Sio v The Queen [2016] HCATrans 56 (11 March 2016)

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Sio v The Queen [2016] HCATrans 56 (11 March 2016)

Last Updated: 16 March 2016

[2016] HCATrans 056

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S241 of 2015

B e t w e e n -

DANIEL JEFFEREY SIO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2016, AT 12.52 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC: May it please, I appear for the applicant with MS J.L. ROY. (instructed by Sydney Criminal and Traffic Lawyers)

MR J.H. PICKERING, SC: I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes, Mr Game.

MR GAME: Your Honours, we need an extension of time.

BELL J: Is there any objection, Mr Pickering?

MR PICKERING: No, your Honour.

BELL J: Yes, you have that.

MR GAME: Thank you, your Honour. There are two substantial issues that we want to raise. The first – if I could take your Honours to page 177 of the application book, those are the written directions given, and there were very few oral directions - - -

BELL J: Did you say 172?

MR GAME: Page 177, your Honour.

BELL J: I am sorry. Yes.

MR GAME: If you look at the ingredients for constructive murder at the top of 177, (e) and (f), what is happening there is the Crown are trying to get a felony for felony murder through an extended joint criminal enterprise, so it is constructive murder at two levels. If we were convicted, we would probably want to argue about whether they could do that. The critical point, though, is that (f) is the basis upon which you would infer from the verdict that they were not satisfied.

Going down the page to B – B, I say, with all due respect, is completely misconceived because that is accessorial liability feeding into extended joint criminal enterprise feeding into felony for felony murder feeding into murder, and that does not work because you need Giorgianni principles to apply it. But drawing from those, and the verdict that was returned, one can infer that the jury had a doubt on the question of foreseeing the possibility the victim might be wounded, which is the foresight for McAuliffe type extended joint criminal enterprise to get to the felony for felony murder.

If you then come down the page to the thing that my client was convicted of, it is not the fact of the wounding that is the problem here, it is the thing that makes my client liable that is missing here. So we go (a), (b), (c) and we have got Mr Sio, my client, participating:

in a joint criminal enterprise of armed robbery –

If that is what he participates in, then he is guilty of armed robbery, not armed robbery with wounding.

GORDON J: So you are missing an element?

MR GAME: Yes, we are missing an element, but the element is foresight of possibility of wounding, and you can take it, applying incontrovertibility principles, that we have been acquitted on that basis. Armed robbery simpliciter was not left on the indictment. What happens is another question. What that means is that our client should have been acquitted of armed robbery with wounding, and that is the first point. If you go to the Court of Criminal Appeal’s judgment - - -

BELL J: The court talks in terms of armed robbery.

MR GAME: They thought they were considering an appeal about armed robbery, even though they said armed robbery with wounding. That is at page 159, paragraph 38, and 162, paragraph 46.

BELL J: Now, I think in the way the matter was - - -

MR GAME: The whole thing has gone haywire.

GORDON J: Is that a legal basis?

MR GAME: That is a legal submission, your Honour, yes.

BELL J: In the way the matter was run before the Court of Criminal Appeal, the question of the failure to direct on the element of foresight of wounding – it is accepted that was not agitated, but it remains that the court approached the matter on the basis that the offence was one of armed robbery, and not armed robbery with wounding.

MR GAME: Yes, but there is a deeper problem here, which is this, your Honour. If you go back to the directions given, on the basis on which it was left, you could never get to armed robbery with wounding. You would have to leave an alternative of armed robbery. The mix-up means there is an alternative verdict that was not available in the circumstances. That is our first point.

What consequential orders would be made is another question. Whether one could substitute a verdict is a question because section 7(2) talks about the jury could have – a verdict they could have brought in, and the Crown did not make that case. Whether you would order a retrial for armed robbery or substitute is a question because – I do not have instructions, but he might want to plead guilty to armed robbery, so he would have to be given an opportunity to consider his position about that. That is our first point.

The problem, whatever one says about it, has to be fixed up, in our respectful submission, and that does involve four judges and at least four lots of lawyers that have missed the obvious problem. It is not a question of the point not being taken. There is a submission the verdict was unsafe, so there is nothing to that.

BELL J: That aspect of your argument, really, is subsumed in the –

MR GAME: Yes, and there is nothing to a merciful verdict. We are not in unsafe irrational acquittal territory. We are in incontrovertibility territory.

BELL J: I understand.

MR GAME: That is our first point. We want to argue, if we get leave, the second point. The second point goes to the issue about the armed part of the case; that is the 65(2) point. If you go to section 65(2) – I will just take your Honours to one place where you can see it - - -

GORDON J: It is on page 179.

MR GAME: It is 184 – which one, your Honour?

GORDON J: Page 184 will do.

MR GAME: I may be overdramatising the thing, but if they were on trial together and Mr Filihia did not give evidence and did not adopt his record of interview, nobody would suggest – and section 81 would cut it out – his record of interview going in against it. And more than that, in the case against my client on derivative liability, which was the second so-called basis, you could not prove, in the case against my client, Filihia’s liability by looking at Filihia’s admissions. You would have to get it from somewhere else because of the weird operation of section 81 in that situation.

