Citation: R v Sio (No 2) [2013] NSWSC 1413
Court: Supreme Court of New South Wales
Date: 16 September 2013
Judge(s): Adamson J
Background
The accused stood trial for murder and armed robbery with wounding. The Crown alleged he was either a party to a joint criminal enterprise with a co-offender to commit armed robbery, or an accessory before the fact. It was common ground that the accused remained outside in a motor vehicle while the co-offender entered a brothel armed with a knife and killed the deceased. The co-offender had already pleaded guilty to murder and armed robbery with wounding.
Earlier in the same trial, the Crown had successfully argued on a voir dire (a hearing conducted in the absence of the jury to resolve a legal question) that the co-offender was "unavailable" within the meaning of the Evidence Act 1995, allowing his recorded interview and statements to be tendered as evidence. The accused's legal team then sought to subpoena the co-offender to attend court and give evidence for the defence, making him available for Crown cross-examination.
This decision concerned a renewed application for that subpoena, made after the defence solicitor swore an affidavit indicating the co-offender was now willing to be called as a defence witness, though not as a Crown witness.
Legal Issues
- Whether the court should issue a subpoena requiring the co-offender (a person in custody) to attend and give evidence for the defence
- Whether there was a sufficient risk that the co-offender would refuse to answer Crown cross-examination, causing the trial to miscarry
- How that risk could be appropriately managed before the subpoena was issued
Decision
Adamson J accepted the contents of the defence solicitor's affidavit at face value, as the evidence was unchallenged. The solicitor deposed that the co-offender told her he was willing to be subpoenaed as a defence witness and understood he would face Crown cross-examination. However, her Honour was not persuaded that his position had genuinely changed since the previous week, when he had made clear to the court in person that he would not cooperate.
Her Honour identified a significant concern: the co-offender may not have fully appreciated the difference between answering non-leading questions from defence counsel and being required to answer all Crown cross-examination questions, including those going to his credibility. Defence counsel fairly conceded that if the co-offender answered defence questions but then refused Crown cross-examination in front of the jury, the trial could miscarry.
Given that risk, Adamson J declined to revisit the subpoena question unless the risk of a mistrial could first be mitigated. Her Honour determined that the appropriate mechanism was to order the co-offender brought to court under section 77 of the Crimes (Administration of Sentences) Act 1999 and to conduct an examination on the voir dire. That procedure would allow both defence counsel and the Crown to question him in the absence of the jury, so the court could assess whether his willingness to cooperate extended to answering Crown cross-examination before any jury exposure occurred.
Orders Made
- Order under section 77 of the Crimes (Administration of Sentences) Act 1999 that Richard Filihia attend court on 17 September 2013 to give evidence.
Key Takeaways
- Where a witness in custody has previously indicated an unwillingness to answer questions, a court is not bound to accept a subsequent expression of willingness at face value, particularly when the witness may not have understood the full scope of their obligations in cross-examination.
- The risk of a trial miscarrying, if a witness answers defence questions but refuses Crown cross-examination in front of the jury, is a legitimate and weighty consideration in determining whether to issue a subpoena.
- Conducting an examination on the voir dire before the jury is exposed to the witness is a recognised mechanism for assessing a reluctant witness's genuine willingness to cooperate, thereby mitigating mistrial risk.
- Section 77 of the Crimes (Administration of Sentences) Act 1999 provides a pathway for compelling a person in custody to attend court to give evidence, independently of the subpoena process.
- A distinction exists, which witnesses may not appreciate, between answering non-leading questions from the party calling them and being required to answer all questions in cross-examination, including those directed at credibility.
Legislation and Cases Referenced
Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), s 77
- Evidence Act 1995 (NSW), including the Dictionary, Part 2, clause 4 (definition of "unavailable")
Cases
- R v Sio [2013] NSWSC 1412 (companion decision, same trial)