intention to kill Mr Pasnin or to inflict really serious injury upon him. ... identified by Ms Barber for the purpose of
Judgment Summary Supreme Court New South Wales
R v Spiteri-Ahern; R v Barber; R v Zraika [2017] NSWSC 1820 Rothman J The Supreme Court in a judge alone criminal trial, has found Ms Louise-Catherine SpiteriAhern guilty of the murder of Mr Raymond Pasnin; Ms April Barber not guilty of accessory before the fact to the murder; and Mr Amin Zraika not guilty of concealing a serious indictable offence, in a judge alone criminal trial. A fourth co-offender, Mr Daniel Haile was found guilty of murder by a jury in a previous trial before RS Hulme AJ in 2016. The jury was discharged in relation to the three co-accused, Ms Spiteri-Ahern, Ms Barber and Mr Zraika because they were unable to reach a verdict on Ms Spiteri-Ahern. These proceedings were the re-trial of the current accused. Ms Spiteri-Ahern The Crown alleged that Ms Spiteri-Ahern was guilty of the murder of Mr Pasnin as part of a joint criminal enterprise with Mr Haile, in that Ms Spiteri-Ahern and Mr Haile agreed to kill or inflict really serious injury on Mr Pasnin. In order to prove the charge against Ms Spiteri-Ahern, the Crown was required to prove beyond reasonable doubt that the death of Mr Pasnin was caused by the deliberate act of Mr Haile and that Mr Haile's conduct was the act causing death and was done with an intention to kill Mr Pasnin or to inflict really serious injury upon him. On this, the Court took into account the evidence of Mr Tom Jones (a pseudonym), the driver of the vehicle which took Mr Haile to the scene of the shooting at Dunmore St, Pendle Hill on the night of the shooting. Of note, after the first trip to the unit block on 30 October 2013, Mr Haile returned to the car “cursing” “some bitch” that “he was meant to be there”. Mr Haile left the vehicle, saying that he needed to call “her” as he wasn’t sure if the person that he saw was the right person. Mr Haile called Ms Spiteri-Ahern. On return to the unit block, Mr Jones, parked in the entrance of units in Goodall Street and heard a few gunshots from 5 to 10 metres on the other side of the fence. Mr Haile ran back to the vehicle and got in, asking Mr Jones to “just be quiet and go”. Mr Haile changed his clothes in the car and left the bag of clothes that he wore in the car. Mr Jones also saw Mr Haile with a gun. Mr Jones later heard that there had been a fatal shooting at Pendle Hill and rang the police and provided the clothes and car, which testing revealed DNA not inconsistent with Mr Haile’s DNA and fingerprints and also gunshot residue. The Court accepted the evidence of Mr Jones and concluded beyond reasonable doubt that Mr Haile shot and killed Mr Pasnin with an intention, at least, to cause really serious injury. This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
The Crown was also required to prove beyond a reasonable doubt that the participation of Ms Spiteri-Ahern in the joint criminal enterprise makes her responsible for the acts of Mr Haile in committing the murder. The Court took into account the evidence of Mr Jones, such as statements made by Mr Haile to Mr Jones between the time of his collection and at the time of the shooting. There was no evidence in the proceedings of a motive for Mr Haile to kill or injure Mr Pasnin. The call charge records, along with other evidence in the proceedings such as the evidence of the conversations between Mr Jones and Mr Haile, allowed the Court to conclude beyond reasonable doubt that Ms Spiteri-Ahern relayed the information in relation to Mr Pasnin’s whereabouts to Mr Haile proving, with other material, that Ms Spiteri-Ahern was jointly responsible for the murder. The Court took into account that Ms Spiteri-Ahern had a motive and expressed significant animus toward Mr Pasnin, citing evidence of threats made to Mr Pasnin by Ms SpiteriAhern said to Ms Archbold, partner of Mr Pasnin at the time of the murder, and Ms Eid, the mother of Mr Pasnin. Ms Rice-Clarke, friend of Ms Spiteri-Ahern during 2013, also gave evidence of an expressed intention by Ms Spiteri-Ahern to kill Mr Pasnin throughout a number of conversations between Ms Rice-Clarke and Ms Spiteri-Ahern. Ms Spiteri-Ahern also admitted to Ms Rice-Clarke that she organised for Mr Pasnin to be killed. The Court also accepted the evidence of recorded telephone conversations and the evidence of Mr Pehar, who was a manager of the drug syndicate, in relation to the payment of $4,000 by Ms Spiteri-Ahern to Mr Haile for which there was no other relevant reason. The Court concluded that evidence of the combination of factors proves, beyond reasonable doubt, that Ms Spiteri-Ahern was a participant in a joint criminal