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Supreme Court 21 February 2007

R v SSA

[2007] NSWSC 111

Homicide
CRIMINAL LAW: EVIDENCE HEARSAY MURDER TRIAL TWO ACCUSED SEPARATE TRIALS

Citation: R v SSA [2007] NSWSC 111
Court: Supreme Court of New South Wales (Common Law Division)
Date: 21 February 2007
Judge(s): Hidden J

Background

The accused stood trial for the murder of a man stabbed at a Parramatta amusement parlour in July 2005. The Crown alleged the accused carried out the stabbing during an incident involving himself and a companion, John Siose, with the pair said to have acted in a joint criminal enterprise. Siose faced a separate, subsequent murder trial based on the same enterprise.

Two witnesses who knew both men had made statements to police squarely implicating the accused in the stabbing, but both witnesses resiled from those accounts at trial. The Crown was granted leave to cross-examine them under s 38 of the Evidence Act, but their credibility remained seriously in question.

The Crown called Siose as a witness during the accused's trial, even though Siose had not yet faced his own proceedings. After giving only his name, Siose refused to give any further evidence. The Crown then sought to tender portions of Siose's videotaped police interview (an ERISP) against the accused.

  • Whether Siose, having refused to give evidence, was "not available" as a witness within the meaning of the Evidence Act, so as to enliven the hearsay exception in s 65.
  • Whether the statements made by Siose in his police interview were "against his interests" at the time they were made, as required by s 65(2)(d).
  • Whether public policy considerations relating to the use of accomplice evidence required the evidence to be excluded, particularly given Siose had not yet been tried or sentenced.
  • Whether the probative value of the evidence was outweighed by the risk of unfair prejudice to the accused, under ss 135 and 137 of the Evidence Act.
  • Whether the accused's position was made worse by the fact of separate trials rather than a joint trial.

Decision

Hidden J ruled the portions of Siose's ERISP admissible. Because Siose had refused to give evidence beyond his name, he was "not available" as a witness under cl 4(1)(f) of Part 2 of the Dictionary to the Evidence Act, satisfying the threshold requirement for the hearsay exception in s 65(2)(d). The decision in R v Suteski (2002) 56 NSWLR 182, where the Court of Criminal Appeal upheld similar evidence in analogous circumstances, provided clear support for this approach.

On the question of whether Siose's statements were against his interests, the defence argued that Siose had not admitted complicity in the killing. Hidden J rejected this, relying on s 65(7)(b) of the Evidence Act: a representation is taken to be against a person's interests if it tends to show that person has committed an uncharged offence. Siose's account of presenting his knife toward the deceased constituted an assault, and the Crown intended to allege a joint criminal enterprise to assault at his forthcoming trial. It was not necessary to isolate each question and answer to determine whether each was individually inculpatory.

The policy concern, drawing on R v Booth [1982] 2 NSWLR 847, was that an accomplice should ordinarily be sentenced before being called as a Crown witness. Hidden J acknowledged this concern but found it did not apply with the same force where a co-accused had refused to give evidence at all. The Crown had signalled its intention to tender the interview if Siose refused to testify, and that course had been available from the outset of the separate trial process.

On prejudice, Hidden J accepted that Siose's statements were unsworn and untested by cross-examination, and were made while Siose was a suspect. However, the probative value of the evidence was found to be significant and not outweighed by the risk of unfair prejudice. Any residual prejudice was held to be adequately addressed by jury directions along the lines approved in Suteski. Hidden J described the decision as difficult and troubling, acknowledging it cut across longstanding principles of criminal procedure, but concluded the Evidence Act and the case law governing it warranted admission.

Orders Made

• The recorded interview evidence of Mr Siose is admitted

Key Takeaways

  • A co-accused who enters the witness box but refuses to give substantive evidence is "not available" within cl 4(1)(f) of the Dictionary to the Evidence Act, opening the path to admission of prior representations under s 65(2)(d).
  • Under s 65(7)(b) of the Evidence Act, a representation is against the maker's interests if it tends to show commission of an uncharged offence, even where the maker stops short of admitting the primary offence charged. Statements revealing conduct amounting to an assault can satisfy this requirement.
  • Separate trials do not automatically disadvantage an accused relative to a joint trial. Where co-accused are tried separately from the outset, a co-accused who refuses to testify is compellable and, if silent, the s 65 hearsay exception may be available against the first accused.
  • The public policy principle from R v Booth, favouring sentencing of an accomplice before calling them as a Crown witness, does not straightforwardly apply where the co-accused refuses to give any evidence.
  • Residual unfair prejudice arising from untested, unsworn statements by a co-accused does not necessarily require exclusion; jury directions of the kind approved in R v Suteski can be an adequate remedy where the probative value is significant.

Legislation and Cases Referenced

Legislation:
- Evidence Act (NSW), ss 17(3), 38, 62, 65(2)(d), 65(7), 135, 137; Dictionary, Part 2, cl 4(1)(f)

Cases:
- R v Suteski (2002) 56 NSWLR 182
- Lee v The Queen (1998) 195 CLR 594
- R v Booth [1982] 2 NSWLR 847
- R v Ambrosi [2004] NSWCCA 23