Chan v The Queen

[2004] HCATrans 68

[2004] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S184 of 2003

B e t w e e n -

ALEX CHAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 2004, AT 11.34 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please your Honours, I appear for the applicant with my learned friends, MR D.H. PATCH and MS G.A. BASHIR.  (instructed by Rutland’s Law Firm) 

MR R.F. SUTHERLAND, SC:   May it please your Honours, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions) 

CALLINAN J:   Yes, Mr Byrne. 

MR BYRNE:   Your Honours, there is initially an application that the time within which this application for special leave be brought be extended.

CALLINAN J:   Is that opposed, Mr Sutherland? 

MR SUTHERLAND:   No, your Honour. 

CALLINAN J:   Yes, go ahead.  You have that leave. 

MR BYRNE:   Thank you.  Your Honours, this matter raises two questions regarding the interpretation and application of the provisions of the Evidence Act in New South Wales, which are, in our submission, important matters because of their frequency of occurrence in practice in the criminal courts.  The first concerns the circumstances in which a warning regarding the potential unreliability of a witness should be given to a jury, that being a matter raising section 165 of the Act.  The second matter concerns the admissibility of evidence of relationship – conduct which is separate from the offence charged, but which is used to prove the commission of the offence charged. 

In our submission, as we have set out in the outline of argument that has been filed in the Court, that raises questions of the application of both section 97 and section 101 of the Evidence Act.  The relationship evidence that was introduced in this case concerned earlier transactions in which the applicant was involved with the witness, Wang, which were clearly drug deals in which the two of them were involved.  That is according to the evidence that Mr Wang gave.  That evidence was admitted, but it was admitted purely as relationship evidence ‑ ‑ ‑

CALLINAN J:   Was it objected to?

MR BYRNE:   Yes, it was objected to.

CALLINAN J:   Objected to on any basis.

MR BYRNE:   Yes, your Honour.  Of course, that was the main basis of the challenge to the correctness of the conviction in the Court of Criminal Appeal, that this material should not have been admitted.  It should have been excluded, because it did not satisfy the tests which are established in the Evidence Act for the admissibility of tendency evidence. 

HEYDON J:   Presumably, the argument must be, even if it were relevant, it could only come in under 97 or 101.  If it did not come in under those sections, it would be too prejudicial and should have been excluded under 135 and 137.  That must have been the overall argument.

MR BYRNE:   Yes, your Honour, more particularly directed towards the provisions of section 101, which create a higher threshold for admissibility, in our submission, than the provisions of sections 135 and 137.

HEYDON J:   But the Crown was entitled, was it not, to try and say, “We do not tender it under 97 or 101, we tender it for a different purpose”.  Now, maybe it should have been excluded, but they were entitled to try and tender it on a limited basis, were they not?

MR BYRNE:   They were entitled to seek to do that, but once that had been done and, in effect, the challenge made that it was effectively tendency evidence, then it was necessary for the relevant tests for the admissibility of tendency evidence to be applied, rather than some lesser standard of what has now become effectively a separate category of relationship evidence, although this Court has said that relationship evidence, as it is so described, is really a subcategory of tendency evidence. 

Your Honours, the point is perhaps best illustrated by looking at the terms of the judgment of Justice Hodgson in the Court of Criminal Appeal, at page 78 of the application book, paragraph 49 of his Honour’s judgment, where he deals with the respective rules which have been established by section 137, section 135, and section 101; rules which generally provide for the exclusion of evidence which has a recognisable prejudicial component.  The important conclusion made by the learned judge, in the last few lines of that paragraph on page 78, is in these terms:

In the present case, while the trial judge’s finding would not have been enough to satisfy the s.101 requirement, it is in my opinion clearly sufficient to satisfy the s.137 test, and to exclude a discretion to reject it under s.135.

