Spiteri-Ahern v R

Case •

[2022] NSWCCA 56

•

21 March 2022

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Spiteri-Ahern v R [2022] NSWCCA 56
Hearing dates: 1 November 2021
Date of orders: 21 March 2022
Decision date: 21 March 2022
Before: Meagher JA; R A Hulme J; Davies J
Decision:

(1) Refuse leave to appeal on ground 3 and proposed ground 3A.

(2) Grant leave to appeal on grounds 1, 2 and 4.

(3) Dismiss the appeal.

Catchwords:

CRIMINAL LAW – application for leave to appeal against conviction and sentence – trial by judge alone – where applicant convicted of murder as participant in joint criminal enterprise – where arrangement that applicant pay money to co-participant in return for killing deceased – where trial judge relied on circumstantial evidence and admissions of guilt by applicant – whether verdict unreasonable – whether trial judge’s reasons inadequate – reasons requirement in judge-alone trial under Criminal Procedure Act, s 133(2) – whether sentence manifestly excessive

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5(1)

Criminal Procedure Act 1986 (NSW), s 133

Evidence Act 1995 (NSW), s 165(2)

Cases Cited:

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

W v R [2014] NSWCCA 110

Wade v R [2018] NSWCCA 85

Category:Principal judgment
Parties: Louise Spiteri-Ahern (Applicant)
Regina (Respondent)
Representation:

Counsel:
M Avenell SC (Applicant)
E Balodis (Crown)

Solicitors:
Blair Criminal Lawyers (Applicant)
Office of the Director of Public Prosecutions (Crown)
File Number(s): 2014/180060
Publication restriction:

1. A suppression order was made on 31 August 2017 in relation to the true identity of a 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 in this judgment is by way of the pseudonym name ‘Tom Jones’.

2. There is a statutory non-publication order arising under Children (Criminal Proceedings) Act 1987 (NSW), s 15A in relation to a matter raised in the evidence of Marco Pehar.

3. A non-publication order was made on 19 September 2019 in relation to the address given for the applicant and her family in the evidence of Constable Daniel Greentree.
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Criminal
Citation:

[2017] NSWSC 1820; [2018] NSWSC 1072

Date of Decision:
21 December 2017
Before:
Rothman J
File Number(s):
2014/180060

Judgment

  1. THE COURT: Pursuant to Criminal Appeal Act 1912 (NSW), s 5(1), the applicant, Louise Spiteri-Ahern, seeks leave to appeal, on the grounds set out below, from her conviction and sentence for the murder of Raymond Pasnin on 30 October 2013 at Pendle Hill. That shooting murder was committed by Daniel Haile.

  2. The Crown case against the applicant was that she was jointly criminally responsible for the commission of that murder, having agreed with Mr Haile that he would kill or inflict grievous bodily harm on Mr Pasnin, and his having done so whilst that agreement was on foot. The nature of her criminal responsibility was as stated by the plurality in Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51 at [4]:

… the criminal responsibility of each participant in such an enterprise is direct, each being equally responsible for the acts constituting the actus reus of the crime. Commonly, proof of the offence and the accused's participation in the joint enterprise is facilitated by the evidentiary rule sometimes inaccurately described as "the co-conspirator's rule”. The rule is not confined to the prosecution of conspiracy offences. It applies in the prosecution of substantive offences in which it is alleged that two or more persons acted in preconcert to commit an offence. The acts and declarations of all the participants to the joint criminal enterprise are admissible to prove the offence and the accused's participation in its commission.

  1. The trial proceeded in the Supreme Court before Rothman J sitting without a jury. The applicant was tried with two co-accused – April Barber and Amin Zraika. Ms Barber, a previous girlfriend of the deceased with whom she had two young children, was charged with being an accessory before the fact of murder by reason of her involvement in “setting up” the deceased on the evening of 30 October 2013. Mr Zraika, who was Ms Barber’s partner at the time of the offence, was charged with concealing a serious indictable offence.

  2. The hearing proceeded over 24 days between 16 August and 16 October 2017. On 21 December 2017, the trial judge found the applicant guilty of the murder of Mr Pasnin, as a participant in a joint criminal enterprise (R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820 at [155]). His Honour found Ms Barber and Mr Zraika not guilty of the charges preferred against them.

  3. On 13 July 2018, Rothman J sentenced the applicant to a term of imprisonment of 30 years with a non-parole period of 18 years, the latter commencing on 22 June 2015 and concluding on 21 June 2033, with the remainder of the term concluding on 21 June 2045 (R v Spiteri-Ahern [2018] NSWSC 1072).

The grounds of appeal

  1. The applicant’s grounds of appeal are:

  1. The verdict is unreasonable, or cannot be supported, having regard to the evidence.

  2. The trial judge’s reasons for finding the applicant guilty are inadequate, in particular the reasons considering the defence case.

  3. The trial judge did not rule on the admissibility of exhibit C135.

  4. The sentence is manifestly excessive.

  1. Ground 3 is not pressed. Exhibit C135 is a transcript of proceedings before the Campbelltown Local Court on 26 September 2013. Those proceedings were the prosecution of a charge of wounding with a knife laid against Mr Pasnin by the applicant. The exhibit was “provisionally” admitted in the trial subject to the determination of the applicant’s objection to its admissibility. The trial judge did not rule on that question, and the exhibit is not referred to at all in his Honour’s reasons. The applicant contends that it was not admissible, and accordingly that it should not be taken into account as part of the evidence in any determination of the unreasonable verdict ground. The Crown agrees that it should not be taken into account. That being the position disposes of the relevance of any argument otherwise proposed to be made in support of this ground. Accordingly, leave to appeal should be refused in respect of ground 3.

  2. In the course of argument, the applicant sought leave to rely on the following further ground:

(3A) The trial involved a miscarriage of justice in that Rothman J did not: (a) notify the applicant that he proposed to warn himself as to the unreliability of Lyndal Archbold’s identification of the shooter (Mr Haile) as the supplier of cannabis earlier on 30 October 2013; (b) notify the applicant that he proposed to not accept Ms Archbold’s identification; and (c) afford the applicant an opportunity to make submissions as to why he should not warn himself and should accept Ms Archbold’s identification.

  1. The subject matter of this ground – the trial judge’s rejection of Lyndal Archbold’s evidence identifying Mr Haile as the supplier of cannabis to her and Mr Pasnin in the early evening of 30 October 2013 – is also raised in the argument in support of grounds 1 and 2. For that reason, this ground is dealt with when that subject is considered with reference to those grounds.

