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Supreme Court 16 March 2023

R v Haile

[2023] NSWSC 227

Homicide
EVIDENCE ADMISSIBILITY WITNESS TESTIMONY AND RELATED STATEMENT ACCUSED ACCUSED TENDER REJECTED

Citation: R v Haile [2023] NSWSC 227
Court: Supreme Court of New South Wales
Date: 16 March 2023
Judge: Harrison J

Background

The accused, Mr Haile, stood trial for the murder of Raymond Pasnin. The Crown's case was that he had been contracted by Mr Pasnin's former girlfriend, Louise Spiteri-Ahern, to shoot Mr Pasnin. Ms Spiteri-Ahern had previously been tried separately before Rothman J, sitting without a jury, and convicted of murder on that basis.

The Crown sought to call Melissa Simms, a neighbour who had lived in the same apartment complex as Ms Spiteri-Ahern and Mr Pasnin around 2012. Ms Simms's statement described a pattern of volatile and threatening behaviour by Ms Spiteri-Ahern towards Mr Pasnin, including threats to have him bashed and to strangle him in his sleep. The Crown argued this evidence was relevant to Ms Spiteri-Ahern's motive to arrange the killing.

Ms Simms had given evidence at Ms Spiteri-Ahern's 2017 trial, and during those proceedings had expressed unsolicited opinions about criminal responsibility and described herself as a voice for the deceased.

  • Whether the probative value of Ms Simms's evidence was outweighed by the danger of unfair prejudice to Mr Haile, such that it should be excluded
  • Whether a photograph of Ms Spiteri-Ahern posing with what appeared to be a semi-automatic pistol was relevant to any fact in issue in the Crown case, and whether its tender should be rejected

Decision

Harrison J excluded Ms Simms's evidence on the basis that its probative value was outweighed by the danger of unfair prejudice to Mr Haile. The court identified two interlocking difficulties. First, Ms Simms had a demonstrated tendency in the 2017 trial to volunteer inadmissible opinions, including her view that Ms Spiteri-Ahern was responsible for Mr Pasnin's death. The risk of her repeating such an opinion in the present trial was not merely theoretical.

Second, and more fundamentally, the existence of those prior opinions placed defence counsel in an irreconcilable position. Counsel would ordinarily wish to use Ms Simms's prior statements to challenge her credibility and expose bias or prejudgment. However, doing so would risk alerting the jury to the fact that Ms Spiteri-Ahern had been tried and convicted. Counsel could not protect Mr Haile's interests without simultaneously drawing attention to Ms Spiteri-Ahern's conviction, a conflict Harrison J described as a "Catch-22" for which there was no obvious solution.

The court also noted a further and significant difficulty. Ms Simms's evidence attributed threatening statements to Ms Spiteri-Ahern made entirely outside Mr Haile's presence. He had no means of knowing whether those statements were made or challenging their accuracy, and defence counsel had no instructions or other basis from which to test them. Given the potential importance of motive to the case against Mr Haile, this compounded the prejudicial effect of the evidence.

On the photograph, Harrison J rejected the tender for want of relevance. The Crown had not clearly identified what fact in issue the image was said to prove. The Crown's own case was that Mr Haile arrived at the scene already armed, not that Mr Pasnin was armed that night. The court noted the photograph might conceivably have assisted the defence in arguing Mr Pasnin was armed, but Mr Haile objected to it, and the court found it was devoid of relevance to the Crown case.

Orders Made

• Ms Simms' evidence is excluded as its probative value is outweighed by the danger of unfair prejudice to Mr Haile
• The photograph of Ms Spiteri-Ahern with a pistol is rejected as devoid of relevance

Key Takeaways

  • Where testing a witness's credibility in cross-examination would inevitably expose the jury to a co-accused's prior conviction, a court may find the resulting prejudice to the accused is not curable and outweighs the evidence's probative value.
  • A witness's demonstrated tendency in earlier proceedings to volunteer unsolicited and inadmissible opinions is a relevant consideration in assessing the risk of unfair prejudice if that witness is called in a subsequent trial.
  • Evidence that a third party made threats outside an accused's presence and knowledge carries heightened prejudicial potential where counsel has no instructions or other basis from which to test whether those statements were made at all.
  • Relevance to the Crown case, not to a theoretical case for the defence, governs whether a piece of evidence should be admitted on the Crown's tender. A photograph the Crown could not explain as probative of any fact in issue in its own case was rejected as devoid of relevance.
  • The Supreme Court's reasoning illustrates that the "Catch-22" structure of a cross-examination dilemma, where protecting the accused's interests on one front unavoidably damages those interests on another, can be decisive in an unfair prejudice analysis.

Legislation and Cases Referenced

No legislation or cases were cited in the text of the judgment as provided. The admissibility analysis proceeded by reference to the general principle that evidence may be excluded where its probative value is outweighed by the danger of unfair prejudice to the accused, consistent with the framework established under the Evidence Act 1995 (NSW), though that Act was not expressly named in the judgment extract.