The importance of that conclusion, in our submission, is that if the section 101 test had been applied to this evidence, as we submit it should have been, because it essentially was tendency evidence because it was relied on by the Crown – even though the stated purpose of its admission was as relationship evidence to place the conduct of the accused, as it is sometimes said, “in context”, the real purpose of the evidence was to seek to use tendency or propensity reasoning to establish that the circumstances of the events which were the actual subject of the charge could be interpreted or understood better by reference to earlier events, which were other drug deals in which the accused – the applicant before this Court ‑ and the witness were involved. 

CALLINAN J:   It was difficult, though, Mr Byrne, was it not, because the earlier drug deals related to very small quantities.  Is that right?

MR BYRNE:   They did.

CALLINAN J:   In a sense, they were really deals done in order to test the fidelity of your client and his willingness to undertake the “big one”, as it were.

MR BYRNE:   Well, that was the contention made by the witness, Wang.  That is his evidence, and it was ‑ ‑ ‑

CALLINAN J:   But it also is an available inference, I would have thought, without his saying it directly, because otherwise there is really no point in the various small deals.  There is nothing in them, in a sense.

MR BYRNE:   Well, arguably, because they were very small deals, they were, for that reason, matters which did not carry a very high probative value in the way ‑ ‑ ‑

CALLINAN J:   I am doubtful about the way in which it has been put generally.  It seems to me that the basis for the reception of the evidence was to prove that they were actually accomplices.  It is evidence directly probative of the fact that they were accomplices.

MR BYRNE:   But the fact that they had been allegedly accomplices on another occasion ‑ ‑ ‑

CALLINAN J:   No, that they built up a relationship and did things towards a common end.  Your client’s participation in the smaller deals was not simply for the purpose of committing those crimes involved in the smaller deals, but for the purpose of demonstrating his willingness to undertake the big deal, if and when he was required to take it.  In that sense, it is not tendency at all. 

MR BYRNE:   Your Honour, the evidence that came from the witness, Wang – and, of course, there was no evidence from the applicant about these alleged earlier deals – he simply denied that they had happened.  The evidence given by the witness, Wang, about those earlier deals was evidence which related to events significantly before in time.  He was giving evidence about incidents which occurred between February and September, when the precise events which were the subject of the allegation, subject of the charge, occurred between a date in October and later in November, when the applicant was arrested.  So they are relatively remote in time.  They clearly involve, on the allegations made by the witness, Wang, other criminal conduct ‑ ‑ ‑

CALLINAN J:   But often it is the events, and the way in which they have fallen out, that prevents strict compartmentalisation and characterisation of evidence.  Evidence can often bear many characters. 

MR BYRNE:   It can, I accept that ‑ ‑ ‑

CALLINAN J:   It can bear many characters, and – I put you on notice about this – it seems to me, at first sight, to be evidence directly probative, as I say, of the relationship of accomplices, and not simply tendency evidence at all.  In fact, the small quantity and the remoteness in time itself tends to suggest that it probably is not tendency evidence, but that does not mean that it was not admissible to prove a fact directly in issue.  The relationship is often another way of simply saying accomplices, anyway. 

MR BYRNE:   Yes, but where the accomplice is talking about other events which relate to criminal conduct and the argument is effectively put, “Well, we are relying on those other events in order to establish the likelihood of the events which are the subject of the charge happening in a certain way”, that is clearly ‑ ‑ ‑

CALLINAN J:   The likelihood of a relationship which verifies or tends to establish that there was such a relationship between the parties as would explain why the crime was being committed, in the way it was, by the people who were committing it.

MR BYRNE:   Your Honour, it is not simply, with respect, the argument that there is conduct which is alleged to have occurred in a certain way.  The definition of tendency evidence also includes – and I should perhaps draw your Honour’s attention to the specific terms of the Act, which are set out on page 75 of the application book, where tendency evidence is dealt with under section 97, which is just below line 15:

Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind –

Now, if it is a question of the evidence being led to prove that these two men were acting as accomplices in the context of the offence charged, then proof of their having earlier acted in drug deals together as accomplices ‑ ‑ ‑

CALLINAN J:   But it was more than that.  It was a matter of acting in order to cultivate, and in order to train, in a sense, one of them to commit the offence. 

