Asciak v The Queen

[1991] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P25 of 1991

B e t w e e n -

JOHN ASCIAK

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ TOOHEY J MCHUGH J

TRANSCRIPT OF PROCEEDINGS

Asciak 1 22/10/91

AT PERTH ON TUESDAY, 22 OCTOBER 1991, AT 10.45 AM

Copyright in the High Court of Australia

MR A.S. HODGE:  May it please the Court, I appear with my

learned friend, MS R. MENNA, for the applicant.

(instructed by the Legal Aid Commission)

MR R.J. DAVIES, QC: If the Court please with

MR J.A. SCHOLZ, I represent the Crown. (instructed

by the Director of Public Prosecutions)

MASON CJ: Yes, Mr Davies. Mr Hodge.

MR HODGE:  May it please the Court, this is our application

for leave to apply out of time for special leave
against the decision of the Court of Appeal which
refused to allow the appeal against conviction on
the charge of conspiracy to import heroin into

Australia by the applicant. It is our submission that the issues as to the seriousness of the matter

which might engage your intention are these: first, on a serious charge which is stale, where the only

evidence against an accused comes from one witness

and where the accused denies the allegation on

oath, does a trial judge have a duty, first to see

whether there is evidence capable of supporting the

conclusion, either that the witness was criminally

involved or was otherwise suspect as having

interests of her own to serve; secondly, to put

this evidence to the jury; thirdly, then to see

whether there was evidence capable of amounting to

corroboration; fourthly, and to put this evidence

to the jury or tell them there is none; finally,

and to warn them of the dangers of convicting on

the evidence of this quality which is

uncorroborated.

The second question we say that arises in this

appeal is, does this duty arise only when the

witness could have been convicted of the offence

charged, as in the case of Davies in the

House of Lords, or does it arise whenever, in the

circumstances of each particular case, there is

evidence that the witness was criminally involved

or was involved in the facts of a criminal

enterprise or was otherwise suspect as having

interests of her own to serve, which we suggest is

a test derived effectively from those authorities

which have followed Prater's case in the Court of

Appeal in England.

Thirdly, does this duty arise from the duty of the trial judge to secure for the accused a fair

trial and does it therefore arise independently of

whether the issue is raised by counsel for either

side?

Next, does the failure to apply these

principles ordinarily give rise to a perceptible

risk of miscarriage of justice and finally, if the

Asciak 2 22/10/91

answer to these questions is favourable to the

applicant, is it likely that this will result in an

order that the conviction be quashed?

The grounds upon which we rely to suggest that

these questions involve matters of public

importance sufficient to engage the attention of

this honourable Court are fourfold: first, this is

an issue of general application throughout

Australia; secondly, there are no authorities of this Court directly on point; next, State courts,

in our submission, are, at least in part, divided

on the point and this decision by the

Court of Appeal of Western Australia would only add

to the confusion, particularly since it is a

decision on Commonwealth legislation, a

Commonwealth offence, capable therefore of being

regarded with persuasive authority throughout

Australia.

And finally, it is submitted that guidance is

required from the High Court, not only for the

benefit of trial judges, but also for the benefit

of prosecuting authorities, the numbers of which
are increasing, and in the light of increased

number of investigative or inquisitorial agencies.

And finally, if I could just complete this

submission, the increasing use of old charges, that

is stale charges, where corroboration is difficult

to obtain, particularly arising from royal

commissions, war crimes, war crimes legislation and

matters like that, which involves offences of fraud, corruption, drugs, sexual offences and perjury, as well, as I said, of war crimes.

Those are our general grounds for seeking to

engage your attention on what we say was a

fundamental error in the conduct of this trial.

MASON CJ:  Mr Hodge, I think at this stage we might be

assisted if we called on Mr Davies. That is not to

say, of course, that we are, as it were, disposed

to grant special leave in your favour, but you will

have an opportunity of meeting what Mr Davies says

in reply.

MR HODGE:  May it please the Court.

MASON CJ: Yes, Mr Davies.

MR DAVIES:  If the Court please, this was a case where the

evidence of one witness alone was relevant to the

charge against the applicant. It was a case in

which, on any view of the evidence, she could not

be regarded as an accomplice in the true sense

Asciak 3 22/10/91

where, as a matter of practice, a warning was

required.

McHUGH J:  Why do you say that; that she could not be

regarded as an accomplice? If she had been charged

as a party to this conspiracy, I find it difficult

to think that a submission of no case on her behalf

would have succeeded.

