R v Spiteri-Ahern (No 11) - [2017] NSWSC 1820

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820
Hearing dates: 16-18, 21-23, 28, 29, 31 August 2017, 1, 4, 6-8, 11-14, 18-20, 25-28 September 2017, 4, 9-11, 13, 16 October 2017
Date of orders: 21 December 2017
Decision date: 21 December 2017
Jurisdiction: Common Law - Criminal
Before: Rothman J
Decision:
(1) On the charge of murder of Raymond Pasnin, Ms Louise Spiteri-Ahern is guilty as charged;
(2) On the charge of accessory before the fact to murder, Ms April Barber is not guilty of the charge preferred;
(3) On the charge of concealing a serious indictable offence, Mr Amin Zraika not guilty of the charge preferred; and
(4) Verdicts entered.

Catchwords:
CRIME – judge alone trial – 3 accused charged with murder, accessory before the fact to murder and concealing a serious indictable offence (accessory) respectively – discussion of circumstantial evidence; reasonable hypothesis inconsistent with guilt; and drawing inferences – factual conclusions prove guilt of murder accused and do not prove, to the requisite standard, the guilt of the other two accused.

Legislation Cited:
Crimes Act 1900
Evidence Act 1995

Cases Cited:
Bruce v Williams (1989) 46 A Crim R 122
Carr v Baker [1936] SR (NSW) 301
Director of Public Prosecutions (Northern Ireland) v Maxwell [1978] 3 All ER 1140;
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Fabre v Arenales (1992) 27 NSWLR 437
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
IL v The Queen (2017) 91 ALJR 764; [2017] HCA 27 Osland v R (1998) 197 CLR 316; [1998] HCA 75
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8;
Jones v Sutherland Shire Council [1979] 2 NSWLR 206;
R v Ancutta (1990) 49 A Crim R 307
R v Ray (2003) 57 NSWLR 616; [2003] NSWCCA 227
R v Russell [1933] VLR 59
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Wilson v Director of Public Prosecutions (NSW) [2017] NSWCA 128

Texts Cited:
William Blackstone, Commentaries on the Laws of England, Volume 4
New South Wales Law Reform Commission, Report 93: Review of section 316 of the Crimes Act 1900 (NSW), December 1999

Category: Principal judgment
Parties:
2014/00180060:
Regina (Crown)
Louise Catherine SPITERI-AHERN (Accused)

2014/00180279:
Regina (Crown)
April BARBER (Accused)
2014/00235123:
Regina (Crown)
Amin ZRAIKA (Accused)
Representation:
Counsel:
2014/00180060:
D Patch (Crown)
J Trevallion (Accused)

2014/00180279:
D Patch (Crown)
A Francis (Accused)

2014/00235123:
D Patch (Crown)
Dr R Webb (Accused)

Solicitors:
2014/00180060:
Office of the Director Public Prosecutions (Crown)
Archbold Legal Solutions (Accused)

2014/00180279:
Office of the Director Public Prosecutions (Crown)
Bannisters Lawyers (Accused)
2014/00235123:
Office of the Director Public Prosecutions (Crown)
Macquarie Lawyers Burwood (Accused)

File Number(s): 2014/00180060; 2014/00180279; 2014/00235123
Publication restriction: Orders made on 19/09/2017:NON PUBLICATION ORDER that the address given for the accused Ms Spiteri-Ahern and her family in the evidence of Constable Daniel Greentree not be published outside of the Court room. Orders made on 14/09/2017:SUPPRESSION ORDER made that Reference to the allegation of sexual abuse adduced in evidence on 14/09/17, including any information that could identify the victim, is not to be published. Orders made 31/08/2017:SUPPRESSION ORDER made in relation to the true identity of the proposed Crown witness, together with any evidence, submission discussion, document or information that might disclose the identity of said witness. The publication of any reference to the witness be by way of the pseudonym name Tom Jones.

Judgment

HIS HONOUR: At about 11:55pm on 30 October 2013, Daniel Haile shot and killed the deceased, Raymond Pasnin. So much is alleged by the Crown in these proceedings. Further, the Crown alleges that Ms Louise Spiteri-Ahern is guilty of the murder of the deceased in that she and Mr Daniel Haile agreed to kill or inflict grievous bodily harm on the deceased and Ms Spiteri-Ahern is guilty as part of the joint criminal enterprise between her and Mr Haile.
In these proceedings, the Crown also alleges that Ms April Barber is guilty of accessory before the fact to the murder, because she agreed with Ms Spiteri-Ahern to organise for the deceased to be at the place identified by Ms Barber for the purpose of being killed or being inflicted with grievous bodily harm.
Lastly, the third accused, Mr Amin Zraika is before the Court charged with concealing a serious indictable offence, in that, knowing Ms Barber had "set up" the deceased, he concealed that fact from the police.
For reasons outlined in a previous judgment of the Court, the charges against each of the accused were heard in a judge alone trial and without a jury. Essentially, the reason for that is that the accused applied for separate trials, because of the nature of the evidence and the prejudicial nature of the evidence against one accused being used impermissibly by a jury against other accused.
The difficulty with such a course was that, while there was a serious risk that the evidence would be misused, or used in an impermissible manner, the evidence was, with some exceptions, admissible in the trial against each of the accused. The alternative suggestion, that the trial occur by judge alone, was accepted by the Court as being in the interests of justice, over the objection of the Crown.
The manner in which the Crown seeks to prove the charges against each of the accused is largely circumstantial. The elements of each charge must be proved by the Crown beyond reasonable doubt and the evidence admitted in the trial of a particular accused must prove each of the elements of the offence charged, beyond reasonable doubt.
In a circumstantial case, all facts need not be proved beyond reasonable doubt if, when added together, they can prove, beyond reasonable doubt, the ultimate factual conclusion, necessary for the Crown to establish guilt. These aspects will be dealt with in greater detail in the course of these reasons for judgment.
I should for the sake of completeness note that the accused were the subject of a previous trial by jury. The jury was discharged without reaching a verdict on the basis that it was unable to reach a verdict on Ms Spiteri-Ahern in an appropriate time.

The Charges

Against Ms Spiteri-Ahearn, the Crown prefers the charge of murder, based on a joint criminal enterprise with Mr Haile. The formal charge is, relevantly, in the following terms:

that Louise Catherine Spiteri-Ahern on 30 October 2013 at Pendle Hill in the State of New South Wales did murder Raymond Pasnin.

It is necessary to describe a joint criminal enterprise. The law provides that if two or more persons reach an understanding or arrangement that together they will commit a crime and, while that understanding or arrangement is still on foot and has not been terminated, one or other of them does (or they do between them or together), in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, then they are each equally guilty of that crime, regardless of what part each played in its commission. In such cases, each of the participants is said to have been acting in concert in committing the crime, for a common purpose, or in a joint criminal enterprise: IL v The Queen (2017) 91 ALJR 764; [2017] HCA 27; Osland v R (1998) 197 CLR 316; [1998] HCA 75.
The agreement or arrangement between the participants in a joint criminal enterprise need not be expressed in words and the existence of the agreement or arrangement may be inferred from facts and circumstances surrounding the commission of the offence otherwise proved by evidence.
Further, the agreement or arrangement does not need to be reached at any particular time before the crime was committed. Nevertheless, the agreement or arrangement must be reached before, or at the time of, the commission of the offence and not after it. All that is needed is that, at the time of the commission of the offence, assuming it was committed, the participants in the alleged joint criminal enterprise have agreed that the crime should be committed by one or more of them.
In a joint criminal enterprise, each participant is responsible for the acts of the other in that joint criminal enterprise. In that regard each participant in the joint criminal enterprise is an “agent” of the other participants in the carrying out of the criminal pursuit.
The Crown must establish both the existence of the joint criminal enterprise, being the agreement to commit the crime in question, and the participation of the accused in that enterprise.
Where two or more persons reach an agreement, understanding or arrangement between them that they agree they will commit a crime, that is a joint criminal enterprise and, when the agreed crime, or another crime contemplated by the particular accused, is committed by one or more of the participants in the enterprise, the accused is guilty of the crime committed.
It matters not that the crime committed does not correspond, in every detail, with that contemplated by the agreement between the participants. There must, however, be, at the time that the agreement was reached or continued, a substantial risk that the crime that was committed, will be committed. A substantial risk is not just a slender chance.
As earlier stated, each of the above necessary elements for the establishment of a joint criminal enterprise and the sheeting home of the responsibility for the acts of another to a particular participant in the joint criminal enterprise requires the Crown to prove each of the above aspects of a joint criminal enterprise beyond reasonable doubt and, in particular, in this case, the participation of Ms Spiteri-Ahern in the joint criminal enterprise that is alleged by the Crown.
Further, it is necessary to prove that the crime of murder has been committed. The crime of murder is committed if and only if the Crown has proved beyond reasonable doubt, on the evidence admitted in the trial, of Ms Spiteri-Ahern that:

the death of Mr Pasnin was caused by a deliberate act of Mr Haile; and

Mr Haile's conduct was the act causing death and was done with an intention to kill Mr Pasnin or to inflict grievous bodily harm upon him; and

the participation of Ms Spiteri-Ahern in the joint criminal enterprise, alleged by the Crown, renders her responsible for the acts of Mr Haile in committing the murder.

Every charge of murder carries with it a statutory alternative of manslaughter, which would be open to be found against Ms Spiteri-Ahern, if the Court were to consider that the Crown had not proved an intention to kill or cause grievous bodily harm, but that the agreement or arrangement giving rise to the joint criminal enterprise was such that Ms Spiteri-Ahern contemplated the infliction of actual bodily harm, without the requisite intention for murder and without reckless indifference to human life.
A deliberate act must be differentiated from an act performed with the requisite intention. Further, intention is to be differentiated from premeditation. Most of those distinctions are irrelevant for the purposes of the present proceedings.
The charge against Ms Barber is, relevantly, in the following terms:

that, whereas on 30 October 2013 at Pendle Hill in the State of New South Wales Daniel Haile and Louise Catherine Spiteri-Ahern did commit a serious indictable offence, namely murder Raymond Pasnin,
April Barber on 30 October 2013 at Merrylands in the State of New South Wales, before the said serious indictable offence was committed, did incite, move, procure, aid, counsel, hire and command the said Daniel Haile and Louise Catherine Spiteri-Ahern to commit the said serious indictable offence.

