Grant special leave to include, as a further ground of appeal in Matter No S83/2016, ground 2.2 of the Draft Notice of Appeal filed on 20 November 2015.
Matter No S83/2016
1.Appeal allowed.
2.Set aside order 2 of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 31 March 2015, and in its place order that:
(a)the appeal be allowed;
(b)the appellant's conviction on count 2 of the indictment be quashed; and
(c)a new trial be had for the offence of armed robbery.
On appeal from the Supreme Court of New South Wales
Representation
T A Game SC with J L Roy for the appellant/applicant (instructed by Sydney Criminal and Traffic Lawyers)
L A Babb SC with G M O'Rourke SC for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Sio v The Queen
Criminal law – Criminal liability – Inconsistent verdicts – Where appellant drove person to brothel – Where person intended to commit robbery – Where person fatally stabbed victim and took money – Where appellant charged with murder and armed robbery with wounding – Where jury directions on armed robbery with wounding charge omitted element of foresight of use of knife to wound – Where appellant acquitted of murder and convicted of armed robbery with wounding – Whether conviction and acquittal inconsistent – Whether substituted verdict should be ordered – Whether new trial should be ordered.
Evidence – Hearsay evidence – Evidence Act1995 (NSW), s 65(2)(d) – Where person made representation that appellant gave him knife – Whether representation made in circumstances that made it likely that the representation was reliable.
Words and phrases – "circumstances that make it likely that the representation is reliable", "hearsay evidence", "inconsistent verdicts", "merciful verdict", "misdirection", "new trial", "substituted verdict".
FRENCH CJ, BELL, GAGELER, KEANE AND GORDON JJ. On 24 October 2012, the appellant, Mr Daniel Sio, drove Mr Filihia to a brothel in Clyde in New South Wales. Also present in the front seat of the vehicle was a Ms Coffison. Mr Filihia entered the brothel alone, armed with a knife, intending to commit robbery. During an altercation, Mr Filihia stabbed Mr Gaudry, who worked in the brothel. Mr Gaudry later died from his wounds. Mr Filihia removed from Mr Gaudry's back pocket a pencil case which contained cash and left the brothel, running past Mr Sio's car. Mr Sio caught up with and collected Mr Filihia, and accelerated away from the scene. Both offenders were apprehended by police shortly afterwards.
Mr Sio…
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.
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Details
AGLC
Sio v The Queen [2016] HCA 32
Case
[2016] HCA 32
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Sio against his conviction for armed robbery with wounding. Mr Sio had driven a person to a brothel, who then fatally stabbed a victim and stole money. Mr Sio was charged with murder and armed robbery with wounding. The jury acquitted him of murder but convicted him of armed robbery with wounding.
The central legal issues before the High Court were whether the jury's verdict of acquittal on the murder charge and conviction on the armed robbery with wounding charge were inconsistent, and whether a substituted verdict for armed robbery should be ordered, or a new trial granted. A further issue concerned the admissibility of hearsay evidence under s 65(2)(d) of the *Evidence Act 1995* (NSW), specifically regarding representations that Mr Sio had provided the knife used in the robbery, and whether such representations were made in circumstances likely to render them reliable.
The High Court allowed the appeal, quashing the conviction for armed robbery with wounding. The Court reasoned that the jury directions on the armed robbery with wounding charge had omitted the element of foresight of the use of a knife to wound. Furthermore, the Court found that it could not be concluded that the jury must have been satisfied beyond reasonable doubt of Mr Sio's guilt of armed robbery if the potentially unreliable hearsay evidence concerning the knife was excluded.
Consequently, the High Court set aside the order of the New South Wales Court of Criminal Appeal and ordered that the appeal to that court be allowed, the conviction on count 2 of the indictment be quashed, and a new trial be had for the offence of armed robbery.
Orders
Orders of the court
Matter No S241/2015
Grant special leave to include, as a further ground of appeal in Matter No S83/2016, ground 2.2 of the Draft Notice of Appeal filed on 20 November 2015.
Matter No S83/2016
1. Appeal allowed.
2. Set aside order 2 of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 31 March 2015, and in its place order that:
(a) the appeal be allowed;
(b) the appellant's conviction on count 2 of the indictment be quashed; and
(c) a new trial be had for the offence of armed robbery.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Initially, Mr Sio was disposed to contend that there is no basis to enter a substituted verdict in this case, because s 7(2) provides that an appeal court may do so only where the substituted verdict is for an offence expressly alleged on the indictment, and there was no offence of armed robbery alleged on the indictment in this case of which the jury could be taken to be satisfied. In the end, however, that argument was not pressed because it was recognised that it was foreclosed by this Court's decisions in Calabria v The Queen[27] and Spies v The Queen[28]. These decisions establish that the power of the court under s 7(2) is not confined to offences actually alleged on the indictment, but applies to offences of which Mr Sio "could" have been found guilty on the basis that the elements were necessarily subsumed within the offence of which he was found guilty, as is the case with armed robbery with wounding and armed robbery[29]. [27](1983) 151 CLR 670 at 675‑677; [1983] HCA 33.[28](2000) 201 CLR 603 at 611‑613 [22]‑[27]; [2000] HCA 43.[29]R v Cameron [1983] 2 NSWLR 66 at 67; Browne (1987) 30 A Crim R 278 at 307.Section 65(2)(d) of the Evidence Act Mr Sio argued that a substituted verdict should not be entered in this case. It was submitted that, if s 65(2)(d)(ii) of the Evidence Act had been properly applied in the courts below, Mr Filihia's statements that Mr Sio had given him the knife would not have been in evidence against him. On that basis, it was said that this Court cannot conclude, in conformity with s 7(2), that the jury "must have been satisfied" that Mr Sio gave Mr Filihia the knife, or was otherwise aware that Mr Filihia was in possession of the knife when he entered the brothel. As has been seen, the evidence of Ms Gaudiosi, if accepted, tends to support the inference that Mr Sio would not have needed to include the knife in his plans for the robbery; and Ms Coffison's evidence, if accepted, supports the inference that Mr Filihia became a participant in the robbery only after the plans had been made. The Court of Criminal Appeal was of the view that the jury might have entertained a reasonable doubt about whether Mr Sio was aware of the knife even if Mr Filihia's statements were in evidence[30]. This Court cannot conclude that the jury must have been satisfied beyond reasonable doubt of Mr Sio's guilt of armed robbery if the evidence of Mr Filihia's representation were excluded. [30]Sio v The Queen [2015] NSWCCA 42 at [54]. Mr Sio submitted that if special leave is granted, and the appeal allowed, on the s 65(2)(d) ground, the evidentiary foundation for any findings in respect of armed robbery implicit in the jury's verdict is undermined, and no substituted verdict of guilty of armed robbery or order for a new trial for the offence of armed robbery is appropriate. It is, therefore, necessary to determine the issue which Mr Sio raised on his application for special leave in order to resolve the question whether it is open to this Court to proceed pursuant to s 7(2) of the Criminal Appeal Act.
Decision
Reasons for decision
FRENCH CJ, BELL, GAGELER, KEANE AND GORDON JJ
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Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, BELL, GAGELER, KEANE AND GORDON JJ