Chai v The Queen

[1992] HCATrans 282

-,/~~

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SSl of 1992

B e t w e e n -

JOHN NAM-YUNG CHAI

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J

TOOHEY J

GAUDRON J

Chai 1 1/10/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 1 OCTOBER 1992, AT 10.55 AM

Copyright in the High Court of Australia

MR B.H.K. DONOVAN, QC:  May it please the Court, in this

matter I appear for the applicant with my learned

friend, MS J.C. GIBSON. (instructed by Trevor

Nyman and Company)

MR T.L. BUDDIN:  May it please the Court, I appear for the

respondent in this matter. (instructed by

Commonwealth Director of Public Prosecutions)

DAWSON J: Yes, Mr Donovan.

MR DONOVAN:  May it please the Court. Your Honours, could I

indicate that the affidavit in support of the
application is at page 3 of the application book.

There is a second affidavit which appears at page 9 which, in fact, in effect, amends the grounds which

were set out at paragraph 10 of the first

affidavit, that paragraph 10 just simply being

incorrect.

At page 11 there are set out four specific

questions of law which are raised by the

application.	We propose, Your Honours, to produce
some oral argument on (a) and (b).	We are content
to leave (c) and (d) to the written summary.	The

written summary itself starts at page 14. It would

be of some use, however, if I just point out,

Your Honours, at page 22 there is a list of the

meetings which took place between the accomplice,

Choy, who was the principal witness, of course,

against the applicant, and various other people who

were alleged to be involved in the conspiracy.

That having been said, I would just depart perhaps

for the moment from the written summary which is in

the appeal book and raise certain issues with

Your Honours.

First of all, the Court of Criminal Appeal

itself recognized that the issues involved in the

matter involved matters of general public

importance, and that appears in Their Honours'

judgment, at page 5 of the judgment itself.

Your Honours, the application involves a

number of matters. Could I take them in order.

Firstly, it raises an issue whether there is a

power in a trial judge - I emphasize "power in a

trial judge" - to exclude evidence of an accomplice

who has not been dealt with either finally or at

all be.cause, of course, in the present case you

have an accomplice who is, if I might put it this

way, partly dealt with, in accordance with the

agreement in America for the ten year prison term.

Now, if there is - - -

Chai 2 1/10/92

TOOHEY J:  I am sorry, why do you say partly dealt with,

Mr Donovan?

MR DONOVAN: Well, what had happened was, he had entered

into - - -

TOOHEY J:  I appreciate the factual background I think, but

in a sense he had been dealt with had he not, so

far as Australia was concerned, by a grant of

immunity?

MR DONOVAN:  Indeed yes, as far as Australia is concerned he

is granted the immunity.

TOOHEY J:  So your reference to "partly dealt with" is a

reference to the fact that the plea bargain had

been made in the United States but not implemented?

MR DONOVAN: That is right. Taking for a moment the

question whether there is a power, there is then a
question whether such power to exclude the evidence
of the accomplice is based on a rule of law as was

suggested in Pipe, or a rule of practice as was

suggested in Booth, or a rule of discretion as was

suggested in Turner.

Now, Your Honours, the New South Wales Court

of Criminal Appeal have rejected the power based on

the rule of law as in Pipe. They did not deal

particularly clearly with the question of the rule

of practice, and they seem to have also rejected

the power based on the discretion preferring the
views of Mr Justice Carter in the Queensland Court

of Criminal Appeal case, McLean and Funk. That is

set out in Their Honours' judgment at pages 85 and

86 of the application book. What they seem to have

done is developed more limited categories of

discretion for excluding evidence which were

propounded originally in New South Wales in the

cases of Merrit and Roso and in the case of

Edelsten.

TOOHEY J: Mr Donovan, I do not understand why you isolate

power as an independent consideration, because

discretion must imply power.

MR DONOVAN: 

Yes, but what the Court of Appeal seem to have

done is gone so far as to say there is no
discretion either.

TOOHEY J: 

You mean there is no discretion to exclude?

MR DONOVAN: That is right.

TOOHEY J:  And therefore no power to exclude?

MR DONOVAN: Therefore no power to exclude.

Chai	1/10/92
TOOHEY J: Is that what they said?
MR DONOVAN:	I will take Your Honours to that point now.
TOOHEY J:	I am sorry, I do not want to divert you too much.

MR DONOVAN:  I can explain it this way: if I just go back

for a moment to the case of McLean and Funk. That

was a case where there was a reference to the

Queensland Court of Criminal Appeal, one of the

questions being, "Was there a discretion to exclude

such evidence?" Two judges there, Mr Justice Kelly

and Mr Justice Derrington, said that there was a

power. Mr Justice Carter said that there was not.

