Citation: R v Sinai (No 4) [2021] NSWSC 779
Court: Supreme Court of New South Wales
Date: 8 June 2021
Judge: R A Hulme J
Background
The accused stood trial for his alleged participation in a joint criminal enterprise to murder a man shot dead outside a café in Bankstown City Plaza in January 2018. The Crown alleged the accused had been present in a minivan that conducted reconnaissance of the area before the shooting and later collected the shooter as he fled the scene.
The accused's wife had previously pleaded guilty to being an accessory after the fact to the murder. She was the only witness who could give direct evidence placing the accused in the van. The Crown sought to call her at the retrial after the accused, under new legal representation, withdrew a concession made in the earlier trial that he had been in the van.
Two objections arose. First, the defence argued the Crown should be prevented from calling the wife at all because it had given late notice of its intention to do so. Second, the wife herself objected to giving evidence against her husband under the compellability provisions of the Evidence Act.
Legal Issues
- Whether the Crown should be prevented from calling the witness under s 146(1) of the Criminal Procedure Act 1986 (NSW) for failure to give adequate pre-trial disclosure of its intention to call her.
- Whether the wife could resist being compelled to give evidence under s 18 of the Evidence Act 1995 (NSW), on the basis that giving evidence would cause harm to her or her family that outweighed the desirability of that evidence.
Decision
Section 146 objection: Crown's late disclosure
Hulme J rejected the defence application to exclude the witness's evidence. He accepted the Crown's notice had been relatively late, but found it understandable that the Crown had not contemplated calling the wife as a prosecution witness until after her own guilty plea and sentencing. More significantly, the Crown's decision to call her arose directly from the accused's major change of position: having conceded his presence in the van throughout the first trial, the accused reversed that position under new representation, making the witness's evidence necessary.
The Judge also gave substantial weight to the defence's own pre-trial disclosure failures. The defence's response under s 143 of the Criminal Procedure Act had addressed the critical factual dispute about the accused's presence in the van with only the bare statement that "the accused denies having knowledge of the alleged murder." Hulme J described this as an "abysmal" and "desultory" response. In those circumstances, the accused was poorly placed to complain about the Crown's disclosure shortcomings.
Section 18 objection: compellability of the spouse
Under s 18 of the Evidence Act, a witness may object to giving evidence in criminal proceedings if the person is in a close personal relationship with the accused. A court may excuse the witness if it is satisfied the harm caused by giving evidence outweighs the desirability of having the evidence. The wife raised concerns about potential distress to the couple's children, possible retribution against her within the custodial environment, and damage to her relationship with the accused.
Hulme J was satisfied that some likelihood of harm existed, particularly in respect of the children, whose care arrangements involved the accused's family. However, he concluded this harm did not outweigh the desirability of the evidence. He found the harm was unlikely to be substantial or enduring, the risk of custodial retribution was not clearly established, and the impact on the marital relationship was speculative, especially given the wife's own acknowledgment that the accused would understand she was not giving evidence as a matter of personal choice. The subject matter of her evidence related to a fact the accused himself had previously been willing to concede, and the evidence went to a central issue in a very serious criminal prosecution.
Orders Made
• The objection to Ms Ah Keni giving evidence pursuant to s 146 of the Criminal Procedure Act 1985 (NSW) is rejected
• The objection by Ms Ah Keni to giving evidence pursuant to s 18 of the Evidence Act 1995 (NSW) is rejected
Key Takeaways
- Under s 146(1) of the Criminal Procedure Act 1986 (NSW), a court retains a discretion to permit a party to call a witness despite late disclosure, particularly where the need to call that witness arose from a significant change in the opposing party's case.
- A defendant's own failure to provide adequate pre-trial disclosure under s 143 is a relevant consideration when assessing a s 146 application to exclude Crown evidence. An inadequate defence response weakens the force of a complaint about the Crown's disclosure shortcomings.
- Where a person in a close personal relationship with an accused objects to giving evidence under s 18 of the Evidence Act 1995 (NSW), the court must weigh identified harms against the desirability of the evidence. The Supreme Court here found harm that was speculative or unlikely to be enduring did not tip the balance in the witness's favour.
- Sufficient weight was given to the fact that the Crown evidence went to proof of a central factual issue in a prosecution for a very serious crime, and that no viable alternative witness existed to prove that fact directly.
- A concession made by counsel in one trial does not bind the accused in a subsequent retrial, but withdrawing such a concession may have practical consequences for how the Crown constructs its case and which witnesses it considers necessary to call.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 142, 143, 146(1)
- Evidence Act 1995 (NSW), ss 18, 146
Cases
- R v A1 (No 2) [2019] NSWSC 663
- R v Ah Keni [2020] NSWSC 1848