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Supreme Court 12 April 2023

R v Haile

[2023] NSWSC 351

Homicide
CRIMINAL LAW JURY DIRECTIONS JURY DIRECTIONS S165(B) “LIES” DIRECTION

Citation: R v Haile [2023] NSWSC 351
Court: Supreme Court of New South Wales
Date: 12 April 2023
Judge: Harrison J

Background

The accused stood trial for the fatal shooting of Raymond Pasnin on the night of 30 October 2013. A witness referred to in proceedings as "Tom Jones" gave evidence that, after the shooting, the accused changed his clothes in the witness's vehicle, asked for those clothes to be disposed of, and made a remark about the gun he had used. The accused's case was that he had acted in self-defence.

The Crown relied on this post-offence conduct as evidence of a consciousness of guilt. Two distinct directions were sought from Harrison J during the summing-up: a so-called Edwards direction about post-offence conduct, and a statutory warning under s 165(b) of the Evidence Act 1995 (NSW) relating to alleged lies told by the accused during an earlier trial in 2016.

Both directions were opposed, and Harrison J ruled on each before delivering the summing-up to the jury.

  • Whether an Edwards direction on post-offence conduct should be given where the Crown sought it but the accused opposed it, fearing the direction would revisit potentially damaging evidence.
  • Whether a s 165(b) Evidence Act warning was required in relation to alleged lies told by the accused during a prior trial, in circumstances where those lies were not said to be out-of-court admissions or evidence of consciousness of guilt.

Decision

On the Edwards direction, the Crown argued the jury should be told how to use the post-offence conduct evidence, including both its permissible uses and its limitations. The accused opposed the direction on tactical grounds: any further judicial attention to the evidence, even with cautionary qualifications, risked reinforcing material that posed significant difficulties for the defence. By the time the summing-up commenced, more than four and a half days had passed since the Crown's final address, and defence counsel had concluded two days of address only the day before.

Harrison J declined to give the Edwards direction. His Honour found no authority compelling the direction to be given over the accused's opposition. In those circumstances, the accused's concerns were given full weight, and the court accepted that defence counsel had knowingly foregone whatever benefit the cautionary elements of the direction might have provided.

On the s 165(b) lies direction, the Crown did not contend that any lies had been told outside court in a way that demonstrated consciousness of guilt. The alleged lies related to the accused's evidence during his first trial in 2016. Relying on the Court of Criminal Appeal's reasoning in Proud v R (No 2) [2016] NSWCCA 44 at [68]–[73], Harrison J declined to give the direction. The judgment does not expand on the detail of that reasoning, but the citation indicates it was treated as directly applicable and dispositive.

Orders Made

No orders were made in this decision.

Key Takeaways

  • An Edwards direction on post-offence conduct need not be given where the accused opposes it and no authority compels the direction regardless of that opposition, at least on the facts here. The court treated the accused's informed tactical decision as sufficient reason to decline the direction.
  • Where defence counsel accepts the consequences of forgoing an Edwards direction, including the loss of any cautionary benefit to the accused, that acceptance is a material consideration in the court's exercise of discretion.
  • A s 165(b) Evidence Act 1995 (NSW) lies warning does not automatically arise from an allegation that the accused told lies during a previous trial. The Crown's concession that those lies did not constitute out-of-court admissions evidencing consciousness of guilt was central to the refusal.
  • The decision applies the Court of Criminal Appeal's analysis in Proud v R (No 2) [2016] NSWCCA 44, confirming that case's reasoning governs the threshold for s 165(b) directions in analogous circumstances.
  • Harrison J set out, in detailed illustrative terms, the form of direction that would have been appropriate had the Edwards direction been given, providing a useful reference point for what such a direction should address and how it should be framed.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 165(b)

Cases:
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Proud v R (No 2) [2016] NSWCCA 44