Sio v The Queen

[2016] HCATrans 138

[2016] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S83 of 2016

B e t w e e n -

DANIEL JEFFEREY SIO

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
BELL J
GAGELER J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 JUNE 2016, AT 10.18 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the appellant, with MS J.L. ROY.  (instructed by Sydney Criminal and Traffic Lawyers)

MR L.A. BABB, SC:   I appear for the respondent, with MS G.M. O’ROURKE, SC.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  You have our outline.  Shall I wait for a minute while you look at it?

FRENCH CJ:   Yes, perhaps you could just take a seat for a moment and we will have a look through it.

MR GAME:   Could I suggest, perhaps, when you look at it, the first part of it, you look at the last part of the respondent’s, because that deals with the same issue.

FRENCH CJ:   Thank you.  I am just wondering, Mr Game, whether it would be convenient to deal with the whole of the argument on the appeal first.

MR GAME:   Yes, your Honour.

FRENCH CJ:   The only question, I suppose, is one of the possible options is a retrial, and I suppose the question of section 65 might become relevant to that.

MR GAME:   That is correct, your Honour, so if there is a retrial either on this count or on armed robbery, then the presence of the knife becomes a critical issue and whether or not Filihia’s representations go in would be an issue at the trial.

FRENCH CJ:   Yes, so one cannot really disentangle ‑ ‑ ‑

MR GAME:   It is difficult, your Honour.

FRENCH CJ:   I was thinking it might be possible to do that, but ‑ ‑ ‑

MR GAME:   Unless you were attracted to our proposition that you enter a verdict of acquittal and not order a retrial then – I mean, I am just saying that is ‑ ‑ ‑

FRENCH CJ:   We might like to keep our powder dry on that.

MR GAME:   That is right.  It is a bit cheeky, but anyway that is the circumstance in which that could arise.

FRENCH CJ:   Yes.  Just let me consult with my colleagues for a moment.

MR GAME:   Yes, certainly.

FRENCH CJ:   All right, after vacillating a little, Mr Game, I think we should hear you on both.

MR GAME:   All right, certainly, your Honour.  Now, yesterday we provided the Court with MFI 13 which are the written directions that went to the jury, and if I can just explain.  It seems to have been completely overlooked at trial and on appeal that there is a mental element attaching to armed robbery with wounding.  In fact, the way in which the prosecutor put it in his final address – and I will just give your Honours a couple of pages; there is no need to go to them – 819 to 821 - it is as if the element (f) there on page 1 applied to armed robbery – applied to murder, and that was the thing that distinguished the counts.

So, if I take your Honours to the written directions.  There is no need to really go into this in detail but had he been convicted of armed robbery with wounding - sorry, had he been convicted of murder there would be an argument about whether or not you can feed an extended joint criminal enterprise into a felony to get to murder and it is very awkward with the language of section 18 to make that work.  That is the first thing.

The second thing is these directions at (f) introduce a possibility at two levels - foresaw the possibility the victim might be wounded.  Now, in Clayton language similar to that is used but it is just in discussion and it is a possibility that the knife would be used, in fact.  There are not possibilities at two levels.  Again, it does not matter but so 1A is an attempt to build an extended joint criminal enterprise from participation in an armed robbery to establish armed robbery with wounding and then deem him liable for murder.

Items (a) to (d) were admitted facts.  Item (e) was an element of the count on which he was convicted and item (f) was an element of the item on which he was convicted but it was not left.  So, we say that applying cases, and I can take your Honours to them, Mraz and Wilkes are really foundational cases here because Mraz is about whether or not you can get to a rape when you have been acquitted of murder by felony murder where the rape is - and Wilkes is whether or not you can get to perjury when the act - manslaughter and the abortion have been acquitted. 

So, you can kind of go behind the record to that level at least.  So this is a permissible exercise.  So we say the jury must have had a doubt about (f).  There is no other explanation for it and that is incontrovertible.  So then you go over the page – again, it may not make a great deal of difference in the long run but (b) is misconceived, in our submission, because it is not working from a joint criminal enterprise, it is working from aiding and abetting to get to an extended joint criminal enterprise to get to a felony to get to murder.  So that does not add anything but that is also misconceived, in our submission.

Now you get to armed robbery with wounding.  Either you are going to have to encourage the act of armed robbery with the act of using the knife to stab or you are going to have to use it if you can use extended joint criminal enterprise.  So (a), (b) and (c) are all admitted and (d) is the only issue that is left and the critical elements have been left out. Our primary argument is that it is incontrovertible that the foresight of wounding has not been proven.  So you cannot be put back on trial for armed robbery with wounding.

There is a curious incontrovertibility point that arises from Filipowski because Filipowski says you cannot go up or down.  So you could substitute a verdict but it is a very curious thing then to put him on trial for armed robbery when he has been acquitted of armed robbery with wounding in terms of incontrovertibility principles.

Maybe that is just a matter of timing but it seems to have something to do with the trial that was had, is kind of the significant ideal.  Otherwise, incontrovertibility not working down cuts across the idea of alternatives.  What I am saying is there is something inimicable to the processes for him now to be put on trial for armed robbery.  I am not saying it cannot happen but it does kind of cut across this Court’s jurisprudence about incontrovertibility.

BELL J:   Is there a particular passage in Filipowski?

MR GAME:   Yes, your Honour.  It is a perplexing passage, one would have to say, but it is (2006) 226 CLR and it is this passage at 338 to 339 from paragraphs 24 and following.  The appellant said there is a mix up about:

“are included in” should have been “include”.

The court said, “No, no, it is ‘are included in’”.  That is at 26.  What that is saying is you cannot go up, you cannot go down.  But that cannot possibly mean that at a trial you cannot have an alternative verdict.  So either it has something to do with the timing of the thing.  There it is at 26, after the quote. 

So say you ordered the conviction for armed robbery with wounding to be quashed and a verdict of acquittal entered but you made no other orders and then the Director filed an indictment for armed robbery.  We would sort of pop up and say, “What about Filipowski?”  So there is, as I say, a curious tension between alternative verdicts and what Filipowski is saying there.

But there is another way of looking at it which is this.  As indicted this alternative count was completely misconceived because if they found him guilty of the alternative count, as properly directed, he would have been guilty of murder.  The proper alternative was armed robbery.

So, say you go to the directions on armed robbery with wounding; there should have been another element, which is foresight of wounding, at the least.  Let us say, at the least, foresight of wounding in extended joint criminal enterprise - if they found him guilty of that, they would have found him guilty of murder.  The alternative left is misconceived.  They should have had an alternative of armed robbery, or robbery simpliciter.  The question becomes a trial process one – I say are you going to allow, but I do mean it – are you going to allow them, then, to put a second alternative that was not put at trial?

FRENCH CJ:   What about the merciful verdict argument?

MR GAME:   That just does not work because, again, merciful - there is a conflict between cases – there is a tension between cases like McKenzie and incontrovertibility and the conflict is worked out by saying the record shows you that the acquittal is irrational, or something close to that, in the light of the nature of the verdicts.  That is the only way those principles can be made to work with each other, because otherwise you say “Hang on, he has been acquitted”.  What the record is showing you in those cases is that there is something irrational about the record.  There is nothing irrational about this record, because if they had left ‑ ‑ ‑

BELL J:   Putting to one side for the moment your point that the alternative was not a true alternative in the sense that those elements, if established, plainly establish liability for the principal offence – put that to one side for the moment.  Looking at the alternative, what is accepted to have occurred is that there was an error in the directions that were given.

MR GAME:   Yes.

BELL J:   In the ordinary course, where it is accepted that there has been an error in directions, but the appellate court is satisfied that the verdict must have encompassed a conclusion of guilt in relation to a lesser offence that is an included offence, there is no difficulty with substituting a verdict.

