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

1. 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.

2. 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.

3. 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.

4. The other significant reason for the adjournment is the need to deal with a series of legal issues that have been foreshadowed. I set aside the preceding week in order to deal with these matters. It now appears that their disposition will occupy some of the time originally intended for the trial proper. The balance of these reasons deal with those issues.

Edits to evidence given by Mr Haile at his first trial

5. The Crown case is that Mr Haile was solicited by Louise Spiteri-Ahern to kill Mr Pasnin and that he did so on 30 October 2013 at Mr Pasnin’s mother’s unit block at Pendle Hill. It is not in contest that Mr Haile fired the fatal shot. At his first trial, Mr Haile gave evidence explaining that he shot Mr Pasnin in self-defence after he was threatened and attacked by Mr Pasnin who produced a firearm during a drug transaction. Mr Haile explained that he was able to wrest the firearm away from Mr Pasnin and that he fired it at him as Mr Pasnin continued to attack him.

6. The Crown has foreshadowed that at the re-trial it intends to adduce the evidence given by Mr Haile at the first trial. That evidence occupied six days of the trial. It is accepted by Mr Haile that, in broad terms, the evidence that he gave at the first trial is relevant: see R v Krivosic (No. 5) [2021] NSWSC 1566 at [38]-[79].

Rebels

7. Part of the evidence given at the first trial includes a reference by him to Mr Pasnin having an association with the Rebels OMCG. When asked about Mr Pasnin’s likely capacity to distribute drugs at street level, Mr Haile responded:

“Yes. Well, he was a Rebel”.

8. The words following the word “Yes” have been listed as struck out in the transcript following a direction by the trial judge at the time. Mr Haile maintains that the whole answer should remain.

9. Mr Haile was also cross-examined about a representation attributed to him in the aftermath of the shooting. He accepted that he said to an associate, “They’re going to get me”. He gave evidence that he was referring to being concerned about the police and Mr Pasnin’s friends.

10. Following this evidence, the trial judge considered an objection to its admissibility and Mr Haile was called in that context to give evidence about his understanding of Mr Pasnin’s association with the Rebels. Evidence taken on a voir dire may be admissible in subsequent proceedings: Wong Kam-Ming v R [1980] AC 247 at 260, cited in R v Mills [1986] VR 617 and R v Eastman (No 15) [2017] ACTSC 143 at [42]. Mr Haile maintains that this is the case here and that the following evidence, given on the voir, dire is relevant and admissible on the re-trial:

“Q. You have just heard the exchange regarding a particular question or questions I was going to ask you about what you knew of Mr Pasnin’s affiliations. You’ve heard that exchange, haven’t you?

A. Yes.

Q. When you were being cross-examined—

A. Yes.

Q.—you were asked this question, at 2247, your Honour

‘Q. If Mr Pasnin was dealing in drugs at a street level, he would have had to have had a pretty good organisation to do that with the sorts of things I’ve outlined. That’s right, isn’t it?

A. Yes.’

Then you said, ‘Well, he was a Rebel’. Do you recall saying that?

A. Yes.

Q. And do you recall saying later on in similar circumstances, that when you were being asked about ‘they’re going to get me’, that representation that you said to Marko Pehar, you said, ‘The police and Mr Pasnin’s friends’. Do you recall saying that?

A. Yes.

HIS HONOUR: Where’s that answer?

OZEN: My solicitor’s gone, your Honour. I will get the transcript reference when he comes back.

Q. Firstly, in relation to the first one at 2247 –

A. Yep.

Q. –you say, ‘Well, he was a Rebel’. How did you come to know that information?

A. He told me. He was proud of it. That’s why I asked my lawyers about it.

Q. Do you know when he told you?

A. Yeah, it was that year. The end of that year.

Q. When we’re talking about ‘that year’, what year?

A. It was the three weeks before when I gave him the two ockas because somehow it was just all – I just wasn’t happy about it.

Q. Do you recall where you were when you were having this conversation when he disclosed to you that he was a Rebel?

A. Yeah, at the park.

Q. Which park are we talking about?

A. In Merrylands, next to the Maccas, Walpole Road.

Q. Other than that conversation, was there any other source of information for your knowledge that Mr Pasnin was or was affiliated with the Rebels Motorcycle Group?