The Court of Criminal Appeal in New South Wales in

the two cases, Merrit and Edelsten, have developed

the limits on discretion where Their Honours say

there are three types of situations where evidence

can be excluded, and otherwise there is no residual

power or discretion to exclude. The three

categories are: confessional evidence, illegally
obtained evidence and evidence with minor probative
value where the prejudicial outweighs the

probative.

GAUDRON J: Well, where does the minor probative value creep

in?

MR DONOVAN:  "Minor" perhaps is the wrong word to use. I

tried to isolate that because what they seem to

have accepted is that where there is a major

probative value it does not matter if it is

prejudicial as well. I do not want to get caught

into that area necessarily, Your Honour, because I

do not think I need to deal with it. I was trying

to sort of isolate it, and perhaps I used the wrong

word.

GAUDRON J: But if there is a basis for the discretion in a

case like this by reason of the factors that you	refer to, it lies in the effect of those factors on	the probative value of the evidence anyway, does it
not?

MR DONOVAN: Well, that could be so.

GAUDRON J:  Or the reliability, which is perhaps the same

thing.

MR DONOVAN: Except that the Court of Criminal Appeal - if

you limit it to these three types of

categories: confessional type evidence, illegally

obtained type evidence, or evidence where

prejudicial outweighs probative value type evidence,

then you can have categories where reliability is

the issue but does not fall within one of those

Chai 4 1/10/92

three categories recognized by the Court of Criminal

Appeal.

GAUDRON J:  But the case with which you are dealing must

fall into the probative value type consideration,

must it not?

MR DONOVAN:	Not if one is looking at it in terms of the probative prejudicial link.	The Court of Criminal
Appeal has said - - -

GAUDRON J: Well, it is prejudicial.

DAWSON J: That is the ultimate test.

GAUDRON J: Let us not worry about that.

MR DONOVAN:  But one is using prejudicial in a sense that it

is something more than probative. The old

statement is that all probative material is

prejudicial. I do not run away from that. But the

category is where there is a prejudice over and

beyond the probative value. Now, this does not

fall into that category.

DAWSON J:  You are putting that to one side?

MR DONOVAN:  I am putting that to one side, yes. What I am

saying is that the - - -

DAWSON J:  No one is disputing the existence of the

discretion of the trial judge to exclude that sort

of evidence?

MR DONOVAN:  From those three categories, no, that is right.

But the Court of Criminal Appeal has come down, and

I will take Your Honours to the passage -

GAUDRON J:  You have to assert though that the discretion

that you say exists in a case such as this is of

quite a different category.

MR DONOVAN:	Yes.
DAWSON J:	And what is it?
MR DONOVAN:	It would have to be the residual discretion.

The problem is that - - -

DAWSON J:  What is the residual discretion? That is

presupposing what you are arguing for.

MR DONOVAN:  Perhaps that is right. Can I just put it this

way: the argument at the moment is that the Court

of Criminal Appeal, following the views of

Mr Justice Carter, had said there is no discretion.

Chai 1/10/92

Now, if that is wrong, then this Court should grant

leave, we submit.

DAWSON J: Well, now you are going tell us it is wrong.

MR DONOVAN:	Yes.
DAWSON J:	Why?
MR DONOVAN:	There are a number - - -
TOOHEY J:	I am sorry, could I just interrupt so it is clear

what we are talking about. When you say there is

no discretion I take it you are saying there is no

discretion to reject evidence merely by reason of

the fact that the witness is a person who has been

granted immunity from prosecution.

MR DONOVAN:  No, there is more to it than that. That is a

second point where the Court of Criminal Appeal

made an error because they dealt with this case on

the basis that it was a discretion only where there

was an immunity granted. In fact, what we say is

there is a lot more than an immunity issue in this.

There is an issue which involves an accused not

being finally dealt with who has, if I can put it

this way, massive inducements to adhere to

particular agreements that he has entered into; in

addition, where those agreements give the power to

decide whether he has co-operated or not to a
prosecuting authority - not to a court but to a
prosecuting authority, and indeed a prosecuting

authority outside this country.

DAWSON J:  It is very often the case with an indemnity

nowadays, is it not? Most indemnities, as I

understand it, are granted on the basis that the

witness sticks to the story he has given, and if he

does not, indemnity has no effect.

MR DONOVAN:  To some extent that is correct, but it is not

normally a situation where	the power is given to
the prosecuting authority.	If you take
section - - -

DAWSON J:  Who is it given to?

MR DONOVAN: It is given to the court. If you take, for

example, the Director of Public Prosecution's power

under section 21E of the Commonwealth Crimes Act,
the Director can make application to the court, but
the court makes the assessment of whether the

sentence should be increased or not.

DAWSON J: In New South Wales, is it?

Chai 6 1/10/92

MR DONOVAN:  No, this is the federal Commonwealth Crimes

Act.

