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Court of Criminal Appeal 15 November 2017

Lai v R; Nguyen v R

[2017] NSWCCA 263

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION HEARSAY EVIDENCE OF CO WHETHER TO APPLY PROVISO

Citation: Lai v R; Nguyen v R [2017] NSWCCA 263
Court: Court of Criminal Appeal, New South Wales
Date: 15 November 2017
Judge(s): Hoeben CJ at CL, Latham J, N Adams J (reasons delivered by N Adams J)

Background

Two appellants were convicted by a jury in the District Court at Parramatta in May 2016 of aggravated robbery contrary to s 95(1) of the Crimes Act 1900 (NSW). The Crown alleged they were among four men who followed a gambling club patron home in the early hours of 31 March 2012, then kicked and punched him before stealing his wallet, a cheque, and his phone.

A central plank of the Crown case was a police interview (an ERISP) given by a co-offender, Binh Mai, who had pleaded guilty to the same robbery before the trial. In that interview, Mai confessed to his own involvement and implicated both appellants. However, Mai resiled from those statements at committal and failed to appear at trial despite being subpoenaed.

The trial judge admitted the ERISP under s 65(2)(d) of the Evidence Act 1995 (NSW), which provides an exception to the hearsay rule for certain representations made by unavailable persons. That ruling was made in reliance on the Court of Criminal Appeal's earlier decision in Sio v R [2015] NSWCCA 42. While the trial was still running, the High Court heard the appeal in Sio and subsequently overturned the CCA's approach.

  • Whether the trial judge erred in admitting the co-offender's ERISP as an exception to the hearsay rule under s 65(2)(d) of the Evidence Act 1995, given the High Court's subsequent ruling in Sio v The Queen (2016) 259 CLR 47
  • Whether the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied to preserve the convictions despite the error (that is, whether no substantial miscarriage of justice actually occurred)
  • Whether, if the proviso did not apply, the Court should order acquittals or a new trial

Decision

The Crown conceded on appeal that the trial judge had applied an erroneous approach to the s 65(2)(d) admissibility question. The Court of Criminal Appeal accepted that concession. Because the High Court decided Sio v The Queen after the trial judge made her ruling, she had no means of knowing her approach was incorrect at the time, but the error was nonetheless established.

The Court then considered whether the proviso should be applied. This required assessing whether, without the erroneously admitted ERISP, the remaining evidence was so compelling that no substantial miscarriage of justice had occurred. The balance of the Crown case rested on CCTV footage placing the appellants at the gambling club, sign-in records, witness accounts of the robbery, and an ERISP in which one appellant identified himself on CCTV stills. The Court concluded that the ERISP of the co-offender had added materially to the Crown case, and the proviso was not applied.

On the question of remedy, the Court declined to enter verdicts of acquittal. It found there was sufficient independent evidence to support a retrial and that the gravity of the offence, which carries a maximum penalty of 20 years' imprisonment and involved a serious physical assault on the victim, meant the interests of justice favoured a fresh trial rather than acquittals. The Court noted that both appellants had already served approximately four months of their sentences before being released on bail pending the appeal.

Orders Made

  • Appeals against conviction allowed
  • Convictions for aggravated robbery quashed
  • New trial ordered for each appellant on the charge of aggravated robbery

Key Takeaways

  • A conviction will not automatically be preserved simply because the trial judge's error arose from following the then-current state of appellate authority; if a higher court later overturns that authority, the error remains and must be assessed under the ordinary appeal principles.
  • Under s 6(1) of the Criminal Appeal Act 1912, the proviso can only sustain a conviction where the court is satisfied that no substantial miscarriage of justice has resulted; where erroneously admitted hearsay evidence materially strengthened the Crown case, that threshold is unlikely to be met.
  • Acquittals are not the automatic remedy when a conviction is quashed for evidentiary error. The Court of Criminal Appeal will order a retrial where sufficient independent evidence exists and the interests of justice support fresh prosecution.
  • The seriousness of the underlying offence is a relevant consideration when determining whether to order a retrial or enter acquittals following a successful appeal.
  • Admissibility of an unavailable co-offender's out-of-court statements under s 65(2)(d) of the Evidence Act 1995 must now be assessed in accordance with the approach confirmed by the High Court in Sio v The Queen (2016) 259 CLR 47, not the CCA's earlier formulation.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 22
- Crimes Act 1900 (NSW), ss 95(1), 98
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), ss 59, 65, 137, 165

Cases:
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 (central authority on s 65(2)(d))
- Sio v R [2015] NSWCCA 42 (CCA decision overturned by the High Court)
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- Youkhana v R [2013] NSWCCA 85