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

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…

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

Case: [2016] HCATrans 138
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Sio against his conviction for murder. The appeal concerned the admissibility of certain evidence and the fairness of the trial.

The central legal issues before the High Court were whether the trial judge erred in admitting evidence obtained from Mr Sio's mobile phone, and whether the admission of this evidence, along with other aspects of the trial, rendered the proceedings unfair, thereby justifying an acquittal or a new trial. Specifically, the Court had to determine if the evidence was obtained in contravention of statutory provisions and, if so, whether its admission was nonetheless justified under the relevant evidentiary rules.

The High Court analysed the provisions of the *Crimes Act 1914* (Cth) concerning the search and seizure of electronic devices. It considered the principles governing the admissibility of evidence obtained in breach of statutory provisions, particularly the balancing exercise required by s 138 of the *Evidence Act 1995* (Cth). The Court found that the evidence obtained from the mobile phone was unlawfully obtained. However, it concluded that the admission of this evidence, when weighed against the probative value and the circumstances of its acquisition, did not render the trial unfair to the extent that it necessitated an acquittal. The Court also considered whether other aspects of the trial, when viewed cumulatively, resulted in a miscarriage of justice.

The appeal was dismissed.

Orders