R v Haile
[2023] NSWSC 227
•16 March 2023
Supreme Court
New South Wales
Medium Neutral Citation: R v Haile [2023] NSWSC 227 Hearing dates: 15 March 2023 Date of orders: 15 March 2023 Decision date: 16 March 2023 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Proposed tenders rejected
Catchwords: EVIDENCE – admissibility – witness testimony and related statement – where witness gave evidence before judge sitting alone in trial of co-accused – where witness evinced a tendency to offer unsolicited and inadmissible opinions – where testing of her evidence risks illegitimately alerting jury to prior conviction of co-accused – whether probative value of the evidence outweighed by danger of unfair prejudice to accused
EVIDENCE – tender of photograph of deceased’s former girlfriend with a handgun – whether relevant to proof of the probability of a fact in issue – tender rejected
Category: Procedural rulings Parties: Rex (Crown)
Daniel Haile (Accused)Representation: Counsel:
Solicitors:
D Patch (Crown)
J Brock (Accused)
Office of the Director of Public Prosecutions (Crown)
Jamieson Criminal Law (Accused)
File Number(s): 2013/334195 Publication restriction: Nil
Judgment
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HIS HONOUR: The Crown wishes to call Melissa Simms to give evidence to the effect of her statement dated 30 May 2017. After taking account of material in the unredacted version of that statement that is clearly inadmissible, what is left is the following:
“1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I wilfully stated in it anything that I know to be false, or do not believe to be true.
2. I am 33 years of age.
3. I used to live at unit XX Clyde Street, Guildford. I lived there for about 7 years and moved there around 2010.
4. My unit was on the second floor of the unit complex. Below me was unit YY. I knew everyone in the complex very well and we were all really close.
5. In 2012 a male named Ray moved into unit YY. Ray moved into the unit by himself. …
6. …
7. Ray started dating a girl about a month after he moved in. This girl wasn’t the mother of Ray’s daughter. Not long after I first saw her she introduced herself to me and said her name was Louise.
8. At first I thought Louise was nice until one morning I was walking down to take my son to school and I heard a big thump as I was walking down stairs. I stopped and listened and I could hear Louise yelling inside their unit. I could hear Louise yelling ‘hit me hit me’. Ray was saying just leave. I stayed outside the unit. …
9. I went and dropped my son at school which would have taken about 30 minutes. When I got back I saw Ray walking out of his unit with keys in his hand. Ray was walking to his red car and Louise came running after him. She was clawing at him and she was grabbing a hold of him. She was grabbing a hold of his neck. Ray turned around and grabbed her by both arms and said ‘Why can’t you just leave me alone’. I then saw Louise hit Ray across the face. This hit was really hard … Ray just hoped [sic] in his car and drive off.
10. This behaviour was regular for Louise. The amount of times I saw and heard her yelling at Ray is unbelievable. This was such a regular occurrence however I never saw Ray get physical with Louise no matter how much she hit and grabbed him. Whenever she would yell at him I could hear him asking her to leave him alone. …
11. … Louise told Ray that if he ever left her that she would make his life a living hell. I heard Louise numerous times tell Ray that she would get him bashed if he ever left her.
12. One time Louise was at his unit and had a knife and was stabbing his front door. I heard this and I came out and yelled at her that he had just left and wasn’t home.
13. I have heard Louise tell Ray that she will strangle him in his sleep. … and this happened so frequently.
14. …
15. …
16. While Ray was in gaol I would often see Louise around our unit complex. Whenever I saw her she would always ask me not to tell Ray that I had seen her.
17. …”
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As will be apparent from these paragraphs, Ms Simms lived in an apartment block in Guildford in 2012. Louise Spiteri-Ahern and Raymond Pasnin occupied another apartment in the same complex. Ms Simms’ evidence is said by the Crown to be relevant to the issue of Ms Spiteri-Ahern’s motive to kill Mr Pasnin as it supports the existence of a tempestuous and deteriorating relationship between them in the course of which Ms Spiteri-Ahern made threats to harm Mr Pasnin that were heard by Ms Simms and which the Crown asserts are consistent with her later fulfilled desire to arrange for Mr Pasnin to be killed. It is not controversial that Ms Simms’ evidence says nothing directly about Mr Haile or his alleged involvement in a criminal enterprise or conspiracy to kill Mr Pasnin.