MR BYRNE:   Except that that was the way in which the case was run.

CALLINAN J:   This was the apprenticeship.

MR BYRNE:   Yes, that is certainly the manner in which ‑ ‑ ‑

CALLINAN J:   That might prove tendency, but it proves a lot more than tendency.

MR BYRNE:   But if it does prove tendency, and if it is sought to be used or the jury is invited to use tendency or propensity reasoning, then it is important that the safeguards which are established by the legislation for the admissibility of such evidence are observed and complied with. 

CALLINAN J:   Even if only incidentally it proves tendency?

MR BYRNE:   With respect, it is more than an incidental matter that it is a tendency argument.  It goes, in our submission, to the core of the Crown case, that it is behaviour on another occasion which enables the jury to more readily understand the behaviour on the occasion in question.  The Act establishes express safeguards to guard against the dangers that are associated with reasoning of that kind, and it was acknowledged by the Court of Criminal Appeal in its judgment that had those safeguards – and I refer to section 101 – been applied to this case, then the evidence would not have been admitted because the test established by section 101 was not in fact satisfied.  So evidence which should have been dealt with in a certain way was admitted in circumstances where it would not have been, and in circumstances which were obviously detrimental to the prospects of the applicant defending the charge against him. 

Your Honours, the second issue which is raised in the outline of argument is the question under section 165 of the Act, which is the warning required to be given, where it is requested, in relation to the potential unreliability of a witness.  In this case, the reasons why the evidence of the witness, Wang – and it is clearly conceded in the materials before your Honours that the Crown case effectively depended entirely on the evidence of the witness, Wang – the reasons why his evidence should have been the subject of a specific warning to the jury about its potential unreliability are set out in the outline of argument that has been prepared in relation to this application.  

There are several bases on which it is contended that his evidence was of a kind that may be unreliable, within the terms of the Act, and, therefore, a warning should have been given.  It is true, as the learned judge found in his analysis of the specific circumstances in which Mr Wang found himself, that he was not within any of the specific categories under section 165, but those categories, of course, are not an exhaustive statement of the categories of witnesses about whom a warning should be given. 

There were clear indicators, in our submission, of this witness’s potential unreliability, his very serious prior record and having previously being convicted of a major offence of drug importation, and the clear evidence that he was in a position where he would wish to obtain favourable treatment from the authorities by assisting them in what he perceived to be their objective, namely, the successful prosecution of the applicant. 

HEYDON J:   Your argument, though, does not really give any weight to the word “kind” in 165(1).  I do not think you can take, can you, a particular trait that someone has and, as it were, make that a universal rule and say that is a “kind”.  Chief Justice Spigelman, I think, in  Stewart’s Case – you have to demonstrate that that approach is wrong, in order to get your construction of the legislation up, I think.  It does not say, “Evidence that may be unreliable”.  I can see the arguments for reasonably powerfully putting to a jury that he was an unreliable witness, but was he a witness of a “kind”, or was his evidence of a “kind”, that might be unreliable?

MR BYRNE:   Well, there were a number of features of his personal circumstances which, in our submission, established that it was evidence of a kind that was potentially unreliable.  It only needs to be shown to be ‑ ‑ ‑

HEYDON J:   May, yes. 

MR BYRNE:    ‑ ‑ ‑ potentially unreliable, and, because of his past, and because of the very delicate circumstances in which he found himself, so far as remaining in the country and having the support of the authorities was concerned, that made him the kind of person – and, accordingly, his evidence the kind of evidence – who may be unreliable.  So that the overall assessment of his personal circumstances and the evidence that he was able to give, in our submission, justified the conclusion that he was a person of that “kind”, to use the terms of the legislation. 

