Supreme Court New South Wales Medium Neutral Citation: R v Sio (No 2) [2013] NSWSC 1413 Hearing dates: 16 September 2013 Decision date: 16 September 2013 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Order made under s 77 of the Crimes (Administration of Sentences) Act 1999 that Richard Filihia attend Court on 17 September 2013 to give evidence. Catchwords: CRIMINAL LAW - subpoena for witness in custody - witness refused to answer questions previously - whether witness would refuse to answer Crown questions - examination to be conducted on voir dire Legislation Cited: Crimes (Administration of Sentences) Act 1999, s 77 Evidence Act 1995 Cases Cited: R v Sio [2013] NSWSC 1412 Category: Interlocutory applications Parties: Crown Daniel Jefferey Sio (Accused) Representation: Counsel: PE Barrett (Crown) CJ Watson and RE Raffell (Accused) Solicitors: Director of Public Prosecutions (Crown) Sydney Criminal & Traffic Lawyers (Accused) File Number(s): 2012/334972 Publication restriction: Nil EX TEMPORE Judgment 1A further application has been made on behalf of the accused for the issue of a subpoena to have Mr Richard Filihia attend Court to give evidence on behalf of the accused and be subject to cross-examination by the Crown. Mr Filihia is the person who committed the armed robbery in the course of which Brian Gaudry died. He has pleaded guilty to murder and armed robbery with wounding. The accused is charged with murder on the basis that he was party to a joint criminal enterprise with Mr Filihia to commit armed robbery or that he was an accessory before the fact to the armed robbery. He is also charged with armed robbery with wounding. It is common ground both that Mr Filihia entered the brothel with a knife and killed Brian Gaudry and that the accused was outside in his motor vehicle and did not enter the brothel in the course of that incident. 2Last Monday the Crown submitted on a voir dire that Mr Filihia was unavailable within the meaning of clause 4 of Part 2 of the Dictionary of the Evidence Act 1995 (the Act). The Crown sought to tender his ERISP interviews and statements on that basis. I acceded to that application: R v Sio [2013] NSWSC 1412. 3Last week Mr Watson, who appears on behalf of the accused, sought leave to issue a subpoena to have Mr Filihia come to Court. I was not satisfied that Mr Filihia's position, which he had made clear to me in person last Monday on the voir dire and also last Wednesday, in the presence of the jury, had changed. However, in support of the further application Mr Watson has read the affidavit of his instructing solicitor, Ms Vanya Hampel. 4In her affidavit Ms Hampel deposed that she attended Nowra gaol on 17 March 2013 and was told certain things by Mr Filihia which caused her to believe that it would be beneficial to the accused for Mr Filihia to attend Court and give evidence. Importantly, for present purposes, Ms Hampel also deposed that she was informed by Mr Filihia on 12 September 2013 in the cells at the Court that he is willing to be subpoenaed to give evidence on behalf of the accused and that he understands that he will also be subject to cross-examination by the Crown. Mr Filihia explained to Ms Hampel on that occasion that he was prepared to be called as a defence witness but not as a Crown witness due to what he understood to be the potential consequences of other inmates finding out he was a Crown witness. 5I have no reason to doubt what Ms Hampel has said and, in any event, her evidence has not been, and probably could not be, challenged in cross-examination. Nonetheless, I am not satisfied that there is any reason to consider that Mr Filihia has changed his attitude since last week. He may well not appreciate that if he were to give evidence for the accused he would only be permitted to answer non-leading questions from Mr Watson and that he would be required to answer all questions asked of him in cross-examination by the Crown, including leading questions and questions relevant to his credibility. 6I am concerned that there would be a substantial risk, were I to accede to this application, that Mr Filihia would answer questions from Mr Watson and then refuse to answer questions in cross-examination by the Crown. Mr Watson fairly and properly conceded that that was a risk which could give rise to the trial miscarrying, if this scenario came to pass in the presence of the jury. 7In all the circumstances I am not disposed to revisit the question of the issue of the subpoena unless the risk of the trial miscarrying can be appropriately mitigated. 8I consider that the risk can be mitigated, if not obviated, by my making an order under s 77 of the Crimes (Administration of Sentences) Act 1999 that requires Mr Filihia to be brought to Court tomorrow. I propose to permit Mr Watson to examine him on the voir dire. Mr Crown will then be permitted to cross-examine him, also on the voir dire. In that way, I can determine whether Ms Hampel's belief that Mr Filihia is prepared not only to give evidence for the accused but also to answer questions asked of him in cross-examination by the Crown is well-founded. Order 9I make an order under s 77 of the Crimes (Administration of Sentences) Act 1999 that Richard Filihia attend Court on 17 September 2013 to give evidence. ********** 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