R v Sinai

The emergence of the Crown's intention to call Ms Ah Keni

1. Ms Ah Keni pleaded guilty and has been sentenced for an offence of accessory after the fact to murder. She signed a statement of agreed facts in her sentence proceedings which included the substance of what is summarised above as well as a description of the various things she did to assist her husband and Mr Kelekolio after she became aware of the murder. The Crown Case Statement ('CCS') states that she became aware of the murder and their involvement by no later than the following day (CCS [44]).
2. In the trial that proceeded from the empanelment of a jury on 3 May 2021 there was no dispute that the accused was in the van. That trial ended on 6 May 2021 when Ms C Davenport SC informed the Court her instructions had been withdrawn. The jury was discharged the following day.
3. Given there was no issue about it, there was no need for the Crown to adduce any specific evidence that the accused was in the van during the time it was driven around the Bankstown central business district around the time of the murder. However, on 7 May 2021, the Crown foreshadowed to Mr Reslan, the accused's solicitor, that the Crown was considering calling Ms Ah Keni to give evidence at the next trial. On 20 May 2021 the Crown confirmed by email it intended to call Ms Ah Keni, stating: (T21.11) "That situation arises from the circumstance that the express concession of Ms Davenport SC, then for the accused, that the movements of the accused in the Nissan Elgrand on the day of the murder was not in dispute, has not been maintained. You have previously been served Ms Ah Keni's ERISP interview."
4. The email forwarded the agreed facts in Ms Ah Keni's sentence proceedings and said: (T21.19) "It is intended to adduce evidence from that witness consistent with that document."
5. Mr Tedeschi QC was retained in place of Ms Davenport SC and now appears for the accused. His instructions are that the accused was not in the van, or at least it is not conceded that he was. In either case, the Crown understandably considers it necessary to adduce evidence to establish the point.
6. The point is significant. If the Crown is able to prove the accused was in the van, that is a large step towards proof that he was a participant in a joint criminal enterprise with Arthur Kelekolio to kill the deceased.
7. There is some circumstantial evidence available to the Crown. For example, there is a link between the van and the accused by way of it being registered in his wife's name (Ms Ah Keni). Apparently, there is telephone cell-tower evidence that will suggest the accused was in Bankstown at the relevant time. Covertly recorded conversations in months subsequent to the murder contain references by the accused to the van in a way the Crown says shows his knowledge of its use in connection with the crime. Circumstantial evidence of these kinds may assist the Crown but may be the subject of alternative explanations that could dilute its worth.

