Ahmad v The Queen - [2002] WASCA 70

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: AHMAD -v- THE QUEEN [2002] WASCA 70

CORAM: WALLWORK J
STEYTLER J
MILLER J

HEARD: 1 MARCH 2002

DELIVERED : 28 MARCH 2002

FILE NO/S: CCA 177 of 1999

BETWEEN: SYED REDZA FAROUK AHMAD
Appellant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 178 of 1999

BETWEEN :NADINE CATHERINE MARGARET HANBY
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Home invasion and abduction - Ransom paid - Whether prosecution should have called particular witness - Whether this failure prejudiced defence so as to cause miscarriage of justice - Whether video interview voluntary - Whether it should have been admitted into evidence - Decided on facts

Legislation:

Criminal Code, s570D

Result:

Both appeals dismissed

Category: B

Representation:

CCA 177 of 1999

Counsel:

Appellant: Mr L M Levy
Respondent: Mr R E Cock QC

Solicitors:

Appellant: Levy & Associates
Respondent: State Director of Public Prosecutions

CCA 178 of 1999

Counsel:

Appellant: Mr L M Levy
Respondent: Mr R E Cock QC

Solicitors:

Appellant: Levy & Associates
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

"T" (A Child) v The Queen (1998) 20 WAR 130
Kelly v The Queen (1994) 12 WAR 405
R v Apostilides (1984) 154 CLR 563
Sell v The Queen (1995) 15 WAR 240

Case(s) also cited:

Cleland v The Queen (1982) 151 CLR 1
Duke v The Queen (1994) 180 CLR 508
Harriman v The Queen (1989) 167 CLR 590
MacPherson v The Queen (1981) 147 CLR 512
Meissner v The Queen (1995) 184 CLR 132
R v Harling (1997) 94 A Crim R 437
R v Ireland (1970) 126 CLR 321
R v Swaffield (1998) 192 CLR 159
R v Van Der Meer (1998) 62 ALJR 656
R v Williams (1992) 8 WAR 265
Wendo v The Queen (1963) 109 CLR 559
Whitehorn v The Queen (1983) 152 CLR 657