Apart from the allegation that there existed a joint criminal enterprise between Ms Barber and Ms Spiteri-Ahern rendering the statements of Ms Spiteri-Ahern and the conduct of Ms Spiteri-Ahern matters upon which Ms Barber can be held responsible, at least in relation to the furtherance of that common purpose, the manner in which the Crown seeks to prove this offence has been less than satisfactorily explained. In particular, the elements of the commission of the offence of accessory before the fact were not the subject of detailed explanation.
On one view, the utility of a charge of accessory before the fact (and the capacity to charge the offence as such), in light of the elimination of the distinction, for the purposes of criminal procedure in this State, between principal in the first degree and principal in the second degree, may itself cause problems. Section 346 of the Crimes Act 1900 is in the following terms:

“346 ACCESSORIES BEFORE THE FACT – HOW TRIED AND PUNISHED
Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not.”

The punishment for a person convicted as a result of being an accessory before the fact is the same punishment as would be available if the person were convicted as a principal offender. In this case, the maximum penalty, if the offence be murder, would be life imprisonment.
Further, the accessory before the fact may be tried before or after the trial of the principal offender and may be tried, notwithstanding that the principal offender is not tried or is not to be tried.
The provisions of s 346 make clear that an accessory before the fact may be "indicted, convicted and sentenced as a principal in the offence".
The provisions of s 346 are essentially procedural and do not define a separate offence. Rather, they provide that an accessory before the fact is guilty as a principal in the offence.
The distinction, when it was relevant, between an accessory before the fact and a principal in the second degree was the presence of the principal in the second degree during the commission of the offence. Principals in the second degree are now, for all practical purposes, charged, tried and punished in the same way (subject to issues of culpability, on sentence, of course) as principals in the first degree: see s 345 of the Crimes Act.
The High Court, in Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, explained the operation of those offences covered by the term accessory before the fact and its operation in New South Wales. In the High Court judgment in Giorgianni, the criminal offence was pursuant to the terms of s 351 of the Crimes Act, which is the equivalent, for minor indictable offences, to s 351B (relating to summary conviction) and s 346 of the Crimes Act.
Unfortunately, it is necessary to refer briefly to the common law definition of accessory before the fact, because the Crimes Act does not define the term. Under the common law, historically, an accessory before the fact was a person who, while not present at the location of the felony at the time the felony is committed, counsels or procures another to commit that offence: see William Blackstone, Commentaries on the Laws of England, Volume 4. As the reasons for judgment of Mason J (as His Honour then was) in Giorgianni, make clear, the terms of a provision such as s 346 or s 351 of the Crimes Act do not themselves create a substantive offence, but are declaratory of the common law and procedural in nature: Giorgianni at 490. Further, once the nature of s 346 and s 351 of the Crimes Act is understood, one must then examine the common law concept of secondary participation and not the terms of the section in order to determine criminal liability: Giorgianni at 492.
The terms “aid” and “abet” were generally used to refer to the conduct of a principal in the second degree; the terms "counsel" or "procure" were generally used to refer to the conduct of an accessory before the fact: Giorgianni at 493. However, as Mason J then stated, "in substance, … there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence": Giorgianni at 493. His Honour was, of course, referring to felonies (as they were then known) and not misdemeanours.
Further, as Mason J remarked, by reference to the judgment of Cussen ACJ in R v Russell [1933] VLR 59 at 67, all of the terms "aid", "abet", “counsel" or “procure" are instances of the one premise, namely, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime and, by his or her words or conduct, doing something to bring about, or rendering more likely, the commission of such offence. Having discussed that history, it is necessary then to turn to the issues of accessory before the fact, in particular.
First, it is necessary to note, for relevant purposes, that there must be a causal link between that which is done by the accessory before the fact and the commission of the offence. That causal link does not need to be direct, but it must be in existence. Mere acquiescence will not amount to accessory before the fact.
The alleged accessory, in this case Ms Barber, on the allegations of the Crown, need not conduct herself or perform the act with the intention or desire that the crime be committed, but she must have believed, at the time of the conduct, that the commission of the offence by Ms Spiteri-Ahern is a distinct possibility, namely, it must be a crime within the accessory’s contemplation or one of the same general type: Director of Public Prosecutions (Northern Ireland) v Maxwell [1978] 3 All ER 1140; R v Ancutta (1990) 49 A Crim R 307 at 312; Bruce v Williams (1989) 46 A Crim R 122 at 129.
Further, a person cannot be convicted of secondary participation at common law, unless the person knows the facts which must be proved to show that the offence has been committed: Giorgianni at 494. Suspicion of the existence of the facts does not of itself amount to knowledge of the facts: Giorgianni, per Gibbs CJ at 487.
The summary of the offence or a necessary element of the offence, described by Gibbs CJ in Giorgianni is worth reciting:

"No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.” (See Giorgianni at 487-488)

The plurality reasons for judgment in Giorgianni (Wilson, Deane and Dawson JJ) referred (Giorgianni at 500) to the need, in order for the accused to have aided, abetted, counselled or procured, for the accused to have intentionally participated in the principal offences and, as a consequence, "must have had knowledge of the essential matters which went to make up the offences … whether or not he knew that those matters amounted to a crime": Giorgianni, per Wilson, Deane and Dawson JJ, at 508.
A further complication arises in relation to the Crown allegation against Ms Barber in that the Crown alleges a "common purpose" between Ms Barber and Ms Spiteri-Ahern to ensure the deceased was at a particular place at a particular time. The Crown alleges that the accused, Ms Barber, provided the assistance of "setting up" Mr Pasnin in order for him to be killed or suffer grievous bodily harm.
It is said that the common purpose between Ms Barber and Ms Spiteri-Ahern is different from the common purpose between that which is alleged to have existed between Ms Spiteri-Ahern and Mr Haile. This unusual complication will be the subject of later discussion in these reasons.

Lastly, as earlier stated, the Crown charges Mr Zraika with concealing a serious indictable offence, namely, Ms Barber’s accessory before the fact to murder. The charge against Mr Zraika is, relevantly, in the following terms:

that, whereas on 30 October 2013 at Merrylands in the State of New South Wales April Barber did commit a serious indictable offence, namely accessory before the fact to murder,
Mr Amin Zraika between 30 October 2013 and 9 August 2014 at Sydney in the State of New South Wales, knowing or believing that April Barber had committed the said serious indictable offence and that he had information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, did fail, without reasonable excuse, to bring that information to the attention of a member of the Police Force or other appropriate authority.

It is appropriate to recite the provision of the Crimes Act that renders concealing a serious indictable offence a criminal offence, which is in the following terms:

“316 CONCEALING SERIOUS INDICTABLE OFFENCE
(1) If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.”

The elements of the offence are:

a first person (in the Crown case, Ms Barber) has committed a serious indictable offence; and

the accused (in these proceedings Mr Zraika) knew or believed that the offence had been committed;

Mr Zraika knew or believed that he had information which might be of material assistance in securing:

the apprehension of the offender; or

the prosecution or conviction of the offender

for that offence; and

Mr Zraika failed, without reasonable excuse, to bring that information to the attention of a member of the police force.

The offence created by s 316 of the Crimes Act replaced the common law misdemeanours of misprision of felony and compounding a felony. Misprision consisted of knowing that a felony had been committed and failing to disclose that knowledge to those responsible for the preservation of the peace within a reasonable time and having had a reasonable opportunity to do so. Compounding a felony was constituted by agreement for consideration not to prosecute or to impede prosecution for a felony.
The foregoing is contained within Report 93 Review of s 316 of the Crimes Act being a report of the New South Wales Law Reform Commission cited, with approval, in Wilson v Director of Public Prosecutions (NSW) [2017] NSWCA 128.
As was made clear in the reasons the judgment of Meagher JA (with whom Bathurst CJ and, relevantly, Basten JA agreed) in Wilson, an offence under s 316 of the Crimes Act may be committed at any time after the commission of the principal offence (referred to in Wilson as the predicate offence) and liability continues until such time as the predicate offence has been prosecuted to conviction or acquittal: Wilson at [41]. Further, for Mr Zraika to be subject of the offence created by s 316 of the Crimes Act, he must be concealing "a serious indictable offence".
It is unnecessary for Mr Zraika to be able to classify the offence, which he is charged with concealing, as long as he knows those facts that are necessary for the legal classification to be made. However, it must be said, if the offence is murder, or accessory to the fact before murder, it is simply unimaginable that any person would not know such an offence was "a serious indictable offence". And Mr Zraika, in the conversations with Ms Barber, adduced in evidence, makes clear that his view is that Ms Barber’s “offence” is serious.
There are some interesting constructional aspects to the offence under s 316 of the Crimes Act, particularly in circumstances such as those currently before the Court. The current proceedings do not involve a victim or eyewitness refusing to complain and or failing to tell police of the occurrence of an offence, the identity of the person involved (if known) or other material facts.
Thus, two of the issues involved in the charge against Mr Zraika are whether a person who, because of conversations with a “spouse", becomes aware of that spouse's involvement in a crime, fails to implicate the spouse, by failing to provide information "of material assistance" and, secondly, whether the information is material in the manner prescribed by the provision of the Crimes Act. During the course of submissions, the Court discussed with the Crown whether the words "in securing" govern the words "the prosecution or conviction" in the section. That too is a matter that will be the subject of later discussion, to the extent necessary.

