Sio v R

[2015] NSWCCA 42

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

1. ​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 two years and six months. He seeks leave to raise two grounds of appeal against his conviction, namely:

1. The trial judge erred in admitting into evidence the electronically recorded interview with Richard Filihia conducted on 24 October 2012 and the statement of Richard Filihia dated 25 October 2012.

2. The verdict was unreasonable and cannot be supported by the evidence. 

2. I have concluded that leave should be granted, but the appeal dismissed.

Overview of facts

3. The essential facts were as follows. Mr Brian Gaudry died as a result of a stab wound inflicted by Mr Richard Filihia, a co-offender who pleaded guilty to murder and armed robbery.  Mr Gaudry worked and was killed at a brothel in Clyde in western Sydney, to which Mr Filihia was driven by Mr Sio in a red Holden Commodore.  A friend of Mr Sio, Ms Sarah Coffison, also known as “Sam”, was in the vehicle at the time.  Mr Filihia entered the brothel alone, armed with a knife (more is said below about the evidence linking the knife to Mr Sio).  An altercation between him and Mr Gaudry led to Mr Gaudry being stabbed and his subsequent death.  Mr Filihia then removed a pencil case from Mr Gaudry’s back pocket which contained cash.  He left the brothel and ran past Mr Sio’s car.  Mr Sio started his car, caught up with Mr Filihia, picked him up and accelerated sharply away from the scene.

4. Parts of the foregoing (Mr Sio’s vehicle being driven on a motorway to the brothel, and Mr Filihia approaching the brothel and in its reception) were captured on CCTV footage.  Images were rapidly distributed to police stations throughout Sydney.  Mr Filihia reported to the police station at Hurstville in the early evening of the same day (by reason of a condition on the grant of bail for an unrelated offence).  He had shaved his head, presumably in an effort to avoid detection.  However, police recognised him, he was arrested, and participated in an electronically recorded interview lasting about 90 minutes.  That recording became exhibit E and the transcript exhibit F.

5. During the interview Mr Filihia consistently maintained that there was only himself and another man in the car.  For the most part, he said that the man was called “Jacob”.  However, at one stage he described the man as “Dan”:

A352: And I just, I told her that I was just looking for Dan.

Q353: Looking for who?

A: Jacob.

Q354: Did you just say looking for Dan?

A: No, no …. Man, sorry about that ….

Q355: ‘Cause I mean obviously I’m hoping you’re being honest with us ---

A: Yeah, yeah, no.

6. At the end of the interview, Mr Filihia agreed to participate in an identification parade.  That procedure was also electronically recorded.  That recording, in which Mr Filihia identified Mr Sio as the man, Dan or Danny, who was the driver of the car, became exhibit J and the transcript exhibit K.

7. Mr Filihia prepared a supplementary statement on 25 October 2012 which became exhibit H, in which he said:

On Wednesday 24 October 2012, I was arrested at the Hurstville Police Station in relation to the murder of Brian Gaudry.  I was interviewed electronically by Detective Sergeants Scott and Rudens in relation to the murder where I admitted that I had gone to the brothel to rob it and when I did this, I stabbed the manager.  I mentioned in the interview that I was driven there by a man I knew as “Jacob” in his red Holden Commodore.

I would like to correct what I said in this interview and say that Jacob’s real name was Danny or Dan. …

I know Danny works as a security guard in the city for a family business and that he owns and drives a red Holden Commodore that is a new model.  There is nothing that I can remember that stands out about this car.

As I said in the electronic interview, it was Danny who put me up to robbing the brothel.  He gave me the knife and drove me there.  He explained to me the layout and told me the money etc.  The plan was for me to rob the brothel and for us to split the money fifty fifty.  Danny told me the money was in a pencil case in the manager’s back pocket.

I was not completely honest during my interview about Danny by saying his name was Jacob because I didn’t want to come over as a rat.  I also know Danny’s mobile number is 0426 [XXX] 278.

8. Mr Filihia had pleaded guilty, but had not been sentenced, by the time of Mr Sio’s trial.  He was a witness in the Crown case.  However, he refused to take an oath or affirmation or to answer any questions at all relating to the matter, even after receiving advice from pro bono counsel as to the consequences of his silence, and being cautioned that he risked punishment for contempt of court.

