Sio v The Queen [2016] HCA 32

Sio v The Queen [2016] HCA 32 - HCA 2016 case summary — Zoe

[17]

As to the charge of murder, the case for the Crown, as it was left to the jury, was one of constructive murder by way of a joint criminal enterprise to commit armed robbery with foresight on Mr Sio's part of the possibility of a wounding by the use of the knife by Mr Filihia. The prosecution case of armed robbery with wounding was put on the basis of joint criminal enterprise to commit armed robbery with foresight on Mr Sio's part of the possibility of the use of the knife.
At trial, there were formal admissions on behalf of Mr Sio that Mr Filihia robbed Mr Gaudry while armed with a knife, that Mr Filihia stabbed and wounded Mr Gaudry, and that, as a result, Mr Gaudry died.
Ms Gaudiosi, an employee of the operator of the brothel, gave evidence that Mr Sio asked her to help him "do a robbery" at the brothel. She said that she told Mr Sio that a weapon would not be required to commit the robbery. She produced a drawing that she said Mr Sio made of the brothel layout and a handwritten note that said "keep tabs on money that [Mr Gaudry's] holding", which she recognised as being Mr Sio's writing.
The knife used by Mr Filihia to kill Mr Gaudry belonged to Mr O'Hare, who was a friend of Ms Coffison. The knife had been kept at her home. Mr O'Hare gave evidence that he had heard Mr Sio and Ms Coffison discussing plans to rob a brothel, and noticed his knife missing from its place in Ms Coffison's lounge room about two weeks before the robbery. Mr Sio had visited Ms Coffison's house previously.
Ms Coffison gave evidence that, on the morning of the robbery, after she had smoked ice with Mr Filihia and Mr Sio, Mr Filihia asked if he could come with them and if he could commit the robbery. She said that after the robbery, she was removing a plastic bag from Mr Sio's car when Mr Sio asked if he could put a few things in the bag. She agreed. She said she later put the bag in her closet without looking into it. She said that one week after the robbery, after she had given a statement to the police, she discovered the knife in the plastic bag and handed it over to police.

[18]

Parts of the scene at the brothel at the time of the murder of Mr Gaudry were captured on CCTV footage, which was distributed to police stations throughout Sydney. Mr Filihia reported to the police station at Hurstville in the early evening of the day of the murder, in obedience to a condition of his bail for an unrelated offence. Mr Filihia had shaved his head between the time of the offence and his attendance at the police station, but police recognised him from the CCTV footage and arrested him.
Police then conducted an Electronically Recorded Interview of a Suspected Person ("ERISP") with him. During the interview, Mr Filihia said that only he and another man were in the car at the scene of the robbery. It later emerged that this was untrue: Ms Coffison was sitting in the front passenger's seat. Mr Filihia said that the other man's name was "Jacob", except once when he referred to the man as "Dan". Importantly for present purposes, he said that "[Mr Sio] already had [the knife] in his car" in answer to a question as to where he got the knife. Later, he said that, after the robbery, he threw the knife onto the front passenger's seat of the car.
On 25 October 2012, Mr Filihia participated in an identification parade from a photo array in which he identified Mr Sio as the man, Dan or Danny, who was the driver of the car. This procedure was also conducted as an ERISP**[4]**.
On the same day, Mr Filihia prepared two supplementary statements in which he corrected his earlier statement. He said that the real name of the man he referred to as "Jacob" was "Danny or Dan". More importantly, he reiterated: "[I]t was Danny who put me up to robbing the brothel. He gave me the knife and drove me there."[5]
At trial, Mr Filihia was called to give evidence on a voir dire but refused to answer any questions. The Crown tendered as evidence the two ERISPs of Mr Filihia dated 24 and 25 October 2012, as well as the two statements of Mr Filihia dated 25 October 2012. Objection was taken to the tender of the two ERISPs and the two statements on the basis that the evidence was hearsay evidence and therefore inadmissible by virtue of s 59 of the Evidence Act.
Section 65 of the Evidence Act provides for an exception to the exclusion of hearsay evidence. Section 65 relevantly provides:

[43]