BELL J: Yes. And though there was some evidence from which an inference might be drawn, there was not evidence from which an inference could be drawn beyond reasonable doubt with respect to his knowledge of the knife, as I understand your argument. Is that right?

MR GAME: Yes. We say this; if one looks at 65(2) – after Suteski, they introduced subsection (2) in section 65, as it were, to meet this problem. We do not have him available, we cannot cross-examine him, and yet his representations come in against us, and I will take your Honours to why we say it is important. This is really a quite separate issue than the issue upon which your Honours sat a Full Bench quite recently, because that is different issues completely - - -

BELL J: That was concerned with probative value.

MR GAME: Yes, quite a different subject. This case – and I may be exaggerating – is kind of now the leading case on section 65(2), and we say it is deeply problematic. I will seek to demonstrate that fairly briefly. If we go back to the judgment of Justice Leeming – strangely, Ambrosoli said that you could look at other things than just the circumstances, and Suteski said that although you have to identify the individual representation, you do have to actually identify – but you can look at other representations. Suteski and Ambrosoli do not really support what was said by the court - - -

BELL J: It seemed to me a difficulty with Suteski was that while it is true, in one part in the reasons of Justice Wood in Suteski, it is said one does not go through representation by representation, on the other hand, that was in the context in which the trial judge had not considered letting in the whole interview but had excluded parts of the interview. I think that becomes apparent when one reads on.

MR GAME: Yes, but imagine you are doing a section 67 exercise of giving notice of the representations and you are just far off a couple of record of interviews and say “Here you are, work it out for yourselves”. You have got to say what the representations are, and the representation is that my client was present and involved – the representation is that my client provided the knife. You actually have to tease out the representations. Whether or not - - -

BELL J: If the representations are made on the same occasion in the course of the same interview, are the circumstances the same?

MR GAME: Yes, your Honour – no, they may not be, because you have to look at the circumstances of that representation. When you say do not divide them up into the ones in which they are against interest, against interest does not cease to be relevant to this issue, even though they are, because they are against interest, but he is actually pushing the responsibility onto my client when he says my client provided the knife. This was the very area of unreliability, because Coffison said – it was a knife from her place; it was said to be owned by a Mr O’Hare. She was in the seat, which was said to be empty when the knife was thrown back, and she is the one that brought the knife in. Those things were the things that were unreliable.

BELL J: Mr Game, sorry to interrupt – your contention is that it is necessary in an exercise of this kind to identify, if not question by question, what it is the Crown seeks to prove by these representations, and then to analyse the circumstances relating to each. Do you say that in relation to a representation made in the course of an interview with the police, some representations might not answer the description of being against the interests of the person who made them?

MR GAME: They might, but you do not ignore the fact that he is sheeting home responsibility to my client, and nor do you ignore the unreliability of those representations, because that is telling you something about the circumstances. The court is saying you do not even look at the unreliability of the very representations you are trying to get at.

BELL J: But the court did accept that it was right to take into account the trial judge’s estimate that the maker of the representations appeared to be being truthful or co-operative.

MR GAME: Well, very strangely, her Honour said you do not look at issues of reliability, and cited Shamouil. But we would say all she has done is look at the ones that favour credibility, but used Shamouil to say you do not knock it down, which is completely misconceived, and Shamouil has got absolutely nothing to do with this case. That is what we say is what happened in the court below. But if you look at page 158, one can see there – sorry, your Honour, paragraph 34 – you do not look at:

the reliability of some representations . . . (those against interest) as compared to others (those relevant to Mr Sio) –

But you have to get into what the representations are, and what they are doing in the circumstances, because those are the circumstances in which they are made.

GORDON J: But if you look at 7 and 8 of her Honour’s assessment of the circumstances on page 5 of the application book, what is wrong with that and what is missing?

MR GAME: Page 5?

GORDON J:

[He] answered questions . . . in an apparently lucid way . . . relatively forthcoming and admitted that he was the person who stabbed . . . gone to the brothel with the intention of standing over - - -

MR GAME: I am not saying you cannot have regard to that. I am saying that what has happened is, if you look at pages 12 to 13, her Honour proceeds to reject submissions that are made by the defence about things that touch on unreliability because she rejects them. Those are circumstances that you have to take into account. But then she gets to – paragraph 51 and on is really 65(2)(d), and then what her Honour says – 54 is erroneous:

I am not assessing the credibility of Mr Filihia’s evidence –

That is completely wrong, because the section says “assess the reliability”. What it is, is that is mistaken thinking, her Honour is just asking what the probative value is of the evidence and that is why she is, as it were, taking the most favourable view of the evidence. This exercise, we say, is a wrong exercise. Then when you go back to the Court of Criminal Appeal at 158, paragraph 33 – I did 34 – at 33, his Honour says:

it is no part of the analysis . . . to point to the fact that Mr Filihia’s answers were demonstrably unreliable - - -

BELL J: Yet his Honour does accept that it was appropriate to have regard to considerations of whether he appeared to be being forthcoming and co-operative.