The primary judge’s ruling on the two recordings and statements

9. The Crown then sought a ruling on a voir dire that the electronically recorded interviews of 24 and 25 October and Mr Filihia’s two statements be admitted on the basis that their maker was not available.  Her Honour heard argument on 9 September 2013 and delivered a ruling on the following day: R v Sio [2013] NSWSC 1412. Her Honour’s reasons were fairly described by Mr Sio as “comprehensive”. It was common ground that Mr Filihia was not “available” within the meaning of s 65(1) of the Evidence Act 1995 (NSW), and no point was taken about the failure to comply with the notice requirements of s 67. The Crown relied on the exclusions to the hearsay rule in paragraphs (b) and (d) of s 65(2) in the alternative.

10. The defence submitted that the representations (a) were not against interest, (b) were made when Mr Filihia was affected by drugs, (c) were not likely to be reliable and were likely to be fabrications, and (d) should be excluded under ss 135 and 137 even if admissible under s 65(2)(b) or (d). Her Honour did not need to determine the Crown’s application insofar as it relied on s 65(2)(b) (her Honour considered it arguable: at [51]), but admitted Mr Filihia’s statements and electronically recorded interviews under s 65(2)(d). Her Honour’s reasons for doing so are reproduced later in these reasons. Her Honour rejected the defence submissions under ss 135 and 137, on the basis that any unfair prejudice could be addressed by appropriate directions. In due course, her Honour gave directions warning of the potential unreliability of the untested evidence.

11. The challenge on appeal was limited, in at least six respects. First, no challenge was made to her Honour’s findings under s 65(2)(d)(i), that the statements and interviews were “against the interests” of Mr Filihia or that Mr Filihia was “not available”. This accorded with what had been held in R v Suteski [2002] NSWCCA 509; 56 NSWLR 182. Secondly, no challenge was made on appeal (as had been made below) that Mr Filihia was under the influence of drugs when participating in the interview. Thirdly, no challenge was made to the admission into evidence of the second electronically recorded interview (that involving the identification of Mr Sio). Fourthly, no challenge was made to her Honour’s rejection of the defence submissions under ss 135 and 137. Fifthly, there was no challenge to her Honour’s directions to the jury. Sixthly, the Crown did not seek to re-agitate its submissions under s 65(2)(b).

12. Attention on appeal was accordingly focussed on s 65(2)(d)(ii). Mr Sio submitted that the finding that the representations were made in circumstances that make it likely the representations were reliable should be set aside. Her Honour addressed this at [55]-[61] of her reasons, which should be reproduced in their entirety:

55   The representations were made on the same day of the incident at a time when Mr Filihia was not necessarily expecting to be apprehended

and interviewed, although he must have appreciated that there was a substantial risk of apprehension.  His answers were, in the main, forthcoming.  I did not detect any indication that he had rehearsed, or thought out, how best to present the facts in order to advance his interests by minimising his involvement.  His recollection can be taken to be fresh by reason of the short time between the events and the interview.

56   His response at the end of the interview to the request that he take part in an identification parade provides a further indication that he had decided to be as forthcoming as possible in order to assist him on sentence.  He was asked whether he wanted to take part at Q 672, following which the exchange occurred:

A672 Should I or shouldn't I?

Q673 It's up to you, you're not obliged to.

A Would it help me out in court or would it be - - -

DETECTIVE SERGEANT SCOTT

Q674 That's not up to [us to] say, mate.

A Yeah.

[Emphasis added.]

57   His preparedness to answer questions thoughtfully and apparently without regard to self-incrimination is evident from the ERISP.  He was quietly spoken and courteous throughout and appeared to answer willingly.  Although he gave a false name, Jacob, for Mr Sio, his dissembling was neither clever nor, apparently, pre-meditated, since he gave Mr Sio's mobile phone number, which he had memorised.  He described the colour and make of the car Mr Sio was driving.

58   He answered Q648:

"Do you mind if we wrap this up soon boys?"

59   This answer was given after Mr Filihia had been shown the stills from the CCTV which the Crown tendered on this application.  He appeared to be substantially affected by what he saw and by the knowledge that the man he had stabbed was dead.  He was asked by police whether he wanted a break at Q651, to which he answered:

"No, no, no, no just, I just feel, I just feel sad, I just feel yeah."

60   By the time Mr Filihia had expressed a wish to have the interview over, he had been questioned for about one and a half hours, during which he had answered about 700 questions relating to what had occurred that morning.  In these circumstances his desire to have the interview over does not, in my view, reflect any unwillingness to be forthcoming.

