R v Sio

The circumstances surrounding the ERISPs and the statements 4Following Mr Gaudry's death, the CCTV footage from the brothel was distributed to police stations in the Sydney area. Officers at Hurstville identified Mr Filihia, who was known to them by reason of a condition on a grant of bail for an unrelated offence, which required him to report to that station. Mr Filihia reported to the Hurstville police station at 6.35 pm on 24 October 2012. 5Between the time of the killing and his arrival at the Hurstville police station Mr Filihia had had his head shaved in order to avoid detection. However, this did not prevent police recognising him when he reported. Upon his arrival he was arrested and interviewed about the killing. 6The interview lasted for about an hour and a half. It appears that Mr Filihia might not have appreciated, until informed by police at Hurstville, that the man he had stabbed in Clyde was dead. 7Mr Filihia answered questions asked of him in an apparently lucid way. He appeared to be relatively forthcoming and admitted that he was the person who stabbed Mr Gaudry and that he had gone to the brothel with the intention of standing over him for money in order to pay Mr Sio for the drugs he had provided to him. 8He admitted that he used methylamphetamine, known as ice, and said that he had smoked a bong of ice immediately prior to going into the brothel in order to give him the confidence to do the job. He described himself as being "messed up" and "mixed up" by which he meant that he was on drugs. He said that he sat in the back of the Red Commodore in which Mr Sio had driven him to the brothel because he was paranoid. 9When he was asked whether he had spoken to the woman who was available to provide sex services he answered: "A. 213 Yeah, but um, I was too messed up to, like I was just too messed up to hear what she had to say. Q 213 Do you remember what you said to her? A No." 10Mr Filihia said that there was no one else in the Red Commodore apart from himself and the driver. The Crown case is that there was a woman in the front passenger seat and therefore Mr Filihia's statement was unreliable in this respect. 11Mr Filihia was asked in the ERISP about his purpose in attending the brothel. These questions followed admissions he had earlier made about being dropped outside the brothel in order to get money by threatening Mr Gaudry with a knife. The following exchange occurred: Q 531 Well what were you going there for to have sex or to rob the place? A No just for a head job, to see if I could get, get a cheap head job. 12Shortly after this exchange, Mr Filihia admitted that his intention was to go and stand over Mr Gaudry for money. 13Mr Filihia initially referred to Mr Sio as "Jacob" but later, in the course of the interview, he slipped up and referred to him as "Dan". He subsequently explained, in one of the statements made on 25 October 2012, that he had done so "because I did not want to come over as a rat". Nonetheless, in the course of the ERISP on 24 October 2012, he told police the colour and make of the car in which he had been delivered to the brothel and the mobile phone number of Mr Sio, which he had committed to memory. 14Mr Filihia expressed considerable remorse in the course of the ERISP on 24 October 2012 as well as grief for what had occurred. 15Towards the end of the ERISP Mr Filihia was shown stills of the CCTV footage that had been taken in the brothel. He identified himself as the assailant in the footage. 16Towards the conclusion of the ERISP Mr Filihia was asked whether he was responsible for stabbing Mr Gaudry, to which he answered "No comment". At this time Mr Filihia was rubbing his eyes and apparently crying. He had already made relevant admissions. 17On the following day, 25 October 2012, Mr Filihia selected a photograph of Mr Sio from 16 photographs that were shown to him. This selection was filmed on the second ERISP. He also explained why he had referred to Mr Sio, whom he had known as "Dan" as "Jacob". These are the matters to which he deposed in the two statements made on that day. 18The Crown called three police officers in support of its application on the voir dire. 19Senior Constable Benjamin Fitzgerald was the custody manager at Hurstville Police Station on the night of 24 October 2012. He gave evidence that he asked Mr Filihia whether he wanted to contact a lawyer and had cautioned him. He also told