R v Suteski - [2002] NSWCCA 509

Reported Decision:
(2002) 56 NSWLR 182
137 A Crim R 371

New South Wales

Court of Criminal Appeal

CITATION: R v Suteski [2002] NSWCCA 509

FILE NUMBER(S): CCA 60458/02; 60251/02

HEARING DATE(S): 19/9/02

JUDGMENT DATE:
20 December 2002

PARTIES :

Regina
Sneza Suteski

JUDGMENT OF: Wood CJ at CL at 1; Sully J at 192; Howie J at 194

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70053/01

LOWER COURT JUDICIAL
OFFICER : Kirby J

COUNSEL : G I O Rowling (Crown)
S Odgers SC
P Byrne SC

SOLICITORS: S E O'Connor
D J Humphreys

CATCHWORDS: CRIMINAL LAW - Appeal against conviction and sentence for murder - plea of not guilty - Crown appeal against leniency of sentence - Form 1 offences - obtain benefit by deception- exception to hearsay - ERISP evidence - admissibility of out of court statement where maker unavailable - statement against interest.

LEGISLATION CITED: Crimes Act (NSW) 1900 s409
Criminal Appeal Act (NSW) 1912 s6
Criminal Procedure Act (NSW) 1986 s46
Evidence Act (NSW) 1995 ss 59 62, 65, 67, 135, 137, 165, 192

CASES CITED:
Bakerland Pty Limited v Coleridge [2002] NSWCCA 30
Gilbert Adam v The Queen (2001) 75 ALJR 1534
Johns v The Queen (1979) 145 CLR 108
Jones v The Queen (1997) 71 ALJR 538
Papakosmas v The Queen (1999) 196 CLR 297
M v The Queen (1994) 181 CLR 487
Markby v The Queen (1978) 140 CLR 108
McAuliffe v The Queen (1995) 183 CLR 108
R v Ambrosoli [2002] NSWCCA 386
R v Anderson and Morris [1966] 2 QB 110
R v Blick [2000] NSWCCA 61
Regina v Clark [2001] NSWCCA 494
R v Duong (1992) 61 A Crim R
R v GK (2001) 53 NSWLR 317 at 324
R v Lisoff [1999] NSWCCA 364
Olbrich v The Queen (1999) 199 CLR 270
Ordukaya v Hicks [2000] NSWCA 180
R v Serratore (1999) 48 NSWLR 101
R v Lockyer (1996) 89 A Crim R 457
R v Wooley (1989) 42 A Crim R 418

DECISION: 1. Appeal against conviction dismissed: 2. Leave to appeal against sentence granted; 3. Appeal against sentence dismissed; 4. Crown appeal against sentence dismissed.

- 1 -IN THE COURT OF

60251/02
60458/02

WOOD CJ AT CL
SULLY J
HOWIE J
Friday 20 December 2002

Regina v Sneza Suteski

On 25 February 2002, the appellant was indicted on 1 count of murder and 9 counts of obtaining a financial benefit by deception. Having admitted her guilt in relation to the offences of obtaining a benefit by deception, including 66 similar offences on a Form One, the appellant was found guilty of the murder of Mr Richard Peich as an accessory before the fact. She was sentenced to 4 years and 6 months imprisonment in relation to the offences of obtaining a benefit by deception, and to 22 years (less 36 days of pre-trial custody) in relation to the murder. The appellant appeals the murder conviction and seeks leave to appeal against the sentence for that offence. The Crown appeals against the leniency of the sentences imposed in relation to the offences of obtaining a financial benefit by deception.

It was the Crown case that the appellant while employed as an accounts payable clerk by Newmans of Kogarah, had been systematically defrauding her employer, by diverting its funds to her own bank account and to that of a boyfriend. Between 15 June 1999 and 19 January 2000 she had in this way, through some 77 transactions, defrauded Newmans of the sum of $285,000. Upon becoming aware that the deceased, Richard Peich, her immediate supervisor had become suspicious of her activities she decided to resign as and from 24 December 1999. Before doing so, she decided to use the final weeks of her employment to escalate her fraud and to that end she formulated a plan to have Mr Peich physically attacked so as to remove him from the workplace. For this purpose she recruited three persons, Salem, Sakisi and Irani.

On the night of 20 December 1999, Irani met with the appellant and Sakisi at the St George Leagues Club, where they expected to find Mr Peich. It was decided that he would be attacked as he left the club. Arrangements were made for a phone message to be passed to Irani, who was waiting in the car park, to warn him of Mr Peich’s departure. When Mr Peich left the club he was seen to be accompanied by a female. A security guard was also seen in the vicinity. Irani abandoned the plan to assault him in the car park and drove to his home. By the time Mr Peich arrived home, Irani had armed himself with a knife and a hammer. As Mr Peich walked past him, Irani struck him on the back of the head with hammer and after an altercation, he pulled out the knife and stabbed Mr Peich 6 times, bringing about his death. It was the Crown case that the appellant had entered into a joint venture with her co-accused to have Mr Peich injured to such an extent as would amount to grievous bodily harm. Alternatively its case was one of common purpose murder, upon the basis that, if the joint enterprise extended only to the infliction of actual bodily harm, then nevertheless the appellant contemplated as a real possibility that Irani in carrying out the venture might occasion the victim grievous bodily harm. The fundamental issue in the trial concerned the kind of attack, which the appellant had requested or had in contemplation as a possibility, that is, how severe it was to be.

Ground 1 - The trial judge erred in admitting into evidence representations made in an electronic police interview as evidence of the truth of the facts asserted in those representations:

(i) Application of s 65 of the Evidence Act (NSW)1995

Having refused to give evidence at the committal, Sakisi who had pleaded guilty to, and who had been sentenced for an offence of accessory before the fact of malicious wounding with intent to do grievous bodily harm, maintained the same position at trial. The Crown sought to tender his ERISP, upon the basis that, within the meaning of s 65 of the Evidence Act (NSW) 1995, Sakisi was “unavailable to give evidence”. Counsel for the appellant, at trial and on appeal accepted, as his Honour found, that Sakisi was for the purposes of the Act “unavailable to give evidence”. Held: The out of court representations made by Sakisi in the ERISP, were admissible under s 65(2)(d) of the Evidence Act (NSW) 1995. The Trial judge correctly determined that any statement made by Sakisi, which tended to implicate himself in a joint criminal enterprise with the appellant would be admissible as a representation against interest.

(ii) Manner in which the evidence was placed before the jury

The procedure adopted by his Honour in respect of the tender of the ERISP and a transcript as an aide memoir, followed conventional practice. No error was disclosed in this respect.

(iii) s 137 of the Evidence Act

In determining the defence application for exclusion of the ERISP under s 137 of the Evidence Act (NSW) 1995, the Trial judge correctly considered the nature of the weighing process analysed in R v Blick [2000] NSWCCA 61. Three matters were identified as having particular relevance to the weighing process. These included, first, the inability of the appellant to cross-examine Sakisi; second, the fact that the appellant had been an accomplice and that his girlfriend was also implicated; and third, the fact that Sakisi had been a drug dealer and may have been affected by drugs when he was interviewed. The third matter had not been pursued at trial and was unsupported on the evidence. Held, subject to the excision of portions of the ERISP involving second hand hearsay and involving leading questions put by police in unduly emotive terms, the trial judge had concluded correctly that the evidentiary value of the ERISP was of significant probative value and was not outweighed by its prejudicial effect.

(iv) Directions

The trial judge gave clear and sufficient direction in accordance with s 165 of the Evidence Act (NSW) 1995 concerning the role of Sakisi as an accomplice and concerning the inability of the appellant to cross-examine him. No error was shown in relation to the directions made by the Trial Judge.

This ground has not been made good.

Bakerland v Coleridge [2002] NSWSC 30, Gilbert Adam v The Queen (2001) 75 ALJR 1534, Ordunkaya v.Hicks (2000) NSWCA 180, Papakosmas v The Queen (1999) 196 CLR 297, R v Ambrosoli [2002] NSWCCA 386, R v Blick [2000] NSWCCA 61, R v GK (2001) 53 NSWLR 317, R v Lisoff [1999] NSWCCA 364, R v Lockyer (1996) 89 A Crim R 457, R v Serratore (1999) 48 NSWLR 101, Weisensteiner v. The Queen (1993) 178 CLR 217 cited.

Ground 2 – The trial judge erred in his directions to the jury on the matters required to be proved by the Crown in order to establish the offence of murder:

In dealing with both joint criminal enterprise murder and a common purpose murder, the directions given by the trial judge, including a reformulation, were not erroneous.

This ground has not been made good.

McAuliffe v The Queen (1995) 183 CLR 108, Johns v The Queen (1979) 145 CLR 108, R v Duang (1992) 61 A Crim R 140,

Ground 3 – On the evidence admissible against the appellant the verdict of guilty of murder is unreasonable:

Had there not been evidence from the witnesses Salem and Irani, who had been called in the Crown case, indicating that the scope of the joint enterprise embraced the infliction of grievous bodily harm, or that such a result was contemplated as a real possibility, then there could have been no conviction for murder. In their evidence they both made mention of the appellant wanting Mr Peich off work for 2 to 3 weeks, and/or wanting him to suffer a broken arm or leg. Irani also gave evidence of her answering his question as to how she wanted him injured, in terms “Bash him. Stab him. Kill him. I don’t give a fuck what you do to him, as long as he doesn’t show up for work”. It was not necessary for the Crown to prove that the exact act involving the use of a knife to stab Mr Peich, which was done, was within the scope of the enterprise or contemplated as a possibility, as distinct from the fact that the victim was to sustain really serious bodily harm of some kind. Whether or not the Crown had established joint enterprise or common purpose murder was a matter for the jury, who had the advantage of seeing and hearing Irani and Salem give evidence. The evidence, which they gave, was capable of supporting the Crown case on the critical issue as to what it was that the appellant had requested or had in contemplation as a real possibility. The circumstance that, after the attack, at a time when the appellant knew that Mr Peich was dead, she had paid money to the co-accused was also capable of supporting the inference that she had accepted that her instructions had been carried out.

This ground has not been made good.

Jones v The Queen, M v The Queen, R v Anderson and Morris [1996] 2 QB 110, Markly v The Queen (1978) 140 CLR 108, R v Woodley (1989) 42 A Crim R 418, Johns v The Queen, Duang v The Queen, The Queen v Chai [2002] HCA 12, McAuliffe v The Queen (1995) 183 CLR 108.

