R v Haile

[2023] NSWSC 351

Supreme Court

New South Wales

Medium Neutral Citation:

R v Haile [2023] NSWSC 351

Hearing dates:

06 April 2023

Date of orders:

12 April 2023

Decision date:

12 April 2023

Jurisdiction:

Common Law - Criminal

Before:

Harrison J

Decision:

Crown request for directions refused

Catchwords:

CRIMINAL LAW – jury directions – where Edwards direction sought by the Crown objected to – where direction sought during summing up – where direction opposed by accused for fear of revisiting potentially inculpatory evidence

CRIMINAL LAW – jury directions – s165(b) “lies” direction – reasoning in Proud v R (No 2) [2016] NSWCCA 44

Legislation Cited:

Evidence Act 1995 (NSW) s 165(b)

Cases Cited:

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63

Proud v R (No 2) [2016] NSWCCA 44

Category:

Procedural rulings

Parties:

Rex (Crown)
Daniel Haile (Accused)

Representation:

Counsel:
D Patch (Crown)
J Brock (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Jamieson Criminal Law (Accused)

File Number(s):

2013/334195

Publication restriction:

Nil

Judgment

1. HIS HONOUR: During the course of this trial, evidence was led to the effect that the accused Daniel Haile asked the witness known as “Tom Jones” to dispose of the clothes that Mr Haile was wearing on the night of 30 October 2013 when he returned to Mr Jones’ vehicle following the fatal shooting of Raymond Pasnin. Mr Jones gave evidence about this, which included a description of Mr Haile changing his clothes in the vehicle. Mr Jones also said that Mr Haile asked him rhetorically what he was supposed to do with the gun that he had used to shoot Mr Pasnin. That is not intended to be a complete description of what occurred. For present purposes, the evidence that is the subject of the direction sought by the Crown may be compendiously described as post-offence conduct.

2. The Crown sought a direction to the effect that the jury should be warned about the way in which this evidence could be used. The Crown maintained that it was conduct that demonstrated a consciousness of guilt and that a warning in terms of Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, appropriately modified, should be given. Mr Haile opposed that course for a number of reasons, including that he was disinclined to support any further judicial discussion of the evidence concerned, even despite the potentially advantageous exhortation of caution to the jury that it would entail.

3. These competing contentions were offered without reference to any particular form of words in which the contested direction might be given. However, in the course of the debate it appeared to me that, after a specific reference to the conduct concerned, a direction in terms to the following effect would have been appropriate:

“If you find that Mr Haile said or did the things I have just referred to, then I must give you a direction about the care with which you must approach the task of deciding what significance, if any, they have. You may take this conduct into account as evidence of Mr Haile’s guilt but you can only do that if you find two further things which I will refer to shortly. When I say you can take it into account as evidence of Mr Haile’s guilt, I am not suggesting that it could prove his guilt on its own. What I mean is that it can be considered along with all of the other facts that the Crown relies upon and which you find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if you found Mr Haile did or said these things that this finding can prove his guilt by themselves.

Apart from the fact that Mr Haile did or said these things, before you can use them as some evidence of his guilt you must find two further matters proved.

First, you must find that what Mr Haile said or did relates to an issue that is relevant to the offence the Crown alleges that he committed. They must relate to some significant circumstance or event connected with that alleged offence. The Crown says it is relevant because Mr Haile wanted to avoid detection or to dispose of potentially incriminating evidence.

Secondly, you must find that the reason Mr Haile did or said these things is because he feared that the clothes or the gun might, if discovered, reveal his guilt or implicate him in the commission of the offence for which he is now on trial or suggest that he was not acting because he was in fear for his own safety.

You must remember, however, that people do not always act rationally, and that conduct of this sort may sometimes be explained in other ways. A person may have a reason for speaking about a particular subject or for acting in a particular way quite apart from trying to conceal his or her guilt. For example, such words may be said or such things may be done out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.

If you think that Mr Haile’s words may have been said or that his conduct may have been performed for some reason other than to avoid being implicated in the commission of the offence for which he is now on trial, then they cannot be used as evidence of his guilt. If that is the case, you should put it to one side and focus your deliberations upon the other evidence in the case.”

4. In addressing the jury, the Crown quite understandably posed the rhetorical question of why a person in Mr Haile’s position would have required a change of clothes if he attended the scene of the shooting merely for the purpose of collecting a drug debt or additionally for the purpose of supplying Mr Pasnin with more drugs. The Crown also asked why in those circumstances Mr Haile would have sought Mr Jones’ assistance in disposing of the clothes that he discarded and placed in a plastic bag. Finally, the Crown drew attention to the curious fact that, if Mr Haile had acted in self-defence, as he asserted, the act of throwing the gun he used to shoot Mr Pasnin into the Parramatta river, and which on Mr Haile’s own account he wrested from Mr Pasnin in a struggle, would on one view have been at odds with an innocent explanation for the death.

5. The Crown addressed the jury for three days. Counsel for Mr Haile then addressed the jury for a further two days, commencing at approximately noon on Friday 31 March and concluding on Tuesday 4 April. It will be apparent that when I commenced to sum up to the jury on Wednesday 5 April, it was more than four and a half days since the Crown’s final remarks had concluded, including the weekend. It was in those circumstances that counsel for Mr Haile expressed no particular enthusiasm for a direction from me which would have revisited evidence that potentially posed significant difficulties for Mr Haile.

6. In the events that occurred, I declined to give the direction sought. Counsel for Mr Haile specifically accepted that he was foregoing whatever advantage may have accrued to Mr Haile from that part of the direction that emphasised the limitations upon the way in which the jury could use the evidence. In the absence of any authority that required the direction to be given regardless of the accused’s opposition to that course, I considered that Mr Haile’s concerns should be given full weight.

7. The Crown also sought a s 165(b) Evidence Act 1995 warning with respect to Mr Haile’s evidence and lies which the Crown maintained had been told by him in the course of his first trial in 2016. The Crown did not contend that Mr Haile had told lies out of court that were evidence of a consciousness of guilt. I declined to give such a direction upon the basis of the decision in Proud v R (No 2) [2016] NSWCCA 44 at [68] – [73].

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Decision last updated: 13 April 2023