MR GAME:   No, there is no statutory difficulty with substituting a verdict.

BELL J:   Does Filipowski say something different?

MR GAME:   No, your Honour, it does not, but that is why I say there is something very odd about an incontrovertibility principle that says you cannot bring a charge for a lesser included offence at some later time when it happens all the time in the processes of the court in substituting verdicts, which is why I said it must be something about timing, or the significance of the having of the trial.  I cannot think of any other rational explanation for that.

KEANE J:   But do you not have to – your submission seems as if it writes section 7(2) out of the Criminal Appeal Act.

MR GAME:   No, I am not disputing section 7(2).  I am saying there is a separate discretionary point here, which is will you allow a situation to be brought about where the Crown in effect has yet another bite at the cherry.  There is one other point here, which is this.  He has never been indicted for this, so let us say he wanted to plead guilty – you would not get the benefit of a plea.  I am not saying he does, but there is something, we say ‑ ‑ ‑

BELL J:   But he might have offered a plea to the included alternative offence.

MR GAME:   Quite.  I am just making this point to say that one has to proceed with a good deal of caution when you are substituting for something that was not left as an alternative and an alternative was left – that is really my point.  I have to accept, and I do not dispute, that the jury, by their findings must have found that he committed armed robbery.  I accept that.

GORDON J:   Just so I am clear, you accept that the jury must have been satisfied that he had committed the armed robbery.

MR GAME:   Yes.

GORDON J:   You accept that the armed robbery is included on the indictment for the purposes of section 7(2).

MR GAME:   I accept that subsection (2) can extend to something that is available but not left as an alternative.

GORDON J:   So my proposition you accept?

MR GAME:   Yes, I accept that.

GORDON J:   So what is the difficulty then in this case?  What is the problem?

MR GAME:   What I am saying is that questions of fairness apply, which is that they have had their alternative, are they going to be allowed to have a second alternative is really my point.  So we say there must at least be a conviction ‑ the conviction for armed robbery with wounding has to be quashed and that cannot stand because of the incontrovertibility point.  The question is, and I have put both sides of the argument as to what happens with respect to the balance of it.  That is the first argument and that is really all I wanted to say about it.

In respect of the second argument upon which we are an applicant for special leave, and that has been referred, as I say, if there is to be a – sorry, in terms of keeping your powder dry, if you substitute a verdict for armed robbery, then this is a moot question in this case and we would have to accept that.  So it would remain as a question of general principle whether you would – but, of course, if you allowed our argument on section 65, then you would not substitute the verdict because there would be a problem with – so yes, it is likely to arise.

Could I just take your Honours directly to section 65, which was amended in January 2009?

FRENCH CJ:   Are you saying that, if you are right on 65, you are entitled to a retrial on robbery?

MR GAME:   On armed robbery.

FRENCH CJ:   On armed robbery, yes.

MR GAME:   Or robbery but not armed robbery with wounding.  Section 65(2)(d)(ii), that amendment was made in January 2009.

GAGELER J:   Mr Game, I am really way behind here.  Would it really be a retrial?

MR GAME:   No, it would be an order for a – that is a question as to whether section 8(1) contemplates a retrial for something on which there has not been a charge.  It would be a trial.  It really turns on what the language of section 8 means of the Criminal Appeal Act.  I do not know of cases where the Court has ordered a new trial on something upon which there has not been a trial in the first place but it does not seem inconceivable.

GAGELER J:   There would have to be very good reasons for it, would there not?

MR GAME:   Yes, but that was kind of the point I was making before.

BELL J:   Mr Game, can I just take you back a step again?

MR GAME:   Certainly, your Honour.

BELL J:   Is your position – your position is that your appeal should be allowed and the conviction quashed ‑ ‑ ‑

MR GAME:   And a verdict of acquittal entered, yes.

BELL J:   ‑ ‑ ‑ and a verdict of acquittal entered.  I understand that.  In the event the Court were minded to substitute a verdict under section 7(2), you accept that the argument under section 65 of the Evidence Act becomes moot?

MR GAME:   Yes, except for the fact that if we succeed on our argument about section 65, then that would be a very strong reason not to ‑ that would be an overwhelming reason not to substitute a verdict.

BELL J:   I see, all right.

MR GAME:   Sorry, I got that the wrong way round a few minutes ago.

GAGELER J:   Mr Game, the only other alternative, as I understand it, is this relatively, or at least perhaps entirely novel, order for a retrial on a count ‑ ‑ ‑

MR GAME:   That is right.

GAGELER J:   ‑ ‑ ‑ which was not put at the original trial, and in relation to that retrial, the section 65 point would be irrelevant, is that right?

MR GAME:   No, say there was a retrial, then the status of Filihia’s admissions would become critical in the trial again because of the ‑ ‑ ‑

FRENCH CJ:   You say he should not even be convicted ‑ ‑ ‑

MR GAME:   That is right.

FRENCH CJ:   ‑ ‑ ‑ of robbery because there was evidence relied upon to support – which would necessarily have to have been relied upon to support that conviction, which should not have gone in?

MR GAME:   That is right.  So, I have made a meal of it.

GAGELER J:   We are here dealing with a hypothetical new trial.

MR GAME:   Yes, that is right, exactly.

GORDON J:   I will ask two questions.  The 65(2) point to the extent that it is relevant on your first limb is that if you are right on it, you seek to rely upon it in order to say there should not be a substituted verdict?

MR GAME:   Yes.

GORDON J:   Then, secondly, if you are right on it, you say – what I am not quite clear is what the outcome is then.

MR GAME:   Well, the outcome is that the best our opponents could get would be retrial on robbery or armed robbery.  You would have it ‑ ‑ ‑

GORDON J:   Under 8(1), which is the weird route home?

MR GAME:   Yes.  And there would be DPP v Fowler‑like discretionary considerations that ‑ why he has been in gaol for three and a half years, and so forth.  So, DPP v Fowler would have some application to that as well.

GORDON J:   Thank you.

MR GAME:   Now, I have seen judgments of this Court where it has been said – and I would have to scratch around to find them – where it has been said “we quash the conviction”, and that leaves the Director free to indict for possession or simple possession or something like that of drugs where there has been a conviction for supply.  So that is ‑ ‑ ‑

FRENCH CJ:   Just “quash the conviction simpliciter”.

MR GAME:   And do not do anything, yes, and leave them to fight it out.  But as I say, I would not want to be misleading anybody by saying that I would tell the person who then had this trial that they should take a Filipowski point about whether or not it could happen, so that dispute would not necessarily – so I do not really know of a situation where it has been as convoluted as this, but anyway.

So, perhaps if I put the section 65 argument, which I hope to do fairly briefly.  If I take your Honours first to the terms of the section – 65(2)(d)(ii) came in after Suteski and as a result of a wider review of the provisions, but it brought in subsection (2).  It is worth noting that - when one talks about the hearsay rule in section 65(2), the hearsay rule is the hearsay rule in section 59 and in the same amendments section 59 was tightened up to make it harder to get around the hearsay rule because - when the words “it can reasonably be supposed” were introduced. 

The reason why they were introduced was to prevent, shall I say, digging deeper into representations until you find some unintended representations so “must take mum to the shops” is an unintended representation that mum exists but it is still an intended representation and that is there to stop you kind of digging further and further to find an unintended representation.  So, in a case like this, everything can be taken to be otherwise caught by the hearsay rule.  They are all intended representations that we are talking about.

So, 65(2)(d) – I should just draw your Honours’ attention to subsection (7).  That tells you whether or not something is against interest but it does not  – so subsection (7)(b) would apply to this case but that is not really the end of it, in our submission, and it is not the end of it because, shall I say, something may be against interest but it may also be presented in a way that seeks to exculpate the person or inculpate another person.