DAWSON J:  What is the section?

MR DONOVAN: Section 21E, I think it is, Your Honour, or

21D. Can I emphasize this: it is a quite unusual

situation for the power to be given to the

prosecuting authority itself to decide itself

whether - perhaps I can hand up copies,

Your Honour, which my friend has just passed to me.

DAWSON J:  Does this have a counterpart in State

legislation?

MR DONOVAN:	I do not think so, Your Honour, no.
DAWSON J:	No, it seems a grey area in State jurisdiction.

MR DONOVAN:  I am fairly certain not. Your Honour, can I

deal with it this way. I will take it slightly out of order the way I was going to. Could I deal with

what is in the agreements which shows the position

that this witness, Choy, was in.	I will not go
through all the agreements;	I just want to

highlight certain points in them. If we start at

documents that were available to show this

page 68 of the appeal book, paragraph (10).

agreement: one was a tripartite agreement between

Hong Kong, Australia and the United States; one

was between Choy and Hong Kong, that is at page 69;

and one was the letter from the American

prosecutor, if I can call him that, at page 72, to

Mr Choy's attorney.

Dealing with the tripartite agreement first of

all, page 68 paragraph (10):

That CHOY will not be sentenced with respect to the charge to which he pleads

guilty in the USA until such time as the full

extent of his co-operation with the USA,

Australia and HK can be determined and that no

sentence will be pronounced in respect of that

plea until such time as CHOY has been given

full opportunity to comply with all requests -

et cetera, made in those jurisdictions. Coming

then to the second agreement, that is Choy and

Hong Kong, at page 71 paragraph (10):

That should CHOY breach any of the terms

and conditions of this Agreement he shall, if

not within Hong Kong, be returned to Hong Kong

forthwith where he will be required to stand

trial in respect of Indictment Number 200/1987

Chai 7 1/10/92

consider appropriate.

and any other such charges as the Attorney

I pause there to say that we do not know anything

about what other charges the Attorney General of

Hong Kong may think appropriate or what material is available to support any charges or anything of

that nature. Paragraph (11):

That provided CHOY makes substantial

compliance with the terms of this Agreement,

Hong Kong agrees not to institute criminal

proceedings against TSE Man-lai -

who apparently is, on the accepted material before

the court below, the girlfriend of Choy. Again, we

do not know anything about what might be

outstanding against her or anything of that nature.

Could I just pause there to point this out:

that as is mentioned later, what we do know about

him is that he was involved in some 300 kilograms

of heroin importation throughout the United States

from Hong Kong. We also know, according to his own

evidence, that he was involved in conversations

concerning heroin importation in mainland China, so

that he is looking at not just the ten year term,

which is the partial plea bargain, but he could be

looking at another 20 years, and indeed, if taken

into mainland China itself, there could well be a

death penalty involved. So we are looking at what

I might term, Your Honours, massive inducements,

inducements of a type which, in our submission,

have not hitherto until recent times, been brought

before the courts of Australia, and the sorts of

inducements which have not been looked at by

appellate courts in any depth in this country.

I am getting a little bit ahead of myself, but

if I can say this: it involves questions of

international policy. It involves questions of the

size of the inducements, because it is one thing

when you have got someone who is down the line and

who is looking at a small inducement of a couple of

years; it is another thing where you have the "big

men" in the trade, and this man is stated in the

papers to be a person who is involved in "massive

importations of heroin". That is the phrase used,
that is the phrase accepted by the Court of

Criminal Appeal, the phrase accepted all the way

through.

It is difficult to comprehend the shift that this is making in the approach we are going to have

to take to international drug trade, because there

are other factors which are problematical, namely,

Chai 1/10/92

in our normal course, the courts here and juries
will view people giving evidence according to a

particular tradition of truth in giving evidence, a

Judaeo-Christian tradition. We are looking at

people who are coming from a totally different

background, and in those circumstances it is extremely important that the issues of these massive inducements be looked at very carefully.

Let me add this to it - - -

DAWSON J: Well, we can assume for the purposes of argument

that the inducement to stick to the story you had
told was very strong indeed for the purpose of

saving his own neck.	We can accept that for the
purposes of argument.

MR DONOVAN:  Could I point out then, Your Honour, just

before I go back to that argument itself, page 73

of the application book, paragraph 1 at the bottom
of the page deals with the plea being guilty of

heroin; and then at the bottom of the page -

that a sentence of no more than ten (10) years

is appropriate.

Page 74, paragraph 3, which is a most important

one:

This office, prior to sentencing, will advise

the sentencing court of the nature and extent

of Mr Choy's co-operation -

so far perhaps OK -

including its investigative and prosecutive

value, truthfulness, completeness and

accuracy.

