Lai v The Queen; Nguyen v The Queen

[2017] NSWCCA 263

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Lai v R; Nguyen v R [2017] NSWCCA 263
Hearing dates:	29 September 2017
Decision date:	15 November 2017
Before:	Hoeben CJ at CL at [1] Latham J at [2] N Adams J at [3]
Decision:	(1) Allow the appeals against conviction. (2) Quash the appellants’ convictions for aggravated robbery. (3) That there be a new trial of each appellant for the offence of aggravated robbery.
Catchwords:	CRIMINAL LAW – appeal against conviction – hearsay evidence of co-accused admitted pursuant to exception to hearsay rule in s 65(2)(d) – where decision of trial judge made before the decision of the High Court in Sio v The Queen – miscarriage of justice conceded by Crown – whether to apply proviso – whether to order new trial or enter verdicts of acquittal
Legislation Cited:	Bail Act 2013 (NSW), s 22 Crimes Act 1900 (NSW), ss 95(1), 98 Criminal Appeal Act 1912 (NSW), s 6(1) Evidence Act 1995 (NSW), ss 59, 65, 137, 165
Cases Cited:	Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Sio v R [2015] NSWCCA 42 Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 Youkhana v R [2013] NSWCCA 85
Category:	Principal judgment
Parties:	James Lai (Appellant) Vu Truong Nguyen (Appellant) Regina (Respondent)
Representation:	Counsel: Mr J Trevallion and Ms M Curry (Appellant Lai) Mr I Todd (Appellant Nguyen) Ms B Baker (Respondent)   Solicitors: S Alexander (Appellant Lai) S Tully (Appellant Nguyen) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/7641; 2013/5702
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 17 May 2016 Before: Culver DCJ File Number(s): 2013/7641; 2013/5702

Judgment

1. HOEBEN CJ AT CL: I agree with N Adams J and the orders which she proposes.

2. LATHAM J: I agree with N Adams J.

3. N ADAMS J:

Background

4. The appellants James Lai (“Lai”) and Vu Truong Nguyen (“Nguyen”) were tried before Culver DCJ at the District Court at Parramatta from 2 to 17 May 2016 on an indictment that alleged that they each had committed an offence of aggravated robbery of Sathia Ung contrary to s 95(1) of the Crimes Act1900 (NSW). On 17 May 2016, the jury delivered verdicts of guilty in respect of both of the appellants.

5. The Crown case was that, in the early hours of 31 March 2012, Mr Ung was robbed by four men, two of whom were the appellants. The third offender was Minh Tu (“Tu”), who had died by the time of the trial. The fourth offender was Binh Mai (“Mai”), who had pleaded guilty to aggravated robbery and been sentenced by the time of the trial.

6. On 10 July 2012, Mai participated in an Electronically Recorded Interview of a Suspected Person (“ERISP”) in which he confessed to his participation in the robbery. He also implicated both of the appellants and Tu. He gave evidence at committal and resiled from what he had said about the involvement of the appellants in the robbery. He was subpoenaed to give evidence at the trial, but failed to attend court. Police were unable to locate him.

7. The Crown made application to admit Mai’s ERISP into evidence under s 65(2)(d) of the Evidence Act1995 (NSW). The application was opposed. Judge Culver admitted the ERISP into evidence in reliance upon the principles derived from the decision of the Court of Criminal Appeal (“CCA”) in Sio v R [2015] NSWCC 42.

8. Judge Culver made her ruling on 28 April 2016. On 11 March 2016, special leave had been granted to the appellant in Sio v R to appeal the decision of the CCA to the High Court. The hearing of that appeal took place on 15 June 2016, at which time the Court reserved its decision. On 24 August 2016, the High Court overturned the decision of the CCA, which was relied upon by Culver DCJ, and held that the approach taken by the trial judge in that matter was incorrect.

9. It was conceded by the Crown on this appeal that the trial judge adopted an erroneous approach to the question of the admissibility of Mai’s ERISP under s 65(2)(d) of the Evidence Act. Thus, as was identified by the Crown Prosecutor at the hearing of this appeal, there are three questions that arise for consideration in this appeal. First, whether this Court should accept the Crown concession that error has occurred; secondly, if so, whether the proviso should be applied; and, thirdly, if the proviso is not to be applied, whether this Court should order that there be a retrial or enter verdicts of acquittal.

10. For the reasons given below, I am satisfied that the appeal should be allowed, the convictions set aside, and an order for a retrial made.

The Crown case at trial

11. The victim of the robbery was Mr Sathia Ung. There is no issue taken that he was the victim of a robbery in the morning of 31 March 2012 in which he was kicked and punched. The only issue in dispute is whether the appellants were participants in that robbery.

12. On 30 March 2012, Mr Ung was aged in his late fifties. He attended the Cabramatta Bowling Club at around 10 or 11pm, where he consumed four beers and began to play on the gambling machines in the club.

13. By shortly after 1am he had won $5,000 on the poker machines. He gave evidence that his wins had accumulated bit by bit over time. He was paid out at about 1:20am in the form of a cheque for $3,000 and $2,000 in cash. He then proceeded to continue playing on a different machine. During this time, CCTV footage shows that other men, who, on the Crown case, were Tu, Mai, Lai and Nguyen, were playing poker machines nearby. A gaming attendant, Mr Huynh, gave evidence that he knew Tu and he pointed out Tu on CCTV stills. The Crown Prosecutor relied upon the resemblance between the accused Nguyen and another man depicted in the CCTV, the sign-in records at the club, and the fact that Nguyen had, in an ERISP, identified himself in CCTV stills to prove that Nguyen was also present. He relied upon the resemblance between Lai and another man in the CCTV footage and on sign in records to prove that Lai was also at the club.

14. CCTV footage in the trial shows the appellants arriving at the club in a blue four-door sedan together with Tu and Mai at about 12:10am. There was also footage showing Mai, Tu and the two appellants, Lai and Nguyen, in a group of four playing the pokies within three or four metres of Mr Ung at the same time that he won the money. The gaming attendant, Mr Huynh, gave evidence that Tu and the three other men were looking over towards Mr Ung while they were playing. He gave evidence that, “Every time uncle would win on the roulette they would turn around though that was a bit normal when they sound.” The Crown Prosecutor suggested that CCTV footage from about 1:40am, after Mr Ung had been paid out, shows at least three of the four men looking towards Mr Ung shortly before closing time.

15. The club was due to close at 2am. At 1:49am, Mr Ung telephoned a friend, Mr Toch, who was a taxi driver, to drive him home. CCTV footage shows the four men within a few metres of Mr Ung at the time when he must have been making that call. Mr Ung left the club at about 2:05am. CCTV shows Nguyen, Mai, Tu leaving approximately two minutes before Mr Ung and walking to their vehicle, with the appellant Lai joining them shortly afterwards. They drove off in the same direction. The Crown Prosecutor submitted that they could be seen in CCTV footage driving slowly past the taxi that had been parked in front of their car. Mr Ung left in his taxi and was driven to his home in Villawood, which was a five to 10 minute drive away. On the Crown case, Mai, Tu and the appellants Lai and Nguyen followed Mr Ung in their car.