Application for leave to appeal sentence

The appellant did not seek to disturb the sentences in relation to the fraud counts or the 2 year accumulation of the sentence for the murder charge but submits that the sentence for the murder offence was manifestly excessive. Held: In view of the very considerable criminality involved and the absence of any subjective circumstances that would operate in mitigation of sentence, this ground was not made good.

Crown appeal against leniency

The Crown appeal was brought only against the contingency of the appellant’s conviction for murder being quashed, or of the sentence for that offence being reduced. Held: In the light of the outcome of the appellant’s appeals against conviction and sentence this appeal is not made good.

Orders:

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted.

3. Appeal against sentence dismissed.

4. Crown appeal against sentence dismissed.

- 48 -

60251/02
60458/02

WOOD CJ at CL
SULLY J
HOWIE J
Friday 20 December 2002

Regina v Sneza Suteski

Judgment

1 WOOD CJ at CL: On 25 February 2002, the appellant was indicted before Kirby J on 1 count of murder and 9 counts of obtaining a financial benefit by deception. To the count of murder there was a plea of not guilty. To the remaining counts there were pleas of guilty. The appellant admitted her guilt to a further 68 offences of obtaining a benefit by deception which were placed on a Form 1.

2 The charges of obtaining a financial benefit by deception were stood over for sentence at a later date. A jury was empanelled, and the appellant was then placed on trial, as an accessory before the fact to the murder of Richard Peich, which was charged as having occurred on 20 December 1999.

3 The original jury was discharged on the following day, and on 27 February 2002 the appellant was reindicted, after which her trial proceeded to a conclusion on 20 March 2002, on which day the jury returned a verdict of guilty to murder.

4 On 28 May 2002, the appellant was sentenced in relation to

Count 2 (obtaining a benefit by deception), taking into account the matters on the Form 1, to imprisonment for 4 years and 6 months, to commence on 25 February 2002. In relation to the remaining counts of obtaining a financial benefit by deception, fixed terms of imprisonment, each of 3 years, to be served concurrently with the sentence for Count 2, were imposed.

5 In relation to the count of murder, the appellant was sentenced to imprisonment for 22 years (less 36 days of pre trial custody) to commence on 25 February 2004, that is, partially accumulative upon the sentence for Count 2. A non-parole period of 16 years (less 36 days) was set, similarly to commence on 25 February 2004.

6 The effective overall sentencing order, accordingly, was one which involved a head sentence of 24 years, with a non-parole period of 18 years, in each case less the 36 days pre trial custody.

7 The appellant now appeals against the murder conviction, and seeks leave to appeal against the sentence for that offence. The Crown appeals against the leniency of the sentence imposed in relation to the offences of obtaining a financial benefit by deception.

THE CROWN CASE

8 Much of the evidence in the trial was not in dispute, including the fact that the appellant, while employed as an accounts payable clerk by a car dealer known as Newmans of Kogarah, was systematically defrauding her employer, in the manner which led to Counts 2 to 10 in the indictment. In substance it had been her practice to enter the data base used for the payment of the company’s creditors, through an internet banking facility, and to change the bank account number of the supplier so as to divert payments to her own bank account, or to those of her brother or boyfriend. Otherwise, she presented to Mr Peich for his approval, invoices which had already been paid, after which she was able to divert the approved payment to whichever account she chose.

9 Between 15 June 1999 and 19 January 2000 she had, in this way, through some 77 transactions, defrauded Newmans of the sum of $285,000.

10 It was the Crown case that, upon becoming aware that the deceased, Richard Peich, who was her immediate supervisor, had become suspicious of her activities, and that she was at risk of being caught, she decided to resign as and from 24 December 1999. Before doing so, it was alleged, she decided to use the final weeks of her employment, to escalate her fraud, and to that end she formulated a plan to have Mr Peich physically attacked so as to remove him from the workplace. That this was in fact her plan was not in issue. What was in issue, essentially, was whether she procured or expected her co-accused to have him bashed to such an extent as would amount to grievous bodily harm, as the Crown contended, or merely to be “touched up”, in a way involving no great harm, as the appellant contended.

11 In order to implement her plan, it was accepted that she approached her hairdresser Kaycee Salem, and asked whether her boyfriend, Ben Sakisi would be interested in doing the job for money. Sakisi, it was said, contacted a friend of his, Walid Irani, who, some little time later, struck Mr Peich on the head with a hammer and stabbed him with a knife, thereby occasioning his death. Both of Sakisi and Irani were, at the time, drug dealers and users.

12 Each of Kaycee Salem and Walid Irani gave evidence in the trial concerning the discussions which they had with the appellant. Ben Sakisi was also called as a witness, but he made it clear during a voir dire inquiry, and also in the presence of the jury, that he would not give any evidence beyond stating his name. As a result, the Crown tendered a video recording of an electronically recorded interview in which he had participated on 25 January, 2000.

13 This ERISP, along with a transcript of it ,which was tendered as an aide memoir, were admitted into evidence, over objection, although it was edited in several respects, in accordance with his Honour’s ruling. To the admission of this ERISP I shall return, since it is upon this aspect of the case that the appeal substantially turns.

14 The appellant did not give evidence, nor were any witnesses called in her case.

15 In order to place the relevant grounds of appeal into context it is necessary to turn to the evidence of the key witnesses, concerning their discussions in a little more detail, and also to fill out the events which led to the death of Mr Peich.

Discussions preceding the killing

16 Kaycee Salem, who was granted an indemnity under s 46 of the Criminal Procedure Act 1986, gave evidence that the appellant said to her that:

… she wanted someone hurt at work, she didn’t want him dead, she just wanted him stabbed or broken arms or something like that

17 Salem said that she did not tell her boyfriend Sakisi, because she did not want him to be involved. However, she said, a couple of weeks later she overheard a conversation between Irani and Sakisi in the bedroom of her unit concerning the topic, in the course of which Irani asked Sakisi to bash someone at Newman’s Car Yard, and said that they would be paid for it. On her account, Sakisi said that he did not want to have anything to do with it.

18 In cross-examination she acknowledged that, when giving evidence at the committal, she had not made any mention of the appellant referring to Mr Peich “being stabbed”. She said, at the trial, that she had realized, when walking out of the Court at the committal, that she had made a mistake in omitting this detail.

19 Walid Irani who had provided an undertaking to assist the prosecution, and accordingly received a benefit when being sentenced, gave evidence that 4 to 5 weeks before the murder, he was approached by his friend Sakisi, who said that he knew someone who needed somebody to assault their boss to get him away from work for a while. Either $2000 or $3000 was to be paid for having this done. The person in question wanted their boss to be off work for “about one, two or three weeks” and that such person wanted “him bashed - a broken arm or broken leg or something”. He agreed to do the job.

20 Later, he said, Sakisi explained that this person, who worked at a car yard, was planning to defraud the company and that was why she needed the boss away from work.

21 Irani said that he met the appellant 3 to 4 weeks before the murder at Kaycee Salem’s unit, in company with Sakisi. Salem, he said, although present in the background, was not involved in the discussion, during which the appellant identified Mr Peich as the intended victim. Irani asked her how she wanted him injured, to which she replied “Bash him. Stab him. Kill him. I don’t give a fuck what you do to him, as long as he doesn’t show up for work”. She also said that the victim usually went to the St George Leagues Club after work. Irani said that when he asked the appellant whether he should use “a baseball bat, a knife, or just punch the deceased?”, she had replied that “it was up to him”.

22 Salem, it may be observed, did not agree that the appellant had been to her unit before 20 December, and accordingly disagreed with this aspect of Irani’s evidence.

23 Subsequently, Irani said, he received a number of telephone calls from Sakisi in the course of which he was given details of Mr Peich’s home address in Hampton Court Road Carlton, and of his motor vehicle.

24 On 17 December 1999, Irani said, he drove to Hampton Court Road Carlton, with Sakisi and Salem, at about 6.30 pm, in order to see where Mr Peich lived and to gain some impression of what he looked like. Once there he left the car and walked around to the rear of the unit building. He was confronted by a female, Angela Piper, who asked him what he was doing and said that, if he did not leave, she would call the police.

25 The events of this day were corroborated by Miss Piper, who happened to be a trainee police officer, and who recognised Irani from her duties at Kogarah Police Station. She made a note of the registration details of the blue Mazda 626 in which Irani and the female, who she also noticed, had driven away from the area.

26 Juan Carlos Arenda, who was visiting the premises, similarly noticed Irani walking into the courtyard and observed 2 people sitting in a blue Mazda, whose registration details he recorded in his electronic organiser.

27 Salem, it may be noted, corroborated the evidence of this visit, but added that, after being challenged, they had driven to the St Georges Leagues Club, where they were approached by the appellant in the car park. She inquired whether they had seen “him” yet. After responding in the negative, Salem said that the appellant then drove her, and the appellant’s boyfriend, around the car park in her car, looking for Mr Peich’s grey Mercedes. She said that, after finding this vehicle, the appellant went back and pointed it out to Sakisi and Irani.

28 It may also be observed that Irani did not agree that they had gone to the club this night, it being his evidence that after the visit to Hampton Court Road, he had driven home alone. Sakisi also made no mention of going on to the club after leaving Hampton Court Road.

20 December 1999

29 Moving forward to the night of 20 December 1999, Irani said that he met Sakisi and Salem, whereafter they drove to the St George Leagues Club. Before doing so he made preparations, including acquiring a pair of gloves, and a hammer. He also had, in his car, a knife. He said that, at some stage, he showed Salem and Sakisi the knife, saying that he was taking it with him in case something went wrong. Salem said, in her evidence, however, that she knew nothing of any knife being taken that night.

30 Irani said that they met the appellant, who was waiting in the car park in her own motor vehicle. The appellant said that Mr Peich was in the Club, and pointed out where his car was parked. Irani moved his vehicle closer to it, while the appellant drove her car to the other side of the car park.

31 Irani said that they decided that Mr Peich should be attacked as he approached his vehicle, after leaving the club.

32 The appellant went into the club, Irani said, with Sakisi and Salem. Sakisi was to phone Irani, on his mobile phone, to warn him of Mr Peich’s departure. Irani waited in the car park for about 4 hours, before, on his account, Sakisi phoned him to advise that Mr Peich was leaving the club.

33 Irani said that he had a hammer ready, with which he intended to strike Mr Peich on the head, it being his hope that this would fracture his skull.