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Ms Simms gave evidence at Ms Spiteri-Ahern’s trial before Rothman J in 2017 sitting without a jury when she was charged with the murder of Mr Pasnin. The Crown case was that she had contracted Mr Haile to shoot Mr Pasnin. Ms Spiteri-Ahern was convicted of murder on that basis. Without intending to convey any unfair criticism of Ms Simms, the evidence that she gave at that trial suffered from some aspects that, if repeated in the present trial, could give rise to difficulties of at least two kinds.
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The first relates to the possible prejudice that could be occasioned to Mr Haile if she were inadvertently to reveal her previously expressed opinion that when she first heard that Mr Pasnin had been killed she concluded that Ms Spiteri-Ahern was, or must have been, responsible. The danger that Ms Simms might repeat that evidence, or any similar opinion, would be unfairly prejudicial to Mr Haile, having regard to the way in which the Crown case against him is formulated. The Crown has quite properly and understandably disavowed any intention or desire to have Ms Simms give any such evidence, but the risk that it might occur, having regard to the way in which she gave evidence in 2017, is not merely fanciful. A question as to whether the damage potentially done by evidence given to that effect in those circumstances would immediately arise.
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However, a second and more fundamental difficulty seems to me to be present. The fact that Ms Simms has previously expressed that opinion clearly says something about her views of the criminal culpability of Ms Spiteri-Ahern. In the nature of things, counsel for Mr Haile might ordinarily wish to utilise such a prior expression of opinion as a means of demonstrating bias or prejudgment. However, the risk in doing so is that the jury might become aware both that Ms Spiteri-Ahern has been tried for Mr Pasnin’s murder and that she has been convicted for that crime. Counsel for Mr Haile could not therefore ask a question of considerable relevance without running the general risk that Ms Spiteri-Ahern had previously been tried, as well as the particular risk that she had been convicted. Counsel for Mr Haile would in such circumstances be confronted with an irreconcilable conflict for which there seems to me to be no obvious solution.
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In addition to Ms Simms’ expression of an opinion about the ultimate outcome, she also gave evidence that she considered herself to be a voice for the now deceased Mr Pasnin. For similar reasons, counsel for Mr Haile could not be expected to examine that prior representation without running all of the same risks to which I have just referred. In the words of Mr Brock, he would be in a Catch-22 situation, unable to protect Mr Haile’s interests without simultaneously alerting the jury to Mr Haile’s role in Ms Spiteri-Ahern’s conviction. Put another way, Ms Simms’ partisan comments from the 2017 proceedings are fertile ground for any attack upon her evidence but not an area of cross-examination to which she could safely be taken.
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There is in addition an even more significant reason why Ms Simms’ evidence might be unfairly prejudicial. The representations that she attributes to Ms Spiteri-Ahern, about her desire to harm Mr Pasnin, were not said in the sight or sound of Mr Haile, who is without the means or knowledge to challenge the fact that they were said at all or the truthfulness of what was said if they were. Unlike counsel for Ms Spiteri-Ahern at her trial, Mr Brock does not have and could not be expected to have any basis, in the form of instructions from Mr Haile or otherwise, for knowing whether Ms Spiteri-Ahern actually said what Ms Simms asserts she said, or for challenging anything about the circumstances in which Ms Simms says she heard them. Although such a circumstance is not unknown for a cross-examiner, its significance increases in this case having regard to the possible importance that it might have on the question of Ms Spiteri-Ahern’s motive to kill Mr Pasnin and the importance of that issue in the case against Mr Haile.
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In my opinion, the probative value of Ms Simms’ evidence is outweighed by the danger of unfair prejudice to Mr Haile.
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The Crown also proposes to tender a photograph of Ms Spiteri-Ahern posing with what appears to be a semi-automatic pistol or a replica of such a weapon. It is not entirely clear to me what issue the Crown maintains this evidence has relevance. The evidence so far suggests that Mr Pasnin himself had an interest in guns, and handguns in particular. However, it is no part of the Crown case that Mr Pasnin was armed on the night of 30 October 2013. On the contrary, the Crown case would now appear to be that Mr Haile went to the Dunmore Street apartments already armed with a revolver. One could well imagine that Mr Haile might himself wish to tender the photograph in support of a contention that Mr Pasnin’s interest in guns extended to having his then girlfriend pose with a hand gun, and that this supported the probability that he was also armed with a gun on the night. However, Mr Haile objects to the tender of the photograph and I am unable to discern how it assists the proof of any fact in issue in the Crown case. It appears to me to be devoid of relevance and the tender should be rejected.
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Decision last updated: 13 April 2023
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