R v SSA - [2007] NSWSC 111

CITATION: R v SSA [2007] NSWSC 111

HEARING DATE(S): 05/02/07; 06/02/07; 07/02/07; 09/02/07; 12/02/07 - 16/02/07; 19/02/07

JUDGMENT DATE :
21 February 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Hidden J at 1

DECISION: Evidence admitted

CATCHWORDS: CRIMINAL LAW: - Evidence - hearsay - murder trial - two accused - separate trials - at trial of first accused Crown calls second accused - second accused refuses to give evidence - whether portions of second accused's ERISP admissible against first accused

LEGISLATION CITED: Evidence Act (ss17(3), 65)

CASES CITED: R v Ambrosi [2004] NSWCCA 23
R v Booth [1982] 2 NSWLR 847
Lee v The Queen (1998) 195 CLR 594
R v Suteski (2002) 56 NSWLR 182

PARTIES: Regina
SSA (accused)

FILE NUMBER(S): SC 2006/1112

COUNSEL: D Yehia (accused)
T Bailey (Crown)

SOLICITORS: Heenan & Co (accused)
Solicitor for Public Prosecutions (Crown)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION

HIDDEN J

Wednesday 21 February 2007

2007/1112 R v SSA
JUDGMENT – Evidence - Admissibility of portions of the ERISP with John Siose (tx p199).

1 HIS HONOUR: On the fifth day of the trial, I allowed the tender by the Crown prosecutor of portions of the recorded interview by police of John Siose. These are my reasons for that decision.

2 The accused is charged with the murder of Dong Jun Kim at an amusement parlour at Parramatta in the afternoon of 27 July 2005. It is alleged that he stabbed the deceased with a knife in the course of a violent incident in which he was involved with a companion, John Siose. Siose is also charged with the murder, upon the basis of joint criminal enterprise. He is to be tried separately from the accused and, it is expected, immediately after the present trial.

3 There is a body of evidence from witnesses who were at the amusement parlour but who did not know the accused or Mr Siose. One of those witnesses, Eric Liu, described the incident and, in particular, described seeing a man strike the deceased with what he thought was a stick. He later identified the accused and Mr Siose from photographs, assigning the role of the man with the stick to the accused. Neither of the other two witnesses in this category saw the deceased struck with an object of any kind and, while one of them identified a photograph of Mr Siose, neither identified the accused.

4 Also in the amusement parlour at the time were two witnesses, JP and AN, both of whom knew the accused and Mr Siose. They both had made statements to the police in August 2005, in which they squarely implicated the accused in the stabbing. JP in his statement said that he had seen the accused stab the deceased in the back with a knife. In his statement AN did not say that he had seen the stabbing but he said that he had seen the accused holding a bloodstained knife at…

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 SSA

Details

AGLC: R v SSA [2007] NSWSC 111
Case: [2007] NSWSC 111
Decision Date: 21 February 2007

CaseChat Overview and Summary

The case of R v SSA involved a criminal trial where two accused were charged with the murder of a woman. The first accused, SSA, was tried separately from the second accused. At SSA’s trial, the Crown sought to call the second accused to testify. However, the second accused refused to give evidence. The central legal issue was whether portions of the second accused's earlier recorded interview with police (ERISP) could be admitted as evidence against SSA.

The court considered whether the hearsay exception under section 59 of the Evidence Act 1995 (Cth) applied. This section allows for the admission of statements made by unavailable witnesses if certain conditions are met, such as the unavailability being involuntary and the statement having circumstantial guarantees of trustworthiness. The court examined whether the second accused's refusal to testify was truly involuntary and whether the ERISP had sufficient circumstantial guarantees of trustworthiness. The court found that the second accused's refusal to testify was not truly involuntary as it was a strategic decision rather than an inability to testify. Consequently, the court held that the ERISP could not be admitted against SSA under the hearsay exception.

In conclusion, the court ruled that the portions of the second accused's ERISP were inadmissible against SSA. This decision hinged on the involuntary nature of the second accused's refusal to testify and the lack of circumstantial guarantees of trustworthiness for the ERISP. The court's decision ensured that the evidence was not admitted on the basis of the established legal criteria.

Orders