16. Upon arriving at his home on Koonoona Avenue, Mr Ung was assaulted and robbed of his wallet, which contained his remaining poker machine winnings of $1,600, the cheque, and his iPhone. The robbery occurred shortly before 2:21am, which was the time at which a triple-0 call was logged by an operator. The Crown Prosecutor suggested that it must have occurred at some point between 2:10am and 2:21am, accounting for difference in the time estimates given by witnesses. On the Crown case, there were four robbers: the three men who were observed by Mr Ung and his neighbours, Walid Marco and Hun Chong, as well as a fourth person who was the getaway driver. The Crown case was that the appellant Lai was driving and the other three men got out of the vehicle and robbed Mr Ung.

17. Mr Ung described his three attackers as Asian males, about 25 or 26 years old. He was sure that they were all Asian because of their height and the dark hair that they all had. He described them hitting him and, when he fell down, he said that they used their feet to kick his face and used their arms to punch him in the stomach. He stated that the three men all hit him. They did not say anything. He did not see what they were wearing. He could not see their faces very closely. He screamed to his neighbours to help him after the men assaulted him. They took his wallet, his cheque and his mobile telephone whilst he was lying on the ground. He saw them run and get into a four-door dark-coloured vehicle. He did not see anyone getting into the driver’s seat. The car drove away with its headlights and tail lights off.

18. The robbery was witnessed by two neighbours. Mr Marco was woken up by a disturbance in the early hours of the morning. He heard someone calling out “help” in a low voice and looked out his kitchen window. He saw a dark-coloured sedan with its headlights off parked at an unusual angle. He heard someone saying, “Walid, help.” He went to his balcony door and saw three males and the victim. He could not describe the three men and he did not see their faces. He saw that Mr Ung was on the ground and that one of the males was on top of him. It looked like he was trying to take something from Mr Ung. The assailants had left by the time that Mr Marco ran to assist Mr Ung. He called triple-0.

19. Hun Chong was at home in his lounge room watching television when he heard dogs barking and a scuffle. He looked out and saw Mr Ung on the ground. Before that, he saw three men. Two of them were kicking something on the ground and the third man appeared to be reaching for something. He was not able to see what they were kicking as the area was particularly dark. He heard Mr Ung cry for help. He ran downstairs but the men had gone by the time he got there. He gave evidence that Mr Ung was “…spitting up blood, his face was swollen, his shirt was ripped off, he was shaken, yeah.”

20. Mr Ung and Mr Marco both described the getaway vehicle as a dark-coloured four-door sedan.

21. In his closing address, the Crown Prosecutor noted that the main issue in the trial was the identification of Mr Ung’s three assailants. He submitted that it would seem far more likely that the robbers knew of the luck that Mr Ung had had at the club than that they had happened to rob someone who had $1,600 in cash. The phone numbers related to Mai, Tu and the two appellants did not make any calls around the time of the robbery. Relying on the propositions that Mai and Tu must have been two of the four robbers, the Crown Prosecutor submitted that it would have been impossible for Mai and Tu to substitute the appellants with two other young Asian males in the time between leaving the club and the robbery of Mr Ung in circumstances where they did not use their phones.

22. It was also part of the Crown case that the appellants, Mai and Tu arrived at the Star City Casino together shortly after the robbery. Records show that the appellant Lai used his membership card there at 2:54am on 31 March 2012. The police evidence was that it was 27.6km from Mr Ung’s unit to the Star City Casino. It would take less than half an hour to travel that distance at a speed of 60km/h. As the robbery must have occurred before 2:21am, there was sufficient time for the four men to travel to the Star City Casino.

23. Following the robbery, Mr Ung’s iPhone was used with a SIM card related to the mobile telephone number 0450 XXX 788. That SIM card was registered to Mr Tu’s former partner Ms Tran. When police spoke to Ms Tran, she told them that she had given the SIM card to Mr Tu’s sister, Lisa, so that they could stay in touch. Ms Tu told police that it had gone missing. Ms Tran told police that Tu had answered the phone when she called that number on one occasion.

24. At times, the number 0450 XXX 788 called Mai, Lai and Nguyen. The Crown Prosecutor submitted that whoever was using that phone knew Mai, Lai and Nguyen. The first use of the SIM relating to the number 0450 XXX 788 in the iPhone that had been stolen from Mr Ung, identified by its IMEI number, was on 1 April 2012; that is, the day after the robbery. For those reasons, the Crown Prosecutor submitted that Tu was in possession of Mr Ung’s stolen iPhone.

25. On 14 May 2012 at about midday, Detective Senior Constable Irving spoke to the appellant Lai’s sister and told her that he wanted to speak to Lai. He did not say why he wanted to speak to him. Call charge records show that she immediately telephoned the appellant Lai and, less than half an hour later, Lai telephoned the appellant Nguyen. He then telephoned Tu before attending Fairfield Police Station at about 4pm.

26. Lai was interviewed by police and told them that he was at the Cabramatta Bowling Club with friends on 30 March 2012 and that after he left the club he went straight to the casino in the city. He denied stopping anywhere on the way. When he left the police station, he telephoned Tu.

27. On 9 July 2012 at about 1pm, Detective Senior Constable Irving spoke to the appellant Nguyen. He told him that he wanted to interview him about a robbery in Koonoona Avenue in Villawood. He met with Nguyen the following day at Fairfield Police Station. Nguyen made a number of calls to Lai before and after meeting with Detective Senior Constable Irving.

28. On 10 July 2012, Mai was interviewed by police.

29. In December 2012, telephone intercepts recorded calls passing between Lai, Tu and the appellant Nguyen shortly after police had contacted Do Hoang, who was the appellant Lai’s former partner and the owner of the car used on the evening of 30 March 2012. The appellant Lai refers to “that thing what happened” in the conversation with Tu. In the conversation with Nguyen, he says, “Do you know that guy, that guy and me, you and the other guy that’s doing, is going to do shit all the time.”

The ERISP of Binh Mai

30. The interview with Mai on 10 July 2012 commenced at 11:05am and proceeded until midday, at which time it concluded after an independent police officer confirmed that it had been made voluntarily. That portion of the interview comprised 478 questions and answers, during which Mai denied any knowledge of the robbery.

31. The interview resumed again at 1:09 pm. There is no recorded footage of what occurred between midday and 1:09 pm. Detective Senior Constable Irving gave evidence on the voir dire and again, in similar terms, at the trial as to what occurred during this break. His evidence at the trial was that almost as soon as he ejected the tapes out of the machine at midday Mai stated, “Actually I do know about the robbery.” Detective Senior Constable Irving stated that they then had a conversation in which Mai told him that he was involved in the robbery. Detective Senior Constable Irving told him that he would like to do another interview with him. They then discussed his previous drug use and how Mai had a young daughter and wanted to turn his life around. The officer described Mai as “…to-ing and fro-ing between basically whether or not we do another interview.” He then stated “…at a certain point I told him that if he did another interview and told me what happened I might be able to help him with a potential sentence.” He was asked whether he said anything else to Mai in order to attempt to encourage him to do another interview and he replied that he did not.