Directions

It seems a little facile, but there are a number of matters, which it is necessary for the Court to mention. First, I direct myself that the fact that none of the accused gave evidence in the trial is not to be taken in any way against the accused, or any one of them.
An accused is not required to give evidence. The accused may give evidence, but the failure to give evidence is not a matter that can be used for the drawing of any inference or as a makeweight or bootstraps argument to fill gaps in the Crown case, if there be any.
Secondly, while already mentioned, it is for the Crown and only the Crown to prove guilt. That guilt must be proved beyond reasonable doubt.
I take that term to mean that each of the essential facts, and the elements of the crimes that are alleged, must be proved in such a way that the evidence that the Court accepts does not allow for a reasonable hypothesis inconsistent with guilt.
Thirdly, I deal with the issue of lies. During the course of these proceedings the Crown has seemingly elided two quite separate concepts. The Crown, without distinguishing between the two issues, sought to utilise lies told in the commission of the offence, particularly by Ms Barber, and lies told to the police during the investigation of the offence.
The latter, assuming the relevant tests are met, may be used as conduct disclosing a consciousness of guilt. Lies told during the commission of the offence are relevant to the commission of the offence, but do not, in this case, disclose a consciousness of guilt.
In relation to post-offence lies that are sought to be used to show a consciousness of guilt, care must be taken in using the lies in that way: R v Ray (2003) 57 NSWLR 616; [2003] NSWCCA 227 at [98]. It is not suggested that the lies said to be told by Ms Barber, in particular, but in relation to any of the accused, are implied admissions of guilt: Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63.
As has been confirmed by the High Court in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, consciousness of guilt may arise from lies or deliberate falsehood; not simply a mistake or a matter of confusion. Even if the statement is a lie, in the foregoing sense, it can be taken into account for the purposes of indicating a consciousness of guilt only in the circumstances where: first, the lie relates to an issue relevant to the offence the Crown alleges occurred; and, secondly, the reason the lie was told was because telling the truth might reveal the guilt of the person in question in respect of the particular charge now faced. Nevertheless, people lie for various reasons, including fear, or panic.
The foregoing general approach to the telling of lies is relevant to the discussion that will occur later in these reasons. In addition, the environment of crime may affect their honesty and their willingness to give honest evidence.

Unreliability of Witnesses

Only one of the witnesses in this trial, it is said, was criminally involved in the conduct that gives rise to the charges. However, a number of the persons who gave evidence were persons who had been involved in drug dealing and the use of drugs.
In and of itself, that fact may not be particularly relevant, if used as a blanket prejudice against the evidence of a particular witness. There may be, as a consequence, motives for untrue evidence, such as the owing of debts on drugs and or personal relationships, which require the Court to be cautious in the acceptance of all of the evidence provided by some of the witnesses.
Further, those witnesses who were affected by drugs (or other illicit substances or medical conditions), at the time that they observed the matters to which they attest, may be unreliable in their perception of what they observed and that, too, is a matter that the Court takes into account in dealing with the reliability of the witnesses before the Court.

Motive

The Crown relies on motive, although its description of the motive for the murder is less than precise. Motive, in and of itself, cannot prove guilt. It may, in some circumstances, render more rational the commission of a serious offence. But the offence must be proved beyond reasonable doubt and while motive may allow the Court to accept, more readily, that the crime was committed by the persons alleged, it is the proof of the crime, rather than the motive of the crime, that must prove guilt.
On one view everyone has a motive to kill. Every business partner, every beneficiary of a will, everyone in a domestic relationship or who owes a debt may have a motive to "kill".
Most people do not act on any such motive. Most people do not even consider such conduct. Nevertheless, motive is a matter that must be considered and utilised extremely carefully in the determination of guilt and will not, in itself, prove guilt.

Circumstantial Evidence and Inferences

As earlier stated, the Crown case is circumstantial. Most murder trials are, at least to some extent, circumstantial. The Crown case relies upon the proof of a number of facts from which it asks the Court to infer criminal conduct of the kind alleged. It is necessary to discuss the drawing of inferences in criminal trials, and elsewhere.
The drawing of inferences has been described as "plain commonsense”: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Fabre v Arenales (1992) 27 NSWLR 437. In Fabre v Arenales, Mahoney JA (with whom, relevantly, Priestley and Sheller JJA agreed), after citing the judgment of Menzies J in Jones v Dunkel (at 312) and, at length, of Windeyer J in Jones v Dunkel (at 320-321), said, in relation to the drawing of inferences:

“There is in this nothing esoteric or peculiar to legal reasoning. It is, as Windeyer J said, ‘plain commonsense’. A factual inference (if A, B, C exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J, ‘human experience would be contradicted if’ Z did not exist: see the cases referred to in Jones v Sutherland Shire Council (at 222 et seq). It follows that the inference will or may be drawn if general human experience (plain common sense) will not be contradicted if the inference be drawn.”
(Fabre v Arenales at 455.F).

On one view, or as a matter of logic, the comment by Mahoney JA reverses the logical effect of that stated by Knox CJ and Dixon J. But, with respect, that is not the effect of the comment. In the manner in which the last sentence of the cited passage from Fabre v Arenales is intended, in my view, there is no distinction between drawing an inference "if general human experience will not be contradicted" or not drawing an inference, unless human experience would be contradicted if it were not drawn.
The drawing of inferences in civil and criminal proceedings was explained by Sir Frederick Jordan CJ, in Carr v Baker [1936] SR (NSW) 301 at 306-307. At 306, the learned Chief Justice said:

“In a Court of justice, the question whether a particular fact has been proved must be determined by considering evidence and seeing whether the existence of the fact is probable in the light of that evidence. In a civil matter, it is necessary, in order that a fact may be regarded as established, that the evidence should be such that it is more probable that it exists than that it does not. The position is the same whether the evidence is direct or circumstantial: …. In a criminal matter, it is necessary, if the fact is to be proved by the prosecution, that the evidence should be such that not only is it more probable than not that the fact exists, but that there is no reasonable probability that it does not: it must be proved that it is so probable that no reasonable doubt exists that it is the fact: ….
It has been clearly and emphatically laid down … that in no case can a fact be regarded as established unless its existence is at least a reasonable inference from some matter proved in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not of conjecture: …. The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability - a mere scintilla of probability such as would not warrant a finding in a civil action: … to such practical certainty as would justify a conviction in a criminal prosecution. …
It is well established that if there is no piece of evidence which, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established: …. This situation may arise in two different ways. First, there may be no piece of evidence which suggests that the existence of the fact is more than possible. In such a case, since there is nothing to show whether the existence of the fact is probable or not, it is just as likely that it does not exist as that it does. There is no probability either way; and nothing equals nothing. … There may, however, be a case in which the evidence is such that in some aspects it raises a probability that the fact exists, and in other aspects it raises a probability that it does not. If, in such cases, the two countervailing probabilities are in perfect equipoise, the fact cannot be treated as established.”

Of course the foregoing refers to the availability of inferences and whether they should be drawn. When, as is usual in criminal trials, the factual issues are determined by a jury and there are two reasonable views to be taken of the evidence, it is a matter for the jury to determine which of the inferences should be drawn. In this case, it is for the Court, as presently constituted, to make that judgment.

Evidence

Evidence was adduced by the Crown from:

Lyndal Archbold, the partner of the deceased at the time of the shooting, who was present at the scene of the shooting;

Michelle Anthoni, the sister of the deceased;

Susan Frichot, another sister of the deceased;

Salima (also known as Sally) Eid, the mother of the deceased;

Esther Rice-Clarke, a one-time friend of the accused, Ms Spiteri-Ahern, in or around 2013;

Tom Jones (a pseudonym), the driver of the vehicle in which Mr Haile was delivered to and taken from Ms Eid’s premises on the night of 30 October 2013;

Jack Merhi, Ms Eid’s partner at the time of the murder;

Jessica Hallowran-Barrow, an occupant of another unit in the unit complex on Dunmore Street, Pendle Hill at the time of the murder;

Madeleine Krausmann, another occupant of the unit complex;

Roukayah Elrich, a person in a relationship with Daniel Haile, the alleged shooter, at the time of Mr Haile’s arrest, who was present at the time of his arrest;

Bradley Park, an old school friend of Mr Pasnin;

Bradley Parkes, a neighbour of Mr Pasnin at Guildford;

Michelle Clarke, mother of Esther Rice-Clarke;

Marko Pehar, the manager of a drug syndicate or syndicates which involved Ms Spiteri-Ahern and Mr Haile, in 2013;

Neil Nik Chow, a solicitor who represented Ms Barber at a bail application in June 2014;

Sione Pese, a friend of an occupant at the Dunmore Street unit complex;

Melissa Simms, an occupant of the unit block at Clyde Street, Guildford, on the night of the murder;

Anthony Nohra, a good friend of Mr Pasnin, as at the time of the shooting; and

Kumar Govindasamy, an employee of Woolworths, who produced records concerning Ms Barber’s attendance at Woolworths on 30 October 2013.

Further, there were a number of police officers and experts:

Dr Rianie Van Vuuren, who performed the autopsy on the deceased;

Detective Senior Constable Villanueva, who was involved with the investigation of allegations by Ms Spiteri-Ahern;

Senior Constable Way, attached to Wyong Police Station and was attached to Toukley Police Station as at 5 September 2013, when the deceased was required to report for bail;

Senior Constable Greentree, who was attached to Wyong Police Station and involved when it was reported that Ms Spiteri-Ahern was self-harming by stabbing herself and went to hospital;

Senior Constable Burgess, currently attached to State Crime Command, who retrieved data for mobile phones;

Detective Senior Constable Carter, who was officer at the scene of the shooting on 30 October 2013;

Detective Senior Constable Best, also an officer at the crime scene on 30 October 2013;

Detective Senior Constable Jamie Quinn, currently based at Holroyd, who was assigned the role of exhibits officer, in the morning of 31 October 2013 (the day after the shooting);

Detective Senior Constable Palmer, State Crime Command, Homicide Squad, who gave evidence in relation to intercepted telecommunications;

Detective Senior Constable King, State Crime Command, Homicide Squad, who gave evidence in relation to the establishment of the crime scene;

Detective Senior Constable Mason, currently based in Robbery and Serious Crime Squad, who was second in charge of the investigation and has been involved in the investigation since the Police became involved; and

Detective Sergeant Moynihan, Homicide Squad, officer in charge of the investigation since the early hours of the morning of 31 October 2013.