A. Yeah.

Q. What was that?

A. While being incarcerated in gaol.

Q. You’ve learnt something since you’ve been incarcerated?

A. Yeah.

Q. Is that because of things said to you or done to you?

A. Said.

Q. So we have the representation that Mr Pasnin gave to you late in 2013 and things that you’ve been told since you’ve been in custody?

A. Yep.

Q. Was there ever any other discussion or source of the knowledge that Mr Pasnin was or may have been associated with the Rebels Motorcycle Group?

A. Besides that time he told me, no, nothing around there.

Q. You never saw him with colours, did you?

A. No.

Q. And when he attended – when you met him, if he ever had to turn up in a vehicle, what sort of vehicle was he in?

A. Yeah, that was weird. He was on a – like a jet bike or a street bike. You’d think he would be on a Harley, yeah.

Q. You never saw him on a Harley, you never saw him in club colours?

A. Yeah.

NO EXAMINATION ON THE VOIR DIRE BY MR TRAVALLION, MS FRANCIS OR MR WEBB

Q. You never saw him with any people that you identified as Rebels; is that correct?

A. No.

Q. Is that correct?

A. Yes.

Q. As you said, you never saw him – he was not wearing any Rebels’ colours, that is to say a uniform?

A. No, not the vest, no.

Q. You didn’t see any colours? He never wore any clothing that was Rebels’ associated clothing; that’s right, isn’t it?

A. Yeah, but he did have a tattoo on his hand.

...

CROWN PROSECUTOR

Q. You never saw Ray Pasnin riding a motorbike, did you, Mr Haile, in the period after his release from gaol; that’s right, isn’t it?

A. Riding a motorbike?

Q. Yes.

A. Yeah.

Q. Are you saying you did see him ride a motorbike?

A. Yeah.

Q. I suggest to you he didn’t ride a motorbike; what do you say to that?

A. No.

Q. And he didn’t have a motorbike licence?

A. So? Doesn’t mean he doesn’t ride a motorbike.

Q. Mr Pasnin never said to you that he was a member of the Rebels, did he? Mr Pasnin never said to you he was a member of the Rebels; that’s right, isn’t it, Mr Haile?

A. No.”

11. Section 130A(2) of the Criminal Procedure Act 1986 provides relevantly as follows:

(2) If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless—

(a) in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or

(b) that order is inconsistent with an order made on appeal.

12. Whether or not this provision applies to the present case, given that the indictment has been amended by the removal of four co-accused, Mr Haile contends that it is in any event in the interests of justice to revisit the issue having regard to the following matters:

1. Mr Haile’s evidence about exchanges with Mr Pasnin about the Rebels are “unambiguously relevant”. Mr Haile referred to Mr Pasnin’s association with the Rebels as informing his assessment of Mr Pasnin as a potential purchaser of drugs from him. It is also an available consideration for the jury that Mr Haile’s reference to Mr Pasnin’s friends would extend to his subjective understanding about this association.

2. The subjective considerations do not rely on the truth of the representations made by Mr Pasnin. Mr Haile’s belief that Mr Pasnin was associated with the Rebels is independent of whether the association existed in fact. If the evidence is relevant for this purpose, it is admissible unless an exclusionary rule applies: s 55 Evidence Act 1995.

3. If the evidence is admissible for this purpose, Mr Haile also relies upon s 60 of the Evidence Act that such evidence is some proof of the fact, subject to discretionary considerations: see s 136. Mr Haile submitted that the evidence should be admitted without limitation where there is other evidence that indicates that his account of Mr Pasnin being a Rebel is not fanciful.

4. Finally, Mr Haile’s evidence about learning when he was in gaol that Mr Pasnin was linked to the Rebels would then be relevant by making it more likely that Mr Pasnin did refer to the association prior to the shooting.

13. Mr Haile submitted that R S Hulme J’s decision on this point misconceived the basis upon which the evidence is said to be relevant. In short, the evidence is relied upon in the first instance as evidence of Mr Haile’s subjective state of mind relating to when he dealt with Mr Pasnin and immediately after the shooting. Moreover, in adducing evidence of prior representations by an accused person, the Crown has an obligation to adduce both inculpatory and exculpatory material: Nguyen v R (2020) 269 CLR 299; [2020] HCA 23. In this case, Mr Haile’s reference to his belief that Mr Pasnin was associated with the Rebels is arguably relevant and admissible and should be included in any evidence that he gave at his first trial upon which the Crown proposes to rely in the present trial.

14. In my opinion, evidence of Mr Haile’s subjective belief that Mr Pasnin was a member of the Rebels OMCG is at least relevant to the foreshadowed issue of self-defence.