Mr Filihia that police specialist forensic officers wished to do a forensic examination on his hands which was carried out that evening. Senior Constable Fitzgerald opined, in cross-examination, that Mr Filihia did not appear to be affected by drugs when he was arrested at the police station. Mr Filihia himself had denied being affected by drugs at that time. 20The Custody Management Records were tendered. They recorded that Mr Filihia did not complain of intoxication and that no signs of intoxication were observed. The comment is recorded under "Brief Assessment": "POI [person of interest] SEEMS FINE AND HAPPY TO ASSIST" 21The Custody Management Records also recorded under "Comments on Questionnaire" that Mr Filihia: RESPONDED TO ALL QUESTIONS SEEMED TO THINKG ABOUT HIS ANSWERS BEFORE REPLYING TO MY QUESTIONS. 22Detective Inspector Neil Hallinan gave evidence that he attended Hurstville Police Station at 7 pm on 24 October 2012 and spoke with Mr Filihia. He explained to him that he had been arrested for the murder of Mr Gaudry who had been stabbed to death at about 5.40 am that morning at a brothel in Clyde. During the short period of time in which Detective Inspector Hallinan was with Mr Filihia he did not, according to the officer, appear to be affected by any drug and he was able to be understood. The officer described Mr Filihia as: "quite coherent during our conversation". 23Detective Sergeant Luke Scott, who conducted the ERISP on 24 October 2012, also gave evidence. He said that Mr Filihia "definitely" did not appear to be affected by alcohol or drugs at any time he was with him.

Mr Filihia's attitude to giving evidence 24On 2 August 2013 Mr Filihia pleaded guilty to the murder of Mr Gaudry and also to armed robbery with wounding. He is in prison. He has not yet been sentenced. 25By order made under s 77 of the Crimes (Administration of Sentences) Act 1999, Mr Filihia attended Court for the voir dire on 9 September 2013. He refused to take either an oath or affirmation. He refused to answer any questions at all relating to the matter. He was cautioned that he risked punishment for contempt of Court. Mr Winch of counsel obliged the Court by coming at short notice to advise Mr Filihia as to the consequences of his refusal. However, Mr Filihia remained adamant that he would not answer any questions. 26It was in these circumstances that the Crown sought to tender the two ERISPs and the two statements referred to above on the basis that, within the meaning of the Evidence Act 1995 (the Act), he was "unavailable to give evidence".

Relevant provisions of the Act 27Part 1 of the Dictionary of the Act relevantly provides: associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for: (a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose, or (b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted 28Clause 4 of Part 2 of the Dictionary of the Act relevantly provides: (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: . . . (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact. 29Section 12 of the Act provides: Competence and compellability Except as otherwise provided by this Act: (a) every person is competent to give evidence, and (b) a person who is competent to give evidence about a fact is compellable to give that evidence. 30Section 17 of the Act provides: Competence and compellability: defendants in criminal proceedings (1) This section applies only in a criminal proceeding. (2) A defendant is not competent to give evidence as a witness for the prosecution. (3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant. (4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3). Note. Associated defendant is defined in the Dictionary. 31Section 65 of the Act relevantly provides: Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: . . . (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was: (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. . . . (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends: . . . (b) to show that the person has committed an offence for which the person has not been convicted, or . . . 32Section 135 of the Act relevantly provides: General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or . . . 