WALLWORK J: The two appellants were convicted of nine offences arising from the invasion of a private home in Murdoch on Saturday, 14 December 1997 and the kidnapping and ransom of one of its occupants. The appellants were charged with aggravated burglary, unlawfully depriving the occupants of the home of their liberty, the kidnapping of the mother of the family, Mrs Choo, and extortion upon the father of the family, Mr Foo.
Generally the facts were that after two men forced their way into the family home at Murdoch, Mrs Choo was forcibly taken from the home in a van, whilst bound and gagged, to other premises at 36 Barrett‑Lennard Parade in Murdoch. The two appellants were then living in a relationship at those latter premises. After Mrs Choo had been abducted, her husband was informed that if he did not withdraw $46,000 from the bank and pay it to the kidnappers something would happen to his wife. He withdrew the money and paid it over as requested, by leaving it in the designated place. His wife was later released. On the following evening, being Tuesday, 16 December 1997, detectives executed a search warrant shortly after midnight at the Barrett‑Lennard premises where the appellants were living.
The prosecution case against the two appellants relied on circumstantial evidence. Amongst other things that evidence established that at the time of the offences the appellants were living at 36 Barrett‑Lennard Parade in Murdoch. They were acquainted with another couple Mr Kuc and Miss Donatti, who were living in a defacto relationship in a unit in Scott Street, South Perth. The prosecution case against the second couple was based on partial admissions which they had later made to two civilian witnesses, plus circumstantial evidence and a false alibi.
At the time of the offences the Foo family lived at 2 Donovan Rise, Murdoch. That was approximately two kilometres from the premises occupied by the appellants at 36 Barrett‑Lennard Parade. Mr Foo and his wife and their four children lived at their home. On Sunday evening, 14 December 1997, three of the children were at home with their parents when two men burst into the premises wearing dark clothing and balaclava disguises. One of the intruders had gloves on his hands and the other had what appeared to be socks on his hands. One of the men was armed with a rifle. The Crown alleged that person was Mr Kuc. The shorter offender of the two was armed with a hunting knife. The Crown alleged that that was the appellant Ahmad. The Foo family was tied up. The offender with the knife produced a roll of black cloth adhesive which was used to tie the family's ankles and hands.
During the invasion Mrs Choo was taken to a bedroom by the offender with the knife. He ordered her to get out all her jewellery and cash. She handed him six items of quite distinctive jewellery some of which was later found at the appellants' home mixed up with items of jewellery owned by the female appellant, Hanby. Money was demanded from Mr Foo. Shortly afterwards the offender alleged to be the appellant Ahmad who had the knife, left the house leaving the other offender to guard the family with the gun.
At 1.24 am on Monday, 15 December 1997 whilst the man with the knife was away from the house the telephone rang. It rang twice and then stopped. It then rang again. The offender with the rifle answered it and spoke for a short time. Some 20 hours later, police officers were able to establish by Telstra records that those two telephone calls had been made from the premises occupied by the appellants at 36 Barrett‑Lennard Parade.
Following those phone calls the offender with the knife returned to the Foo house. Mrs Choo was later taken from the house and placed into a vehicle which had a metal floor with corrugations. Mrs Choo believed that the vehicle was a van of some sort. After a short journey the vehicle stopped. Mrs Choo was carried into a house by two people and placed on a double mattress. A man with a gun remained in the room with her. It was the Crown case that in all likelihood this was a fifth unidentified offender because the two males who had committed the aggravated burglary at the Foo house had remained at that house after Mrs Choo was taken away.
During her period of captivity at the premises to which she was taken, Mrs Choo said that she was held in a room with vertical cream blinds and either blue or green curtains. The room had a built in wardrobe which was cream in colour. The room was carpeted. The light socket had no light shade on it. There was exercise equipment in the room. Outside the window was a small white wooden fence. The Crown alleged that Mrs Choo's description matched that of the rear bedroom at the appellants' house at 36 Barrett‑Lennard Parade. Mrs Choo was able to say that she was looked after by a woman whose skin was very soft. That description was said to match Ms Hanby. Mrs Choo was eventually taken from the premises where she had been detained and then liberated at a place in Fremantle.
In the meantime Mr Foo had withdrawn approximately $46,000 in cash from the Challenge Bank. He placed the money in the male toilets of a nearby cinema complex. He received a telephone call which advised that his wife would be liberated. Mr Foo contacted the police at 1.00 pm on Monday, 15 December 1997.
Early on the next morning (Tuesday), the premises where the two appellants were living were searched by detectives pursuant to a search warrant. The appellant Hanby was located hiding behind the door of a spare bedroom. That bedroom was found to contain a rifle hidden under a pile of clothing, two dark coloured balaclavas, three dark coloured bar aprons (similar to a cloth which had been put over Mrs Choo's head) and a bag containing two plastic "see through" surgical gloves.
In the main bedroom at the premises which was shared by the two appellants, five of the six stolen pieces of jewellery belonging to Mrs Choo were found in a bedside table. That jewellery was intermingled with jewellery belonging to the appellant Hanby. Mrs Choo's jewellery had been given to the offender who had been armed with a knife at Mrs Choo's home. That offender was said to be Ahmad. A hunting knife matching the general description of the knife carried by one of the male offenders at the Foo residence, was found located on the floor next to the appellants' double bed at 36 Barrett‑Lennard Parade. There were also two distinctive foreign gold coins found at the premises which were identified by Mr Foo as belonging to him. They were found in the same main bedroom as Mrs Choo's jewellery, together with some boxed bottles of alcohol which had been taken from the Foo home. A quantity of used black adhesive tape with identical chemical properties to that used to tie up the victims at their home was located in the appellants' main bedroom. The DNA profile of blood on that tape matched that of Mr Foo.
There was also found at the appellants' premises, a pair of coloured socks in a plastic bag similar in appearance to the description of those worn by the offender with the knife, who was said to be the appellant Ahmad. The appellant Hanby later admitted that the dark coloured aprons found at the premises belonged to her.
The apron used to blindfold Mrs Choo before she was released had the word "Naiomi" written on it. The colour, size and shape of that apron was similar to those located in the appellants' premises. The apron with "Naiomi" on it was identified by a witness Naiomi Doherty who had worked with the appellant Hanby at a café at Fremantle.
A search of the kitchen at the appellants' at 36 Barrett‑Lennard Parade also located a number of pieces of paper on the kitchen bench which contained handwriting detailing the planning and execution of a "job", to be carried out in the month of December. This handwriting referred to staking a place out several days prior to the 14 December. One piece of paper titled "Plans", contained handwritten details concerning the doing of a "job" on "14 December night (Sun)." It also referred to the withdrawal of money on the 15 December (Monday). A handwriting expert identified those entries as having been made by the appellant Ahmad.
The two appellants had booked to fly overseas on Friday, 19 December 1997.
Verbal statements of appellant Ahmad which were made at the Barrett‑Lennard premises were recorded by police officers on an audio tape during their search of the premises at about 2.00 am on the 16 December. Ahmad admitted that the black hunting knife located in the bedroom belonged to him. He said that only he occupied that room - and sometimes the appellant Hanby as well. He admitted that only he and Hanby resided at 36 Barrett‑Lennard Parade. He said he had probably bought the jewellery which had been found at the premises and identified as belonging to Mrs Choo. When he was questioned at the premises about the rifle he declined to answer until he sought legal advice. He exercised his right to remain silent with respect to the two balaclavas, a box of plastic latex gloves and the two gold coins identified by Mr Foo. He declined to participate in a video record of interview.