Your Honours, there was an additional matter raised in relation to the question of the relationship evidence issue, which concerned directions that

might be given by the learned judge in the event that such evidence were admitted.  This Court has dealt with that issue on prior occasions.  It is an associated issue, which is clearly subsidiary to the main point that is raised in relation to the relationship evidence.  May it please your Honours.

CALLINAN J:   Thank you, Mr Byrne.  Yes, Mr Sutherland. 

MR SUTHERLAND:   Your Honours, the circumstances of Wang need to be focused upon in order to deal with the principles, and I just want to draw them together very briefly, if I may.  Wang, as is set out in his Honour Mr Justice Hodgson’s judgment in quite some substance, was a young man who had come to this country as a student.  He was 18.

CALLINAN J:   Well, I think we have some familiarity with the facts.  What do you say about the proposition that if evidence clearly admissible for one purpose incidentally may also prove tendency, the trial judge is bound to give directions in relation to that?  As a matter of construction. 

MR SUTHERLAND:   As a matter of construction, we say that is not correct.  This evidence was never relied upon, or put forward, or advanced to the jury as tendency evidence.  What it was was part of a concatenation of circumstances which were sought to be relied upon by the Crown to show that the situation, the fact in issue at trial, was that the appellant was the boss and that Wang was his boy.  The Crown relied upon all sorts of evidence to establish that:  evidence that money was taken to pay rent; evidence that money was taken to a bank; evidence that he was asked to convey something from point A to point B; evidence that, on an occasion, almost like a trial of initiation or a right of passage, he was told, “Go and collect a foil”, which he believed contained heroin, “and give it from person A to person B”, “Go and collect such and such from another person in a cigarette packet, and give it to another person”. 

Now, whether they indeed contained heroin or not, there was not evidence.  Wang was told that they would contain heroin, and he carried out those menial tasks on the direction of the appellant.  He was then told at a later stage, “Get ready for a job”.

CALLINAN J:   I think we understand that, but the proposition as a matter of construction – why do you say that there need not be any directions?  I think Mr Byrne’s complaint really is – I think he goes so far as to say, even if it only incidentally proves tendency, then sections 97 and 101 are called into play.

MR SUTHERLAND:   Well, your Honour, the first point that we make is that, in the circumstances of this case, it was not tendency evidence.  That is the first point we make ‑ ‑ ‑

CALLINAN J:   I understand that.  Let us assume that, arguably, it is incidentally also tendency evidence.  Make that assumption. 

MR SUTHERLAND:   Well, the first thing one needs to identify is what the tendency is, of course. 

CALLINAN J:   A tendency to deal in heroin.  A tendency to commit the crime in question.  Just make that assumption. 

MR SUTHERLAND:   Your Honour, if that were the situation, then, in accordance with the principles that your Honour discussed in Gipp, arising, of course, out of a sexual case, where your Honour, if I might be so bold as to remind your Honour, expressed some reservation about a categorisation of background evidence – I think your Honour indicated some disquiet at that ‑ ‑ ‑

CALLINAN J:   I did, indeed, but it seems to me that it is at least arguable that this evidence goes further than background evidence.

MR SUTHERLAND:   Quite so.  Indeed, that is the point of the extract that we put from the culmination of your Honour’s observations in Gipp.  But there may be cases in which a relationship may be directly relevant to an issue at trial. 

CALLINAN J:   It seems to me, this is one, plainly.

MR SUTHERLAND:   If one accepts that, then one is not concerned to put it forward as – I mean, one needs to categorise the evidence, and it is difficult, your Honour, to deal with the proposition that it may have some passing aspect of tendency evidence.  It is either admissible as tendency evidence or it is admissible for some other purpose.  Certainly, the Court of Criminal Appeal in New South Wales have taken the view that if there is a matter relevant to a fact in issue that collaterally happens to be tendency evidence, then the test is the admissibility to the fact in issue.  Mr Justice Ireland, I think, dealt with that, if I recall correctly ‑ ‑ ‑

CALLINAN J:   And I suppose, if in fact it is clearly admissible on some other basis, and if only incidentally, at most, it is capable of proving tendency, then it might be very prejudicial for a trial judge to start talking about tendency and telling a jury that they cannot take it into account to prove tendency.

