R v Spiteri-Ahern; R v Barber; R v Zraika (No 9)

[2017] NSWSC 1331

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Spiteri-Ahern; R v Barber; R v Zraika (No 9) [2017] NSWSC 1331

Hearing dates:

28 September 2017

Date of orders:

28 September 2017

Decision date:

28 September 2017

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Consideration adjourned until I hear fully from Counsel
(2) Pending that hearing, the document is marked for identification

Catchwords:

EVIDENCE – relevance – transcript of domestic violence proceedings – arguably relevant to motive for murder – hear further submissions

Cases Cited:

Carr v Baker (1936) 36 SR (NSW) 301
Fabre v Arenales (1992) 27 NSWLR 437

Category:

Procedural rulings

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

EX TEMPORE Judgment

1. HIS HONOUR: The Crown seeks to tender the transcript of proceedings in relation to which exhibit C105 are the charges and a summary of the facts (“the Campbelltown Local Court proceedings”). They relate to assault occasioning actual bodily harm - domestic violence related; two counts of possess and use of prohibited weapon without a permit; reckless wounding, and; wound person with intent to cause grievous bodily harm - domestic violence.

2. The summary facts sheet normally associated with bail applications is attached to the Court Attendance Notice. The Court Attendance Notice takes a page and a half.

3. The Crown wishes to go to the transcript, as I understand what is being said, for the purpose of showing that the concern expressed by the accused, Ms Spiteri-Ahern, to Ms Rice-Clarke was rationally-based and significant. There are a number of difficulties with that proposition.

4. The Crown relies upon what is referred to as "rational inference". There is nothing about the drawing of an inference which is peculiar to the law or legal reasoning.

5. It has been said often that the drawing of an inference is a matter of plain common sense. So much was said by the Court of Appeal in Fabre v Arenales (1992) 27 NSWLR 437. It was also said as long ago as 1936 by the then Chief Justice, Sir Frederick Jordan in Carr v Baker (1936) 36 SR (NSW) 301.

6. Ultimately, it depends upon the following syllogism: If facts A, B, and C exist, then fact D exists, even though there is no direct evidence of fact D. Ultimately, whether one draws an inference as to whether fact D exists will depend upon whether common sense is defied if fact D did not exist.

7. The difficulty in this case is that it seems, on an analysis of the evidence sought to be adduced, that the inference that is sought to be drawn, is that there are concerns by Ms Spiteri-Ahern expressed to Ms Rice-Clarke and which provide a motive to commit the offence in question. The difficulty in terms of the expressed concerns of the accused, are that those concerns were expressed well before the Campbelltown Local Court proceedings were heard. Whether Ms Spiteri-Ahern was shown to be lying or perverting the course of justice on the transcript of those proceedings is not a matter that could have informed Ms Spiteri-Ahern's expression of concern to Ms Rice-Clarke in June or July 2013, some 3 or 4 months before the cross-examination on 26 September 2013.

8. The second aspect upon which the Crown relies on this transcript is to support the fear expressed by Ms Spiteri-Ahern was expressed in a telephone conversation in November 2013, namely, on 21 November 2013 between Ms Spiteri-Ahern and Ms Rice-Clarke. The difficulty with that proposition is that the most to which the Crown can point, is the fear expressed in June or July 2013 about which Ms Spiteri-Ahern expressed concern to Ms Rice-Clarke.

9. Ms Rice-Clarke then, as I understand the evidence, asked in the 21 November 2013 telephone conversation about the court case and Ms Spiteri-Ahern confirmed that the fear expressed to Ms Rice-Clarke was a real one, but had abated on account of the death of the deceased. Neither one of those occasions relate to or depend on the evidence adduced on 26 September 2013 or the cross-examination of Ms Spiteri-Ahern.

10. In the course of discussion with the Crown, I sought an answer as to how the transcript of 26 September 2013 informed the fear expressed in June or July 2013. I was told, in a roundabout sort of way, that it could not. Likewise, there is no evidence to suggest that the fear confirmed, if it were confirmed, in the conversation on 21 November 2013, related to the manner in which the case had progressed on 26 September 2013.

11. As a consequence, that which the Crown has suggested is the basis for the admission of this evidence does not seem to allow the drawing of any inference. Inferences may be drawn in circumstances which allow proof of material upon which there is no direct evidence irrefragably or barely. There is a continuum between that in the drawing of any inference.

12. An alleged inference that is equipoised with another inference is incapable of being drawn. Thus far, there is no evidence that would suggest that Ms Spiteri-Ahern has expressed a fear that related to her cross-examination on 26 September 2013.

13. While the Crown has not put it this way, and therefore I have not heard Mr Trevallion on this aspect of it, I want to analyse the transcript as if there were no evidence from Ms Rice-Clarke either as to the conversation in June or July 2013 or in relation to the telephone conversation on 21 November 2013. Could the Crown adduce evidence of what occurred in the Campbelltown Local Court proceedings, for the purpose of proving that there was a motive for the offence in question?

14. I have not read the 120 or so pages of transcript upon which the Crown seeks to rely. From what I gather from Mr Trevallion, he has only recently been told that this material was to be tendered in the proceedings and therefore may not have read it as fully as possible.

15. Nevertheless, it does seem to me that, even absent the evidence of Ms Rice-Clarke to both the telephone conversation in November 2013 and the expression of concern in June or July 2013, the evidence, that is the transcript, if it went extraordinarily poorly for the accused, could be material upon or from which some inference, not to the criminal standard, could be drawn.

16. I have not heard Mr Trevallion on that question. I do not anticipate hearing from him in relation to that question until such time as he has had the time to deal with the matter in the manner that I have expressed it, as distinct from the manner in which the Crown has sought to tender it.

17. In those circumstances, I will mark the transcript for identification and hear from Mr Trevallion at a time when he has had the opportunity to read the material in full.

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Amendments

13 April 2023 - Publication restriction lifted.

Decision last updated: 13 April 2023