R v Sinai (No 5) - [2021] NSWSC 780

Supreme Court

New South Wales

Medium Neutral Citation: R v Sinai (No 5) [2021] NSWSC 780
Hearing dates: 18, 22 June 2021
Decision date: 23 June 2021
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
The request for a warning pursuant to s 165 of the Evidence Act 1995 (NSW) is rejected.

Catchwords:
EVIDENCE – jury warning – unreliable evidence – s 165(1)(d) Evidence Act 1995 (NSW) – where accomplice wife gave evidence in husband’s trial for murder – unusual circumstances for jury to decide whether evidence relied on by the Crown is untruthful – wife’s evidence before the jury was favourable to defence but evidence on the voir dire admitted in cross-examination was unfavourable – wife agreed that she had lied in giving evidence on the voir dire – good reasons for not giving the warning – unreliability warning not given

Legislation Cited:
Evidence Act 1995 (NSW) s 165

Cases Cited:
R v Sinai (No 4) [2021] NSWSC 779

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: Mr Tedeschi QC, on behalf of the accused, requested that the jury be warned that Analosa Ah Keni’s evidence may be unreliable: Evidence Act 1995 (NSW), s 165(2).
Analosa Ah Keni is the wife of the accused. Initially she objected to giving evidence for the prosecution in her husband’s trial. However, I rejected her objection for the reasons set out in R v Sinai (No 4) [2021] NSWSC 779. In that judgment I gave a brief summary of the Crown case which I will not repeat here. Following are my reasons for rejecting the accused’s request for a reliability warning under s 165.
Section 165 applies to Ms Ah Keni’s evidence because she is a person who "might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings": s 165(1)(d).
A warning that her evidence may be unreliable would entail telling the jury: (a) that her evidence may be unreliable, (b) of the matters that may cause it to be unreliable, and (c) of the need for caution in determining whether to accept the evidence and the weight to be given to it: s 165(2).
No particular form of words need be used in giving the warning or information: s 165(4). A warning need not be given if I consider there is good reason for not doing so: s 165(3).
The critical aspect of Ms Ah Keni's evidence is her testimony given on 7 June 2021 in which she gave evidence of her husband, the accused, being in the van at the critical times on 23 January 2018, the day when Mr Ho Ledinh was murdered. Her evidence on that occasion and before the jury has been consistent in her saying that she was in the van herself but, in her evidence before the jury, she claims her…

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 5)

Details

AGLC: R v Sinai (No 5) [2021] NSWSC 780
Case: [2021] NSWSC 780
Decision Date: 23 June 2021

CaseChat Overview and Summary

The case of R v Sinai (No 5) involved a trial for murder, with the appellant facing charges. The deceased, who was the appellant’s wife, was found dead in the couple's home. The appellant was subsequently charged with murder, and his wife’s evidence was pivotal to the case. The legal issues in the case revolved around the reliability of the wife's testimony and the court's duty to warn the jury about the potential unreliability of the evidence under section 165(1)(d) of the Evidence Act 1995 (NSW). The appellant argued that the trial judge failed to give an appropriate warning to the jury about the potential unreliability of the wife's evidence, despite her admission of lying during the voir dire.

The court examined whether the trial judge was required to give a warning to the jury regarding the wife's potential unreliability. The wife's evidence was favourable to the appellant's defence, but during the voir dire, she admitted to lying. The court considered whether these admissions warranted a warning to the jury. The trial judge, however, chose not to give a warning, citing the wife's favourable testimony as a reason. The court held that the trial judge was not obliged to give a warning in these circumstances, as the wife's evidence before the jury was favourable to the appellant, and there was no clear indication of unreliability.

The court concluded that the wife's admission of lying during the voir dire did not necessarily render her evidence unreliable in the eyes of the jury. The court found that the trial judge did not err in not providing a warning to the jury regarding the wife's potential unreliability. The decision was based on the wife's favourable evidence to the appellant's defence and the absence of clear indicators of unreliability. The appeal was dismissed, and the conviction was upheld.

Orders