R v Haile

HIS HONOUR: During the course of this trial, evidence was led to the effect that the accused Daniel Haile asked the witness known as “Tom Jones” to dispose of the clothes that Mr Haile was wearing on the night of 30 October 2013 when he returned to Mr Jones’ vehicle following the fatal shooting of Raymond Pasnin. Mr Jones gave evidence about this, which included a description of Mr Haile changing his clothes in the vehicle. Mr Jones also said that Mr Haile asked him rhetorically what he was supposed to do with the gun that he had used to shoot Mr Pasnin. That is not intended to be a complete description of what occurred. For present purposes, the evidence that is the subject of the direction sought by the Crown may be compendiously described as post-offence conduct.

The Crown sought a direction to the effect that the jury should be warned about the way in which this evidence could be used. The Crown maintained that it was conduct that demonstrated a consciousness of guilt and that a warning in terms of Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, appropriately modified, should be given. Mr Haile opposed that course for a number of reasons, including that he was disinclined to support any further judicial discussion of the evidence concerned, even despite the potentially advantageous exhortation of caution to the jury that it would entail.

These competing contentions were offered without reference to any particular form of words in which the contested direction might be given. However, in the course of the debate it appeared to me that, after a specific reference to the conduct concerned, a direction in terms to the following effect would have been appropriate:

In addressing the jury, the Crown quite understandably posed the rhetorical question of why a person in Mr Haile’s position would have required a change of clothes if he attended the scene of the shooting merely for the purpose of collecting a drug debt or additionally for the purpose of supplying Mr Pasnin with more drugs. The Crown also asked why in those circumstances Mr Haile would have sought Mr Jones’ assistance in disposing of the clothes that he discarded and placed in a plastic bag. Finally, the Crown drew attention to the curious fact that, if Mr Haile had acted in self-defence, as he asserted, the act of throwing the gun he used to shoot Mr Pasnin into the Parramatta river, and which on Mr Haile’s own account he wrested from Mr Pasnin in a struggle, would on one view have been at odds with an innocent explanation for the death.

The Crown addressed the jury for three days. Counsel for Mr Haile then addressed the jury for a further two days, commencing at approximately noon on Friday 31 March and concluding on Tuesday 4 April. It will be apparent that when I commenced to sum up to the jury on Wednesday 5 April, it was more than four and a half days since the Crown’s final remarks had concluded, including the weekend. It was in those circumstances that counsel for Mr Haile expressed no particular enthusiasm for a direction from me which would have revisited evidence that potentially posed significant difficulties for Mr Haile.

In the events that occurred, I declined to give the direction sought. Counsel for Mr Haile specifically accepted that he was foregoing whatever advantage may have accrued to Mr Haile from that part of the direction that emphasised the limitations upon the way in which the jury could use the evidence. In the absence of any authority that required the direction to be given regardless of the accused’s opposition to that course, I considered that Mr Haile’s concerns should be given full weight.

The Crown also sought a s 165(b) Evidence Act 1995 warning with respect to Mr Haile’s evidence and lies which the Crown maintained had been told by him in the course of his first trial in 2016. The Crown did not contend that Mr Haile had told lies out of court that were evidence of a consciousness of guilt. I declined to give such a direction upon the basis of the decision in Proud v R (No 2) [2016] NSWCCA 44 at [68] – [73].