  2. It is convenient at this point to set out the background facts to the events of 29 and 30 October 2013. We propose then to summarise the findings of the trial judge as to what occurred on those days, before addressing grounds 1 and 2 and proposed ground 3A. We will then address the appeal against sentence brought by ground 4.

Background facts

  1. The relationship between the applicant and Mr Pasnin continued from late 2011 to August 2012, when the applicant alleged she was physically assaulted by Mr Pasnin. In October 2012 the applicant terminated a pregnancy, a decision urged by Mr Pasnin which she regretted and was very angry about. The relationship was broken off by the deceased two weeks later. In early 2013, she reported to the police an incident which she alleged had occurred in October 2012, when she was stabbed with a kitchen knife by the deceased in her right thigh and leg. That complaint resulted in Mr Pasnin being arrested and held, bail refused, from 5 March to 21 August 2013. Whilst he was in custody his mother, Salima Eid, and other members of his family sought to have the applicant believe that Mr Pasnin still loved her in order to persuade her to withdraw the allegations that she had made. The applicant became aware of this deception in May 2013.

  2. Ms Barber was also a former partner of Mr Pasnin, and they had two daughters, the eldest of whom was at Mr Pasnin’s mother’s home at Pendle Hill on the evening of 30 October 2013. By mid-2013 Ms Barber and the applicant were friends.

  3. The applicant and the shooter, Mr Haile, were known to each other as drug dealers, being street retailers, who reported to Marco Pehar. The applicant was a supplier of methamphetamine or “ice”, and Mr Haile of cannabis or “pot”. The drug dealers working for the syndicate ran particular supply runs and could be contacted by telephoning a phone number which was identified by reference to the drug being sold. In the case of cannabis, the phone was referred to as the “Freddy” phone. The evidence indicated that there were two different phone numbers described as “Freddy” phones. The “Freddy” phone number used by Mr Haile ended in ---076. The other number ended in ---787. In late September and October 2013, Mr Pehar, the applicant and Mr Haile socialised together. In evidence, Mr Pehar described the applicant and Mr Haile as “close friends”.

  4. Between 24 June and 3 August 2013, the applicant was a resident at the Jarrah House Rehabilitation Centre in Sydney. There she met Esther Rice-Clarke, who was a resident between 27 June and 9 August 2013 (except for the period from 3 to 7 July). Ms Rice-Clarke was a substantial drug user. She gave evidence of conversations with the applicant during this period, and of conversations said to have occurred after the shooting in November 2013. The former included statements as to what the applicant proposed to do to Mr Pasnin, and the latter statements by the applicant admitting that she had been involved in his shooting. The former were relied on as establishing the applicant had a motive for arranging the shooting, and the latter as admissions of guilt sufficient to justify her conviction. There is an issue as to whether it was open to the trial judge to accept this evidence of Ms Rice-Clarke.

  5. Ms Archbold had met Mr Pasnin in November 2012, and remained his partner at the time of his death. After he was released from prison on 21 August 2013, his bail conditions required that he report daily to Toukley Police Station. For that reason, in October 2013 he and Ms Archbold were living between a house at Charmhaven on the Central Coast and his sister’s home or mother’s apartment in Sydney.

The events of 29 and 30 October 2013

  1. In the evening of Tuesday 29 October 2013, Mr Haile made an arrangement to be picked up by a driver, known in the trial proceedings by the pseudonym Tom Jones, at 10:15pm from an address at Coleman Street, Merrylands. During the same evening, there were telephone and SMS communications between Ms Barber and Mr Pasnin, Ms Barber and the applicant, as well as the applicant and Mr Haile. Ms Barber called Mr Pasnin at 9:42pm asking that he come to Sydney and look after their daughter, Ms Barber having stated (falsely) that she had urgently to travel to Wollongong. Mr Pasnin could not comply with that request because he had to report to Toukley Police Station in the early morning of 30 October, and before he could come to Sydney. His not coming to Sydney resulted in the arrangement between Mr Haile and Mr Jones being deferred to the next evening at the same time.

  2. On the following day, 30 October, arrangements were made between Ms Barber and Mr Pasnin for him to collect his daughter from Ms Barber, who would later collect her from Mr Pasnin’s mother’s apartment at Dunmore Street, Pendle Hill at around 11pm that evening. These arrangements were communicated by Ms Barber to the applicant and by the applicant to Mr Haile; and at 10:35pm, as Ms Barber was about to leave to collect her daughter from Pendle Hill, she telephoned the applicant, who in turn had two very short communications with Mr Haile at 10:55 and 10:56pm.

  3. Returning for the moment to the morning of 30 October, after reporting to Toukley Police Station, Mr Pasnin drove to Sydney, first to his mother’s apartment and then to his sister’s house. In the early afternoon he collected his daughter from Ms Barber and returned to his sister’s house at about 4:30pm. Ms Archbold and he left that house on two occasions before they drove with his daughter to his mother’s apartment. The first was to purchase “ice”, Ms Archbold having telephoned the “Yagoona” phone, that being the name which described the supply run for that drug. The second time they left the house was to purchase pot from a hotel car park in Merrylands. Contact with the cannabis supplier was made by a phone call from Ms Archbold’s phone at 7:41pm to a “Freddy” phone, the number for which ended ---787.

  4. The Crown case depended in part on a close analysis of the telephone call charge records of Ms Barber, the applicant (using two telephone numbers), Mr Jones, Mr Haile, Mr Pasnin, Ms Archbold and Mr Pehar. Those records became Ex C29. The trial judge’s findings as to the events of 29 and 30 October 2013 are at J[75]-[120]. With one exception (which is dealt with below at [52]-[55]), the applicant does not challenge those findings. The trial judge found (as is summarised above) that the original arrangement between Mr Jones and Mr Haile was that he would drive for Mr Haile on the night of 29 October 2013 (J[75]). There were also many telephone communications between the applicant and Ms Barber and between the applicant and Mr Haile on 29 October 2013 in which the initial arrangement was set up and subsequently cancelled after Mr Pasnin said he could not come to Sydney (J[162], [165]).

  5. When Mr Haile got into Mr Jones’ car at 10:15pm on 30 October, he had a plastic bag with clothes in it. The bag was put on the seat behind the passenger’s seat. In giving instructions to Mr Jones, Mr Haile said, “We are going to see somebody to pick up some money”. The applicant relies on this statement as evidence of a drug dealing relationship between Mr Haile and Mr Pasnin. The Crown describes this as a “cover story”, plainly untrue in view of the fact that the evidence permitted only the conclusion that on the night in question Mr Haile had only one purpose, and that was to shoot Mr Pasnin. He was armed with a handgun, and when the time came, used it without any indication that his purpose in identifying and confronting Mr Pasnin was to collect money from him.