Audi RS6 Avant

15. An admission is defined in the Evidence Act as a previous representation:

“(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b) adverse to the person's interests in the outcome of the proceeding.”

16. In Mr Haile’s evidence-in-chief at his first trial, he told the jury that he owned an Audi RS6 Avant. He said he purchased it for $125,000. It was not registered in his name because he would have been required to show where he obtained the money to buy it. He also described the car as having special features, such as ceramic brakes.

17. Mr Haile was extensively cross-examined about this vehicle and re-examined. Additional records from NSW Police and RMS were also obtained. Those records suggested that the car in question was an Audi S4. Mr Haile ultimately acknowledged that the vehicle he was referring to must have been an Audi S4, but he maintained he had believed it was an Audi RS6 Avant. The apparent relevance of this evidence appears to be that ownership of an expensive motor vehicle was consistent with Mr Haile’s contention that he was successfully dealing in drugs and that ownership or possession of a car of this type gave credence to his assertion that he was actually engaged in a substantial drug deal with Mr Pasnin when the shooting occurred, rather than at the scene for the purpose of murdering him.

18. The Crown was then permitted to re-open its case. Evidence was led from an Audi representative who said that it was highly unlikely that an Audi RS Avant was available for purchase at the time nominated by Mr Haile. He said features like ceramic brakes were not available for an Audi S4.

19. Mr Haile contended that this line of questioning does not satisfy the preconditions for admission of an accused’s prior representations.

20. I dealt with a similar issue in R v Sparos [2018] NSWSC 740 at [7]-[10]:

“[7] The Crown also intends in this trial to tender evidence of a series of gaol telephone calls made by Mr Sparos, including calls that were tendered at the previous trial as well as calls that were not tendered at that time. The Crown asserts that this material contradicts Mr Sparos' claims that he was never going to trial and that most people he knew thought he was going to plead guilty. The Crown asserts that the evidence also contradicts his claims that he was misleading his wife concerning his intention to plead guilty. The Crown contends that Mr Sparos deliberately provided a false version on multiple occasions in the previous trial in order to suggest that he was never going to defend the charges and therefore that he had no motive to kill Mr Maika who was an anticipated witness for the prosecution.

[8] I am not presently in a position to determine or assess whether any of what Mr Sparos said in the previous trial was a lie. I have not yet heard evidence in the present trial. I have been provided with the Crown case statement and the transcripts of gaol calls which, on one view, cast considerable doubt upon Mr Sparos' version of events or some of them. For example, Mr Sparos appears determined to reject a plea deal when speaking in the gaol calls, whereas he vehemently denies in his previous evidence that he was ever going to trial.

[9] My difficulty with the suggestion that this evidence could be characterised as adverse to Mr Sparos' interests stems from the fact that it was all on its face entirely exculpatory or consistent with his plea of not guilty in these proceedings. I understand that the Crown asserts that ‘adverse to the person's interests in the outcome of the proceeding’ can and should be read so as to include a situation where there is material in the case upon the basis of which it could be suggested to the jury that the previous evidence was a lie and that an acceptance of that fact by a jury would accordingly be adverse to Mr Sparos' interests. In my opinion, that is not an available reading of the definition of an admission. One of the ordinary English meanings of an admission is a confession or an acknowledgment of an error or of a crime or of the truth of something. The Evidence Act dictionary definition is not contextually different. ‘Adverse’ contemplates something that is harmful, unfavourable or disadvantageous. Mr Sparos has not to my mind given evidence of anything that was in terms adverse to his defence of the Crown case. In my opinion, he made no relevant admission.

[10] None of the cases to which I have been referred contains an example of the reception into evidence of a so-called admission that was consistent with the position in the proceedings adopted by the maker of the statement: Stuart v The King (1921) 29 CLR 234; [1921] HCA 17; R v Mills [1986] VR 617; R v McGregor (1967) 51 Cr App R 338; R v Heffernan; R v Peters (NSWCCA, Smart J, 23 February 1998, unreported); R v Sonnet [2011] VSC 551. All of the cases drawn to my attention concern situations in which the accused has in effect conceded something inimical to his or her interest in the outcome of the trial. It is in my view an impermissible stretch of the language to suggest, if Mr Sparos says, whether truthfully or not, that he was always going to plead guilty, that such evidence is adverse to his interest if it supports and is consistent, for example, with his contention that he had no motive to kill Mr Maika. The same applies more generally if what Mr Sparos said on the previous occasion was not inconsistent with his plea of not guilty or, in other words, not adverse to his interest in the outcome in the proceeding. As I have said, the ultimate effect of Mr Sparos' earlier evidence may be that it is rejected by the jury as a lie when compared to other evidence in the trial. That does not, in my opinion, convert what may ultimately be found to have been a lie into an implied admission adverse to his interest at the time it was made.”