Then, lastly on this, the definition of “Unavailability of persons” picks up people who are dead but it also picks up people like this case where you have a co‑accused who has pleaded guilty, has not been sentenced and who is refusing to give evidence.

So, if we then go to our written submissions at page 2 - and I am going to take your Honours through the relevant parts of Justice Leeming’s judgment in a moment but you will see at page 3, we have set out some of the transcript of the record of interview and I am going to take your Honours through some of that to show how we say it actually should work.

GORDON J:   You mean the outline, do you not, rather than the written submissions?

MR GAME:   The outline, sorry.  Now, if I could take your Honours then to paragraph 11 of our written submissions and Justice Leeming’s judgment at page 986.  There is a discussion of Suteski and at the very last sentence of that, his Honour says:

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) -

Now, nothing in Suteski, we would say, suggests you do not look at the representations.  Sure, one might not look at the question explicitly, but you have to work out what the representations are and there is a very important reason for that - is that other representations might be part of the circumstances, for example.  So, you have to work them out and you have to work them out because the whole question is directed towards the reliability of the particular representations in questions.

So then if I could just take your Honours to paragraph – there is a little on this in paragraph 27, which I will come back to in a moment.  Paragraph 27 talks about paragraphs (b), (c) and (d).  In the third line, it says:

Those paragraphs are not directed to any particular asserted fact, but instead to the reliability of the representation considered as a whole –

That is, in our submission, a misreading of Ambrosoli because all that is being said is one is not looking directly at the asserted fact.  One is looking maybe indirectly, but one is looking at the representation.  Then at paragraph 34, it is said:

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 –

Then it said that, somehow, this has got some relevance to the “distinction between the functions of judge and jury”.  So we say that error is shown in that because you do need to tease out the particular representations and I will give an example shortly.  You may come up with different answers with respect to some representations than to others.

GAGELER J:   Mr Game, can I just go back.  This is perhaps slightly off the point you are making at the moment.  You were talking about the functions of the judge and the jury.  I am interested in the appellate function.  His Honour addresses that at paragraph 30.  Clearly, the approach stated there is in your favour.  But is it right?  Is it for the appellate court to make a Warren v Coombes decision?

MR GAME:   I was hoping not to be asked that question.  But, anyway, I do not think paragraph 30 can be supported.  There are different things going on in this exercise.  There is no problem with an error of construction as satisfying appellate error.  But when you are talking about findings of fact by a trial judge then, applying House v The King, the question would be:  was that finding reasonably open on the evidence?  So it is really House v The King ‑ ‑ ‑

GAGELER J:   These are just labels, but really the appeal on a point of the wrongful admission of evidence is an appeal on a question of law, I think.

MR GAME:   Yes.

GAGELER J:   So on an appeal, on a question of law, where there is a finding of fact by the primary judge, the question is whether that finding is open.  Is that the way it works?

MR GAME:   Yes, that finding of fact.

GAGELER J:   You can label it House v The King, but it just means it is the same approach.

MR GAME:   That is what I would say, yes.  Quite.  But it is not Warren v Coombes.  It might matter in one respect in this case because we do say there are errors of approach, but we also say that these findings about unrehearsed, sincere and forthcoming just betray a failure to look at what really is happening in this record of interview.  What is happening in this interview can be very readily seen, which is that he is distancing himself from his own involvement.  But then when he is shown the photographs they clearly contradict what he has been saying and he winds the thing up.  So then a circumstance would be that, although it is against interest, he is giving an apparently exculpatory account about himself.  And that is the circumstance when you identify the representations against Mr Sio.

Moving away from your Honour’s question, but my first point is if you look at the whole thing as one representation, it is a gloss on the provision, but you are depriving yourself of the ability to actually identify what the circumstances are, except in some ‑ ‑ ‑

FRENCH CJ:   Well, you are saying you are not undertaking the evaluative – his Honour calls it a discretion but it is really an evaluative judgment of likelihood and reliability.  Your argument is that you are not undertaking the task which the section requires you to undertake in determining whether admissibility is open.

MR GAME:   That is right.

GORDON J:   Does the error start from the fact that the actual representations giving rise to whatever asserted fact is to be relied upon is not identified upfront?

MR GAME:   Exactly, your Honour.

GORDON J:   If one works through the section one would expect, would you not, that you would identify – especially if you are counsel for the accused – what it is that is sought to be adduced.

MR GAME:   Yes.  The whole exercise requires a good deal more discipline than this – it starts with the note - you have not seen the notice - but the notice just says the records of interview in the statements and there should have been an exchange of correspondence which drew out that question before the case even got to trial.  There should have been a fight about it to work out what the – so when defence counsel stands up, and defence counsel did stand up and say “Look, this is all a mismatch of reliable and unreliable representations” and the judge said “Well, that is not how I saw it”.  When I say it is not that difficult, it can be done, and it has to be done.  That is the first point.

FRENCH CJ:   What is the content of the term “reliable”?  Does that mean, in this setting, accurate, truthful ‑ ‑ ‑

MR GAME:   Yes, your Honour, but what it really means is this.  The common law does not really help this very much, but at common law we basically have admissions and business records and maybe some minor exceptions about contemporaneous statements of intention, and then Walton‑type exceptions ‑ ‑ ‑

FRENCH CJ:   Offered as proof of the truth of their contents.

MR GAME:   Yes.  What this is, is can you rely on this thing as a representation, given that it is hearsay?  So, say one urgently had to do something – one said something with urgency to get an ambulance called or something, or in a context where the context carries reliability with it; that is what you are looking for.  That is just an example – I am not saying it is as limited as that – but that gives you an idea.

FRENCH CJ:   A kind of res gestae approach.

MR GAME:   Yes, but I am just giving – that is maybe too narrow of an example.

FRENCH CJ:   In that particular example.

KEANE J:   Is not the concern of the section, when it speaks of reliability, with those kinds of circumstances that have generically been recognised as making hearsay unreliable ‑ ‑ ‑

MR GAME:   Yes, your Honour.

KEANE J:   ‑ ‑ ‑ including, in particular, circumstances which might give rise to a motive to misrepresent the fact ‑ ‑ ‑

MR GAME:   Yes, but I agree ‑ ‑ ‑

KEANE J:   ‑ ‑ ‑ and the obvious one here is that this gentleman is an accomplice.

MR GAME:   Yes, your Honour.  I say there is a superficiality about it; the same as we saw with section 59.  It is saying do not forever go digging until you find an unintended representation, but if you take too general an approach to circumstances, then you will be cutting out things that tell you about reliability.  One cannot treat the thing just as a purely generic exercise.  One has to dig deeper than that.

KEANE J:   But one at least knows that one is in the area of discourse which is the circumstances that have been recognised in the discussion of hearsay which justified its non‑admissibility.

MR GAME:   Exactly, your Honour, yes.

KEANE J:   One of them is the existence of a reason to fabricate, and one of those is the circumstance that the person saying these things is an accomplice.

MR GAME:   Yes, but perhaps if I could give you an example of why this kind of objectifying the thing is so – the trial judge in the Court of Criminal Appeal said maybe he had animus towards the co‑accused, maybe he did not, but we do not find that.  So if you look at the thing objectively, you say whether he did or he did not, he expressed it. 