The appellant Hanby later participated in a videotape record of interview at police premises at Beaufort Street, Perth. She admitted living at the Barrett‑Lennard Parade premises. She admitted that she was there on Sunday night, 14 December 1997. She maintained that she was asleep in the main bedroom of the premises on the night in question. She admitted that the jewellery which had been identified by Mrs Choo and which was in the premises was not hers. She said she did not know whose it was. She admitted that to her knowledge no people other than herself and the appellant Ahmad were staying at the house on the relevant Sunday night.
The Crown case against the co‑accused Kuc and Donatti included evidence that the accused Kuc had hired a blue Toyota Hi‑ace van approximately one and a half hours before the home invasion of the Foos' residence. The van had a bench seat at the front and a corrugated metal floor at the rear. It was returned by the accused Kuc shortly after Mrs Choo was released by her captives.
In the van was found a small piece of black cloth adhesive with the same chemical and physical properties as that of the tape used to tie up the victims. Kuc later admitted to a witness that he was involved in the kidnapping. Donatti later admitted to another witness that she had been involved in the kidnapping of Mrs Choo.
The appellant Ahmad appeals against his convictions on two grounds. Firstly, he claims that the admission into evidence of the tape recorded conversation between himself and the police at the premises at 36 Barrett‑Lennard Parade on the 16 December should not have been allowed. Secondly, that the learned Judge erred by ruling that the Crown were not obliged to either call or make available at the trial, another "red hot suspect" for the offence by the name of John Frank D'Archangelo, thereby giving rise to a miscarriage of justice.
The appellant Hanby appeals on three grounds. Firstly, she asserts that a videotaped record of interview between her and police officers at police premises at Beaufort Street was wrongly admitted into evidence at the trial. Secondly, she asserts that a roll of black fabric adhesive tape which had been found at the Barrett‑Lennard premises was wrongly admitted into evidence. Thirdly, that the learned Judge erred by ruling that the Crown were not obliged to either call or make available Mr D'Archangelo at the trial.
It can be seen that one of the grounds of appeal of the two appellants is the same. That concerns the Crown refusing to call or make available the other suspect, Mr D'Archangelo, at the trial.
It was submitted for the appellants that the Crown case at trial had been that the appellant Ahmad was one of the two males who had committed the aggravated burglary and detained the Foo family; and that the appellant Hanby had played the role of minder to Mrs Choo at the premises occupied by the couple at Barrett‑Lennard Parade.
Concerning the audio tape statements of the appellant Ahmad, it was contended for Mr Ahmad that the significance to the prosecution case of those statements was:
(1)Mr Ahmad had admitted on the tape that a knife located in the bedroom of the premises belonged to him.
(2)When asked who owned the contents of the plastic bag which contained used black adhesive tape, he had stated he was not sure and that he had never seen the tape before.
(3)He admitted that he occupied the bedroom in question and that only he and the appellant Hanby resided at the house.
(4)He said he did not have any knowledge of another roll of black tape which was located in a walk‑in wardrobe.
(5)He said he did not know who Mrs Choo's jewellery belonged to and he did not have a clue how it had got to the premises where he was living.
(6)When the rifle was located he declined to answer questions until he had legal advice.
(7)Mr Ahmad had also exercised his right to remain silent in respect of the two balaclavas, the box of latex gloves, the two gold coins and other items located in the kitchen.
At the trial objection had been taken to the admission of the evidence contained on the audio tape because of the provisions of s 570D of the Criminal Code. The Crown relied upon s 570D(2)(c) to authorise the admission of the statements. That subsection authorises the evidence of any admission by an accused person where the Court is satisfied that there are exceptional circumstances justifying the admission of the evidence.
With respect to the admission of the tape recording, it was contended that the police officers had arrived at the premises at 36 Barrett‑Lennard Parade just after midnight. The search warrant was executed and the police officers then began to search the house. It was almost three hours later before the audio tape was activated. That tape was in a cassette carried by Detective Cross in a briefcase. There was no suggestion on the voir dire that the Crown were relying upon s 570D(2)(b) which provides that where the prosecution proves on the balance of probabilities that there is a reasonable excuse for there not being a recording on video tape of any admission then the prohibition of producing evidence of such an admission does not apply.
The wording of s 570D(2) is significant. The section provides:
"On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless ‑
(a)the evidence is a videotape on which is a recording of the admission; or
(b)the prosecution proves on the balance of probabilities that there is a reasonable excuse for there not being a recording on videotape of the admission; or
(c)the Court is satisfied that there are exceptional circumstances which in the interests of justice, justify the admission of the evidence."
The Crown relied on the words of Justice Ipp in "T" (A Child) v The Queen (1998) 20 WAR 130 at 139 ‑ 140 where his Honour, speaking of an admission which had been made in that case, at a time prior to s 570D being enacted - the section had later been enacted prior to the trial - said:
"Thus, at the time in question, a rule of practice was enforced to the effect that it was highly desirable, when video facilities were available, for police to make use of them when interrogating witnesses. That is a far cry from s 570D which, by law, renders admissions inadmissible save in the circumstances set out therein. The point of the rule of practice was to ensure that steps were taken to prevent the admission of a confession that was not true, or that was made in unfair circumstances. Section 570D is aimed at the same purpose. In my view, if an accused person makes an inculpatory statement in circumstances held to be fair, and does not assert in any way (whether by way of cross examination of the Crown witnesses, or by evidence adduced by him or her) that the statement was false, and there is nothing to suggest that the statement might be false, it would not be in the interests of justice for the statement to be precluded from admission into evidence. In my opinion, such a situation would constitute 'exceptional circumstances' within s 570D(2)(c)."
In my view, his Honour's statement in "T" (supra) should be considered with the facts of that case which were exceptional including that when the admissions in that case were made, s 570D was not in force. That decision concerned an appeal from a wilful murder conviction which had arisen from the death of the deceased on the 20 September 1995. At that time the legal position was governed by decisions such as Kelly v The Queen (1994) 12 WAR 405 and Sell v The Queen (1995) 15 WAR 240.
In the present case, in my opinion, there were no exceptional circumstances which in the interests of justice justified the admission into evidence of the statements made by the appellant Ahmad to the police officers. Those officers had had approximately three hours after they had arrived at the premises (plus the time before they arrived) to arrange for a video camera which could have been used to follow the appellant through the premises whilst he was being questioned concerning the various items which were found. That is the way police investigations are now conducted. It is the way they should have been conducted in this case. For the police to have used an audio tape when a video could have been used was contrary to the express provisions of s 570D(2) which are set out above. There was no reason given why the police officers did not attempt to obtain video recording equipment. That was conceded on the voir dire. There had been ample opportunity for the police officers to obtain a video machine.
It was put for the appellant Ahmad that on the audio tape the appellant had admitted that the hunting knife found in the house was his and that the second most important admission was that he had said that he and his girlfriend, the appellant Hanby, were the only occupiers of the house.