21. It is open to interpret Mr Haile’s evidence about the vehicle as a lie. On one view he never purchased an Audi RS Avant and never possessed one. However, if it was a lie, it is not inconsistent with the position he adopted in the trial and was in no sense inconsistent with his defence. At one level the evidence is entirely innocuous and irrelevant, although its prominence in the events of the first trial appears to suggest otherwise.

22. I consider that the evidence should be rejected and excised from so much of Mr Haile’s evidence in the first trial as the Crown proposes to tender in this trial.

23. Mr Haile also objected to discrete portions of his earlier evidence. First, at T2269 and T2357 the following evidence was given by him:

“Q. Can you explain how the gunshot residue got on to the inside waistband of the tracksuit pants that you were wearing?

A. I can’t say.

…

Q. Do you have any explanation for the fact that gunshot residue was found on the inside waistband of your tracksuit pants?

A. No.

Q. The reason why the gunshot residue was found on the inside waistband of your tracksuit pants is because you put the gun there at some time just after or just before you got into the car, that’s right, isn’t it?

A. No, not that I can recall.”

24. Mr Haile objected to the reception of this evidence upon the bases that it was not relevant and that its probative value is outweighed by the danger of unfair prejudice to him. A more general submission is offered to the effect that Mr Haile cannot be expected to explain gunshot residue, presumably a technical matter, so that the question is inherently unfair.

24. I do not consider that any of these objections has merit. The relevance of the discovery of gunshot residue on the inside of his waistband arguably informs the issue of the way in which Mr Haile was carrying the gun that he used to shoot Mr Pasnin, a gun it will be noted that on his account he wrested from Mr Pasnin before using it. Why he should have done so, or the question of whether he did so, are matters that a jury might be expected to consider on the question of where the gun came from in the first place and why it might possibly have been retained by Mr Haile after the shooting in the second place. I do not consider that Mr Haile was being asked for a technical opinion about transfer of gunshot residue. On the contrary, the question is clearly based upon the assumption that gunshot residue was found in the location concerned, and that the Crown can establish that fact. The evidence may be prejudicial to Mr Haile in the forensic sense, to the extent that it suggests that he dealt with the gun in a particular manner at the time of the shooting, but it is in no way unfairly so.

25. Secondly, Mr Haile gave the following evidence at T2412 to T2413:

“Q. So Mr Haile, were there any other hotel bookings, not the ones that are already in evidence through the documents that were tendered when you were being examined by your barrister and the one that I just tendered, were there any other hotel bookings without documents where you got someone to pay for you because you couldn’t pay cash?

A. Yes.

Q. Where are those records?

A. I can’t recall, but – nearly every single week I had a hotel booking, before started doing frequent bookings in my name with my girlfriend at the time.

Q. But I suggest to you, sir, that the reason that no such documents have been provided in your case is because they do not exist. That’s right, isn’t it?

A. No, Marko Pehar said he seen me at the hotel parties a lot of times.”

27. Mr Haile objected to this evidence being tendered again upon the basis that it was unfairly prejudicial. That submission was combined with a contention that it appeared illegitimately to shift the onus to Mr Haile to produce documents or records from a third party over which it can be accepted he had no control.

28. As presently advised, it is not entirely clear whether the question was directed to the production of documents verifying hotel bookings from the hotel concerned or from Mr Haile himself. If the questions were directed to the former, it is unfair, unless it is based upon an assumption, whether established or not at the time, that no documents ever existed in the sense that the hotel has satisfactorily explained the non-existence of documents. For example, the non-availability of the documents is consistent only with no bookings ever having been made, as opposed to documents having been lost or that could not be located. If the questions were directed to the latter, they are unobjectionable.

29. Having regard to this uncertainty, I will ask the parties for clarification of the position before I decide the point.

30. Thirdly, Mr Haile gave this evidence at T2433 and T2439:

“Q. I suggest to you that you have presented to the jury a carefully-constructed version of events designed by you to tailor around the objective, provable facts in this case?