Criminal Procedure Act, s 146 objection

1. Mr Tedeschi QC based part of the objection upon s 146(1) of the Criminal Procedure Act 1986 (NSW). It is in Ch 3 Pt 3 Div 3 which is concerned with "Case management provisions and other provisions to reduce delays in proceedings". It provides for discretionary exclusion of evidence sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with the requirements for pre-trial disclosure under the Division.
2. This basis of the defence objection stands alone from Ms Ah Keni's objection to giving evidence pursuant to s 18 of the Evidence Act 1995 (NSW). It was an objection which was made regardless of her attitude to giving evidence.
3. The Crown had filed and served its pre-trial disclosure notice pursuant to s 142 on 9 March 2021 and it was contended the Crown had not given notice of its intention to call Ms Ah Keni until Wednesday 2 June 2021. The latter date was corrected in the submissions of the Crown Prosecutor; as indicated above, it was on 7 May 2021 that the Crown had first foreshadowed calling Ms Ah Keni. Nevertheless, it was relatively late in the piece.
4. The other side of the coin in relation to a failure to comply with pre-trial disclosure obligations is the abysmal defence response filed on behalf of the accused. One of the requirements of a notice of defence disclosure provided in s 143(1) is that it contains the following: "(b) The facts, matters or circumstances on which the prosecution intents to rely to prove guilt (as indicated in the prosecution's notice under section 142) and with which the accused person intends to take issue".
5. The presence of the accused in the van in Bankstown at relevant times on the afternoon of 23 January 2018 was disclosed in the CCS and must obviously have been a matter of critical importance. However, the defence s 143 notice dated 30 March 2021 responded in relation to the facts, matters or circumstances with which the accused took issue by advising simply: "The accused denies having knowledge of the alleged murder."
6. With a desultory response like that, it ill-behoves the accused to complain about a failure by the Crown to comply with disclosure requirements.
7. I am satisfied that the Crown should not be prevented from calling Ms Ah Keni by the invocation of the power in s 146. It is true that the Crown did not give notice of its intention to call her when, prior to the filing of the defence response pursuant to s 143 of the Criminal Procedure Act it must have realised the need to have evidence proving the presence of the accused in the van. It is understandable that up until Ms Ah Keni pleaded guilty and was sentenced the Crown would not have contemplated calling her as a prosecution witness but beyond that point there appears to have been no contemplation either. It seems to have been the case that the parties were in discussion as to the witnesses it would be necessary for the Crown to call and the matters that would be in issue at the trial, at least by 9 April 2021. The Crown Prosecutor said he had been in discussion with Ms Davenport SC prior to that date and he was given to understand this matter was not in issue (T23.20).
8. It is also relevant that the Crown's proposal to call Ms Ah Keni has only arisen as a result of a major change by the accused in the manner in which he has chosen to conduct his defence. His position at the trial that commenced on 3 May but concluded prematurely on 7 May 2021 was that there was no dispute that he was in the van at relevant times on 23 January 2018. That trial had to be aborted when the accused adopted a completely different tack and decided to place that matter in issue. (Mr Tedeschi said it was his instructions that the course taken by Ms Davenport in relation to the matter was the product of confusion or misunderstanding. I do not intend any criticism of Mr Tedeschi, but it is difficult to understand how such confusion or misunderstanding could prevail for so long without correction by the accused or his instructing solicitor. In fact, the matter only arose and resulted in the withdrawal of instructions from Ms Davenport upon almost the completion of the Crown's presentation of the CCTV evidence to the jury when the accused must have appreciated, if he did not before, the significance of this evidence in the case against him.
9. I was not satisfied that the power to shut the Crown out from calling Ms Ah Keni pursuant to s 146 of the Criminal Procedure Act should be exercised in such circumstances.