34 However, when Mr Peich left the club he was accompanied by a female, who walked to his vehicle with him. Additionally, there was a security guard seen in the vicinity. Irani, accordingly, abandoned the plan to assault Mr Peich in the car park, and decided to drive to the unit building to wait for him there. There was evidence from Susan Priddis as well as video surveillance, corroborating the fact that she had left the club with Mr Peich.

35 By the time Mr Peich arrived home, Irani said that he had armed himself with the knife, which he said someone had previously left in the car, in addition to the hammer. It was wrapped in a sock, to assist in finding it if it was dropped, and also to wipe off any fingerprints. He also had a gun, but he left that in the vehicle.

36 As Mr Peich walked past him, Irani struck him on the back of the head with the hammer. When he turned around to see what was happening, Irani struck him again. At that point the hammer broke and fell out of his hands. Mr Peich asked him who he was and what he wanted? He offered him his wallet.

37 Irani yelled out “Why did you rape my daughter?” This, he explained, he had said, in case there were any observers. Mr Peich replied that he did not know what he was talking about, and punched him in the left eye. Irani then pulled out the knife and stabbed him about 6 or 7 times. Irani did not know where he was aiming, but realised that he had struck the deceased with the weapon, because he noticed that there was blood on the blade. The post mortem examination later revealed that the deceased suffered 6 knife wounds, which were the cause of his death.

38 From the observations of bystanders, the timing of the 000 call, and the time of arrival of the ambulance, the killing can be fixed as having occurred at about 10.30 pm.

39 Irani said that he returned to his car and spoke to Sakisi by mobile phone, telling him that the job was done. The evidence would suggest that there was a mobile phone call at about this time but not from Irani’s phone, since it was barred for outgoing calls. Irani said that he drove to Salem’s unit and reported what had happened.

40 He then drove to the Cooks River, and threw the knife into the water from a bridge between Arncliffe and Tempe. He had no further contact with the appellant, but later received about $1000 from Sakisi.

41 In the course of his cross-examination, Irani was taken to the record of interview which had been conducted with Police on 25 January 2000 and which he had said, in chief, constituted a truthful account.

42 He acknowledged however, that some of the answers he had given concerning, for example, his belief before the murder as to the name of the intended victim, when it was that the appellant had provided that name, and when it was that he had thrown the knife into the Cooks River, were incorrect.

43 In the course of this cross examination, he accepted that he had told police, on 25 January, that the appellant had not known what he was going to do, and that in fact he had not known that either. At first, he said, he had thought that he was just going to be the driver.

44 He acknowledged that there were some inconsistencies between his evidence of having made calls on his mobile service to Sakisi while waiting in the car park, and after the killing, and the phone records which, although they recorded calls being made from Sakisi to him, they did not record calls going in the opposite direction. There was also a conflict between his recollection of Sakisi sending the alert as to Mr Peich’s departure from the club, and the video surveillance tapes which had recorded Sakisi leaving the club before this occurred, and also the phone records, which suggested that such call had been made from the appellant’s mobile phone. Additionally, there was some conflict between the accounts which he gave, during the committal and trial respectively, as to the conversation which he had with the appellant, when they met at the car park on the evening of 20 December.

45 Irani agreed that, in the sentencing proceedings, it was said, on his behalf, that the assault on Mr Peich “started out as something relatively minor but it got completely out of hand”. He also agreed that he had used cocaine during the day of 20 December, and had been smoking heroin while waiting in the car park. Although affected by drugs, he said that he had known exactly what he was doing.

46 So far as there were inconsistencies in his evidence, he accepted that his memory or appreciation of details may have been affected by his use of drugs. However he remained firm that he was not mistaken in relation to the critical events.

47 Salem also gave evidence in relation to the events on the evening of 20 December. She said that the appellant had arrived at her unit with Sakisi and Irani. According to her version of events, this was the appellant’s first visit to that unit. Irani, she said, asked what “the guy” looked like, and the appellant replied that he “wears big glasses”. Sakisi, the appellant and Irani she said then left for the club, leaving her behind.

48 At about 9 pm she said, Sakisi returned to her unit in the appellant’s vehicle and drove her back to the club. When she reached the car she said that Irani was sitting in it. According to her recollection he left the car before they set off for the club. In this detail, her evidence differed from that of Irani, since it was his recollection that Salem had gone to the club, and had met the appellant there, at the beginning of the evening.

49 She said that, after dropping her off, Sakisi indicated that he had to go back to drop the keys off to her mother. As she was walking into the club, she met the appellant, who said that she was looking for “the guy who was supposed to get bashed”.

50 The appellant signed her in and they went off to play poker machines together. She said that she phoned Sakisi several times from the appellant’s mobile phone, while she was in the club. At some stage, she said, the appellant observed Mr Peich and pointed him out to her. This she said occurred as they were leaving.

51 Sakisi, she said, returned a little while later in the appellant’s vehicle. He then drove her and the appellant back to the unit, observing on the way that the “job was done”. After arriving at her unit, the appellant drove away. Salem could not recall seeing Irani again that night.

52 By the next morning, she learned that Mr Peich had been killed. Later that morning the appellant phoned her and asked where Sakisi was. She asked her to “tell him that the guy is dead”. Several days later Salem said that she was present with Sakisi at Rockdale Plaza, where they met the appellant. She saw the appellant hand Sakisi some money, and heard her say that she would give him the rest later. She recalled the appellant making a similar observation on New Years day, and asking her to pass that message on to Sakisi.

53 In cross-examination she confirmed that she had not seen Irani, or anyone else, with a knife on the night of 20 December. She also acknowledged having given evidence at the committal which, in several respects, was untrue; for example when it was that she learned that the murder, about which police wanted to speak to her, was that of Mr Peich, and whether she had seen anyone, specifically Sakisi and Irani, smoking heroin in the club car park on the night of 20 December.

Independent corroboration of the appellant’s plan and defalcations

54 Before I turn to those portions of Sakisi’s ERISP which were tendered, it is appropriate to note that there was evidence corroborative of the relevant events, which came from independent sources.

55 Bradley Barnes, who had been the appellant’s boyfriend, gave evidence that during 1999 she had asked him if she could deposit money into his account. He agreed, and said that this then occurred on about ten occasions. A few days after her arrest, he asked her why she was in trouble. She replied that she “had got some guys to rough up a guy from her work and they stuffed up and killed him”.

56 There was also evidence confirmatory of the diversion of funds by the appellant, and of the deceased having entertained some concerns about apparent irregular entries in the computer system.

57 Patricia Molyneux, a support consultant for Auto IT, said that she had spoken to Mr Peich in relation to a query which he had made in relation to an invoice for which he could not find any purchase order, and which in fact turned out to be one of the fraudulent transactions. Alister MacIver, a supervisor at the help desk for Newman’s Information Services, who had filled in for Miss Molyneux, in November and early December, said that Mr Peich had sent him an incident report, noting that he had received invoices from suppliers with purchase order numbers that he was unable to locate. When MacIver phoned him, Mr Peich said that he had a number of issues with regard to duplicate payments, and was concerned that suppliers were providing duplicate invoices for the same work.

58 Nicholas De Bellis, a financial controller at Newmans, provided a summary of the payments, which had been diverted by the appellant, between 4 August 1999 and 19 January 2000, totalling $285,780.56. These defalcations, it may be observed, continued after Mr Peich’s death, since sums amounting to $99,000, in round terms, were diverted following this event.

59 Wendy Jenner, who worked as an accounts receivable clerk at Newmans, said that the appellant had mentioned to her that she was having money problems and was being pursued by debt collectors. She also mentioned having suffered losses gambling, on one occasion in an amount of $10,000. In December she said that the appellant had observed that Mr Peich was “driving her nuts”. A few days after his death, she said that the appellant had denied having been at the club on the night of the killing. This was said in response to Miss Jenner’s inquiry, whether she had seen Mr Peich at the club that night. It obviously was a lie on her part.

Corroboration of events on 20 December

60 There were also placed into evidence a summary of relevant telephone calls which show, inter alia, that there was a call to the home of the deceased, at 6.48 pm, from Sakisi’s phone, which went unanswered. Those records also show that there were a number of calls made between the mobile phones of Sakisi and Irani during the course of the evening, as well as a call from the appellant’s mobile to Irani’s mobile at 10.24 pm, that is, at about the time that Mr Peich was seen to leave the club.

61 Another call was shown to have been made from Sakisi's mobile to Irani’s mobile at about 10.36 pm, that is, after Mr Peich had been attacked.

62 Additionally, there was evidence of video security footage at the St George Leagues club which showed that:

a) At about 7.08 pm the appellant and Sakisi entered the club and signed in; after arriving there in the appellant’s vehicle, at about 7.07 pm;

b) At about 10.15 pm Sakisi left the club, returning at 10.19 pm, before leaving again in the appellant’s vehicle, a minute or so later;

c) At about 10.27 pm the deceased left the club with Miss Priddis;

d) At about 10.50 pm, the appellant’s vehicle returned to the front of the club;

e) At about 10.51 pm, the appellant was seen leaving the club;

f) At 10.51 pm her vehicle was seen driving away.

63 There was further evidence corroborative of the appellant’s presence at the club, on December 20, in the form of bank records showing that she had made withdrawals from the ATM, which was located within the club premises, at 8.15 pm and again at 8.26 pm. There was however some evidence from Detective Sergeant Marks, based on the club videotapes, to suggest that Salem could not be confirmed as having been seen this night, either in the club or leaving with the appellant.

Sakisi’s ERISP

64 It is next convenient, to note some extracts from the edited version of Sakisi’s ERISP, which initially included an admission by him (Q & A 52-53) that he had introduced Irani (referred to as “Wally” or “Walid” in the ERISP) to the appellant (generally referred to in the ERISP as “Sneza”).

65 The interview included the following questions and answers, relevant to the central issue in the trial, as to what it was that the appellant had requested, or had in contemplation, concerning Mr Peich:

“Q 67: O.K. Has Sneza ever contacted you in relation to assaulting Richard Peich?
A. Yeah.

…

Q 78 And what did she say?
A. And she told me, she told me she wanted somebody out of work for a little while.
…

Q 81 Did she tell you how she wanted that person out of work?
A. Just give him a little touch up.

…

Q 85: O.K., did she say how long she wanted this person out of work?
A. Two weeks. Two weeks.