61 I am satisfied, by reason of the matters referred to above that the circumstances make it likely that the representations are reliable within the meaning of s 65(2)(d) of the Act.

Ground 1 – the 24 and 25 October recordings and statements – s 65(2)(d)

13. Mr Sio submitted that “it was not open to her Honour to come to the view that the challenged evidence was made in circumstances that make it likely that it is reliable”.  In support of this, Mr Sio pointed to the considerations that (a) Mr Filihia wished to keep police from discovering the presence of Ms Coffison, (b) he wished to have revenge upon Mr Sio, (c) he had had much of the day in order to plan a deception upon the police, and (d) he wished to seek assistance from the police.  Mr Sio further submitted that even if Mr Filihia’s remarks in respect of his own involvement in the robbery were reliable, “it did not logically follow that what he said about the involvement of others was reliable”.

14. The written and oral submissions on appeal were brief (that is no criticism of them).  However, a proper consideration of those submissions requires attention to be given to the text and purpose of s 65, its legislative history, and the body of law that has developed around it.

(a) Section 65: overview

15. Section 65 prima facie permits hearsay evidence to be adduced in a criminal trial which cannot be tested by cross-examination because the maker is not “available”.  Thus the section necessarily “cuts across long standing rules of engagement in criminal trials”, as Hidden J observed in R v SSA [2007] NSWSC 111 at [22]. However, three protections remain. The first is in the terms of the section itself. The second is that s 65 only makes hearsay evidence prima facie admissible; it remains subject to the general exclusionary provisions such as ss 135 and 137 in Part 3.11. The third is the right to a direction to the jury, if requested, under s 165(2).

16. Section 65(2) contains four gateways, in paragraphs (a)-(d), at least one of which must be satisfied in order for the hearsay rule not to apply. Although this appeal directly concerns only the fourth gateway in paragraph (d), assistance may be gained from having regard to all four paragraphs, for at least two reasons. The first is that there are textual links between the four paragraphs which bear upon the matters central to this ground of appeal: the meaning of “made in circumstances” in (b), (c) and (now) (d), and the graduated assessment of probability (“make it unlikely”, “make it highly probable” and “make it likely”). The second is that a consideration of all four paragraphs reveals insights into the structure of the section as a whole, and therefore the proper construction of paragraph (d).

(b) The amendment of s 65 in 2009

17. Some of the decisions on s 65 are on the same statutory language, but in the form it took prior to amendment by the Evidence Amendment Act 2007 (NSW), Schedule 1, item [27], with effect from 1 January 2009. The purpose of that amendment was, expressly, to raise the threshold for prima facie admissibility under paragraph (d).

18. As originally enacted, s 65(2) took the following form:

(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:

(a)   made under a duty to make that representation or to make representations of that kind, or

(b)   made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a

        fabrication, or

(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.

19. The presently relevant paragraph (d) was amended, so as to narrow it, following this Court’s decision in R v Suteski [2002] NSWCCA 509; 56 NSWLR 182, as may be seen most clearly from ALRC Report 102, chapter 8, paras 8.38-8.58. Suteski raised essentially the same issue as that arising in this appeal: should s 65(2) render statements made by a person who is complicit in an offence which are against his or her own interests prima facie admissible against the accused, even if he or she is unavailable?

20. Suteski was a case where the Crown alleged murder as a participant in a joint criminal enterprise, and applied to tender an electronically recorded interview by Mr Sakisi. The interview was made before Mr Sakisi was convicted, but by the time of Mr Suteski’s trial, Mr Sakisi was serving the sentence imposed on him for his part in the same attack which led to Mr Suteski being charged. Like Mr Filihia, Mr Sakisi refused to give evidence, despite being warned that he risked punishment for contempt. This Court said that 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” (at [87]) and rejected a submission that the protections from subsections (3), (4) and (5) should be read into subsection (2) (at [91]). The Court also rejected a submission that the recording should be dissected such that each question and answer should be considered separately and measured against s 65(2)(d): at [93].

21. An application for special leave to appeal was refused.  The Australian Law Reform Commission together with the New South Wales Law Reform Commission summarised this as follows at paragraph 8.47 of ALRC Report 102 (footnotes omitted):

In the hearing of an application for special leave to appeal to the High Court, counsel for the appellant in Suteski argued that s 65(2)(d) should be read as requiring some assurance of reliability. The application was unsuccessful, with Gleeson CJ stating, ‘[i]f the ultimate safety net is [Part 3.11], then you do not need to torture the language of section 65’ to read in some assurance of reliability.