One of the circumstances is whether or not he had animus he expressed animus.  So you add up those circumstances and they have an objective quality to them that one has to strive towards.  Anyway, that is the first point that we make.  The second point is this, that it seems that what are the circumstances are being narrowed in a way that is not in accordance with the section.  The idea seems to be in paragraph 27 in the citation – I am looking at the whole thing.  Perhaps a better example is, we see the reference to Shamouil but then in 33 we say:

The question posed by statute is not whether the actual statements made are themselves accurate or likely reliable, but whether the circumstances ‑ ‑ ‑

That really is a distinction without a difference in this particular situation.  Then it goes on to say:

examines the circumstances . . . not the particular statement itself.  That is to say, it is no part of the analysis . . . to point to the fact that Mr Filihia’s answers were demonstrably unreliable -

So what one says – Mr Filihia appeared to be forthcoming and sincere but we are not going to have a look at the representations to see if he was in fact forthcoming and sincere.  That cannot be right.

BELL J:   Is there not a tension between the approach to saying the task is to look at the circumstances in which the representation was made and in performing that essentially narrow task to make an assessment of whether one thinks the person was being forthcoming or not?

MR GAME:   Yes.

BELL J:   That seems to be a tension.

MR GAME:   Yes.  Take the example that was given in Ambrosoli of a later retraction.  Whether or not that is a circumstance, it throws light on the circumstances.  It makes you look at the circumstances again.  What I say though is that if you do the first exercise properly and tease out the representations then you will be able to see better what the circumstances are because then you will have surrounding circumstances which may include other representations.

FRENCH CJ:   Would it be any different if (d) had simply read - given if you treat the interests of the person – “against the interests of the person” as just a circumstance would it have made any difference on your submission if (d) simply read “was likely to be reliable” – “the representation was likely to be reliable”?

MR GAME:   Your Honour, not a great deal of difference.

FRENCH CJ:   It seems it all collapses into that.

MR GAME:   Yes.  That leads to the third point, which is that unless you are just, with respect to Shamouil, making a trivial point about the fact that this is not the trial, Shamouil has no role to play here.  But what we say actually happened, if one looks at the reasoning of the judge at first instance, is that Shamouil is being relied on in a way to take, as it were, hypothetically the Crown case at its highest.  So, in effect, all that is being looked at are things that favour the admission.  That is not the statutory task at all and this, one will see, is one of the few places where reliability sits in the section.

So, that point I was making in answer to a question your Honour Justice Keane I think asked, at paragraph 35, page 992, his Honour says:

Thirdly, it is possible that Mr Filihia was motivated by animosity to Mr Sio ‑

but I will take you to an example in a moment.  He actually expresses animosity so the objective circumstance would be that he has expressed it.  So, those we say are the three errors in the way in which the Court of Criminal Appeal has approached it.

What I was going to do now is ‑ and I will come back and say something about the trial judge a little later when I have finished ‑ but what I am going to do now is, if I could go to page 3 of the outline and I hope to do this as quickly as possible.  Incidentally, there are two copies of this record of interview in your books; one is the one used on the voir dire and one is the one tendered at trial.  The relevant one for this exercise is the voir dire one and there were a few questions that were excluded, for some reason I do not understand, at trial. 

So, if one goes to the record of interview, we see at page 532 ‑ so he is told he is being questioned in relation to the murder.  Then in our document we say in our first point that he makes many representations which can be seen when you look later at what is presented to him in the CCTV, were demonstrably unreliable and they are representations about his involvement.  So, that is our little dot point 1.  If I take you some of these and I will try and do it as quickly as I can.  At 536, we see for example at answer 59:

I didn’t mean to hurt him ‑

And then we see at 548, question 231:

He was refusing, started pushing me around.

. . . 

I just had, I had a knife.

And then 549 picks up the point we make shortly, but if you look at 549, answer 236:

Q236O.K.  And I won’t go into too much detail about that here, we’ll come back to that, but where did you get that knife from?

A        Jacob already had it in his car.

Q237  O.K.  And where did it go?

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

Now, so there is a representation, and it is a significant one against my client, once Jacob is seen to be my client.  And then 241:

Q241  Where in the car was the last place you saw it?

A        It was just on the seat next to him.

. . . 

Q244  Yeah, front or back?

A        The back, the front.

Q245  The front.

So, just at that point we can see that the representation that Jacob already had it in the car, that representation is made in circumstances where he is leaving out of the account the critical person, who is Ms Coffison, whose bag it was found in some time later, and he says he put it back on the front seat in which he was sitting.

So that is a circumstance that relates to the representation that he got the knife from my client.  It is a representation that he is leaving out a relevant person in the account.  So that is why I say that once you have got the representation, they sort of play on each other in terms of how you look at them, and that is a proper approach to take to this exercise.

So I am still on (i) although I said something about (ii), but if we then go to an example at 565 to 557 – sorry, just 550; all of 550 are exculpatory accounts.  “And the knife just went into him”, at answer 260.  “But [f] it wasn’t meant to”, it really “just happened”.  Then at 551 he says he was holding it in his left hand.  Actually the shots show him holding it in his right hand.  So that is – that does not matter – so that gives you an example.  In 565 – so 565 here at 470 we have:

Where did that come from?

A        Um, it had come from him.

So that is part of the representation that it comes from my client.  Then we see 475 about himself:

I didn’t mean to hurt him.

. . . 

I thought I was, you know, going to be having a fight and I was scared –

. . . 

Ah, that’s when I had pushed him and the knife just went into him.

Then he says it was “by accident” at 482.  Then one sees at 567, answer 495:

I had thought like he was walking into his office, I was just probably like he’s going to get a gun.

Well, you can see from the CCTV that the victim is being backed into his office and you can see the CCTV as he is backed into it.  There is no question of him walking into his office to get a gun.  He is being pursued with a man with a knife.  So that gives you a relatively good idea of how that is actually – how he is presenting his position.  Now, the business about the knife originating not with Coffison – we are dealing with little (ii), and that is at 575, if I can take your Honours to that.  You see at the bottom of 575 – it starts at 601:

Q601  And how did the knife get into the front?

A        I just chucked it onto the seat.

Q602  You didn’t sit in the front seat?

A        No, not at all.

. . . 

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

Well, that is impossible because Ms Coffison was sitting in the front seat.  So now we have a circumstance in which my client is being nominated as the person who provides the knife but false accounts are being given about what he has done with the knife at the time, and that is a relevant circumstance to assessing that representation and they are different representations.  Then we see again at 606 – and there are many examples of them:

I wasn’t meant to use it.

At 610:

wasn’t my intention to.

Now, what one sees then is 577 they show him the CCTV photographs, and those CCTV photographs can be seen at 607 and following, and one needs to understand that they are in two different rooms, but if you look at 608, there he is pursuing the victim into the victim’s office, and then when you get to 610 you are now looking from the office back to the door.  Pages 612 and 613 is a very good example of him holding a knife and the victim going backwards into his office.

So it is pretty easy to see why the police were saying “but hang on here; that is not what these CCTV photographs show”.  And that is what happens at answers 616 and following.  They are questioning what he is saying.  At 628:

A        No he just, we started pushing each other.

Q629  Yep.

A        Pushing and shoving each other.

He said he was “fearful”.  What do you mean “fearful”?  Then at 634, they show another photo.

Q634  O.K.  And where’s the manager?

A        He, he had, he was coming to me.

Well, actually, in that photograph he is going away.  Then he says:

A        He’s walking towards me.

Q636  Is he or is he walking backwards?

A        No he was walking towards.

. . . 

Q639Going backwards so do you agree that he’s going backwards the entire time?

A        Ah, yeah.

So they are actually contradicting him with the content of the CCTV.  Then we see the same:

A        Ah, he’s, he’s grabbing me and I’m grabbing him.

. . . 

A        Um, he is just at the back there.

They show another photograph and then he says:

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

Now, that finding that he seemed to be cooperative and forthcoming – you can show in five minutes that that is not what was happening at all in this.  What is happening is that he has given, insofar as he – he has pleaded guilty to murder.  They do not have to prove an intention to kill. They have an armed robbery – they have a felony for felony murder.  So this is an exculpatory account from his perspective of the circumstances.  And he stops cooperating at that point.  Your Honour is about to ask me a question.

