R v Toai Siulai

Case [2004] NSWCCA 152


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Toai Siulai [2004]  NSWCCA 152

FILE NUMBER(S):
60385/03

HEARING DATE(S):               29/03/04

JUDGMENT DATE: 14/05/2004

PARTIES:
Regina
Toai Tess Siulai

JUDGMENT OF:       Sperling J Kirby J Bell J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          01/31/0400

LOWER COURT JUDICIAL OFFICER:     Latham DCJ

COUNSEL:
P G Ingram/M Seymour (Crown/Resp)
S Kluss (Appl)

SOLICITORS:
S Kavanagh (Crown/Resp)
R Hill (Appl)

CATCHWORDS:
Criminal Practice & Procedure
admissibility of Alibi Notice
lies
whether consciousness of guilt or credibility
whether notice should have been excluded
directions on lies
Rule 4
forensic advantage.

LEGISLATION CITED:
Evidence Act 1995
Crimes Act 1990
Criminal Appeal Act 1912
Criminal Procedure Act 1986

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60385/03

SPERLING J
KIRBY J
BELL J

Friday 14 May 2004

REGINA v Toai Tess SIULAI

Judgment

  1. SPERLING J:  The course of the trial is set out in Kirby J’s judgment.

  2. Counsel objected to the tender of the alibi notice.  In her judgment given on 14 August, her Honour decided that the notice should be admitted as evidence going to the credit of the accused, but not as evidence of consciousness of guilt.  That, however, was on the understanding that the accused would both be giving evidence.

  3. Immediately following the judgment, counsel said he could give no assurance that the accused would be called.  Her Honour’s response was that, if the accused were not called, the jury would be instructed that the notice could be used as evidence of consciousness of guilt. 

  4. When the time came for tender of the notice, counsel said that at least one of the accused would be called.  That left open the possibility that one would not.  It was in these circumstances that her Honour then admitted the notice into evidence but deferred the question of what directions the jury would be given concerning its use. 

  5. In the event, Solomon Siulai, the appellant’s co-accused, gave evidence.  The appellant did not.

  6. No further submissions in relation to the alibi notice were made or invited before the summing-up. 

  7. It is apparent from the summing-up that her Honour had, by then, decided not to direct the jury that the alibi notice could be used as evidence of consciousness of guilt on the part of either of the accused, notwithstanding that the appellant had not been called.  It is also apparent from the summing-up that her Honour believed that, having so decided, a direction of the kind referred to in Zoneff(2000) 200 CLR 234 would be appropriate.

    Ground 1:  The alibi notice should have been excluded

  8. The relevant question is, of course, whether the notice should not have been admitted in the Crown case against the appellant.

  9. I agree with Kirby J’s view that the notice was admissible as evidence of consciousness of guilt and ought to have been so admitted, with the usual Edwards directions.  However, that does not justify the admission of the notice into evidence because it was a use…

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AGLC
R v Toai Siulai [2004] NSWCCA 152
Case
[2004] NSWCCA 152
Decision Date

CaseChat Overview and Summary

In the case of R v Toai Siulai, the appellant and his brother faced charges of burglary and assault with intent to rob. The appellant, Toai Siulai, appealed the decision of the lower court, challenging the admissibility of an alibi notice and the directions given to the jury regarding its use. The appeal was heard by the court, which needed to determine whether the alibi notice should have been excluded and whether the directions given to the jury were appropriate. The court also needed to consider whether these issues constituted a miscarriage of justice.

The court first examined whether the alibi notice should have been excluded from evidence, considering the circumstances of the case. It was established that the alibi notice had been admitted against each accused during the trial. The appellant argued that the notice should have been excluded, but the court found that the Crown's argument for its admissibility was valid, and therefore, the alibi notice was properly admitted. Consequently, the first ground of appeal was dismissed.

Next, the court reviewed the directions given by the trial judge to the jury concerning the alibi notice and the accused's denials of guilt. The court found that the directions did not fully align with the model direction proposed by the High Court in Zoneff. However, the court also agreed with Kirby J's opinion that leave to argue this ground of appeal should be refused under rule 4, as no redirection had been sought, and there was no reasonable prospect that the result might have been different but for the error. Therefore, the second ground of appeal was also dismissed.

In conclusion, the court dismissed both grounds of appeal and upheld the original decision of the lower court. The appellant's appeal was dismissed, and the verdicts of guilty on both counts were maintained. The court found no miscarriage of justice in the lower court's decision, and the proviso under s6(1) Criminal Appeal Act 1912 was applied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For these reasons, Ground 1 fails.Ground 2: Her Honour erred in the directions given concerning the use to which the jury should put the evidence of the alibi notice and of denials of guilt by the accused It was common ground on the hearing of the appeal that, because her Honour did not intend to leave the alibi notice to the jury for consideration as evidence of consciousness of guilt, the appropriate direction was that proposed by the High Court in Zoneff. I agree, for the reasons given by Kirby J, that the directions given by her Honour did not conform in all respects with the model direction proposed in that case and that the departure constituted error. However, I agree with Kirby J's opinion that leave to argue this ground of appeal should also be refused under r4, no redirection having been sought and there being no reasonable prospect that the result might have been different but for the error. Ground 2 fails.Result For the foregoing reasons, I agree that the appeal should be dismissed. KIRBY J: On 12 August 2002, Toai Siulai (the appellant) and his brother, Solomon Siulai, stood trial before Latham DCJ and a jury upon the following charges:"Count 1: On 4 August 2001 at Mayfield ... he did break and enter the dwelling house ... and whilst therein did commit a serious indictable offence, namely steal ... in circumstances of aggravation in that at the time of the offence Solomon Siulai and Toai Tess Siulai were in the company of another person whose identity is unknown. (s112(2) Crimes Act 1900)Count 2: On 4 August 2001 at Mayfield ... being in the company of another person whose identity is unknown he did assault Jim Lea Stephens with intent to rob him. (s97 Crimes Act 1990)" Both the appellant and his brother pleaded not guilty to each charge. On 20 August 2002 the jury returned verdicts of guilty against both accused on both counts. In the course of evidence an Alibi Notice was admitted against each accused (Exhibit J). The Grounds of Appeal by the appellant relate to that notice. They are:1.The alibi notice, exhibit J, should in all the circumstances of the case (have) been excluded.2.Her Honour erred in directions and the use to which the jury should put evidence as to the alibi notice and denials of guilt by the accused. The Crown asserted that, even were the Court to find error, there had been no miscarriage of justice. The proviso under s6(1) Criminal Appeal Act 1912 should be applied.The Crown Case. Mr Jim Stephens and his daughters occupied part of a house in Mayfield. The house had been divided into units. At the rear of the premises there was a separate building, which had been converted into a further unit, which was occupied by Mr Earl Young. On the evening of 4 August 2002, Mr Stephens was watching television. At about 11.40 pm he heard a knock at the door. He asked who was there and heard a muffled reply. He then opened the door and was confronted by three men. They forced their way into the house. Mr Stephens said that he recognised one of the men. He described him as "an islander", and knew him as Toai. Mr Stephens said this: (T40)"Q. How many times had you seen him before?A. A few occasions. My daughter was friends with a little girl down the road and I think they were related somehow because he was usually there."

Decision

Reasons for decision

SPERLING J EXHIBIT J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by: SPERLING J,

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