32. In cross-examination, Detective Senior Constable Irving stated that Mai appeared to understand his questions and responded in a lucid and rational way. He did not display any physical mannerisms that gave him any concerns that he may have been under the influence of a drug. He stated that, prior to the interview commencing, he did not tell Mai who else he suspected of being involved in the robbery. Nor did he tell him that he should nominate certain people as being involved in the robbery.

33. After the interview resumed, Mai agreed that after the last interview there was a conversation when the machine was not running and that he told police a different version of what occurred in the early hours of 31 March 2012. He then stated that on that night Lai, Nguyen and Tu came and picked him up and they went to the Cabramatta Bowling Club. At closing time they went to the car and James (Lai) and Minh (Tu) decided to rob the guy who went into a taxi.

34. He described being picked up earlier in the night in a blue sedan with a baby seat in the middle, which he thought belonged to Lai’s girlfriend. After they got into the car, they went to the “pub” (meaning the Cabramatta Bowling Club). He told police that he decided to go to the pub to gamble because he was on “ice” and wanted to gamble every day. He had taken the drug “ice” throughout that whole day.

35. Mai told police that they didn’t really talk about anything until they were in the car. Lai and Tu started talking about it. Tu was saying that they should “rob the guy and stuff”. The appellant Lai said the victim would be “easy” [to rob]. He stated that he and Nguyen did not really want to do it. He states that both Tu and Lai were doing the encouraging. When he was asked whether a decision was made to do it or Nguyen told them to do it, he stated that, “The decision was made to do it but we were havin’ a argument. Some of us didn’t want to do it.” He stated that some of them wanted to drive the car instead. He stated that he did not wish to do it, he just wanted to go back and gamble more. He said that both he and Nguyen wanted to stay in the car and drive.

36. He stated that it took about 10 minutes to get there. They followed the taxi. It turned right and they followed it down the Hume Highway. The appellant Lai was driving. They saw the taxi stop and Tu told them to get out of the car. He and Nguyen walked first and he was “…still thinking what to do and stuff.” He said, “We thought he was joking with us…and then we went through to the unit the guy was there.” He stated that Tu went up there and “…somehow the guy ended up on the ground. Yeah. Got hit a few times.” When asked by police how he and Nguyen ended up being the ones who got out of the car, he replied, “Um, I guess I was persuaded and I was still deciding I didn’t want to but….he was geeing me on.”

37. He told police that his intention when he got out of the car was to walk around so that they would miss him. He said “…I just wanted to walk the long way so we wouldn’t see him, see what happened,” but “…when we got out of the unit he was right there in front of us” and “…everything just, just happened.” He agreed with police that he was trying to stall, hoping that the victim would get into his unit first. He was thinking that Tu was just joking around with him and that it was all a joke. He described how he walked around the back of the unit with the appellant Nguyen.

38. He described the assault in these terms. Tu and, he thought, Nguyen grabbed the victim, but he was not quite sure about this. They got onto the ground and started hitting him a bit and then he (Binh Mai) got paranoid and the victim started yelling so he kicked him. He later stated that he kicked him two or three times and that he kicked him “pretty hard”. Tu went through his pockets and got the money. Mai did not know there was a phone at that time. He ran out to the street and the car was ready there. He jumped in and they drove off. He stated that three days later he ran into Tu at Star City who told him that he had found a phone outside and that everyone believed him. It was Nguyen who told him that, “…he got it off the guy.”

30. Police asked Mai to provide more detail as to how he got the victim to the ground. He described it as “…like a grab or something,” “Chuck him to the ground…Then stand back and yelling and stuff.” He repeated that, “I got paranoid, yeah, and kicked him.” He described kicking him in his stomach but he “got moved.”

31. He stated that the money was divided evenly. He was given the money and told to divide it out. He does not say who told him to do this. They received $300 or $400 each. They stopped for petrol and bought smokes and drinks somewhere on the Hume Highway and then went to Star City Casino.

The application under s 65 of the Evidence Act before Culver DCJ

41. Mai was subpoenaed to give evidence at the trial but failed to appear. The Crown Prosecutor then sought to have Mai’s ERISP admitted into evidence under the exception to the hearsay rule contained in s 65(2)(d) of the Evidence Act.

42. Section 59 of the Evidence Act relevantly provides:

“59 The hearsay rule – exclusion of hearsay evidence

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

…”

43. Section 65 of the Evidence Act relevantly provides:

“65 Exception: criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; or

(d) was:   

(i) against the interests of the person who made it at the time it was made, and

(ii) made in circumstances that make it likely that the representation is reliable.

…

(7) Without limiting subsection (2)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends:

(a) to damage the person’s reputation, or

(b) to show that the person has committed an offence for which the person has not been convicted, or

(c) to show that the person is liable in an action for damages.

…”

44. Clause 4(1)(f) of the Dictionary to the Evidence Act states that:

“For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

…

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or

(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.”

45. A voir dire proceeded before Culver DCJ on 27 April 2016 and 28 April 2016. Detective Senior Constable Irving gave evidence and was cross-examined and a number of documents were tendered. The Crown relied upon Mai’s ERISP dated 19 July 2012 and his signed statement of the same date in which he agreed that he had told the truth in his ERISP. In it Mai states that, “I decided to tell the truth as I believed it was the right thing to do and everything I said in the second interview was the truth.” Her Honour also had before her the transcript of evidence given by Mai at the committal proceedings on 6 December 2013. (It is to be noted that, although the transcript records those committal proceedings as pertaining only to Nguyen, the Crown Prosecutor on the appeal indicated that it was her understanding that the committal pertained to both appellants). The Crown also tendered a statement of Mr Ung dated 19 July 2012, seven photographs of the block of units in which Mr Ung resided, and a statement of facts from Mai’s sentencing proceedings. Those documents were said to be relevant to the reliability of the account given by Mai in his ERISP.

46. In his evidence given at the committal proceedings on 6 December 2013, Mai departed from the version that he had given in his ERISP. He maintained that he had been involved in the robbery with Tu (who had died by the time of the committal), but denied that either of the appellants had had any involvement in the robbery. He told the Court that he was taking ice and heroin at the time of the robbery and at the time of his ERISP. He stated that he would have agreed with whatever police told him regardless of whether it was true and that he only nominated the appellants as participating in the robbery for this reason. He said that the police made him feel paranoid.

47. Her Honour determined on 27 April 2016 that Mai was unavailable on the evidence before her. That evidence was that he had been served with a subpoena in a suitable timeframe and had subsequently spoken to Detective Senior Constable Irving by telephone. Mai had acknowledged that he was aware that he was required to attend court. She was further satisfied as a result of text messages between Mai and Detective Senior Constable Irving that Mai was reluctant to attend court and had recently expressed an intention not to do so.

48. The following day, her Honour delivered her reasons in relation to the Crown’s application under s 65(2)(d) of the Evidence Act to have Mai’s interview played at the trial. In doing so she relied upon the principles derived from the CCA decision in Sio v R.

