R v Haile

1. [1]

   HIS HONOUR: Daniel Haile is due to stand trial before me and a jury charged that on 30 October 2013 at Pendle Hill in the State of New South Wales he murdered Ray Pasnin. The trial was originally listed on 6 February 2023, but on Mr Haile’s application, which the Crown did not oppose, I adjourned it for one week. The trial will now commence on Monday 13 February 2023.

2. [2]

   One significant reason for the adjournment related to the need to deal with significant historical publicity concerning the allegations against Mr Haile that arose in the context of previous proceedings for the same offence. Mr Haile was originally tried before R S Hulme J in 2016. Those proceedings generated a large amount of media attention, in the form of news reports and commentary, that remains available and electronically accessible on various Internet sites throughout New South Wales and beyond. Part of the reporting of the trial included the fact that Mr Haile was convicted. News items on the Internet reporting Mr Haile’s conviction continue to be available notwithstanding the fact that he successfully appealed to the Court of Criminal Appeal. Mr Haile’s trial next week follows from orders made in his appeal proceedings.

3. [3]

   As presently advised, argument about whether or not the offending historical material should be taken down for the duration of the new trial is scheduled to take place before me on 6 February 2023. The attitude of media outlets to that application will be considered at that time. There is no suggestion that the fair reporting of the upcoming proceedings should also be restricted. The only current concern is that potential or prospective jurors might inadvertently, or even intentionally, gain access to what would now be prejudicial historical media commentary so as to imperil the fairness of the trial.

4. [4]

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

Edits to evidence given by Mr Haile at his first trial

1. [5]

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

2. [6]

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

3. [7]

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

4. [8]

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

5. [9]

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

6. [10]

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

7. [11]

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

8. [12]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

9. [13]

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

10. [14]

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

11. [15]

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

12. [16]

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

13. [17]

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

14. [18]

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

15. [19]

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

16. [20]

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

17. [21]

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

18. [22]

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

19. [23]

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

20. [24]

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

21. [25]

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

22. [26]

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

23. [27]

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

24. [28]

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

25. [29]

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

26. [30]

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

27. [31]

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

28. [32]

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

29. [33]

    Finally, Mr Haile was asked these questions at T2493:

30. [34]

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

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

1. [35]

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

2. [36]

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

3. [37]

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

4. [38]

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

5. [39]

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

6. [40]

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

7. [41]

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

8. [42]

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

Admissibility of evidence relating to third parties

1. [43]

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

2. [44]

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

3. [45]

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

4. [46]

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

5. [47]

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

6. [48]

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

7. [49]

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

8. [50]

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

9. [51]

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

10. [52]

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

11. [53]

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

12. [54]

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

13. [55]

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

14. [56]

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

15. [57]

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

16. [58]

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

17. [59]

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

18. [60]

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

19. [61]

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

20. [62]

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

21. [63]

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

22. [64]

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

23. [65]

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

24. [66]

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

25. [67]

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

26. [68]

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

Jury directions in previous trials

1. [69]

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