Mr Sio submitted that, because the Court of Criminal Appeal failed to consider the offence actually charged, it failed to conclude that the conviction was unreasonable notwithstanding that the acquittal on the charge of murder necessarily encompassed a verdict of not guilty of armed robbery with wounding. The acquittal on the charge of murder meant that the jury were not satisfied beyond reasonable doubt that Mr Sio foresaw the possibility that the victim might be wounded by use of a knife by Mr Filihia. But the jury had to be satisfied beyond reasonable doubt that Mr Sio foresaw that very possibility in order to convict him of armed robbery with wounding. Because the jury were evidently not satisfied beyond reasonable doubt that Mr Sio had foresight of the possibility of wounding with the knife, the only reasonable verdict in respect of the charge of armed robbery with wounding was not guilty.
Mr Sio submitted that the conviction should be quashed and a verdict of acquittal entered. Having regard to the complete coincidence of elements in issue on the constructive murder and armed robbery with wounding charges, it was said that any retrial on armed robbery with wounding would "necessitate the presentation by the Crown either of the case on which the accused had substantially been acquitted or of a new case which had not been made at the first trial"[24].
The Crown submitted that the basis of the jury's acquittal is unknown. The Crown argued that Mr Sio's submission that the jury's acquittal on the charge of murder was based on a finding about foresight of the use of the knife by Mr Filihia was not the only possible explanation of how the jury arrived at their verdict; it was possible that the jury had reached a "merciful verdict". Mr Sio responded that the jury's verdict cannot be explained on the basis that the jury were satisfied that he was guilty of murder but decided to be "merciful". This aspect of Mr Sio's argument must be accepted.
The possibility of a "merciful verdict" may be available as a reasonable explanation for inconsistent verdicts where the jury can be taken to have ignored the directions of the trial judge**[25]. Here, there is no reason to think that this occurred. In light of the directions which the jury were given, there is no inconsistency between the verdicts which the jury returned: the two verdicts are readily explicable on the basis that the jury applied the directions which they were given. Foresight of the use of the knife was identified by the trial judge's directions as an element in issue on the charge of murder, whereas the jury were not directed that it was an element of the charge of armed robbery with wounding. The jury's verdict of guilty on the charge of armed robbery with wounding was consistent with the conscientious discharge by the jury of their duty in conformity with the directions they were given. In Gilbert v The Queen[26]**, Gleeson CJ and Gummow J said:

[50]

Mr Sio argued that a substituted verdict should not be entered in this case. It was submitted that, if s 65(2)(d)(ii) of the Evidence Act had been properly applied in the courts below, Mr Filihia's statements that Mr Sio had given him the knife would not have been in evidence against him. On that basis, it was said that this Court cannot conclude, in conformity with s 7(2), that the jury "must have been satisfied" that Mr Sio gave Mr Filihia the knife, or was otherwise aware that Mr Filihia was in possession of the knife when he entered the brothel.
As has been seen, the evidence of Ms Gaudiosi, if accepted, tends to support the inference that Mr Sio would not have needed to include the knife in his plans for the robbery; and Ms Coffison's evidence, if accepted, supports the inference that Mr Filihia became a participant in the robbery only after the plans had been made. The Court of Criminal Appeal was of the view that the jury might have entertained a reasonable doubt about whether Mr Sio was aware of the knife even if Mr Filihia's statements were in evidence**[30]**. This Court cannot conclude that the jury must have been satisfied beyond reasonable doubt of Mr Sio's guilt of armed robbery if the evidence of Mr Filihia's representation were excluded.
Mr Sio submitted that if special leave is granted, and the appeal allowed, on the s 65(2)(d) ground, the evidentiary foundation for any findings in respect of armed robbery implicit in the jury's verdict is undermined, and no substituted verdict of guilty of armed robbery or order for a new trial for the offence of armed robbery is appropriate. It is, therefore, necessary to determine the issue which Mr Sio raised on his application for special leave in order to resolve the question whether it is open to this Court to proceed pursuant to s 7(2) of the Criminal Appeal Act.
In support of the application for special leave to appeal, Mr Sio submitted that the trial judge and the Court of Criminal Appeal erred in failing to exclude from the evidence Mr Filihia's representation that Mr Sio gave him the knife used to stab Mr Gaudry.
Mr Sio submitted that the Court of Criminal Appeal misapplied s 65(2)(d)(ii) of the Evidence Act by viewing all the statements made by Mr Filihia together, and concluding from his demeanour and the freshness of his recollection that these were circumstances which made it likely that Mr Filihia's representations were reliable**[31]**.
The Crown submitted that the Court of Criminal Appeal was correct to regard Mr Filihia's account as a whole. The Crown submitted that the lies told by Mr Filihia in an otherwise correct account were no basis to exclude Mr Filihia's representation about the source of the knife. The Crown reiterated the circumstances identified by the trial judge and the Court of Criminal Appeal that were said to make it likely that Mr Filihia's account was reliable.
The Crown submitted that there was no difference in the circumstances in which all of Mr Filihia's statements were made, aside from the fact that the statements were made successively within a 24 hour period. But to say this is to take a compendious approach to the admissibility of those statements without focusing upon the representation of the particular fact sought to be proved. That approach is not permitted by s 65(2)(d).