This is the next important passage:

In this connection, it is understood that this

office's determination of the value -

et cetera -

shall be binding upon the defendant and its

statement to the sentencing court may be made

either orally or in writing.

So he is not here to satisfy an independent judge.

He is here to satisfy an office which has a direct partiality in him giving evidence - - -

DAWSON J:  We are going over the same point again. The

inducement is strong for him to stick to his story.

We accept that for the purposes of argument.

Chai 9 1/10/92

MR DONOVAN:  Very well. Could I just then draw attention,

Your Honour, to page 75, the top of the page there, which just simply sets out that if he does not do

it, then the agreement is null and void.

DAWSON J: It is the same point.

TOOHEY J:  But what is the proposition of law here,

Mr Donovan?

MR DONOVAN:  The first proposition, Your Honour, which I

started off with, is that the Court of Criminal

Appeal has said that (a) there is no rule of law that this evidence can be excluded in rejecting

Pipe and - - -

TOOHEY J: But do you cavil at that?

MR DONOVAN:  Yes, we do. And (b) there is, in effect, no

rule of practice - well, they did not quite say

that, but it follows from the last proposition

which is that there is no rule of discretion.

Perhaps it is useful if I point out,

Your Honours - - -

TOOHEY J:  I am sorry, could I, just for clarification, ask

you one further question. Is it your submission

that the court had no discretion in the light of all the circumstances but was obliged to exclude the evidence; or that it had a discretion in the

circumstances and wrongly exercised it?

MR DONOVAN:	Could I answer it this way, Your Honour: our primary proposition is that as a rule of law the
evidence had to be excluded. That is our primary proposition. That is the Pipe approach.
GAUDRON J:	And that is on the basis, though, not of

something within the jurisdiction, but on the basis

of something in somebody else's jurisdiction?

MR DONOVAN:	Yes.
GAUDRON J:	Now, Pipe does not go that far, does it?

MR DONOVAN:  No, it does not. I appreciate that. The

second proposition, if that was not acceptable, is

this one: that there is a discretion in the court

to reject the evidence, but the Court of Criminal

Appeal said there was no discretion; the evidence

could not be rejected.

TOOHEY J: That is not quite right, is it, Mr Donovan? I do

not want to appear to be playing with words, but I

understood the Court of Criminal Appeal to be

saying, "Yes, there is a discretion if it would be

unfair", not merely by reason of the grant of

Chai 10 1/10/92

immunity, but if the court was of the opinion that

it would be unfair to the accused to allow the

evidence, then there is that discretion which the

court has anyhow to exclude the evidence.

MR DONOVAN: Well, our submission is, Your Honour, that the

court has not said that. I understand how one

comes to that, and to get to that point you really

have to look at the appeal book, pages 85 to 89.

TOOHEY J:  I was really looking at page 88 line 16:

All -

"All" being the authorities referred to -

accept that there is discretion to exclude

evidence the admission of which would be

unfair to the accused in the sense that it

might give rise to a miscarriage of justice.

MR DONOVAN:  Yes, well, it is the very next passage which

then qualifies that back:

In my view the law may now be regarded as

settled. There is no separate discretion

other than those discussed by this court in

Merrit & Roso (supra) and Edelsten (supra) to exclude evidence on the ground that the source

of it is a witness who has received an

immunity from prosecution. There is a

discretion to exclude evidence upon the ground

that its admission, permitted by the strict

rules of admissibility, would nevertheless be

unduly prejudicial to the accused.

That is the third category of those three I mentioned: confessional, illegally obtained and

prejudicial. But the court there, we say -

TOOHEY J:  You need to go on, do you not?

GAUDRON J:  And:

In a particular case, such unfairness may

arise from circumstances which include the

fact that the witness in question has been

granted an immunity.

MR DONOVAN:  But that has got to be when it falls under the

prejudicial category.

GAUDRON J: Yes.

MR DONOVAN:  Prejudicial as against probative. You see,

what we say is that in the ordinary course in this

Chai 11 1/10/92

type of case you are not going to get into a

prejudicial probative argument.

DAWSON J:  You say that, and why do you say it? I mean, it

cannot be just because the man has not	been dealt
with and has some inducement to tell a	particular
story.

MR DONOVAN:  No, it may be for a number of reasons, and

perhaps I could, if it suited Your Honours - - -

DAWSON J: But I want to find out what your basic

proposition is. Is it that evidence which is
inherently likely to be untrue - although

probative, untrue?

MR DONOVAN: There are a number of factors. I am sorry, I

have taken them out of order, so I	will try and
just reorder them in my own mind.	Firstly, there
is the size of the inducement.

DAWSON J:  No, what is your basic proposition? Forget about

that. It must be that the court should - no

discretion - exclude evidence which is inherently

likely to be untruthful.

MR DONOVAN:  Yes.

DAWSON J: Is that the proposition?