  6. They arrived at the Dunmore Street, Pendle Hill address before 11pm. Mr Jones parked the car, Mr Haile left the car and was away for about 10 minutes. According to Ms Archbold’s evidence, shortly after 10:55pm she accompanied Mr Pasnin and his daughter downstairs and left him to take his daughter to Ms Barber’s car. Mr Haile observed these events but did not shoot Mr Pasnin. There was some evidence that on that occasion Ms Archbold had seen a man on the stairs, but she did not identify him as Mr Haile. One possibility suggested in the defence case was that the person seen on the stairs was Mr Jones rather than Mr Haile. Mr Haile returned to Mr Jones’ car and was driven back to the Coleman Street address. In the course of that journey, Mr Haile said, “I feel like slapping the bitch. She told me he was meant to be there. He was going to be there”; and “I saw a guy with a baby in his arms. I don’t know if that was the person I was meant to see”. When the car arrived at Coleman Street, Mr Haile said to Mr Jones, “Can you wait here a few minutes while I go inside and call her?” The call records indicate that at this time (11:41pm) Mr Haile telephoned the applicant, with their call lasting just over 3 minutes, and that immediately afterwards she unsuccessfully attempted to call Ms Barber, and then sent an SMS message to Mr Haile.

  7. On his return to the car, Mr Haile asked Mr Jones to drive him back to Pendle Hill. He said “Can we go back there. He’s there, the man with the baby was the one I was supposed to see”. Mr Jones then drove to the Pendle Hill address. He parked the vehicle, Mr Haile left, and within a few minutes of his doing so, Mr Jones heard five or six gunshots. Mr Haile returned to the car, and as it drove away, started taking off his clothes and putting on those in the plastic bag. Early in the journey 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 there was a “wrestle” and Mr Haile had slipped and cut his finger. Ms Archbold’s evidence confirmed that after the shots were fired Mr Pasnin chased Mr Haile and there was a “tussle”. (This last exchange in the car between Mr Haile and Mr Jones was consistent with Mr Haile’s purpose being to shoot Mr Pasnin rather than to collect money or pursue some other drug-related outcome which could have involved an altercation between them.) As they got closer to the Merrylands address there was discussion as to what Mr Haile should do with the semi-automatic handgun which he had in a holster and on his right hip. Eventually he left that handgun and the clothes he had taken off with Mr Jones.

  8. The trial judge described the circumstances of the shooting as “relatively uncontroversial”, the evidence of Ms Archbold being in many respects corroborated (J[117]). Ms Archbold’s evidence was that she accompanied Mr Pasnin down to the carpark and heard shots and saw a man in front of Mr Pasnin and where the cars were parked. After the shots, Mr Pasnin said something and then chased the shooter.

  9. Consistently with this evidence, the trial judge’s findings were: “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” (J[118]). The finding that there was no warning or conversation before shots were fired is the only finding as to the circumstances of the shooting with which the applicant takes issue.

The evidence as to payment

  1. At this point, it is convenient to describe in more detail the evidence referred to by the trial judge at J[151], where his Honour said:

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.

  1. Mr Pehar gave evidence of conversations with Mr Haile on 1 November 2013, two days after the shooting, in which Mr Haile said to Mr Pehar:

They are going to get me. They found the bag with the clothes in it and it has blood on the outside. I fucked up. You need to go and tell Louise that I need my money today. I need it today. Tell her I need it now.

  1. Mr Haile also said to Mr Pehar that the amount was “4 grand but she knows how much it is” and asked that Mr Pehar contact her. He did so.

  2. There followed three short and no doubt deliberately cryptic telephone conversations between Mr Pehar and the applicant on 1 November 2013 between 7:56pm and 9:02pm. There were then two further telephone conversations between Mr Pehar and Mr Haile between 9:04pm and 9:46pm. There was also a short “pocket call” made from the applicant’s phone on 3 November 2013. Each of those conversations was intercepted and recorded by the police. Mr Haile was arrested on 5 November 2013.

  3. In the first conversation between the applicant and Mr Pehar, Mr Pehar says that he needs to meet with the applicant, and in response she asks him whether he has $4,000, to which he replies that he does not. The conversation concludes with the applicant saying that she will “tell [him] what’s going on” when she sees him. In the second conversation, the applicant asks Mr Pehar whether “somebody” (the overwhelming inference being Mr Haile) “come talk to you”, to which Mr Pehar responds yes. The applicant confirms she is coming to see Mr Pehar and asks whether he has “heard from Freddy” (again a reference to Mr Haile), to which Mr Pehar responds that “he was asking for you” and that “he’s the one who the four” (a reference to Mr Haile as the person to whom the $4,000 is due). In the third conversation, Mr Pehar inquires whether the applicant is “coming home” and asks whether she wants him to “tell Freddy to come here” (a reference to Mr Haile).

  4. The last two conversations are between Mr Pehar and Mr Haile. In the first, Mr Haile telephones Mr Pehar and Mr Pehar tells him that he is “at home”, that “she’s coming here now” (a reference to the applicant) and that she “goes” (in other words, says) “Come past” (a request that Mr Haile also go to Mr Pehar’s “home”). Mr Haile responds emphatically, “I can’t” and also rejects Mr Pehar’s suggestion that he could tell her to meet Mr Haile somewhere else. Again Mr Haile says “I can’t do that” (the inference being that having regard to the applicant’s involvement in the shooting, she and Mr Haile cannot be seen or found together). This is captured by Mr Haile’s statement to Mr Pehar “You get what I mean?” to which he responds “Yeah”. This conversation ends with Mr Pehar confirming that he will seek to get the money from the applicant, and Mr Haile stressing the fact that he needs to go.

  5. In the second of these conversations, Mr Pehar tells Mr Haile that the applicant does not have the money, that she was upset, and that he was going to see what he could do to help her get the money.

  6. Finally in relation to this subject, there was the “pocket call” made from the applicant’s telephone on 3 November 2013 in which she was heard to say on three occasions that she had given “Daniel” the “four grand”.

  7. At this point, before addressing the arguments made on behalf of the applicant in her conviction appeal, it is useful to set out briefly some relevant principles.

The unreasonable verdict ground in a judge-alone trial

  1. In determining an unreasonable verdict ground after a jury trial, the question for the appellate court is whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt. That approach requires the court to undertake two steps. First, to make an independent assessment of the whole of the evidence to determine whether the court itself has a reasonable doubt about the guilt of the accused. And secondly, if the court does have a reasonable doubt, to consider whether the jury had an advantage capable of resolving the doubt experienced by the court: M v The Queen (1994) 181 CLR 487 at 493-495; [1994] HCA 63.