Counsel for the appellants conceded that there had been clear evidence that they were occupiers of the premises but said there was no evidence apart from the admission on the tape that they had been the only occupiers of the premises. It was submitted that the effect of the admissions on the tape meant that the appellant was required to ultimately give evidence in his defence to explain those answers further. He had said in evidence that another man, Mr John D'Archangelo had had the run of the house from the evening of the 14 December through to approximately 1.00 pm on the 15 December. He did not deny in evidence that the hunting knife was his but he denied exclusive occupancy of the premises.
It was argued that by the admission into evidence of the conversation on the tape which had caused him to give evidence, a miscarriage of justice had occurred.
Counsel submitted that if the audio tape had not been admitted into evidence there would have been no admission against interest in relation to the occupancy of the premises. The appellant could have said: "Prove that I am connected to these items which connect me to this property and to Mr Foo."
It was conceded that the evidence in the case linked the appellant Ahmad to the premises where the victims were detained. However the evidence was much stronger than that. The appellant was there with the appellant Hanby when the police arrived. The jewellery from the house of the kidnapped victim was in the main bedroom. A knife similar to that used in the kidnapping was also at the premises together with binding tape which had been used to secure Mrs Choo. Also Mrs Choo had identified similar premises. Neither of the appellants were able to explain how Mrs Choo's jewellery happened to be mixed up with the appellant Hanby's jewellery. There was a rifle found at the premises; also the black aprons and balaclavas and the notes concerning "a job" at the relevant time. Incriminating phone calls were made from the premises and a cardboard box was found there, similar to one in which Mrs Choo had been taken to be liberated in Fremantle.
In answer to that it was submitted that those facts were consistent with the appellant Ahmad being nothing more than a receiver of stolen goods. However when the notes concerning a proposed "job" and the telephone calls from the premises and the other evidence already referred to are considered, it was much more than a prima facie case. The appellant Ahmad would have been required to give evidence to explain all the evidence at the premises including the balaclavas, the knife and the black aprons. Unless there was a sufficient explanation from the appellant as to how all the relevant items happened to be in the premises where he was a very short time after the kidnapping took place, his conviction would have been inevitable. Once he gave evidence the admissions in the video would have been made again and he would have been in no better position.
For the foregoing reasons, in my view no miscarriage of justice occurred in this case arising from the admission into evidence of the audio tape, even though I do not think the audio tape should have been admitted.
I would not uphold this ground of appeal.
Concerning the second ground of appeal, that the learned trial Judge erred by ruling that the prosecution was not obliged to either call or make available at the trial, the suspect Mr D'Archangelo, thereby giving rise to a miscarriage of justice, the appellant conceded that Mr D'Archangelo had never been listed as a witness on the indictment. However, it was common ground that the police had thought he was a prime suspect. They had interviewed him at length in Victoria. They had also taken swabs and finger prints from him. At the trial they said that their enquiries concerning him and his involvement in this incident were inconclusive. He had denied involvement in the crimes.
It was clear that Mr D'Archangelo had been in this State between the 15 and 16 December 1997. It was submitted that because Mr D'Archangelo had not been called by the prosecution, or made available for cross examination, the defence had been hampered. It was argued that during an interview with Mr D'Archangelo, the police officers had put it to him that he had been the driver of the blue van which had taken Mrs Choo from her home to 36 Barrett‑Lennard Parade. However, he had denied that. He had also told the police that he had never met Ms Hanby at the Raffles Hotel.
The police officers maintained that although they had suspected Mr D'Archangelo of being involved, their enquiries with respect to his involvement had been inconclusive. There was evidence that Mr D'Archangelo had been at the Raffles Hotel between the 7 and 11 December 1997 and had booked back into the hotel on the 14 December 1997, being the date of the offence. It was submitted that one of the investigating detectives, Detective Sergeant Smith, had described him as "a red hot suspect". The statement Mr D'Archangelo made to the police officers did not exculpate the appellant Ahmad. Mr D'Archangelo had denied any involvement in the offences in his interviews with the Victorian police.
It was submitted that the trial Judge had said to the defence "If you wish to call the evidence concerning Mr D'Archangelo and it's going to exculpate you, you call it". It was argued that that would have put the defence at a considerable disadvantage because they would have lost the ability to cross examine Mr D'Archangelo. Also that if the defence had had to call Mr D'Archangelo it would have created an impression with the jury that he was in the defence camp rather than a prosecution witness. Further, that the consequence of the Crown failing to call Mr D'Archangelo had had an impact on the way in which the defence then had to conduct their trial. It had lost the opportunity of cross examining Mr D'Archangelo. It meant that the appellant Ahmad had to give evidence about Mr D'Archangelo.
It was submitted for the appellant Hanby, that she had obviously lost the opportunity of cross examining Mr D'Archangelo. It was contended that although the Crown had not had to call Mr D'Archangelo, in the context of the trial, it had not been fair to either of the accused not to make him available for cross examination. It was contended that the failure on the part of the Crown to call Mr D'Archangelo had in all the circumstances resulted in a miscarriage of justice. That the appellants had lost an opportunity of an acquittal because of the failure of the Crown in this respect.