22. That background led the Commissions to consult and to propose an amendment to replace paragraph (d) by a more stringent requirement.  The report states (footnotes omitted):

8.40    The NSW Court of Criminal Appeal held that the trial judge had not erred in admitting into evidence representations made in the police interview as evidence of the truth of the facts asserted in those representations.  The Court noted that counsel for the appellant, at trial and on appeal, had acknowledged that the Crown had taken all reasonable steps to compel the witness to give evidence and that the trial judge had regarded that acknowledgement as a recognition that the sanction of contempt was unlikely to make the witness change his mind.

8.41    The decision in Suteski has provoked concern about allowing the admission of previous representations from a person complicit in an offence to be used against a defendant who does not have the opportunity to cross-examine that person.

…

8.48 While the admission and use of evidence from an accomplice or co-accused can be controlled by ss 135–137, amendment of s 65(2)(d) has the advantage of excluding evidence that carries such a risk of being unreliable. A rule making it inadmissible unless it meets some criteria of trustworthiness is warranted. Evidence of that quality should not be prima facie admissible.

8.49 A submission is made that, by introducing a second limb to s 65(2)(d), the proposed amendment introduces unwanted complexity. The same submission says that the proposal obscures the relationship between s 65(2)(d) and (c). Paragraph (c) applies where the representation was ‘made in circumstances that make it highly probable that the representation is reliable’. No harm appears to result from any overlap between the various paragraphs. Further, there might not be overlap. Paragraph (c) requires it to be ‘highly probable’ that the representation is reliable, while the new component of paragraph (d) would only require it to be made in circumstances that make it likely the representation is reliable. As to introducing further complexity to s 65(2), the Commissions take the view that the amendment is relatively simple and clear. A safeguard of the proposed kind is necessary to avoid the outcomes described above.

8.50 While the recommendation is directed specifically to address problems concerning the evidence of an accomplice or co-accused, it involves an amendment to a provision of broader application: obviously, statements against interest can arise in other situations. However, amendment of s 65(2)(d) seems a simpler solution than drafting a new provision dealing specifically with the evidence of accomplices, which might unnecessarily introduce complexity into the Acts.

8.51 The Commissions recommend that s 65(2)(d) be amended to require the representation to be made against the interests of the person who made it at the time it was made and in circumstances that make it likely that the representation is reliable. The intention is to ensure that the hearsay rule is not lifted where a statement against interest is made in circumstances that would not suggest reliability.

23. Section 65(2)(d) was amended in accordance with the Commissions’ recommendation. It now provides:

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:

...

(d)    was:

(i)    against the interests of the person who made it at the time it was made, and

(ii)    made in circumstances that make it likely that the representation is reliable.

(c) Analysis of s 65

24. The following matters emerge from the text, structure and history of the provision.

25. First, it is plain that paragraph (d) should be construed so as to impose an additional hurdle upon the prima facie admissibility of firsthand hearsay evidence of a representation against interest whose maker is unavailable.  No longer is it sufficient to say that the unavailable maker made a representation against interest, as was held in Suteski; it is necessary as well to satisfy (d)(ii), which requires an assessment of reliability.

26. Secondly, the new test in (d)(ii), “make it likely”, is less onerous than the pre-existing wording in paragraph (c), “make it highly probable”.  The textual difference between the new (d)(ii), immediately following the existing (c), is pronounced.  On ordinary principles of construction, a difference in text usually yields a different legal meaning:  see for example Gardner v The Queen [2003] NSWCCA 199 at [43]. That, in turn, means that even if it be concluded that the circumstances are such that there is a real, non-negligible chance that the representation is unreliable, such that it is not “highly probable” that it is reliable and therefore outside paragraph (c), it may still be “likely” that it is reliable and fall within paragraph (d).

27. Thirdly, each of paragraphs (b), (c) and (d) (in its amended form) requires the Court to assess the circumstances in which the representation was made, with a view to assessing whether the representation is reliable.  Those paragraphs are not directed to any particular asserted fact, but instead to the reliability of the representation considered as a whole:  R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 at [28] and [34]-[35]; see also R v Robertson [2015] QCA 11 at [58]-[64], where Ambrosoli was followed in respect of the same language in s 93B of the Evidence Act 1977 (Qld). The circumstances to be assessed extend to later statements or conduct (for example, an express retraction or a statement that the matter could not have been the relevant matter). In Ambrosoli, Mason P, with the agreement of Hulme and Simpson JJ, emphasised that the words in s 65(2)(b) and (c) are directed to the circumstances of the making of the representation.  That accords with the fundamentally different roles of judge and jury in a criminal trial, to which Spigelman CJ referred in R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [65]. Given that the new paragraph (d)(ii) employs the same language as (b) and (c), the Legislature should be taken to have intended the judicially established meaning of “made in circumstances” to apply.