BELL J:   Just to understand:  your contention is in relation to each representation the assessment of whether or not the representation was made in circumstances that make it likely that it was reliable, admits of a consideration of other representations made that may cast light on whether the particular one under consideration is reliable.  That is a circumstance on this analysis.

MR GAME:   That is right.

BELL J:   Is the judge’s assessment of whether or not the person appears to be being forthcoming a circumstance that is relevant to the assessment of reliability?

MR GAME:   Appears to be forthcoming is in itself of small moment. It is a circumstance.

BELL J:   But it might be ‑ it is a circumstance.

MR GAME:   It is of small moment but it is a circumstance.

BELL J:   So one comes back to the Chief Justice’s question:  you can delete the words “made in circumstances”.  For the purpose of your submission they do add nothing.  This is an assessment of whether it is likely that the representation is reliable.

MR GAME:   All they do is they are telling you, look at the context within which these statements – make a judgment about ‑ ‑ ‑

BELL J:   But you would do that, anyway, would you not?

MR GAME:   You would, yes, but look at the whole ‑ ‑ ‑

BELL J:   What is the work being done by the addition of the words “made in circumstances”?

MR GAME:   It is telling you that you are not conducting the trial itself.  You are asking yourself whether or not, in the world in which this statement was made, is that a representation that has got sufficient safety to it for it to go to the jury.  That is what you are asking.  And that necessarily brings in all that reliability connotes.

GAGELER J:   I am just comparing (d) to (c) in 65(2).  We are talking – “likely to be reliable” is something less than “highly probable”.

MR GAME:   Yes.

GAGELER J:   So it is less than a balance of probabilities analysis?

FRENCH CJ:   “Highly probable” may be considerably more than “balance of probabilities”, might it not?

MR GAME:   Yes, “highly probable” is something absolutely striking about the evidence; say, a dying declaration, or as I said, a statement made in urgency, or things that had to be true at the – where you can get at the hearsay.  You can get at the intended hearsay because the person needed to convey it, for example.

BELL J:   Yes.

FRENCH CJ:   But underlying Justice Gageler’s question is the notion that the word “likely”, as we know, in a statutory context can sometimes mean a non‑trivial probability, but not necessarily greater than 50 per cent.

MR GAME:   Yes, understood.

FRENCH CJ:   Just looking at it, it does seem to be, in context, the balance of probabilities.

MR GAME:   It is saying to you does this thing have a real level of safety about it before ‑ ‑ ‑

FRENCH CJ:   Well, does the judge have to decide that it is more probable than not that the representation is reliable?

MR GAME:   Well, we would say yes.

FRENCH CJ:   That means “true”, does it not, or “accurate”?

MR GAME:   It includes it, yes, absolutely.  But what is being done in this judgment is they are actually excluding consideration of the actual reliability of the asserted fact that sits behind – that might be the very thing that tells you whether it is reliable; it is the very thing that tells you whether it is reliable.

BELL J:   Subsection (d) is concerned generally with statements that are against interest, and in that circumstance with the consideration of whether the circumstances make it likely that it is reliable, one does at some point, I suppose, have to look in the context of a case such as this to how that interacts with the statute’s recognition that evidence of a witness who might reasonably be supposed to have been criminally concerned is evidence of a kind – that is, viewed as unreliable – under 165(1)(d).

MR GAME:   Yes.  There was something I forgot to mention, which is this – and I did mention it on the special leave application, of course.  One of the exceptions to the hearsay rule is an admission, but that only applies to the person who is on trial, but it is worth remembering that under section 83, if we had gone on trial with Filihia, you would not have been able to use ‑ even to get to Filihia’s state of mind – you would not even be able to get to Filihia’s state of mind in the trial against us through Filihia’s admissions ‑ ‑ ‑

BELL J:   It is the stark contrast.  Had Mr Filihia chosen to chance his arm and go to trial with you, not a word from this interview would have been evidence against your client.

MR GAME:   Yes, that is right, including evidence about his state of mind.

BELL J:   Yes.

MR GAME:   So, just finishing off this, I will not take your Honours to – there were some other points that we dragged out, or made.  He had cut his hair to avoid attention; he had said that he was going to the brothel for sexual services; he actually made statements that he was looking for assistance from the police, and those statements are there.  “Is this going to help me?” he says to the police at certain points.

BELL J:   Your contention is that no representation met the test.

MR GAME:   That is my contention but obviously the ones of critical importance are the ones about the knife coming from us and I would admit of the possibility that you could have different answers.  In the examination of representations you do not necessarily come up with the same answer.  I am not saying necessarily in this case.

GORDON J:   Does it apply in this case, given the circumstances in relation to the production of the CCTV footage?

MR GAME:   No, your Honour.  Yes, we say they are all unreliable.

GORDON J:   But you accept that there may be a different answer depending upon at which point you find the representation.

MR GAME:   I do, yes, I do accept.

GORDON J:   Can I ask one other question and that is this - where does 165 and the warnings about unreliable evidence fit with this sort of analysis?  Does it have any role to play?

MR GAME:   Well, hearsay is included as one of the things in 165.

GORDON J:   It is.

MR GAME:   But 165 would be more relevant to section 137.  So you would say is a warning capable of dealing with the prejudice that attaches to the inability to cross‑examine?  The kind of response that was put both by the Court of Criminal Appeal and the trial judge was the fact that you cannot cross‑examine is integral to section 65 but one cannot get away from the fact that – if Mr Filihia had given evidence, the prosecution would have tendered his record of interview and said it is full of lies, as day follows night, because clearly enough they did not accept what he had to say about his own involvement ‑ ‑ ‑

GORDON J:   That does not really answer my question, though.

MR GAME:   No, I am sorry, your Honour.  The answer to your question is that it would be relevant to the – whether or not 165 works, it gives you sufficient and is relevant to the 137 discretion, but it is hard to see how it is ‑ ‑ ‑

FRENCH CJ:   It can work logically because you may decide, let us assume balance of probabilities, that it is more probable than not that the representation is reliable, that logical proposition at the representation may be unreliable is consistent with that.

MR GAME:   Yes.

FRENCH CJ:   There may be a 40 per cent chance that it is false.

MR GAME:   Yes.

GORDON J:   Does that mean that in those circumstances the warning would be given?

MR GAME:   Yes, the warning would be given, but, as I said, the critical question on 137, when one looks to 165, is will the warning resolve the problem that you have not had an opportunity to ‑ ‑ ‑

GORDON J:    Or diminish it.

MR GAME:   Yes.

BELL J:   Does not 165(1)(d) recognise a particular sort of statement against interest showing that a person has committed an offence to pick up both subsection (7) and (2)(d) in section 65?  The statute itself recognises that the statement of an accomplice may be evidence that is unreliable.  So that when one comes to (c), statements against interest in (2)(d) and subsection (7) with its consideration that a statement may reveal that a person has committed an offence, one looks at it in a context in which the statute recognises in relation to the evidence of an accomplice a particular unreliability that is unrelated to the fact that it is against their interest or that it shows that they have committed an offence?

MR GAME:   Yes, so that is two reasons for giving the warning, at least, in section 165.  We would say the circumstances in this case are circumstances where you have a co‑accused caught red‑handed, in police custody, has attempted to avoid detection, attempting to give an exculpatory account of his own involvement, who is seeking police assistance, who is expressing

animosity towards the appellant, who says he has consumed a good deal of ice at some point before, who stops answering when he is contradicted, who later pleads guilty to murder, who later refuses to give evidence.  Those are the circumstances that we say apply to this case.  The only other thing I did not do is take your Honours specifically to ‑ ‑ ‑

GORDON J:   Just before you leave that – I am sorry to be slow – of that list that you just read to us it includes circumstances post the circumstances in relation to the representations themselves.  Is that right?