It was argued that Mr D'Archangelo had been staying at Ahmad's residence and that Hanby and Ahmad had gone to the Raffles Hotel and stayed the night. They had remained there until 1.15 or thereabouts on the following day. Mr Ahmad had had to give that evidence and was subject to cross examination on it. He had lost the opportunity of cross examining Mr D'Archangelo on that question. However, there had been unequivocal evidence that Mr D'Archangelo had been at the Raffles Hotel in November and had rebooked on the 14 December to stay at the Hotel.
It was submitted for the appellants that Mr D'Archangelo had been described as being about five foot nine inches and of slim mediterranean appearance, and that may have fitted in with some of the identifications of either the appellant Ahmad or the other man, Kuc, who was mediterranean and had been described as of slim build and anywhere between five foot ten inches and six foot two inches in height. It was submitted that because the record of interview between Mr D'Archangelo and the police had not been given to the defence until the day of the trial, avenues for the defence had been cut off; that the failure of the Crown to make him available had been devastating in the terms of the conduct of the trial for both the appellants.
The appellants relied on the sixth proposition in R v Apostilides (1984) 154 CLR 563 at 575 which is that a decision by the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. It was submitted that in this case the Crown had used Room 28 at the Raffles Hotel and the blue van as links in the chain in a circumstantial case. By not calling Mr D'Archangelo, counsel for the appellant Hanby had been unable to elicit that Mr D'Archangelo had been at Room 28 at the Raffles Hotel and connected with the blue van. The appellant Hanby, in her video record of interview, had said she had never been to the Raffles Hotel whereas other Crown witnesses had said that she had.
Mr D'Archangelo had said that Hanby had never been at the Raffles Hotel with him. Hanby had said in the record of interview that she had never ever been to the Raffles Hotel. It was the Crown's case that Ms Hanby had been to the Raffles Hotel on at least three occasions, including on one occasion with Ahmad to book Mr D'Archangelo into the Raffles Hotel. It was submitted for the appellants that as Mr D'Archangelo had said he had never seen Hanby at the hotel, that went part of the way to supporting her case that she had never been there. It was further contended that Mr D'Archangelo had been inextricably linked to the whole circumstances of the offences and the Crown should have called him for cross examination.
There was evidence available that Ahmad had been seen with Mr D'Archangelo on a number of occasions; further that Ahmad had been seen with Kuc at the Raffles Hotel on a number of occasions. He had also been seen at the Raffles Hotel on at least three occasions with Ms Hanby.
It was further submitted that the Crown had relied on a video record of the interview with Hanby in which she said she had never been to the Raffles Hotel. The Crown had then called three witnesses to say effectively that they had seen her there three times. It was argued that the initial failure of the Crown to disclose the evidence against Mr D'Archangelo had had devastating consequences for the way in which the preparation of the defence could have been conducted; further that the failure on the part of the prosecution to call Mr D'Archangelo when it knew he was "a red hot suspect" had had the consequence that the trial had miscarried.
It was part of the Crown case that Mr D'Archangelo and a man called Ziad had been referred to in certain notes found at the appellants' premises. Mr D'Archangelo and Ziad were found to have connections with the Raffles Hotel at the time of the offences.
The audio tapes of the police interviews with Mr D'Archangelo and Ziad were disclosed to the defence after the trial Judge ruled that they should be disclosed. However, other matters such as the fingerprints and oral swabs were not shown to the defence. Ahmad gave evidence at the trial that on the night in question Mr D'Archangelo had had "the run of the house at 36 Barrett‑Lennard Parade in Winthrop".
In Apostilides (supra) at [575] Gibbs CJ and Mason, Murphy, Wilson and Dawson JJ said that:
"6.A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
Their Honours also said at [576]:
"A decision whether or not to call a person whose name appears on the indictment and from whom the defence wishes to lead evidence must be made with due sensitivity to the dictates to the fairness towards an accused person."
At [577] their Honours said:
"It remains to offer a comment on the six propositions. In Richardson (1974) 131 CLR at p 121 ‑ 122 the Court said:
'Once it is acknowledged that the prosecutor has a discretion and that there is no rule of law requiring him to call a particular witness, it becomes apparent that the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice.' "
Their Honours continued:
"In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witnesses had on the course of the trial and its outcome."
Their Honours continued:
"Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. Whitehorn (1983) 152 CLR 657 was regarded as such a case, by some at least of the members of the Court who took part in that decision. The absence, for whatever reason, of any evidence from the complainant was the basic reason, in the light of such evidence as was called, for the Court's conclusion that the verdict was unsafe and unsatisfactory. So if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct, but whether in all the circumstances the verdict is unsafe or unsatisfactory."
At [578] their Honours said:
"Although their Honours took a different view of the law from that which we have stated, in the end the question for the decision was whether the failure of the prosecutor to call Tibballs and Brodie and the fact that the respondent (the accused) was obliged to call them, so prejudiced the respondent in the conduct of his defence that a substantial miscarriage of justice resulted."
