R v Spiteri-Ahern; R v Barber; R v Zraika (No 7) [2017] NSWSC 1329 (26 September 2017)

Last Updated: 13 April 2023

Supreme Court New South Wales

Case Name:	R v Spiteri-Ahern; R v Barber; R v Zraika (No 7)
Medium Neutral Citation:	[2017] NSWSC 1329
Hearing Date(s):	26 September 2017
Date of Orders:	26 September 2017
Decision Date:	26 September 2017
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	The Court rejects the evidence sought to be adduced by the Crown on the grounds that its only relevance or its overwhelming relevance is unfairly prejudicial.
Catchwords:	EVIDENCE – guilt by association – probative value – unfairly prejudicial effect – evidence rejected
Legislation Cited:	Evidence Act 1995, ss 55, 135, 137
Category:	Procedural rulings
Parties:	2014/00180060: Regina (Crown) Louise Catherine SPITERI-AHERN (Accused) 2014/00180279: Regina (Crown) April BARBER (Accused) 2014/00235123: Regina (Crown) Amin ZRAIKA (Accused)
Representation:	Counsel: 2014/00180060: D Patch (Crown) J Trevallion (Accused) 2014/00180279: D Patch (Crown) A Francis (Accused) 2014/00235123: D Patch (Crown) Dr R Webb (Accused) Solicitors: 2014/00180060: Office of the Director Public Prosecutions (Crown) Archbold Legal Solutions (Accused) 2014/00180279: Office of the Director Public Prosecutions (Crown) Bannisters Lawyers (Accused) 2014/00235123: Office of the Director Public Prosecutions (Crown) Macquarie Lawyers Burwood (Accused)
File Number(s):	2014/00180060; 2014/00180279; 2014/00235123