[54]

For the purposes of s 65, s 62(1) provides that a reference "to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact."
Section 65(1) provides that the section applies "in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact." It is evident that ss 62 and 65(1) are concerned to relax the exclusionary effect of the hearsay rule in relation to an assertion of a fact by a person who had personal knowledge of that fact. These provisions proceed on the assumption that the asserted fact is relevant to the case of the party seeking to adduce evidence of the representation asserting the fact. Together with the provisions of s 65(2) other than par (d), they direct attention to the particular representation which asserts the relevant fact. Thus, s 65(2)(a) is concerned with whether the representation "was made under a duty to make that representation or to make representations of that kind". Section 65(2)(b) is concerned with whether the representation "was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication". Section 65(2)(c) is concerned with whether the representation "was made in circumstances that make it highly probable that the representation is reliable".
It may also be noted here that s 65(2)(b) makes it clear that when the provisions with which it is collocated speak of "a representation", they are speaking of the particular representation that asserts a relevant fact sought to be proved. That this is so is confirmed by s 65(2)(d)(i), which requires that the representation tendered against the other party is able to be seen to be against the interest of the maker of the statement.
It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.
It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act.
The Court of Criminal Appeal**[32]** seems to have regarded earlier authority, including the observations in R v Suteski[33] by Wood CJ at CL, with whom Sully and Howie JJ agreed, as allowing or requiring a compendious inquiry as to the overall reliability of the hearsay statements made by Mr Filihia over the course of 24 and 25 October 2012. In Suteski, Wood CJ at CL considered, rightly, that representations relied upon should be considered in context so as to determine whether, when read together, they "constitute an admission or answer against interest". But these observations do not support a compendious approach to the reliability of the whole of a hearsay statement inculpatory of the accused, nor do the other authorities**[34]** referred to by the Court of Criminal Appeal**[35]** in this context.
It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion. Further in this regard, the present case is a case in which, had Mr Filihia pleaded not guilty, and he and Mr Sio been tried together, Mr Filihia's hearsay statements would not have been admissible in that trial against Mr Sio. That is because s 83 of the Evidence Act preserves the exclusionary operation of the hearsay rule in respect of evidence of an admission by a co-accused.
The serious consequences of the successful invocation of s 65(2)(d) emphasise the need for compliance with the conditions of admissibility prescribed by the section. The focus demanded by the language of s 65 is inconsistent with the impressionistic evaluation involved in the compendious approach adopted by the Court of Criminal Appeal. The language of the statute assumes the identification of each material fact to be proved by a hearsay statement tendered in reliance on s 65 and the application of the section to that statement, whereas the compendious approach applied by the trial judge and the Court of Criminal Appeal is not focused in this way. In addition, the approach which is focused upon the particular representation tendered to prove a particular fact in issue has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials.

[55]

The compendious approach taken by the Court of Criminal Appeal contributed to a further error. When one focuses squarely upon each of Mr Filihia's assertions that it was Mr Sio who gave him the knife, one brings greater clarity to the identification of the circumstances which bear upon the likely reliability of those particular assertions. The evaluation of the likely reliability of each of those assertions must be made having regard to the circumstance that Mr Filihia's representations were those of an accomplice in the commission of the crimes in question.
Section 65 gives effect to the view that the circumstances of the making of an out of court statement conveying an assertion of a relevant fact may be such as to indicate that the representation is likely to be reliable - and the asserted fact likely to be true - notwithstanding the hearsay character of the evidence. The section operates on the footing that the circumstances in which the representation was made may be seen to be such that "the dangers which the rule seeks to prevent are not present or are negligible in the circumstances"[36]. In such a case, "there is no basis for a strict application of the rule."[37]
Section 65(2)(d)(ii) requires a trial judge to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character. One category of circumstances that has been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule was identified in Wigmore on Evidence[38] as those circumstances that "are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed"; in other words, circumstances that of themselves tend to negative motive and opportunity of the declarant to lie.
Evidence by an accomplice against his or her co-offender has long been recognised as less than inherently reliable precisely because of the perceived risk of falsification**[39]**. Statements by an accomplice afford a classic example of a case where a "plan of falsification" may be expected to be formed, given the obvious interest of one co-offender to shift blame onto his or her accomplice, especially where the circumstances also include the opportunity to seek to curry favour with the authorities. That the evidence of accomplices is evidence apt to be unreliable by reason of a motive to shift blame to the co-offender is recognised by s 165(1)(d) of the Evidence Act, which expressly treats, as "evidence of a kind that may be unreliable", evidence:

[61]