MR SUTHERLAND:   Your Honour, we alluded to that as perhaps being an explanation for why the extremely experienced and senior criminal trial lawyer in this matter did not seek to have that matter highlighted. 

HEYDON J:   There are two safety precautions.  One is 135 and 137, and, yes, Mr Justice Hodgson thought that although the numbers had not been properly mentioned, nonetheless, the substance of the matter had been addressed, and the second is to have a judicial direction.  No judicial direction was asked for, and Mr Justice Hodgson refused leave under rule 4.  That is a very difficult matter to appeal against, and Mr Byrne was right to mention it in the 19^th minute of this address, rather than earlier.

MR SUTHERLAND:   Yes. 

CALLINAN J:   What about the next point of Mr Byrne?

MR SUTHERLAND:   In relation to the relationship evidence, or the ‑ ‑ ‑

HEYDON J:   165.

MR SUTHERLAND:   The 165 point.  I am conscious that your Honour Justice Callinan said you are across the factual background to it, but can I just highlight this part of it.  It is all well and good to say, “This man was an accomplice, he had a motive to come forward to assist the NCA”.  He was a man who was applying for refugee status.  I think it is fair to be observed that he was likely to have been deported, had all else been equal.  He had lost his rights.  He answered an ad, and he came forward to the National Crime Authority and said, “I am prepared to assist you”.  He was registered as an informant.  He thereafter liaised daily, sometimes many times daily, with his minder.  He was supervised, oversighted, watched covertly, listened to ‑ ‑ ‑

HEYDON J:   Your point is that a lot of his evidence was corroborated?

MR SUTHERLAND:   Not only that, your Honour, he was a tool of the police or an agent of the police.  He was not a criminal participant who was coming to the police after the event.  He would go to them and say, “I have to go and meet Chan tomorrow.  I am meeting him at the casino”.  Now, unbeknownst to him, the police are in the casino, they are up in the covert surveillance room, and they videotape the meeting.  He says, “Chan has given me a new phone.  This is the contact number that I have to ring him on”.  The police go to the phone companies and they get locator cell sites to show that when he said he had a meeting at King’s Cross, the number identified as Chan’s was used at Darlinghurst, King’s Cross, on that day, at that time.  He says, “I have been given a piece of paper with a hotel number I have to go to at Bondi.  Here it is”.  The police go out to Bondi and they keep him under surveillance. 

This was an undercover operative.  He was working as an informant.  He was not in any criminal sense an accomplice.  He was giving police information, in many circumstances, in advance of the events which took place, and, indeed, when he told the police, “I have been asked to get ready for a job.  I believe, because of the background of our relationship, that it is probably going to be something to do with heroin, and I have just got a phone call to say somebody has arrived”, nobody knew what had arrived, who had arrived, or where it had arrived.  What was discovered in due course about Kaki and Gali, who had come in on false diplomatic passports and brought heroin in, was reconstructed after the event. 

So this is a very, very different circumstance to a criminal participant who would fall either within one of the categories specifically set out in 165, or whose evidence would be of a kind – that is, his evidence is of a kind – that may be unreliable.  The learned trial judge was not satisfied that it was.  The Court of Criminal Appeal, having analysed it pursuant to Mr Patch’s very diligent arguments, could not see any justification in that, and we respectfully submit there is no special leave point in relation to it. 

This was clearly a circumstance which falls way outside the categorisation of a kind that may be unreliable, and I adopt, with the greatest of respect, what your Honour Justice Heydon said to my learned friend, Mr Byrne, in relation to using the word “kind”.  It seemed, at least to us, that the way the applicant’s submissions were framed was endeavouring to advance the proposition that as soon as there is a request for a direction under 165, a trial judge is obliged to give it – that being a proposition that Chief Justice Spigelman has set at least his judicial reasoning against, and we would respectfully adopt. 