MR DONOVAN: Inherently, but the inherently should be judged

from the surrounding circumstances.

DAWSON J: Well, that may be, but I want your basic

proposition.

MR DONOVAN:  Yes.

DAWSON J: Is there any authority for that?

MR DONOVAN:  Only the type of discretion which is discussed

in Turner, the approach which is taken in Pipe, and

the statements by Mr Justice Lee in Booth.

DAWSON J: Yes.

MR DONOVAN: There is no absolute authority on that,

Your Honour, no.

GAUDRON J: But is that a question of admissibility so much

even on that proposition as the exclusionary

principle, as it were, which is an aspect of the

prejudicial probative dichotomy?

MR DONOVAN:  I am not sure I can draw the distinction

between the admissibility and the exclusion, but it

Chai 12 1/10/92

comes to the effect that it is not led before the

jury.

GAUDRON J: Yes, but they have different foundations in law.

MR DONOVAN:  Yes, I accept that, but in this case - I would

just be repeating what I said before on the point.

TOOHEY J: Except there is a further aspect, I suppose, or

another way in which the matter might be put, that
the evidence may be admissible at the discretion of
the trial judge, but having been admitted there is
then an obligation on the trial judge to explain to

the jury the dangers of acting upon that evidence.

But that is not really a consideration here, is it?

MR DONOVAN:  No, it is a question of the trial judge

properly considering whether the evidence could be

admitted or not.

DAWSON J: But I find difficulty with that. Courts daily

admit evidence which is inherently unreliable and

give appropriate warnings where necessary, but it

is a matter for the jury.

MR DONOVAN:  I appreciate what Your Honour says, but on the

basis of what the Court of Criminal Appeal said the

trial judge has no discretion not to allow.

DAWSON J: Well, he has the discretions which they speak

about on grounds of policy, on grounds of fairness,

but - - -

GAUDRON J:	And if it is inherently unreliable - although I am not too sure exactly what that means; perhaps it
is better in a case like this to talk about
"generally unreliable" rather than "inherently unreliable" - it comes down to a question of its
probative value.  That is the problem with it. And
you come back to what you call the third
discretion.
MR DONOVAN:	Yes, indeed.

DAWSON J: This man may not be telling the truth, and there

are good reasons to suggest that he may not.	On
the other hand, he may be telling the truth.

MR DONOVAN:  But the first step, Your Honour, is whether it

should be admitted in the first place.

DAWSON J: Yes.

MR DONOVAN:  And the point the Court of Criminal Appeal has

taken is that it has to be admitted.

Chai 13 1/10/92

DAWSON J: It is a simple question of credibility, that is

all.

TOOHEY J:  Not that it has to be admitted, that it may be

admitted.

MR DONOVAN:  No, has to be, there is no discretion to

exclude.

TOOHEY J: Other than the overriding discretion to exclude.

MR DONOVAN: Well, the Court of Criminal Appeal, we submit,

Your Honour, at page 88, say there is no separate

discretion other than those three put forward

there.

TOOHEY J: Well, I am not sure that they are saying that. I

took them to be saying that there is an overriding

discretion to exclude any evidence which is unfair.

MR DONOVAN: Well, in accepting Mr Justice Carter, that

cannot be correct. If one goes back to what they

say at page 86, they quote from Mr Justice Carter

at page 85 where His Honour puts forward those

three categories of discretion. And then they say:

That helpful statement is completely compatible with the law as stated by this

court -

in Merrit and Edelsten, and then they go on to

point out what Mr Justice Carter had to say. They

have quoted him there, of course, in the context of simply an immunity situation, but Mr Justice Carter came to the conclusion that the type of discretion

which was referred to in Turner in the English

authorities was simply not available here and the

Court of Criminal Appeal has adopted that.

TOOHEY J: But you would need, at least on your first

approach, to point to some authority which supports

the proposition that in the circumstances here present there was simply no power in the trial

judge to admit the evidence, and I suppose the

corollary of that is that simply the evidence was

inadmissible.

MR DONOVAN:  No, I do not need to go quite that far,

Your Honour.

TOOHEY J:	I thought you put that as a proposition.
MR DONOVAN:	I do, but I do not need to go that far though.

TOOHEY J: Well, if you do not go that far, then you are in

the area of discretion.

Chai	14	1/10/92
MR DONOVAN:	Yes.	If the Court of Criminal Appeal is

correct in saying that there is no discretion, then

the matter was never considered by the trial judge

on the basis that there was a discretion, and the

evidence was improperly admitted.

TOOHEY J:  The Court of Criminal Appeal I think said no more

than that there is no discretion to reject the

evidence merely because it comes from a witness who

has been granted immunity.

MR DONOVAN: Well, what they have said is there. I have to

accept that it is not entirely clear, but the

interpretation which we had put on that is that it

had to fall into one of those three categories

which the Court of Criminal Appeal had developed.