That observation may be accepted. The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted**[43]**.
When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation. But it is unnecessary to gloss further the statutory language. In particular, it is not profitable to seek to multiply examples of other circumstances which assist the trial judge to conclude that a representation is unlikely to be reliable. It is to risk being distracted from the task set by s 65(2)(d)(ii) to be overly concerned with what circumstances may properly be taken into account to determine the unreliability of a representation. The true concern of the provision is with the identification of circumstances which of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character.
Section 65(2)(d)(ii) requires the making of an evaluation by the trial judge which positively satisfies the trial judge that the representation is likely to be reliable by reason of the circumstances in which it was made. As was noted in IMM v The Queen[44], s 65(2)(c) and (d) and s 85 provide "[t]he only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence". It is desirable to emphasise, however, that the whole point of s 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial.
It is sufficient for present purposes to say that a question mark necessarily arose over Mr Filihia's assertion that Mr Sio gave him the knife and put him up to the robbery, by reason of the circumstance that Mr Filihia was Mr Sio's accomplice. Nothing else in the objective circumstances in which the statement was made was apt to shift the balance in favour of a positive finding of likely reliability in respect of this asserted fact. It was not open to the trial judge to be satisfied positively of the likely reliability of Mr Filihia's assertion that Mr Sio gave him the knife by reference to the circumstances in which that assertion was made; and the Court of Criminal Appeal erred in failing to conclude that the trial judge had erred in this respect. The evidence should not have been admitted.
In light of the conclusion on the admissibility of Mr Filihia's evidence, this Court cannot be satisfied that the jury must have convicted Mr Sio of armed robbery. Accordingly, it is not open to this Court to substitute a verdict of guilty of armed robbery in this case.

[64]

It may be accepted that in the present case there cannot be a retrial of the charge of armed robbery with wounding. A retrial on the charge of armed robbery with wounding would impermissibly traverse a clear and explicable verdict of acquittal on the charge of murder**[46]**.
Section 8(1) of the Criminal Appeal Act authorises the Court of Criminal Appeal to order a new trial if the Court considers that a miscarriage of justice has occurred and that this miscarriage can be more adequately remedied by such an order than by any other order which the Court is empowered to make.
Mr Sio did not contend that the broad power conferred by s 8(1) does not extend to ordering a new trial that is confined to a lesser offence for which he might have been found guilty at the trial**[47]**. He submitted that discretionary considerations are against the making of such an order. As noted earlier, this is because the order would permit the prosecution to rely on an alternative count which it did not rely upon at trial.
It may be accepted that fairness to the accused will often result in a lesser included offence not being left for the jury's consideration in a case in which the prosecution has chosen not to seek a verdict for that offence**[48]**. Recognition of this aspect of adversarial criminal justice in the circumstances of this case is not determinative of the exercise of the power conferred by s 8(1). Here the miscarriage of justice was occasioned by the failure to direct the jury of all of the elements of the offence of armed robbery with wounding. In the result, the case that the trial judge left for the jury's consideration without demur from the prosecution and defence was of armed robbery. Were it not for the wrongful admission of the hearsay evidence, there is no dispute that it would be open to substitute a verdict of guilty of armed robbery under s 7(2) of the Criminal Appeal Act. Only on the most formalistic of analyses could it be said that an order for a new trial will give the prosecution an opportunity to make a new case.
An important consideration in determining whether a new trial is an adequate remedy is the public interest in the prosecution of persons accused of serious crime**[49]. That interest is not outweighed by the circumstance that Mr Sio has been in custody since his conviction on 23 September 2013 and that there was an earlier period of some five months custody referable to this matter. The only prejudice that Mr Sio identified as arising from an order for a new trial for armed robbery is that had that offence been included as an alternative count in the indictment, he might have entered a plea of guilty and obtained the benefit of that plea on his sentence. As Mr Sio acknowledged, it was open to him to offer a plea to any lesser offence for which he could lawfully have been convicted on the indictment[50]**.
The most adequate remedy for the miscarriage of justice which has occurred would be for there to be a new trial for the offence of armed robbery. Such an order would not be open to the objection that the prosecution would thereby be allowed "to present a fresh case which would require 'a substantial amendment to the indictment'"[51] because Mr Sio could have been found guilty of armed robbery on the original indictment, and he would not be confronted with any new evidence at a new trial.
Finally on this point, a new trial for the offence of armed robbery would not traverse the jury's acquittal on the charge of murder. The prosecution case of murder and the prosecution case of armed robbery with wounding each relied on the doctrine of extended joint criminal enterprise enunciated in McAuliffe v The Queen[52]. Senior Counsel for Mr Sio did not challenge that doctrine in this matter. He noted that the outcome of challenges to the doctrine in unrelated proceedings then pending in this Court would bear on the permissible scope of any new trial. The fate of the doctrine of extended joint criminal enterprise would have no effect on the proposed new trial for the offence of armed robbery.

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