The decision of the Court of Criminal Appeal in Sio v R

49. The decision of the CCA (Leeming JA, with whom Johnson and Schmidt JJ agreed) in Sio v R was delivered on 31 March 2015. Mr Sio had been tried in the Supreme Court for the offence of murder, based on the doctrine of constructive murder, with an alternative count of robbery in company causing wounding contrary to s 98 of the Crimes Act. The jury acquitted Mr Sio of the murder charge but convicted him of the alternative count. The Crown case against Mr Sio was that he had driven an accomplice, Mr Filihia, to a brothel to commit a robbery. Mr Filihia went into the brothel alone armed with a knife intending to commit a robbery, but when he confronted the victim, Mr Gaudry, an altercation ensued. Mr Filihia stabbed Mr Gaudry, who later died from the stab wound. Before leaving the scene, Mr Filihia stole cash from Mr Gaudry and was driven from the scene by Mr Sio. Another person was present in the car with Mr Sio and Mr Filihia, a Ms Coffison.

50. Mr Filihia pleaded guilty to murder and agreed to give evidence for the prosecution at Mr Sio’s trial. When he was called to give evidence at the trial, he refused to answer any questions. No issue was raised that he was “unavailable” for the purposes of s 65 of the Evidence Act. In his interview, Mr Filihia said that “Dan” (Mr Sio) had put him up to robbing the brothel and that Dan had provided the knife and driven him to the brothel. In a separately recorded interview, he selected a photograph of Mr Sio from a photo array as the person “Dan”.

51. The Crown in Sio v R sought to adduce Mr Filihia’s interview with police at the trial under s 65 of the Evidence Act. The trial judge held that the statements of Mr Filihia were admissible under s 65(2)(d) because they were against his interests at the time that they were made and were made in circumstances rendering it likely that they were reliable, taking into account the timing of the interview, the forthright nature of his answers, and their apparently unrehearsed nature.

52. The CCA in Sio v R found no error in the approach taken by the trial judge. Leeming JA made some general observations about the operation of 65(2) of the Evidence Act at [24] – [30]. At [27], his Honour observed:

“…each of paragraphs (b), (c) and (d) (in its amended form) requires the Court to assess the circumstances in which the representation was made, with a view to assessing whether the representation is reliable.  Those paragraphs are not directed to any particular asserted fact, but instead to the reliability of the representation considered as a whole:  R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 at [28] and [34]-[35]…The circumstances to be assessed extend to later statements or conduct (for example, an express retraction or a statement that the matter could not have been the relevant matter). In Ambrosoli, Mason P, with the agreement of Hulme and Simpson JJ, emphasised that the words in s 65(2)(b) and (c) are directed to the circumstances of the making of the representation. That accords with the fundamentally different roles of judge and jury in a criminal trial, to which Spigelman CJ referred in R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [65]. Given that the new paragraph (d)(ii) employs the same language as (b) and (c), the Legislature should be taken to have intended the judicially established meaning of “made in circumstances” to apply.”

[emphasis in original]

53. His Honour went on at [28] to observe that:

“…two circumstances which enhance reliability are contemporaneity (or near contemporaneity) and against interest. That is plain from a comparison of the lesser tests of reliability imposed by paragraphs (b) and (d) in contrast with (c). Although where (b) or (d) applies it remains necessary to assess the circumstances in which the representation is made to determine reliability, in each of those cases, a lesser level of likely reliability is required in order for the representation to be prima facie admissible. That is to say, paragraphs (b) and (d) incorporate very clear examples of circumstances which are taken by the Legislature to increase the likely reliability of a representation. But those two paragraphs do not exhaust the circumstances to which regard may be had; there is a wide range of other matters which bear upon the “circumstances” to which attention is required by s 65(2)(b), (c) and (d).”

54. His Honour noted at [33]:

“The question posed by statute is not whether the actual statements made are themselves accurate or likely reliable, but whether the circumstances in which they were made are such that they are likely to be reliable. In order to address the statutory question, the Court examines the circumstances in which a statement is made, not the particular statement itself. That is to say, it is no part of the analysis required by s 65(2)(d) to point to the fact that Mr Filihia’s answers were demonstrably unreliable…(That is a consideration that could inform a discretion under ss 135 or 137, and a warning to the jury.)”

[emphasis in original]

55. At [34], his Honour stated:

“…it is not relevant to draw a distinction between the reliability of some representations made by Mr Filihia (those against interest) as compared to others (those relevant to Mr Sio), a distinction which counsel candidly acknowledged had not been advanced at first instance…The approach for which Mr Sio contended sits ill with Suteski at [93], and with the distinction between the functions of judge and jury. To the extent that these statements were made in the same circumstances, they must be considered together for the purposes of s 65(d)(ii) [sic].”

The judgment of Culver DCJ

56. On 28 April 2016, her Honour delivered detailed ex tempore reasons for admitting Mai’s ERISP into evidence at the trial.

57. Her Honour noted at the outset that the Crown bore the burden of satisfying the court that the ERISP ought to be admitted under s 65(2)(d). She outlined the history of the various accounts given by Mai and the circumstances in which Mai came to change his version after the interview was suspended.

58. Her Honour described the way in which, in the first part of the interview, Mai admitted some of the peripheral details of the evening, such as attending at the Cabramatta Bowling Club and playing the poker machines. He said that Lai went to the toilet at one stage. He also was able to identify his co-accused in the photograph shown to him. Her Honour then noted that, in the second part of the interview, Mai gave more complete version in which he implicated himself, the two appellants, and Tu in the robbery of Mr Ung.

59. Her Honour set out the terms of s 65(2)(d) of the Evidence Act and noted the decision of the CCA in Sio v R [2015] NSWCC 42. She noted that special leave had recently been granted to Mr Sio to appeal to the High Court against that decision. She accepted that the Court must operate on the basis that the CCA decision correctly states the law. She noted the amendment to the sub-section to include a requirement that the party seeking to adduce the representation satisfy the court that the representation was made in circumstances that make it likely that the representation is reliable. Her Honour then extracted and commented on some of the observations of Leeming JA in [25] – [34] of that decision.

60. Her Honour then noted the observations of Gageler J in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [82]:

“Within the scheme of the Evi dence Act, evidence that is trustworthy is evidence that is ‘reliable’, and an aspect of the reliability of all or part of the testimony of a witness is its ‘credibility’. The latter term is defined in the dictionary of the Evid ence Act so as to encompass not only the witness's truthfulness but also ‘the witness's ability to observe or remember facts and events’.”

61. Her Honour next stated that the attention in any analysis under s 65(2)(d)(ii) is on the circumstances in which the representation was made and not specifically on the reliability of the representation itself, but noted that there can be some overlap. She then referred to the respective submissions of the parties. Her Honour noted that she had had the benefit of observing Mai give his answers in the ERISP tendered on the application. She noted that there was a distinct change in demeanour between the first part of the interview and the second part of the interview. In the second part of the interview, Mai appeared “…more subdued, more serious, more contemplative.” She observed that, “He gives an appearance when he gives answers…of being regretful and ashamed.” She noted an answer given by Mai, “I wish it never happened but I don’t know…I got geed up.” Her Honour extracted a number of answers in a similar vein.