The evidence of Dr Van Vuuren establishes that the deceased, Mr Pasnin died from a gunshot wound. The fatal bullet wound passed through the deceased’s left arm, just above the elbow, exited the wound on the inside of the arm and re-entered the body at the ribcage, passing through the aorta and coming to rest, after travelling through the body almost horizontally, just inside the rib-cage of the deceased on the front right side.
The wound was fatal because of the fact that the bullet passed through the aorta. Having been shot, adrenalin is usually released and that may cause the “fight or flight” reaction and allow a person, who has otherwise been fatally injured, to run a short distance or perform another task for a short time. The person would not necessarily, or usually, just fall to the ground.
This provides the medical expert evidence to explain what has otherwise been described as occurring on the night in question. It is necessary to describe that other evidence. I will first deal with the guilt of Mr Haile, which is a necessary element in the charges against Ms Spiteri-Ahern and, in my view, consequently, necessary in the conviction of Ms Barber and, perhaps, Mr Zraika. I do not intend to summarise all of the evidence, but rather, its effect.
The witness, Tom Jones, attested to the movements of Mr Haile on the night of 30 October 2013. His evidence is corroborated by evidence of call charge records, CCTV footage and, to a lesser degree, Ms Archbold.

Initially, according to Mr Jones’ evidence, Mr Jones was to have driven Mr Haile on the night of 29 October 2013. That arrangement was cancelled and rearranged for the night of 30 October 2013.
Mr Jones drove Mr Haile to the scene of the shooting at Dunmore Street, on the first occasion, about an hour or so before the shooting. Mr Jones collected Mr Haile at Merrylands after he had been contacted by Mr Haile reminding him that he, Mr Jones, had agreed to drive Mr Haile at 10:15 PM.
At that time Mr Haile rang Mr Jones in a telephone conversation in which, according to Mr Jones, he was asked as to his whereabouts. Mr Jones hurriedly drove to Merrylands to collect Mr Haile. Mr Haile placed a bag of clothes in the back of the car and sat in the front passenger’s seat.
They drove to Goodall Street, Pendle Hill and parked the car in Goodall Street, just around the corner from the unit block in Dunmore Street. Mr Haile alighted and left the car.
The next fact which is proved directly is that Ms Barber arrived at the Dunmore Street unit block shortly after 10:55 PM on 30 October 2013, and after having made a call at about that time, to have Mr Pasnin deliver their child to the car that she, Ms Barber, was driving.
The deceased brought their young child to Ms Barber in the car and Ms Barber departed.
Approximately half an hour after he had left the parked car, Mr Haile returned to the car in which Mr Jones was waiting. Mr Jones had been using his computer while he was waiting for Mr Haile. Mr Haile was "cursing" a woman, described by Mr Haile as "some bitch". Mr Haile then said:

"I feel like slapping the bitch. She told me he was meant to be there, he was going to be there." (Transcript 831, line 20)

The foregoing statement was made by Mr Haile angrily and Mr Haile requested Mr Jones to drive back to Merrylands. There was a discussion about shortage of petrol; Mr Jones filled up the car; and he returned to the same place at Merrylands from which he had collected Mr Haile. Mr Haile told Mr Jones that he was going to "ring her up" and said to Mr Jones:

"I saw a guy with a baby in his arms. I don't know if that was the person I was meant to see" (Transcript 834 line 18-20).”

Mr Haile asked Mr Jones to wait while he called and for that, it seems, Mr Haile needed to go inside the units because he told Mr Jones that "her number is inside".
Mr Jones waited. Mr Haile returned and was described as "happy". He said to Mr Jones, "Can we go back there? He’s there, the man with the baby was the one I was supposed to see". Or Mr Haile said, "the guy with the baby is who I was supposed to see, can we go back?"
Mr Haile and Mr Jones returned to the corner of Dunmore and Goodall Streets and Mr Jones parked the car in the unit block across the road from the location at which he last parked; this time in the actual entrance to the units in Goodall Street. Mr Haile told him to wait there as he wouldn't "be long".
Mr Haile left the car and walked in the same direction as he had previously. Mr Jones was out of the car, urinating, when he heard gunshots. His evidence is uncertain as to the number, whether five or six, but he describes the number as "a few". The gunshots came from 5 to 10 metres away on the other side of the fence behind Mr Jones, in the block of units next to the one in which he had parked the car.
Mr Jones returned to the car straight away; started it; and put it into gear. Mr Haile came running around the corner from the direction in which he had left but he had cut through the block of flats/units from approximately midway between directly in front of the car and directly to the right of the car. Mr Haile jumped in the car.
Mr Jones asked him what that was all about and Mr Haile said "just be quiet, be quiet and go". He said go a few times and used the term "quick, go". Mr Jones asked whether he, Mr Haile, was shot at and Mr Haile answered, "no, no, no, just quiet, just be quiet, just drive".
As Mr Jones was driving; Mr Haile changed his clothes; being everything except his underwear, including, pants, shoes, top, and whatever else he was wearing. The change of clothes was obtained from the bag that Mr Haile had placed behind the passenger seat in the car. After changing, Mr Haile was wearing shorts and a different coloured top; the opposite of or very different from what he had previously been wearing.
Mr Haile placed the clothes that he had removed into the bag. Mr Jones said to Mr Haile, while he was undressing, "what the fuck did you get me into?" He said, "it's all good, no one saw nothing, it's all good. He was a paedophile anyway, but I fucked up".
Mr Jones asked "how did you fuck up?"; and was told that there was a wrestle and Mr Haile had slipped and cut his finger; it was bleeding; his left hand was bleeding. Mr Jones noticed the blood and the wounds on Mr Haile’s left hand.
Mr Jones observed a semi-automatic handgun tucked into the belt area on Mr Haile, who asked what should he do with it and to which Mr Jones responded that Mr Haile should leave it with him and that he, Mr Jones, would take care of it. Mr Haile requested Mr Jones to burn the clothing, which was the clothing originally worn by Mr Haile that had been placed into the bag and was now located in the front seat.
It is appropriate to note that Mr Jones testified that he was concerned that he had been set up and that he was concerned that Mr Haile had a gun, as he, Mr Jones, did not trust Mr Haile. Mr Jones placed the bag, with the clothing in it, in a shed at his own house, somewhat concealed, and, later, heard news that there had been a fatal shooting at Pendle Hill, which he assumed, or concluded, was that which had occurred when he was waiting for Mr Haile.
Mr Jones rang the police and told them that he had been involuntarily involved in the shooting at Pendle Hill and that he had a bag with the clothes in it. Mr Jones met with the police and gave them the bag, with which he had not tampered, and which he said he had tried not to touch too much.
Mr Jones then rang Mr Haile and told him that the police had seized his car and the bag of clothes was in the car at the time of the seizure.
The inside of Mr Jones’ car and the clothing of Mr Haile in the bag were the subject of testing. That testing revealed DNA not inconsistent with Mr Haile’s DNA and fingerprints of Mr Haile. The clothing also revealed gunshot residue.
Even without the evidence of Ms Archbold and Mr Pehar, the irrefutable inference from the evidence of Mr Jones together with the scientific evidence, which I accept fully, is that Mr Haile shot and killed the deceased.
The evidence of Mr Jones upon which the Court relies is the direct observations of Mr Jones. It is unnecessary, in drawing the inference beyond reasonable doubt that Mr Haile shot and killed Mr Pasnin, to rely upon the words spoken by Mr Haile. As a consequence, regardless of whether the conversation between Mr Haile and Mr Jones is admissible in the trial of Ms Spiteri-Ahern, Ms Barber or Mr Zraika, for the purposes of each of those trials, the Court concludes, beyond reasonable doubt, that Mr Haile shot and killed Mr Pasnin and did so with an intention, at least, to cause grievous bodily harm. The intention can be and is inferred from the shooting itself and the lack of provocation or communication.
The Crown has proved, beyond reasonable doubt, that Mr Haile killed Mr Pasnin. Further, Mr Haile did so with the requisite intention and the Crown has proved, beyond reasonable doubt, that Mr Haile is guilty of murder.
It should be noted that Mr Haile has been convicted of murder, but that fact is not relevant to (and cannot be used as evidence of) any element in any of the trials before the Court currently.
Lastly, in relation to the proof of guilt of Mr Haile, I should comment on the evidence of Mr Jones. It is submitted that Mr Jones should not be believed as a consequence of the warning that the Court gives itself as to his evidence under s 165 of the Evidence Act 1995. That warning is based, it is submitted, upon the fact that Mr Jones’ evidence has been induced by an offer of assistance and because of his involvement in the criminal activity.
First, the warning, in relation to dealing with drugs and the enforcement of drug debts, in which Mr Jones was involved, and the effect it would have on his veracity, is one which the Court acknowledges. Secondly, on the evidence before the Court, Mr Jones was not involved in any of the criminal activity associated with the murder.
However, it would seem, and this is a possible inference from some indirect evidence, that Mr Jones thought he was driving Mr Haile for the purpose of obtaining a drug debt. As a consequence, it may be that he was involved in the conduct, albeit without knowing the full extent of that which was to occur. Further, there are possibilities that the infliction of grievous bodily harm could be a contemplated effect of an unsuccessful (or less successful) attempt to enforce a drug debt.
Nevertheless, Mr Jones had not contemplated a shooting, the infliction of grievous bodily harm or any harm in the course of his agreement to drive Mr Haile to the address requested. I do not accept, even on the balance of probabilities, that Mr Jones was involved in the criminal conduct, being the murder, the shooting of the deceased or the infliction on the deceased of grievous bodily harm.
If Mr Jones were involved, in the way described in his evidence, because he had understood that a drug debt was being collected, the warning I have given myself, together with the knowledge that comes from the experience of a person involved in hearing and seeing such witnesses, does not affect my assessment of his evidence.
Thirdly, again, on the evidence before the Court, the Court does not accept, even on the balance of probabilities, the evidence given by Mr Jones is given as a result of inducement. At the time that the statements were made to the Police and the bag of clothes handed over to them, no inducement had been offered. The later letter of comfort provided in relation to a quite separate offence is the result of the assistance and evidence given by Mr Jones, not the cause of it, in whole or in part. Again, even if the Court were incorrect in that assessment, it does not affect my view of the evidence given by Mr Jones, which is accepted in full.
As earlier stated, Mr Jones volunteered the information to the police; handed over the bag of clothes belonging to Mr Haile; and otherwise assisted without prompting. I accept that Mr Jones was a person who would probably have been aware that assistance to the police would stand him in good stead in relation to any other offences, but, in my view, that did not affect the veracity of his evidence. His demeanour was such that I accept his evidence wholly.

