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Supreme Court 21 December 2017

R v Spiteri-Ahern; R v Barber; R v Zraika (No 11)

[2017] NSWSC 1820

HomicidePublic order & justice offences
CRIME JUDGE ALONE TRIAL DISCUSSION OF CIRCUMSTANTIAL EVIDENCE AND DRAWING INFERENCES

Citation: R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820
Court: Supreme Court of New South Wales
Date: 21 December 2017
Judge: Rothman J

Background

On 30 October 2013, Daniel Haile shot and killed Raymond Pasnin at Pendle Hill, New South Wales. The Crown alleged that this killing was not the act of Haile alone, but the product of a broader criminal arrangement involving three other persons.

The first accused, Louise Spiteri-Ahern, was charged with murder on the basis that she and Haile formed a joint criminal enterprise to kill or cause grievous bodily harm to the deceased. The second accused, April Barber, was charged as accessory before the fact to that murder, on the Crown's theory that she agreed with Spiteri-Ahern to lure the deceased to the location where he was killed. The third accused, Amin Zraika (Barber's de facto partner), was charged with concealing a serious indictable offence by allegedly withholding from police his knowledge that Barber had "set up" the deceased.

The trial proceeded as a judge-alone matter. The accused had applied for separate trials due to concerns about the prejudicial spillover effect of evidence admissible against one accused being misused against another. Rothman J accepted the judge-alone format as being in the interests of justice, over the Crown's objection. The accused had previously faced a jury trial, which ended with the jury being discharged without verdict.

  • Whether Spiteri-Ahern was guilty of murder as a participant in a joint criminal enterprise with Haile.
  • Whether the Crown proved, beyond reasonable doubt, that Barber was an accessory before the fact by inciting, procuring, or aiding the commission of the murder.
  • Whether Zraika was guilty of concealing a serious indictable offence by failing to disclose Barber's alleged role to police.
  • How the principles governing circumstantial evidence, reasonable hypotheses inconsistent with guilt, and the drawing of inferences applied to each charge.
  • Whether the privilege against self-incrimination provided Zraika with a reasonable excuse for not disclosing information to police.

Decision

Murder: Spiteri-Ahern

Rothman J found Spiteri-Ahern guilty of murder. The Crown's case was largely circumstantial, and the court applied the established principle that individual facts need not each be proved beyond reasonable doubt, provided that the totality of the evidence establishes the ultimate factual conclusion to that standard. The court was satisfied that Spiteri-Ahern and Haile had an understanding or arrangement to kill or inflict grievous bodily harm on the deceased, and that Haile carried out the killing in furtherance of that joint criminal enterprise.

The judgment sets out the legal framework for joint criminal enterprise in some detail: the agreement between participants need not be express and may be inferred from surrounding circumstances; it must exist at or before the time of the offence; and each participant is treated as the agent of the others in carrying out the agreed criminal purpose. The Crown satisfied each of those elements to the requisite standard in Spiteri-Ahern's case.

Accessory Before the Fact: Barber

Barber was acquitted. The court found the Crown's explanation of the elements of accessory before the fact had been "less than satisfactorily explained," and the evidence did not establish her guilt beyond reasonable doubt. Rothman J noted some conceptual complexity in the utility of an accessory before the fact charge given that New South Wales criminal procedure has substantially eliminated the distinction between principals of the first and second degree, but those considerations were ultimately secondary to the factual findings.

Concealing a Serious Indictable Offence: Zraika

Zraika was also acquitted, for two related reasons. First, the court was not satisfied the Crown had proved the elements of the concealment offence to the requisite standard. Second, and independently, once Zraika became aware that police were investigating him in connection with the murder (having been informed by Barber of the police questioning she had undergone), he was entitled to invoke the privilege against self-incrimination. That privilege provided him with a reasonable excuse for not volunteering information to police about the murder or Barber's alleged role in it. The court held that this excuse defeated the concealment charge on an additional and separate basis.

Orders Made

  • Louise Spiteri-Ahern: guilty of the murder of Raymond Pasnin.
  • April Barber: not guilty of accessory before the fact to murder.
  • Amin Zraika: not guilty of concealing a serious indictable offence.
  • Verdicts entered accordingly.

Key Takeaways

  • A joint criminal enterprise does not require a formal or express agreement between participants. The arrangement may be inferred from surrounding circumstances and need only be in place at or before the time the offence is committed.

  • In a circumstantial case, the Crown is not required to prove each individual fact beyond reasonable doubt. The cumulative effect of the evidence must, however, establish the ultimate factual conclusion of guilt to that standard.

  • The privilege against self-incrimination can operate as a "reasonable excuse" for a person's failure to provide information to police about a serious offence, where that person is aware they are themselves under suspicion and investigation in connection with the same matter.

  • Divergent verdicts among co-accused tried together are entirely possible in a judge-alone trial. The court assessed the admissible evidence against each accused separately and reached different conclusions on each charge.

  • Where the Crown's articulation of the elements of a charge is insufficiently precise, that deficiency may contribute to an acquittal. The court noted that the elements of accessory before the fact were not the subject of adequate detailed explanation by the prosecution.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)

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