62. Her Honour again observed that Mai’s demeanour in the second part of the interview was far more subdued and serious and added:

“There is a consistency in that observation with a person who was attempting to give a genuine and reliable account. Mr Crown submits that this is a genuine motivation, which is a significant indication towards reliability.”

63. Her Honour again referred to the submissions made by the appellants’ then counsel in relation to whether Detective Senior Constable Irving overbore Mai’s will. Her Honour concluded on this issue:

“I am persuaded by the Crown’s submission that if there indeed was a contribution to the motivation of Mr Mai to engage in the further interview by virtue of the offer of Detective Irving, it was not a large aspect of his motivation in engaging in the interview. It certainly was not operating to any great extent, it seems, on Mr Mai’s mind. If one accepts that proposition, then one is left with the overwhelming inference that there was a genuine aspect to Mr Mai engaging in that further interview, in so far as he did want to do the right thing and that he was motivated in that regard to tell the truth.”

64. Her Honour made reference to the decision in Youkhana v R [2013] NSWCCA 85, but noted that in that case there had been a significant inducement given to the witness, who had lied under oath to the NSW Crime Commission prior to making an induced statement. Her Honour then referred to the submissions made on behalf of the appellants as to the fact that Mai had downplayed his own role. Her Honour observed:

“Whilst there are some limitations placed by the witness on his stated role in the alleged offence, I agree with the Crown’s submission that one needs to look at the depth of his own admissions against self-interest. His assertions regarding the two accused in this Court furthermore contained limitations to their role consistent with, or greater, than the limitations of his own role. He said that the idea of the robbery was at the hands of Mr Tu and Mr Lai. The Crown said that it would have been easy for him to say that he – that is, Mr Mai – was the driver or took no part in it, but Mr Mai instead said that it was James who was the driver.

Mr Mai said that he delivered multiple kicks and could have, if he wanted to, said that it was just one, but he did not seek to do that. He could have minimised his role when asked how hard the kicks were, but instead of saying, “I didn’t connect,” or something of that nature, the witness candidly said, “Pretty hard, I don’t know.” His first answer was “Pretty hard.”

65. Her Honour went on to observe that:

“The overall impression was that this was a person motivated by a genuine and sincere motivation in the second portion of the interview to own up to what he had done”

66. Her Honour then dealt with other submissions relevant to the question of reliability. Those included that the interview was given six months after the alleged events and also the fact that, during the committal proceedings, Mai gave evidence that he had participated in the ERISP after taking ice. Her Honour weighed this against the evidence of Detective Senior Constable Irving that he was not under the impression that the witness was intoxicated at the time of the ERISP. She noted that Mai gave details of the robbery about which he had not been told, such that it could not be said that he was merely adopting what police suggested to him. Her Honour also accepted the Crown’s submission that this was a recorded police interview before which Mai was cautioned.

67. Her Honour noted that there was no suggestion emerging from the circumstances before her that Mai was motivated by any type of revenge. With respect to the question of whether he was under the influence of drugs that may have affected his memory, she noted that he was able to recall accurately that the iPhone was yellow, the T-intersection, the layout of the unit block, and the amount of cash distributed to each of the participants consistent with the amount of cash that had been taken from Mr Ung.

68. Finally, her Honour noted that, in the event that the High Court determined the approach to s 65(2)(d)(ii) contrary to the determination made at [34] of Sio v R by Leeming JA, she proposed to deal with the representations separately. At [34] of the CCA decision in Sio v R, extracted above at [55], Leeming JA had determined that it was not relevant to draw a distinction between the reliability of representations made by the witness against that witness’s interests as compared to other representations relevant to the accused against whom the representation was tendered.

69. Her Honour noted that the representations made by Mai against his own interests have the quality of being a genuine attempt to give accurate and honest detail for the reasons her Honour had already articulated. Her Honour noted that Mai placed limitations on the asserted role of both of the appellants and that the greater criminality in many respects was attributed to Tu. She noted that any matters said to impugn the reliability of the circumstances in which Mai made representations concerning his role were the same as those applicable to the circumstances in which he made representations concerning the roles of the appellants. Her Honour noted that, in the circumstances of this case, the same features of reliability pertained to both sets of representations.

70. Her Honour concluded her judgment with the following observations:

“The Crown has satisfied the Court consistently with the decision of the trial judge at first instance in Sio that Mr Mai was, in that second part of his interview, forthright and genuinely motivated by a desire to do the right thing and give truthful and accurate evidence. He was detailed and sincere in that regard. There is absolutely not a shred of a suggestion of his version having been rehearsed; in fact, the very chronology itself speaks of a situation that lends itself to a conclusion of being unrehearsed. Indeed, for that second part of the interview, it is abundantly clear especially when one has regard to exhibit F that the witness was prepared to answer questions thoughtfully and without regard to self-incrimination.

Accordingly, I am satisfied by the Crown that the circumstances in which the representations were made in that second portion of the interview…were likely to be reliable, in accordance with s 65(2)(d)(ii).”

The decision of the High Court in Sio v The Queen

71. As was foreshadowed before Culver DCJ, the High Court considered the scope of s 65(2)(d) of the Evidence Act in Sio v The Queen. That decision was delivered on 24 August 2016, at a time after the appellants were convicted and before they were sentenced. Her Honour had revoked the appellants’ bail when they were convicted, but granted appeal bail prior to passing sentence based on Sio v The Queen.

72. In a unanimous decision (French CJ, Bell, Gageler, Keane and Gordon JJ), the High Court held that both the trial judge and the CCA had erred in considering the circumstances in which Mr Filihia made his representations in a global, or “compendious” fashion.

73. The High Court observed in relation to s 65 generally (at [55] – [58]):

“It is evident that ss 62 and 65(1) are concerned to relax the exclusionary effect of the hearsay rule in relation to an assertion of a fact by a person who had personal knowledge of that fact. These provisions proceed on the assumption that the asserted fact is relevant to the case of the party seeking to adduce evidence of the representation asserting the fact. Together with the provisions of s 65(2) other than par (d), they direct attention to the particular representation which asserts the relevant fact.

…

It may also be noted here that s 65(2)(b) makes it clear that when the provisions with which it is collocated speak of "a representation", they are speaking of the particular representation that asserts a relevant fact sought to be proved. That this is so is confirmed by s 65(2)(d)(i), which requires that the representation tendered against the other party is able to be seen to be against the interest of the maker of the statement.

It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.

It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act.”

74. The Court observed at [60] – [61]:

“It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion. Further in this regard, the present case is a case in which, had Mr Filihia pleaded not guilty, and he and Mr Sio been tried together, Mr Filihia's hearsay statements would not have been admissible in that trial against Mr Sio. That is because s 83 of the Evidence Act preserves the exclusionary operation of the hearsay rule in respect of evidence of an admission by a co-accused.

