Sio v R

Case [2015] NSWCCA 42 31 March 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sio v R [2015] NSWCCA 42
Hearing dates: 5 March 2015
Decision date: 31 March 2015
Before: Leeming JA at [1];
Johnson J at [56];
Schmidt J at [57]
Decision:
1. Leave to appeal granted.
2. Appeal against conviction dismissed.
Catchwords:
CRIMINAL LAW – conviction appeal – armed robbery – joint criminal enterprise – whether jury’s verdict unreasonable – whether statements by accomplice who was unavailable were properly admitted
EVIDENCE – hearsay rule – accomplice – made admissions against interest in police interview – accomplice not available – whether interview made in circumstances that made it likely the representation was reliable – Evidence Act 1995 (NSW), s 65(2)(d)(ii)
Legislation Cited: Crimes Act 1900 (NSW), s 98
Criminal Appeal Act 1912 (NSW), s 6
Evidence Act 1995 (NSW), ss 65, 67, 135, 137, 165
Evidence Act 1977(Qld), s 93B
Evidence Amendment Act 2007 (NSW), Sch 1
Cases Cited: DSG Holdings Australia Pty Ltd v Helenic Pty Ltd [2014] NSWCA 96; 86 NSWLR 293
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124
Finch v Telstra Super Pty Ltd [2010] HCA 36; 242 CLR 254
Foley v Ellis [2008] NSWCA 288
Gardner v The Queen [2003] NSWCCA 199
House v The King [1936] HCA 40; 55 CLR 499
Huynh v The Queen [2013] HCA 6; 87 ALJR 434
M v The Queen [1994] HCA 63; 181 CLR 487
Osland v The Queen [1998] HCA 75; 197 CLR 316
Port Stephens Council v Sansom [2007] NSWCA 299
R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603
R v Robertson [2015] QCA 11
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v Sio [2013] NSWSC 1412
R v SSA [2007] NSWSC 111
R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
R v Uittenbosch [2013] QCA 96
Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326
SKA v The Queen [2011] HCA 13; 243 CLR 400
Warren v Coombes [1979] HCA 9; 142 CLR 531
Texts Cited: Uniform Evidence Law (ALRC Report 102)
Category: Principal judgment
Parties: Daniel Sio (Applicant)
Regina (Respondent)
Representation:
Counsel:
M W Smith (Applicant)
G O’Rourke (Respondent)
Solicitors:
Sydney Criminal & Traffic Lawyers (Applicant)
M Fleeton – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/334972
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Citation:

[2013] NSWSC 1412

Date of Decision:

10 September 2013

Before:

Adamson J

File Number(s):

2012/334972

Judgment

LEEMING JA: A jury acquitted Mr Daniel Sio of the murder of Mr Brian Gaudry, but convicted him of one count of robbery in company causing wounding or inflicting grievous bodily harm, contrary to s 98 of the Crimes Act 1900 (NSW). The maximum penalty was 25 years of imprisonment. Adamson J sentenced him to a term of imprisonment of seven years and six months, with an additional term of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sio v R

Details

AGLC: Sio v R [2015] NSWCCA 42
Case: [2015] NSWCCA 42
Decision Date: 31 March 2015

CaseChat Overview and Summary

In the case of Sio v R, the appellant, Sio, appealed his conviction for armed robbery, which was part of a joint criminal enterprise. The appeal centred on the admissibility of statements made by an unavailable accomplice during a police interview. The High Court of Australia was tasked with determining whether the jury’s verdict was unreasonable and whether the statements made by the accomplice were properly admitted under the Evidence Act 1995 (NSW). The crux of the appeal hinged on the reliability and admissibility of the hearsay evidence provided by the unavailable accomplice.

The legal issues before the court included whether the trial judge correctly admitted the hearsay evidence under section 65(2)(d)(ii) of the Evidence Act, which pertains to admissions made by a person unavailable to testify, provided that the circumstances of the making render it likely that the representation was reliable. Additionally, the court had to consider whether the jury’s verdict was unreasonable in light of the evidence presented. The appellant argued that the statements were not reliable and should not have been admitted, thus impacting the reasonableness of the jury’s decision.

The court found that the trial judge had correctly admitted the hearsay evidence under the specified provision of the Evidence Act. The statements made by the unavailable accomplice were considered reliable given the context in which they were made, including the fact that they were admissions against interest. The court held that the jury’s verdict was not unreasonable, as it was based on substantial evidence, including the properly admitted hearsay. Consequently, the appeal was dismissed, affirming the appellant's conviction.

The final orders of the court were to dismiss the appeal, thereby upholding the conviction for armed robbery. The decision underscored the importance of evaluating the reliability of hearsay evidence in criminal trials, particularly when it concerns admissions made by an unavailable accomplice. The court's ruling highlighted the stringent criteria that must be met for such evidence to be deemed admissible and reliable under the Evidence Act.

Orders