The question then is, whether the appellants in this case were so prejudiced in the conduct of their defence that a substantial miscarriage of justice resulted from the decision by the Crown not to call Mr D'Archangelo.
Mr D'Archangelo was not named as a Crown witness on the indictment. However, he could have been subpoenaed by the defence if it was desired to call him as a witness.
I cannot see that the failure of the Crown to make Mr D'Archangelo available for cross examination has resulted in a substantial miscarriage of justice in this case. It may be that Mr D'Archangelo was somehow involved in the offence. Even if he was, he had denied in his interview with the police that he was involved. The evidence against the appellants was overwhelming. There were telephone calls made from their premises. They were found with the jewellery and coins which had been stolen from the Foo residence. There was considerable evidence that Mrs Choo had been detained at their premises. There was all the other evidence, eg balaclavas, gloves, notes, aprons, knife, rifle, cardboard box etc found at the premises. The fact that the appellants were denied the opportunity to cross examine Mr D'Archangelo can be distinguished from the facts in the Apostilides case (supra) where it was not alleged that either of the two witnesses Tibballs and Brodie had been involved in the offence. Rather it was thought that those witnesses, having been present earlier on the relevant evening, could have given evidence which could have assisted the appellant in that case to escape conviction.
In this case, the prosecution could not have expected Mr D'Archangelo to do anything but damage the Crown case. In those circumstances the decision not to call him as a witness or make him available for cross examination was in my view justified.
I would not uphold this ground of appeal for either of the appellants.
Therefore it follows that the appellant Ahmad's appeal should in my view be dismissed.
Ground one of the appellant Hanby's appeal, is that the learned Judge erred in ruling that the video tape record of interview conducted by Detective Sergeant Smith and Detective Butler with the appellant on the 16 December 1997 was admissible. It is contended that the admissions made by Ms Hanby in that interview were not voluntarily made; further, that the prejudicial effect of the video taped record of interview far outweighed any probative value and that it created an unfairness to the appellant which was not cured by the direction of the learned trial Judge to the jury.
With respect to the question of whether the appellant Hanby's interview was voluntary, at the hearing of this appeal, counsel advised that he did not rely on the fact that she had suggested that she had been overborne by physical abuse by the police officers, or the medication which she had taken. Counsel advised that he relied on those points ultimately in terms of unfairness; also that the prejudicial effect in relation to the admission of the record of interview far outweighed any probative value it may have had.
With respect to the alleged lack of voluntariness, counsel said he relied only on the lack of a proper caution. It was said that in the course of the video interview the appellant had made significant admissions in that she had admitted staying at 36 Barrett‑Lennard Parade, Winthrop. She had also admitted that she was in the premises on the 14 December 1997. The appellant admitted in the interview that the jewellery which had been located by the police on the premises was not hers. She said she did not know whose it was. She said that, to her knowledge, no other people were staying in the house on the previous Sunday night besides herself and the appellant Ahmad. She also said she had never been to the Raffles Hotel.
It was contended that the appellant had not been properly cautioned before making those admissions because she had not been told that whatever she said might ultimately be used in evidence. She had been warned that she did not have to say anything. However, it was submitted that because she had not been told that what she said could be used in evidence, that had taken away the voluntary nature of what she said. Counsel said he had been unable to find any authorities which advanced the last mentioned proposition.
On the voir dire the learned trial Judge found that the warning had not been given in the usual form in that it did not make reference to the fact that anything which the appellant said could be used in evidence. The Detective Sergeant had said that that was an oversight on his part. The learned Judge said:
"Having regard to the accused Hanby's age and the capacity shown by her during the interview, I am confident that she would have appreciated the purpose of the video recording and the use to which it might be put. It is naïve to suggest otherwise, and I am fortified in that view by the fact that she did not elect to assert a contrary position in evidence."
The learned trial Judge said that having had the opportunity of viewing the video of the interview which covered a significant period of time, he had no hesitation in concluding that the appellant Hanby's participation was voluntary.
The Detective Sergeant had said to the appellant "I must warn you, however, that you are not obliged to say anything unless you wish to do so and anything you do say will be recorded on the video."
In my view, once the appellant had been told that she did not have to say anything to the police officers and she went ahead and answered their questions, in all the circumstances of the interview, it should be taken that she must have known that her answers might be used in some way.
I have viewed the video which was produced in evidence with some editing and I have also read the unedited transcript of it. In my view, once the adult appellant knew that what she said was being recorded on video, she would have known that it might be used against her later in evidence. She certainly displayed a knowledge of what she said the police were trying to do to her. Ms Hanby was also not backward in making various allegations and protests during the interview.
In my view, Ms Hanby's interview was properly held to be voluntary.