33Section 137 of the Act relevantly provides: Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Summary of parties' submissions 34The Crown submitted that Mr Filihia was compellable to give evidence in the trial since he is an associated defendant who was to be tried separately from Mr Sio: s 12 and s 17(3) of the Act. The Crown submitted that Mr Filihia was relevantly unavailable to give evidence within the meaning of cl 4(1)(g) of Part 2 of the Dictionary and that accordingly s 65(2) of the Act applied. The Crown relied on each of s 65(2)(b), (c) and (d). 35The Crown contended that the ERISPs and statements were made shortly after the asserted fact occurred and they were made in circumstances that make it unlikely that the representation was a fabrication: s 65(2)(b). The Crown submitted the ERISPs and statements were made in circumstances that make it highly probable that the representation is reliable: s 65(2)(c). The Crown also submitted that the representation was against the interests of the person who made it at the time it was made because it tended to show that Mr Filihia had committed an offence for which he had not been convicted and that it was made in circumstances that make it more likely that it was reliable. 36The Crown submitted that the circumstances in which Mr Filihia made the representations in the ERIPS and the statements included the following: (1)As referred to above, he had been arrested the same day as the offence when he reported for bail; (2)He had had his hair shaved earlier that day to avoid detection but had nonetheless been apprehended; (3)He was remorseful for what had happened. 37Mr Watson, who appeared on behalf of the accused, did not contend that Mr Filihia was not unavailable. However, he submitted that neither s 65 (2)(b), (c) nor (d) applied. He did not take any point as to the notice requirements for s 65 under s 67 of the Act. 38Mr Watson submitted that Mr Filihia must have appreciated, from the time of his arrest when he reported for bail, that there was overwhelming evidence that he had stabbed and killed Mr Filihia which was sufficient to identify him. He contended that, through the course of the ERISP on 24 October 2012, Mr Filihia had endeavoured to cast blame onto Mr Sio, whom he knew as "Dan" but had lied about his name, by referring to him as "Jacob". He submitted that, in these circumstances, the representations made by Mr Filihia could not be regarded as against interest. 39Mr Watson also submitted that Mr Filihia's statements in the ERISP were made at a time when he was intoxicated by drugs and his recollection of what had occurred was "severely distorted". In oral submissions he described the representations made by Mr Filihia in the first ERISP as: "a mish-mash of answers given which are a mixture of lies and inaccuracies." 40Mr Watson contended that there was positive evidence that some of the representations had been fabricated and that therefore s 65(2)(b) did not apply and that the evidence was not likely to be reliable. He emphasised Mr Filihia's use of the name "Jacob" rather than "Dan" as being an instance of Mr Filihia's unreliability and also as an example of fabrication. He also referred to Mr Filihia's statement that the only person in the Red Commodore, other than himself, was "Jacob", who was driving. Mr Filihia said that he sat in the back seat. The only inference is that no one was in the front passenger seat. Mr Watson referred to the Crown case that there was a passenger in the front seat. Mr Watson contended that Mr Filihia's statement that he placed the knife on the front seat was also a fabrication, or at least unreliable. 41Mr Watson also relied on Mr Filihia's statement that he did not know where he was going when he left the motel where he was then residing with his partner and four children and submitted that this, too, was a fabrication because Mr Filihia later admitted that he knew he was going to a brothel. 42Mr Watson also submitted that, for similar reasons, the representations were unreliable and that I could not be satisfied of s 65(2)(c). He contended that, in the circumstances, the representations were not statements against interest within the meaning of s 65(2)(d) and that they were not made in circumstances that made it likely that the representations were reliable. 43Mr Watson submitted further that I should exercise my discretion against the admission of the evidence pursuant to s 135 or s 137 of the Act. He said that, were I to allow the evidence, there would be unfair prejudice created by the lack of opportunity to challenge Mr Filihia's accounts by cross-examination.

