R v Toai Siulai

[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…