enterprise with Mr Haile in which, for payment, Mr Haile agreed with Ms Spiteri-Ahern that he would engage in the conduct and Ms Spiteri-Ahern would provide the location of Mr Pasnin. Ms Barber The Crown alleged that Ms Barber is guilty of accessory before the fact to the murder of Mr Pasnin in that she agreed with Ms Spiteri-Ahern to organise for Mr Pasnin to be at the place identified by Ms Barber for the purpose of being killed or inflicted with grievous bodily harm, which, in fact, Ms Spiteri-Ahern relayed to Mr Haile. The Crown was required to prove a causal link between that which was done by the accessory before the fact and the commission of the offence. That causal link does not need to be direct, but it must be in existence. Ms Barber did not need to perform the act with the intention that the crime be committed, but she must have believed, at the time of the conduct, that the commission of the offence by Ms Spiteri-Ahern was a distinct possibility. Lastly, Ms Barber, to be convicted, must have known the facts, and not merely have had a suspicion, which must be proved to show that the offence has been committed. An element of this offence is the guilt of Ms Spiteri-Ahern of the murder of Mr Pasnin. The Court accepted that Ms Barber “set up” Mr Pasnin. Communications between Ms Barber and Mr Pasnin and between Ms Barber and Ms Spiteri-Ahern indicate that the information provided by Ms Barber to Ms Spiteri-Ahern as to the whereabouts of Mr Pasnin was not an innocent or accidental divulging of information. The Court referred to evidence of Ms Barber and Ms Spiteri-Ahern having met at Woolworths on the night of 30 October 2013 at around 10.05pm at which time Ms Barber may have told Ms Spiteri-Ahern that she was going to collect her daughter with Mr Pasnin, Miss A, that night. A number of This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
falsehoods were told by Ms Barber to the police and within her recorded interview, such as the circumstances of her conversations with Ms Spiteri-Ahern. The Court found that the Crown did not prove beyond reasonable doubt that Ms Barber was aware that the purpose of the information she was providing to Ms Spiteri-Ahern was for the purpose of inflicting really serious injury or for the purpose of killing him. The Court accepted that there are reasonable inferences available that the confrontation with Mr Pasnin was, for example, to be a threat without any violence. In relation to conversations in evidence, between Mr Barber and Mr Zraika, which involve admissions by Ms Barber that she “set up” Mr Pasnin, the Court noted that these conversations occurred after Ms Barber was aware that Mr Pasnin had been murdered at the location and time that she arranged for him to be there. The Court found that the Crown did not prove beyond a reasonable doubt that murder or the infliction of really serious injury was within Ms Barber’s contemplation. Mr Zraika The Crown alleged that Mr Zraika is guilty of concealing a serious indictable offence in that he knew that Ms Barber had “set up” Mr Pasnin and this information was concealed from the Police. In order to prove the charge against Mr Zraika, the Crown was required to prove beyond reasonable doubt, that: Ms Barber had committed a serious indictable offence; Mr Zraika knew or believed that the offence had been committed; Mr Zraika knew or believed that he had information which might have been of material assistance in securing either the apprehension of Ms Barber or the prosecution or conviction of Ms Barber for the offence; and that Mr Zraika failed, without reasonable excuse, to bring that information to the attention of a member of the police force. On the first point, the Court has found Ms Barber not guilty. The Court noted that Mr Zraika was interviewed by police and did not inform the police of the terms of the conversations with Ms Barber in which she admitted that she had “set up” Mr Pasnin. The Court found that Mr Zraika did have the opportunity to bring information to the attention of a member of the police force. However, the Court found that Mr Zraika did have a reasonable excuse in not providing information to the police. The Court noted that Mr Zraika was interviewed by police after the interview of Ms Barber and that it would have been a reasonable view, on the questioning of Ms Barber, that police were interested in questioning Mr Zraika in determining his possible role in the murder. Ms Barber, on the evidence, informed Mr Zraika of the nature of the police questioning. Mr Zraika was entitled, under the privilege against self-incrimination, not to answer questions from the police and not to volunteer information.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