28. Fourthly, two circumstances which enhance reliability are contemporaneity (or near contemporaneity) and against interest. That is plain from a comparison of the lesser tests of reliability imposed by paragraphs (b) and (d) in contrast with (c). Although where (b) or (d) applies it remains necessary to assess the circumstances in which the representation is made to determine reliability, in each of those cases, a lesser level of likely reliability is required in order for the representation to be prima facie admissible. That is to say, paragraphs (b) and (d) incorporate very clear examples of circumstances which are taken by the Legislature to increase the likely reliability of a representation. But those two paragraphs do not exhaust the circumstances to which regard may be had; there is a wide range of other matters which bear upon the “circumstances” to which attention is required by s 65(2)(b), (c) and (d).

29. Fifthly, it is to be assumed that there will be cases where s 65(2) is satisfied, but even so the evidence is excluded in accordance with ss 135 and 137. This is a consequence of reading the Act as a whole, and accords with paragraph 8.48 ALRC Report 102. Further, there will be cases where the evidence is not excluded under either s 65(2) or s 135 or s 137, on the basis that the prejudice associated with untested hearsay evidence is adequately addressed by a direction to the jury under s 165 (that is the premise of s165(1)(a)).

30. Finally, how does an appellate court review a trial judge’s conclusion when giving a ruling on the admissibility of hearsay evidence that the circumstances make it “likely” that the representation is reliable?  In a (loose) sense, what is involved is the exercise of a “discretion”.  However, for the reasons explained in Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 at [37]-[40], it is not helpful so to describe the statutory task. The question is binary: either the circumstances make it likely that the representation is reliable, or they do not: Foley v Ellis [2008] NSWCA 288 at [3]; Finch v Telstra Super Pty Ltd [2010] HCA 36; 242 CLR 254 at [29]; DSG Holdings Australia Pty Ltd v Helenic Pty Ltd [2014] NSWCA 96; 86 NSWLR 293 at [84]-[85]. In short, appellate review is to be approached not in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499, but Warren v Coombes [1979] HCA 9; 142 CLR 531.  That accords with what was said by Spigelman CJ, with the agreement of Mason P, Beazley, Giles and Ipp JJA, in Port Stephens Council v Sansom [2007] NSWCA 299 at [51].

(d) Resolution of ground 1

31. Applying those principles, I would reject Mr Sio’s submissions on ground 1, for these reasons.

32. First, so far as appears from the transcript, her Honour’s description of the evidence does not disclose error.  The conclusion that Mr Filihia did not appreciate, until well into the interview, that Mr Gaudry had died was amply open to her Honour.  So too was the conclusion that Mr Filihia’s answers appeared unrehearsed and sincere and forthcoming.  The interview was made within 24 hours of the events in question.  All those matters were circumstances that pointed towards likely reliability, over and above the fact that they tended to incriminate Mr Filihia.  Mr Sio did not submit to the contrary in writing or orally.

33. Secondly, the fact that Mr Filihia was trying to conceal the presence of Ms Coffison does not, of itself, bear materially on the question posed by statute.  Nor do Mr Filihia’s repeated references to “Jacob” when referring to Mr Sio.  The question posed by statute is not whether the actual statements made are themselves accurate or likely reliable, but whether the circumstances in which they were made are such that they are likely to be reliable. In order to address the statutory question, the Court examines the circumstances in which a statement is made, not the particular statement itself. That is to say, it is no part of the analysis required by s 65(2)(d) to point to the fact that Mr Filihia’s answers were demonstrably unreliable insofar as they denied the presence of Ms Coffison or referred to “Jacob”. (That is a consideration that could inform a discretion under ss 135 or 137, and a warning to the jury.)

34. For the same reasons, and contrary to Mr Sio’s submissions, it is not relevant to draw a distinction between the reliability of some representations made by Mr Filihia (those against interest) as compared to others (those relevant to Mr Sio), a distinction which counsel candidly acknowledged had not been advanced at first instance (transcript, 5 March 2015, page 2 line 5).  The approach for which Mr Sio contended sits ill with Suteski at [93], and with the distinction between the functions of judge and jury. To the extent that these statements were made in the same circumstances, they must be considered together for the purposes of s 65(d)(ii).