DAWSON J: 

I have some recollection that there is authority

that where evidence is unreliable, so unreliable
that it would be prejudicial to admit it, that it

should be excluded, and I think the case is

Sinclair's case, which is referred to at least in

Morris's case.  I may be wrong, I am having it

looked at, but that would mean, of course, that it

is really an aspect of the discretion which you
have put to one side, as it were, but that

reliability is something that can be taken into

account in the exercise of that discretion.

MR DONOVAN:  Yes, certainly, Your Honour. We would

certainly urge that there is and should be such a

discretion.

GAUDRON J: But that is your fall-back position though, is

it not?

MR DONOVAN:  Yes, it is the second point. The first is the

rule of law and rule of practice.

DAWSON J:  And plainly that discretion was exercised against

you in this case.

MR DONOVAN:  Yes.

GAUDRON J: But assuming there is a rule - let us talk about

a rule of practice, as it were - it might relate to

the sort of considerations that were adverted to in
the Bunning v Cross type situation. If a person had not been dealt with by the courts in your own

jurisdiction there might be a factor which would

justify either a rule of practice or perhaps a

discretion which was directed to the preservation

of the integrity of your own court processes, but it would not extend to the court processes of the

United States.

Chai 15 1/10/92

MR DONOVAN: Well, Your Honour says that, and I take on

board Your Honour's point, but we are dealing with

the proper principles to be applied in this

jurisdiction, and if other countries' principles

impinge inappropriately on our principles, then

that should be dealt with.	I can only state the
proposition.	I take Your Honour's proposition and
I would simply put a contrary one.	I cannot put
particular further argument about it.

GAUDRON J: Well, it is a question of identifying some

underlying rationale for what you are putting, and

the underlying rationale, if identified, may direct
different consequences.

MR DONOVAN: Well, the underlying rationale, in fact, goes back to Chief Justice Hale where, in the Pleas of

the Crown, Volume 2 page 276, he talks about the

undesirability of these types of situations, what

appears to be called Crown evidence, I suppose;

Lord Goddard in Pain, which was referred to by - - -

GAUDRON J: Yes, but is the rationale directed to

maintaining the appearance of integrity of the

court processes?

MR DONOVAN:  It is not put as clearly as that, but we would

submit, yes.

GAUDRON J: Well, how does it bear on - this Court is under

no obligation to preserve the integrity of the US

processes.

MR DONOVAN:  No, but our own integrity we are under the

obligation to maintain, and we do that - - -

GAUDRON J:  No, the integrity comes at the other point where

it looks as though favourable treatment is being

given to what I shall call "the informer".

MR DONOVAN:  And we are accepting the consequences of that

into our own system. That is the way we put it to

Your Honour. But I take Your Honour's distinction

between the American system and the system here,

but that is why this case involves these difficult

points.

TOOHEY J: But is there any authority that supports what you

are putting to us, Mr Donovan?

MR DONOVAN:  No. It is a very new area, Your Honour, and I

have not been able to find anything tending in this

direction at this level. This is one of the

matters which arises out of the Mutual Assistance

in Criminal Matters Act and the issues which arise

from that.

Chai 16 1/10/92

TOOHEY J: But it seems analogous to the situation of, say,

the evidence of prison informers - and accomplices,

I suppose, for that matter - whose evidence is

admissible but where the courts have made it clear

that the trial judge must give a very clear

direction to the jury as to the way in which they

should approach that sort of evidence.	Is this
case any different from that?

MR DONOVAN:  It is in this sense - there are a couple of

factors: size of inducement; the fact that what

the inducement is is not completely known to us

here - what the other matters overseas may be - we

have some idea but not the full picture by any

means; the additional woman who might otherwise be

charged; the fact that it is an overseas authority

which makes a decision about whether the evidence

is acceptable or not; and the fact that it is a

prosecuting authority which makes the decision

whether the evidence is acceptable or not.	They
are additional - - -

TOOHEY J:  I see that, but I would have thought they were

all matters to be put in the pot when deciding what
is the nature of the direction to be given to the

jury.

MR DONOVAN: Perhaps that is so. It may be that those

factors take it into a different category, or it

may be it just aggravates the same category.

DAWSON J:	I think we have got the point, Mr Donovan.
MR DONOVAN:	Very well, Your Honour.
DAWSON J:	The case that I was thinking of was Sinclair's

case. It concerned a confession of a person

suffering from a mental illness so that there was a

question of the reliability of the confession, and

the question was whether it should be admitted or

discretion. not. But that is in the exercise of the ordinary

MR DONOVAN: Well, that is not what happened here,

Your Honour. That is all I can put to you.

DAWSON J: But this is just a case which you say is a case

of reliability, clearly.