MR DAVIES: Well, with great respect, I would have to

differ, Your Honour. The evidence as set out in

our summary of argument - I do not like referring

to summaries of argument - was this: that she was

the occupant of the house; that she advertised for
a border and got Barlow; that she had introduced to

her, away from the house, the applicant; that she

formed a relationship with the applicant, who then

took to visiting regularly her house. Barlow

adopted the practice of bringing in the morning

tea. In those circumstances, she heard the

applicant importuning Barlow to do a drug run.	No
more than that.

McHUGH J: Well, first of all, the applicant openly

propositioned Barlow in her presence and therefore the inference was open that she knew that the drug

run was to involve heroin. She was present when

Chambers turned up to the house for the purpose to discuss the drug run with Barlow and she did not

object to that discussion taking place. She went

with the applicant to the house to collect the

$6000, being aware of its purpose.

MR DAVIES: With respect, Your Honour, if I may interrupt,

that was not the evidence. The evidence was that

she was not aware of the purpose and that he drove

her there and she went along.

McHUGH J: Well, but she was aware of the $6000, was she

not?

MR DAVIES:	She was aware that $6000 - well $4000, because she counted they lost two, but she was aware that a
substantial amount of cash was collected from a
home, the relevance of which, the home, she knew
not.

McHUGH J: Well that is what she said, but I am talking as to what the jury could have inferred against her.

She drove Barlow to get a passport, knowing the

purpose of his intended visit to Malaysia.

MR DAVIES:	And there, with respect, Your Honour, taking the opportunity to inquire about a passport for her own
children and in circumstances where Barlow was
unable to drive.
Asciak	22/10/91

McHUGH J: But she drove him to the airport for the flight

to Malaysia.

MR DAVIES:  At the same time, with respect, Your Honour,

endeavouring to encourage him not to do it at all,

because it was too dangerous.

McHUGH J:  She said that, but the jury did not have to

accept that; the jury may have taken the view that she was just putting a gloss on the facts. Barlow

rang her from Malaysia and informed her of a return

flight and she passed the information on and went

with the applicant to meet the flight at Perth
airport, when they did not turn up because they had

been arrested in Malaysia. Why could not a jury

come to the conclusion, on that evidence, that she

was a co-conspirator? She did not have to be

present "at the formation of the agreement", as the

court said at page 44 of the book. Conspirators

can come and leave a conspiracy.

MR DAVIES:  Your Honour, the Court of Criminal Appeal

examined that. The learned experienced counsel at

the trial did not suggest that she could be

regarded as an accomplice and I think, with

respect, the way Your Honour puts it is putting it,

not only at its highest, but in my submission, too

high, an attempt which was repeated in the Court of

Criminal Appeal and Their Honours, carefully

assessing all of the evidence, themselves said that

the propositions that were put to us put the idea

of her potential involvement too high. Now they

have assessed that, with respect Your Honour. Your

Honour clearly, with respect, may have thought that

a different inference was open, but that is all

Your Honour is putting to me. The Court of

Criminal Appeal had all that put to them and said, in our view, there is no basis upon which it could

be concluded that this person was an accomplice in

the true sense of the word.

Now, not only, with respect, did I say it

because it is our submission, but I bolster that by saying that the judgment of the court, having heard

voluminous argument, far more detailed than was

just passed, with respect, between Your Honour and

myself on this point, themselves concluded that on

a proper assessment of the evidence, bearing in

mind that the woman simply did nothing, did not

come forward and was not approached for two and a

half years, and then was a reluctant witness, that

they took the view that there was no basis upon

which one could conclude that she was an accomplice

in the true sense. They have assessed that, with

respect, Your Honour. You and I, with very great

respect, might differ as to the inferences that

Asciak	22/10/91 were open, but in our submission it really does not
assist this proceeding.
McHUGH J:	I interrupted your argument; you were developing your argument.
MR DAVIES:	Well you have really, with respect, taken me to

it, Your Honour. Those are the circumstances, the

Crown says, that place the position of this woman.

Now, if it be accepted that she was not an

accomplice in the true sense, there is no doubt as to the law in relation to that. My learned friend

puts forward, as though it is a novel proposition

that there will be cases outside those which fall

within the formal categories that require a
warning, but this Court has said so on numerous

occasions; it said so in Longman in relation to a

very old sexual offence case; it said it in

Bromley; it said it in Carr; it is well accepted in

all of the English authorities that there will be

cases where something specific to the case - if one

has a schizophrenic; if one has a person otherwise

mentally retarded; if one has identification

evidence where it grew up as being something

specific to the case - there is no doubt that that

is the law. It is accepted by Their Honours in

this case that that is the law, but what they say

in the judgment is, someone tell us, because no one

has yet pointed to it, what is supposed to be the

special interest that she had to protect.

