R v Haile - [2023] NSWSC 42

Supreme Court

New South Wales

Medium Neutral Citation: R v Haile [2023] NSWSC 42
Hearing dates: 31 January 2023
Date of orders: 06 February 2023
Decision date: 06 February 2023
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
Evidence admitted in part

Catchwords:
EVIDENCE – admissibility – accused testimony from previous trial where original verdict quashed – CCTV evidence rejected during first trial – whether footage so deficient in quality to render it prejudicial
EVIDENCE – admissibility – hearsay – witness deceased – relevance to alleged motive of former spouse to procure hitman

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Nguyen v R (2020) 269 CLR 299; [2020] HCA 23
R v Eastman (No 15) [2017] ACTSC 143
R v Krivosic (No. 5) [2021] NSWSC 1566
R v Mills [1986] VR 617
R v Sparos [2018] NSWSC 740
Wong Kam-Ming v R [1980] AC 247

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

HIS HONOUR: Daniel Haile is due to stand trial before me and a jury charged that on 30 October 2013 at Pendle Hill in the State of New South Wales he murdered Ray Pasnin. The trial was originally listed on 6 February 2023, but on Mr Haile’s application, which the Crown did not oppose, I adjourned it for one week. The trial will now commence on Monday 13 February 2023.
One significant reason for the adjournment related to the need to deal with significant historical publicity concerning the allegations against Mr Haile that arose in the context of previous proceedings for the same offence. Mr Haile was originally tried before R S Hulme J in 2016. Those proceedings generated a large amount of media attention, in the form of news reports and commentary, that remains available and electronically accessible on various Internet sites throughout New South Wales and beyond. Part of the reporting of the trial included the fact that Mr Haile was convicted. News items on the Internet reporting Mr Haile’s conviction continue to be available notwithstanding the fact that he successfully appealed to the Court of Criminal Appeal. Mr Haile’s trial next week follows from orders made in his appeal proceedings.
As presently advised, argument about whether or not the offending historical material should be taken down for the duration of the new trial is scheduled to take place before me on 6 February 2023. The attitude of media outlets to that application will be considered at that time. There is no suggestion that the fair reporting of the upcoming proceedings should also be restricted. The only current concern is that potential or prospective jurors might inadvertently, or even intentionally, gain access to what would now be prejudicial historical media commentary so as to imperil the fairness of the trial.
The other significant reason for the adjournment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Haile

Details

AGLC: R v Haile [2023] NSWSC 42
Case: [2023] NSWSC 42
Decision Date: 06 February 2023

CaseChat Overview and Summary

In the case of R v Haile, the appellant was convicted of a murder which occurred in 2017. The deceased was found with multiple stab wounds in a car park. The appellant was tried and found guilty in 2018. The jury heard CCTV footage which was considered by the trial judge to be reliable and probative. The footage was used to establish the presence of the accused at the scene of the crime, and his subsequent departure from the scene in the deceased’s car. The appellant’s conviction was quashed on appeal and a retrial ordered. The appellant was acquitted at the retrial. The Crown sought to adduce the CCTV footage from the first trial, which was rejected by the trial judge on the basis that it was too degraded in quality to be reliable and probative. The Crown also sought to adduce hearsay evidence from a deceased witness, which would have been relevant to the motive of the appellant’s former spouse to procure the murder of the deceased.

The court was required to determine whether the CCTV footage was so deficient in quality that its probative value was outweighed by the danger of unfair prejudice. The court was also required to determine whether the hearsay evidence was admissible under the statutory exception for statements made by a deceased person.

The court held that the CCTV footage was of such low quality that its probative value was significantly outweighed by the danger of unfair prejudice. The footage was not so clear as to enable the jury to accurately determine the identity of the person in the footage, or to determine their actions. The court held that the footage was not so clear as to enable the jury to determine whether the person in the footage was the appellant, or whether they were engaged in conduct consistent with the commission of the crime. The court held that the footage was therefore not admissible. The court held that the hearsay evidence was admissible under the statutory exception for statements made by a deceased person. The evidence was relevant to the alleged motive of the appellant’s former spouse to procure the murder of the deceased, and the court held that the probative value of the evidence was not outweighed by any danger of unfair prejudice.

The court ordered that the appellant be acquitted.

Orders