MR DONOVAN:	We say it is not.
DAWSON J:	You cannot put it on a Bunning v Cross basis, it

is another jurisdiction. It involves consideration

of that sort. And if reliability is something

which comes within the ordinary recognized

discretion, then that discretion has been exercised

against you.

Chai 17 1/10/92

MR DONOVAN: Well, if that is the way this Court views it I cannot say any more about it, but I can simply put

the matter to Your Honours on that basis.

DAWSON J: Yes, but I think we have grasped the point.

MR DONOVAN:  Very well. Will Your Honour just excuse me

because I want to come to the second point, but if

I can just have a moment.

Could I point out two particular factors which

arise in the present case:  I made reference

earlier to the problems which arise where you have

a witness from a different culture; the second

problem I wanted to point out in this particular

case, Your Honours, was that the question of

informer and accomplice-type evidence, as I think,

Your Honour, Mr Justice Toohey raised, do raise

particular problems at the present time.

Could I point out, Your Honour, that - I am

sure it is clear from the papers already but whole

of the case depended upon the evidence of Choy.

Without Choy there was no case against the

applicant and that was accepted all the way

through, so that whereas in the ordinary course you

may have a witness perhaps in a similar position to

Choy, but a lot of other evidence and he is just one among many, then that might lead to one

conclusion; where totality of the matter is based

upon Choy, that, we submit, leads to a different

conclusion.

Your Honours, could I come now to the second

matter, which I might generally call the Ahern

issue. Could I point out, Your Honours, that this

cannot be seen in isolation, because it involves

the exclusion of certain co-conspirators' acts from

the jury, where those acts are the acts of Choy or

where the only evidence about those acts is the
evidence of Choy.	So we are looking at the

reasonable independent evidence not being evidence
independent of Choy, but actually, to use the

phrase of Ahern, the reasonable independent

evidence is that which comes from Choy himself.

And that, we submit, does raise very particularly

the bootstraps-type problem, which was referred to

in Ahern, referring in turn to the United States

Supreme Court case of Blazer.

Now, could I make these points, Your Honours:

firstly, Ahern affected a significant shift in the

functions of judge and jury in conspiracy and

complicity matters, and the New South Wales court

in this case and in Masters and the Victorian

courts in Pektas and Smith recognize this.	The
implications have been taking time - - -

Chai 18 1/10/92

DAWSON J: Resisted it in Pektas' case.

MR DONOVAN:  Well, perhaps on one view, yes, Your Honour. I

was going to make this comment, and perhaps Your

Honour has foreshadowed what I was going to say,

there are significant judicial differences of

opinion about how the procedure should be

implemented. I put aside the fact it should be

implemented, but about how it should be implemented

there is, of course, some differences of opinion.

In some situations it might be appropriate

just to leave these to the course of time to work

out but what we submit is that in the sort of case

that we have here it is not appropriate to do that,

because as Your Honours will have seen,

regrettably, the matter in Chai went completely
without comment until during a little passage after

the end of the summing up it was seen that there

was a misconception by both counsel about what the

whole situation was.

Your Honours, prior to Ahern the usual

procedure for admissibility had been the decision

of the jury. That involves certain public

liberation on the issue about the use of the

evidence. We submit that the accused should not be

disadvantaged by the decision in Ahern; Ahern was

not intended to reduce his rights and, indeed, this

Court went part of the way to suggest this was so

at page 104 of Ahern, where it was suggested that

there should be some public deliberation, but it

was not made particularly clear by the Court at

that time.

Now, Your Honours, we say that the points are

important where there may be challenges to the
judge's fact finding and functions, bearing in mind

that we would submit that when the judge is making

a decision about the reasonable independent

evidence, he is not exercising any discretion, he

is simply making up his mind on the facts as to

whether there is that reasonable independent

evidence before he admits the other evidence. So

where you have a situation as here with Choy, you

have got the judge being involved in fact finding

and in credibility issues, because the reasonable

independent evidence, the assessment of that, has

to be made very much on the issue of Choy's

credibility, because without a finding by the trial

judge that Choy's credibility is sufficient to

maintain the reasonable independent evidence, there

is not reasonable independent evidence.

DAWSON J: Well, that is not really correct, is it? There

was a mass of evidence, was there not?

Chai 19 1/10/92

MR DONOVAN: 

No, because Your Honour, it was accepted that there was a little bit - there is some

corroboration evidence, yes, there is no question

about that - but that that evidence was not

sufficient reasonable independent evidence to

implicate Chai at the first level.  I put it that

way. That is a very important factor in this case.

So you are looking at two categories of

reasonable independent evidence: the pieces of
corroboration evidence which on their own do not
get there and then the pieces of Choy's evidence
which is the central part of the reasonable

independent evidence which could get there; that is

the evidence of his dealings with Chai direct; and
then in the third step, if you say that the

dealings with Chai direct is sufficient independent

evidence, then you can go to the next bundle of
evidence, being the evidence where Chai is not

present.