Now again, with respect, Their Honours

assessed the available evidence and unanimously

said, "There is nothing in this case to suggest
that this woman was other than a person in front of

whom this was unfolded, who was not a person who then came forward seeking to pursue a particular

interest." In our submission, the Court of

Criminal Appeal did not need any new law to be

made; it is there. Clearly, if there is anything

in the case specific to the witness, then there is

a need for a warning tailored to the case; the

authorities are clear on that. Neither the trial

judge, nor counsel representing the applicant at

trial, nor the Court of Criminal Appeal, were of a

view that there was any matter that required a

warning in relation to the evidence of this mature

woman in this case.

Those are really our submissions in short

form, if Your Honour the Chief Justice pleases, as

to the way we would put the matter.

MASON CJ: Yes, thank you Mr Davies. Yes, Mr Hodge.

MR HODGE:  Thank you, Your Honour. With respect, referring to page 44 of the appeal book, which is the passage

Asciak 6 22/10/91

in the reasons for judgment of the court in its
unanimous decision, about ten lines from the foot

of the page having set out all the circumstances

which, it was suggested, supported the conclusion

that she could be regarded as an accomplice, they

concluded:

It is clear, in our opinion, that

Mrs Colyer-Long could not be regarded, on the

evidence -

by which they mean her evidence -

as being a party to the offence charged, that

is, to the conspiracy. She played no relevant

part in the formation of the agreement arrived

at between the conspirators.

Well, with respect, first of all it is accepted

that it is a mixed question of fact and law, as to

whether a person can be categorized as a
conspirator; secondly, it is our submission, as was

put by Mr Justice McHugh, that of course you can join an existing conspiracy and the law is quite

plain about that, and it is our submission that it

is sufficient to found liability, as it were, if

any person who, knowing of the existence of the

plan, intentionally does an act in furtherance or

which assists another to carry out the scheme, is

held liable as a party to the conspiracy and,

whatever her reservations may have been - and that
is only her word for it - as was put in the course
of argument, if she intentionally drives the man to
get his passport, knowing what he is going to do

with it, namely go to Malaysia on a drug run; if

she intentionally drives him to the airport

knowing, notwithstanding her fears, that he is

intending to fly to Malaysia on a drug run, then,

as far as our submissions are concerned, that is

plain evidence from which it could be inferred that

she was a party, in that sense, to the conspiracy.

That being the case, there is only, in our submission, two questions to be resolved: how was

it dealt with at trial? I accept the force of my

friend's submission that very experienced counsel,

who is present here today, to my embarrassment, for

reasons no doubt of his own and his client's then

perceived interest, did not put that to the trial

judge; did not seek a redirection. I cannot escape

that, but my submission is that if the

misconception by the trial judge or the failure by

him to discharge the duty which this Court holds

that he clearly had, is significant enough, then

conduct of counsel will not be held against the
question of whether a miscarriage of justice has

occurred.

Asciak 7 22/10/91

MASON CJ: It does suggest, does it not, it was a tactical

decision not to ask for a redirection.

MR HODGE: That may have been so. It clearly was never put

by either side that this woman was an accomplice.

The learned trial judge appears to have summarized

all of their arguments as to her credibility and on

neither side was there a suggestion that she was

capable of being regarded as an accomplice and the

reasons therefore or the reasons against; neither

side put it. Equally, as I say, had they put it,

and he omitted it, then there might be some

significance in the failure to seek a redirection,

but what we are saying simply is this, that the

trial went off on a misconception.	It was a
whistle-stop trial.	The whole trial lasted less

than three days; 18 witnesses, including the

accused, gave evidence in one and a half days; the

majority of the Crown case was led by way of
depositions without opposition, mostly from the

overseas witnesses; there were only three witnesses

as to fact involving Mrs Colyer-Long or Barlow, who

received slight cross-examination, and then there

was Mrs Colyer-Long. Her evidence firmly

juxtaposed against that of the evidence, on oath,

of Asciak, who gave evidence for half a day. Half
time on the second day, final speeches; finished

that afternoon. Next morning, 10 o'clock, a 35-

minute summing up.	Not once was there mention of
the question of accomplice.	Mrs Colyer-Long was

not cross-examined about it. There was no evidence

led in-chief from her as to the terms of any

arrangement she may or may not have made with the

authorities when they approached her; when they

took statements from her or the basis upon which

she came to give evidence. It was just not

adverted to.