35. Thirdly, it is possible that Mr Filihia was motivated by animosity to Mr Sio.  That possibility does not stand in the way of a conclusion that the circumstances made it likely that the evidence is reliable.  Moreover, her Honour was plainly alive to the possibility that the evidence might be unreliable.  As much is apparent from the warnings of potential unreliability her Honour gave to the jury immediately before the recording was played in their presence.  Her Honour said that Mr Filihia was criminally involved, had pleaded guilty to murder, “may have his own axe to grind”, and was not subject to cross-examination.  Mr Sio took no issue with the content of that direction.

36. For those reasons, there is no sound basis to impugn the finding that the evidence was made in circumstances that made it likely that the statements were reliable.  For completeness, it should be added that although a copy of the recording was made available to this Court, counsel for Mr Sio, candidly and entirely properly, made it clear that it was “probably not necessary” for this Court to review it, in order to determine this ground, although it was a matter for the Court (transcript, 5 March 2015, page 12 line 4).  It will be seen that Mr Sio’s submissions, properly, respected the deference that must be given to the evaluative assessment of the primary judge who saw and heard the recording.  They did not call into question her Honour’s conclusions as to the appearance of lack of rehearsal or absence of regard to self-incrimination.  In accordance with that submission and a communication to the parties after judgment was reserved, I have not viewed any part of the recording.

37. I would grant leave to appeal, but dismiss this ground.

Ground 2 – the verdict was unreasonable and not supported by the evidence

38. Mr Sio’s second ground of appeal was premised upon the submission that the jury was wrong to find Mr Sio guilty of armed robbery; as it was put:

There was significant evidence that the Appellant was involved in a robbery.  However the only evidence that the robbery plan involved the use of a weapon came from Filihia, and in the context of the instant case his untested account is insufficient to sustain a conviction.

In those circumstances, it was not open to the Jury to accept beyond reasonable doubt that the Appellant was a party to a joint criminal enterprise involving an armed robbery, rather than a robbery simpliciter.  (Emphasis in original.)

39. In order to find Mr Sio guilty of armed robbery by way of a joint criminal enterprise, the jury needed to be convinced beyond reasonable doubt that Mr Filihia committed the armed robbery (a fact admitted by Mr Sio at trial) as part of an “understanding or arrangement amounting to an agreement” with Mr Sio:  Osland v The Queen [1998] HCA 75; 197 CLR 316 at [73]; Huynh v The Queen [2013] HCA 6; 87 ALJR 434 at [37]. The understanding or arrangement need not be express and may be inferred from all the circumstances. For example, an understanding to commit an armed robbery could readily be inferred from Mr Sio providing Mr Filihia with the knife used in the robbery.

40. This proposed ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question on appeal is whether “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; 181 CLR 487 at [7]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]; Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at [31]-[34]. This being a question of fact, it is necessary for the Court to decide by making its own independent assessment of the whole of the evidence: M v The Queen at [63]; SKA v The Queen at [14] and [20], while having regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and which has had the benefit of having seen and heard the witnesses: M v the Queen at [7]; SKA v The Queen at [13].

41. Accordingly, I set out the salient parts of the evidence presented at trial that are relevant to the question of whether it was open to the jury to be satisfied of Mr Sio’s guilt beyond reasonable doubt.  Leaving aside Mr Filihia’s contested evidence for present purposes, the evidence of three lay witnesses in relation to Mr Sio’s involvement in a plan to use a knife in robbing the Clyde brothel may be summarised as follows.

42. First, Ms Gaudiosi, a friend of Mr Sio who previously worked at the Clyde brothel, gave the following evidence:

Q: Ms Gaudiosi, when you had a conversation with Daniel Sio about him doing a robbery at the brothel, was there ever any talk about the use of weapons?

A: Never.

Q: He didn’t talk to you about any weapons at all?

A: I told him that there would never be a use for one, like he wouldn’t need one.

Q: You told him that he wouldn’t need one?

A: Yeah.

