R v Haile

[2023] NSWSC 191

Supreme Court

New South Wales

Medium Neutral Citation:	R v Haile [2023] NSWSC 191
Hearing dates:	07 March 2023
Date of orders:	08 March 2023
Decision date:	08 March 2023
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	Refuse to allow the Crown to re-examine Lyndal Archbold by reference to her evidence given in 2016 and 2017.
Catchwords:	EVIDENCE – re-examination – attempt to re-establish credit by reference to previous evidence – where previous evidence of variable consistency with present evidence – where previous evidence notably voluminous – permission to re-examine with reference to previous evidence refused
Legislation Cited:	Evidence Act 1995 (NSW), ss 38, 135
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: The Crown has commenced re-examination of Lyndal Archbold, arguably the principal witness in the Crown case. Ms Archbold has already been in the witness box for several days, including extensive cross-examination by counsel for Mr Haile. Ms Archbold is the only eyewitness to the events on 30 October 2013 in the carpark of an apartment block in Dunmore Street, Pendle Hill where Raymond Pasnin was killed. Mr Haile has admitted that he was the shooter.

2. As described in earlier judgments, Ms Archbold gave evidence concerning these events in Mr Haile’s 2016 trial before R S Hulme J and again in 2017 before Rothman J in the trial of Mr Haile’s co-accused. In the way of things, Ms Archbold’s evidence on those occasions has attracted attention as a point of comparison with her evidence before me. The jury is well seized of the fact that Ms Archbold has given her evidence on more than one occasion previously.

3. The Crown case is based upon the proposition that Daniel Haile was contracted to kill Mr Pasnin and that he waited in or near the stairwell below the apartment occupied by Mr Pasnin’s mother and step-father in anticipation of him leaving the premises later that night. The Crown led evidence from Ms Archbold that she and Mr Pasnin descended the stairs close to midnight and walked towards their Subaru motor vehicle, intending to drive to her mother’s house. Mr Haile came from behind them as they did so and shot Mr Pasnin. Ms Archbold described hearing shots coming from behind over her left shoulder. That version placed Ms Archbold and Mr Pasnin between Mr Haile and the motor vehicle, with the shots first heard by Ms Archbold being fired towards Dunmore Street.

4. The evidence given by Ms Archbold at the two previous trials included evidence substantially to the same effect. Moreover, Ms Archbold gave a statement to the police on 14 January 2014, to some of the terms of which she was taken in cross-examination, commencing at transcript 527 as well as at several other locations. Part of that statement included the following:

“41. About 11:45pm we went to leave the apartment and turned the balcony light off and proceeded down the stairs. I was walking in front of Ray. I always walk holding the railing and he walks near the brick wall.

42. As we were walking down the stairs I looked down and saw a male looking up the stair well. I made direct eye contact with this male however Ray wouldn’t have been able to see him. I turned back and looked at Ray but continued to walk down the stairs.

43. When we got to the bottom Ray and I discussed who was going to drive and it was arranged that I was going to drive. Ray started to walk to the passenger’s side going around the front of the car. I unlocked the car (alarm).

44. At this time is when I saw Ray fighting with the male that I saw in the stairwell. This is the time that I heard the gun shots and Ray was shot.

45. Shortly after this on the 31st of October, 2013 I had a conversation with Detective Senior Constable Brett Mason at Merrylands Police Station and I told him exactly what had happened. Since this time I have not read a newspaper or watched the news about what had happened that night. A lot of people have spoken to me about what they had read or believed what had happened that night.

46. The exact version of what happened in the car park on the night Ray was murder [sic] I told to Detective Senior Constable Mason and this was recorded.”

5. Ms Archbold was cross-examined upon the contents of her 14 January 2014 statement, for presently relevant purposes at transcript 578-9 in these terms:

“Q.   Does it appear to be dated 14 January 2014?

A.   Yes.

Q.   Can you just turn to page 7?

A.   Yes.

Q.   In particular paragraph 43. Ms Archbold, I'm going to read paragraph 43 out if it assists. Before I do so, though, again when you gave this statement you would have been aiming for accuracy?

A.   Yes.

Q.   Paragraph 43 reads:

‘When we got to the bottom, Ray and I discussed who was going to drive and it was arranged that I was going to drive. Ray started to walk to the passenger side, going around the front of the car. I unlocked the car alarm.’