The proposed evidence

1. The Crown has not obtained any form of proof of evidence from Ms Ah Keni. The Crown Prosecutor explained that was because after the need to call her was perceived by the Crown following the cessation of the first trial there was an indication from her lawyers that she would object to giving evidence. The Crown felt constrained in those circumstances from conferring with her (T24.1).
2. The Crown indicated it intended to adduce the evidence which appeared in paragraphs 12 to 19, part of 23 and paragraph 29 of Ms Ah Keni's agreed facts on sentencing. Given there was now a (previously undisclosed) issue as to voice identification, the Crown also intended to adduce evidence as to the identity of the speakers in conversations set out in paragraph 46 (where the speakers are said to be the accused and Ms Ah Keni).
3. Paragraphs 12 to 19 of the agreed facts refer to the accused and Ms Ah Keni being in the van travelling around the Bankstown area from around 2.44pm on 23 January 2018. It includes the van travelling down Bankstown City Plaza at around 2.46pm and slowing down as it passed the café where the deceased was seated at a table with two friends (para 14). At around 3.11pm to 3.18pm the van was near the intersection of Stanley and Leonard Streets, coinciding with the approximate time Arthur Kelekolio was in that vicinity (para 15-18). Paragraph 23 includes that the van proceeded to and parked in East Terrace after the apparent meeting with Mr Kelekolio in the vicinity of Stanley and Leonard Streets. A short time later, Ms Ah Keni and Ms Knowles alighted and went to the nearby St Vincent de Paul Society shop.
4. Paragraph 29 concerns an event the following day, 24 January 2018 when it is said that at 6.16pm the accused and Ms Ah Keni returned to East Terrace and stopped briefly in the same location near the St Vincent de Paul Shop before driving off again. (It is the Crown case that this was to check for CCTV cameras or anything else that might identify them or the van.)
5. The conversations set out in paragraph 46 are alleged to be between the accused and Ms Ah Keni on 6 March 2018 in which there is apparent concern expressed about the police having seized the van that day.
6. Mr Tedeschi expressed concern about not being aware of the evidence Ms Ah Keni would give and of the potential need for the defence to investigate the circumstances in which the statement of agreed facts came into being in her sentence proceedings. That appears to have fallen by the wayside by a combination of the Crown Prosecutor confirming he was intending to adduce viva voce evidence in lieu of a previously indicated intention to tender relevant portions of the statement of agreed facts, and by Ms Ah Keni being called to give evidence at a Basha-style voir dire on the afternoon of 7 June 2021.
7. Other submissions opposing Ms Ah Keni being compelled pursuant to s 18 of the Evidence Act were concerned with an apprehension of likely harm which would or might be caused to her or her relationship with the accused (s 18(6)(a)).
8. Ms Ah Keni was represented by Mr T Evers of counsel on the application. She gave evidence that she was married to the accused in 2009 in New Zealand where they had met. They now have six children ranging in age from 18 months to 14 years. They were all in her care before she went into custody last December to serve her sentence. Her non-parole period expires in December 2021.
9. The three youngest children now live with her husband's cousin in Sydney. She is expecting to have them with her soon when she enters the Mother's and Children's Program at Jacaranda Cottage at Emu Plains Correctional Centre. The second and third oldest children went to New Zealand three or four weeks ago to live with the accused's brother. She has tried to contact them by telephone, but her brother-in-law will not answer her calls. The eldest child is still with the accused's cousin in Sydney but is waiting on a passport to enable him to travel to New Zealand to live also with the accused's brother.
10. Ms Ah Keni generalised that she objected to giving evidence because "I believe will harm my relationship with my husband and also my kids" (T54.36). The specifics included a fear that the children were all with relatives of her husband and they would not let her see them if she gave evidence against him, although no-one had said that to her. She also feared that the children would hold it against her; they would hate her; they might think that their father is behind bars because of her. She also was concerned about what people in custody would say about her and what they may do to her (T55).
11. Ms Ah Keni was concerned that if she needed to go into protection because of concerns for her safety in gaol that would mean she could not have the minimum-security classification necessary to participate in the Mothers and Children's Program (T56). (I note that a brochure (Exh D on the voir dire) includes that Emu Plains CC is a minimum-security centre but whether or not that excludes a person on protection was not the subject of evidence. It may depend upon the degree of protection under which the person is placed (and assuming that becomes necessary).)
12. Ms Ah Keni also said she feared for her safety because her husband's brother (the one caring for the elder children) "is involved with the bikie gang and I know those people are really dangerous". In terms of her relationship with her husband, she feared that giving evidence "will break us up" (T58).
13. In response to questions by Mr Tedeschi QC, Ms Ah Keni said she thought her children would hate her when they were teenagers and older, and her husband's relatives in New Zealand would feel "angry". However, she agreed with the Crown Prosecutor that her husband would not have anybody do anything to hurt her on his behalf. She also agreed that the children would not blame her if all she did in giving evidence was tell the truth (T60-2).
14. Ms Ah Keni accepted that the issue was whether she should be compelled to give evidence and that it could be explained by her husband to his family and the children that it was not merely a matter of her choosing to give evidence and that she should not be blamed. She thought that might help (T62).
15. There was no controversy that Ms Ah Keni and the children had been assessed by psychologists as having vulnerabilities. The reports by the two psychologists, Ms Tracey Durrant and Ms Kris North, were tendered in Ms Ah Keni's sentence proceedings, but they are relevant on the current issue as well. Pertinent aspects were summarised in the sentence judgment: R v Ah Keni [2020] NSWSC 1848.
16. Assistance in the application of s 18 of the Evidence Act was provided by counsel handing up the judgment of Johnson J in R v A1 (No 2) [2019] NSWSC 663. It is useful generally but particularly with its survey of relevant judgments of other members of the Court in first instance decisions concerned with the provision.
17. It is accepted that the threshold in s 18(6)(a) is a low one in that it speaks of a "likelihood that harm would or might be caused". I am satisfied that the threshold is met in this case. The greater concern is in relation to intra-familial relationships. In circumstances where the question is whether Ms Ah Keni should be compelled to give evidence against her wishes it is unclear whether, and if so to what extent, there might be persons in custody motivated to commit acts of retribution.
18. Even assuming the correctness of speculation that Ms Ah Keni will need to go into protection and assuming that this will mean she will not be able to enter the Mothers and Children's Program, it has to be acknowledged that the period in question is significant but not overly lengthy. She has become eligible to enter the program six months after being sentenced and she has only six months left before she expects to be released on parole. (This is putting aside the outcome of an application for leave to appeal against sentence which I was told has been listed for hearing in August 2021.)
19. As to the possible harm to intra-familial relationships, something that did not receive attention in the submissions was the current state of such relationships. The current state includes that Ms Ah Keni is separated from her children because she is in custody serving a sentence because of a serious crime she admitted she committed, with her husband also being in custody awaiting trial in relation to the serious crime for which she provided him assistance after the fact. This is a state of affairs that exists completely separately from whether or not Ms Ah Keni is compelled to give evidence but nothing was placed before the court as to what the attitude of any of the children are to each of their parents in the light of it.
20. The issue then turns on whether I am satisfied that "the nature and extent of that harm outweighs the desirability of having the evidence given": s 18(6)(b). That requires a consideration of the non-exhaustive list of criteria in s 18(7).