43. Secondly, Mr Robert O’Hare, a friend of Ms Coffison’s who was staying with her at the time of the robbery, and the owner of the knife used to stab Mr Gaudry, gave evidence that it went missing around a week prior to the offence.  Mr O’Hare’s evidence was that while staying with Ms Coffison he placed the knife on the television cabinet in the loungeroom in full view of visitors, apparently because he felt uneasy about certain people dropping in to Ms Coffison’s home.  According to Mr O’Hare, sometime after he left the knife on the cabinet, the knife disappeared. His evidence was:

Q: In paragraph 16 [of your statement to police] you say this:

During the early hours of Sunday 21 October 2012 I woke up on Sam’s lounge and saw what looked like my black balaclava lying on the floor beside the lounge.  I found it strange but went back to sleep straight after and forgot about it.  I can’t recall who was at the unit the night before apart from Sam and I.

You’ve read that?

A: Yes.

Q: Is that the truth what you told the police or were you upset and it’s not right?

A: It’s the truth.

Q: Paragraph 17: “When I woke up later that morning---” How far later?

A: I don’t recall.

Q:

--- I saw that the balaclava wasn’t lying where I saw it during the night.  Because I had a few things lying on the floor I thought nothing of it and believed it would turn up at some point.  I then looked up on top of the TV unit and saw that my bowie knife and sheath was also missing.

Is that right or not?

A: Yes.

44. Mr O’Hare gave evidence that when he asked Ms Coffison about his missing knife, she said: “You took the knife with you in your backpack when you went to Caringbah last night”.  Mr O’Hare stated that he later asked Mr Sio whether he had seen the missing knife, to which Mr Sio responded: “Yeah, you put it in your bag last night and took it with you”.  Mr O’Hare gave evidence that “I knew that they were both lying … I haven’t seen any knife, its sheath, the balaclava or the DVD players [which also went missing the same night] since.”

45. Finally, Ms Coffison gave evidence that she had previously seen the knife on the television cabinet, and confirmed that Mr O’Hare had confronted her when the knife went missing.  She gave evidence that she did not see the knife at all from the time it went missing until 30 October 2012, four days after the robbery, when she found the knife in a plastic bag in her wardrobe.  Ms Coffison specifically gave evidence that she did not see the knife at any time during the journey to or from the brothel.

46. It will be clear that there were weaknesses in the Crown case insofar as it extended to Mr Sio being complicit in an armed robbery, as opposed to a robbery simpliciter.  First, while Ms Gaudiosi gave evidence that she had discussed the use of a weapon with Mr Sio, she said that she had told him that it would not be necessary to use a weapon to rob the brothel.  Secondly, putting to one side Mr Filihia’s evidence, there is no direct evidence at all on how the knife came to be used in the robbery after it disappeared from the television cabinet on or around 21 October 2012, and how it came to be in the plastic bag in Ms Coffison’s wardrobe.  Any conclusion drawn based on the evidence (leaving aside Mr Filihia’s contested evidence) is inferential. 

47. There are also the unobjected to statements made by Mr Filihia which, as was pointed out unequivocally by the Crown, were outside the scope of the limited appeal (this was no administrative error; Mr Sio’s submissions (paragraph 68) made the point express:

On the appeal, no issue is taken with the admission of the ERISP conducted on 26 October 2012 (Ex J) and no issue is taken with the admission into evidence of the identification statement of Filihia that became Exhibit L at trial.)

48. As noted above, exhibit J was the recording of an interview conducted on the afternoon of 25 October 2012 when Mr Filihia identified Mr Sio as the driver out of 16 photographs (“That’s the bloke Danny ... That’s was my driver”).  Exhibit L was a statement to the same effect.  However, neither the interview nor the statement contained evidence bearing on whether Mr Sio had supplied, or was aware of, the knife used to kill Mr Gaudry.

49. Nevertheless, a number of factors support an inference being drawn that Mr Sio was complicit in the use of the knife in the robbery, even without reference to Mr Filihia’s contested ERISP evidence and statement.  How did the knife come to be in Mr Filihia’s hand as he entered the brothel?  While there is no direct evidence that Mr Sio took Mr O’Hare’s knife from Ms Coffison’s townhouse, relevant evidence included:

1. Ms Coffison’s evidence that Mr Sio was the only visitor to her townhouse in the time that Mr O’Hare was staying.  (It may be noted that Mr O’Hare contested this statement, giving evidence that he met three people who attended Ms Coffison’s home in the time he stayed.)

2. Both Mr O’Hare and Ms Coffison gave evidence that Mr Filihia never attended Ms Coffison’s townhouse.

3. Forensic evidence taken from Ms Coffison’s townhouse gave no suggestion that the townhouse had recently been broken into, or the locks forced.