Reasons 44I am satisfied that cl 4(1)(g) of Part 2 of the Dictionary applies; in other words, I am satisfied that all reasonable steps have been taken by the Crown to compel Mr Filihia to give evidence, but without success. 45In order to determine whether any of the paragraphs in s 65(2) relied upon by the Crown apply, it is necessary to consider the representations in context, rather than separately. In R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 (Suteski) Wood CJ at CL, Sully and Howie JJ agreeing, said at [93]: An argument was also advanced that each question and answer should be considered separately, and that, unless standing alone, it amounted to a representation against interest, it did not qualify for admission. In my view this involved altogether too narrow a proposition. I see no reason why the representations should not be considered in context, that is, in association with the other answers which, when read together, constitute an admission or answer against interest, that is, so far as they tended to prove that Sakisi had committed a crime. 46As to s 65(2)(b), the representations in the ERISPs and the statements were made shortly after the asserted fact, since they were made on the same day and the following day. The issue is whether they were made in circumstances that made it unlikely that the representation is a fabrication. 47On the one hand, Mr Filihia appears to have been taken by surprise by his arrest when he reported for bail and was also shocked to learn, or to have it confirmed, that Mr Gaudry had died as a result of being stabbed. He gave considerable detail in the course of the ERISP as to what he had done prior to the killing and subsequent to it, as well as the circumstances surrounding the act as well as the act itself. Nonetheless, on the other hand, the "circumstances" of an offender making representations which also implicate a co-offender in the course of an interview with police at a police station are not usually, as the Crown conceded, regarded as "circumstances that make it unlikely that the representation is a fabrication", although they may be. 48I do not regard the use of a false name by Mr Filihia as tainting the whole of the ERISP, although it was, admittedly, a fabrication, the purpose of which was to protect Mr Sio from detection. The lie that there were only two people in the Red Commodore, including Mr Filihia, appears to have been designed to serve the same purpose. 49I reject Mr Watson's submission that Mr Filihia's ingestion of drugs prior to the commission of the offence had the effect of substantially distorting his recollection and necessarily made what he said in the ERISP unreliable. Indeed although Mr Filihia admits using drugs at the time, the details he was able to give about the sequence of events and locations and what occurred in the prelude and immediate aftermath of the killing suggests that he has a reasonably good recollection of the events and can give appropriate detail. His inability to recall speaking with the woman who was to provide sex services to him is a signal instance of lack of recollection. That he was able to articulate the occasion for his lack of memory of a particular detail and the reason for it bespeaks reliability rather than the contrary. 50I reject Mr Watson's submission that Mr Filihia was still under the influence of drugs at the time of the ERISP. I accept the evidence of the three police officers that they did not detect any signs of intoxication. Nor are such signs evident in the ERISP itself. Although Mr Filihia is at the outset withdrawn and sombre, this is consistent with his appreciation that he has killed a man whom he intended to rob and that he has been arrested. His demeanour throughout the ERISP does not appear to be inappropriate. 51Because of my view that the ERISPs and statements are admissible under s 65(2)(d), it is not necessary for me to express a concluded view on s 65(2)(b) although I consider it to be arguable that the evidence is admissible on that ground. 52In determining whether a representation was against the interests of the person who made it at the time it was made, the Crown has the benefit of the deeming provision in s 65(7) since the representations made tend to show that Mr Filihia has committed an offence for which he had not, at that time, been convicted. 53I reject Mr Watson's submission that the representations were not against interest because Mr Filihia had, effectively, been caught red-handed at the outset and was, throughout the ERISP trying to sheet home the blame to the driver of the Red Commodore. This submission is at odds with s 65(7) and also with what was said in Suteski at [94] which rejected the proposition that a statement which may have had another purpose (in that case, to serve the interests of the maker's girlfriend) could not also be a statement against the interests of the maker of the statement. 54Accordingly, the question arises whether the representation was made in circumstances that make it likely that the representation is reliable within the meaning of s 65(2)(d)(ii) of the Act. In making this assessment, I am not assessing the credibility of Mr Filihia's evidence since this remains within the province of the jury: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [56] per Spigelman CJ, Simpson and Adams JJ agreeing, referring to R v Cook [2004] NSWCCA 52 at [43] per Simpson J; see also R v XY [2013] NSWCCA 121. I am required to assess whether the circumstances make it likely that the representation is reliable. 