Sio v The Queen  HCA 32 (24 August 2016)
Sio was charged with murder and armed robbery with wounding. Sio had driven Filihia to a brothel to enable Filihia to carry out a robbery. During the robbery Filihia stabbed and killed Gaudry. Filihia pleaded guilty to murder and inculpated Sio during his recorded interview, saying that Sio had given him the knife and put him up to the robbery. The prosecution contended that there was a joint criminal enterprise to rob and that Sio foresaw the possibility that Filihia would commit murder. Filihia refused to give evidence, so the prosecution sought to tender his recorded interview under s 65 of the Evidence Act (NSW). The recorded interview was admitted. Sio was acquitted of murder, but convicted of armed robbery with wounding. The conviction was set aside for two reasons.
First, the trial judge’s directions on armed robbery with wounding were in error, a point which was not noticed at trial or in the Court of Appeal. The trial judge provided question trails for murder and armed robbery with wounding which were identical for the first five elements. The fifth element was that Sio participated in a joint criminal enterprise of armed robbery. The sixth element, which applied to the charge of murder only, required that Sio foresaw the possibility that the victim might be wounded by the use of a knife. There should have been an equivalent sixth element for the circumstance of aggravation of armed robbery with wounding. But for the second error, the High Court would have ordered a conviction for armed robbery simpliciter.
The second error arose from the trial judge and Court of Appeal’s compendious approach to assessing whether Filihia’s inculpatory statements were ‘likely to be reliable’ for the purpose of s 65 of the Evidence Act. The trial judge drew a distinction between credibility, which was a matter for the jury, and reliability. The Court of Appeal found that the interview as a whole was likely to be reliable, without paying close attention to the particular ‘representations’ made in the interview and their individual reliability, which was what the statute implicitly required. Noting the law’s long history of treating the inculpatory evidence of accomplices with circumspection, the High Court found that Filihia’s inculpatory representations, particularly that Sio had given him the knife and put him up to it, were inadmissible. The court noted that s 83 of the Evidence Act would have produced the same outcome if Filihia was tried jointly with Sio, but because he pleaded guilty he was not a party to the proceedings against Sio.