So, our submission is that while that may

provide a reason, if you like, in causation terms

for the learned trial judge not to have directed

his mind to it, he was in fact, in our submission,

put on notice by the fact that Mrs Colyer-Long

herself had given evidence, and I must correct

something that is in the appeal book on this point,

where her evidence on two occasions was that the
applicant warned her, after knowledge of the

alleged arrest in Malaysia, that she could not go

to the police, because she was an accessory to the

fact. It is not, as in our outline of submissions,

"an accomplice" - that is wrong, and I apologize

for that - nor is it, as in my friend's outline of

submissions, "an accessory after the fact". The

words that she used on two occasions in evidence,

checking the transcript, were "accessory to the

fact". So, with respect, it is our submission that

the judge did have material before him which

Asciak 8 22/10/91

properly should have put him on notice. At the

very least, our submission is that it should have

been raised with counsel before directing the jury.

That might at least have assisted to make a

determination against this application on the

ground that counsel had positively turned his mind

to it and eschewed it.

McHUGH J: Well, could I get your assistance on this point,

because I would draw the conclusion myself that

counsel would probably have made a tactical

decision and thought that it was better to fight

the case the way it was fought rather than putting
to the jury, "Well, on this woman's account, she is
a co-conspirator, therefore you should reject her."

If counsel did make a tactical decision to that effect, what is the position then in relation to a

Court of Criminal Appeal?

MR HODGE:  With respect, we say that of course those

tactical decisions carry weight, but if at the end
of the day the trial judge did not discharge his

function properly, in a case which is very finely

balanced - and in our submission, this was -

McHUGH J: But that is the problem about this area in the

Pymble v The Queen type omission. It is one thing

for parties even to abandon it, but where counsel

has got a real tactical decision to make and

experienced counsel makes a choice, should the

court then intervene, because the case has not been

tried according to the theoretical rules which were

available?

MR HODGE: Well, with respect, the theoretical rules have

very practical application. In this case that

would have given a warning, whatever counsel had

said. Let us assume there was a tactical advantage

in not raising it, such as not wishing to put

credit an issue - I cannot speak for counsel; there

is nothing on the transcript to indicate that, but

trial judge had given the direction, then not only	it is one possibility - but let us assume that the
were there all the other grounds to look askance at
her evidence, namely conflicts of fact, mistake in
memory and the grounds that were advanced, in this
case the learned trial judge would have said, "Now
in addition to everything else that Mr Miller has said, I also warn you that there are certain
dangers about when you are dealing with the
evidence of a witness who, if you so find, was
capable as being regarded as an accomplice in this
transaction.", and this is exactly, with respect,
why the warning is required to be given, because there are circumstance not necessarily apparent to the jury, namely, she could have interests of her

Asciak 22/10/91

own to serve in seeking to escape conviction and in

seeking to lay the blame on another party.

Now, my submission is, when you look at how

that warning would have read in this case, and you

put it in the scales and you look at an otherwise

fair summing up which balanced the arguments on

either side as to credibility, my submission is,

you have got to have a grave fear, that whatever

may have been the motivation in not running the case in that way, the trial judge had a duty to

raise it. At the very least to raise it and seek

counsel's assistance on it before he addressed the

jury, particularly where it is not esoteric; it

seems to have arisen quite easily to the minds of

the court, as well as counsel in this Court, that

that was a course open; that that was a view of her

participation which sticks out.

So, our submission is that effectively the

applicant, Asciak, should not be disadvantaged if

at trial, for some reason that is not apparent in

this Court, learned counsel did not raise it with
the trial judge and it is suggested, in our

submission, that that cannot absolve the learned trial judge from his duty to the accused, to see

that he got a fair trial, and we say that when you

look at the strength of the warning that would have

been required, one can see how it is our claim that

there is a substantial miscarriage of justice that

we are looking at here, and one that should engage

the attention of this Court.

MASON CJ: Yes, thank you, Mr Hodge. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 11.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.20 AM: 

MASON CJ: The applicant's contention in this case is that

the trial judge should have warned the jury of the
danger of convicting the applicant on the
uncorroborated evidence of the principal Crown
witness, either because she was an accomplice or
otherwise a suspect witness. However, counsel did

not apply for a redirection on the point and that

may well have been a tactical decision.

Asciak 10 22/10/91

Having regard to all the circumstances of the case, including the way in which it was conducted

at the trial, we are not persuaded that there was a

miscarriage of justice or that this case is a

suitable vehicle for the ventilation of any

question of general principle. The application for

special leave to appeal is therefore refused.

AT 11.21 AM THE MATTER WAS ADJOURNED SINE DIE

Asciak 11 22/10/91