Q86: O.K., did she say why she wanted this person out of work?
A. Money, something to do with money, something to do with work money.

…

Q 91: ..Did she say how she wanted the person hurt?
A. She just said she wanted him bashed, you know, not hurt him, only just, just hurt him enough to be out of work for two weeks .
…

Q94: O.K. What happened then?
A. What happened then? I saw Wally.

…

Q 96: O.K. And what did you say to Wally?
A. I just asked him, “Are you interested in doing something?”.

…

Q 100: What did you say to him?
A. I remember I just said, “A girl wants a person out of work for two weeks and all you’ve got to do is hit him”.

…

Q 117: O.K. What happened .. after the initial contact, did Sneza tell you anything else about why she wanted this person assaulted?
A. She wanted him assaulted because, something about money, and her work, she was doing something at work, she was taking money.. .. ..
…

Q 120: O.K
A. She told me, she told me that this guy knows something about her.
…

Q 198: All right. Before you went to St Georges Leagues Club, was there any discussion with Sneza about assaulting Mr Peich?
A. She was getting worried, she goes, “When’s it going to get done? When’s it going to get done?”, and she said, ‘cause she had, only had a week left, I think, she was only working there for one more week.
…

Q 201: O.K.
A. And she wanted him out of work for the while, till she leaves work.

…

Q 244: Did she pay you any money in relation to it, in relation to the death?
A. She already gave me money from the start.

Q 245: How much?
A. About $600, this was at the start, when she asked me, can I find someone, can I help her try to harm someone.
…

Q 247: Did she give you any more money after Mr Peich’s death?
A. She gave me another $500.

…

Q 279: I’ve been told that Sneza said words to the effect of break his knees or his legs, do you recall her saying that?
A. Beg yours?

Q 280: Break his knees or his legs?

She wanted something like that

”.

66 Otherwise in the interview, Sakisi said that he had introduced Irani to the appellant at the Rockdale Plaza (Q & A 52, 53 and 61); that the appellant had phoned him requesting that he do something or find someone to do something to another person to get him away from work for a while, and that she would pay $2000 to $3000 for this to be done (Q & A 75,76,79, 88 and 89).

67 He also said that the appellant had phoned him regularly wanting the assault to be carried out (Q & A 104, 109, 181 and 186) and that she had provided details of where the intended victim worked, and where he went after work, along with details of his address, car registration, and phone numbers (Q & A 126, 127, 130 to 132, 134 and 138).

68 He confirmed that, prior to the killing, he had gone, with Irani and Salem, in Irani’s Mazda, to the premises where they were advised by the appellant that Mr Peich lived, and that they had been spoken to by a female, after which they went home (Q & A 143, 154-163, 173, 174, 179).

69 In relation to December 20, he said that he, the appellant and Irani (who had arrived at Salem’s home, before the latter had returned from work), had driven to the St George Leagues Club, at that stage leaving Salem behind (Q & A 188, 190 to 192, 194 and 197). This, he said, had occurred because the appellant had indicated that Mr Peich would be there (Q & A 209 and 211). From the car, he said, he had phoned Mr Peich’s telephone number, but had received no answer (Q & A 253, 254, 261-264).

70 Once at the club, he said, he and the appellant had gone inside (Q & A 224), while Irani waited outside (Q & A 227). He said that he then went home in the appellant’s car, because Salem’s mother had phoned up wanting the keys, leaving the appellant behind (Q & A 227). At that stage, he said, Mr Peich, who had been pointed out to him by the appellant, was still inside the club. Irani remained outside (Q & A 227, 299 and 335).

71 On returning home, he said, Salem indicated that she wanted to accompany him back to the club (Q & A 228, 234 and 344). As they were about to leave, he said, he received a message from Irani either by phone or by being buzzed (at the unit) telling him that the “job was done” (Q & A 321, 322, 323 and 344 - 346). He then met Irani, and drove back to the club with Salem, where they met the appellant who then gave them a lift home(Q & A 323, 348-354).

72 He also agreed that after the murder, Irani had shown him, downstairs at the unit, the blood stained sock, or a cloth to show “that he’d done it” (Q & A 290, 376 and 383).

73 He said that the appellant had paid him about $600 at the beginning, and another $500 subsequently, of which he gave Irani $450 (Q & A 244, 245, 247, 251, 312 and 359).

74 The jury had the video of this interview and a transcript of it. They were also provided with a transcript of the evidence which Irani and Salem had given in the trial.

Police Interviews of the appellant and co-accused

75 In order to complete the chronology concerning the investigation, and charging of those involved, it may be noted that:

a) On 23 December 1999, Irani was interviewed by Police, and later allowed to go – the answers given in this interview he later acknowledged were untrue.

b) On 28 December 1999 Sakisi was interviewed and also released.

c) On 13 January 2000, Irani was re-interviewed and confronted with certain lies which had earlier told. He provided a new story, which he later acknowledged had also been untrue, and was again released.

d) A friend of Irani, to whom he confessed his involvement in the murder, informed police of this, on 24 January 2000.

e) On 24 January 2000, the appellant was arrested. She declined to answer questions but did make a comment “Things went out of hand and I don’t know what happened, so , but I did not kill him”.

f) On 25 January 2000, Police arrested and reinterviewed each of Irani, Sakisi and Salem. In the course of his interview, Sakisi acknowledged that much of his interview of 28 December had been untrue. Salem agreed that she had on this day commenced to tell Police lies but, after speaking to Sakisi, she said that she had cooperated with Police.

g) On 4 April 2000 Salem made a further statement to Police in which she provided additional information. She agreed to assist in the prosecution of those involved and this led to her receiving an indemnity.

h) On 1 December 2000 Irani pleaded guilty to murder, and was later sentenced for his part in that offence, to a term of imprisonment of 20 years with a non-parole period of 15 years. An appeal against severity was later dismissed.

i) Sakisi pleaded guilty to a charge of accessory before the fact of malicious wounding with intent to do grievous bodily harm. On 15 June 2001, he was sentenced to imprisonment for 10 years with a non-parole period of 7 years.

THE APPEAL AGAINST CONVICTION

76 The appellant did not challenge the proposition that she had procured an attack on Mr Peich to take him away from work. The fundamental issue in the trial, as I have observed, concerned the kind of attack, which the appellant had requested or had in contemplation as a possibility: that is, how severe it was to be. The admissibility of the Sakisi interview, the manner in which the jury were directed as to the ways in which the appellant might be found to be guilty of murder or manslaughter, and the question whether the verdict was one which was unreasonable, are all connected with this issue.

Ground One
The learned trial judge erred in admitting into evidence representations made by Ben Sakisi to the investigating police in an interview conducted on 25 January 2000, as evidence of the truth of the facts asserted in those representations. His Honour erred in:
(i) his determination as to the application of the provisions of s 65 of the Evidence Act 1995;
(ii) his admitting the evidence by away of the playing of the video tape recording of the interview and providing each member of the jury with a transcript of those parts of the interview which were admitted as evidence;
(iii) his determination that the evidence should not be excluded under the provisions of s 137 Evidence Act 1995.
(iv) his determination that the prejudice caused to the appellant by the inability to cross-examine Ben Sakisi could be alleviated by appropriate directions to the jury.

(i) Application of s 65 of the

Evidence Act

77 The Crown’s application to tender the ERISP was brought under s 65 of the Evidence Act 1995 (“the Act”), which provides relevantly:

“

65. Exception: criminal proceedings if maker not available

(1)

This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2)

The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:

…

(c) made in circumstances that make it highly probable that the representation is reliable, or

(d) against the interests of the person who made it at the time it was made.

…

(7)

Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends:

(a) to damage the person's reputation, or

(b) to show that the person has committed an offence for which the person has not been convicted…”

78 At the time of the trial, Sakisi was in prison serving the sentence which had been imposed for his part in the attack on Mr Peich. He had refused to give evidence at the committal, and he adopted the same position at trial, notwithstanding the caution which was given, that he risked punishment for contempt of court.

79 He maintained this stance, after receiving legal advice, on the third day of the trial. It was in these circumstances that the Crown sought to tender the ERISP, upon the basis that, within the meaning of the Act, he was “unavailable to give evidence.”

80 Before making an application upon this basis, consideration was given by the Crown to seeking leave to cross-examine Sakisi under s 38 of the Act as to his answers, thereby making the evidence available in the way which was confirmed as acceptable in Gilbert Adam v The Queen (2001) 75 ALJR 1534. Any such attempt to follow that course was likely to be unproductive if the witness continued to prove defiant. No doubt it was that consideration which led the Crown to move on to s 65 of the Act.

81 Although the opportunity of testing the witness’ account was considered important in the case of Adam, both by me at first instance, and in the High Court on appeal, the net result of the exercise there was that the Crown was able to rely upon the version contained in the police interview since that version was permitted to go to the jury.

82 In the Dictionary to the Act (Clause 4, Part 2), the expression unavailability of persons includes a number of situations, for example those who are dead, missing, or not competent. The Dictionary definition also provides:

s 4(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

(f) All reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give evidence, but without success.”

83 Counsel for the appellant, at trial and on appeal, acknowledged that the Crown had taken all reasonable steps to compel Sakisi to give evidence. His Honour regarded that acknowledgement as a recognition that the sanction of contempt was unlikely to make him change his mind. His Honour accordingly found that Sakisi was, for the purposes of the Act, “unavailable to give evidence.” Clearly that finding was correct. As emerges from a reading of the Australian Law Reform Commission Reports, the definition of “unavailability” was intended to cover the position of a witness who refused to give evidence (Report 36 at para 218).

84 The next step involved determining whether his out of court representations in the ERISP could be tendered, notwithstanding the hearsay rule. The exceptions upon which the Crown placed reliance were those contained respectively in s 65(2), (c) and (d), namely, that the representations had been made in circumstances where it was highly probable that they were reliable (s65(2)(c)), or that they were representations against his interests at the time that they were made (s 65(2)(d)).

85 His Honour concluded that Sakisi’s position as an accomplice made it difficult to have the degree of confidence in his account, that could allow it to be “categorised as highly reliable”. Although that is not the precise way in which the provision is expressed, I assume that his Honour meant that he could not be satisfied that, the circumstances in which the representations were made (that is, in a formal police interview at a time when Sakisi was under investigation), made it highly probable that they were reliable. If that were not the case, then it appears to me that his Honour may have set the hurdle too high for the Crown in relation to this alternative in adopting a test of “high reliability”: R v Ambrosoli [2002] NSWCCA 386.

