New South Wales Supreme Court CITATION : R v SSA [2007] NSWSC 111 HEARING DATE(S) : 05/02/07; 06/02/07; 07/02/07; 09/02/07; 12/02/07 - 16/02/07; 19/02/07 JUDGMENT DATE : 21 February 2007 JURISDICTION : Common Law Division JUDGMENT OF : Hidden J at 1 DECISION : Evidence admitted CATCHWORDS : CRIMINAL LAW: - Evidence - hearsay - murder trial - two accused - separate trials - at trial of first accused Crown calls second accused - second accused refuses to give evidence - whether portions of second accused's ERISP admissible against first accused LEGISLATION CITED : Evidence Act (ss17(3), 65) R v Ambrosi [2004] NSWCCA 23 CASES CITED : R v Booth [1982] 2 NSWLR 847 Lee v The Queen (1998) 195 CLR 594 R v Suteski (2002) 56 NSWLR 182 PARTIES : Regina SSA (accused) FILE NUMBER(S) : SC 2006/1112 COUNSEL : D Yehia (accused) T Bailey (Crown) SOLICITORS : Heenan & Co (accused) Solicitor for Public Prosecutions (Crown) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL JURISDICTION HIDDEN J Wednesday 21 February 2007 2007/1112 R v SSA JUDGMENT – Evidence - Admissibility of portions of the ERISP with John Siose (tx p199). 1 HIS HONOUR: On the fifth day of the trial, I allowed the tender by the Crown prosecutor of portions of the recorded interview by police of John Siose. These are my reasons for that decision. 2 The accused is charged with the murder of Dong Jun Kim at an amusement parlour at Parramatta in the afternoon of 27 July 2005. It is alleged that he stabbed the deceased with a knife in the course of a violent incident in which he was involved with a companion, John Siose. Siose is also charged with the murder, upon the basis of joint criminal enterprise. He is to be tried separately from the accused and, it is expected, immediately after the present trial. 3 There is a body of evidence from witnesses who were at the amusement parlour but who did not know the accused or Mr Siose. One of those witnesses, Eric Liu, described the incident and, in particular, described seeing a man strike the deceased with what he thought was a stick. He later identified the accused and Mr Siose from photographs, assigning the role of the man with the stick to the accused. Neither of the other two witnesses in this category saw the deceased struck with an object of any kind and, while one of them identified a photograph of Mr Siose, neither identified the accused. 4 Also in the amusement parlour at the time were two witnesses, JP and AN, both of whom knew the accused and Mr Siose. They both had made statements to the police in August 2005, in which they squarely implicated the accused in the stabbing. JP in his statement said that he had seen the accused stab the deceased in the back with a knife. In his statement AN did not say that he had seen the stabbing but he said that he had seen the accused holding a bloodstained knife at the relevant time. 5 Both witnesses resiled from those accounts at the trial, and I granted the Crown prosecutor leave under s38 of the Evidence Act to question each of them as though he were cross-examining them. In cross-examination by Ms Yehia, for the accused, it emerged that they had given accounts equally inconsistent with those August 2005 statements in earlier statements to the police and in evidence at the committal proceedings. While it would be open to the jury to find that the August 2005 statements contained the truth, obviously there is a real question about their credibility. 6 It is against that background that the significance of the evidence the subject of this ruling must be understood. The Crown prosecutor called Mr Siose to give evidence, even though he is yet to face trial himself. That is a course which is permissible by the terms of s17(3) of the Evidence Act (subject to the exercise of any relevant discretion by the trial judge). Mr Siose entered the witness box but, after giving his name, refused to give any other evidence. He maintained that stance even though I warned him of the possible consequences of it. However, unlike the accused, he had taken part in a videotaped interview with police in which he had given a lengthy and detailed account of what had happened. The Crown prosecutor tendered certain portions of that interview, to which Ms Yehia objected. 7 The effect of what Mr Siose told the police is that both he and the accused were carrying knives. The incident started because of some provocative behaviour on the part of the deceased, which led both Mr Siose and the accused to present their knives. There was then a fist fight between Mr Siose and the deceased, which the deceased started and in which he gained the upper hand. Shortly afterwards, Mr Siose and the accused ran from the amusement parlour. He did not see the accused stab the deceased, and he did not use his own knife. 8 Obviously this evidence is important in that it provides some explanation for the incident, it puts a knife into the hands of the accused, and it conveys that Mr Siose himself did not stab the deceased. Mr Siose also told the police that, after they had run out of the premises, the accused told him that he had stabbed the deceased. The Crown prosecutor did not press that material, acknowledging that it would amount to second-hand hearsay: cf s62 of the Evidence Act and Lee v The Queen (1998) 195 CLR 594. 9 He tendered the rest of the material upon the basis that it was admissible as an exception to the hearsay rule under s65(2)(d) of the Evidence Act, that is, that it contained statements against the interests of Mr Siose at the time they were made. He submitted that, as Mr Siose had refused to give evidence, he was "not available" for the purpose of that section: see cl 4(1)(f) of Part 2 of the Dictionary to the Act. He relied upon R v Suteski (2002) 56 NSWLR 182, in which the Court of Criminal Appeal upheld the admission at the trial of one offender of part of the police interview of another offender in circumstances not dissimilar to the present case. 10 In the light of Suteski, it is clear that evidence of statements to police by an alleged co-offender might be admitted in circumstances such as these. Ms Yehia accepted as much. However, she objected to the evidence on several bases. 11 Firstly, she argued that what Mr Siose said to the police did not amount to statements against his interests, because nothing he said could be seen as an admission of complicity in the killing of the deceased. While his account disclosed his knowledge that the accused had a knife, it conveyed that he did not contemplate the possibility that the accused would use it and, indeed, that the stabbing was the result of an intervention by the accused which was wholly unexpected by him. 12 The difficulty with that argument is s65(7) of the Evidence Act, which provides that a representation is to be taken to be against the interests of the person who made it if, among other things, it tends to show that the person has committed an offence of which he has not been convicted: par(b). As the Crown prosecutor pointed out, Mr Siose's presentation of the knife towards the deceased at the beginning of the incident amounted to an assault. Indeed, the Crown prosecutor foreshadowed that at his trial the Crown case would be founded upon the allegation of a joint criminal enterprise between him and the accused to assault the deceased. 