EX TEMPORE JUDGMENT

1. HIS HONOUR: Because it has been said by the Crown in these proceedings that it is a common mistake, presumably of Supreme Court judges and/or the Court of Criminal Appeal, to treat the proviso of a qualification or exceptions to the Evidence Act 1995 (“the Act”) as rendering material admissible as distinct from simply a qualification, it is appropriate that I deal at greater length than might otherwise be the case with the issue that is currently before the Court.
2. The Crown seeks to adduce evidence of what is said to be an association between the accused Spiteri-Ahern and members of the Rebels Outlaw Motorcycle Gang (“The Rebels”). The evidence, upon which, for that purpose, the Crown relies, is some material that is already in evidence and therefore to which this objection and these reasons for judgment do not apply, and it is unnecessary to go to that evidence.
3. The remainder of the evidence consists of an extract of a page and photographs from the Facebook account of the accused Ms Spiteri-Ahern. In one photo on that page there is a scene, which I am told and accept, is Ms Spiteri-Ahern receiving a kiss on the cheek from a person who is a well-known member of The Rebels. The second item is a COPS entry being an entry in the continuing journal used by police for the reporting of incidents. It is said, notwithstanding that the evidence of the COPS entry would necessarily be hearsay, that the creator of the material or entry could be called, thereby overcoming any objection that might be made on the basis that the entry might be hearsay and not proof of the truth of its contents.
4. I am not sure that the hearsay rule would apply to it simply because it is a document, being a business record, which may be admissible for the purposes of the proceedings for the limited basis upon which it is sought to be adduced. The material also relies upon entries in a schedule which shows that on some dates, there were communications between the accused Ms Spiteri-Ahern and the person who was previously referred to by these persons as a well-known member of The Rebels, Mr Vella.
5. Interestingly, from a position of conjecture, some of that communication occurred on 30 October 2013, the date of the murder. However, the Crown eschews any suggestion that the murder was arranged through Mr Vella or The Rebels, or that the shooter Mr Haile, who, on the Crown case, killed the deceased, was a member of, an associate of, an affiliate of, or otherwise connected to The Rebels.
6. As a consequence, the details of the communications between Ms Spiteri-Ahern and members of The Rebels, do not relate, expressly or directly, to any ultimate issue in these proceedings. The Crown says that the association of Ms Spiteri-Ahern to The Rebels goes to prove that the threat said to have been made to Ms Eid, relating to her family and expressly the deceased, were more likely to have been said and more likely to have been intended seriously, if, at the time they were made, there was an association in truth between Ms Spiteri-Ahern and The Rebels or its members, particularly a senior member.
7. Before the Court there is evidence of a threat or expression of ill will or animus between Ms Spiteri-Ahern and the deceased. That expression, it is said by Ms Eid, takes the form of the threat expressed to Ms Eid, which on her evidence, if it were accepted, expressly refers to bikies and in particular an uncle who was a bikie. It is not said by the Crown that the person to whom it refers in the evidence, now sought to be adduced, is Ms Spiteri-Ahern's uncle or cousin, not even in the extended sense used in indigenous language groups, for example, or in the sense sometimes used with a sexual connotation.
8. The question therefore becomes, as it is raised to the Court by objection, whether the material is relevant, and if it be relevant, whether it is excluded by the exercise of the provisions of s135 of the Act. I think the reference to s135 was a reference adopted from a suggestion from the Court and the reference ought properly be, in the current circumstances, to the provisions of s137 of the Act. By the provisions of s137, the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice.
9. The prejudice must be unfair. That is, the prejudice must be that the evidence will be used in a manner that is impermissible. It is unlikely, in circumstances where one is dealing with a judge alone trial, as the Court is here, that there is ever a danger of unfair prejudice to the defendant, that is, an assumption that the Court would use the evidence impermissibly.
10. If the Court were to use the evidence impermissibly, there is a right of appeal. However, since the Crown itself suggests it is a common mistake for the Court to misunderstand the operation of the Act, perhaps the terms of s137 do have some work to do in a judge alone trial.
11. The real question is whether the material that is sought to be adduced is relevant. If it be relevant, subject to the exceptions in the Act itself, if operable as a result of any qualification or proviso to those exceptions, it is admissible.
12. Relevant evidence is defined by s55 of the Act as, somewhat circuitously, evidence - by that, I take it the legislation means “material”, that “if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding”.
13. The fact in issue in the proceeding is not necessarily the ultimate question or not confined to the ultimate question. The issue before the Court, therefore, is whether the assessment of the probability of the existence of a fact in issue in the proceedings, is affected because the fact is rationally rendered more likely, or indeed less likely, by the admission of the material as evidence.
14. It is said that the material renders more likely the threat being issued. And it is said that it renders more likely that the threat, if it were issued, was uttered seriously.
15. The association with bikies does not impact upon the terms of any statement made to Ms Rice-Clarke. That, apart from conjecture, refers to persons inside and outside jail and does not refer to bikies expressly or otherwise.
16. In relation to the evidence of Ms Eid, as to the threat uttered to her, there are a number of aspects. First, as to the likelihood of it having been made at all, it seems to me the evidence does not, directly or indirectly, affect that likelihood.
17. It is at least as probable that Ms Eid, knowing of the association between Ms Spiteri-Ahern and Mr Vella, utilised that fact in the terms of the threat she says was uttered.
18. I do not, by that statement, suggest or imply that I do not believe Ms Eid nor accept the threat as uttered. But the addition of this material becomes extraordinarily circular. It is relevant to the existence of the threat only if the threat were made, and it is relevant to the seriousness of the threat only if the threat were made. I do not see how, somewhat circularly, the evidence of an association with bikies is relevant, being a term that I utilise using the definition in s55 of the Act, to whether Ms Spiteri-Ahern uttered the words.
19. I then deal with the question of the seriousness with which the threat was uttered. In some respects, this suggestion elides what is in truth in issue. What is in issue is motive. Whether a threat was uttered, and if so seriously, is relevant to the existence of motive. The existence of motive does not depend upon an association with bikies. It may render more probable that words utilising the term “bikies” was used in a threat if it were made. There is no suggestion in this case that there is a bikie association with this murder. As a consequence it seems to me, if there be any probative value in the association with bikies, it is a probative value of extraordinarily little weight.
20. Moreover, the process with which we are now dealing is a process which, stripped to its core, seeks, almost, to admit evidence, which will be utilised to prove guilt by association. Because, it is said, there is a close association with bikies, who, it is said, are notoriously involved in violence, therefore Ms Spiteri-Ahern is more likely to have uttered the threat and more likely to have done so seriously. It seems to me the fact of an association with the bikies is only relevant in the prejudicial sense and I reject the evidence.

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Amendments

13 April 2023 - Publication restriction lifted.