  2. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [9], the Court described that question in relation to a judge-alone trial as being whether:

…upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge’s finding of guilt is “unreasonable” or “cannot be supported”. [emphasis added]

  1. Having noted at [11] that “for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge's finding of guilt is to be treated as if it were the same as a jury's finding of guilt” (Criminal Procedure Act 1986 (NSW), s 133(1)), the majority continued (at [12]):

[12] … It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced.

Criminal Procedure Act, s 133(2) and the requirement for reasons in a judge-alone trial

  1. Section 133 provides:

133 Verdict of single Judge

(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

  1. The requirements in ss 133(2) and (3) are "legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law … and may also mean that justice has miscarried" within the second and third limbs of s 6(1) of the Criminal Appeal Act: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [27] (considering its identical predecessor s 33(2)); see also Wade v R [2018] NSWCCA 85 at [102].

  2. The requirements of s 133(2) are not "satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached”: Fleming at [28]; see also W v R [2014] NSWCCA 110 at [108].

  3. In Fleming at [30], the Court continued:

Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act.

  1. The applicant’s argument with respect to ground 2 takes issue with the adequacy of the trial judge’s reasons in relation to particular aspects of the evidence, raising a possibility that his Honour has erred in law in some respect which cannot be excluded by reference to the reasons. Furthermore, that argument is a “fallback” argument in the sense that the applicant’s primary position, as will become apparent, is that taking account of the particular aspects of the evidence relied on, the trial judge should necessarily have entertained a doubt as to the applicant’s guilt (see Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] per Hayne J).

The arguments made in relation to grounds of appeal 1 and 2

  1. The applicant’s written submissions do not separately deal with grounds 1 and 2. Rather, they address those grounds, or the arguments made in support of them, by reference to four strands of the evidence, namely:

  1. the circumstances of the shooting;

  2. admissions made by the applicant to Ms Rice-Clarke;

  3. motives and threats; and

  4. a payment from the applicant to Mr Haile.

  1. Ultimately, the applicant’s written submissions are addressed to two propositions. The first, in support of ground 1, is that taking account of the evidence referred to above, this Court should conclude that the trial judge must have entertained a reasonable doubt as to her guilt.

  2. The matters said to give rise to the reasonable doubt which it is said the trial judge ought have had are formulated as follows:

The [Crown] did not exclude the reasonable possibility that: notwithstanding the applicant holding animosity and making threats towards Mr Pasnin many months before October 2013, she had by then moved on from him; the applicant provided information to Mr Haile to locate and identify Mr Pasnin, for Mr Haile’s own purposes; and desperate to leave Sydney, Mr Haile wanted the applicant to repay money owed to him and unrelated to Mr Pasnin’s death. Even the applicant’s alleged statements to Ms Rice-Clarke at the apartment could be interpreted sympathetically with this scenario.

  1. The second proposition is that if the Court does not uphold ground 1, it should find that the trial judge erred in law in failing to satisfy the requirement in s 133(2) to give adequate reasons, in a respect which gave rise to a substantial miscarriage of justice.

  2. The Crown’s overall response to these arguments is that none of the four strands of the evidence, or the findings made or not made in relation to them, was or is essential to his Honour’s verdict of guilty. In particular, whilst the trial judge concluded that the admissions made to Ms Rice-Clarke in November 2013 were “sufficient to convict”, the circumstantial evidence justified his conclusion at J[121] that:

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.

  1. Notwithstanding that this finding appears before J[151] in his Honour’s reasons, it, and specifically the finding as to the agreement, is to be understood as having been made taking account of the analysis of the payment evidence summarised at J[151].

  2. We propose to address the applicant’s arguments by considering separately each of the four aspects of the evidence identified above. We will then consider ground 1, albeit briefly, by reference to the whole of the evidence.

  3. The applicant’s proposed ground 3A is directed to whether a reasonable possibility not excluded by the evidence was that Mr Haile had a personal motive for shooting Mr Pasnin. That proposed ground will be dealt with when addressing the relevant aspect of the evidence – motive and threats.

(1) The circumstances of the shooting

  1. It is suggested the evidence of these circumstances left open the possibility that a relationship existed between Mr Pasnin and Mr Haile concerning the supply of drugs. That is said in turn to have left open the possibility that in shooting Mr Pasnin, Mr Haile was acting for himself rather than at the request of the applicant.

  2. Relevantly, the trial judge found at J[118]:

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.

  1. The applicant challenges whether this finding was open taking account of the evidence of a police officer, Detective Carter. That evidence (given by reference to a statement prepared by him on 5 November 2013), included that Ms Archbold said shortly after police had arrived at the scene of the shooting, at a time when she was still “yelling” and “screaming”, that “We were walking to the car and this bloke said something to him and I heard bangs like a firecracker, about five”.

  2. In cross-examination, Detective Carter said it was possible that Ms Archbold had said that to him, but that he could not recall, as it was so long ago (the evidence was given in September 2017), and “she was very hysterical”.

  3. Ms Archbold’s recollection was that she heard the shots and saw the shooter at the same time. According to her evidence, the first thing said was immediately after the shooting, namely Mr Pasnin’s statement, “You son of a bitch…”. In cross-examination, Ms Archbold said that her having heard “a male voice mumbling, threatening and abusive” (a quote from the officer’s statement) before Mr Pasnin was shot “definitely didn’t happen”. She did not recall saying that to any police officer after the shooting.

  4. Thus the hearsay statement of Detective Carter is inconsistent with the evidence of the eyewitness Ms Archbold, and neither she nor the police officer recalled the occasion when it was said to have been made. That being the position, it was well-open to the trial judge to make the finding that he did.

  5. There is no argument that his Honour’s reasoning was inadequate with respect to the treatment of this evidence and finding.

(2) Admissions made by the applicant to Ms Rice-Clarke

  1. The first conversations that Ms Rice-Clarke gave evidence of occurred when she and the applicant were residents of Jarrah House between late June and early August 2013. They included statements by the applicant that she would get her ex-boyfriend “bashed”, that she was “going to have [her] ex fucking killed with a Glock gun”, that she had spoken to someone about a payment of a Ferrari or $20,000 to have her ex-boyfriend killed, and that she was going to have her ex-boyfriend killed for what he had done. The trial judge was satisfied that such statements were made (J[136], [138]).

  2. The fact of their next communication was not contested. On 13 November 2013 Ms Rice-Clarke sent an SMS to the applicant inquiring “Is your ex out of jail?” The trial judge treated that message as corroborating Ms Rice-Clarke’s evidence that there had been earlier conversations with the applicant about her ex-boyfriend and the prosecution brought based on her allegations.

