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

1. 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).

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.

3. 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).

4. 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).

5. 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).

6. 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 husband was not in the van. She has given evidence that she lied on the earlier occasion because of a desire to protect herself.

7. In closing address, a reason why she would have done so has been advanced: by saying her husband was in the van, she was reducing her own culpability by making her role one of lesser seriousness. That was never put to Ms Ah Keni.

8. The response to a question as to why it was not put to her was that there was a fear that putting such a proposition to her might have allowed the Crown to re-examine Ms Ah Keni by introducing into evidence the statement of agreed facts in her sentencing proceedings. It was argued that this would be highly prejudicial. In fact, the defence have strenuously sought to keep entirely from the jury any suggestion that Ms Ah Keni has pleaded guilty and been sentenced for being an accessory after the fact to murder. That approach even extended to her appearing in court to give evidence before the jury in civilian attire so as to conceal from the jury the fact that she is in Corrective Service's custody serving her sentence.

9. This matter was first ventilated on Friday 18 June 2021. A juror was sick that day. The Crown case was nearing completion. It presented as an appropriate occasion for me to raise a matter with counsel as to an aspect of my directions to the jury about the essential elements of the offence. When this matter concerning s 165 was raised, I expressed misgivings about the appropriateness and the viability of such a warning being given. I reflected on the matter and subsequently ruled that I would not direct the jury as sought.

10. On Tuesday 22 June 2021, Mr Tedeschi re-agitated the ruling. He claimed that the discussion about directions had, effectively, been sprung upon him without notice the previous Friday and he was not prepared to make all of the submissions on the s 165 issue that he wished to make.

11. The transcript does not bear out that complaint. Last Friday I only sought a discussion with counsel about the elements of the offence and how the Crown had formulated its case based upon complicity principles. After that discussion concluded, Mr Tedeschi asked if he could take the opportunity to make submissions about other directions to the jury. He was permitted to and he raised three matters. Seemingly well-considered submissions were made in respect of two of the matters, including the s 165 issue for which the submissions even extended to the provision of a suggested draft of a direction I might give to the jury. The third issue was flagged but Mr Tedeschi indicated he required further time to develop it. He gave no similar indication in relation to the s 165 issue.

12. In any event, the opportunity was permitted for further submissions to be made on the subject yesterday. I have considered them. I remain of the view that there are good reasons not to give an unreliability warning pursuant to s 165. Such a direction is not apt in the circumstances of Ms Ah Keni's evidence in this case. There are some unusual aspects to it. They include that she gave evidence on 7 June in the jury's absence that was, in essence, a reflection of what she had agreed in her sentence proceedings, namely, that she was in the van but that her husband was as well. In other words, her evidence was unsurprising to anyone, as far as I can gather.

13. Ms Ah Keni gave evidence on 7 June by way of AVL from gaol. At Mr Tedeschi's request, she was required to appear personally when she gave evidence before the Court and the jury on 18 June. In the configuration of Court 3 at Darlinghurst, where the trial was occurring at that stage, she was required to look at counsel asking questions with the accused, her husband, within her line of sight directly behind counsel. It was on that occasion she gave evidence favourable to the defence by saying that the accused was not in the van.

14. This is not a case in which the jury have to decide whether evidence from a witness relied upon by the Crown might be untruthful in the usual way that occurs. The accused has the benefit of the witness herself saying it was untruthful. She has made it quite plain that she lied in her evidence on 7 June to protect herself. It was well open to defence counsel to ask her why she thought saying her husband was in the van would protect herself in a way that would not open the way for the Crown to adduce evidence of the facts with which she agreed in her sentence proceedings.

15. The absence of any attempt to obtain evidence of why she thought lying would protect herself creates difficulties for the formulation of a direction in accordance with s 165 that tells the jury of the experience of the courts of accomplices giving false evidence. It would involve the jury being told that an accomplice sometimes downplays their own role while exaggerating the role of others. But how that would apply in Ms Ah Keni's case, when she could have been asked about whether that was a motivating factor, given she admits to or claims that the prior evidence was untruthful, but was not so asked, leaves the jury to speculate at the invitation of the Court.

16. It is not at all self-evident that Ms Ah Keni thought it would minimise her culpability if she gave evidence her husband was in the van and in that way she could protect herself. In fact, when she gave evidence on 7 June 2021, there was no purpose to be served by minimising her culpability, or protecting herself in respect of any legal consequences, as she had already pleaded guilty and been sentenced.

17. Part of the difficulty with all of this stems from the strenuous efforts of the defence in keeping completely out of the trial any reference to Ms Ah Keni having been prosecuted for murder and thereafter having pleaded guilty and been sentenced for being an accessory after the fact. That is not said by way of criticism, but the fact that Ms Ah Keni’s self-confessed criminality has not been revealed to the jury is another unusual feature of her evidence.

18. It will be necessary for the jury to be directed to carefully examine and evaluate the evidence of Ms Ah Keni, but that is because she provides the only direct evidence of the accused being in the van. That is an essential matter for the Crown to prove beyond reasonable doubt. This will go a significant way towards ensuring that the jury scrutinise carefully her evidence. Any warning, pursuant to s 165, would be complicating, difficult to understand and somewhat artificial and speculative. In these circumstances I remain of the view that a warning is not necessary.

**********

Decision last updated: 29 June 2021