The next question is whether the interview should have been excluded in the exercise of the Judge's discretion. Counsel relied on the fact that the learned trial Judge had said amongst other things "Well, it was 6.00 am in the morning. With great respect to Sergeant Smith, he did do a fair amount of yelling and that causes me some concern Mr Urquhart. At the end, from both parties there was a rather vigorous discussion."
The learned prosecutor replied that with respect to the Detective Sergeant "doing his share of the yelling", that had occurred only after certain allegations had been made by the accused regarding the conduct of police.
It was further submitted that the appellant Hanby had been apprehended at midnight. Afterwards she had had three "panadene forte". The appellant had also been to hospital prior to the interview. She had then been administered medication, which had include opiate. She had had no sleep by the time she was interviewed. The interview commenced at 6.15 am and finished at 7.21 am.
On the voir dire the learned Judge came to the conclusion that the video demonstrated very clearly that the appellant Hanby was advised of and understood that she had a right to remain silent and that she was in an entirely proper state to be interviewed, and at all times had demonstrated an appropriate cognitive capacity, which at times verged on agility. His Honour referred to the evidence of an experienced registered nurse from St John Ambulance who had taken Hanby to the St John of God Hospital at Murdoch. The Judge said:
"His evidence lent strong support to the fact that she was not physically or psychologically debilitated to an appreciable degree and that she had appropriate cognitive capacity."
Dr Heights from the hospital had expressed satisfaction as to Hanby's cognitive capacity and said that at the time of the interview her cognitive capacity would not have been influenced by the ingestion of the medication prescribed. His Honour accepted Dr Heights' evidence.
His Honour concluded that Hanby's participation in the video interview had been voluntary and that in the absence of evidence from her, there was no suggestion that her responses were unreliable. It had been put to the learned Judge that the interview had been of an overbearing nature. He came to the conclusion that having regard to his findings generally, the appellant had failed to discharge the burden upon her in respect to the exclusion of the interview from evidence.
At the trial, counsel for Hanby agreed that certain matters could be exercised from the record of interview. Hanby did not give evidence at the trial.
The learned trial Judge told the jury:
"I need to give you a warning about that. You may well think as the Crown has said, that Ms Hanby gave quite a good account of herself on the video and the Crown says there is clear evidence that she was in the house on this night. But you must also take into account, the caution that she was given at the beginning is not the correct caution in that she was not told that what she was saying could be used against her in evidence, and that was a most unfortunate omission… It further has to be said that Sergeant Smith adopted what could be described as a fairly robust approach to Ms Hanby and you may well think that he was a busy man with much to do, but it has got to be taken into account that this was not an even playing field."
The Judge also said that the jury should take into account that Ms Hanby was tired and on medication.
It was submitted for the appellant to this Court that no direction could have cured the defects concerning the video; that the video record of interview with Ms Hanby:
"was a screaming match between the police and Ms Hanby at various points. What you are then left with [after the editing], is the sanitised version and some answers that are out of context, and that's the problem."
It was submitted that once the video had been edited, what had been left had been an apparently amicable conversation between Ms Hanby and the interviewing sergeant. However, some of the discussion had in fact been quite "vociferous".
The learned trial Judge also told the jury that counsel:
"has talked to you about tiredness, medication - these are matters to be considered by you when you are deciding whether you will rely on the video evidence, and the Crown puts it before you and says you should."
Counsel for the appellant stated that he would not disagree with the proposition that the learned trial Judge had been meticulous in attempting to direct the jury as best she could.
On the appeal it was contended that the video interview was very important because amongst other things, the appellant had admitted that she had been at the house and that to her knowledge no other people were staying there. She had also admitted that some of the jewellery which was found at the house was not hers. Importantly, she had said she had never been to the Raffles Hotel. It was conceded that that was a lie and that the Crown had called evidence to prove it.
In my view, the alleged lie by Hanby about not having been at the Raffles Hotel which was contained in the video, would have been a relatively minor matter in the scheme of the evidence in this case.
It was submitted that if the video record had not been put into evidence there would have been a weak circumstantial case against the appellant Hanby, with no particular identification evidence other than she had been at the Raffles Hotel and that some person who had detained the victim at the Barrett‑Lennard premises had been a female with soft skin.
In my opinion, there was more evidence than that against the appellant Hanby. There was the stolen jewellery in the room where she had been sleeping. There was black adhesive tape in the premises with the victim's hair on it. Ms Hanby and Mr Ahmad were both living at the premises. There were the telephone calls made from the premises which tied these premises in with the kidnapping. There was the evidence that the appellant Ahmad had been involved with the van at the Raffles Hotel. That van had a corrugated bottom in it. A piece of tape was found in it. There was all the other incriminating evidence found at the Barrett‑Lennard premises. The victim was taken to Fremantle in a cardboard box and emptied out of it. A large cardboard box big enough to contain her was found at the Barrett‑Lennard premises. Having considered all these things the jury convicted her of all the charges. The appellant gave no evidence at the trial denying any part in the kidnapping.