  3. On 21 November the following telephone call between them was intercepted and recorded by the police:

RC: How is, how’s, how’s everything with your court and that been going?

SA: Um, he’s dead…No more court.

RC: So was he released and then dead?

SA: Yeah, he was on bail. Didn’t you hear about it? He was on the news and everything.

RC: Are you serious?

SA: Yeah, Pendle Hill shooting…

RC: So that was the guy that was, they they wanted…to downgrade the charge?

SA: Yeah…

RC: Wow. It all worked out, didn’t it?

SA: Fuck. I don’t know. I don’t know. But yeah.

RC: Well, you know, at least you don’t have that, um, you know, fear hanging over you.

SA: Yeah. I don’t really want to talk about it…

RC: I reckon it would’ve just been about that case thing, about that bloke that stabbed you…

SA: … I’ll call you back on one second.

RC: Okay. (Call concluded)

  1. From this point the applicant contests that the two apartment meetings of which Ms Rice-Clarke gave evidence occurred. At the first, which was said to have occurred after the shooting in late November 2013, the applicant was said to have made admissions as to her having arranged the shooting. Ms Rice-Clarke’s evidence was that a Simon Diri was present at each of these meetings.

  2. In late 2013, Ms Rice-Clarke was staying with her mother in Coogee. From her evidence it was apparent she did not have a close knowledge of Sydney and its suburbs. At the time she was first questioned abouts these meetings by police in New Zealand (where she had grown up) in June 2017, she said the apartment may have been “out Parramatta way or Penrith” or “could have been Pendle Hill”. She could not remember how she got to the apartment on the first occasion. She did, however, recall that on one occasion she had to call her mother for instructions to get public transport from the apartment where she was to Coogee.

  3. Ms Rice-Clarke also gave evidence of a further occasion later in November at a park near Central Station in Sydney, when the applicant, another female and perhaps Mr Diri were said to be present. At this meeting she claimed to again have asked the applicant about her involvement in the shooting.

  4. Ms Rice-Clarke’s evidence was that following this last occasion, she discovered that her Medicare card had been stolen, she presumed by the applicant. In her recollection, she related the theft of that card to its being used “a few days later” in a prescription fraud at a Sydney chemist. There was some evidence such a fraud had taken place, but in early September 2013 and before the shooting of Mr Pasnin. That evidence included that in August 2014 Ms Rice-Clarke had pleaded guilty to a fraud offence.

  5. Returning to the first of the apartment meetings, Ms Rice-Clarke gave evidence that in relation to the shooting of Mr Pasnin, the applicant said, “It was because of me that he was shot”, “I organised it”, “it was like a drive-by shooting”. According to Ms Rice-Clarke at the time, these exchanges happened, Mr Diri was also present, and the three of them had been smoking ice.

  6. No further admissions were said to have been made at the second apartment meeting, which according to Ms Rice-Clarke was a few days later.

  7. Telephone records relating to the applicant and Ms Rice-Clarke indicated that there were no calls from Ms Rice-Clarke’s telephone to a number known to have been used by the applicant after 21 November 2013. However they had SMS communications between 21 and 23 November in which Ms Rice-Clarke was seeking to meet up with the applicant to have a drink. The applicant declined, saying that she was too busy. The evidence also showed that on 5 December, Ms Rice-Clarke had called the applicant’s telephone number, but that there was no answer.

  8. Ms Rice-Clarke’s mother gave evidence of an occasion when she had to assist her daughter with instructions to get around Sydney. She recalled her daughter saying she had been “in an apartment somewhere” with a “friend” Louise.

  9. There was also evidence that between November 2013 and early 2014, Simon Diri and the applicant stayed from time to time at the Parramatta Meriton Apartments. Mr Diri did not give evidence.

  10. With respect to ground 2, it was contended that the trial judge had not adverted to or had misapprehended the defence case in relation to the assessment of this evidence, which was not so much that Ms Rice-Clarke was unreliable “on dates and the order of conversations” but that her credibility and reliability was to be assessed against the fact that the apartment meetings had never occurred at all.

  11. The following matters are said by the applicant to have had the consequence that it was not reasonably open to the trial judge to find that the apartment meetings and conversations occurred as described. The telephone records do not indicate that any meetings were arranged after 21 November 2013. Ms Rice-Clarke’s recollection of the circumstances of the two meetings, when tested, was not entirely consistent and varied. Her description of Mr Diri’s appearance as “Caucasian” did not necessarily correspond with the evidence describing his appearance. The conversation at the park, where she recalled again asking about the shooting, was not likely to have happened. That subject had already been covered and was not likely to have been raised in front of anyone else. Finally, the date of the prescription fraud meant that the meeting in the park could only have occurred in September 2013 and before the shooting.

  1. Considering first the adequacy of the trial judge’s reasons, although they deal with the subject of Ms Rice-Clarke’s credibility and reliability at a fairly general level, they nevertheless address the possibility not only that she may have been wrong about the timing of the apartment meetings, but also that she may have been wrong about the particular occasion on which any admissions were made (J[144], [149]). Ultimately, his Honour accepted that the admissions were made without making a specific finding that they were made at a particular meeting in an apartment.

  2. Directing himself to that evidence, the trial judge described it as “believable” and as given by someone who, at least by his assessment of her demeanour, appeared to be truthful (J[143]). In doing so, his Honour acknowledged that while her “relative timing of particular conversations and events may have been imprecise”, the terms of the conversations in which the admissions were made were “precise”.

  3. Noting that Ms Rice-Clarke was first asked to recall her conversations with the applicant almost four years after they had occurred (that being when she was first approached by police in New Zealand), the trial judge accepted that after such a period her recollection of the timing of events was likely to be uncertain.

  4. The question for this Court where a witness whose evidence is in issue has been assessed by the trial judge to be credible and reliable is to decide whether, notwithstanding that assessment – “by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence” – the Court is satisfied that [the judge], acting rationally, ought nonetheless to have entertained a reasonable doubt as to the veracity of the evidence (see Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]).

  5. Whilst it is plain that Ms Rice-Clarke’s evidence as to the circumstances surrounding her two visits to an apartment was vague and at times inconsistent, there was some uncontroverted evidence supporting there having been at least one occasion when she had met the applicant in an apartment.

  6. That evidence was as follows. In November 2013, Mr Diri and the applicant stayed from time to time at the Parramatta Meriton Apartments. Ms Rice-Clarke’s recollection in June 2017 was that the apartment may have been in Parramatta and not in the city. Her evidence was that she had difficulties getting to and from the apartment using public transport. Ms Rice-Clarke’s mother recalled an occasion in which she had guided her daughter in using public transport to return to Coogee, she having visited an apartment somewhere with a friend named Louise. Her daughter called her at least five times and ultimately arrived home a couple of hours later. For completeness, it should be added that her mother’s recollection was that she was told that the park meeting had occurred after the meeting in the apartment.