Can you see that?

A.   Yes.

Q.   And I have read it correctly?

A.   Yes.

Q.   Ms Archbold, again, in relation to that description, you include a description that ‘Ray was going around the front of the car’, that's included in your description, isn't it?

A.   Yes.

Q.   Ms Archbold, would you accept that at the time you gave that description, you must have had in your mind a visual picture of Ray around the front of the car?

A.   Yes.

Q.   In that description in the statement there is no reference to shots being heard before Ray being at the front of the car, is there?

A.   No.

Q.   Just so we can finish some content in this statement, at paragraph 44, do you add further detail:

‘At this time is when I saw Ray fighting with the male that I saw in the stairwell. This is the time I heard the gunshots and Ray was shot.’

Is that correct?

A.   Yes.

Q.   So, reflecting on that description, Ms Archbold, and returning to a question previously, do you accept that it is the case that before any shots Ray was already at the front of the Subaru?

A.   No.

Q.   Ms Archbold, I just want to try and finish this statement. If you turn the page to paragraph 45. Again, I intend to read it out if you are more comfortable with that?

A.   No, it's okay.

Q.   If it's okay, I will read 45 and 46.

A.   Yes.

Q.   

‘[45] Shortly after this, on 31 October 2013, I had a conversation with Detective Senior Constable Brett Mason at Merrylands Police Station and I told him exactly what had happened. Since this time I have not read a newspaper or watched the news about what happened that night. A lot of people have spoken to me about what they had read or believed what had happened that night.

[46] The exact version of what happened in the car park on night Ray was murder [sic] I told to Detective Senior Constable Mason and this was recorded.’

Have I read that correctly?

A.   Yes.

Q.   The recording that you are referring to is the video recording that we have played from time to time today, is that right?

A.   Yes, yes.” [Emphasis added]

6. Mr Brock of counsel for Mr Haile cross-examined Ms Archbold further about her 14 January 2014 statement at transcript 635 as follows:

“Q. I want to take you to your statement on 14 January 2014, and that should be in envelope D3. Although we did check in on these paragraphs earlier, you can confirm that, at paragraph 46, that you in this statement say that the exact version of what happened in the carpark, on the night Ray was murdered, murder, I told to Detective Senior Constable Mason and this was reported. Right?

A. Yes.

Q. Ms Archbold, given how quickly these events played out, given how stressful they were, could you accept it is possible that, before any shots were fired, Ray and Daniel had a conversation that turned into an argument?

A. Completely false.

Q. Your attention, before any shots were fired, was directed towards going to the car to get ready to drive, correct?

A. Correct.

Q. Ms Archbold, is it possible that there was more interaction between Daniel and Ray that you did not actually see or hear?

A. Completely false.” [Emphasis added]

7. In that evidence, Ms Archbold draws back to some extent from her 14 January 2014 statement that included a reference to her seeing “Ray fighting with the male”. However, during her evidence-in-chief in the current trial, Ms Archbold gave an additional apparently contradictory account of what occurred in which, in summary, she described the shots fired by Mr Haile coming from the direction of Dunmore Street, or roughly from the opposite direction suggested by her reference to over her left shoulder. Understandably, the Crown is concerned that Ms Archbold's reliability will, or may, have suffered as a result and has foreshadowed a proposal to attempt to restore her credibility by taking her to the evidence given by her in the previous trials in 2016 and 2017 that is said to be consistent with the version for which the Crown now contends. That course is opposed.

8. Significant portions of Ms Archbold’s video recorded interview with the police on 31 October 2013 are in evidence. This was her almost contemporaneous and most detailed description of what she saw and heard only hours before. By her own account, which was itself in terms not the subject of challenge, she said “the exact version of what happened in the car park on the night Ray was murder[ed]” was this interview given to Detective Senior Constable Mason “and this was recorded.” In other words, Ms Archbold reconfirmed in her 14 January 2014 statement that her recorded interview with the police is the correct version of what happened. She was understandably and permissibly cross-examined on both the recorded interview and the 14 January 2014 statement. As I have said, her evidence-in-chief in this trial includes extracts from the version given to the police in that recorded interview to which she also adhered in her 14 January 2014 statement.