It is simply not evidence of a kind that may be unreliable.  No warning was called for.  The type of criticism about the possible credibility and possible motive for him going to the police was well advanced in argument.  It was alluded to by the trial judge, and the trial judge then said you could only use the evidence in this fashion and the other fashion. 

Your Honours, the issue at trial ultimately devolved to this, was Wang, who was in the witness box, explaining what had happened, on a frolic of his own?  In other words, was he a criminal participant in the importation, rather than an agent of the police?  Or, as the Crown contended, was he an agent of the appellant?  Was he the appellant’s boy?  Was he acting pursuant to directions of the appellant?  That is the reason the relationship evidence was important. 

That is the reason that one needed to look at the extent to which tape recordings existed to independently prove what had or had not been said.  The critical incriminating conversations were on tape.  The appellant

saying, “Yes, take a scale, do this, put $300 there”, and Victor this and Victor that.  And, of course, the appellant got into the witness box and said, oh no, they were discussions about a wild sex party.  Now, that was a factual issue for the jury to decide in the context of the tape recordings that were placed before them. 

CALLINAN J:   Thank you, Mr Sutherland.  Mr Byrne.

MR BYRNE:   Your Honours, just very briefly, the manner in which this evidence of earlier dealings was left to the jury is disclosed in the learned judge’s summing up, which is at page 25 of the application book.  Just reading the last four lines on page 25, his Honour said:

The Crown says this body of evidence –

and it had taken the learned judge some five pages to review the so‑called relationship evidence –

demonstrates that Wang was regarded by the accused as a trusted and important offsider and one who could on behalf of the accused deal with various important drug dealings –

Therefore, it was the state of mind of the accused which was sought to be proved.  The state of mind is tendency. 

Your Honours, my learned friend made reference to a judgment of Justice Ireland.  That is in the papers which he has filed in Court.  It is a very short passage in the decision of his Honour in the case of AH, which is behind the first tab of the respondent’s authorities.  If I could refer the Court to the short passage on page 709, which is the first full paragraph on that page.  His Honour said this:

Where the Crown does wish to use the evidence of guilty passion –

in this case, of course, earlier drug dealing –

as tending to show that the accused did do the act in question (and thus that the complainant’s evidence that the accused did the act in question is more credible), it is tendency evidence and so must comply with s 97 and s 101 –

Just one final matter, if I may.  Your Honour Justice Callinan mentioned in earlier discussion that the evidence was effectively sought to be introduced to establish that Wang and the applicant were accomplices.

CALLINAN J:   I really meant in a relationship of confidence ‑ ‑ ‑

MR BYRNE:   Certainly.

CALLINAN J:   I should have put it differently.

MR BYRNE:   If that, in fact, was the relationship in which they were seen, then that underlined the need for the warning under section 165, if it could be seen reasonably that the man Wang was, in all the circumstances, an accomplice.  So the matters, in a sense, blend together by reason of that.  May it please your Honours.

CALLINAN J:   Thank you, Mr Byrne. 

This was a very strong prosecution case.  The evidence which the applicant asserts to be tendency evidence was undoubtedly admissible to prove matters which were directly in issue, in particular, the relationship of confidence existing between Wang and the applicant in the undertaking of the illegal transaction the subject of the charge.  If it also proved tendency, it did so only incidentally and was not relied on for that purpose.  No request was made for any direction with respect to it. 

The other matter, that there was a necessity for, but a failure of compliance with, section 165 of the Evidence Act (NSW), is without substance.  Even assuming that the section could apply here, the forensic contest at the trial as to the reliability of Wang meant that the jury were well aware of any reasons why his evidence might be unacceptable.  The application is dismissed.  Call the next matter. 

AT 12.10 PM THE MATTER WAS CONCLUDED