  7. Addressing the principal “discrepancy” relied on by the applicant, as the Crown submits, the telephone records do not support, nor do they exclude, the possibility of a communication between the applicant and Ms Rice-Clarke which resulted in one or more meetings in an apartment. At the same time the evidence indicated that between 21 and 23 November, Ms Rice-Clarke was seeking to meet with the applicant.

  8. In the end the evidence provided some support for there having been a meeting in an apartment in Parramatta, as Ms Rice-Clarke recalled. For that reason, and recognising the trial judge’s advantage in seeing and hearing the witness and his assessment of her credibility and reliability, we are satisfied that it was reasonably open to him to find that admissions were made in the terms found.

  9. It follows that it was reasonably open to the trial judge to take this evidence into account in assessing the applicant’s guilt by reference to the whole of the evidence.

(3) Motive and threats

The applicant’s motive to cause serious harm to Mr Pasnin

  1. The applicant challenges the trial judge’s acceptance of the Crown’s evidence establishing that the applicant had a motive to harm Mr Pasnin, presumably because it was not open to his Honour to do so. The applicant’s primary submission, directed to ground 1, is that the evidence relied on was of limited utility because it was dated and exaggerated. However, it is also suggested that the trial judge’s reasoning was inadequate in dealing with the defence submissions as to the limited utility of that evidence.

  2. Dealing with the ground 2 argument first, the trial judge sufficiently acknowledged the limited relevance of motive in the determination of guilt, noting that it could not in itself prove guilt (J[63]). He then considered the evidence relied on, including that of Ms Archbold and Ms Eid which was of threats made by the applicant toward Mr Pasnin in early to mid-2013 (J[123]). However, his Honour’s findings as to motive focussed on the matters which arose during the relationship between the applicant and Mr Pasnin, and he sufficiently exposed his reasons for doing so.

  3. At J[122], the trial judge found that the applicant had a motive to seriously harm or injure Mr Pasnin, arising from the events in late 2012 and early 2013, described at [11] above. They included the circumstances in which the relationship came to an end, including the applicant’s stabbing allegation which resulted in his arrest in March 2013.

  4. Separately, the trial judge accepted Ms Rice-Clarke’s evidence of the applicant’s statements in mid-2013 that she was going to have Mr Pasnin bashed or killed (see [57] above). Those threats of the applicant were later than those described as dated.

  5. Even in the absence of her evidence, it remained open to the trial judge to proceed on the basis that Mr Pasnin had “caused [the applicant] great pain, physically and emotionally” and that the events of late 2012 and early 2013 disclosed a reason for her to cause serious injury or harm to him (J[122]).

Mr Haile’s personal motives for killing or harming Mr Pasnin

  1. The trial judge considered the evidence did not disclose any circumstances which might have motivated Mr Haile personally to want to kill or seriously injure Mr Pasnin (J[153]). There was no evidence that Mr Pasnin owed a drug debt for which Mr Haile would or could be a collector (J[119]). The circumstances of the shooting did not include that before he shot Mr Pasnin there was some conversation between them (or an opportunity given for such a conversation) either about drug debts or any other matter (J[118]).

  2. In making those findings, the trial judge did not reverse the onus of proof by requiring that the applicant prove the existence of any such relationship or motive.

  3. Of the matters referred to above, only one was the subject of evidence which suggested the possibility of a relationship between Mr Haile and Mr Pasnin. The evidence was that of Ms Archbold that Mr Haile was the “Freddy” from whom she had purchased “pot” for $20 and after 7:41pm on 30 October 2013. The trial judge dealt with this subject at J[124]-[135] and rejected Ms Archbold’s evidence. In doing so, he also pointed out that even if Ms Archbold’s identification evidence were accepted, it did not follow that Mr Haile was known to Mr Pasnin. The trial judge described the evidence in that respect as “ambivalent” because the exchange of nods between Mr Pasnin and the supplier, about which Ms Archbold gave evidence, did not necessarily justify a conclusion that the supplier was known to Mr Pasnin, or that the supplier was Mr Haile. Furthermore, as his Honour emphasised at J[131] and as the uncontroversial facts as to what happened on 30 October show, if “Mr Haile knew Mr Pasnin (and vice-versa), then why would it be necessary for Mr Haile to have his identity confirmed?”

  4. Apart from those considerations, reference to the whole of the evidence shows that it was open to the trial judge to reject Ms Archbold’s identification evidence. His Honour was also justified in treating the reliability of that evidence as an issue raised by the parties’ arguments which he had to resolve.

  5. The other evidence relevant to this issue was as follows. Detective Mason gave evidence that the “Freddy” cannabis run in October 2013 used two telephone numbers, one ending ---787 and the other ending ---076; and that Mr Haile was working on a “Freddy” run on the afternoon of 30 October 2013. That evidence did not indicate when he stopped doing so on that evening.

  6. Mr Jones’ evidence was that he purchased “pot” from Mr Haile in the 6 to 8 months before the shooting. He was given a telephone number for the “Fred run” that Mr Haile answered. That number ended ---076, and in the previous 6 to 8 months when he had rung it, the only person who had answered was Mr Haile.

  7. Ms Archbold’s evidence was that she called the “Freddy” number ending ---787 at 7:41pm on 30 October 2013. Since Mr Pasnin had been released to bail on 21 August, they had tried to purchase cannabis using the phone on about two occasions, but there was no answer. However, after being shown further phone records, she accepted that in this period there were a number of “contacts or attempted contacts” between her number and that number.

  8. As the Crown accepted, there remained the possibility that on the evening of 30 October 2013, Mr Haile was answering, or undertaking supply runs for, the ---787 “Freddy” number.

  9. Ms Archbold’s evidence as to what happened on 30 October was that she got into the “Freddy” supplier’s car, she handed over the $20 and received the cannabis. She had not seen or purchased drugs from the supplier before. Her evidence in relation to the circumstances of the shooting was that she did not recognise the shooter (or man that she had seen on the stairs on the earlier occasion) as the supplier of the cannabis purchased earlier that evening. Rather, over time she “actually worked it out myself” that the shooter and supplier were one and the same person. That evidence was not consistent with evidence of Detective Mason.

  10. In his cross-examination of Ms Archbold, the applicant’s counsel at trial challenged the reliability of her evidence as to Mr Haile being the person from whom she had purchased the drugs. In response, Ms Archbold maintained that although she did not make the connection at the time of the shooting, she did so at some later stage in 2013.