OZEN: I object.

HIS HONOUR: Just a moment please. I allow it.

A. No. [STRIKE OUT BEGINS] I told my lawyers about this ages ago [STRIKE OUT ENDS]

CROWN PROSECUTOR: I object to all of the answer after the word ‘no’ your Honour.

OZEN: I’d press the answer, your Honour.

HIS HONOUR: Yes, the rest of the answer after the word ‘no’ will be struck out.

…

Q. I might come back to some of those questions his Honour has asked in the course of this re-examination, but firstly, sir, do you recall, right at the end of the Crown prosecutor’s cross-examination, a proposition to this effect being put to you. That you had crafted or carefully crafted your evidence to fit around the evidence or facts disclosed in the Crown case, or the Crown brief? Do you remember that proposition being put to you?

A. Yes.

Q. Do you deny that proposition?

A. Of course.”

31. This objection can be dealt with upon the basis that these questions are effectively prefatory: they seek to suggest to Mr Haile that he is lying and has constructed a false version of events, favourable to him, that fits in with evidence otherwise given in the trial. The question is in real terms no more or less than a submission. Mr Haile has denied the general proposition. It remains a question for the jury to determine whether his “version” of any particular event or events is irreconcilable with other evidence in the trial.

32. I consider that the evidence given in the passage extracted from T 2439 is admissible in this trial.

33. Finally, Mr Haile was asked these questions at T2493:

“Q. Do you happen to have a photograph of yourself with the car, Mr Haile?

A. No.

Q. Why not?

OZEN: I object, your Honour.

A. Who does that? Why would I? I own the car. Why would I take a photograph of the car that I’m driving around?

Q. No photos of you in the car; is that what you’re saying?

A. No, I can get photos of me like in other cars, if you want, much more expensive.

Q. No photos of you with that Audi; is that correct?

A. No.

HIS HONOUR: Sorry, is it correct?

A. Yes, it’s correct, there is no photos.”

34. Mr Haile complains that the question has the quality of shifting the onus of proof to him. I disagree. He either has photos of himself with the car or he does not. The relevance of the issue is that one might expect such a photo if the car was as luxurious and expensive as it appears to be. The matter is in any event of such minor significance that it can hardly have been prejudicial, let alone unfairly so.

Admissibility of CCTV footage at 257-259 Dunmore Street, Pendle Hill

35. On the third day of Mr Haile’s evidence given in the first trial, the Crown sought to rely upon CCTV footage recovered from near where the shooting occurred that purports to show the movement of people at the unit complex where Mr Pasnin was killed. This material had been included in the brief of evidence held by the Crown and served on Mr Haile in the ordinary way. It had not, however, been led in the Crown case against Mr Haile. The Crown therefore made an application to rely on that evidence for the first time during Mr Haile’s cross-examination.

36. His Honour heard submissions and refused to allow the Crown to rely upon the material at the first trial. Whilst detailed reasons were not given, it is apparent that his Honour considered that the footage should have been led as part of the Crown case. He viewed the attempt to tender the material during cross-examination of Mr Haile as contrary to the principles in relation to the exceptional circumstances in which the prosecution may be permitted to re-open its case.

37. Mr Haile submitted that the course of the first trial would now make it unfairly prejudicial to adduce the footage in this trial: the quality of the material is so poor that it precludes any effective testing; there is a real risk that the jury would over-estimate its significance; the tender would effectively perpetuate the unfairness identified by the trial judge in the first trial; it would be unfairly prejudicial having regard to its limited probative value. These propositions are, of course, interrelated to some extent.

38. The CCTV material is, standing alone and in the absence of any other evidence that might be led concerning events at or about the time that it purports to have been recorded, entirely useless. On the Crown case, it purports to show the movement of individuals in two stairwells at or about the time that it is alleged that Mr Haile and others arrived at the scene and Mr Pasnin was shot. Nothing that emerges from the footage standing alone could possibly be used to identify who are the people apparently moving around at this location. The material is so dark, grainy and indistinct that its evidentiary value is close to zero. Mr Haile has submitted that the quality is so poor and so deficient that it prevents any sensible challenge to its interpretation.

39. The Crown contends, however, that once other witnesses in the Crown case give evidence of events that coincide with the period of exposure, the movements seen in the CCTV will be explained. Alternatively, the Crown contends that the CCTV evidence will corroborate the evidence given by these witnesses.