Ms Louise Spiteri-Ahern

As earlier stated, the guilt of Mr Haile is an element that the Crown is required to prove beyond reasonable doubt in order to prove the guilt of Ms Spiteri-Ahern. It has proved that aspect to the requisite standard.
I have determined that the evidence of the statements by Mr Haile, which, together with other material, may directly or indirectly prove the identity of the participants in the joint criminal enterprise, is, at least for the period between the commencement of his joint criminal enterprise and the time at which all of the acts necessary for its execution have been completed, admissible for that purpose. In particular, the statements by Mr Haile to Mr Jones, between the time of his first collection and the time of the shooting, are admissible against Ms Spiteri-Ahern, in order to prove her participation in the joint criminal enterprise with Mr Haile, and, to the extent that her participation is accepted, to prove her guilt and the terms of the agreement.
Call charge records show significant contact between Ms Spiteri-Ahern and Mr Haile. Further, call charge records corroborate Mr Jones' account that he waited in the car and used the internet (see Ex C29, 182 and 183).
On Mr Jones' evidence, which the Court accepts, Mr Haile returned to the car and was cursing "some bitch". The evidence has been recited earlier. Mr Haile indicated to Mr Jones that "she" had told him that the person was to be there, which, while second-hand from Mr Jones, is accepted as accurately disclosing the terms of what was said to Mr Jones and, in turn, is evidence of what was said by a participant in the joint criminal enterprise as to aspects of the manner in which the common purpose would be executed.
Mr Haile said to Mr Jones that he had seen "a guy with a baby in his arms" and did not know if that was the person; requested that Mr Jones drive him back to the unit; and informed Mr Jones that he was going to ring "her" to find out why the person wasn't there. On an offer from Mr Jones for Mr Haile to use Mr Jones' phone, Mr Haile replied in the negative and said that "her number" is inside (transcript page 835.1).
The phone call records indicate that the person Mr Haile rang was Ms Spiteri-Ahern. The conversation between Mr Haile and Mr Jones proves that the other participant in the joint criminal enterprise was female and that it was that participant that Mr Haile was going to contact to ensure the correct identification of the target of his attention. The call records prove that it was Ms Spiteri-Ahern that Mr Haile rang.
A number of issues arise. First, Mr Haile may have had a mobile phone. Secondly, Mr Haile had rung Ms Spiteri-Ahern on a number of occasions and it is more probable than not that Ms Spiteri-Ahern's phone number was recorded in his mobile telephone, if he had it on him. Why, then, was it necessary for Mr Haile to go inside to get Ms Spiteri-Ahern's number?
The answer to that question may not necessarily assist Ms Spiteri-Ahern. The fact is that Ms Spiteri-Ahern was the only relevant person contacted. Secondly, as an objective fact, on the evidence of Mr Jones, we know that Mr Haile went to the premises on the first occasion and saw a person carrying a baby and went back and, on the findings this Court has made, shot the deceased. Whether, as a matter of rationality, he should have known Mr Pasnin, or knew him before, or knew he was carrying the baby, is largely irrelevant. Those facts are, given the evidence that is accepted, uncontentious.
Further, given that Mr Jones was unaware that Mr Haile intended to shoot the deceased, it is unlikely that Mr Haile would call the other participant in the joint criminal enterprise in the presence of Mr Jones. Mr Jones has accurately recalled the evidence, but that statement, as to the location of the other participant’s number, was more probably than not a falsehood of Mr Haile, so that Mr Haile could make a private phone call and deal with the details of his target and confirm his identity.
The shooting itself is relatively uncontroversial. As earlier stated, Mr Pasnin died from a gunshot wound. Further, the evidence of Ms Archbold as to how that occurred is relatively uncontroversial and in many aspects corroborated.
Mr Haile came out of the shadows and shot Mr Pasnin, without any relevant warnings. There was no conversation about drug debts; there was no conversation about any other matter. Mr Haile then took flight and Mr Pasnin chased him for a short time, struggled with Mr Haile and then collapsed on the ground (Transcript 78, 79-81 and 83). Ms Archbold sought to revive him or keep him awake. All of those latter matters are corroborated by independent witnesses.
There is no known motive for Mr Haile to kill Mr Pasnin. On the evidence before the Court, it seems that Mr Pasnin did not owe a drug debt for which Mr Haile would, or could, be a collector.
On the other hand, it is abundantly clear that Ms Spiteri-Ahern was the person informed by Ms Barber (whose guilt I will discuss later in these reasons) of the whereabouts of Mr Pasnin. The call charge records, together with the other evidence in the proceedings, allow the Court to conclude, beyond reasonable doubt, that Ms Spiteri-Ahern relayed the information, in relation to Mr Pasnin's whereabouts, to Mr Haile.
When taken together with the comments of Mr Haile as to the identity of the target and the person whom he called in order to verify the target, there can be no reasonable doubt that Ms Spiteri-Ahern was the person who identified the target and agreed with Mr Haile either to kill Mr Pasnin or inflict on him grievous bodily harm.
Ms Spiteri-Ahern had a motive and had expressed significant animosity towards the deceased. She accused him of having stabbed her. He certainly caused her great pain, physically and emotionally. Whether or not Mr Pasnin stabbed Ms Spiteri-Ahern, the accusation discloses a motive possessed by Ms Spiteri-Ahern to injure seriously the deceased.
Ms Archbold and Ms Eid gave evidence of threats made to Mr Pasnin or to them regarding Mr Pasnin. Ms Rice-Clarke gave evidence of an expressed intention by Ms Spiteri-Ahern to kill Mr Pasnin. It is necessary to explain that evidence and its acceptance more fully.
First, I deal with the evidence of Ms Archbold. There were some aspects of Ms Archbold's evidence that were less than satisfactory. However, the evidence upon which the Court relies in these proceedings to determine the guilt of Ms Spiteri-Ahern is not in that category.
The area in which Ms Archbold’s evidence is most contentious is in the area of identification. The Court acknowledges that identification evidence is particularly difficult and warns itself in relation to such evidence.
As politically incorrect as this may sound, studies on identification evidence disclose that identification of a person from a different racial group is significantly more difficult than identification of a person from the same or similar racial group.
Even within the same racial group, identification is notoriously difficult. Of course, that warning and that difficulty does not apply to persons who are well-known to the identifier or known to the identifier in a way that allows identification more readily.
I do not accept Ms Archbold’s identification of Mr Haile as the person from whom drugs were obtained earlier in the night or as one of the "Freddie's" (the generic name given to the organiser of drug deliveries). Her delay in identifying the shooter, whom she saw, as the person whom she had seen earlier in the evening, is significant.
Further, I accept that the faces seen on the various nights would, in the mind of Ms Archbold, merge. It would be impossible, at this point in time, to accept, without significant caution, the identification by Ms Archbold of the shooter, Mr Haile, as the person from whom drugs were obtained earlier and, although less so, the person who was seen "in the shadows" at an earlier time in the evening.
That is not to say that the identity of the person in the shadows in the staircase earlier in the evening was not Mr Haile. It simply means that Ms Archbold’s evidence as to that identification should not be accepted.
Further, the conclusion of the Court that Ms Archbold’s evidence on the identification of Mr Haile, as the person from whom drugs were obtained that evening, ought not to be accepted explains some tension in the evidence otherwise adduced. If, as suggested by Ms Archbold, Mr Haile knew Mr Pasnin (and vice-versa), then why would it be necessary for Mr Haile to have his identity confirmed?
The answer lies in the evidence itself. The only evidence that suggests that Mr Haile knew Mr Pasnin is the evidence of Ms Archbold as to identity. Even that evidence of knowledge is ambivalent.
At page 68 of the transcript, the evidence of Ms Archbold as to the purchase of drugs at an earlier time in the evening is given. Ms Archbold says that she had not seen that person before and did not know him.
Assuming, for present purposes, but not deciding, that the person from whom drugs were bought was Mr Haile, the exchange of nods (or, as given, the nod of acknowledgement by Mr Pasnin) does not necessarily involve the conclusion that the person was known. As demonstrated in Court, it was just as consistent with an acknowledgement to a person, who was not known, that there was nothing untoward in the presence of Mr Pasnin in the car at the time that the drug deal was being effected. Further, the statement by Mr Pasnin to Ms Archbold to the effect that he knew the dealer involves two possibilities. Mr Pasnin knew him from former purchases of drugs, in which case Mr Pasnin may have known the person, but the person not known (or remembered) Mr Pasnin. Secondly, the dealer was not Mr Haile.