It was further submitted that although Hanby might have been convicted of some of the charges, there were nine counts on the indictment and not just the one of kidnapping. There were five counts of deprivation of liberty which she was convicted of and there was the extortion attempt on the husband Mr Foo.
It was also argued that in the video the appellant had admitted that she had been in the house on the night of the 14 December and that she had admitted that the jewellery which had been located by the police was not hers and she did not know who it was. The fact was that the jewellery was located by the police officers in the room in which the appellant Hanby had been sleeping with Ahmad. It could have been identified by Mrs Choo as being hers. Unless the appellant had given evidence that she had not been in the house on the night of the 14 December, on all the other evidence the jury could have inferred that she had been there.
In my view, it does not matter that somebody else might have been at the house as well. The jewellery was found in the room where this appellant was. The phone calls came from those premises. This appellant had been staying there for some time. She was booked to go to Brunei with Ahmad after the offence had been committed. Mrs Choo had given evidence which was consistent with the appellant looking after her at the house.
Counsel for the appellant conceded that there had been independent evidence apart from the video that the appellant had been at the house; further that the description given by Mrs Choo matched hers. Mrs Choo had said that there was a woman in the house and that her skin was very soft.
In all the circumstances in my view, it could not be said that the learned Judge should not have allowed the video interview into evidence.
I would not uphold this ground of appeal.
The second ground of Hanby's appeal concerned an unopened roll of black tape which had been found at the house by the police officers when they searched it. It was contended that the learned trial Judge had erred in allowing that roll of fabric adhesive tape to be admitted into evidence as tending to prove the appellant's involvement in the offences; that the prejudicial effect of that evidence outweighed its probative value.
It was conceded for the respondent that the tape was not identical to the tape which had been used to bind the victims. It was similar to it. The Crown had contended that the tape could have been purchased to assist in tying up the victims, as was the similar tape which was used for that purpose. The similarities of the tape were the colour of it and the width. However, it had a different chemical composition in its adhesive. It had been submitted at the voir dire that the tape was not a common type of tape. However, it was said it was easily obtainable at Kmart.
The appellant contended that the danger was that the tape was an unrelated piece of evidence which had very little probative value, but great prejudice. Added to that, was the fact that the appellant Hanby's fingerprint was on that piece of evidence. It was submitted that it elevated the tape to a higher plain than it otherwise should have had.
At the trial the learned trial Judge directed on that evidence and said it did not really take the jury anywhere. However, on appeal it was submitted that the prejudice was very difficult to try and cure by a direction, particularly as the prosecution case was a circumstantial evidence case. The tape had had the appellant Hanby's fingerprint on it. It was submitted that the jury might have given it greater emphasis than was appropriate.
The admission of the tape was relevant because the victim was tied with similar but not identical tape. In the same premises there was other used tape. The trial Judge told the jury that its use was very limited.
It was submitted for the appellant that although the appellant Hanby had not given evidence, there may have been an innocent explanation.
The Crown had submitted at the voir dire that the tape was not of a type commonly found in a domestic situation. The learned Judge had held that the discovery of the roll of tape was relevant and admissible. The Crown had contended that the tape had potential probative value in a circumstantial case.
It was conceded for the appellant that the tape was marginally relevant. The Judge had said that in the direction to the jury. The fact that Hanby's fingerprint was on the tape did not take the matter any further. It just showed that Hanby had handled the tape.
In my opinion that piece of evidence could not be said to have led to a miscarriage of justice in all the circumstances of this case. It was a relatively minor piece of evidence.
Ground 2 of the appellant Hanby's appeal should not in my view be sustained.
I have already expressed the view that Ground 3 of Hanby's appeal concerning Mr D'Archangelo should not be upheld.
In my opinion, Ms Hanby's appeal should be dismissed because the grounds of appeal have not been made good and on all the evidence the case against her was overwhelming. The jury convicted Ms Hanby on all the charges after it had heard all the evidence. I think the jury was entitled to come to that view.
The result is that in my view both the appeals should be dismissed.

STEYTLER & MILLER JJ: We have had the advantage of reading the reasons for decision of Wallwork J. Subject to one reservation, we are in general agreement with them.
That reservation relates to the admission of the audiotape evidence against the appellant Ahmad. Because the evidence against that appellant was, for the reasons identified by Wallwork J, overwhelming, even in the absence of the audiotape evidence, it seems to us, as it does to Wallwork J, that there is no substance to the contention that a miscarriage of justice occurred as a consequence of the admission of the evidence. In those circumstances we would prefer to leave for another day the question whether circumstances of the kind identified in this case are sufficient to amount to "exceptional circumstances which, in the interests of justice, justify the admission of the evidence" (as 570D(2)(c) of the Criminal Code).
This single reservation aside, we would, for the reasons given by Wallwork J, dismiss each appeal.