R v Sinai (No 4) - [2021] NSWSC 779

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Sinai (No 4) [2021] NSWSC 779
Hearing dates: 8 June 2021
Decision date: 08 June 2021
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Objections to wife of accused giving evidence pursuant to s 146 of the Criminal Procedure Act 1985 (NSW) and by her to giving evidence pursuant to s 18 of the Evidence Act 1995 (NSW) rejected

Catchwords:
EVIDENCE – application for exclusion of a witness’ evidence under s 146 Criminal Procedure Act 1986 (NSW) – late notice of Crown intention to call important witness – major change in defence case – abysmal defence s 143 disclosure – Crown able to call witness
EVIDENCE – s 18 Evidence Act 1995 (NSW) – wife of accused objecting to giving evidence – children of wife and accused residing with the accused’s family – established likelihood that harm would or might be caused – harm outweighed by desirability of the evidence – witness compellable

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 146(1), s 143
Evidence Act 1995 (NSW), ss 18, 146

Cases Cited:
R v A1 (No 2) [2019] NSWSC 663
R v Ah Keni [2020] NSWSC 1848

Category: Procedural rulings
Parties: Regina
Abraham Sinai
Representation:
Counsel:
Mr S Hughes (Crown)
Mr M Tedeschi QC (Accused)
Solicitors:
Solicitor for Public Prosecutions
Kings Law Group

File Number(s): 2019/169513

Judgment

HIS HONOUR: Ms Analosa Ah Keni objected to giving evidence for the prosecution in her husband’s trial. The defence supported the objection. It went further and objected to her giving any evidence for the prosecution because of a previously undisclosed intention to call her.
On 8 June 2021 I announced my ruling that Ms Ah Keni would be compelled to give evidence. The following are my reasons for that ruling.

The trial

Mr Ho Ledinh was shot dead as he sat outside the Happy Cup café in Bankstown City Plaza at about 3.35pm on 23 January 2018. The shooter was Mr Arthur Kelekolio who has pleaded guilty to murder and awaits sentencing. The Crown alleges the accused, Mr Abraham Sinai, was a participant with Mr Kelekolio in a joint criminal enterprise, the object of which was to kill Mr Ledinh.
An important aspect of the Crown case against Mr Sinai is that a Nissan El Grand minivan drove around various streets of Bankstown shortly prior to the murder, including driving slowly down Bankstown City Plaza past the café. A short time later, the van went to a location near where Arthur Kelekolio had arrived and parked his car. The Crown case is that there was some interaction there between the accused and Mr Kelekolio prior to the latter setting off on foot to Bankstown City Plaza and committing the murder. While he did so, the van proceeded to East Terrace, about 750m from the scene, where it was parked. The van and its occupants remained there until shortly after the murder.
After shooting the deceased, Mr Kelekolio…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sinai (No 4)

Details

AGLC: R v Sinai (No 4) [2021] NSWSC 779
Case: [2021] NSWSC 779
Decision Date: 08 June 2021

CaseChat Overview and Summary

The defendants, in this case, were charged with serious criminal offences. The Crown sought to call a key witness, a woman who had been involved with one of the accused. The woman had previously made statements to the police and had been called as a witness by the defence. However, the Crown had not disclosed their intention to call her until the day before the trial. The defence objected to the Crown calling the witness, citing late disclosure and arguing that it amounted to an abuse of process. The Crown, on the other hand, argued that the witness was compellable and that her evidence was crucial to their case.

The court had to determine whether the Crown's late disclosure of the witness's evidence constituted an abuse of process, warranting exclusion of the evidence. Additionally, the court had to consider whether the wife of one of the accused, who was also the mother of their children, should be compelled to testify despite her objection. The court had to weigh the potential harm to the children against the importance of her testimony.

The court found that the Crown's late disclosure did not amount to an abuse of process. The witness's evidence was not excluded, as the court found that the Crown had acted reasonably in calling the witness and that the defence had not been prejudiced by the late disclosure. Furthermore, the court found that the wife's evidence was compellable, despite her objection. The court held that the importance of her testimony outweighed the potential harm to the children, and she was compelled to give evidence.

The court ordered that the witness's evidence be admitted and that the wife of one of the accused be compelled to testify. The trial proceeded with the witness giving evidence and the wife testifying under compulsion.

Orders