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: Category: Procedural rulings Parties: Regina
Abraham SinaiRepresentation: Counsel:
Solicitors:
Mr S Hughes (Crown)
Mr M Tedeschi QC (Accused)
Solicitor for Public Prosecutions
Kings Law Group
File Number(s): 2019/169513
Judgment
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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.
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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
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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.
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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.
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After shooting the deceased, Mr Kelekolio…
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- AGLC
- R v Sinai (No 4) [2021] NSWSC 779
- Case
- [2021] NSWSC 779
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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