TOOHEY J: But where do you fit into those categories the

evidence of the suitcase, the lock, the bank

transactions, the identification of bank accounts

and so on?

MR DONOVAN: That is the corroborative evidence and I

appreciate what Your Honour says, I just cannot

isolate which now belongs to Chai and which

belonged to the co-accused, but it was accepted -

and the Court of Criminal Appeal said this and

there was never any question about this - that

without Choy he did not get there and I think it is

said at about page 5.	I will just try and pick it
up, Your Honour.

TOOHEY J: Yes, I was not questioning that proposition, but

you put it in terms of credibility; all I was

saying or pointing out is that there is evidence

which did not necessarily turn on Choy's

credibility.

MR DONOVAN:  Yes, but with the reasonable independent

evidence, the reasonable independent evidence must
implicate Chai as a conspirator. There are two
parts of the reasonable independent evidence:

there is the type of material such as the banking

records, which Your Honour mentioned; and there is

the type of material where Choy says Chai did

certain things. The banking records, which I would

call the corroborative evidence, was never enough

on its own to be reasonable independent evidence

within the meaning of Ahern.

TOOHEY J: Are you saying that as a matter of argument or

saying that was the conclusion of the Court of

Criminal Appeal?

Chai 20 1/10/92

MR DONOVAN: That is the conclusion of the Court of

Criminal Appeal. Therefore to get the reasonable independent evidence we have to go to the evidence
of Choy himself in what he says happened with Chai

and in order to assess that there has to be a big

credibility issue. I point out, of course, that

the jury rejected Choy in relation to the other

man, so that there must be some considerable doubt

about his credibility as a matter of reality.

DAWSON J: Well now, that was a matter for the trial judge,

you face up to that?

MR DONOVAN:	Yes, but -
DAWSON J:	And clearly he exercised his discretion - - -

MR DONOVAN: Well, Your Honour, it is not by any means as

clear as that.

DAWSON J: Well, I said "discretion"; I think in Ahern's

case it says there is "an element of discretion" in

deciding what is reasonable, but it was his

decision and he made it.

MR DONOVAN: It was his decision; the question is though,

did he make it properly, that is the difficulty.

And where it was made, as it was here, without the

issue being raised to be looked at and, in

particular, without the issue being raised to be

looked at in terms of Choy's credibility, we would

say that the issue has not been properly dealt

with.

DAWSON J: Well, you may correct me, Mr Donovan, but I would

have thought this was an obvious case for the

threshold being passed.

MR DONOVAN: Well, I can only put to Your Honour that, as I

said a minute ago, it all depended upon Choy and

Choy was a person who was of grave doubt and

without it being properly ventilated - - -

DAWSON J:  But who was corroborated in very many material

respects.

MR DONOVAN: Well, corroborate, I will not go any further

than that, Your Honour; I take Your Honours point.

Your Honours, could I raise this issue: the Court of Criminal Appeal said that in Pektas Mr Justice

Murphy and Mr Justice Gray failed to appreciate

what Ahern was about and they said that the judge

does not make a finding as to the sufficiency of

the reasonable independent evidence which in ,any

way binds the jury. We submit that that passage is

simply incorrect and that it does bind the jury in

the sense that it puts the evidence before the jury

Chai 21 1/10/92

and the jury no longer have any power to put that

evidence to one side as they had before Ahern.

DAWSON J: That is clearly right, is it not?

MR DONOVAN: Sorry, Your Honour.

DAWSON J: That is clearly right, that Ahern says that?

MR DONOVAN: 

Yes. Well, Your Honour, I have dealt with the

question of the reasonable independent evidence and
the fact that it really just turned completely on

Choy's evidence.  We submit that the fact that

there was no formal findings about the credibility

and reliability of Choy in corning to that

conclusion, Your Honour, vitiates the decision to
admit the additional co-conspirator evidence.

Yes, they are the matters we would want to put before Your Honour, except to the extent that we do

raise, in relation to this point, just draw

attention to the summary argument at page 19 to

page 22. That has been put to Your Honours before.

Your Honours will see at paragraph 10 at page 21

that we developed there the question of the
circularity of the evidence argument, and at the

bottom we just make two further points which I need

not perhaps trouble Your Honours any further about

at the moment.

DAWSON J: 

We need not trouble you, Mr Buddin.

The Court does not consider there is any

sufficient reason to doubt the correctness of the
conclusion of the Court of Criminal Appeal in this
matter. Accordingly, special leave to appeal is

refused.

AT 11.47 AM THE MATTER WAS ADJOURNED SINE DIE

Chai 22 1/10/92