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Court of Criminal Appeal 20 December 2002

R v Suteski

[2002] NSWCCA 509

Also reported as (2002) 56 NSWLR 182
HomicideFraud & dishonesty
CRIMINAL LAW PLEA OF NOT GUILTY FORM 1 OFFENCES OBTAIN BENEFIT BY DECEPTION EXCEPTION TO HEARSAY ERISP EVIDENCE

Citation: R v Suteski [2002] NSWCCA 509
Court: NSW Court of Criminal Appeal
Date: 20 December 2002
Judge(s): Wood CJ at CL; Sully J; Howie J

Background

The appellant was an accounts payable clerk who had been systematically defrauding her employer of approximately $285,000 over a period of roughly seven months. When she became aware that her immediate supervisor had grown suspicious of her activities, she decided to have him physically attacked to remove him from the workplace. She recruited three associates to carry out the assault.

On the night of 20 December 1999, one of those associates armed himself with a knife and a hammer. When the supervisor walked past him, the associate struck him on the head with the hammer and then stabbed him six times, causing his death. The appellant was not physically present at the killing.

The appellant was found guilty of murder as an accessory before the fact, on the basis that she had entered a joint criminal enterprise to have the victim seriously harmed, and that she had at least contemplated as a real possibility that grievous bodily harm might be inflicted. She was sentenced to 22 years' imprisonment for the murder, with a concurrent sentence of 4 years and 6 months for the fraud offences. She appealed against both conviction and sentence. The Crown separately appealed against the leniency of the fraud sentences.

  • Whether the trial judge erred in admitting the electronic record of interview (ERISP) of a co-accused (Sakisi) as evidence of the truth of its contents, given that Sakisi refused to give evidence at trial
  • Whether the ERISP was properly admitted under the hearsay exception in s 65(2)(d) of the Evidence Act 1995 (NSW) as a representation against interest
  • Whether the trial judge correctly applied the s 137 balancing exercise before admitting the ERISP, weighing probative value against prejudicial effect
  • Whether the jury directions on joint criminal enterprise murder and common purpose murder were adequate
  • Whether the verdict of guilty of murder was unreasonable or unsupported by the evidence
  • Whether the 22-year sentence for murder was manifestly excessive
  • Whether the Crown's appeal against the leniency of the fraud sentences should be entertained and upheld

Decision

Admissibility of the ERISP (Grounds 1)

Sakisi had pleaded guilty to an accessory offence and refused to give evidence at both the committal and the trial. The Court confirmed he was "unavailable to give evidence" within the meaning of the Evidence Act 1995, a point the defence accepted. The ERISP was held admissible under s 65(2)(d) as a representation against interest: any statement by Sakisi that tended to implicate himself in a joint criminal enterprise with the appellant fell within that exception.

On the s 137 balancing exercise, the trial judge identified three relevant factors: the appellant's inability to cross-examine Sakisi; his status as an accomplice with a girlfriend also implicated; and an allegation that he may have been affected by drugs during the interview. The third factor had not been pursued at trial and was unsupported by evidence. Subject to the excision of portions involving second-hand hearsay and unduly leading questions, the Court found that the ERISP's probative value was significant and not outweighed by its prejudicial effect. The trial judge also gave adequate directions under s 165 about Sakisi's role as an accomplice and the inability to cross-examine him.

Jury Directions on Murder (Ground 2)

The Court found no error in the trial judge's directions, including a reformulation, on both joint criminal enterprise murder and common purpose murder. The directions adequately conveyed what the Crown was required to prove, and this ground was dismissed.

Unreasonable Verdict and Sentence (Grounds 3 and Sentence)

The Court was not persuaded that the verdict was unreasonable on the admissible evidence. On sentence, the Court granted leave to appeal but dismissed the appeal, finding that the 22-year term was not manifestly excessive given the very considerable criminality involved and the absence of meaningful mitigating circumstances. The Crown's appeal against the fraud sentences was contingent on the conviction or murder sentence being disturbed. As neither appeal succeeded, the Crown appeal was also dismissed.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed
  • Crown appeal against sentence dismissed

Key Takeaways

  • Under s 65(2)(d) of the Evidence Act 1995 (NSW), an out-of-court statement made by an unavailable witness is admissible as a representation against interest where it tends to implicate the maker in a joint criminal enterprise, even where the maker is a co-accused who refuses to give evidence.
  • In applying the s 137 balancing exercise, a trial judge must weigh probative value against prejudicial effect. Portions of an ERISP involving second-hand hearsay or unduly emotive leading questions may be excised while leaving the balance admissible.
  • The Court of Criminal Appeal confirmed that jury directions on joint criminal enterprise murder and common purpose murder are to be assessed as a whole, including any reformulations given during trial. No single imprecision will ground an appeal where the overall directions were adequate.
  • A sentence of 22 years' imprisonment for murder as an accessory before the fact was upheld where the offending involved a calculated plan to have a supervisor killed to conceal a large-scale workplace fraud, and no significant mitigating factors were present.
  • Where a Crown sentence appeal is expressly limited to contingency (that is, brought only in the event that the primary conviction or sentence is disturbed), the Court may dismiss it without reaching the merits once the primary appeals fail.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW) 1900, s 409
- Criminal Appeal Act (NSW) 1912, s 6
- Criminal Procedure Act (NSW) 1986, s 46
- Evidence Act (NSW) 1995, ss 59, 62, 65, 67, 135, 137, 165, 192

Cases
- Bakerland Pty Limited v Coleridge [2002] NSWCCA 30
- Gilbert Adam v The Queen (2001) 75 ALJR 1534
- Johns v The Queen (1979) 145 CLR 108
- Jones v The Queen (1997) 71 ALJR 538
- Papakosmas v The Queen (1999) 196 CLR 297
- M v The Queen (1994) 181 CLR 487
- Markby v The Queen (1978) 140 CLR 108
- McAuliffe v The Queen (1995) 183 CLR 108
- R v Ambrosoli [2002] NSWCCA 386
- R v Anderson and Morris [1966] 2 QB 110
- R v Blick [2000] NSWCCA 61
- Regina v Clark [2001] NSWCCA 494
- R v Duong (1992) 61 A Crim R 140
- R v GK (2001) 53 NSWLR 317
- R v Lisoff [1999] NSWCCA 364
- Olbrich v The Queen (1999) 199 CLR 270
- Ordukaya v Hicks [2000] NSWCA 180
- R v Serratore (1999) 48 NSWLR 101
- R v Lockyer (1996) 89 A Crim R 457
- R v Wooley (1989) 42 A Crim R 418