  11. Detective Mason’s evidence was that Ms Archbold first made any “connection” between Mr Haile and the “Freddy” supplier in an interview with him on 22 May 2014. His recollection, refreshed from his contemporaneous notes of that interview, was that “I led her to that, but I cannot recall that conversation”.

  12. The other evidence possibly consistent with Mr Pasnin knowing Mr Haile as a supplier of drugs was Mr Haile’s statement to Mr Jones in the car on the evening of 30 October that he was going to pick up some money. However, for the reasons given above at [20], Mr Haile’s conduct on that evening, which essentially involved identifying and shooting Mr Pasnin without making any communication or providing any opportunity for the payment of money, was inconsistent with his purpose being as described to Mr Jones.

  13. By way of summary, the only evidence suggesting that Mr Haile knew Mr Pasnin was that of Ms Archbold identifying him as the supplier and as to what Mr Pasnin did and said after she returned to their car. As to the latter, she said to Mr Pasnin, “The man looked really stoned”, to which he replied, “Yeah, I know that guy”. Then after they left the car space and proceeded to drive past the “Freddy” vehicle, Mr Pasnin gave a “nod like, more respect kind of thing like, as acknowledgement”, or a “short nod”.

  14. It was open to the trial judge to treat the identification evidence of Ms Archbold as unreliable, having regard to the time it took for her to reach that conclusion and Detective Mason’s evidence that he led her to the conclusion that the supplier and shooter were the same person. His Honour was also justified in concluding that the evidence did not raise as a reasonable possibility that they were known to each other, even assuming Ms Archbold’s identification evidence was accepted, because of the ambiguity of Mr Pasnin’s nod and the likelihood that if they were known to each other, Mr Haile would have recognised and known his target on the first visit to the Dunmore Street apartment.

Proposed ground 3A

  1. At J[125] the trial judge gave himself a warning about the need for caution in accepting Ms Archbold’s identification evidence. Under Evidence Act 1995 (NSW), s 165(2), such a warning may be required to be given to a jury if requested by a party in a jury trial. However this was not a jury trial.

  2. The applicant submits that consistently with Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, under the general law there was no need for a warning in this case because Ms Archbold’s identification evidence was not disputed.

  3. In those circumstances, the applicant contends by proposed ground 3A there was a miscarriage of justice because the trial judge should have notified the defence that he proposed to give such a warning, so as to afford her an opportunity to make submissions as to why he should accept Ms Archbold’s identification evidence.

  4. That contention should be rejected. The applicant had that opportunity and made submissions on the reliability of this evidence, having undertaken a cross-examination of Ms Archbold which put the reliability of her evidence in issue.

  5. Furthermore, as the discussion above shows, Ms Archbold’s identification of Mr Haile did not emerge until well after the shooting, and then only as a result of a suggestion made by Detective Mason some seven months later.

  6. Whilst the Crown did not expressly take issue with the identification evidence, the trial judge correctly proceeded on the basis that its reliability was disputed, because it was part of the applicant’s case that Ms Archbold’s evidence as to the identification of the person she saw on the stairway as Mr Haile was not to be accepted.

  7. In making that argument, her closing written submissions (by para 31) questioned the reliability of the entirety of Ms Archbold’s evidence of what happened on 30 October 2013:

31. It is submitted that Lyndal Archbold’s account of events on the evening of 30 October 2013 could not be accepted. Her evidence as to why she could not make the connection between the shooter and ‘Freddy’, and where and in what circumstances she did finally make that connection, bring the entirety of her account into question.

  1. From the trial judge’s perspective, that submission (and the evidence itself) required that he address the identification of Mr Haile as the “Freddy”. As his Honour correctly observed, that aspect of her evidence was “most contentious”.

  2. Thus the defence case necessarily raised the reliability of Ms Archbold’s account of events. Her evidence as to why she could not make the connection between the shooter and “Freddy” was identification evidence, albeit not as to the identity of the defendant. Whilst there was no obligation for the trial judge to give himself a warning when considering whether to accept that evidence, there was no miscarriage of justice in his doing so.

  3. The real question is whether the applicant was in any sense denied the opportunity of making submissions against the rejection of Ms Archbold’s identification evidence. The applicant’s closing submissions put in issue the reliability of that and her other evidence. Those submissions followed a cross-examination challenging the reliability of her evidence including in relation to the identification of Mr Haile as the drug supplier.

  4. In those circumstances, the trial judge was not required to notify the applicant that he may not accept that evidence. That he might do so was a consequence of its being in issue. Nor was it necessary to give the applicant any further opportunity to make submissions as to why a particular aspect of her evidence should or should not be accepted. The reliability of that identification evidence had to be addressed, in circumstances where the Crown case was that Mr Pasnin was not known to Mr Haile. Finally, the trial judge did not suggest in the course of argument that he would proceed on the basis that the evidence was not in issue, or not to be addressed.

  5. There was no denial of procedural fairness in the trial judge proceeding as he did. The ground has no reasonable prospects of success and for that reason, leave to raise ground of appeal 3A should be refused.

(4) The payment from the applicant to Mr Haile

  1. In support of ground 1, two matters are raised with respect to the trial judge’s finding that in all the circumstances there was no arrangement, including for the sale of drugs, under which the applicant could have been required to pay the amount of $4,000 to Mr Haile other than in relation to killing Mr Pasnin (J[121], [151]).

  2. It is accepted that the recorded telephone calls were capable of establishing that the applicant owed Mr Haile $4,000, and that she arranged for it to be paid to him some time between the first of those telephone calls on 1 November 2013 and the pocket call on 3 November 2013. The applicant submits that there remained the reasonable possibility that there was some other reason for the existence and urgent calling in of such a debt.

  3. The circumstances and terms of the recorded telephone discussions make that most unlikely.

  4. In the context of what had happened and the applicant’s involvement, it was open to the trial judge to draw the following inferences from the communications between the applicant, Mr Pehar and Mr Haile (analysed at [28]-[32] above): 1) that the amount of $4,000 had become due as a result of the shooting; 2) that the need for its immediate repayment arose because Mr Haile had to depart the scene; and 3) that there was a connection between the applicant and the shooting which meant that she could not be seen with or connected to Mr Haile at that time.

  5. Finally, it is suggested by the applicant that a payment of only $4,000 is an “implausible fee for a contract injuring, let alone killing”. That may be. However, as the Crown suggests, that raises the possibility of other payments in addition to the $4,000. However, none of that makes less likely the fact of an arrangement whereby Mr Haile was to receive at least $4,000 from the applicant in return for the killing of Mr Pasnin.