40. In my opinion, that submission gives an inappropriately generous meaning to the word “corroborate”. At the very least, the footage would in my opinion have to permit the viewer to identify who it is that the Crown contends is depicted in what is seen. On the contrary, the Crown proposition, that it depicts specified individuals, rises no higher than a submission: nothing revealed in the footage permits that independent conclusion. There is in the circumstances a very real prospect that the jury might reason that the footage reveals the activity which the Crown maintains is shown simply because the Crown says so, when the footage itself could never support such a submission. There is a very real potential for the footage to be misused by the jury by placing excessive weight upon it when its probative value is scant. I accept Mr Haile’s submission that the status of the CCTV material as “evidence” may cloak it in an unwarranted mantle of legitimacy that it simply does not have.

41. Mr Haile has also objected to the reception of this material on the basis that the concern at the first trial that the Crown should not be permitted to split its case would arise again, having regard to the fact that the Crown proposes to rely on Mr Haile’s earlier evidence, including, relevantly, evidence he gave before the Crown’s attempt to tender the material. That unfairness would clearly persist if the jury were able to compare evidence given by Mr Haile before the CCTV material emerged as potential evidence in the first trial. That submission was emphasised in writing as follows:

“Indeed, the unfairness will be more acute in re-trial. The jury at re-trial will not observe the development of the context in which the accused gave evidence. At least the jury at the first trial would have direct observations of the accused giving that evidence after the presentation of a detailed Crown case across 23 sitting days over close to two months where this footage was not raised. The real-life atmosphere of the accused giving his account following such a presentation would be impossible to illustrate for a jury on re-trial. Further, it would be challenging to contemplate a direction that might assist in addressing the circumstances in which that previous evidence was given. Indeed, any attempt to do so may have the practical effect of only highlighting the forensic advantage now sought by the Crown.”

42. I consider that these concerns have merit. The CCTV footage should be excluded upon the basis that its probative value is outweighed by the danger of unfair prejudice to Mr Haile.

Admissibility of evidence relating to third parties

43. As already noted, the Crown case is that Mr Haile attended the Pendle Hill premises for the purpose of shooting Mr Pasnin having been commissioned to do so for a fee by his ex-girlfriend Louise Spiteri-Ahern. The Crown case is that the relationship between Mr Pasnin and Ms Spiteri-Ahern commenced sometime in 2011. In late 2012, Ms Spiteri-Ahern had an abortion. The relationship ended a short time later. These events made Ms Spiteri-Ahern “bitterly angry” with feelings of “anguish, bitterness, resentment and hatred” towards Mr Pasnin. The breakdown of the relationship and her expression of strong emotion were part of her motive to participate in a joint criminal enterprise with Mr Haile to shoot Mr Pasnin.

44. The Crown proposes to support these contentions by adducing the following evidence:

• Text messages sent by Ms Spiteri-Ahern to Mr Pasnin in late 2012 and January 2013, said to evidence her hatred towards Mr Pasnin;

• Letters sent by Ms Spiteri-Ahern to Mr Pasnin between 18 March 2013 and 2 May 2013 during which time Mr Pasnin was on remand, said to evidence her obsession and the volatile nature of the relationship;

• Evidence from family members and associates of Mr Pasnin describing certain behaviours and statements by Ms Spiteri-Ahern said to be threatening and reflective of motive;

• Hearsay statements by Mr Pasnin expressing fear about Ms Spiteri-Ahern;

• Text messages between Ms Spiteri-Ahern and associates of Mr Pasnin.

45. Mr Haile contends that some of the evidence in this context is inadmissible.

Text messages and letters

46. One letter written to Mr Pasnin when he was in gaol refers to Ms Spiteri-Ahern’s father, revealing or at least suggesting that she used to write to him when he was in gaol as well. Mr Haile is concerned that this material is prejudicial to him inasmuch as the jury might reason that Ms Spiteri-Ahern had close criminal connections within her own family, making it more likely that she would have been less inhibited than otherwise to resort to criminal violence. As superficially attractive as that argument appears to be, it seems to me that the prejudice, if any, that this evidence might occasion to Mr Haile is trivial. The letter in question is admissible without redaction.

Interaction with Ms Salima Eid – March 2013

47. Ms Salima Eid is the mother of Mr Pasnin. On the morning following the shooting, she was interviewed by police and described some observations of the relationship between her son and Ms Spiteri-Ahern. She also gave evidence at Mr Haile’s trial in 2016.