MR GAME:   Ambrosoli says you can look at, say, a retraction ‑ ‑ ‑

GORDON J:   That is a bit different.  That is temporally, is it not?  The factors you just listed are factors which have no temporal connection.

MR GAME:   The only two I listed that were not caught were later pleads guilty to murder and who refuses to ‑ ‑ ‑

GORDON J:   They are the ones I am referring to.  There is no authority that would support that proposition, is there?

MR GAME:   I am not sure that there is, but Ambrosoli and Conway are probably as close as it gets.  But we would say that does throw light on the circumstances even if they are not circumstances themselves.  I just wanted to say a couple of words about the trial judge’s ruling, which is in this little book.  Page 9 is all about 65(2)(b).  Paragraph 53 is really limiting the effect to which the appellant is exculpating himself because of the language of section 65(7) and Suteski.  We say that is wrong.  Then, her Honour says at 54:

I am not assessing the credibility of Mr Filihia’s evidence –

Shamouil is cited, and then all we get, in 55 and 56, is her assessing his credibility.  That is all I wanted to say about her Honour’s judgment.  Before I resume my seat, there is one mistake in our submissions that I wanted to point out and it is this.  It is on page 4 of our submissions, and it says that Gaudiosi told us where the money was and that is wrong.  There is no evidence.  That is the top of page 4.  Those are our submissions.

FRENCH CJ:   Yes, thank you, Mr Game.  Yes, Mr Babb.

MR BABB:   Your Honours, if I may deal first with the section 65 argument.  The respondent’s submission is that the clear words of section 65 made in circumstances that make it likely limit attention to the circumstances within which the representations were made and do not include an assessment of the truth or otherwise of the various representations in this instance within the record of interview.

GAGELER J:   What does “likely to be reliable” mean then?

MR BABB:   That is an assessment of the representations but with the limited consideration of the circumstances in which they were made, in my submission.  That is the only way that section 65(2)(d)(ii) can be read, in my submission.

GAGELER J:   Is the question whether the representations in the circumstances in which they were made were more likely than not to be true or is there some other question?

MR BABB:   No, that is the question that ultimately has to be answered but the things that are taken into account in relation to those representations are the circumstances in which they were made.  Now, my learned friend is pointing to the representations themselves whereas my submission is that the things to be taken into account as the circumstances in this particular case are the fact that the ERISP interview was made in a police station under caution by a person who was a suspect in a murder investigation, was made a short time after the events in question, was made at a time when the maker of the representation was not affected by drugs and that was the finding of her Honour in determining the issue in supplementary appeal book page 9 at point 40:

I reject Mr Watson’s submission that Mr Filihia was still under the influence of drugs at the time of the ERISP.

Her Honour made that on the basis of three police officers who gave evidence on the voir dire that they had spoken with Mr Filihia and assessed him and that evidence is at appeal book 33, point 33 in relation to Officer Hallinan.

FRENCH CJ:   So is this a kind of generic judgment about reliability as one might apply to a statement against interest.  Thus, the representation was made in circumstances in which any representation is “likely to be reliable”.  Is that how you put it?

MR BABB:   The circumstances are what need to be assessed.  So you look at the facts.

FRENCH CJ:   Well, I am trying to understand the distinction between looking at the content of the representations ‑ ‑ ‑

MR BABB:   Yes.

FRENCH CJ:   ‑ ‑ ‑ and assessing their accuracy, truthfulness, et cetera, on the one hand, which might be one view of the nature of the exercise.  It seems to me the only intelligible basis for the distinction that is offered for some, as it were, backing off from that kind of exercise is to say that the section is to be read as referring to circumstances which would make any representation or give you greater confidence about any representation made in those circumstances, because that is the nature of the circumstances.

MR BABB:   Yes.  But that is the way that it does, in effect, work.  You need to look at the circumstances and then assess them objectively as to whether they are likely to make any representation reliable.

FRENCH CJ:   The problem is that it says “the representation”, of course.

MR BABB:   Yes, which draws you back to these circumstances that relate to that representation.

GORDON J:   Sorry, just so I understand, in the circumstances of this case, do you accept that the provision of the CCTV footage is a circumstance that is able to be taken into account in assessing the reliability of the representation?

MR BABB:   It is one of the facts of what happened at the time the representation was made, even though that occurs at the very end of the first ERISP.

GORDON J:   I do not understand why that is - if you adopt the approach that one must first identify – and I should ask you that, actually – do you take issue with Mr Game’s submission that one needs to identify with precision what are the representations said to be relied upon or sought to be relied upon, or do you maintain the position that it is a global exercise?

MR BABB:   I accept that you need to look at the individual representations.  They need to be against interest to fit within the section.  However, the circumstances within which the representations are made in relation to the ERISP do not vary.  Those circumstances are stable throughout, so there is not a lot of utility, in my submission, in breaking it down into separate sentences or collections of sentences, especially where, in this record of interview, the questioning was all going to the participation of Mr Filihia in the armed robbery.

BELL J:   What is it about the circumstance that a person accused of murder is being interviewed in a police station under caution that would lead one to conclude that the statement made by that person was likely to be a reliable one?

MR BABB:   You are given a warning that you have been charged in relation to murder.  You do not have to say anything, so it really flows on to the statement, which is against interest, and the willingness to make that statement, despite the caution.

BELL J:   So the fact that you forgo your right to silence and make a statement containing representations against interest is some badge of reliability.

MR BABB:   That is my submission, your Honour.  As I was saying, the other factors are the proximity in time to when the events occurred.  This was in a matter of hours of the murder and not being affected by drugs – Mr Game points to that as being one of the circumstances that would be taken into account as undermining it.  The three police officers were called to give evidence of their assessment.  Her Honour assessed the response through looking at the interview itself.

This is at appeal book 58, 40.  In relation to the defence submission about there being intoxication, her Honour, in argument, was saying:

it’s a matter of degree, and what I take into account in working out whether he was so affected and so intoxicated that he is not likely to be reliable.

BELL J:   Was it relevant for her Honour to take into account, as she did in her reasons in the supplementary appeal book at page 10, paragraph 57 that:

He was quietly spoken and courteous . . . and appeared to answer willingly.

Was that a circumstance?

MR BABB:   They were circumstances.  They are not things looking at the statements themselves but the circumstances within which they were made.  If I can give an example, if in another instance there was a long pause between each answer which the trial judge considered was an attempt to think and perhaps formulate a consistent response that would also be able to be taken into account.

BELL J:   So to come back to the question the Chief Justice raised with you a few moments ago, as I understand it from that answer, you do not suggest that one stops at the point of saying this is a record of interview conducted with a person under caution who forgoes their right to silence shortly after the subject events.  You do look at matters of impression of the kind that you have just referred to to make an assessment of the likelihood of reliability.

MR BABB:   Where they go to the circumstances of the making of the representation and that does not include, for good reason, an assessment of whether the actual representation is true or false.  If it did, then the assessment would be the same assessment that a jury undertakes in assessing whether to assess an act on the evidence and would require a calling of all relevant evidence that might go to the veracity of the individual representation.

BELL J:   But here the Act does impose a threshold requiring the judge to make some assessment of reliability.  On a view there is something a little inconsistent with saying the circumstances, including his apparent willingness to answer questions co‑operatively, make it appear likely that it is reliable, notwithstanding that it is plainly evident that he is in fact lying.  There is just something one would think slightly inconsistent about that.

