Citation: R v Sinai (No 5) [2021] NSWSC 780
Court: Supreme Court of New South Wales
Date: 23 June 2021
Judge: R A Hulme J
Background
The accused stood trial for murder arising from events on 23 January 2018. His wife, who had already pleaded guilty to being an accessory after the fact to murder and was serving her sentence, was called to give evidence by the Crown. She had initially objected to giving evidence against her husband, but that objection was rejected in related proceedings (R v Sinai (No 4) [2021] NSWSC 779).
The wife's evidence had an unusual quality. On 7 June 2021, she gave evidence in the jury's absence (on the voir dire) placing both herself and her husband in a van at the critical time. When she appeared personally before the jury on 18 June 2021, however, she testified that her husband was not in the van. She later acknowledged she had lied in her earlier evidence, saying she had done so to protect herself.
The defence made strenuous efforts throughout the trial to conceal from the jury that the wife had been prosecuted, pleaded guilty, and been sentenced. She appeared before the jury in civilian clothing to disguise the fact that she was in Corrective Services custody. This created a set of particularly unusual circumstances for the court's assessment of the s 165 warning request.
Legal Issues
- Whether the court should give the jury an unreliability warning under s 165(1)(d) of the Evidence Act 1995 (NSW) in respect of the wife's evidence, on the basis that she might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings.
- Whether there were "good reasons" under s 165(3) not to give such a warning, notwithstanding that s 165 was technically engaged.
Decision
Hulme J accepted that s 165(1)(d) applied to the wife's evidence, as she could reasonably be supposed to have been criminally concerned in the events underlying the murder charge. The section was therefore engaged in principle. However, s 165(3) provides that a warning need not be given if the judge considers there is good reason for not doing so.
The court identified several features that made the case highly unusual. Ordinarily, an unreliability warning alerts the jury to the risk that an accomplice witness giving evidence for the Crown might shade their testimony to minimise their own role and exaggerate that of others. Here, however, the witness had given evidence before the jury that was favourable to the defence, not the Crown. It was the witness herself who had openly admitted that her earlier, more incriminating evidence was a lie.
The court found that giving the warning would have been artificial, speculative, and potentially confusing to the jury. Defence counsel had not asked the wife why she believed lying on the voir dire would protect her, leaving the question of her motive unexplored. A warning incorporating the standard accomplice rationale would therefore have invited the jury to speculate on a basis unsupported by the evidence. The court noted that the situation was further complicated by the defence's own decision to conceal from the jury the wife's guilty plea and sentence, which removed context that might otherwise have shed light on the reliability of her shifting accounts.
Hulme J concluded that the jury would nonetheless be directed to examine the wife's evidence carefully, given that it constituted the only direct evidence placing the accused in the van. A formal s 165 unreliability warning, in these circumstances, would have added complexity without a clear evidential foundation to support it.
Orders Made
No orders were made in this decision.
Key Takeaways
- Section 165(1)(d) of the Evidence Act 1995 (NSW) is engaged where a witness might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings, even when that witness gives evidence favourable to the defence rather than the Crown.
- Under s 165(3), a judge retains discretion to decline to give an unreliability warning where there is good reason to do so, and that discretion is not merely formal.
- A standard accomplice warning premised on the risk of a witness minimising their own role may be inapt where the witness has herself admitted to earlier untruthfulness and has given evidence beneficial to the accused.
- Where defence strategy results in the jury being kept unaware of a witness's criminal history and sentence, that strategic choice can itself contribute to the difficulty of formulating a meaningful and accurate unreliability direction.
- The absence of cross-examination on a witness's stated reasons for lying can undermine the basis for a s 165 warning, leaving any such direction without evidentiary grounding and risking impermissible speculation by the jury.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 165 (unreliable evidence warnings, including ss 165(1)(d), 165(2), 165(3), and 165(4))
Cases:
- R v Sinai (No 4) [2021] NSWSC 779 (related ruling on the wife's objection to giving evidence)