9. The Crown perceives that Ms Archbold’s credibility requires re-establishing as the result of the challenges to her evidence and that specific reference to her putative prior consistent statements in the 2016 and 2017 trials is a permissible way to do this. I disagree.

10. Doing the best I can, it seems to me that Ms Archbold has already given two consistent versions of the shooting. The first version was given to the police in detail in her recorded interview. She emphasised the correctness of that version in January 2014. She has been cross-examined on it. The second version was in her evidence-in-chief in this trial. She was also cross-examined on that. The fact that she appears to have become confused is no more than a completely unremarkable artefact of the trial process, nearly ten years from the time of the events being recalled.

11. Interestingly in that last respect is the evidence from the 2016 trial to which I was taken in the course of argument. When cross-examined about her interview with the police in the early hours of 31 October 2013, Ms Archbold gave this evidence:

“That night is a complete mashed jumble in my head. This interview for me is very hard to read as it’s so disjointed. It’s very hard for me to follow it.”

12. Any legitimate attempt to take Ms Archbold to her 2016 evidence, with the aim of drawing a favourable and restorative comparison between it and the case propounded by the Crown now, will necessarily involve reference to her 2016 concession that her recorded interview on 31 October 2013 is disjointed and hard to read, even for her. The suggestion necessarily implicit in the Crown’s application is that her 2016 evidence will support its case in 2023. Significantly, not all of her evidence from seven years ago can be categorised in that way. Ms Archbold’s own description of her interview is an example of that.

13. More fundamentally, but in a related sense, the evidence given by Ms Archbold in both 2016 and 2017 is very extensive. By my reckoning, Ms Archbold’s evidence in the 2016 trial covers more than 400 pages of transcript and possibly as much as 300 pages of transcript in the 2017 trial. That material contains her evidence-in-chief and cross-examination in both trials. The Crown is currently proposing to revisit so much of that evidence as is said to be consistent with the version for which it contends in this trial. However, the simplicity of that proposal belies the complex and changing nature of the evidence. The task that the Crown proposes to undertake does not seem to me to be possible while remaining fair to Mr Haile. That is not to suggest that the Crown proposes to adopt an unfair course, so much as it is a recognition of the enormity of the exercise.

14. I am also concerned that what the Crown is proposing is an attempt to cross-examine Ms Archbold upon the basis that she has become unfavourable in the limited way that I have outlined. The Crown faintly acknowledged this in raising the spectre of an application pursuant to s 38 of the Evidence Act 1995.

15. In my opinion, the course foreshadowed by the Crown lacks utility in the particular circumstances of this trial. I can foresee considerable difficulties in any attempt by the Crown to establish conclusively or even persuasively that any one version of what occurred is accurate. The very real and highly likely prospect is that more examination of Ms Archbold will serve only to muddy the waters further, potentially misleading and confusing the jury in the sense anticipated by s 135 of the Evidence Act. As a matter of discretion, I consider that any “re-examination” of Ms Archbold by the Crown by reference to her 2016 or 2017 evidence should not be permitted. In particular, I consider that the probative value of the evidence is very substantially outweighed by the danger of unfair prejudice to Mr Haile in the sense that it would afford the Crown an opportunity, which I consider is not warranted on the current state of the evidence, to have, or to attempt to have, what amounts to the last say. Put simply, there must come a time when the Crown has to accept that its witness has been afforded a proper opportunity to give her evidence over many days and that it is not appropriate to permit further examination of her endlessly in search of perfection. I am reinforced in that view having regard to the exceedingly restrained and cautious way in which Mr Brock cross-examined Ms Archbold and that he should not be deprived of the legitimate forensic benefit of that approach under the rubric of the Crown’s asserted aim of re-establishing her credibility. Moreover, having regard to the amount of evidence given by Ms Archbold in the previous trials and the amount of evidence given by her already in this trial, it would in my assessment be likely to cause or result in an undue waste of time. That likelihood is enhanced by Ms Archbold’s implicit and uncontroversial acknowledgment that her recollection of events in October 2013 and January 2014 would have been more reliable than her recollections in 2016 or 2017 or 2023.

**********

Decision last updated: 13 April 2023