While the Court deprecated the description of Mr Haile as "Middle Eastern", the description is not one that necessarily meets the description of Mr Haile. On one view of the term it may. The Court points out that Mr Haile is not so dark in skin colour that the term would be wholly inappropriate. Nevertheless, he is darker than one would normally associate with the term "Middle Eastern".
In relation to the evidence of Ms Rice-Clarke, I accept the evidence given as to the statements made by Ms Spiteri-Ahern when both were in a rehabilitation facility. Further, I accept Ms Rice-Clarke’s evidence relating to the conversation in June or July 2013, between Ms Rice-Clarke and Ms Spiteri-Ahern, particularly as to the allegation that she had been stabbed by Mr Pasnin in the leg and that she was going to have Mr Pasnin bashed or killed. Mr Pasnin was not named, but the identity of Mr Pasnin is obvious.
There is a recorded telephone conversation between Ms Rice-Clarke and Ms Spiteri-Ahern (21 November 2013, Ex C13 and Ex C14) in which Ms Spiteri-Ahern corroborated the fact that Ms Rice-Clarke would have known of the problems she was having in Court and the difficulty she was having, in particular, with her "ex". This indirectly supports the occurrence of the conversation in the rehabilitation facility.
Further to the foregoing, the conversations, between Ms Rice-Clarke and Ms Spiteri-Ahern at the rehabilitation centre, included a conversation during which Ms Spiteri-Ahern raised the desire to have her former partner killed, while he was in gaol. Each of the foregoing conversations is accepted.
The Court also accepts the terms of the conversation that occurred between Ms Spiteri-Ahern and Ms Rice-Clarke that occurred sometime after the conversation on 21 November 2013. In that conversation, conducted, as it was, in person, Ms Spiteri-Ahern directed Ms Rice-Clarke to keep her mouth shut about the "Pendle Hill shooting".
Further, in that conversation, Ms Spiteri-Ahern was, according to Ms Rice-Clarke, using words the effect of which were that it was because of her (Ms Spiteri-Ahern) that he (Mr Pasnin) was shot, identifying the shooter as a friend from a gang and further saying that she (Ms Spiteri-Ahern) organised it and that it was like a drive by shooting (see transcript page 456). I accept that conversation occurred and is an admission by Ms Spiteri-Ahern.
It is accepted that Ms Rice-Clarke was unreliable on issues of dates and when, in terms of a number of conversations, a particular conversation occurred. I do not accept that Ms Rice-Clarke was unreliable on the terms of the conversations.
It is general human experience, and certainly the experience of those with experience of witnesses, that after four years, (Ms Rice-Clarke was not called to give evidence in the first trial) the timing of events will be uncertain and when a number of conversations occur people will merge the conversations in a way that renders imprecise the relative timing of the conversation.
However, taking that and the warnings one must give in relation to Ms Rice-Clarke and her state when in the rehabilitation centre into account, Ms Rice-Clarke's demeanour and evidence was truthful, believable and, in terms of the words in the conversations, reliable.
While Ms Rice-Clarke's relative timing of particular conversations and events may have been imprecise, the terms of the conversation in the rehabilitation centre and the terms of the conversation that occurred after 21 November 2013, and during which Ms Spiteri-Ahern made admissions, were precise. The words in that last mentioned conversation could not have been used at a time prior to 30 October 2013 and the shooting of Mr Pasnin.
Some of the criticism of Ms Rice-Clarke's timing is not accepted. But, for the reasons already outlined, it matters not.
There was some attitude by Ms Rice-Clarke to Ms Spiteri-Ahern, based upon Ms Rice-Clarke’s perception that Ms Spiteri-Ahern had set up Ms Rice-Clarke for an offence that Ms Rice-Clarke did not commit. In the cross-examination, at one stage, it was suggested that Ms Spiteri-Ahern had not set her up and that the offence was, in truth, committed by Ms Rice-Clarke. If that were the case, then Ms Rice-Clarke would know that and there would be no animosity from her towards Ms Spiteri-Ahern.
On the other hand, the basis for that proposition involved the date of a fraud and the date of an offence. The offence itself did not, on the material before the Court, involve the fraud that was alleged.
However, it is fair to say, as earlier stated, that the cross-examination disclosed that Ms Rice-Clarke's timing of events was, to say the least, imprecise. Of itself, given my acceptance of her evidence as to the words in the conversations, the timing of them makes little difference.
It is not unusual for persons or a witness to confuse the timing of events or the occasion when words were used, but to remember the words (particularly words of some moment) precisely. That, in the conclusion of the Court, is the situation in relation to the evidence of Ms Rice-Clarke.
Those admissions by Ms Spiteri-Ahern, once accepted, are sufficient to convict her.
There is, however, other evidence. The evidence before the Court from a combination of recorded telephone conversations and the evidence of Mr Pehar is that Ms Spiteri-Ahern was required to pay an amount of money to Mr Haile. The amount of which there is evidence is $4000. There is no relevant arrangement, including the sale of drugs, for which Ms Spiteri-Ahern was otherwise required to give money to Mr Haile.
The combination of all of these factors proves, beyond reasonable doubt, that Ms Spiteri-Ahern was a participant in a joint criminal enterprise with Mr Haile, in which, for payment, Mr Haile agreed with Ms Spiteri-Ahern that Mr Haile would engage in criminal conduct himself (the conduct is the subject of analysis below) and, for her part, Ms Spiteri-Ahern would provide the location of the target, being Mr Pasnin. Ms Spiteri-Ahern gained that information from Ms Barber, but Ms Spiteri-Ahern was the motivating person who procured Mr Haile and, separately, Ms Barber.
The conduct was the shooting. No other conduct was involved, certainly on the part of Mr Haile. There is no motive, on the part of Mr Haile, to injure Mr Pasnin. There is motive for Ms Spiteri-Ahern to injure Mr Pasnin.
However, the Crown has not proved beyond reasonable doubt that the object of Ms Spiteri-Ahern's arrangement with Mr Haile was killing, rather than the infliction of grievous bodily harm. The fatal wound first entered through the arm and may not have been intended to kill. On the other hand, more than one shot was fired, which points to such an intention. For the purpose of these proceedings, as to verdict, that distinction is irrelevant. No other reasonable hypothesis arises from the evidence.
Ms Spiteri-Ahern was a participant in a joint criminal enterprise with Mr Haile, the common purpose of which resulted in the shooting of Mr Pasnin either because of an intention to cause grievous bodily harm or an intention to kill. The Court so finds and the Court finds that Ms Spiteri-Ahern is guilty as charged.