Conclusion as to conviction appeal

  1. Neither of the grounds of appeal against conviction is made out. Having regard to the circumstances of the applicant’s involvement in the events of 29 and 30 October 2013 and subsequent payment of the amount of $4,000, it was open to the trial judge to be satisfied beyond reasonable doubt of the applicant’s guilt. This was not a case in which the trial judge must have had such a doubt, either in the terms contended for by the applicant, or otherwise.

  2. In the result, the applicant should be granted leave to appeal from her conviction and that appeal should be dismissed.

Ground 4: Sentence appeal

  1. Our conclusion as to the appeal against conviction makes it necessary to address the appeal against sentence raised by ground 4. The applicant submitted that the sentence was manifestly excessive for four reasons:

  1. She acted with an intention that grievous bodily harm be caused to the deceased, not that he be killed by shooting;

  2. She was relatively young at the time of the offence, being 23 years old. She had a traumatic childhood and youth;

  3. At the time of the murder, her criminal history included only driving offences. She subsequently committed an offence of stalk/intimidate, and two offences of using a false document to influence the exercise of a public duty. These were not offences of violence, and prior to her arrest for murder she had not been in gaol; and

  4. She suffered from Post-Traumatic Stress Disorder and depression. Those conditions, including because she would be separated from her daughter, would make her time in gaol more onerous than usual.

  1. The Crown submitted that each of those matters was referred to by the sentencing judge and was taken into account in the sentence imposed. The Crown submitted that his Honour's findings were generous to the applicant, particularly his Honour's finding of special circumstances to reduce the non-parole period to 60% of the head sentence. The Crown submitted that any lesser non-parole period would fail to reflect the minimum sentence necessary to give effect to the purposes of sentencing.

  2. In his findings, the sentencing judge held that the killing of the deceased was a contracted assault with the intention of inflicting grievous bodily harm and with the distinct possibility that death could result. His Honour held that the murder was well organised and planned over a significant period of time. A weapon was used, and the murder was committed without regard for public safety. In all of those circumstances his Honour held that the objective seriousness of the applicant’s offending was above the mid-range. That assessment is not challenged by the applicant.

  3. The sentencing judge noted that the applicant was 23 years of age at the time of the offending. He also detailed her deprived and violent childhood, which included being sexually abused by her grandfather who helped to raise her.

  4. The sentencing judge accepted the opinions of Dr Olav Nielssen and Dr Kerri Eagle, the psychiatrists who prepared reports on behalf of the Crown and the applicant respectively, that the applicant suffered from a depressive illness, a post-traumatic stress disorder and a substance use disorder in remission. The sentencing judge noted Dr Nielssen’s opinion that any comment regarding the applicant’s state of mind at the time of the offending was largely speculative, but that the relationship between her mental state and the arrangement for the co-offender to kill the deceased was likely to be the combination of a negative perception of her situation, anxiety about her own safety, and anger at her past treatment.

  5. The sentencing judge found that the applicant’s lack of a criminal history involving significant violence, the lack of previous custodial sentences to the offending, and the view of the psychiatrists as to the existence of post-traumatic stress disorder and depression, all disclosed factors that required a sentence which allowed a longer period under supervision in the community to facilitate treatment and rehabilitation.

  6. The sentencing judge noted that, ordinarily in a contract killing, the person who organises and/or procures the murder is relatively more culpable than the person who carries it out. His Honour said that in the present case, such a comparison was not appropriate. His Honour nevertheless gave consideration to parity issues and to the sentence which had been imposed upon the co-offender, being a head sentence of 32 years imprisonment with a non-parole period of 24 years.

  7. Finally, his Honour had regard to a sentence which had been imposed upon the applicant in 2017 for two counts of using a false document to influence the exercise of a public duty. The applicant had served one year and 10 months’ imprisonment for those offences. His Honour took the whole of that period into account as pre-sentence custody. In those circumstances, the applicant was sentenced to a non-parole period of 18 years’ imprisonment commencing 22 June 2015 and concluding 21 June 2033 with a balance of term of 12 years concluding 21 June 2045.

  8. The principles relevant to a consideration of a ground of manifest excess are set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

  9. The applicant submitted only that the sentence was manifestly excessive for the four reasons earlier mentioned. It was not submitted that the sentence was otherwise outside the reasonable range for a murder carried out pursuant to a contractual arrangement with a reasonable degree of planning and with the aggravated features taken into account by the sentencing judge. No comparable cases nor statistics were relied upon to point to error.

  10. The sentencing judge dealt with all four of the matters now put forward on behalf of the applicant. It is clear that his Honour had regard to all four of those matters when fixing the head sentence because his Honour made specific reference to them when considering the issue of parity with the co-offender. They formed part of the reason his Honour imposed a lower sentence on the applicant, notwithstanding that she was the person who planned and organised the murder. In fact, the applicant appears to have received the added benefit of a number of those matters being taken into account in the finding of a generous reduction in the statutory ratio for special circumstances.

  11. The sentencing judge provided an unusually long period on parole to assist the applicant in her rehabilitation. The applicant’s focus was on the head sentence, and the submission appeared to be that in fixing such a long balance of term the sentence became thereby manifestly excessive. The matter should not be approached in that way.

  12. The sentencing judge held that the offence was a very serious one. His Honour assessed it as being above the midrange of objective seriousness. Account was taken of the plaintiff’s subjective case, including her age, background, mental health issues, and minimal criminal record to fix the overall sentence, bearing in mind parity issues with the co-offender. It is not apparent that there was any misapplication of principle nor that the head sentence was so far outside the range of sentences that there must have been error.

  13. The sentence is not demonstrated to be plainly unjust or unreasonable.

  14. Leave to appeal against sentence should be granted and ground 4 should be dismissed.

Orders

  1. Accordingly, the orders of the Court are:

  1. Refuse leave to appeal on ground 3 and proposed ground 3A.

  2. Grant leave to appeal on grounds 1, 2 and 4.

  3. Dismiss the appeal.

**********

Amendments

13 April 2023 - Publication restriction lifted.

Decision last updated: 13 April 2023

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Most Recent Citation
Haile v R [2022] NSWCCA 71
Cases Citing This Decision

5

R v An; R v LM; R v WD [2022] NSWSC 1272
R v Thompson (No 1) [2022] NSWSC 1044
R v An; R v LM [2022] NSWSC 776
Cases Cited

14

Statutory Material Cited

3

Dhanhoa v The Queen [2003] HCA 40
R v Young [2020] QCA 3
Dhanhoa v The Queen [2003] HCA 40