86 Whatever be the position in this regard, his Honour elected to approach the matter upon the basis of s 65(2)(d).

87 The ERISP took place on the day of Sakisi’s arrest, and before his conviction on the charge of being an accessory before the fact of malicious wounding with intent to do grievous bodily harm. In these circumstances s 65(2)(d) was available without any requirement for the court to be satisfied that it was highly probable that the representations were reliable.

88 Counsel for the appellant, at trial, drew attention to the safeguards contained in s 65(3)(4) and (5) which permit evidence of this kind to be given, in the circumstances to which they apply, only where the party against whom it is tendered, has cross-examined the unavailable witness, or has had a reasonable opportunity of doing so.

89 In substance the submission presented at trial, and pursued on appeal, is that s 65(2) should be construed, or read down, so as to reflect a policy evident in these sub-sections. His Honour held that s 65(3) to (5) dealt with a particular situation, namely where the unavailable person has previously given evidence in court proceedings, that had been dealt with by s 409 of the Crimes Act 1900. His Honour held that s 65(2) dealt with a separate situation, and should be construed upon its own terms.

90 At first blush, it may seem unusual that there should be a difference between the position of a potential witness now unavailable, who had given evidence on an earlier occasion, and one whose earlier account had not been given on oath. Similarly it may seem unusual that, had Sakisi gone to trial with the appellant, then his ERISP, if tendered, could only have been received as evidence in the case against him.

91 Notwithstanding these considerations, if the ERISP answers the requirements of the section, the philosophy of which is to allow the use of specified categories of hearsay evidence, then, subject to the safeguards of notice and possible exclusion under s 135 or s 137 of the Act, I see no obstacle to its tender. In particular I see no reason to read into s 65(2) qualifications which appear in relation to other subsections, but which have been omitted from it.

92 It was next submitted that only so much of Sakisi’s ERISP as could be regarded as a statement against his own interests could be admissible under s 65(2), it being contended, for example, that a representation to the effect that the appellant “gave me instructions to arrange the bashing..” could not be so regarded. His Honour accepted the first part of that proposition, but not the second, holding, correctly in my view, that any statement made by Sakisi, which tended to implicate himself in a joint criminal enterprise with the appellant, would qualify. I so find because this is the classic definition of a statement against interest, as reproduced in s 65(7) of the Act.

93 An argument was also advanced that each question and answer should be considered separately, and that, unless standing alone, it amounted to a representation against interest, it did not qualify for admission. In my view this involved altogether too narrow a proposition. I see no reason why the representations should not be considered in context, that is, in association with the other answers which, when read together, constitute an admission or answer against interest, that is, so far as they tended to prove that Sakisi had committed a crime.

94 It was also submitted that, in view of Sakisi’s position as an accomplice, and the arrest of his girlfriend, such statements as he had made in the ERISP may have been self-serving, or intended to serve her interests. Upon that basis, it was argued that the representations could not be held with any certainty to be against his interests. His Honour rejected this argument, holding that despite any mixed motives which he may have held, any answer which tended to be incriminatory of him was one made against interest. Again, I am of the view that this aspect of his Honour’s reasoning was correct, and that the argument to the contrary, repeated on appeal, has no basis. It similarly follows from the commonly accepted meaning of a statement against interest.

95 His Honour excluded those questions and answers which were incapable of being described as against the interests of Sakisi (for example his denial of any allegations being put to him). Additionally he excluded those answers which amounted to second hand hearsay, that is, those matters which could only have been known to Sakisi through conversations with persons other than the appellant, or which involved him recounting conversations with persons other than her, where their only relevance was to prove the facts asserted.

96 Counsel were invited to edit the video and accompanying transcript to accord with these reasons. So far as this Court is aware, the version placed before the jury was accepted by the parties as having been sufficiently edited to accord with this ruling. After examining the record as tendered, I find no fault in this regard.

97 Admittedly there are a few passages of an innocuous or introductory nature, which may not strictly have been against interest. They were allowed to remain at trial and Counsel for the appellant does not suggest that any risk of a miscarriage of justice can be attributed to them.

98 An ancillary submission was advanced to the effect that, had the legislature contemplated the possibility of the admission into evidence of an ERISP, or of out of court representations, made by a co-accused in the position of Sakisi, without the accused having had the opportunity to cross examine their maker, then it would have made express provision for that to occur, or that it would have, at least, earned a mention in the Australian Law Reform Commission Report.

99 I am not persuaded that the Act should be read down on any such assumption. By reference to ordinary rules of statutory interpretation, where a witness answers the description of an “unavailable person” then s 65 should apply to its full effect.

100 This follows from the very precise and careful scheme of the Act, which provides for specific exceptions to the Rules otherwise stated, as well as for the mandatory or discretionary powers of exclusion contained in ss 135 to 137.

101 If s 65(2) was to be read down in the way suggested, then that would deprive it of all utility, since it assumes that the maker of the representations is not available for cross-examination. As mentioned later, however, I would regard that circumstance as a relevant consideration when the tender is considered in the light of sections 135 and 137 of the Act.

102 It was noted by his Honour that the Crown had not given notice in writing of its intention to adduce hearsay evidence in respect of Sakisi, as had been required by s 67(1). Nor had it sought leave for a direction under s 67(4) that, despite such failure, s 65(2) should apply. After the material had been admitted, his Honour’s attention was drawn by the Crown to this oversight. Counsel for the appellant did not oppose a direction being given, accepting, as he did, that no particular unfairness had been involved through the absence of notice. In his reasons for allowing the evidence to be tendered, which were delivered after the ruling had initially been made, his Honour made reference to s 192, holding that the matter was “plainly one in which leave… was appropriate”. I see no error in the approach that was taken at the trial, in relation to the request for leave. None of the considerations referred to in s 192 would have justified leave being refused.

103 A further submission advanced at the trial, but not at appeal, was that the tender of the ERISP would have involved second hand hearsay and would therefore have been inadmissible by reason of s 62 of the Act, which only permits first hand hearsay. This argument was rejected by his Honour upon the basis that the tender of the video in which Sakisi had described what had been said to him, or what he had seen, constituted a direct account, which would have been clearly admissible, had he been called as a witness. As such it was not second hand or remote hearsay, since he was describing events in which he had been a participant, or which he had personally witnessed.

104 His Honour accepted, however, that where Sakisi had repeated to the police assertions of fact by someone else, and where the only relevance of that evidence was the facts asserted, it would have been second hand hearsay. Similarly repetition by a police officer of Sakisi’s account would have been second hand hearsay.

105 The distinction which his Honour drew accorded with the definition of hearsay in s 59 of the Act, and was plainly correct.

106 By reference to this distinction, his Honour held that the disclosure to the jury of Sakisi’s account, through the tender of the video or audio tapes of the interview, did not offend the first hand hearsay rule, since the record was confined to his account of the words of the appellant, which she had addressed directly to him, and to those things which he or she had done following that request.

107 I am unable to see any error in the process of reasoning, which led his Honour to hold that the video could be tendered under s 65(2)(d), subject to its possible exclusion under s 135 or s 137 of the Act. To that issue I will return, although it may be noted that the argument on appeal, in that respect, was confined to s 137.

(ii) Manner in which the evidence was placed before the jury

108 The appellant did not require the attendance at trial of the police officers who took part in the ERISP to prove its terms, or its making. The transcript was provided as an aid to its understanding since it was not entirely audible. It was made clear that the videotape was the primary exhibit, and the procedure adopted by his Honour followed conventional practice. I am not persuaded that error was disclosed in this respect.

(iii) s 137 of the Evidence Act

109 Submissions were also directed towards a mandatory exclusion of the evidence under s 137 of the Act, upon the basis that its probative value was outweighed by the danger of unfair prejudice to the defendant.

110 In the application of s 137, and also s 135, it was necessary for his Honour to have regard, as he did, to the definition contained in the Dictionary to the Act, of the expression “probative value”, as follows:

rationally

111 The fact in issue, as I have observed, was the instruction given, or the request made, as to what degree of harm should be done to Mr Peich, to keep him away from work, so that the appellant could have a final opportunity to commit further frauds upon her employer.

112 The nature of the weighing process involved was analysed in R v Blick (2000) 111 A Crim R 326, to which his Honour appropriately referred.

113 Three matters were identified as having a particular relevance to the weighing process:

114 The last of these propositions was not pursued at trial, and there was no suggestion that Sakisi may have been affected by drugs at the time of his interview. Having regard to the fact that this played no part whatsoever in the trial, I do not see it as having any relevance for the admissibility issue.

115 The other two matters do require examination.

116 As is now well established, the prejudice to the defendant of which each of s 135 and s 137 speak is not the simple fact that the evidence may advance the Crown case or weaken the defence case. Rather it means damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves: R v Lisoff [1999] NSWCCA 364; and see also R v Lockyer (1996) 89 A Crim R 457 at 460, Papakosmas v The Queen (1999) 196 CLR 297 at para 91 and R v Serratore (1999) 48 NSWLR 101 (at 109). Dunford J there said that evidence is of this character, where it “.. has only a slight probative value, but which carries with it a probability that it will be misused by the tribunal of fact in a way logically unconnected with the issues in the case”.

117 There must be more than a hypothetical risk of it being unfairly prejudicial in this way – the risk must be a real one: R v GK (2001) 53 NSWLR 317 at 324.

118 Kirby J noted that the representations in the ERISP were relevant, as they clearly were, since they could rationally affect the fact in issue. Equally clearly they had a significant probative value, so far as they may have provided Sakisi’s version of the request which the appellant had made. In this regard they were capable of providing support for the evidence of Salem and Irani, on the one hand, and of receiving support from their evidence, on the other hand. Otherwise subject to the edited segments, his Honour regarded the balance of the representations to relate to matters that were not in issue, and therefore not to be “unfairly prejudicial to the appellant” in the sense in which that expression is to be understood.

119 His Honour recognised that there were some questions which were suggestive of the words spoken by the appellant but which had not been fully adopted by Sakisi. Into this category fell the following questions and answers:

“Q.282 I’ve also been told that she said, ‘Stab him, bash him, kill him if you want, I don’t a fuck as long as he doesn’t go to work’?