MR BABB:   The difficulty, though, if one starts to look at the assessment of the representation itself is where is the good reason for why it is formulated in that way.  It becomes a difficult assessment of plainly this is a lie or this is the type of assessment that you need to take into account the other evidence that corroborates and supports an evaluation of a statement, which is a good reason why the Act limits itself to consideration of the circumstances in which the representation was made rather than the reliability of the representation.

GORDON J:   If you took into account on one view the willingness to answer the questions, which is a positive consideration for reliability, when one gets to post CCTV footage when he wishes to close down the interview because he suddenly realises that he has been caught out, are they circumstances that are to be taken into account as reflecting an unwillingness and, in a sense, infect the earlier representations?  I just do not know you can have your cake and eat it too.

MR BABB:   No.

GORDON J:   You cannot have the positives and not the negatives.

MR BABB:   No.  An unwillingness to answer questions I think can be taken into account in terms of the circumstances.  In this case, however, that statement that, “I do not wish” – “Can we shut this down now”, really comes at the end of an hour and three‑quarters of interviewing, 700 questions, and at a time when he says, having seen the footage, “I’m feeling sad about what I’ve done”.  So, in my submission, it is not a circumstance in this case that undermines the likelihood that the representation is reliable.

GAGELER J:   I am having difficulty in understanding what you are referring to when you say “the representation”.  Are you breaking up – are there 700 representations?  Is there one or two or three?  How do you identify them?

MR BABB:   There are numerous representations in the record of interview and it does go to my learned friend’s point and, your Honour, I am not suggesting that it should be considered as one representation within the record of interview, but what I do say here is that it did not make an important difference because the circumstances – all of the record of interview was against interest and the circumstances, with the exception of what Justice Gordon has put to me, the CCTV footage could be considered to have been a change, but the circumstances up until that point were identical, being made under caution shortly after the event at a time that the person was not intoxicated and against interests.

GAGELER J:   One of Mr Game’s points is that some of the answers were patently untrue.  Now, is that part of the circumstances to be taken into account in assessing the others?

MR BABB:   No, your Honour.  No, the court does not enter into an assessment as to the truth or otherwise of the statements made, and that cuts both ways.  You do not take into account material that would support the truth of the statement in order to enable the prosecution to have the statement admitted and that would be - if you did take into account the truth and accuracy of the statement that would be the corollary. 

The prosecution would lead, on any application to admit evidence under section 65(2)(d), consistent statements made to other people in relation to the same event, corroborating material that supported the truth and accuracy of the statements made, and that is not what the Evidence Act had in mind that it would be a mini trial evaluating the truth or otherwise of the individual statements.

Section 65(2) is really a gateway provision and is establishing whether the hearsay rule does not apply to these provisions.  It does not do more than that and for that reason, in that context, the legislation did not envisage a mini‑hearing about the reliability of individual representations.

FRENCH CJ:   On the other hand, it is a very significant departure from the previous law, is it not, in relation to the admissibility of hearsay statements, especially when it is critical to the determination of guilt or innocence?

MR BABB:   It is.

FRENCH CJ:   So one can see an argument for a higher threshold than you are putting.

MR BABB:   Yes.

GORDON J:   Is there a middle ground in the sense – I do not know that there is – that here in this case you have circumstances where at least leading up to production of the CCTV footage you had one version of events, in a sense.  The footage is shown and it is clear, or at least arguable, that what he has been saying is wrong.  Is that, in a sense, inconsistent with what I will call objective evidence, a circumstance to be taken into account rather than the truth or otherwise of the representations?  In other words, it goes to show that there is a general unreliability.

MR BABB:   Well, that showing of the CCTV footage needs to be looked at carefully, and I would urge your Honours to do that.  The assessment about backing and grappling – there was grappling at a particular stage.  There was never any shying away from being the person that entered and stabbed and killed Mr Gaudry, the fact that there was no one else present, that it was him that did it.  This is something that goes to some of the circumstances in the seconds around the stabbing as opposed to undermining the general statement of - “against interest” statement of accepting responsibility for the murder.

BELL J:   Is it accepted that the admission of this evidence was critical to proof of the complicity of the appellant in the armed robbery?

MR BABB:   It was important, your Honour.  It was not the only evidence of complicity in the armed robbery.  Justice Leeming goes through this at 996, paragraph 49.  You can see that Justice Leeming talks about Mr Sio being:

complicit in the use of the knife in the robbery, even without reference to Mr Filihia’s contested ERISP –

and then goes through the factors that would establish that.

BELL J:   I think his Honour acknowledges there was no direct evidence, save for the hearsay assertions by the co‑offender.  The matters that are identified in subparagraphs (1) to (5) within paragraph 49 are circumstances that supported acceptance of the hearsay evidence of the co‑accused.

MR BABB:   Or established a circumstantial case in relation to knowledge of the knife by Mr Sio.  His Honour was really going to the improbability of Mr Filihia having access to the knife from Ms Coffison and Mr O’Hare’s apartment, that it must have been Mr Sio and then goes through the factors that would make out that proposition and circumstantial case that exists, even beyond the direct evidence of Mr Sio – sorry, Mr Filihia. 

Your Honours, in my outline of oral argument I highlight one change of circumstance and that is between the statements.  The Court of Criminal Appeal upheld the admission of each of the four statements, noting that the identification parade or photo identification ERISP was not further challenged in the Court of Criminal Appeal.  But at paragraph 11 of my outline of oral argument, one difference in circumstance was between the first ERISP and the first statement because Mr Filihia initially was making statements as a suspected person under caution and then, after a short break, was then with the normal pro forma prelude to a statement making a statement as a possible witness in criminal proceedings against Mr Sio.

In my submission, that is a relevant change of circumstances.  However, it did not make a difference to likely reliability because that statement was an extension of the ERISP and the only change being the correction of the name “Jacob” to “Dan,” which was not contentious in the trial at all because it was accepted that the accused was the driver of the relevant vehicle at the relevant time.

Your Honour Justice Gordon asked whether section 165 directions still have work to do.  In my submission, they do.  My learned friend said that they become relevant in the section 137 assessment, and I would agree with that proposition.  In this case, there were clear directions that would fit the description of section 165 directions given and they were firstly at appeal book 165, line 50, and that was at the time of the admission of the ERISP interview.

BELL J:   I am sorry, what page number?

MR BABB:   Page 165.

BELL J:   Thank you.

MR BABB:   Line 50, and it dealt with the two things that were raised with my learned friend, that being complicity in the offence and the fact that it is hearsay material, and hearsay because the person was not subject to cross‑examination.  The warnings were given again at appeal book 889, and that was in the course of the summing‑up to the jury. 

In my submission, that inability to cross‑examine the maker of the representations is something that is inherent within section 65 in the maker unavailable provisions and the complaint as to the existence of prejudice in relation to that is adequately taken care of with the directions that were given, and also that it is a matter of speculation as to whether in fact it was a matter of prejudice in the inability to cross‑examine because there was little reason to believe that Mr Filihia would have contradicted himself.  Unless I can assist your Honours further on that section 65 point, they are my submissions.

Your Honours, in relation to the conceded omission of the direction in relation to foresight of the possibility of wounding, I acknowledge that that is a significant omission and there needs to be a quashing of that conviction.  In my submission, the reason for the acquittal of murder does remain unknown and certainly one reason for that could be the omission of the direction in relation to foresight of the possibility of wounding another - in the circumstances of this case could be a merciful verdict.

BELL J:   If the jury followed the judge’s directions and the written reminder of those directions, which they had, as we must presume they did, the only explanation is that the directions on armed robbery with wounding omitted the requirement for proof of foresight.

MR BABB:   Yes.

BELL J:   It must follow.

