Sio v the Queen [2016] HCA 32: Hearsay Evidence

The High Court has today (24 August 2016) unanimously allowed an appeal from the New South Wales Court of Criminal Appeal. In the case of Sio v the Queen [2016] HCA 32, the High Court quashed the conviction of the appellant, Mr Sio, who was convicted of armed robbery with wounding. The High Court reasoned that the trial judge had omitted an element of the offence in directing the jury and had erred in allowing hearsay evidence.

Background

Mr Sio had driven Mr Filihia to a brothel in Clyde, New South Wales, on 24 October 2012. Mr Filihia entered the brothel alone wielding a knife with the intention of committing armed robbery. An altercation followed between Mr Filihia and an employee of the brothel, Mr Gaudry, which led to Mr Filihia fatally stabbing Mr Gaudry. Mr Filihia subsequently robbed the victim and promptly left the brothel. He ran passed Mr Sio’s car and Mr Sio collected him further down the road before the two accelerated away.

Mr Sio was charged with the murder and armed robbery of Mr Gaudry. Mr Filihia refused to give evidence at Mr Sio’s trial. As a result, the prosecution produced two electronically recorded interviews and two subsequent statements by Mr Filihia in which he named Mr Sio as the driver and identified Mr Sio as the person who had given him the knife. The trial judge ruled that the evidence could be admitted as an exception to the hearsay rule under s65 of the Evidence Act 1995; the exception being where the representation was against the interests of the person who made it and made in circumstances that made it likely that the representation was reliable.

In his direction to the jury on the murder charge, the trial judge instructed the jury that they must be satisfied that Mr Sio foresaw the possibility of the knife being used to commit murder. However, he did not give the same instruction with regards to the armed robbery with wounding charge.

On appeal to the Court of Criminal Appeal, the court held that the trial judge had correctly allowed the hearsay evidence and that the guilty verdict on the armed robbery with wounding charge was not unreasonable.

High Court Appeal

The High Court unanimously disagreed with the Court of Appeal. It found that the conviction of armed robbery with wounding must be quashed because of the trial judge’s misdirection and admittance of hearsay evidence. The High Court held that the trial judge could not have been satisfied that the representation by Mr Filihia that Mr Sio had given him the knife was made in circumstances that made it likely that it was reliable. The Court ordered a new trial on the charge of armed robbery as a new trial on armed robbery with wounding would not be possible because of the jury’s verdict on the murder charge. 

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Sio v the Queen [2016] HCA 32 (24 August 2016) and judgment summary.