4. The knife was ultimately present at a robbery which both Mr Sio and Ms Coffison attended, telling against the possibility of a third party having taken the knife from the townhouse.

1. Further, if Ms Coffison took the knife without Mr Sio’s involvement, it is difficult to understand how the knife came to be present at the robbery, given that Ms Coffison did not go home between finishing work and attending the robbery, and had no obvious opportunity to collect the knife.

50. Despite the absence of direct evidence on the topic, the evidence referred to above is capable of supporting the inference that it was Mr Sio who took the knife from Ms Coffison’s loungeroom, or at the very least, he was complicit in taking the knife.  This is so, despite the fact that Ms Coffison’s evidence disclaiming any knowledge of the whereabouts of, or involvement in transporting, the knife could reasonably be regarded as self-serving.  This inference may be sufficient to implicate Mr Sio in Mr Filihia’s use of the knife in the robbery, even without reference to Mr Filihia’s evidence, given that if Mr Sio had the knife prior to the robbery it was open to the jury to reason that he gave it to Mr Filihia to use, or at least was complicit in Mr Filihia using it, in the hold up at the brothel.  The possibility that Mr Filihia simply found the knife in Mr Sio’s car without Mr Sio’s knowledge and decided of his own accord to use it in the robbery seems close to fanciful in the circumstances.

51. However, it is not necessary to express a view on whether it would have been open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of armed robbery without the benefit of Mr Filihia’s contested evidence, because, for the reasons given in relation to ground 1 above, the contested ERISP and statement were properly admitted into evidence and were able to be taken into account by the jury. The fact that the evidence was untested by cross-examination is not to the point; that is the consequence of the exception created by s 65, as was observed of the same submission in respect of s 93B of the Evidence Act 1977 (Qld) in R v Uittenbosch [2013] QCA 96 at [23].

52. The relevant parts of Mr Filihia’s contested evidence concerning the knife are as follows:

ERISP: 24 October 2012 (at page 18):

Q236: Ok. And I won’t go into too much detail about that here, we’ll come back to that, but where did you get the knife from?

A: Jacob [Mr Sio] already had it in his car.

Q237: Ok. And where did it go?

A: Like last that I know of it was still in the car.

…

(at page 34)

Q469: Where did that [the knife] come from?

A: So it was just like ---

Q470: Where did that come from?

A: Um, it had come from him.

Q471: He gave it to you?

A: Yeah.

…

(at page 44)

Q596: O.K. All right. And where’s this knife now?

A: I don’t know, probably it’s with him.

Q597: The last time you, where the knife when you last saw it?

A: It was in his car.

Q598: In the car, in the and you, I think you said the front passenger seat.

A: Passenger seat yeah.

…

Q603: So you’ve thrown it in the front.

A: Yeah I just put it down there and said, “Here’s your knife”.

Mr Filihia’s Statement: 25 October 2012 (at page 2):

6. As I said in the electronic interview, it was Danny who put me up to robbing the brothel. He gave me the knife and drove me there.

53. Mr Filihia’s evidence that Mr Sio gave him the knife prior to the robbery, and that Mr Filihia gave the knife back to Mr Sio, explains how the knife came to be used in the robbery, and how it ultimately came to be in the plastic bag Ms Coffison found in her wardrobe.  This evidence is corroborated by that of Ms Coffison and Mr O’Hare; it was plainly open to the jury to rely upon it to conclude that Mr Sio was aware of Mr Filihia’s use of the knife in the robbery.

54. Acknowledging that certain aspects of the evidence favour Mr Sio, I consider that it was undoubtedly open to the jury to be satisfied of Mr Sio’s guilt in participating in a joint criminal enterprise (namely armed robbery) beyond reasonable doubt.  I cannot conclude that they must, as distinct from might, have entertained a reasonable doubt about Mr Sio’s agreement or understanding with Mr Filihia to commit an armed robbery, and thus Mr Sio’s guilt in respect of the charge of armed robbery by way of joint criminal enterprise.  Accordingly, although once again there should be a grant of leave, the second ground of appeal should be dismissed.

55. I propose the following orders:

1. leave to appeal granted;

2. appeal against conviction dismissed.

56. JOHNSON J:  I agree with the orders proposed by Leeming JA for the reasons given by his Honour.

57. SCHMIDT J:  I agree with Leeming JA.

Decision last updated: 31 March 2015