MR BABB:    I accept that.  It creates a difficulty with my principal argument that there should be a retrial in relation to armed robbery with wounding.  Then, and I think it is accepted that if the jury proceeded on that basis and the representations by Mr Filihia, a person who was unavailable, were properly admitted and the jury have proceeded to convict in relation to all of the elements of armed robbery, my principal submission is that in relation to armed robbery should your Honours either not grant leave or not uphold the appeal in relation to section 65, that you would substitute a verdict under section 7(2) of the Criminal Appeal Act that this is just the type of case that section 7(2) should be used in. 

In Spies v The Queen, the analysis was that the offence needs to be wholly within the ultimate facts of the offence for which the accused was convicted and which the Court sets aside in the appeal.  They give an example of armed robbery to robbery and I would say that similarly armed robbery with wounding to armed robbery.

BELL J:   If the admission of the representations in the ERISP was an error of law, do you accept Mr Game’s submission that that would provide a powerful discretionary reason for not substituting a verdict?

MR BABB:   I do.  The other part of Spies is that at paragraph 27 of that case this Court said:

“must have been satisfied of facts” indicate that it must appear to the court that, having regard to the evidence . . . necessarily meant that the accused was guilty of –

the offence and that would be some significant evidence.

FRENCH CJ:   The disposition then would be quash the conviction simpliciter.

MR BABB:   Quash the conviction simpliciter and order a retrial generally, is my submission.

BELL J:   Well, that was the next matter I was going to take up with you which was Mr Game’s point that again in the exercise of discretion one would not, because to rely on cases such as Fowler v Nauru and Anderson, it would be to give the Crown and opportunity to make good a case that it had failed to do at the first trial.

MR BABB:   Yes, yes.  I would rely on the same authorities and say that this is an appropriate case to do just that and Taufahema is probably the latest authority of this case that looks at the principles of when a new case can be run and the relevant passages commence at 67 and following and when your Honours have an opportunity to look at that case, it is my submission that this is an appropriate case.  It is a strong prosecution case in relation to armed robbery. 

There is a public interest in relation to a conviction being recorded even though substantial time has been spent in custody following the initial prosecution.  It is not a significant shift and there would not be a shift in the case being run except for the ‑ ‑ ‑

BELL J:   All that happens is the prosecution would have on that analysis - this is assuming the section 65 argument succeeded, the Crown would simply have a less strong case.

MR BABB:   Yes.

BELL J:   But you submit there would still be a case.

MR BABB:   Yes.

FRENCH CJ:   There would still be a case on armed robbery?

MR BABB:   Yes, there would a case on armed robbery and there was really a concession in the Court of Criminal Appeal that there was a significant case in relation to robbery and there would be a case in relation to armed robbery.

FRENCH CJ:   So, just let me get this straight.  The order would be - if we simply quashed the conviction it would then be open to the Director of Public Prosecutions to lay a fresh indictment on armed robbery?

MR BABB:   Yes.

FRENCH CJ:   There would be no need for a general retrial order?

MR BABB:   I would ask that the Court quash the conviction and order a retrial generally and that would leave me with the capacity to present an indictment on a new trial, taking into account any reasons of this Court which I perceive would prohibit me from presenting an indictment in relation to armed robbery with wounding.

BELL J:   But Mr Game’s point in relation to armed robbery with wounding, as I understand it, is the jury must have had a doubt in relation to the elements of that offence having regard to the way murder was left.

MR BABB:   Armed robbery with wounding, yes.

BELL J:   I thought a moment ago you were contemplating that it would be open to you ‑ ‑ ‑

MR BABB:   No, I am sorry, your Honour, if I said that, I misspoke.  I would, in accordance with any judgment of this Court, likely present an indictment for armed robbery.

BELL J:   Yes, I understand, Mr Babb.

FRENCH CJ:   I was just wondering about the appropriate – it may be a matter of form more than substance – the appropriateness of a retrial on the included offence, which was not on the indictment, if one simply quashed the conviction.  On the basis that armed robbery with wounding was, in effect, not available because of the acquittal on the murder charge, then the only other option would be met if the plea is in bar.

MR BABB:   Yes, and I would ask your Honours to consider the relevant passages that I have referred to in Taufahema which, in my submission, do go to that point of where the public interest justifies the allowance of a new case to be run in relation to serious offending.

BELL J:   But Taufahema was not this case.  Here, what is being proposed on one analysis is that there would be a new trial on a count for which the appellant had not previously been indicted.

MR BABB:   No, but was available as a common law alternative ‑ ‑ ‑

BELL J:   As a common law alternative, yes.

MR BABB:   Just to clarify and correct one thing, my learned friend said it was an alternative to murder – in fact, there was a further charge.

BELL J:   I see.

MR BABB:   It would not be an alternative to an alternative.  It would be the common law alternative to the second count on the indictment.

BELL J:   Yes.

MR BABB:   Thank you.  They are my submissions.

FRENCH CJ:   Yes, Mr Game.

MR GAME:   Just in relation to this last question, we say for the reasons I gave before that he is entitled to not just a quashing of the conviction but an acquittal on the armed robbery with wounding, whatever else happens.  Spies, incidentally, was a case where there was a dishonesty offence and a corroborations evidence, but they were both on the indictment, and the retrial was ordered on the corroborations offence.  It was not a case where there was an order, in effect, enabling a new trial on another count completely.

We say we do know the reasons for the verdict in this case and one should work according to those reasons.  Now, I just wanted to make a couple of points.  First, paragraphs 46 and 49 of Justice Leeming’s judgment, which they say, well, there was other evidence, but this evidence of these admissions of the statement of Filihia was an important part of the case, but something has to be remembered, which is Ms Coffison’s evidence was unreliable in some rather important respects.  She denied any knowledge about the knife at all in respect of the events of that particular night, so there is a limit to how far one could take her evidence, and that is just a forensic point.

Now, we say that if you approach the question of whether or not the representations were made in circumstances that made it likely that the representation is reliable the way the respondent puts it and the way the trial judge did in this case, then one simply, shall I say, says he looked as though he was not rehearsed, he looked as though he was not – he looked as though he decided, but not to the underlying representations, then you would be depriving yourself of the very discipline required in ascertaining this question.  So it just could not possibly be correct, the approach to construction that is being put by the respondent.

A couple of other short points - we say it is quite clear with respect to the CCTV that he has been take through things that dispute his account and are shown to contradict it, and one cannot get away from that.  In respect of your Honour the Chief Justice’s question earlier on about section 65(2)(c) as compared with (2)(d), what is happening is that because “against the interests” is an indicia of – may be an indicia of reliability, it is put a little lower, the probability that the representation is reliable in (d)(ii).  But one does not then just ignore the nuances of “against the interests” when one comes to examine the representations.  So yes, (d)(i) is doing significant work but one does not just shut down the shop there and say, well, they were against interest and therefore reliable.  That is all I wanted to say.

GAGELER J:   Sorry, could I just ask.

MR GAME:   Yes, certainly.

GAGELER J:   I am sorry to go back to a really basic question, but there were four exhibits that were admitted ‑ ‑ ‑

MR GAME:   Yes, your Honour.

GAGELER J:   ‑ ‑ ‑ which her Honour dealt with in the judgment, and at paragraph 61 she said that she was satisfied that the circumstances made it likely that the representations, and I take it all of the representations in all of the exhibits, “are reliable within the meaning of s 65(2)(d)”.

MR GAME:   Yes, it means everything that he said in the statements and in the record of interview.  That all by itself shows that this exercise was fatally flawed.

GAGELER J:   Thank you.

MR GAME:   If the Court pleases.

FRENCH CJ:   Thank you, Mr Game.  The Court will adjourn briefly to consider what course it should take.

AT 12.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.20 PM:

FRENCH CJ:   The Court will reserve its decision.  The Court will adjourn until 10 o’clock tomorrow morning.

AT 12.21 PM THE MATTER WAS ADJOURNED