R v Sio (No 2) - [2013] NSWSC 1413

Supreme Court

New South Wales

Medium Neutral Citation: R v Sio (No 2) [2013] NSWSC 1413
Hearing dates: 16 September 2013
Decision date: 16 September 2013
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
Order made under s 77 of the Crimes (Administration of Sentences) Act 1999 that Richard Filihia attend Court on 17 September 2013 to give evidence.

Catchwords: CRIMINAL LAW - subpoena for witness in custody - witness refused to answer questions previously - whether witness would refuse to answer Crown questions - examination to be conducted on voir dire
Legislation Cited: Crimes (Administration of Sentences) Act 1999, s 77
Evidence Act 1995
Cases Cited: R v Sio [2013] NSWSC 1412
Category: Interlocutory applications
Parties: Crown
Daniel Jefferey 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

EX TEMPORE Judgment

A further application has been made on behalf of the accused for the issue of a subpoena to have Mr Richard Filihia attend Court to give evidence on behalf of the accused and be subject to cross-examination by the Crown. Mr Filihia is the person who committed the armed robbery in the course of which Brian Gaudry died. He has pleaded guilty to murder and armed robbery with wounding. The accused is charged with murder on the basis that he was party to a joint criminal enterprise with Mr Filihia to commit armed robbery or that he was an accessory before the fact to the armed robbery. He is also charged with armed robbery with wounding. It is common ground both that Mr Filihia entered the brothel with a knife and killed Brian Gaudry and that the accused was outside in his motor vehicle and did not enter the brothel in the course of that incident.

Last Monday the Crown submitted on a voir dire that Mr Filihia was unavailable within the meaning of clause 4 of Part 2 of the Dictionary of the Evidence Act 1995 (the Act). The Crown sought to tender his ERISP interviews and statements on that basis. I acceded to that application: R v Sio [2013] NSWSC 1412.

Last week Mr Watson, who appears on behalf of the accused, sought leave to issue a subpoena to have Mr Filihia come to Court. I was not satisfied that Mr Filihia's position, which he had made clear to me in person last Monday on the voir dire and also last Wednesday, in the presence of the jury, had changed. However, in support of the further application Mr Watson has read the affidavit of his instructing solicitor, Ms Vanya Hampel.

In her affidavit Ms Hampel deposed that she attended Nowra gaol on 17 March 2013 and was told certain things by Mr Filihia which caused her to believe that it would be beneficial to the accused for Mr Filihia to attend Court and give evidence. Importantly, for present purposes, Ms…

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 (No 2)

Details

AGLC: R v Sio (No 2) [2013] NSWSC 1413
Case: [2013] NSWSC 1413
Decision Date: 16 September 2013

CaseChat Overview and Summary

In this case, the respondent, Sio, was convicted of offences related to drug importation and trafficking. The Crown sought to call a witness, who had previously refused to answer questions while in custody, to give evidence in the case. The issue before the court was whether the witness would again refuse to answer questions put by the Crown, and if so, whether the witness should be compelled to give evidence under section 12 of the Commonwealth Evidence Act 1995. The court held that a voir dire should be conducted to determine the witness's willingness to answer questions.

The court examined the meaning of section 12, which allows for the examination of a witness on a voir dire when there is an issue as to whether the witness will answer questions put by the Crown. The court considered the purpose of the voir dire, which is to determine whether the witness will give evidence, rather than to determine the admissibility of the evidence. The court held that the voir dire should be conducted to determine whether the witness would refuse to answer questions put by the Crown, as this was the issue before the court. The court rejected the argument that the voir dire should be used to determine the admissibility of the evidence, as this was not the purpose of the voir dire.

The court found that the voir dire should be conducted to determine whether the witness would answer questions put by the Crown. The court held that the witness should be called to give evidence on the voir dire, and that the witness's willingness to answer questions should be determined based on their conduct during the voir dire. The court held that the voir dire should be conducted in the presence of the jury, as the issue before the court was whether the witness would refuse to answer questions put by the Crown, rather than the admissibility of the evidence. The court held that the voir dire should be conducted in accordance with the rules of evidence, and that the witness should be given the opportunity to give evidence and be cross-examined. The court held that the witness should be warned of the consequences of refusing to answer questions, and that the witness's refusal to answer questions should be determined based on their conduct during the voir dire.

The court ordered that a voir dire be conducted to determine whether the witness would answer questions put by the Crown. The court held that the voir dire should be conducted in accordance with the rules of evidence, and that the witness should be given the opportunity to give evidence and be cross-examined. The court held that the witness's refusal to answer questions should be determined based on their conduct during the voir dire, and that the witness should be warned of the consequences of refusing to answer questions. The court held that if the witness refused to answer questions put by the Crown, the witness should be compelled to give evidence under section 12 of the Commonwealth Evidence Act 1995.

Orders