MR GAME: Yes, but you cannot do one and not the other.

BELL J: I understand the point.

MR GAME: If I go back to paragraph 27, that is really not a reliable indicator of what Ambrosoli is saying, because it is saying you can look at other things than just the specific circumstances. It is not saying you take this global representation as a whole, i.e. the record of interview and the statements.

BELL J: Ambrosoli was decided, I think, before the section took its present form.

MR GAME: That is correct, your Honour, yes. We have got our first point, but we say this second point is a quite important point. This case does raise it, and it goes to the very heart of it, because it is about what he said about my client and the knife, which is the thing that comes to the “armed” part of the armed hold-up. If the Court pleases.

BELL J: Mr Pickering.

MR PICKERING: Your Honours, can I deal with the section 65 point first. Your Honours, the inquiry, though, in section 65(2)(d)(ii) is:

[the] circumstances that make it likely that the representation is reliable.

There has to be real meaning in those words “in the circumstances that it is made”, because the corollary of my friend’s argument is that the prosecution could come along and lead evidence to show that the admissions or the representations are true. We would end up having this inquiry in the absence of the jury where the Crown essentially seeks to prove that the representations are true, and equally, the accused does not.

BELL J: Was it relevant, in your submission, for the trial judge to base her conclusion in part upon her assessment that the maker of the representation appeared to be being truthful and forthcoming in what he had to say?

MR PICKERING: The problem with that is that that is so closely aligned with the circumstances, because her Honour is actually watching a video of the circumstances of the representation being made. That informs you directly of the demeanour and behaviour of the person giving evidence. That is not necessarily inquiring as to whether they are in fact being truthful, which is the next step. It is really focusing on that factor.

That is the uniqueness of having a video. If it was simply just a written statement, it would not have that ability to look at the demeanour of the witness in their making of the statement. If you think of the opposite of that, if the video displayed an arrogance or a dismissive approach to the way that the police were interviewing, one would suggest that that was being made in circumstances that may have reflected not a genuine attempt of the representation. I think her Honour was more focusing on the circumstances there than the true reliability of it.

We say that the Court of Criminal Appeal is right. If you want to then look at more aspects of reliability, you can look to 135 and 137, accepting that Shamouil also plays a role there. We say that 65(2)(d)(ii) does not play the role and, indeed, in fairness, that is not really the way that

the appellant argued that matter before the Court of Criminal Appeal. They did focus more on establishing that it was not actually made in such circumstances. We say the 65 argument is completely separate to the first point.

In relation to the third point, I can only expand on my written submissions in this respect, your Honours. It was not just that the trial was being run on this concept of the contemplation of the possibility of wounding. Your Honours would be well aware that, of course, the main issue at the trial was whether he was involved in an armed robbery at all. He, of course, disputed that he was part of any joint criminal enterprise, so the major focus of the trial was proving that he was involved in a robbery and was aware of the knife. Obviously, we have accepted that the element is not there, and outside of refocusing that that was a major issue at the trial, I am not sure I can be of any greater assistance on that particular ground, your Honours.

BELL J: Thank you, Mr Pickering.

MR GAME: The contemplation of wounding is the thing that fixes liability, so one just cannot get away from it. The other thing I wanted to say is the ALRC – report 102 explicitly rejected that section 317 was the answer to this. What I wanted to say about Ambrosoli - - -

BELL J: Is that a reference to section 137?

MR GAME: Yes, your Honour, section 137, sorry. I am suffering from excessive gabbling, I think. Paragraph 30 in our submissions at 182 is what we want to say about Ambrosoli, and paragraph 31 is what we want to say about Suteski. I could have put that better, in my submission.

BELL J: Thank you. In this matter, there will be a grant of special leave to appeal in relation to – this is at application book 168 – ground 2.1, effectively the first ground. In relation to ground 2.2, concerning the construction of section 65(2) of the Evidence Act, that ground will be referred in for consideration of whether a grant should be made by the Full Court. What is the estimate?

MR GAME: It is probably - - -

BELL J: It makes it difficult, I suppose.

MR GAME: Yes, it does make it difficult. There is a lurking other issue that I have not raised, which is that in another case, we are going to be asking the Court to reconsider McAuliffe because of the House of Lords decision – it does not directly arise in this case, but it kind of just sits there because of the way in which liability – it does not matter - - -

BELL J: It will not arise in this, will it?

MR GAME: No, it does not seem to. This case will be heard after that case, I assume. I think a day, maybe – the 65(2) thing is not really straightforward, and the orders made in respect of the first issue may not be totally straightforward either, so half a day to two-thirds.

BELL J: Do you agree with that, Mr Pickering.

MR PICKERING: I agree, your Honours.

BELL J: Yes. If your instructing solicitors would get the standard directions from the Registrar before leaving, and hopefully comply with them. Yes, very well. Would you adjourn the Court to 10.15 am on Tuesday, 5 April in Canberra.

AT 1.15 PM THE MATTER WAS CONCLUDED