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Court of Criminal Appeal 31 March 2015

Sio v R

[2015] NSWCCA 42

Also reported as (2015) 249 A Crim R 533
Assault & violenceTheft & property
CRIMINAL LAW CONVICTION APPEAL ARMED ROBBERY JOINT CRIMINAL ENTERPRISE WHETHER JURY’S VERDICT UNREASONABLE HEARSAY RULE

Citation: Sio v R [2015] NSWCCA 42
Court: Court of Criminal Appeal, NSW
Date: 31 March 2015
Judges: Leeming JA (principal judgment); Johnson J and Schmidt J agreeing

Background

The appellant was convicted by jury of robbery in company causing wounding or grievous bodily harm under s 98 of the Crimes Act 1900 (NSW), after driving a co-offender to a brothel in Clyde, western Sydney. The co-offender entered the brothel alone, robbed and fatally stabbed the manager, and the appellant then picked him up and drove away from the scene. The co-offender pleaded guilty to murder and armed robbery.

The co-offender had given a detailed electronically recorded interview to police on the day of the offence and made a supplementary statement the following day. In those materials, he identified the appellant as the driver, said the appellant had planned the robbery and supplied the knife, and identified him in a police parade. By the time of the appellant's trial, the co-offender refused to take any oath or answer any questions, making him "unavailable" as a witness.

The Crown relied on the co-offender's recorded interview and statement as hearsay evidence under the Evidence Act 1995 (NSW). The trial judge admitted the materials, and the appellant was convicted. He sought leave to appeal on two grounds: that the hearsay materials were wrongly admitted, and that the verdict was unreasonable.

  • Whether the co-offender's electronically recorded police interview and supplementary statement were properly admitted under s 65(2)(d)(ii) of the Evidence Act 1995 (NSW), specifically whether the circumstances of the representations made it likely they were reliable.
  • Whether the jury's verdict was unreasonable and unsupported by the evidence within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW).

Decision

Admissibility of the co-offender's interview and statement: The Court upheld the trial judge's admission of the materials under s 65(2)(d) of the Evidence Act 1995 (NSW). That provision permits the admission of hearsay evidence from an unavailable person where the representation was against the maker's interest and was made in circumstances that made it likely the representation was reliable. It was not in dispute on appeal that the co-offender was unavailable, nor that the representations were against his interest. The sole contested issue was whether the reliability requirement in s 65(2)(d)(ii) was satisfied.

Leeming JA found no error in the trial judge's reasoning. The interview took place on the same day as the offence, while the co-offender's recollection was fresh. His account appeared spontaneous rather than rehearsed, he agreed to participate in an identification parade at the end of the interview, and he subsequently corrected his use of a false name for the appellant. The Court characterised these as features supporting the finding that the circumstances made reliability likely. The appellant also raised the co-offender's possible drug-affected state at interview, but that challenge had not been maintained on appeal. Leeming JA confirmed that the reliability assessment under s 65(2)(d)(ii) is directed to the circumstances in which the statements were made, not an independent evaluation of whether the statements were in fact true.

Unreasonable verdict: The Court dismissed this ground as well. The Crown case rested on several interlocking strands: CCTV footage placing the appellant's vehicle at the scene, the co-offender's recorded identification of the appellant as the driver and planner, the appellant's own knowledge of the knife (corroborated by a third party who found the knife in a wardrobe), and evidence that the appellant supplied the knife and explained the brothel layout to the co-offender. Leeming JA applied the established test from M v The Queen (1994) and SKA v The Queen (2011): the question is whether it was open to the jury to be satisfied beyond reasonable doubt, not whether the appellate court might have reached a different conclusion. The Court was satisfied it was open to the jury to convict the appellant of participating in a joint criminal enterprise to commit an armed robbery, and the verdict was not unreasonable.

Orders Made

  • Leave to appeal granted.
  • Appeal against conviction dismissed.

Key Takeaways

  • Under s 65(2)(d)(ii) of the Evidence Act 1995 (NSW), the reliability inquiry focuses on the circumstances in which the representation was made, not on a separate judicial assessment of whether the content of the statement was actually true.
  • Where a co-offender's police interview is given on the same day as the offence, contains apparently spontaneous answers, and is followed by a voluntary identification parade, those features can together satisfy the requirement that the representation was made in circumstances making reliability likely.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal reaffirmed that an appellate court does not ask whether it would have convicted, but whether it was open to the jury to be satisfied of guilt beyond reasonable doubt on the evidence as a whole.
  • A co-offender who has pleaded guilty but not yet been sentenced may still be found "unavailable" for hearsay purposes under s 65(1) where that person refuses to take an oath or answer any questions at trial, even after receiving legal advice about the consequences of silence.
  • Corroborating evidence from independent witnesses can support the jury's reliance on admitted hearsay, reinforcing the reasonableness of a guilty verdict in a joint criminal enterprise case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), ss 65, 67, 135, 137, 165
- Evidence Act 1977 (Qld), s 93B
- Evidence Amendment Act 2007 (NSW), Sch 1

Cases:
- M v The Queen [1994] HCA 63; 181 CLR 487
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Osland v The Queen [1998] HCA 75; 197 CLR 316
- Huynh v The Queen [2013] HCA 6; 87 ALJR 434
- R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
- R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326
- Gardner v The Queen [2003] NSWCCA 199
- R v Robertson [2015] QCA 11
- R v Uittenbosch [2013] QCA 96
- R v Sio [2013] NSWSC 1412 (primary judge's ruling)
- Warren v Coombes [1979] HCA 9; 142 CLR 531
- House v The King [1936] HCA 40; 55 CLR 499