Liability for Murder 3 The Crown alleges that Ms Suteski was responsible for the actions of Witness W. It says, first, that Ms Suteski was an accessory before the fact. She procured the assault upon the deceased with at least the intention that he should suffer grievous bodily harm. The attack by Witness W with the knife, although not necessarily the death of Mr Peich, was, according to the Crown, within the scope of that which Ms Suteski procured. 4 Secondly, the Crown says that, even were it the case that the assault procured was intended to inflict harm falling short of grievous bodily harm, Ms Suteski contemplated the possibility that, in the course of carrying out the joint criminal enterprise, the person hired to assault Mr Peich may use a dangerous weapon, such as a knife, with an intention of inflicting grievous bodily harm.

Defence Submissions 5 In substance, the defence asserted three propositions. First, it was necessary to determine what was agreed. Only then can one say whether the common design included the use of a knife. Here, it was submitted, there was no evidence that the common design, or that which was procured, included the use of a knife. The use of a knife was, therefore, outside the scope of anything procured. There was no evidence that Ms Suteski contemplated the possibility of the use of a dangerous weapon, such as a knife, to inflict grievous bodily harm upon the victim. 6 Secondly, that even if that submission were rejected, the crime, as committed, involved the repeated stabbing of Mr Peich in a sustained attack. Attention was drawn to what was said by the Court of Criminal Appeal in Regina v Chai [2000] NSWCCA 320, where the Court (Mason P, Sperling and Bergin JJ) said this: (para 16) "16. It all depends on 'whether what was done was within the scope of the common design' ( Markby v The Queen (1978) 140 CLR 108 at 112 per Gibbs ACJ). It is not sufficient that the principal offender has committed the same offence in law as that promoted by the secondary party. Rather, the execution of the offence by the principal offender must not differ materially in kind from that agreed (cf Fisse, Howard's Criminal Law 5th ed p343)." 7 The execution of the offence, according to the accused, differed materially from the assault which she had procured, or agreed should be undertaken. 8 Thirdly, counsel for Ms Suteski drew attention to the way in which the Crown sought to define the offence procured. It had done so by reference to the intended consequences upon Mr Peich. The Crown alleged that what was requested was that Mr Peich should suffer injuries that would keep him away from work for at least two weeks. However, the offence of procuring, according to the accused, involved the procuring of an act, not the procuring of consequences. Here, the act which was procured was the bashing of Mr Peich.

The Evidence 9 The Crown case substantially relied upon the evidence of Witness W, the person who murdered Mr Peich. Witness W is now serving a sentence for that murder. His evidence included the following conversation with Ms Suteski, where the execution of her instructions was discussed: (T47) "A. Well I asked, asked (Witness B) and Miss Suteski who the person is and where he lives, what kind of car does he drive, how they wanted him hurt. Somebody ... Q. How? A. How they wanted him hurt. Like what kind of weapons should I use. Stuff like that." 10 Witness B's evidence continued: "Q. And the second thing was how they wanted him hurt. Who described that? A. Well, they didn't - I asked what they wanted, like what kind of injury. They didn't say for sure. They just said, just - I asked whether baseball bat or knife or just punch him or whatever, you know how I mean, and they didn't say for sure what: It was up to me. Q. Did Sneza say anything in particular that you remember about that? A. Oh, yes." 11 The witness then gave the following account of Ms Suteski's words: (T48) "A. Well, I asked 'How did you want this guy hurt?', and she just said, 'Bash him. Stab him. Kill him. I don't give a fuck what you do to him, as long as he doesn't show up for work.'" 12 The Crown also relied upon the hairdresser, Ms Kaycee Salem, with whom Ms Suteski first discussed the matter. Ms Salem's evidence included the following: (T174) "Q. Did she say how she wanted someone hurt, what she wanted done to them? A. She just said that she wanted someone hurt at work; she didn't want him dead, she just wanted him stabbed or broken arms or something like that." 13 The Crown case included a video of a police interview with Witness B after his arrest. Witness B repeatedly said that Ms Suteski wanted Mr Peich bashed, so that he was away from work for two weeks. The interview also included the following: "Q279. I've been told that Snez said words to the effect of break his knees or his legs, do you recall her saying that? A. Beg yours? Q280. Break his knees or his legs? A. She wanted something like that. Q281. Right. A. Something, like, that was - " 14 The cross examination of Witness W and Ms Salem included an acknowledgement that each had given different versions on earlier occasions, including the committal proceedings. However, I believe there is evidence from which the jury could determine that Ms Suteski procured a severe assault on the deceased, intending that he suffer grievous bodily harm. There is evidence that dangerous weapons were discussed in her presence, and that she conferred a wide discretion upon the assailants as to how they carried out her instructions. The use of the hammer, as planned by Witness W at the Leagues Club, was arguably, within the scope of the crime procured. Equally, the use of the hammer, and then a knife (when the victim fought back), at Hampton Court Road, where Mr Peich died, was arguably within the discretion which had been conferred. 15 Witness W said that he struck back at Mr Peich with the knife, when Mr Peich punched him in the face, Mr Peich having by that time been struck with a hammer. Witness W thought that the knife may have connected once or twice. He was not sure. In fact, Mr Peich was stabbed approximately six times. Witness W said that he did not know until the next day that Mr Peich had died. I believe it is open to the jury to infer that the crime, as committed, was within the scope of the crime, as agreed, or that the use of dangerous weapons, such as the knife, was within the contemplation of Ms Suteski. I so not see any particular difficulty in defining the act procured by reference to consequences. Ms Suteski, on the Crown case, described what she wanted by reference to her objective. The injuries occasioned to Mr Peich had to be sufficient to keep him away from work for two weeks. That was the time she needed to accomplish the fraud which she planned. So she plainly, on that evidence, was not talking about a broken finger, or even a broken arm. She was, on the Crown case, specifying a level of violence which involved grievous bodily harm, leaving it to Witness B and Witness W to select the means appropriate to achieve that end. 16 For these reasons I ruled that the matter should go to the jury. **********

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