Citation: R v Sio [2013] NSWSC 1412
Court: Supreme Court of New South Wales
Date: 10 September 2013
Judge(s): Adamson J
Background
The accused stood trial on the Crown's allegation that he had arranged for an associate, referred to here as the co-offender, to commit an armed robbery at a brothel in Clyde in the early hours of 24 October 2012. The Crown alleged the accused drove the co-offender to the premises, where the co-offender entered armed with a knife, intending to steal money to pay a drug debt owed to the accused. During the robbery, the brothel manager was fatally stabbed.
The co-offender was arrested the same evening after police recognised him from CCTV footage. He was interviewed by police over two days, producing two electronically recorded interviews (ERISPs) and two signed statements. In those records, he made admissions about the stabbing, identified the accused by name and mobile phone number, and selected the accused's photograph from a photo array.
By the time of the trial, the co-offender had pleaded guilty to murder and armed robbery with wounding. When brought to court for the voir dire (a preliminary hearing to test admissibility), he refused to take an oath or affirmation and refused to answer any questions, despite being warned of contempt of court consequences.
Legal Issues
- Whether the co-offender, by refusing to give evidence, was "unavailable to give evidence" within the meaning of the Evidence Act 1995 dictionary
- Whether each of the four records (two ERISPs and two statements) satisfied one or more of the hearsay exceptions in section 65 of the Evidence Act 1995, which apply when the maker of a prior representation is unavailable
- Whether, even if admissible under section 65, the evidence should be excluded under section 137 (where probative value is outweighed by unfair prejudice to the accused) or refused under the discretionary exclusion in section 135
Decision
Issue 1: Unavailability
Adamson J held that the co-offender was "unavailable to give evidence" under the Act. The Crown had taken all reasonable steps to compel him, including obtaining a court order under section 77 of the Crimes (Administration of Sentences) Act 1999, bringing him to court, cautioning him about contempt, and arranging independent legal advice for him. His persistent refusal satisfied the statutory test for unavailability.
Issue 2: Admissibility under section 65
The court examined each record against the conditions in section 65(2), which permits admission of a prior hearsay representation when the maker is unavailable and certain criteria are met. Adamson J found that the records satisfied multiple limbs. The representations were made to police in the context of a formal custodial interview, shortly after the events described, and the co-offender had personal knowledge of the matters he described. The court was satisfied the records met the requirements of section 65(2)(b) and/or other applicable paragraphs. The court also considered but rejected arguments based on the co-offender's drug use at the time, noting that custody management records and three police officers all assessed him as coherent and not visibly affected by drugs during the interviews.
Issue 3: Exclusion under sections 135 and 137
Adamson J declined to exclude the evidence. Applying the principle from cases including R v Suteski and Papakosmas v The Queen, the court distinguished between evidence that is prejudicial in the colloquial sense (it inculpates the accused) and evidence that risks unfair prejudice by inviting irrational or improperly weighted reasoning. The court found no such unfair prejudice here. Particular weight was given to the fact that the co-offender had already pleaded guilty to both charges, meaning cross-examination was unlikely to have produced contradictions. The court indicated it would give appropriate jury directions at the time the evidence was admitted and again at summing up, consistent with the approach approved in Suteski.
Orders Made
- The following evidence was ruled admissible, subject to any further objections not covered by the reasons:
- ERISP of the co-offender conducted on 24 October 2012
- ERISP of the co-offender conducted on 25 October 2012
- Two statements made by the co-offender on 25 October 2012
Key Takeaways
- A witness who refuses to take an oath or affirmation and refuses to answer any questions can satisfy the "unavailability" requirement under the Evidence Act 1995, provided the tendering party has taken all reasonable steps to compel the evidence, including obtaining a court attendance order and arranging legal advice for the reluctant witness.
- Under section 65 of the Evidence Act 1995, prior representations made by an unavailable person to police in a formal recorded interview can be admitted as hearsay exceptions, provided the relevant conditions (including the maker's personal knowledge and the circumstances of the statement) are established.
- Apparent drug use at or near the time a statement was made does not automatically render it inadmissible; the court will assess the totality of evidence bearing on the maker's capacity, including contemporaneous observations by custody staff and investigators.
- The distinction between colloquial prejudice (evidence that supports the prosecution case) and unfair prejudice within sections 135 and 137 remains significant: evidence is not excluded merely because it strongly inculpates an accused.
- Appropriate judicial directions to the jury, given both at the time hearsay evidence is admitted and at summing up, are a recognised mechanism for managing any residual risk of unfair prejudice from untested prior representations.
Legislation and Cases Referenced
Legislation
- Crimes (Administration of Sentences) Act 1999, s 77
- Evidence Act 1995, s 3, s 12, s 16, s 17(3) s 65, 65(2)(b), s 65(2)(c), s 65(2)(d), s 65(2)(d)(iii), s 65(7), s 135, s 137
Cases
- Festa v The Queen [2001] HCA 72; 208 CLR 593
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- R v Cook [2004] NSWCCA 52
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
- R v XY [2013] NSWCCA 121