48. On 21 August 2017, Ms Eid provided a statement to police. In that statement she described an occasion when she said Ms Spiteri-Ahern made a verbal threat with words to the effect “you’re going to pay dearly for it, especially Raymond” and “I know where you live and my uncle who’s a bikie can come to your house, and have you bashed and have you all killed”. This interaction had not been raised in her interview with police nor in the first trial. Ms Eid refers to this statement by Ms Spiteri-Ahern being made around three weeks after Mr Pasnin went to gaol. This means that, assuming it was said, it would have occurred in late March 2013.

49. Mr Haile submitted that this description should be excluded under s 137 Evidence Act. Its probative value is minimal. The content provides little insight into the motivation that might be relevant to whether, at a later point in time, Ms Spiteri-Ahern was prepared to enter a common purpose with Mr Haile. The statement might be described as threatening but does not shed any significant light on the primary purpose for which the Crown seeks to use it, namely, to show why, at a later point in time, Ms Spiteri-Ahern entered a joint criminal enterprise with Mr Haile.

50. Mr Haile also submitted that there is a real danger that the jury might misuse the statement and regard it as either an admission or tendency evidence.

51. Mr Haile submitted that there is no suggestion and no basis that could support a conclusion that this statement was made at a time when there existed a common purpose between Ms Spiteri-Ahern and Mr Haile. It is not capable of being regarded as an admission under s 87 of the Evidence Act. However, given the content of the statement and the nature of the arrangement alleged against Mr Haile, there is a danger that the jury might use such a statement as an admission to the actual allegation: that is, this description of having a third party harm or kill Mr Pasnin or his family is a direct reference to the central allegation made by the Crown about what occurred on 30 October 2013.

52. Furthermore, there is a real risk that even if the jury did not perceive a direct link between this statement and the alleged arrangement on 30 October 2013, such a statement would invite tendency reasoning, to the effect that Ms Spiteri-Ahern is the kind of person who would engage a third party to harm or kill Mr Pasnin and his family. Mr Haile submitted that such tendency reasoning would not have been admissible against Ms Spiteri-Ahern herself, far less in an evaluation of Mr Haile’s alleged involvement.

53. Finally, there is obviously no suggestion Mr Haile was present during the interaction. It follows that his ability meaningfully to test the exchange is extremely limited.

54. In my view, two things can be said in response to these concerns. The first is that there will be a significant amount of evidence, to which no objection is or could be taken, that supports the Crown contention that Ms Spiteri-Ahern had a motive to kill Mr Pasnin. Evidence of the type now being considered is consonant with that other evidence. It is not as if proof of the motive in question for which the Crown contends stands or falls with a decision about the admissibility of this evidence. To that extent any perceived prejudice said to arise from Ms Eid’s recollections is correspondingly modified. The prejudice does not in that context seem to me to be unfair.

55. The second is that Mr Haile’s concerns can also be addressed by appropriate directions. For example, the Crown does not suggest that the evidence can be used as tendency evidence and the jury should, if the parties want it, be directed in appropriate terms about the limitations that attach to it.

Interaction with Ms Susan Frichot outside court and at the Wentworthville Club

56. In her statement on 31 October 2013 at [10], Ms Frichot includes a conversation she had with Ms Spiteri-Ahern at the Wentworthville Leagues Club. Mr Haile submitted that this conversation does not disclose any relevant information.

57. In the same statement at [17], Ms Frichot refers to a conversation with Ms Spiteri-Ahern where she asked Ms Spiteri-Ahern, “Why did you do it? Why did you tell police those things?” and she describes her response being, “We had a fight and I wanted to get back at him. I just thought, if I can’t have him no one can”.

58. Objection is taken to this material by Mr Haile as it does not evidence any motive relating to a common purpose to have Mr Pasnin shot. The response in fact specifically relates to a separate issue, being an application for an apprehended violence order. Mr Haile submitted that this issue is so separate that the exchange is too remote to meet the test of relevance. Any attempt to cloak it with relevance would invite tendency reasoning, namely, that Ms Spiteri-Ahern’s motive on one issue (the application for an AVO) can be extrapolated to inform her motive on a separate issue (entering an agreement to have Mr Pasnin shot). Alternatively, if it is relevant, its probative value is outweighed by the danger of unfair prejudice to Mr Haile who was not party to the interaction and has limited capacity to test it.