A. Yeah. That’s it.

Q. 283 Sorry?

A. Yeah, yeah, yes.

Q. 284 Do you recall her saying that?

A. Yeah, she said that few times.

Q. 285 OK. Do you recall her using those words, ‘Stab him, bash him, kill him if you want, I don’t give a fuck as long as he doesn’t go to work’?

A. Something, like that, but not the exact words, you know…

Q. 286 Words to that effect?
A. Yeah. ”

words like that”.

120 His Honour rejected these representations upon the ground that they had been prompted, yet had not been adopted in the words suggested, those words being of “a striking” nature that were likely to have “resonated with the jury”. As such, his Honour concluded the there was a risk of prejudice to the defence case that was unacceptable.

121 A distinction was drawn however in relation to questions and answers 279 and 280 (set out above). Although the answers to Q 280 did not have the probative force of an entirely unprompted response, nevertheless his Honour regarded it as sufficient that Sakisi had generally adopted the words suggested. Those words, he held, had a probative value and were not likely to have the same impact upon the jury as the rejected questions and answers. Upon that basis those passages were held to be admissible.

122 Again, I am not persuaded that his Honour fell into error in drawing the distinction, or in finding, for the reasons which he identified, that, subject to the exclusion of question and answers 282-286, 394 and any repetition thereof, their probative value was not outweighed by the danger of unfair prejudice. There was independent evidence that these words had been used, and they did not have the graphic overtones of the rejected representations.

123 In relation to the evidentiary value of the ERISP, much of its content was not in issue and, quite apart from the conversations of which Salem and Irani gave evidence, there was a good deal of corroboration in the form of the telephone records and the security video at the club. Moreover there was the fact that Sakisi had pleaded guilty to an offence of which an essential element was the intent to cause grievous bodily harm. Had that not been the common intent of those involved in the plan, it is unlikely that he would have pleaded to this offence, rather than to the lesser offence of being an accessory before the fact to an offence of malicious wounding, simpliciter.

124 In all of these circumstances there is good reason to consider that Sakisi’s account was likely to have been a credible and reliable one, and to have had a commensurate evidentiary value.

125 The case is not one of an obvious and inherent unreliability arising from his role as an accomplice, or as the partner of Sakisi. The position could have been different had the appellant not accepted an involvement on her part, as the initiator of the plan to harm Mr Peich. In that case there may well have been a benefit for Sakisi to pass responsibility to her, so as to reduce his objective criminality. As the facts fell out, however, there does not seem to have been any benefit whatsoever for him, or for his girlfriend, to overstate the agreed objective, in a way throwing doubt on the critical issue. In fact the very contrary is the case, it being one where, in reality, the interests of the appellant, Sakisi and Salem were at one, that is, to minimise if possible, the seriousness of the plan, and to suggest that Irani had gone off on a frolic of his own.

126 For the reasons earlier identified, I see no reason why the inability of the appellant to cross-examine Sakisi should not have been relevant for s 135 and s 137 of the Evidence Act. However, the bare fact that a defendant cannot cross-examine a witness is not necessarily decisive of the issue which arises in relation to these provisions. See Ordukaya v Hicks [2000] NSWCA 180, Bakerland Pty Limited v Coleridge [2002] NSWCCA 30, and in particular the decision of Heydon JA in Regina v Clark [2001] NSWCCA 494 at para 164.

127 The decisions mentioned clearly depend upon their particular facts, that is, upon the character of the evidence involved and upon the nature or strength of the potential prejudice to the defendant. Each case, in my view, needs to be examined individually by reference to the well understood balancing exercise.

128 In the present case it was submitted that his Honour had overlooked the question of prejudice, when ruling on the admissibility of the ERISP, so far as s 137 was concerned. I am not persuaded that this was so, since the point at issue was very much at the heart of the argument at trial, and it was a matter which his Honour expressly decided could be suitably dealt with by way of directions.

129 The complaint as to the existence of prejudice in relation to the inability to cross-examine Sakisi was, in any event, somewhat speculative, in the absence of any reason to suppose that he would have contradicted himself. Having pleaded guilty and having been sentenced, as an accessory before the fact to an offence of malicious wounding with intent to do grievous bodily harm, it seems unlikely that he would have withdrawn so much of his account, in relation to the common understanding, that grievous bodily harm was to be occasioned to Mr Peich.

(iv) Directions

130 In any event, his Honour gave clear and sufficient directions, in accordance with s 65 of the Evidence Act, at the time of the admission of the evidence, and in the summing up, concerning the hearsay nature of the evidence and concerning Sakisi’s role as an accomplice. When the video and transcript were admitted into evidence his Honour gave the following warning to the jury:

Certain classes of evidence may be unreliable, so there is therefore an obligation on the trial judge to draw that to your attention. In this case the evidence of Mr Sakisi falls within a number of the classes which may cause it to be unreliable, and I should therefore perhaps specify each of those classes.

The first is that he is, on his own admission, as you will see, someone who was criminally involved in the events of that evening, and that period is December of 1999. He therefore is someone, because of that involvement, who may have his own angst (sic) to grind, if you like, in perhaps minimising his involvement or maximising the involvement of others, and consequently his evidence must be approached, or – it is not evidence, sorry: It is evidence, but his account given in the video must be approached with that in mind.

Secondly, this material is admitted as what in effect is hearsay material. It is an exception to the hearsay rule. You will no doubt have heard the term ‘hearsay’. I will elaborate upon this when I come to give you directions in my summing-up. But two things you will notice about the evidence that is to be placed before you in the video which make it different to evidence that you heard through people who have come and given evidence in the witness box in the usual way. The first is that when Mr Sakisi was answering questions in the interview he was not on oath to tell the truth or he had not taken an affirmation that he would tell the truth. He was simply answering questions. That is the first thing to notice about this evidence.

The second thing to notice of course is something which is very obvious; that is he is simply asked questions and he gives his answers. He is not subject to cross-examination in the usual way. Therefore, Mr Byrne, on behalf of Ms Suteski, doesn’t have the opportunity of putting to Mr Sakisi the various matters which no doubt he, on behalf of his client, would wish to put. So that is another matter for you to bear in mind when you view this material and come to evaluate its reliability..”

131 In the summing up his Honour repeated this direction, after having made a reference to the problem which can be encountered with hearsay evidence that it involves a repetition of someone else’s account. His Honour went on to say::

Quite apart from accuracy of repetition, in the case of the video that you have of the interview with Mr Sakisi, it may be unreliable for a number of reasons.

The first is that the video is unlike other evidence given by witnesses who stood in that witness box and who have sworn an oath or taken an affirmation to tell the truth. Mr Sakisi, when he was interviewed, was simply answering questions for the police. He was doing so without the sanctity and potential penalty that applies to someone who is sworn as a witness.

The second matter, and perhaps more fundamental, Mr Sakisi, unlike other witnesses, has not been cross-examined. The Crown, in view of Mr Sakisi’s refusal to give evidence, sought to tender the tape. I made a ruling that the Crown was entitled to do so. One consequence of that ruling is that Mr Byrne, on behalf of Miss Suteski, has not had the opportunity to cross-examine Mr Sakisi, putting to him matters that may go to the reliability of his recollection or the credibility of his testimony. So the evidence has not been tested in the usual way by cross-examination. Therefore the video evidence and the aide-memoire that you have of it must be scrutinised with great care. It may be unreliable.”

132 I am unpersuaded that any error was shown in relation to these directions, or that the inability of the appellant to cross-examine Sakisi should have attracted, of itself, an application of s 135 or s 137. Similarly, I am not persuaded that his Honour decided that it was unnecessary to consider any prejudice which may have related to the absence of cross-examination when determining whether the ERISP should be excluded under s 137, on the ground that this fact should be deferred and dealt with only by way of a direction to the jury.

133 No request was made at trial, for his Honour to make any additional reference in the directions which were given to the jury, concerning the inability of the appellant to cross-examine Sakisi. The point advanced, upon appeal was somewhat more stark, it being argued that no direction could have been given that would alleviate the prejudice. I am not persuaded that this is so.

134 Ground 1 has not been made good.

Ground 2

The learned trial judge erred in his directions to the jury on the matters required to be proved by the Crown in order to establish the offence of murder, on the alternative bases on which that charge was left to the jury, and on the alternative offence of manslaughter, in that those directions:

(i) failed to correctly explain to the jury the way it should approach the task of determining whether the conduct of Mr Irani in killing Mr Peich, and other conduct of Mr Irani, was within the scope of what was procured by the appellant.

(ii) failed to correctly explain to the jury the nature of the appellant’s liability for acts done which were outside the scope of what was procured by the appellant.

135 It was submitted that the directions which were given by his Honour, including the further directions which followed a question asked by the jury (in relation to manslaughter), were erroneous, in that they left the question whether the conduct of Irani, in killing Mr Peich, was within the scope of that which was procured, or requested, in a way that was too broad. Specifically, it was submitted that the terms used left the appellant “liable to be convicted of murder because of her contemplation of something less than a real chance” (presumably, of grievous bodily harm being inflicted by the use of a knife).

136 His Honour directed the jury in relation to the several ways in which murder was said, by the Crown, to have been committed. Since the appeal is confined to the element involving the appellant’s mens rea, it is only necessary to extract those portions of the summing up which related to it. The jury additionally were provided with written directions, which noted the essential elements of the summing up.

137 The first way in which the Crown case was put involved the appellant having procured an assault upon the deceased which was intended to cause grievous bodily harm, a term which his Honour described as “really serious bodily injury” in the directions, that is, common enterprise murder (Part A in the written directions).

138 In relation to this alternative, his Honour explained:

“If A procures B to cause really serious bodily injury to C and should C die as a consequence, then even though the procurer A may not intend that the person who is the victim should die, provided of course they intend that the victim should suffer really serious bodily injury, then should it happen that the person dies then the procurer, as well as the person who inflicted the injuries, are each guilty of murder.”

139 In dealing with the mental state of the appellant (after dealing with the act of procurement, or counselling, or assistance of the principal offender) that is element three in the directions, his Honour said:

Now, element three requires that Sneza Suteski should have intended the crime of physically assaulting Richard Peich should be committed, intending that there should be really serious bodily injury or that he be killed. It is not necessary that Ms Suteski should have intended that Richard Peich should be killed. It is enough if she intended that he should suffer really serious bodily injury. So you will need to be satisfied beyond reasonable doubt that that was her intention at the time she is said to have commissioned these acts, if that is what you find she did.”

