Citation: R v Haile [2023] NSWSC 42
Court: Supreme Court of New South Wales
Date: 6 February 2023
Judge: Harrison J
Background
The accused is charged with the murder of Ray Pasnin, allegedly shot on 30 October 2013 at a unit complex in Pendle Hill. The Crown's case is that the accused was solicited by the deceased's former partner, referred to here as the former partner, to commit the killing for a fee. It is not disputed that the accused fired the fatal shot. The accused's defence is that he shot the deceased in self-defence after the deceased produced a firearm during a drug transaction.
The accused was previously convicted at a first trial in 2016, but successfully appealed to the Court of Criminal Appeal and was granted a retrial. The retrial was listed to commence in February 2023 before Harrison J, who dealt with a series of preliminary evidentiary disputes in the week before trial.
Because the Crown intended to tender evidence the accused gave across six days at the first trial, a number of discrete passages from that testimony required individual rulings on admissibility. The court also dealt with the admissibility of CCTV footage and hearsay evidence relating to the alleged motive of the former partner to procure the killing.
Legal Issues
- Whether evidence from the accused's testimony at the first trial (including voir dire evidence) is admissible at the retrial, and which specific passages should be included or excluded
- Whether CCTV footage from near the shooting scene, previously rejected at the first trial, should be admitted at the retrial
- Whether hearsay evidence of the deceased's statements about the former partner is admissible to prove the state of their relationship and her motive
- Whether statements attributed to the former partner, including a threat and a remark about an apprehended violence order, are admissible
Decision
Issue 1: Prior testimony about the Rebels OMCG and the accused's subjective state of mind
The accused gave evidence at the first trial that he believed the deceased was associated with the Rebels outlaw motorcycle gang, and that he feared police and the deceased's associates after the shooting. This evidence was argued to be relevant to self-defence. The court agreed, finding that evidence of the accused's subjective belief about the deceased's gang association is at least relevant to the foreshadowed self-defence issue (at [14]). The court also noted that the Crown, in relying on prior representations of an accused, bears an obligation to adduce both inculpatory and exculpatory material, consistent with the principle in Nguyen v R (2020) 269 CLR 299 (at [13]).
Issue 2: Prior testimony about the Audi motor vehicle
The accused gave evidence at the first trial describing an Audi RS6 Avant. Evidence later emerged that the vehicle was an Audi S4, and the accused ultimately accepted this while maintaining his original belief. The court found this evidence could be interpreted as a lie but, if so, it was not inconsistent with the accused's defence and was in no sense exculpatory or inculpatory in a relevant way. The court rejected the evidence and ordered it excised from the first-trial testimony the Crown proposes to tender (at [22]).
Issue 3: Prior testimony about gunshot residue and other cross-examination passages
The court admitted evidence of gunshot residue found on the inside of the accused's waistband, finding it relevant to how the accused was carrying the gun and potentially to where the gun came from, a matter the jury would need to consider. The evidence was found to be prejudicial in the forensic sense but not unfairly so (at [25]). The court also admitted a passage in which the accused was challenged about whether he had constructed a false version of events, finding the questioning was essentially prefatory and a question for the jury (at [32]). A passage concerning hotel booking documents was deferred for clarification before a ruling could be made (at [29]). Questions about whether the accused had photographs of himself with the car were admitted as raising nothing unfairly prejudicial (at [34]).
Issue 4: CCTV footage
The Crown sought to rely on CCTV footage from stairwells at the unit complex. The court described the footage as so dark, grainy, and indistinct that its evidentiary value is close to zero and that no viewer could independently identify any individual depicted in it (at [38]). The court rejected the Crown's submission that other witness evidence would "corroborate" the footage, finding the footage cannot independently establish the proposition the Crown advanced and that jurors might improperly treat the footage as more reliable than it is simply because it is labelled "evidence" (at [40]). The footage was excluded on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused (at [42]).
Issue 5: Hearsay and motive evidence relating to the former partner
The court admitted a letter written to the deceased in gaol referencing the former partner's father, finding any prejudice to the accused was trivial (at [46]). A threatening statement attributed to the former partner, said to have been made to the deceased's mother approximately three weeks after the deceased went to gaol, was admitted. The court found that, although the accused raised concerns about tendency reasoning and the limited ability to test the evidence, these were addressed by the existence of substantial other motive evidence and the availability of appropriate jury directions (at [54]-[55]). A separate statement attributed to the former partner, made in the context of her having reported the deceased to police in relation to an apprehended violence order, was excluded. The court found this statement relates exclusively to the former partner's motivation in that discrete context and does not reliably inform whether she had a motive to kill the deceased (at [59]). The deceased's own statements to others about the former partner's behaviour were found admissible to prove the state of the relationship, and the accused's objections were characterised as going to weight rather than admissibility (at [67]-[68]).
Orders Made
- Evidence admitted in part
Key Takeaways
- Where the Crown tenders an accused's prior representations from an earlier trial, it bears an obligation to adduce both inculpatory and exculpatory material, so that evidence supporting the accused's state of mind relevant to a defence cannot simply be omitted (at [13]).
- CCTV footage of such poor quality that no viewer can independently identify individuals depicted in it may be excluded under s 137 of the Evidence Act 1995 (NSW) where there is a real risk that the jury will treat the footage as corroborating evidence it cannot, standing alone, actually support (at [38]-[42]).
- Prior testimony given by an accused on a voir dire at a first trial may be admissible at a subsequent retrial, consistent with principles recognised in Wong Kam-Ming v R [1980] AC 247 and applied in Australian courts (at [10]).
- Hearsay evidence of a deceased witness's statements about a co-accused's behaviour may be admitted to prove the state of a relationship relevant to an alleged motive, with objections about reliability and detail going to weight rather than admissibility (at [67]-[68]).
- A statement attributed to a person said to have solicited a killing, made in an unrelated context (an apprehended violence order complaint), does not automatically become admissible as motive evidence: the Supreme Court excluded such evidence where it related exclusively to the maker's motivation for a separate course of conduct and lacked sufficient connection to the alleged agreement to kill (at [59]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
Cases
- Nguyen v R (2020) 269 CLR 299; [2020] HCA 23
- R v Eastman (No 15) [2017] ACTSC 143
- R v Krivosic (No. 5) [2021] NSWSC 1566
- R v Mills [1986] VR 617
- R v Sparos [2018] NSWSC 740
- Wong Kam-Ming v R [1980] AC 247