55The representations were made on the same day of the incident at a time when Mr Filihia was not necessarily expecting to be apprehended and interviewed, although he must have appreciated that there was a substantial risk of apprehension. His answers were, in the main, forthcoming. I did not detect any indication that he had rehearsed, or thought out, how best to present the facts in order to advance his interests by minimising his involvement. His recollection can be taken to be fresh by reason of the short time between the events and the interview. 56His response at the end of the interview to the request that he take part in an identification parade provides a further indication that he had decided to be as forthcoming as possible in order to assist him on sentence. He was asked whether he wanted to take part at Q 672, following which the exchange occurred: A672 Should I or shouldn't I? Q673 It's up to you, you're not obliged to. A Would it help me out in court or would it be - - - DETECTIVE SERGEANT SCOTT Q674 That's not up to [us to] say, mate. A Yeah. [Emphasis added.] 57His preparedness to answer questions thoughtfully and apparently without regard to self-incrimination is evident from the ERISP. He was quietly spoken and courteous throughout and appeared to answer willingly. Although he gave a false name, Jacob, for Mr Sio, his dissembling was neither clever nor, apparently, pre-meditated, since he gave Mr Sio's mobile phone number, which he had memorised. He described the colour and make of the car Mr Sio was driving. 58He answered Q648: "Do you mind if we wrap this up soon boys?" 59This answer was given after Mr Filihia had been shown the stills from the CCTV which the Crown tendered on this application. He appeared to be substantially affected by what he saw and by the knowledge that the man he had stabbed was dead. He was asked by police whether he wanted a break at Q651, to which he answered: "No, no, no, no just, I just feel, I just feel sad, I just feel yeah." 60By the time Mr Filihia had expressed a wish to have the interview over, he had been questioned for about one and a half hours, during which he had answered about 700 questions relating to what had occurred that morning. In these circumstances his desire to have the interview over does not, in my view, reflect any unwillingness to be forthcoming. 61I am satisfied, by reason of the matters referred to above that the circumstances make it likely that the representations are reliable within the meaning of s 65(2)(d) of the Act. 62The further question arises whether I ought exclude the evidence in the exercise of my general discretion under s 135 or the requirement imposed to refuse to admit evidence in the circumstances specified in s 137 of the Act. 63The two ERISPs and two statements have substantial probative value. The reasons for my conclusion that they are likely to be reliable have been set out above. Further, Mr Filihia's evidence against the accused is significant since he was the person with whom, on the Crown case, the accused made the arrangement that Mr Filihia rob the deceased and the person to whom the accused supplied the knife. Mr Filihia also made representations about the debt he owed to the accused that the accused required to be repaid from the proceeds of the armed robbery. 64Against this, Mr Watson has identified the prejudice to the accused that Mr Filihia's evidence cannot be challenged by cross-examination. This circumstance is contemplated by the terms of s 65. However, it is a relevant consideration in the exercise of the discretion under s 135 of the Act or determining the balancing exercise whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused for the purposes of s 137 of the Act: Suteski, at [126] per Wood CJ at CL, Sully and Howie JJ agreeing. 65The "danger of unfair prejudice" is a reference to the risk that a jury might, in some way, misuse the evidence. Gleeson CJ said of prejudice in Festa v The Queen [2001] HCA 72; 208 CLR 593 at [22]: But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility. [Footnotes omitted.] 66Examples given in Suteski at [116] include the risk that the evidence might provoke an irrational or emotional response in the jury. Other examples include the risk that, on hearing the evidence, a fact-finder might be satisfied with a lower degree of probability than would otherwise be required: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [92] per McHugh J. I do not consider the ERISPs or the statements are likely to cause such a response in the jury. 67Further, there is no particular reason to suppose that, if cross-examined, Mr Filihia would contradict himself, particularly as he has already pleaded guilty to both charges of murder and armed robbery with intent to wound. Accordingly, it is speculative whether the accused's case would be stronger if he were able to cross- examine Mr Filihia. 68I am not persuaded that there is any reason why, if I gave directions, at the time the evidence is admitted (at [130]) and also at summing up (at [131]), of the type given by the trial judge in Suteski the danger of unfair prejudice would outweigh the probative value of the evidence such as to require its rejection under s 137. For similar reasons I decline to exercise my discretion to refuse to admit the evidence under s 135 since I do not consider that its probative value is substantially outweighed by any danger that it might be unfairly prejudicial to the accused. 69Accordingly, I rule that the following evidence be admitted, subject to any further objections made by the accused not covered by these reasons: (1)ERISP of Richard Filihia on 24 October 2012; (2)ERISP of Mr Filihia on 25 October 2012; and (3)Two statements made by Mr Filihia on 25 October 2012. 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: 24 September 2013