140 Passing on to the scope of the common enterprise (element 5 in the direction) his Honour said:

Now, what must be proved beyond reasonable doubt is that the crime committed by Mr Irani was within the scope of what Ms Suteski counselled or procured, if that is what you find she did, and not a crime which was materially different. So that this element requires you to determine what crime, if any, did Ms Suteski procure, counsel or assist. If there was a crime did it involve inflicting really serious bodily injury. Did Ms Suteski know that a dangerous weapon

such as a knife

would or might be used in the commission of a crime?

…

Now, having said that the crime must be within the scope of the crime procured, the crime committed need not correspond in every detail with that contemplated or anticipated by Ms Suteski. In the nature of things events are likely to unfold in a way that can never be entirely predicted. The issue for you is whether the crime committed was materially different from the crime which was procured. Can it be said that what was done fell within the ambit of what it was that Ms Suteski procured or counselled or assisted?”

141 Having explained what was required to make good that alternative, his Honour went on to Part B - extended joint enterprise, or common purpose murder, pointing out that this applied where what had been agreed upon, and ordered, involved a physical assault upon Mr Peich with the intention of causing injury, falling short of really serious bodily injury. As his Honour explained, this involved the situation where:

the crime, as ultimately committed, is different from the crime that had been agreed should be committed”

so far as Ms Suteski is concerned, even where the crime committed is outside the scope of the agreement, there are certain circumstances in which the party to the original agreement may be found guilty of murder. Before they can be found guilty of murder, the Crown must establish three things:

…

First, that there was an understanding or arrangement amounting to an agreement between Ms Suteski and others, other persons, including Walid Irani to commit a crime, namely, an assault involving the application of physical force to the body of Richard Peich and with the intention of causing injury to Richard Peich, which injury need not amount to really serious bodily injury”.

142 His Honour then gave a conventional direction as to what is involved in a joint criminal enterprise, citing the often used example of a bank robbery involving a number of participants, before going on to the second element. In relation to that element which was formulated as requiring that:

Ms Suteski contemplated the possibility that, in the course of carrying out the crime, one of the parties to the agreement with her may, by use of a dangerous weapon such as a knife, wilfully do an act or acts with an intention of inflicting really serious bodily injury to Richard Peich; AND

Knowing that possibility, Ms Suteski nonetheless continued with the agreement;

Now as I said, in the nature of things the commission of a crime involves events which are difficult, if not impossible to predict, and their unpredictability essentially arises from the fact that matters do not always happen according to plan… but the law accommodates that unpredictability in a number of ways. The crime committed does not have to correspond in every detail with the crime which is contemplated by the parties… this alternative presupposes, the crime is outside the scope, outside the agreement… the party to the agreement may be responsible for the crime where that party contemplated the possibility that in the course of carrying out the agreement one of the parties to the agreement may commit a crime of the kind that was in fact ultimately committed. What must be contemplated is the

substantial risk

of such a crime, not merely a slender chance.”

143 His Honour then explained the concept by example, taking up again the situation of a joint enterprise to commit a bank robbery where there had been no intention to cause serious physical harm to any member of the staff or to any customer, but where the possibility of that occurring was in the contemplation of the participants.

144 I am not persuaded that these directions were, in any respect, erroneous, in relation to the appellant’s liability for murder (as an accessory before the fact). To establish her liability for murder, as his Honour correctly directed, the jury had to be satisfied, beyond reasonable doubt, relevantly for the ground of appeal that, either:

(a) The application by Irani of force to Mr Peich, for the purpose of causing him grievous bodily harm, was within the scope of the joint criminal enterprise: McAuliffe v The Queen (1995) 183 CLR 108 at 115 to 116; or

Johns v The Queen

R v Duong

145 There was no requirement that the Crown show that there was agreement as to the particular manner in which grievous bodily harm was to be occasioned, or as to the particular weapon which was to be used; nor was it necessary for the Crown, in the alternative way in which it put its case, to show that the appellant contemplated as a possibility the particular way in which Mr Peich was to be harmed, or that any particular weapon was to be used, for that purpose.

146 What was required was that the infliction, in some way, of grievous bodily harm, came within the scope of the joint enterprise to injure the victim, or was contemplated as a possibility in its implementation.

147 In my view, the directions sufficiently and correctly instructed the jury as to the offence of murder constituted by joint enterprise, and extended joint enterprise (common purpose) respectively.

148 At the request of counsel, his Honour later narrowed the directions in relation to element five of the joint enterprise alternative in a way that favoured the defence, and that was not strictly necessary, by indicting that it should be understood as follows:

What Mr Irani did involving the use of a knife, but not necessarily the death of Mr Peich, was within the scope of that which Ms Suteski procured, counselled and assisted.”

149 No redirection was sought at that stage. His Honour however came back to the two alternatives, on the following day, when he summarised the position, in the following terms:

in broad terms you will remember the first alternative of procuring. The essential issue was what was done by Ms Suteski by way of procuring, counselling and so on, to use the words of the Crown which I think were, to some extent, embraced by Mr Byrne.

What was the nature of the attack which was procured? In particular, did it involve inflicting really serious bodily injury? There is the further issue of whether or not the crime, as executed by Mr Irani, was within the scope of that which was procured? So, all those issues arise in the context of that alternative.

The second alternative concerns the agreement to commit a crime. The issue is: was there an agreement, and if there was, the nature of that agreement, and if it was an agreement to assault Mr Peich, but not to inflict really serious bodily injury, did Ms Suteski nonetheless have within her contemplation the possibility of the use of dangerous weapons

such as a knife

? So that in the course of execution of that agreement really serious bodily injury might be occasioned?”

150 Counsel for the appellant, some little time later, sought a direction, in relation to the common purpose alternative, to the effect that there was no evidence that she had contemplated “the possibility.. in the sense of it being a substantial risk, not being a slender chance,…”. Although the request did not go on to specify “the possibility”, it is clear that it was understood as relating to the possibility of the infliction of grievous bodily harm.

151 His Honour rejected this request, correctly in my view, noting:

You can have a discussion so she knows the sort of activity that they are going to undertake on the occasion that they do her, or carry out her orders, on the Crown case, and yet not be aware of precisely what they are carrying, by way of weapons or how they are going to do it, on the actual night. She simply knows that something, within the range of the discussions that have taken place, which she can be taken to have authorised, if the jury were to accept that evidence, is about to take place, so it is not determinative that she may not know that they have got a hammer that night, or a knife that night, or what she may know. If she knows that there have been discussions of stabbings, as part of the build up to the event, then she may well be taken by the jury to have had in contemplation that a stabbing may be one way in which her orders may be carried out, if that is what they think.”

152 Following the jury question in relation to the manslaughter alternative, his Honour provided some reformulated written directions in relation to that offence, as well as in relation to the two ways in which murder had been put.

153 In relation to element 5 of joint enterprise murder, the reformulation was in the following terms:

“that the use of a knife by Mr Irani to stab Mr Peich to cause really serious bodily injury, but not necessarily the death of Mr Peich, was within the scope of that which Ms Suteski procured, counselled or assisted, that is, not materially different.”

154 The explanation given as follows:

Now, if you find that Ms Suteski knew a knife would or might be used to stab Richard Peich to cause grievous bodily harm, that is really serious bodily injury, and that she took steps to bring about such an assault by procuring Mr Irani, then it would be open to you to find that what Mr Irani did was within the scope of what she had procured, even though she may not have foreseen the duration of the attack, the number of wounds or the fact that Mr Peich would die from the injuries.”

155 The direction concerning extended joint enterprise was reformulated so as to make it clear that the contemplation of the appellant as to the possibility of what Irani might do, related to his conduct in the course of carrying out the assault.

156 Counsel for the appellant then returned to the matter which he had previously raised, namely the direction that criminal liability would be established “if the accused knew that the knife would or might be used”. It was submitted that the words “might be used” left the matter at too low a level, so far as common purpose murder was concerned.

157 However, as his Honour then made clear, as did the directions, that this had been said in the context of joint enterprise murder, and only in relation to the choice of weapon. The effect of the directions did not dilute the requirement, which was made perfectly clear, that for this alternative the joint enterprise had to embrace an assault that was intended to cause really serious bodily harm.

158 Indeed, as I have previously indicated, the directions given were somewhat favourable to the defence, in so far as his Honour had said that the Crown had to prove that the appellant knew that “one of the possible ways in which (her instructions) might be carried out included the use of a knife”. It was not, in my view, necessary for the Crown to show more than that the joint enterprise encompassed an assault that was intended to cause really serious bodily harm, however caused. There was no need for the type of weapon to be selected, or even to be contemplated as one that might be used.

159 No prejudice was occasioned to the appellant by reason of this reformulation and further direction. Otherwise, the directions were sufficient. This ground has not been made good.

Ground 3

On the evidence admissible against the appellant the verdict of guilty of murder is unreasonable.

160 This ground falls to be considered in accordance with the principles outlined in Jones v The Queen (1997) 71 ALJR 538 and M v The Queen (1994) 181 CLR 487.

161 Having regard to my conclusions in relation to the admissibility of the Sakisi ERISP, this ground needs to be considered in the light of the additional corroboration or support which it provides.

162 The appellant submitted that, in view of the contradiction between Irani and Ms Salem, it was “reasonably open” that the appellant’s instruction or authority, of which Irani gave evidence, namely that he was free to “bash him [Mr Peich] Stab him. Kill him. I don’t give a fuck what you do to him, as long as he doesn’t show up for work”, did not occur.

163 True it was that Irani said that this conversation occurred at the home unit occupied by Ms Salem and Sakisi, about three weeks prior to the murder, and that Ms Salem said that neither the appellant nor Irani had been to those premises before the night of the murder.

164 Additionally, it is the case that Irani agreed that he had heard expressions such as “give him a little touch up” and “rough him up” used to describe the manner in which Mr Peich was to be assaulted; that Ms Salem agreed that she had said that the period for which Mr Peich was intended to be away from work was as short as a “couple of days”; that Irani had himself placed the period of intended absence as short as one week; and that Irani had intended initially to assault Mr Peich in the Leagues Club car park without the assistance of a knife, although he also said that he did have such a weapon as a back up, and that he had taken a hammer with him to the club, with which he had intended fracturing the victim’s skull.

165 It was submitted that this evidence necessarily left open a reasonable doubt as to whether the harm, which it was agreed should be inflicted, or which was in contemplation as a possibility, was as severe as that which would qualify as grievous bodily harm. Further, it was submitted that the limited value of Sakisi’s ERISP, if properly admitted, could not remove that doubt.