Nature and gravity of the offence being prosecuted: s 18(7)(a)

1. The nature and gravity of the offence for which the accused is being prosecuted is an important aspect. I accept the submission of Mr Tedeschi that one must be careful about placing excessive weight on the consideration that the prosecution is for a charge of murder. Section 18 applies in all cases including where the charges are extremely serious so there is no warrant to exclude its application in cases such as this. However, Mr Tedeschi went on to submit that "it would be very hard to think of a case more deserving than this one where she ought to be allowed, permitted not to give evidence against her husband". That, with respect, is a significant overstatement.

Substance and importance of the evidence; the weight that is likely to be attached to it; and whether there is other evidence reasonably available: s 18(7)(b) and (c)

1. There is other evidence available to the Crown in relation to the issue of whether her husband was in the van around the time of the murder on 23 January 2018 as has been indicated earlier. However, the Crown would be greatly assisted by having Ms Ah Keni's direct evidence on the subject in addition to the circumstances upon which it would be confined to relying for the drawing of an inference to that effect. The jury are likely to attach significant weight to the direct evidence of Ms Ah Keni, even though it might be thought to be simply confirmatory of what may otherwise have been inferred.
2. I do not accept the proposition that it is a viable alternative for the Crown to call Mr Kelekolio. He is presently awaiting sentence and has given no indication of a preparedness to assist the prosecution. There are as yet no agreed facts and he has not previously provided a version of events that the Crown could confront him with if he was to be an unfavourable witness.

Nature of the relationship: s 18(7)(d)

1. The relationship is that between the witness and the accused; they are husband and wife.

Whether there would be disclosure of something passed in confidence from the accused to his wife: s 18(7)(e)

1. There is nothing of this nature involved in Ms Ah Keni's proposed evidence.

Conclusion

1. I was satisfied that the nature and extent of the harm that I was satisfied was likely might be caused did not outweigh the desirability of Ms Ah Keni giving evidence. I was not satisfied that the harm would be substantial or enduring in terms of how the reaction of the children may affect Ms Ah Keni. The possibility of retribution by others within the custodial environment is not at all clear. The affect upon the relationship between the accused and Ms Ah Keni is also somewhat speculative given her concession that he would understand she was not giving evidence as a matter of her personal choice and the evidence was primarily upon a matter that he was previously prepared to concede himself.
2. The primary issue about which the Crown wishes to adduce evidence from Ms Ah Keni is of significance in a prosecution for a very serious crime.
3. I was satisfied the balance fell very clearly in favour of requiring Ms Ah Keni to give evidence despite her objection.

Ruling

1. The foregoing are my reasons for holding that the objection to Ms Ah Keni giving evidence pursuant to s 146 of the Criminal Procedure Act 1985 (NSW) is rejected and the objection by Ms Ah Keni to giving evidence pursuant to s 18 of the Evidence Act 1995 (NSW) is also rejected.

Amendments 30 June 2021 - [16] - typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2021