The serious consequences of the successful invocation of s 65(2)(d) emphasise the need for compliance with the conditions of admissibility prescribed by the section. The focus demanded by the language of s 65 is inconsistent with the impressionistic evaluation involved in the compendious approach adopted by the Court of Criminal Appeal. The language of the statute assumes the identification of each material fact to be proved by a hearsay statement tendered in reliance on s 65 and the application of the section to that statement, whereas the compendious approach applied by the trial judge and the Court of Criminal Appeal is not focused in this way. In addition, the approach which is focused upon the particular representation tendered to prove a particular fact in issue has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials.”

75. The High Court went on to observe at [63] (footnotes omitted):

“Section 65 gives effect to the view that the circumstances of the making of an out of court statement conveying an assertion of a relevant fact may be such as to indicate that the representation is likely to be reliable – and the asserted fact likely to be true – notwithstanding the hearsay character of the evidence. The section operates on the footing that the circumstances in which the representation was made may be seen to be such that ‘the dangers which the rule seeks to prevent are not present or are negligible in the circumstances’. In such a case, ‘there is no basis for a strict application of the rule.’”

76. As for what may be taken into account when examining the circumstances in which a representation was made, the High Court observed at [69] – [72] (footnotes omitted):

“In R v Ambrosoli, Mason P, with whom Hulme and Simpson JJ agreed, while discussing s 65(2)(c) of the Evidence Act, said that the provision seeks to focus attention upon the circumstances of the making of the representation to determine the likelihood of its reliability, but that:

"evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby."

That observation may be accepted. The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted.

When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation. But it is unnecessary to gloss further the statutory language. In particular, it is not profitable to seek to multiply examples of other circumstances which assist the trial judge to conclude that a representation is unlikely to be reliable. It is to risk being distracted from the task set by s 65(2)(d)(ii) to be overly concerned with what circumstances may properly be taken into account to determine the unreliability of a representation. The true concern of the provision is with the identification of circumstances which of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character.

Section 65(2)(d)(ii) requires the making of an evaluation by the trial judge which positively satisfies the trial judge that the representation is likely to be reliable by reason of the circumstances in which it was made. As was noted in IMM v The Queen, s 65(2)(c) and (d) and s 85 provide "[t]he only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence". It is desirable to emphasise, however, that the whole point of s 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial.”

Submissions on behalf of the Crown

77. The Crown conceded that the trial judge did not identify and assess the particular representations upon which the Crown sought to rely, nor was any express consideration given to those representations in which Mai downplayed his own role in the robbery. Despite this, it was noted that the trial judge did not assess Mai’s interview in an entirely compendious manner; as noted above at [68] – [70], her Honour expressly considered the statements made by Mai against the appellants separately to those made against his own interests at the conclusion of her judgment.

78. It was further conceded on behalf of the Crown that the trial judge engaged in a largely impressionistic approach to the assessment of the ERISP. Following the decision of the High Court in Sio v The Queen, such an approach is erroneous. It was necessary for the trial judge to consider each representation upon which the Crown relied and to assess separately whether each of them was, first, made against interest, and, secondly, made in circumstances that make it likely that it is reliable. It is clear that, since the decision in Sio v The Queen, what is required is that admissibility be determined by reference to the particular circumstances of the making of each representation rather than by making an assessment of a number of representations on an impressionistic basis.

79. Although the Crown conceded error, it did not concede that the appeal should be allowed. Rather, it was submitted that the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied. It was submitted that the facts in the present case differ significantly from those in Sio v The Queen. In that decision, the High Court was only concerned with one representation; namely, that Mr Sio had provided Mr Filihia with the knife that was used to kill Mr Gaudry. It was on that basis that the Court was satisfied, at [68], that that particular representation, given the circumstances in which it was made, was “…plainly apt to minimise his culpability by maximising that of Mr Sio.” In the present case, there are a number of representations that require separate assessment. It was submitted on behalf of the Crown that the representations in the present matter can be divided into three separate categories:

1. Representations that Mai participated in the robbery (“the first category”).

2. Representations that the appellants were also participants in the robbery (“the second category”).

3. Representations that one or more of the appellants played a greater role than Mai did in the robbery (“the third category”).

80. The Crown conceded that the representations that fall into the third category would not be made in circumstances that make it likely that they are reliable. This would include the statement that it was Tu and the appellant Lai who decided to rob the victim and that Mai did not want to participate in the robbery. These representations are apt to minimise Mai’s culpability and, in doing so, to maximise the culpability of, for example, the appellant Lai. In this way, they are analogous to the representation considered by the High Court in Sio v The Queen.

81. Despite this concession, it was submitted on behalf of the Crown that the representations falling into the first and second categories are different. The Crown submitted that the circumstances in which Mai made the representations in the first two categories make it likely that those representations are reliable. Accordingly, although the trial judge erred in her approach to the relevant assessment, the proper application of the assessment under s 65(2)(d) would not have resulted in the exclusion of the whole of the ERISP, but rather only those representations in the third category. On this basis, the Court could not be satisfied that a substantial miscarriage had occurred.

82. The Crown’s alternative position was that, even if the Court were satisfied that a substantial miscarriage of justice had occurred, it would not be appropriate for verdicts of acquittal to be entered. The Crown relied upon the fact that there was sufficient evidence, putting to one side the representations in Mai’s ERISP, capable of establishing the guilt of the appellants. Reliance was placed upon the fact that, in his closing address at the trial, the Crown Prosecutor had invited the jury first to consider the circumstantial evidence pointing to the guilt of the appellants before turning separately to consider Mai’s ERISP. The Crown Prosecutor invited the jury to consider the circumstantial evidence in this way on the basis that it was the “simplest and easiest path to beyond reasonable doubt”. The Crown Prosecutor on appeal addressed the evidence in the case in some detail in support of that submission.

Submissions on behalf of the appellants

83. Counsel for the appellant Lai made submissions that were adopted by counsel for Nguyen.

84. The position of both appellants was that this Court should enter verdicts of acquittal. This submission was made on two bases.

85. First, it was submitted that the Crown case was an otherwise circumstantial one in which Mai’s evidence was crucial. The Court was invited to rule that the ERISP in its entirety was inadmissible and then to find that the remaining evidence could not reasonably support convictions.

86. It was further submitted that, even if this Court were satisfied that there was sufficient evidence to order a new trial in this matter, the interests of justice do not require another trial. In support of this submission it was noted that it has been six years or more since the commission of offence. The appellants have served almost four months in custody referable to the offence. If they were to be convicted again there would be a significant hiatus between the periods of imprisonment. The trial is currently listed at the Parramatta District Court where there is significant delay in matters coming on for trial. The matter was not reached the first time that it came for trial and there was a wait of over a year before it came back for a second trial.

Consideration

87. The first question to be determined is whether the Court should accept the concession on behalf of the Crown that the appellants have established error. I am satisfied that the Crown concession was properly made given the decision of the High Court in Sio v The Queen. The significance of that decision is that, although the trial judge correctly applied the principles concerning s 65 of the Evidence Act at the relevant time, the subsequent decision of the High Court means that her Honour applied the wrong test.