13 I am satisfied that the statements by Mr Siose to the police upon which the Crown relies were against his interests. Ms Yehia submitted that his assertion that he did not use his own knife (apart from showing it to the deceased) should not be admitted, as it was not of itself inculpatory. However, it is not necessary to examine each question and answer separately. That he did not use his own knife was part of his narrative of the event, all of which was capable of implicating him in the relevant sense: cf Suteski at [93]. 14 Otherwise, Ms Yehia relied on considerations of public policy concerning the reception of the evidence of an accomplice, and on ss135 & 137 of the Evidence Act. The question of policy arises from the fact that Mr Siose is yet to face trial himself. (In Suteski the offender whose statements to the police were admitted had been dealt with for his part in the criminal enterprise at the time of the trial. However, as in the present case, the Crown tendered parts of his interview with police at a time when he was a suspect.) Ms Yehia mounted this argument before Mr Siose was called, against the possibility that he would give evidence, but it is appropriate to consider it in determining the admissibility of the material from his interview. 15 The relevant policy was expressed by Lee J in R v Booth [1982] 2 NSWLR 847 at 851: In this State, the practice is, when the Crown intends to call an accomplice, for the judge to sentence the accomplice, if he is charged, and to do that before he is called; and I would say that that practice is one which should be followed in all cases, unless there are the most cogent reasons for not so doing. By following that practice and disclosing to the jury that the accomplice has been dealt with means that the jury are not placed in a position of speculation in regard to the accomplice, and his position as a witness for the Crown and having the full facts before them can do justice to the accused and the Crown in regard to the extent to which his evidence is accepted. 16 However, subsequent authority has emphasised that this is a rule of practice rather than a rule of law and has recognised that, while it remains a sound practice, its importance has been diminished by legislation enabling the Crown to seek appellate review of a sentence passed upon an offender who has failed to honour an undertaking to give evidence against a co-offender: see R v Ambrosi [2004] NSWCCA 23 per Whealey J at [15]-[17]. As his Honour there observed, more emphasis is now placed upon appropriate directions to the jury. Mr Siose's position as a suspect when he was interviewed by police clearly bears upon the reliability of what he said, but that is a matter for directions. I would not reject the evidence on this basis. 17 Finally, Ms Yehia argued that the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused, invoking the discretion in s135 of the Evidence Act and the judgement required by s137. This argument was based partly upon the history of the proceedings. The Crown initially intended to have the accused and Mr Siose tried jointly, and an application for a separate trial was lodged on behalf of the accused. However, a few days before the trial was to begin the Crown prosecutor determined, as a matter of fairness, that the two men should be tried separately. It was decided that the accused should be tried first, as it was he who was alleged to have stabbed the deceased. 18 It was apparently on the last working day before the trial that it occurred to the Crown prosecutor that Mr Siose might be called as a witness for the Crown in the trial of the accused. He notified Ms Yehia that he was contemplating that course but that he would see how the evidence unfolded before he made a decision about it. He made that decision on the third day of the trial. It was later ascertained, through senior counsel representing Mr Siose, that he would refuse to give evidence. The Crown prosecutor then decided that, in that event, he would tender relevant portions of the recorded interview. 19 Ms Yehia pointed out that, if this evidence were admitted, the accused's position could be worse than it would have been if he had been tried jointly with Mr Siose. At a joint trial Mr Siose, as an "associated defendant" would not have been a compellable witness against the accused: s17(3) of the Evidence Act. Nor could any part of his police interview have been tendered against the accused under s65 of the Act, because he would not have been unavailable to give evidence within the terms of cl 4 of Part 2 of the Dictionary. Accordingly, the jury would have to have been directed that the interview was evidence against Mr Siose only. 20 All this is true, but it does not appear to me that the history of the proceedings bears upon the question of prejudice to the accused. If the Crown prosecutor had decided to take the present course at the outset, it would have been open to him to proceed against the two men separately. Whichever of them had been tried first, Mr Siose would have been a compellable witness against the accused and, if he refused to give evidence, s65 would have been available as a means to get relevant parts of his police interview into evidence. 21 Otherwise, on the balance of probative value and unfair prejudice, Ms Yehia relied upon the fact, to which I have referred, that Mr Siose's statements were made at a time when he was a suspect in relation to the murder, together with the obvious fact that his account would not be on oath and would not be able to be tested by cross-examination. The approach to the assessment of the unfair prejudice of evidence is well settled by authority, which was summarised by Wood CJ at CL in Suteski at [116]-[117]. In my view, the tendered evidence has significant probative value, which is not outweighed by the risk of unfair prejudice. Such prejudice as was identified by Ms Yehia is appropriately dealt with by directions to the jury along the lines of those sanctioned in Suteski at [130]-[131]. 22 None of this is to deny that I have found this a difficult and troubling decision. The admission of evidence of this kind cuts across long standing rules of engagement in criminal trials. However, the landscape has changed significantly under the Evidence Act and it appears to me that the provisions of that Act, and the principles which have been developed governing the application of them, warrant the admission of the evidence in the present case. ********** 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. 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