Ms April Barber

As earlier stated, the charge against Ms Barber is for accessory before the fact of murder. The nature of such an offence has already been discussed. Essentially, the Crown alleges that Ms Barber "set up" the deceased and did so pursuant to an agreement with Ms Spiteri-Ahern.
An element of the offence against Ms Barber is that Ms Spiteri-Ahern is guilty of murder. However, all of the evidence against Ms Spiteri-Ahern is not admissible in the proceedings involving Ms Barber.
Thus, evidence relating to the payment of $4000 to Mr Haile is not evidence on which the Crown can rely in the proceedings against Ms Barber. Nor, in circumstances where Ms Barber is not said to be in a joint criminal enterprise with Mr Haile, can the statements of Mr Haile uttered during the existence of his joint criminal enterprise with Ms Spiteri-Ahern, be admitted against Ms Barber. Most of the foregoing was clarified and/or decided during the course of the proceedings.
Nevertheless, even on the limited evidence admissible in the proceedings before the Court relating to Ms Barber, it is clear that Ms Spiteri-Ahern is guilty of the offence of murder. The Crown has proved the guilt of Ms Spiteri-Ahern, although without the statements of Mr Haile that were admitted in the proceedings against Ms Spiteri-Ahern, there may be some doubt. It in unnecessary to resolve that issue.
The issues of far greater contention relate to the purpose of Ms Barber in assisting Ms Spiteri-Ahern. The Court has already stated, during the course of discussing evidence upon which it has relied in the charge against Ms Spiteri-Ahern, that it accepts that Ms Barber "set up" the deceased.
It is necessary to reiterate that the deceased and Ms Barber were parents of a child “Miss A”. There were continuing issues as to custody of Miss A and the extent of access by the deceased.
Initially, Ms Barber contacted the deceased and sought to have him collect Miss A on 29 October 2013. Because the deceased had conditions on his parole that required him to live at an address in the Central Coast, the deceased was unable to collect Miss A on that date. The deceased informed Ms Barber of that fact.
The incidence and timing of the communications between Ms Barber and Ms Spiteri-Ahern render Ms Barber’s explanation that the information provided by her to Ms Spiteri-Ahern, as to the whereabouts of Mr Pasnin, being an innocent divulging of the information, unbelievable. It defies common sense.
Ms Barber, in her ERISP, testifies that she was the only person that utilised her mobile phone. Subject to a later, seemingly invented proposition that her children or one of them may use the phone, Ms Barber was adamant that she, and only she, ever utilised the phone that was the subject of evidence in the proceedings. (Ex C27 and C28, Question and Answer 526; and 623-626; and 653)
There were communications between Ms Spiteri-Ahern and Ms Barber on 29 October 2013 that account for an initial arrangement that the set up was to occur on 29 October 2013, but was altered at the last minute. Further, the contact on 30 October 2013 was significant.
There was a meeting at Woolworths on that evening. The Court needs to trace back through versions of Ms Barber as to what was said and done.
Initially, Ms Barber maintained that she did not have contact with Ms Spiteri-Ahern during the night of 30 October 2013. That statement included denying that there was a meeting between them and denying that there was telephone contact.
Later, Ms Barber agreed that she had a conversation with Ms Spiteri-Ahern, when they met at Woolworths, at or around 10:05pm, in which, according to Ms Barber, she said to Ms Spiteri-Ahern that she (Ms Barber) was going to collect Miss A from the deceased's mother's house at that time.
The initial "recollection" of that conversation was vague and lacking in detail. Nevertheless, later during the course of the ERISP, Ms Barber suddenly recalled the terms of a different conversation and the fact that Ms Barber had informed Ms Spiteri-Ahern of the whereabouts of the deceased and when he would be handing over Miss A.
I accept the submission of the Crown that these later attempts were Ms Barber's tailoring of events to fit that which she had become aware was within the knowledge of the police investigating the issues.
Further, the notion that this number of contacts were made as part of an innocent or irrelevant event defies reasonableness and reason.
On the evidence accepted by the Court, Ms Barber lied to the deceased about her whereabouts in order to explain the need to insist upon the deceased exchanging Miss A at a particular location. Ms Barber said she was in Wollongong. It was deliberately false.
Further, there are a number of falsehoods within the statements given to the police and within the ERISP, after the murder. Ms Barber's account of what occurred is unbelievable. The circumstance that the conversations with Ms Spiteri-Ahern occurred in relation to 29 October 2013 and then a number of them in relation to 30 October 2013 put beyond coincidence the notion that most of Ms Barber's contact with Ms Spiteri-Ahern and her divulging the whereabouts (or arranging the whereabouts) of Mr Pasnin was innocent. The calls and their timing could not be coincidence.
The lies told to the police by Ms Barber are relied upon by the Crown as a consciousness of guilt. The ERISP is itself, inconsistent in the versions given. Accepting, without at this stage deciding, that it can be relied upon in that way, the issue of whether the lies amount to a circumstance that the Court should utilise as evidence against Ms Barber depends upon different concepts than is usually the case.
The Court has, as earlier described, come to the conclusion, beyond reasonable doubt, that Ms Barber deliberately set up Mr Pasnin. All of the circumstances disclosed in the evidence before the Court make that abundantly clear. However, the question that is more problematic, from the point of view of the Crown's case against Ms Barber, is for what purpose, in her mind, did Ms Barber set up Mr Pasnin?
The conclusion to which the Court has earlier referred, namely, that Ms Barber deliberately set up Mr Pasnin, carries with it a number of inferences. First, the circumstances and nature of the covert contact between Ms Barber and Ms Spiteri-Ahern points irrefragably to the conclusion that the meeting between Ms Spiteri-Ahern (or a person sent by Ms Spiteri-Ahern) and Mr Pasnin was to relate to a matter not in the interests of Mr Pasnin. Were it otherwise, Ms Spiteri-Ahern could have contacted Mr Pasnin and arranged, herself, to meet with him. That much must have been known by Ms Barber.
Further, the arrangement for Mr Pasnin to be at a particular location at a particular time must have been for the furtherance of issues that could not be dealt with within the law or legally. Otherwise the need to locate Mr Pasnin at a time and place would be wholly unnecessary. That, too, would have been known to Ms Barber.
As a consequence, and bearing in mind the limitations that must be applied to the drawing of inferences in criminal proceedings, it would defy common sense, for that which was being arranged by Ms Barber (being the location and placement of Mr Pasnin at a particular time), to be in Ms Barber’s mind for an arrangement to which Mr Pasnin would otherwise have consented or for some purpose that was legal or legitimate.
The Crown alleges that the criminal purpose was the inflicting of grievous bodily harm on Mr Pasnin. Bearing in mind, in particular, the comments of Sir Frederick Jordan as to the drawing of inferences, the question must remain as to what the Crown relies upon to establish Ms Barber's knowledge that the purpose was to inflict grievous bodily harm or to kill.
The Crown proved that it is unlikely, if not impossible, that Mr Pasnin would have owed Ms Spiteri-Ahern money on account of the purchase of drugs. It is, as a matter of fact, not the case that the confrontation with Mr Pasnin was to be or was for the purpose of obtaining a drug debt or even for the making of a threat. That was known to Mr Haile and to Ms Spiteri-Ahern. Was it known to Ms Barber?
On the evidence that the Court accepts, there are reasonable inferences available that in Ms Barber’s mind, the confrontation with Mr Pasnin was to be a threat, without violence: on account of a drug debt; on account of domestic issues; or any one of a number of unwanted, unsolicited and uninvited approaches to Mr Pasnin by either Ms Spiteri-Ahern or someone with whom she was in contact.
The Crown has not proved, beyond reasonable doubt, that Ms Barber was aware that the information she was providing to Ms Spiteri-Ahern was for the purpose of inflicting grievous bodily harm or for the purpose of killing him. If, as is alleged by the Crown, there was a common purpose between Ms Spiteri-Ahern and Ms Barber to "set up" Mr Pasnin, the question remains: “set up” for what purpose?
The Court makes clear that there is a real and reasonable suspicion that Ms Barber knew the purpose of the confrontation, at least to the point of the infliction of grievous bodily harm. Indeed, on the material before the Court, Ms Barber, more probably than not, knew the purpose of the confrontation. But the Court cannot be satisfied, beyond reasonable doubt, that Ms Barber knew of Ms Spiteri-Ahern’s purpose at the time that she set up Mr Pasnin.
One of the issues upon which the Crown relies in sheeting home to Ms Barber responsibility for this offence (and knowledge of that which was to occur) is the content of conversations between Ms Barber and Mr Zraika. There are a number of matters in this regard that are relevant.
First, over objection, these conversations were admitted. The objection related to whether the conversations were admissible because of the violence in the domestic relationship between Mr Zraika and Ms Barber and the effect of that violence on the making of the admission. The Court has ruled them admissible.
Notwithstanding the unusual circumstances of a judge alone trial, the Court is still required to bifurcate its role. It is necessary to distinguish between that which is admissible, as possibly rendering more probable the existence of a fact in issue, and that which is used by the Court to prove the existence of a fact in issue.
There is little doubt that the terms of the conversations that are in evidence involve admissions by Ms Barber that her conduct had the effect that it "set up" Mr Pasnin. Relevantly for later purposes, those conversations also prove that Mr Zraika was aware that Ms Barber had set up Mr Pasnin.
The difficulty in using these conversations as admissions of guilt and knowledge of the crime that was to be committed, is that each of the conversations occurred well after the time that the murder had occurred and well after the time that Ms Barber was aware that Mr Pasnin had been murdered at the location and, more or less, at the time that she arranged for him to be there.
Looking at the listening device conversations rationally, they are consistent, as the Court has held, with the proposition that Ms Barber set up Mr Pasnin. Those conversations leave open the reasonable possibility that after learning that Mr Pasnin was killed, Ms Barber realised that she had been involved in setting up Mr Pasnin for a murder.
In part, these conversations are one reason why the Court considers it more probable than not that Ms Barber was aware of the purpose for which she was setting up Mr Pasnin. But it is not beyond doubt.
Assuming, without deciding, that Ms Barber deliberately set up Mr Pasnin for an illegal and unwanted purpose, but did not set him up knowing he was to have had inflicted on him grievous bodily harm or to be murdered, once Ms Barber learnt that Mr Pasnin had been killed, she would immediately have realised that she had set up Mr Pasnin to be murdered and that an admission of her involvement in setting up Mr Pasnin would implicate her in the murder.
This is a reasonable hypothesis inconsistent with the guilt of Ms Barber, because it does not depend upon Ms Barber contemplating the infliction of grievous bodily harm or murder or a crime of similar kind at or before the time of the murder.
The conversations between Mr Zraika and Ms Barber to the effect that Ms Barber will spend 10 years in gaol, or the like, are part of the deliberate provocation of each of them to one another during the course of their altercations. The admissions that Ms Barber set up Mr Pasnin are not affected by the circumstance of the domestic violence, but the admissions, if there be any, of complicity in the murder, are in the context of allegations made, a deliberate taunt of either Ms Barber or Mr Zraika. While admissible, they are not used by the Court to prove Ms Barber was, at the time she set-up Mr Pasnin for Ms Spiteri-Ahern, or before, aware, or contemplated, that Ms Spiteri-Ahern had arranged for the infliction of grievous bodily harm for the killing of Mr Pasnin.

As the High Court has made clear in a number of occasions (see The Queen v Baden-Clay) an essential element is not proved beyond reasonable doubt when, on the evidence that is accepted, there remains a reasonable hypothesis inconsistent with guilt.
It was necessary for the Crown to prove, beyond reasonable doubt, that Ms Barber was linked in purpose with Ms Spiteri-Ahern (and her unknown co-offender) in murdering Mr Pasnin. The foregoing does not suggest that it was necessary for the Crown to prove that Ms Barber had the intention or desire that the crime be committed.
The Crown was required to prove that Ms Barber believed, at the time that she arranged Mr Pasnin's whereabouts, that the murder of Mr Pasnin was a distinct possibility on account of the conduct in which she was engaged or, at least, that the infliction of grievous bodily harm was a distinct possibility.
The Crown has not proved that murder or the infliction of grievous bodily harm was within Ms Barber's contemplation or that which she contemplated was a crime of the same general type: see ([32] of these reasons).
In the circumstances, I am required to return a verdict of not guilty on the charge the Crown has preferred against Ms Barber.

