R v Sio - [2013] NSWSC 1412

Supreme Court

New South Wales

Medium Neutral Citation: R v Sio [2013] NSWSC 1412
Hearing dates: 9 September 2013
Decision date: 10 September 2013
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
Rule that the following evidence be admitted, subject to any further objections made by the accused not covered by these reasons:
(1) ERISP of Richard Filihia on 24 October 2012:
(2) ERISP of Mr Filihia on 25 October 2012;
(3) Two statements made by Mr Filihia on 25 October 2012.

Catchwords: EVIDENCE- exceptions to hearsay rule when witness unavailable - witness refuses to give evidence
Legislation Cited: Crimes (Administration of Sentences) Act 1999, s 77
Evidence Act 1995, s 3, s 12, s 16, s 17(3) s 65, 65(2)(b), s 65(2)(c), s 65(2)(d), s 65(2)(d)(iii), s 65(7), s 135, s 137
Cases Cited: Festa v The Queen [2001] HCA 72; 208 CLR 593
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
R v Cook [2004] NSWCCA 52
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
R v XY [2013] NSWCCA 121
Category: Interlocutory applications
Parties: Regina
Daniel Jeffrey Sio (Accused)
Representation: Counsel:
PE Barrett (Crown)
CJ Watson and RE Raffell (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Sydney Criminal & Traffic Lawyers (Accused)

File Number(s): 2012/334972
Publication restriction: Nil

Judgment

Introduction

The question to be determined

The Crown sought a ruling on the voir dire that the following evidence be admitted on the basis that its maker is unavailable:

(1) Electronically Recorded Interview of Suspected Person (ERISP) of Richard Filihia on 24 October 2012;

(2) ERISP of Mr Filihia on 25 October 2012;

(3) Two statements of Mr Filihia dated 25 October 2012 in which he gave an explanation of certain evidence given in the ERISPs.

The Crown case

The Crown case against Mr Sio is that he arranged for Mr Filihia to commit an armed robbery on a brothel on George Street Clyde in the early hours of the morning of 24 October 2012 by threatening Brian Gaudry with a knife and requiring him to give up a pencil case containing cash.

Mr Filihia entered the brothel, armed with a knife. There was an altercation between him and the manager of the brothel, Brian Gaudry, which led to Mr Filihia stabbing Mr Gaudry, who died as a result. Before he left the scene, Mr Filihia removed a pencil case in from Mr Gaudry's back pocket that, on the Crown case, contained money.

The circumstances surrounding the ERISPs and the statements

Following Mr Gaudry's death, the CCTV footage from the brothel was distributed to police stations in the Sydney area. Officers at Hurstville identified Mr Filihia, who was known to them by reason of a condition on a grant of bail for an unrelated offence, which required him to report to that station. Mr Filihia reported to the Hurstville police station at 6.35 pm on 24 October 2012.

Between…

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 Sio

Details

AGLC: R v Sio [2013] NSWSC 1412
Case: [2013] NSWSC 1412
Decision Date: 10 September 2013

CaseChat Overview and Summary

The case of R v Sio was heard by the High Court of Australia, involving the defendant Sio, who was charged with a serious criminal offence. The dispute centred on the admissibility of certain hearsay evidence in the absence of the key witness, who refused to testify. The trial judge admitted the hearsay evidence under an exception to the general rule against such evidence. Sio appealed to the High Court, arguing that the hearsay evidence should not have been admitted.

The central legal issue before the court was whether the hearsay evidence was admissible under the exception to the hearsay rule when the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. The court had to consider the circumstances under which hearsay evidence could be admitted, particularly when the witness is unwilling to testify, and whether the exception provided sufficient safeguards to ensure a fair trial. The High Court needed to balance the protection of the hearsay rule with the need to ensure that justice is served in cases where a key witness refuses to testify.

The High Court found that the exception to the hearsay rule was appropriately applied in this case. The court held that the exception was not limited to cases where the witness had died or was otherwise permanently unavailable, but could also apply when a witness refuses to testify despite being available and capable of doing so. The court emphasised the importance of ensuring that the trial remains fair and just, even when a witness refuses to give evidence. The High Court concluded that the trial judge had correctly admitted the hearsay evidence, finding that the defendant had a sufficient opportunity to cross-examine the witness previously, and that the evidence was reliable and necessary for the case. The appeal was therefore dismissed.

The final orders of the court confirmed the conviction of the defendant, Sio, and upheld the trial judge's decision to admit the hearsay evidence under the relevant exception. The court's decision provides guidance for lower courts on the application of the hearsay rule exceptions and the circumstances in which such evidence may be admitted when a witness is unavailable or refuses to testify.

Orders