166 It may be accepted, as the case against the appellant had been pursued as one in which she stood as an accessory before the fact, rather than as a principal in the second degree, the scope of the joint enterprise and/or what was in contemplation as a possibility, had each to be fixed at the time when the appellant and Irani parted company, on the night of 20 December, that is, before the time of the actual attack.

167 Had there not been evidence indicating that the scope of the joint enterprise embraced the infliction of grievous bodily harm, or that such a result was contemplated as a possibility, then there clearly could have been no conviction for murder. The case would have been one where Irani had embarked upon a venture of his own so far as that element of the offence was concerned, and accessorial liability could not have attached to the appellant by reason of the well settled principles considered in R v Anderson and Morris [1966] 2 QB 110, Markby v The Queen (1978) 140 CLR 108, R v Wooley (1989) 42 A Crim R 418, Johns v The Queen, Duong v The Queen, or McAuliffe v The Queen (cited above).

168 It appears to me that the defence submission placed too much reliance upon the use of a knife being within the scope of the joint enterprise, or being contemplated as a possibility. As I have observed earlier, it was not necessary for the Crown to prove that the exact act which was done was within the scope of the enterprise or contemplated as a possibility, as distinct from the fact that the victim was to sustain really serious bodily harm of some kind.

169 Whether or not the Crown had established joint enterprise murder or common purpose murder by either of those routes, was entirely a matter for the jury, who had the advantage of seeing and hearing Irani and Ms Salem while they were examined and subjected to intensive cross-examination. The evidence which each gave, as earlier summarised, was capable of supporting the Crown case on the critical issue as to what it was that the appellant had requested, or had in contemplation as a real possibility.

170 In favour of the Crown case was the underlying circumstance that the appellant had required Mr Peich to be injured to the point where he would be off work for sufficient time for her to complete her financial depredations of their employer. More than a day or two was required for this purpose, and if, as the witnesses recounted, she wanted him away for two weeks or so, clearly more than a broken finger or bruising to his person was intended. In that regard it can be seen that the individual acts of fraud extended over a period of approximately 1 month, following the death of Mr Peich.

171 In addition, there was the circumstance that after the attack, and at a time when the appellant knew that Mr Peich was dead, she had paid over the money for what had been done, a fact capable of supporting the inference that she had accepted that her instructions had been carried out.

172 I am not persuaded that this ground has been made good.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

173 The appellant did not seek to disturb the sentences in relation to the fraud counts or the 2 year accumulation of the sentence for the murder charge. She does, however, submit that the sentence for that offence was manifestly excessive.

174 In this regard, his Honour found that that offence was one in which the appellant had intended the infliction of grievous bodily harm upon the deceased, and that the moral culpability attaching was accordingly significant.

175 His Honour expressly took into account the question of parity, concluding that her criminality was at least equivalent to that of Irani, in that ‘there was a cold premeditation and persistence in her actions” and “she was to be the beneficiary of Mr Peich’s disablement”.

176 It is now submitted that his Honour erred in finding, as a fact, to the standard required in Olbrich v The Queen (1999) 199 CLR 270 at 281, that the appellant had intended an attack inflicting grievous bodily harm.

177 In the event that this first submission did not find favour, then it was submitted that there was not a parity of criminality with that of Irani, in that she had not contemplated or intended the degree of harm which he had inflicted. In this regard, it was also contended that the finding by Barr J, when sentencing Irani, that in inflicting six stab wounds, he had not intended to kill, but only to inflict grievous bodily harm, was extremely generous. It may or may not have been generous but that is an irrelevant consideration for present purposes.

178 In support of the proposition that the appellant had not contemplated the use of a knife by Irani, attention was drawn to Irani’s evidence to the effect that he had never mentioned the use of such a weapon to her, and that she had not given him a weapon. There was no other suggestion in the evidence that she had in fact seen a knife, or had known that Irani had any form of weapon in his car. Attention was also drawn to her observations to police, and to her boyfriend, after the event, as well as to Irani’s concessions, in cross-examination, that he had not planned to use the knife while he was at the Leagues Club; that the incident was one which had got completely out of hand; and that when he had got out of his car at Hampden Court Road he had only taken the knife as a backup.

179 While it is true that, in the conversations between Sakisi and Irani, there was no suggestion of the use of a weapon, there was, according to Irani, mention to him of Mr Peich being “bashed”, “receiving a broken leg, or broken arm” and of being away from work for “about one, two or three weeks”. Moreover, Irani gave evidence that the appellant had replied, in answer to his specific question, as to how she wanted him injured: “Bash him. Stab him. Kill him. I don’t give a fuck what you do to him, as long as he doesn’t show up for work”; and had, additionally, said that it was up to him to decide which weapon to use.

180 A response in these terms, along with an expectation that Mr Peich was to be sufficiently injured to be off work for one or two weeks, or should suffer a broken arm or leg, was completely consistent with an intention on the appellant’s part, that the victim was to sustain grievous bodily harm.

181 As such, her complicity in the offence, even though she may not have contemplated death to occur, involved significant moral culpability. Compounding that culpability, in my view, are the circumstances first that she actively participated in the plan by personally attending the Leagues Club, in order to identify the victim to Irani; and secondly that her purpose in having him harmed was to facilitate her commission of activities which were seriously criminal, for her own financial advantage.

182 This was not a case where she had any legitimate cause for complaint in relation to anything which Mr Peich had done to her, nor was there anything even faintly resembling provocation on his part, which may have, to a degree, mitigated her criminality. Her motive was that of pure greed for personal gain, and she has demonstrated not a shred of remorse for what has occurred.

183 Her commissioning of another to put Mr Peich out of the way, can only be described as having been ruthless and cold blooded. It was such as to require a sentence that was significantly punitive, and that carried with it a clear and strong message of both personal and general deterrence.

184 The need for a difference in the sentencing outcome between Irani and the appellant is attributable to his plea, and to the assistance which he gave to the Crown. The case is not one where any justifiable sense of grievance could be claimed on that account.

185 The question which remains is whether some sentence other than that imposed should have been imposed or was warranted in law: s 6(2) Criminal Appeal Act 1912 (NSW).

186 I am not persuaded that this is the case, in view of the very considerable criminality involved and the absence of any subjective circumstances that would operate in mitigation of sentence. I would grant leave to appeal but I would dismiss the appeal against sentence.

Crown appeal against leniency

187 The Crown filed a notice of appeal, on 9 October 2002, against the sentences imposed in respect of counts 2 to 10 in the indictment. This appeal was lodged very late, and the respondent to it submits that it should be dismissed without any further consideration upon the merits, by reason of the delay in its presentation.

188 The Crown has however made it clear that this appeal is brought only against the contingency of the conviction for murder being quashed, or of the sentence for that offence being reduced. As I understand its position, it does not otherwise argue for an overall increase in the sentence imposed by his Honour, but brings this appeal only so as to ensure that the totality of the criminality, as assessed by this Court, if it is minded to intervene in favour of Ms Suteski in her appeal, is then properly reflected in the overall sentencing order.

189 Upon that basis, it is difficult to see, contrary to her submission, how she could be prejudiced by the Court entertaining the appeal. In particular it could not be said by her that she has been misled into assuming that it was safe for her to appeal against her conviction, or to seek leave to appeal against the sentence, because she understood that the Crown had accepted that the sentence below was appropriate.

190 Upon the assumption that the Crown does not wish to pursue its appeal in the face of the outcome which I propose in relation to Ms Suteski’s appeals against conviction and sentence, I would dismiss its appeal.

191 I would accordingly propose the following orders:

192 SULLY J: I agree with the Chief Judge as to the conviction appeal. I do not wish to add anything of my own.

193 As to the sentence application also, I agree with the Chief Judge. The enterprise instigated by the appellant was from first to last barbarous in its amorality. It was rightly denounced by the imposition of a sentence of condign severity.

194 HOWIE J: I agree with the orders proposed by the Chief Judge for the reasons given by him.

**********

CITATION:	R v Suteski [2002] NSWCCA 509
FILE NUMBER(S):	CCA 60458/02; 60251/02
HEARING DATE(S):	19/9/02
JUDGMENT DATE:	20 December 2002
PARTIES :	Regina Sneza Suteski
JUDGMENT OF:	Wood CJ at CL at 1; Sully J at 192; Howie J at 194

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70053/01
LOWER COURT JUDICIAL OFFICER :	Kirby J

COUNSEL :	G I O Rowling (Crown) S Odgers SC P Byrne SC
SOLICITORS:	S E O'Connor D J Humphreys
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction and sentence for murder - plea of not guilty - Crown appeal against leniency of sentence - Form 1 offences - obtain benefit by deception- exception to hearsay - ERISP evidence - admissibility of out of court statement where maker unavailable - statement against interest.
LEGISLATION CITED:	Crimes Act (NSW) 1900 s409 Criminal Appeal Act (NSW) 1912 s6 Criminal Procedure Act (NSW) 1986 s46 Evidence Act (NSW) 1995 ss 59 62, 65, 67, 135, 137, 165, 192
CASES CITED:	Bakerland Pty Limited v Coleridge [2002] NSWCCA 30 Gilbert Adam v The Queen (2001) 75 ALJR 1534 Johns v The Queen (1979) 145 CLR 108 Jones v The Queen (1997) 71 ALJR 538 Papakosmas v The Queen (1999) 196 CLR 297 M v The Queen (1994) 181 CLR 487 Markby v The Queen (1978) 140 CLR 108 McAuliffe v The Queen (1995) 183 CLR 108 R v Ambrosoli [2002] NSWCCA 386 R v Anderson and Morris [1966] 2 QB 110 R v Blick [2000] NSWCCA 61 Regina v Clark [2001] NSWCCA 494 R v Duong (1992) 61 A Crim R R v GK (2001) 53 NSWLR 317 at 324 R v Lisoff [1999] NSWCCA 364 Olbrich v The Queen (1999) 199 CLR 270 Ordukaya v Hicks [2000] NSWCA 180 R v Serratore (1999) 48 NSWLR 101 R v Lockyer (1996) 89 A Crim R 457 R v Wooley (1989) 42 A Crim R 418
DECISION:	1. Appeal against conviction dismissed: 2. Leave to appeal against sentence granted; 3. Appeal against sentence dismissed; 4. Crown appeal against sentence dismissed.