Mr Amin Zraika

Mr Zraika is, as earlier stated, charged with concealing a serious indictable offence. The serious indictable offence that the Crown alleges Mr Zraika concealed was the crime of accessory before the fact committed by Ms Barber.
The Court has found that Ms Barber did not commit that crime. As a consequence, it is impossible for Mr Zraika to be guilty of concealing the offence. This is particularly so given that the terms of s 316(1) of the Crimes Act, recited above, require, as an element, that a person must have "committed a serious indictable offence". To the extent that the Crown alleges that the person to which that phrase refers in the Act is, in this instance, Ms Barber, Mr Zraika cannot be guilty of the offence.
Even if the Court were incorrect in its assessment of the guilt of Ms Barber, there is another significant difficulty in the conviction of Mr Zraika.
The evidence before the Court establishes that the accused believed that Ms Barber had set up Mr Pasnin, and, as a consequence, he was killed. Further, the evidence before the Court establishes that Mr Zraika believed he had information relevant to that offence, namely, he had the admission of Ms Barber that she had set up Mr Pasnin.
The Crown does not allege that Mr Zraika was aware, from the information given to him by Ms Barber, that Ms Spiteri-Ahern was involved in the murder of Mr Pasnin. As a consequence, the information, if any, Mr Zraika possessed about Ms Spiteri-Ahern's involvement is irrelevant to the charge preferred against Mr Zraika.
During the course of submissions, an issue arose on the construction of s 316(1) of the Crimes Act. While not strictly crucial to this determination, I will discuss that issue.
In my view, the proper construction of s 316(1) of the Crimes Act requires that the accused, under that provision, knew or believed that he or she was in possession of information that might be of material assistance in securing the apprehension of the offender or in securing the prosecution or conviction of the offender for the offence.
The terms of the Crimes Act require the accused to have information "which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it". That phraseology needs to be understood in its context.
Utilising the ordinary and grammatical meaning of the words, the term "apprehension", "prosecution" and "conviction" are each nouns and each is being used to achieve the same general idea.
Secondly, it is impossible that information which might be of material assistance "in … the prosecution … of the offender” would be different from information which might be of material assistance “in … the conviction of the offender”. In other words the use of the term "or conviction" would be rendered otiose, if the term "securing" did not govern both the prosecution and conviction of the offender.
Moreover, information might be of material assistance in securing the prosecution of an offender, but not materially assist the conviction of that offender (and vice-versa). If the word "securing" qualified the term "the prosecution or conviction", then information may materially assist in the commencement of a prosecution, but ultimately be useless in securing the conviction of the offender. In other words, construing the word "securing" as qualifying both the apprehension of the offender and the prosecution or conviction of the offender gives each of the terms full meaning.
On the other hand, the words "of the offender" are repeated. If, as is the view of the Court, the term "securing" governs each of the three situations, then it may have been unnecessary to repeat the words "of the offender" and the use of those words, where first appearing, may well be otiose.
Alternatively, how would information “materially assist” the conviction of an offender? Or for that matter, “materially assist” the prosecution? The only “information”, which would assist, either, would be evidence in the proceedings. Further, if “securing” did not govern the words “prosecution” and “conviction”, the provision would ordinarily have utilised a different grammatical form, namely, “prosecuting” and “convicting” (a gerund).
Overall, I consider that the proper construction of the terms of s 316(1) of the Crimes Act requires the information to be of material assistance "in securing the apprehension of the offender or in securing the prosecution or conviction of the offender" for the offence. However, in practical terms, that construction, or difference in construction, may make little difference to the commission of an offence.
If a matter were of material assistance in the prosecution or conviction of an offender that matter is likely to be, if not required to be, of material assistance in securing the prosecution or conviction of the offender. However, exculpatory material would be of “material assistance" in the prosecution of the offender, but not of “material assistance” in securing the prosecution of the offender. If the term "securing" did not govern the terms "the prosecution or conviction", then a failure to provide exculpatory material to prosecuting authorities or the police would be an offence under s 316(1) of the Crimes Act.
The Court is not required to deal with whether the provision requires a person to volunteer information. In the situation before the Court, Mr Zraika was interviewed by police and did not inform police of the terms of any conversation he had with Ms Barber in which she admitted that she had "set up" Mr Pasnin. As a consequence, it can be relatively safely concluded that Mr Zraika had the opportunity and, to the extent that he was answering questions truthfully, could have and would have brought that information to the attention of a member of the police force.
I have not, thus far, dealt with the issue of the meaning and operation of the words "without reasonable excuse".
First, in relation to the information obtained, it was information relating to a conversation, and an admission therein, Mr Zraika had with his then spouse or de facto partner. Therefore, at the time that the information was in the possession of Mr Zraika, it was information or evidence that he would be required to give, while he was the de facto partner of the accused, Ms Barber.
As a consequence, Mr Zraika would not be compellable to give evidence in criminal proceedings and could object, or could have objected at that time, to being called to give evidence against Ms Barber in relation to communications between him and Ms Barber, in particular, and more generally, would not be compellable to give evidence against Ms Barber.
The foregoing does not impact upon whether Mr Zraika had information that would have materially assisted in securing the apprehension of Ms Barber. However, it would be an odd situation if a person, who was unable to be compelled to give evidence, was required, on pain of a criminal offence, to provide the same material or information to the police in order to allow for the apprehension of their spouse or de facto partner. It may be that the term “apprehension…or prosecution or conviction” is to be understood as a composite phrase, thereby not creating criminal liability unless the information can materially assist in the whole process. It is unnecessary to decide that issue.
Notwithstanding the seeming inconsistency in the policy associated with that dichotomy, the Court, as presently constituted, is prepared to accept, for the purpose of these proceedings, and without deciding the question, that an offence can arise in those circumstances.
The question then becomes did Mr Zraika have a reasonable excuse? Or, more accurately, has the Crown proved that Mr Zraika did not have a reasonable excuse for not providing the information?
Mr Zraika was interviewed by police after the interview occurred with Ms Barber. In Ms Barber's interview (ERISP), she was questioned by investigating police as to whether anyone other than her had used the phone and, in particular, whether she had informed Mr Zraika about a concocted story to police; about the whereabouts of Mr Pasnin, or the likely whereabouts of Mr Pasnin or Miss A.
It would be a reasonable view of the questioning of Ms Barber that police were interested in questioning Mr Zraika and in determining his role, or possible role, in the murder or the setting up of Mr Pasnin. The evidence reveals that Ms Barber informed Mr Zraika of the subject matter of the police questioning.
As a consequence, shortly after Ms Barber was questioned, Mr Zraika would have been under the impression that police were interested in his conduct and in investigating him as a person possibly linked to the murder of Mr Pasnin.
There is no "right to silence", although the term is used by many. There is, however, a privilege against self-incrimination.
Once Mr Zraika was aware of the interest of police in him, as a person suspected of being involved in the murder, or that the police wanted to investigate him for that purpose, Mr Zraika was entitled, under the privilege, not to answer questions from the police and not to volunteer information, whatever it may have been, relating to the murder of Mr Pasnin; his whereabouts; or the involvement of his de facto partner.
In other words, as soon as Mr Zraika was aware that he was a person whom the police were interested in investigating, he had a reasonable excuse not to provide information relating to the commission of the murder, including, the involvement of his de facto partner in setting up Mr Pasnin. That excuse was the privilege against self-incrimination.
For that additional reason, I determine that Mr Zraika is not guilty of the charge preferred.
The result of the foregoing is as follows:

On the charge of murder of Raymond Pasnin, Ms Louise Spiteri-Ahern is guilty as charged;

On the charge of accessory before the fact to murder, Ms April Barber is not guilty of the charge preferred;

On the charge of concealing a serious indictable offence, Mr Amin Zraika not guilty of the charge preferred; and

Verdicts entered.

**********

Amendments

13 April 2023 - Publication restriction lifted.

Decision last updated: 13 April 2023

Medium Neutral Citation:	R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820
Hearing dates:	16-18, 21-23, 28, 29, 31 August 2017, 1, 4, 6-8, 11-14, 18-20, 25-28 September 2017, 4, 9-11, 13, 16 October 2017
Date of orders:	21 December 2017
Decision date:	21 December 2017
Jurisdiction:	Common Law - Criminal
Before:	Rothman J
Decision:	(1) On the charge of murder of Raymond Pasnin, Ms Louise Spiteri-Ahern is guilty as charged; (2) On the charge of accessory before the fact to murder, Ms April Barber is not guilty of the charge preferred; (3) On the charge of concealing a serious indictable offence, Mr Amin Zraika not guilty of the charge preferred; and (4) Verdicts entered.
Catchwords:	CRIME – judge alone trial – 3 accused charged with murder, accessory before the fact to murder and concealing a serious indictable offence (accessory) respectively – discussion of circumstantial evidence; reasonable hypothesis inconsistent with guilt; and drawing inferences – factual conclusions prove guilt of murder accused and do not prove, to the requisite standard, the guilt of the other two accused.
Legislation Cited:	Crimes Act 1900 Evidence Act 1995
Cases Cited:	Bruce v Williams (1989) 46 A Crim R 122 Carr v Baker [1936] SR (NSW) 301 Director of Public Prosecutions (Northern Ireland) v Maxwell [1978] 3 All ER 1140; Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Fabre v Arenales (1992) 27 NSWLR 437 Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 IL v The Queen (2017) 91 ALJR 764; [2017] HCA 27 Osland v R (1998) 197 CLR 316; [1998] HCA 75 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; R v Ancutta (1990) 49 A Crim R 307 R v Ray (2003) 57 NSWLR 616; [2003] NSWCCA 227 R v Russell [1933] VLR 59 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Wilson v Director of Public Prosecutions (NSW) [2017] NSWCA 128
Texts Cited:	William Blackstone, Commentaries on the Laws of England, Volume 4 New South Wales Law Reform Commission, Report 93: Review of section 316 of the Crimes Act 1900 (NSW), December 1999
Category:	Principal judgment
Parties:	2014/00180060: Regina (Crown) Louise Catherine SPITERI-AHERN (Accused) 2014/00180279: Regina (Crown) April BARBER (Accused) 2014/00235123: Regina (Crown) Amin ZRAIKA (Accused)
Representation:	Counsel: 2014/00180060: D Patch (Crown) J Trevallion (Accused) 2014/00180279: D Patch (Crown) A Francis (Accused) 2014/00235123: D Patch (Crown) Dr R Webb (Accused) Solicitors: 2014/00180060: Office of the Director Public Prosecutions (Crown) Archbold Legal Solutions (Accused) 2014/00180279: Office of the Director Public Prosecutions (Crown) Bannisters Lawyers (Accused) 2014/00235123: Office of the Director Public Prosecutions (Crown) Macquarie Lawyers Burwood (Accused)
File Number(s):	2014/00180060; 2014/00180279; 2014/00235123
Publication restriction:	Orders made on 19/09/2017:NON PUBLICATION ORDER that the address given for the accused Ms Spiteri-Ahern and her family in the evidence of Constable Daniel Greentree not be published outside of the Court room. Orders made on 14/09/2017:SUPPRESSION ORDER made that Reference to the allegation of sexual abuse adduced in evidence on 14/09/17, including any information that could identify the victim, is not to be published. Orders made 31/08/2017:SUPPRESSION ORDER made in relation to the true identity of the proposed Crown witness, together with any evidence, submission discussion, document or information that might disclose the identity of said witness. The publication of any reference to the witness be by way of the pseudonym name Tom Jones.