88. The relevant passages from the decision of the High Court are extracted at some length above at [73] – [76]. A trial judge would err if he or she approached the assessment required by s 65(2) in a compendious manner, relying upon an overall impression formed as to the general reliability of statements made by a witness such as Mai. Following the decision of the High Court, a trial judge undertaking the s 65(2)(d) assessment would examine each representation separately in order to assess whether the circumstances of each particular representation make it likely that that particular representation is reliable. That approach was not taken in the present matter.

89. As the findings of her Honour extracted above at [69] – [70] make clear, her Honour did deal with the group of representations implicating Mai separately from the group of representations implicating the appellants. Despite this, it is clear that her Honour nonetheless engaged in a largely impressionistic approach to the assessment of Mai’s ERISP, including making findings such as considering the evidence of Mai to be “sincere” and “forthright”. Her Honour did not separately consider the representations in which Mai downplayed his own role and attributed greater criminality to other participants, such as the appellant Lai.

90. I am thus satisfied that error has been established and that the Crown concession was properly made.

The operation of the proviso

91. The next question is whether as a result of the identified error there has been a substantial miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act. Section 6(1) provides:

“The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

92. Given that her Honour erred in her consideration of s 65(2)(d)(ii) of the Evidence Act, there has clearly been a wrong decision on a question of law (the second limb in s 6(1)). The question then is whether this Court would nonetheless dismiss the appeal on the basis that no “substantial miscarriage of justice” has actually occurred (the proviso in s 6(1)).

93. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, the plurality (French CJ, Bell, Keane and Nettle JJ) observed at [13] – [14] that (footnotes omitted):

“Turning to the second limb of s 6(1) of the Criminal Appeal Act, it will be seen that to some extent it overlaps the first. A "wrong decision of any question of law" includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law.

The third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial.”

94. The Court observed at [15] that:

“…where the second limb applies, the circumstances in some cases may be such that, despite the judge making “the wrong decision of [a] question of law”, the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate.”

95. The question is thus whether, given the nature of the identified error, the appellants have been denied a chance of acquittal that was fairly open to them such that the proviso ought not be applied in this case.

96. The Crown submitted that the proviso should be applied because, even if her Honour had applied the correct test, all of the representations save as for those in the third category would have been admitted in any event, having regard to the circumstances in which those representations were made. In support of this submission, the Crown identified the following circumstances of the making of the representations as rendering it likely that the representations (excluding those in the third category) are reliable:

1. The representations incriminated Mai in a serious criminal offence;

2. The representations did not downplay the involvement of Mai as compared to the other participants in the robbery;

3. The interview was recorded and Mai could reasonably expect that would be used in evidence against him;

4. As the interview was recorded, Mai could reasonably expect that the appellants would be made aware of its contents;

5. When Mai was first asked questions he denied any knowledge of the robbery. However, in the second half of the interview, he “came clean” and gave a full account of the robbery. Accordingly, the answers provided by Mai in the second half of the interview were spontaneous and unrehearsed. There was no suggestion that Mai had come to the interview intending to incriminate the appellants and downplay his own responsibility;

6. Mai’s answers in the second half of the interview as to the circumstances leading up to the robbery, the robbery itself and the circumstances following the robbery were detailed;

7. The second part of the interview was confirmed by Mai in a statement dated 19 July 2012, in which Mai said that he understood that he would be liable to prosecution if he stated in it anything that he knew to be false;

8. There was no evidence of any animosity between Mai and the appellants at the time of the events in question or at the time of the ERISP;

9. Although Mai said that he was on drugs at the time of the interview, there is nothing in the interview that would suggest that Mai was affected by drugs at the time that he provided his answers. The interviewing officer saw no evidence that he was affected by drugs; and

10. While Mai recanted from the interview when he gave evidence at the committal, this recantation was on the asserted basis that he was on drugs at the time of the interview, which, as stated above, is not apparent on a viewing of the ERISP and was not observed by the interviewing officer. There was a clear reason for Mai’s recantation in the committal proceedings (namely, an unwillingness to incriminate his friends or to be seen as a “dog”). In these circumstances, Mai’s recantation in the committal proceedings should not be considered as a “genuine” recantation: cf R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 at [29].

97. The case against the appellants at trial was based upon joint criminal enterprise. In this way, it was not necessary for the jury to be satisfied beyond reasonable doubt as to the specific role undertaken by each of the appellants; namely, whether he was the driver (in the case of Mr Lai) or whether he took the money, cheque and phone out of the victim’s pockets (in the case of Mr Nguyen). It was simply necessary for the jury to conclude beyond reasonable doubt that each of the appellants actively participated in the robbery. Despite this, the fact that the jury did not need to accept the representations in which Mai downplayed his role at the expense of the appellants in order to convict the appellants does not mean that their wrongful admission did not deny the appellants a chance of acquittal fairly open to them. The fact remains that there was detailed evidence before the jury as to their particular involvement that was inadmissible.

98. As the High Court observed in Sio v The Queen, accomplice evidence is a class of evidence well recognised as being “less than inherently reliable” due to the perceived risk to falsification. As the Court noted at [65],

“Statements by an accomplice afford a classic example of a case where a ‘plan of falsification’ may be expected to be formed, given the obvious interest of one co-offender to shift blame onto his or her accomplice, especially where the circumstances also include the opportunity to seek to curry favour with the authorities.”

99. The trial judge in the present matter warned the jury pursuant to s 165 of the Evidence Act that Mai’s evidence was potentially unreliable both because it was hearsay and also because Mai was a person reasonably suspected of having been involved in the offence charged. Despite this, the circumstance of Mai being a co-offender went beyond the question of a warning under s 165; it ought to have been given greater weight in relation to the admissibility under s 65(2)(d) of the representations falling into the third category.

100. I am unable to accept the submission made on behalf of the Crown that the error in the approach taken by her Honour has not deprived the appellants of a chance of acquittal that was fairly open to them. It would only be if this Court were satisfied that the ERISP in its entirety would inevitably have been before the jury in any event that such a conclusion could be reached. The Crown concedes that at least some of those representations would not have been before the jury. Nor could it be said that even putting Mai’s ERISP to one side the Crown case was so strong that the admission of the ERISP did not give rise to a substantial miscarriage of justice.

101. I am not satisfied that it could be said that the jury would have arrived at the same result had the error not been made. Accordingly, I am satisfied that the appellants have been denied a fair chance of acquittal by the admission of this evidence and that it is not appropriate to apply the proviso in this case.

Should a new trial be ordered?

102. The third issue to be determined is whether a new trial should be ordered in this matter or whether there should be verdicts of acquittal entered. The High Court in Sio v The Queen considered a similar question of whether to order a new trial on the lesser charge of armed robbery or substitute a verdict on that count. At [75], their Honours cited the decision in Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 (at 638) as follows (footnotes omitted):

"In Spies v The Queen, it was said,

‘Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge.’”

103. Thus, this Court would only decline to order a new trial if it were satisfied that there was insufficient evidence capable of establishing the appellants’ guilt at a new trial and/or it was not in the interests of justice to order a new trial. Before turning to the question of whether the interests of justice require a new trial, it is necessary for this Court first to be satisfied that there is evidence to support the charge against the appellants.