59. In my opinion, this evidence should be excluded. In context and in terms it relates exclusively to Ms Spiteri-Ahern’s motivation for, and possible regret about, having reported things to the police that resulted in Mr Pasnin’s incarceration for alleged domestic violence and the apprehended violence order to which he was subject. It does not reliably inform the existence of a motive to kill Mr Pasnin and is not relevant to the proof of that issue.

Statements attributed to Mr Pasnin relevant to Ms Spiteri-Ahern

60. Within anticipated evidence of the family and close associates there are some incidents that describe Mr Pasnin making certain comments about Ms Spiteri-Ahern. I am informed that the parties had a productive discussion on this issue on 30 January 2023. It is understood by Mr Haile that the Crown will not lead evidence of statements by Mr Pasnin describing Ms Spiteri-Ahern’s character generally or representations of his emotional response about Ms Spiteri-Ahern.

61. However, it is understood that the Crown still seeks to lead reports by Mr Pasnin of representations attributable to Ms Spiteri-Ahern. Mr Haile objects to evidence of representations made by Mr Pasnin arising from reports by him to others of things allegedly said by Ms Spiteri-Ahern or concerning her behaviour.

60. Mr Haile has so far identified some objectionable material that he says falls into this category or which is otherwise objectionable, although he foreshadows that there may be more:

1. Michelle Anthony, in her statement of 31 October 2013 at [8], describes Mr Pasnin claiming that Ms Spiteri-Ahern had said, “You will pay for this. This won’t be the end of it.”

2. Salima Eid, in her interview on 31 October 2013, refers to Mr Pasnin’s reason for wanting Ms Spiteri-Ahern to have an abortion.

3. Constable Mitchell Way, in his statement of 1 August 2014, relates an attempt by Mr Pasnin to seek an Apprehended Violence Order against Ms Spiteri-Ahern.

63. Mr Haile submitted that Mr Pasnin’s statements about Ms Spiteri-Ahern in these instances should not be admitted pursuant to ss 65 and/or 137 of the Evidence Act. To the extent that the truth of the representations is relied upon to establish that Ms Spiteri-Ahern did in fact make such representations or act in the way described by Mr Pasnin, Mr Haile submitted that there is insufficient evidence to satisfy the preconditions under s 65(a)-(d) Evidence Act. For example, in giving evidence about Mr Pasnin referring to Ms Spiteri-Ahern saying, “You will pay for this. This won’t be the end of it”, Ms Michelle Anthony was unable to provide any satisfactory information about the timing or circumstances of that alleged representation.

64. More broadly, representations by Mr Pasnin about Ms Spiteri-Ahern’s behaviour or her statements lack significant probative value given that the descriptions are bereft of detail. For example, it is not clear whether in each case Mr Pasnin was referring to a specific incident or what were the circumstances in which Ms Spiteri-Ahern’s behaviour is said to have been observed. The prejudice is significant given that Mr Haile has no information about, or understanding of, these interactions that would allow him effectively to challenge or test them.

65. Additional objection is taken on the grounds of relevance to Salima Eid’s evidence concerning Mr Pasnin’s motivation for wanting Ms Spiteri-Ahern to have an abortion. It is also prejudicial to the extent that there is an irrelevant reference to problematic drug use by Ms Spiteri-Ahern.

66. In general, Mr Haile also contends that whatever may have been Ms Spiteri-Ahern’s alleged motives to harm Mr Pasnin, they cannot have any sufficient relevance to the question of whether or not she recruited Mr Haile to assist her to give effect to them.

67. So far as concerns that submission, it is apparent that the Crown will rely upon a series of circumstances to prove that Mr Haile was recruited by Ms Spiteri-Ahern to shoot Mr Pasnin. One of those circumstances will be that she had a motive to do so. Proof of the recruitment may well be assisted by that circumstance, even though standing alone it would be insufficient to prove it. The state of the relationship between Ms Spiteri-Ahern and Mr Pasnin is clearly relevant to the Crown’s attempt to prove that she recruited Mr Haile, even if proof of the existence of a motive to kill Mr Pasnin would not by itself establish that she paid Mr Haile to do it.

68. Mr Pasnin’s statements are relevant to proof of the state of the relationship. Mr Haile’s other concerns are directed at the weight that should be attributed to the evidence of what Mr Pasnin reported to others or whether it should be believed at all, not to its admissibility.

Jury directions in previous trials

69. The parties foreshadowed that some directions from the first trial will be revisited. These can be dealt with during the trial proper.

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Decision last updated: 13 April 2023