R v Haile [2023] NSWSC 167

Supreme Court New South Wales

Medium Neutral Citation: R v Haile [2023] NSWSC 167 Hearing dates: 01 March 2023 Date of orders: 01 March 2023 Decision date: 01 March 2023 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: The Crown's further application to tender CCTV footage from 30 October 2013 is refused. Catchwords: EVIDENCE – admissibility – leave sought to reagitate admissibility of evidence excluded pre-trial – previous reasons for exclusion still relevant – further prejudice where forensic choices in witness cross examination already made and acted upon in absence of the evidence Cases Cited: R v Haile [2023] NSWSC 42 Category: Procedural rulings Parties: Rex (Crown) Daniel Haile (Accused) Representation: Counsel: D Patch (Crown) J Brock (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Jamieson Criminal Law (Accused) File Number(s): 2013/334195 Publication restriction: Nil

Judgment 1. HIS HONOUR: The Crown has applied for leave to revisit my earlier decision rejecting the tender of CCTV footage of events at the Dunmore Street unit block where Raymond Pasnin was fatally shot by the accused on the evening of 30 October 2013: see R v Haile [2023] NSWSC 42. Tender of that footage is opposed, although the application for leave was not. 2. The Crown's application arises in the following circumstances. Lyndal Archbold is currently giving evidence in the Crown case. Her cross-examination commenced last week and is nearing its conclusion. In the course of her evidence, Ms Archbold described the events at the time of the shooting, including the positions that she and Mr Pasnin were in when he was shot as well as the direction from which the sound of the shots had come. Ms Archbold's original description of these things is arguably consistent with movements of people that the Crown maintains, but which Mr Haile disputes, are discernible on the CCTV material. 3. Without expressing a concluded view of the matter, Ms Archbold has arguably given other versions of what happened that are inconsistent with the version originally given by her. I perceive that the Crown's principal, although not its only, concern is to introduce the CCTV footage into evidence in order to support the first version given by Ms Archbold in which she and Mr Pasnin emerged from the stairwell and turned left towards Dunmore Street, presumably followed by Mr Haile who came from behind them, and on the Crown case passing as he did so across the light shining from the same stairwell before shooting Mr Pasnin. 4. It is unnecessary to repeat the reasons for which I rejected the tender before the trial commenced. I remain satisfied that they are still determinative. However, I am not prepared to accede to the present application for a more fundamental reason. Mr Brock of counsel, who appears for Mr Haile, has cross-examined Ms Archbold over a number of days in a careful and methodical manner. He has quite unremarkably not adverted to the existence of the CCTV footage. I take it as accepted that his cross-examination would, or at least might, have been significantly different in structure and content if the disputed material had been part of the Crown case. Without elaborating upon that assumption, I simply observe that Ms Archbold's depictions on exhibit 1 of the relative positions of herself and Mr Pasnin would have been fertile ground for a comparison of where Mr Haile was, or where he came from and when. The forensic choices made by Mr Brock were reasonable and understandable. Mr Haile would in my view suffer an irreparable forensic disadvantage if Mr Brock were to be required to revisit his cross-examination of Ms Archbold if the CCTV footage were now to be introduced into evidence in the Crown case. 5. I should note that I am not critical of the Crown's renewed attempt to tender the CCTV material at this time. I indicated when first deciding the issue that the Crown should feel at liberty to do so if later events appeared to suggest that such a course was important. Ms Archbold's various, possibly irreconcilable, versions of what occurred understandably revived the Crown's interest in the importance that it might have.