104. The Court was invited by counsel for the appellants at the hearing of the appeal to rule that Mai’s ERISP should not be admitted at any re-trial. As the High Court observed in Sio v The Queen at [72], an assessment under s 65 (2)(d)(ii) of the Evidence Act requires the making of an evaluation by the trial judge that positively satisfies the trial judge that the representation is likely to be reliable by reason of the circumstances in which it was made. The assessment thus involves an evaluative judgment upon which judicial minds may differ. Accordingly, I do not consider it appropriate to accede to the appellants’ invitation to rule on the admissibility of Mai’s ERISP at this stage of the proceedings; that assessment is one to be made by the trial judge presiding over any re-trial.

105. Although I do not consider it appropriate for this Court to undertake the evaluative task of determining the admissibility of the various representations contained in Mai’s ERISP, it is nonetheless appropriate that some general observations be made regarding the approach advanced on behalf of the Crown as to the three categories of representations made by Mai (see above at [79]).

106. First, consistent with the decision of the High Court in Sio v The Queen, it is to be accepted that none of the representations in the third category would be admissible at the re-trial as those representations fall squarely into the category of representations that the High Court ruled should not be admitted under s 65(2)(d)(ii). Those representations minimise Mai’s role at the expense of the appellant Lai and others.

107. Second, in Sio v The Queen the High Court only considered the circumstances in which one particular representation was made; namely, the representation that Mr Sio gave Mr Filihia the knife. In doing so, the High Court observed that a circumstance of unreliability arose because Mr Filihia was an accomplice and that, “Nothing else in the objective circumstances in which the statement was made was apt to shift the balance in favour of a positive finding of likely reliability in respect of this asserted fact” (at [73]). It was not necessary for the High Court to address the question of whether the finding that that particular representation was unreliable impacted upon other representations made by Mr Filihia. Despite this, it would appear from the judgments of both the CCA in Sio v R and the High Court in Sio v The Queen that no issue was taken regarding the admissibility of other aspects of Mr Filihia’s evidence, including his identification of Mr Sio. In this way, it seems to me that it does not follow from the fact some representations fall outside the exception in s 65(2)(d) that all relevant representations are therefore inadmissible.

108. It cannot be the case that all statements made by a witness in circumstances where he or she is an accomplice must necessarily be unreliable following the decision of the High Court in Sio v The Queen. If that were to be the case, s 65(2)(d) would have little, if any, work to do. Sub-sections 65(2)(d)(i) and (ii) contemplate that there will be cases in which an accomplice participates in an ERISP and make representations that are (i) against his or her own interest, (ii) implicate another, and (iii) nonetheless are made in circumstances that render the representation(s) likely to be reliable.

109. Third, one of the circumstances in which the representations were made was that Mai was an accomplice who only agreed to “come clean” after a discussion with Detective Senior Constable Irving in which he was informed, inter alia, that if he did so it may assist in any sentence that he might receive. As a matter of general principle, the offering of any inducement would be a relevant circumstance for a trial judge making a s 65(2)(d)(ii) assessment to take into account. Such a circumstance would not, however, be the only consideration, such that determinative weight need be attached to it. It will generally be only one of a number of circumstances to take into account in any s 65(2)(d) assessment. The weight given to it will be a matter for the trial judge. I note that, in the present matter, Culver DCJ was satisfied that the offer of an inducement was not operating on Mai’s mind in any significant way.

110. Finally, it is to be noted that the High Court held that it would not be worthwhile to set out a complete list of circumstances to assist a trial judge in assessing whether a representation is likely to be reliable. It was observed at [71] that, “The true concern of the provision is with the identification of circumstances which of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character.” Despite this, insofar as the representations in the first and second third categories are concerned, it seems to me that the circumstances identified by the Crown on this appeal and itemised above at [96] would all be relevant to the assessment under s 65(2)(d). There will no doubt be others that will be relied upon by the appellants. I am satisfied that it would be open to a trial judge, in making his or her evaluative assessment, to find that all, some or none of the representations in the first two categories were made in circumstances that make it likely that each of them was reliable.

111. In circumstances where I am not satisfied that it is appropriate for this Court to make any findings regarding the admissibility of Mai’s ERISP beyond these general observations, I propose to consider the strength of the Crown case for the purposes of determining whether there should be a new trial by putting that ERISP to one side.

112. The Crown Prosecutor at the trial in this matter addressed the jury by first summarising the circumstantial evidence in the Crown case that he submitted would establish the guilt of each of the appellants. He submitted that the jury could convict the appellants on that evidence alone before turning to the evidence of Mai’s representations. I have adopted the approach taken by the Crown Prosecutor in the summary of the Crown case set out above at [11] – [29]. I do not repeat that summary here, although I note that, in considering the Crown case at its highest without Mai’s ERISP, I consider it appropriate to take into account the statement made by Mai on 19 July 2012 in which he implicated himself as a participant in the robbery but nobody else. Having regard to that evidence, I am satisfied that there is a circumstantial case against each of the appellants sufficient to order a new trial in this matter, even putting to one side Mai’s ERISP.

113. That leaves the question of whether it is in the interests of justice to order a new trial.

114. The appellants were on conditional bail in relation to this matter until they were both found guilty by the jury on 17 May 2016. At that time, the trial judge revoked their bail. On 2 September 2016, her Honour was satisfied that “special or exceptional circumstances” existed within the meaning of s 22 of the Bail Act2013 (NSW) to justify their release pending the hearing of the appeal in this matter. On 14 September 2016, they were both sentenced. The appellant Nguyen was sentenced to a head sentence of imprisonment for four years and two months, with a non-parole period of two years and one month, to date from 17 May 2016. The appellant Lai was sentenced to a head sentence of imprisonment for three years and nine months, with a non-parole period of one year and 10 months, also to date from 17 May 2016. Both appellants thus served just under four months of their sentences from 17 May 2016 until their release on bail on 2 September 2016.

115. It is to be accepted that there had been some delay in this matter since the commission of the offence in 2012, but weighed against the delay is the fact that this was a serious criminal offence. The victim suffered injuries to his jaw, face and stomach on the assault. His face was described as being swollen up and he was bleeding from his jaw and mouth. On the Crown case, he was specifically targeted, followed home and made the subject of a physical attack by three men who kicked and beat him as he lay defenceless on the ground before robbing him. It certainly could not be said that the offence was of such a trivial nature that it would not be in the interests of justice to prosecute the appellants again. The appellants are charged with the offence of aggravated robbery contrary to s 95(1) of the Crimes Act, which carries a maximum penalty of 20 years’ imprisonment.

116. I am not satisfied that the interests of justice require the entry of acquittals in this matter. There is sufficient evidence to order a new trial.

117. The orders that I propose the Court make are as follows:

1. Allow the appeals against conviction.

2. Quash the appellants’ convictions for aggravated robbery.

3. That there be a new trial of each appellant for the offence of aggravated robbery.

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Amendments

08 August 2018 - 8 August 2018 - Publication restriction removed, judgment published

Decision last updated: 08 August 2018