Citation: Regina v Toai Siulai [2004] NSWCCA 152
Court: New South Wales Court of Criminal Appeal
Date: 14 May 2004
Judge(s): Sperling J, Kirby J, Bell J
Background
The appellant and his brother were jointly tried in the District Court before Latham DCJ on charges of aggravated break and enter and assault with intent to rob, arising from an incident in August 2001. Both pleaded not guilty. The jury returned guilty verdicts on both counts against both accused.
During the trial, an Alibi Notice served on behalf of both accused was admitted into evidence. The notice, served approximately four months after the incident while both men were in custody and after consultation with counsel, indicated the accused were not present at the scene. At trial, the appellant did not give evidence, while his co-accused brother did.
The central dispute on appeal concerned how the trial judge handled the Alibi Notice: whether it should have been admitted at all, and whether the directions given to the jury about its use were legally correct.
Legal Issues
- Whether the Alibi Notice should have been excluded from evidence in the Crown's case against the appellant
- Whether, if the notice was not to be left to the jury as evidence of consciousness of guilt, the trial judge was obliged to exclude it altogether to avoid the risk of unprompted misuse by the jury
- Whether the jury directions given regarding the Alibi Notice and the accused's denials of guilt were adequate, including whether they conformed with the model directions in Zoneff v The Queen
- Whether any established errors caused a substantial miscarriage of justice, or whether Rule 4 of the Criminal Appeal Act applied to refuse leave
Decision
On Ground 1 (admissibility of the Alibi Notice), the court held the notice was admissible as evidence relevant to the credit of both accused. For the co-accused brother who gave evidence, it was admissible under s 106 of the Evidence Act 1995 because the notice could be construed as asserting he was absent from the scene, contrary to his trial evidence. For the appellant, who had told police he had no involvement, the notice was admissible under s 108A to go to his credit regarding those prior statements.
The judges expressed differing views on whether the trial judge erred in failing to exclude the notice once she decided not to leave it to the jury as evidence of consciousness of guilt. Kirby J considered that the risk of unprompted jury misuse, in the absence of full Edwards directions, meant the notice should have been excluded on that basis. Sperling J assumed, without deciding, that there was error. All three judges agreed, however, that the point was never squarely put to the trial judge by defence counsel, explicably as a tactical decision, and that this weighed against granting leave on appeal.
On Ground 2 (directions on lies), the court accepted that the directions given by her Honour did not fully conform with the model direction endorsed by the High Court in Zoneff. However, the court was not persuaded that any realistic prospect of a different outcome existed. The Crown case was described as overwhelming: the complainant's evidence was credible, the evidence of the triple-zero call was compelling, and the co-accused's account of events was characterised as implausible. The absence of a full Edwards warning about the various innocent reasons for lying was considered of limited consequence given the circumstances, particularly that the notice was served four months after the incident, after legal consultation, and without any element of panic or spontaneous reaction.
The court applied Rule 4, which allows the Court of Criminal Appeal to dismiss an appeal despite an established error where no substantial miscarriage of justice has occurred. Leave to argue both grounds was refused.
Orders Made
- Appeal dismissed
Key Takeaways
- An alibi notice may be admissible as evidence going to credit under the Evidence Act 1995 even where the trial judge declines to leave it to the jury as evidence of consciousness of guilt, provided a proper basis for admission exists.
- Where a trial judge admits a lie or prior inconsistent statement but does not leave it as evidence of consciousness of guilt, the appropriate jury direction is that endorsed in Zoneff v The Queen, not a full Edwards direction; failure to follow the model direction may constitute error.
- Rule 4 of the Criminal Appeal Act 1912 operates to deny leave where, notwithstanding established error, there is no reasonable prospect the outcome would have differed and no substantial miscarriage of justice occurred.
- A tactical decision by trial counsel not to press an objection can be a relevant consideration when an appellate court assesses whether leave should be granted to run the argument on appeal.
- In dismissing the appeal, the Court of Criminal Appeal noted that the reduced significance of an Edwards warning can be relevant when the allegedly false statement was made months after the events, following legal advice, and in circumstances bearing no hallmarks of panic or spontaneous fabrication.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 106, 108A
- Crimes Act 1900 (NSW), ss 97, 112(2)
- Criminal Appeal Act 1912 (NSW), Rule 4
- Criminal Procedure Act 1986 (NSW)
Cases:
- Zoneff v The Queen (2000) 200 CLR 234
- Edwards v The Queen (1993) 178 CLR 193
- Papakosmas v The Queen (1999) 196 CLR 297
- Soma v The Queen (2003) 212 CLR 299
- R v BD (1997) 94 A Crim R 131
- Shaw v The Queen (1952) 85 CLR 365
- Killick v The Queen (1981) 147 CLR 565
- The Queen v Chin (1985) 157 CLR 671
- R v Abusafiah (1991) 24 NSWLR 531
- R v Moussa (2001) 125 A Crim R 505
- R v Hines (1991) 24 NSWLR 737
- R v Murray (1987) 11 NSWLR 12