Chaudhry v The Queen

[2007] WASCA 37

CHAUDHRY -v- THE QUEEN [2007] WASCA 37

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 37
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:50/2006	Heard:	1 FEBRUARY 2007
Coram:	WHEELER JA BUSS JA MILLER AJA	Delivered:	18/02/07
No of pages:	27	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	MASOOD AHMED CHAUDHRY THE QUEEN
Catchwords:	Criminal law Evidence Admissibility of statement of a witness out of the State and unable to give evidence at the proceedings by either video link or audio link Discretion to admit statement Whether discretion miscarried Whether prejudicial effect of the evidence outweighed its probative value Applicability of Criminal Procedure Act 2004 (WA) Sch 3 cl 7(1)(c), cl 7(5) Criminal law Evidence Identification evidence Whether trial Judge sufficiently isolated and identified for the jury matters of significance which might have undermined reliability of identification evidence How a trial Judge should approach directions on the issue of identification Whether in the present case directions were adequate
Legislation:	Criminal Procedure Act 2004 (WA), Sch 3 cl 7(1)(c), cl 7(5) Migration Act 1958 (Cth), s 233(1)(a)
Case References:	Al-Hashimi v The Queen [2004] WASCA 61; (2004) 181 FLR 383 Birch v The Queen (1994) 12 WAR 292 Domican v The Queen (1992) 173 CLR 555 Galea v The Queen (1989) 1 WAR 450 Hill v The Queen [2003] WASCA 177 Nalberski (1989) 44 A Crim R 434 R v Kelly [2002] WASCA 134; (2002) 129 A Crim R 363 R v Slater [2003] WASC 171

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CHAUDHRY -v- THE QUEEN [2007] WASCA 37 CORAM : WHEELER JA

BUSS JA
MILLER AJA

HEARD : 1 FEBRUARY 2007 DELIVERED : 19 FEBRUARY 2007 FILE NO/S : CACR 50 of 2006 BETWEEN : MASOOD AHMED CHAUDHRY

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : DEANE DCJ

File No : IND 784 of 2005

Catchwords:

Criminal law - Evidence - Admissibility of statement of a witness out of the State and unable to give evidence at the proceedings by either video link or audio link - Discretion to admit statement - Whether discretion miscarried - Whether prejudicial effect of the evidence outweighed its probative value - Applicability of Criminal Procedure Act 2004 (WA) Sch 3 cl 7(1)(c), cl 7(5)

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Criminal law - Evidence - Identification evidence - Whether trial Judge sufficiently isolated and identified for the jury matters of significance which might have undermined reliability of identification evidence - How a trial Judge should approach directions on the issue of identification - Whether in the present case directions were adequate

Legislation:

Criminal Procedure Act 2004 (WA), Sch 3 cl 7(1)(c), cl 7(5)

Migration Act 1958 (Cth), s 233(1)(a)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : Mr S D Hall SC & Ms S R Veletta

Solicitors:

Appellant : Thames Legal
Respondent : Commonwealth Director of Public Prosecutions

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

Al-Hashimi v The Queen [2004] WASCA 61; (2004) 181 FLR 383
Birch v The Queen (1994) 12 WAR 292
Domican v The Queen (1992) 173 CLR 555
Galea v The Queen (1989) 1 WAR 450
Hill v The Queen [2003] WASCA 177
Nalberski (1989) 44 A Crim R 434
R v Kelly [2002] WASCA 134; (2002) 129 A Crim R 363
R v Slater [2003] WASC 171


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1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Miller AJA. I agree with those reasons and have nothing to add.

2 BUSS JA: I agree with Miller AJA.

3 MILLER AJA: The appellant was charged on indictment with the offence of "people smuggling" in contravention of the provisions of s 233(1)(a) of the Migration Act 1958 (Cth). There were two counts. The first alleged that, between 1 November 2000 and 22 April 2001, at the Republic of Pakistan and elsewhere he took part in the bringing or coming to Australia of a non-citizen, Abdul Ahad, under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of the provisions of s 233(1)(a) of the Migration Act. The second alleged that, between the same dates at the same place, he took part in the bringing or coming to Australia of a non-citizen, Mohammad Farid Afzali, under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia contrary to the provisions of s 233(1)(a) of the Migration Act.

4 The appellant was tried before Deane DCJ and a jury in the District Court at Perth and convicted on 7 April 2006 on both counts. He now appeals against the convictions on the following three grounds (particulars omitted):

"Ground 1

The learned trial Judge's discretion miscarried when she ruled the prosecution could read into evidence the statement of a person to whom the Appellant had allegedly made a confession concerning the commission of the offences, such that there was a miscarriage of justice.

Ground 2

The learned trial Judge erred in law by failing to direct the jury adequately in relation to identification evidence generally, thereby giving rise to a miscarriage of justice.

Ground 3

The verdict of the jury should be quashed on the ground that it is unsafe and unsatisfactory, because of a lack of evidence

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capable of establishing beyond a reasonable doubt each of the elements of the offences for which the Appellant was convicted, which elements had to be established before the jury could properly convict the Appellant of that particular charge."

The evidence at trial

5 The case against the appellant was that he played a major role in a people smuggling operation, pursuant to which the two persons named in the indictment were brought to Australia by a boat or boats which landed at Christmas Island, being Australian territory. The evidence against the appellant consisted primarily of the testimony of the two non-citizens named in the indictment, supported by similar fact evidence of a number of other non-citizens who contended that they, too, had been brought to Australian territory in a sophisticated people smuggling operation in which the appellant was a major player.

6 The evidence of Abdul Ahad sufficiently reveals what the operation was. Ahad was born in Afghanistan, but he moved to Pakistan where he made inquiries about how he might get to Australia. A friend introduced him to a person called Masood and, with him, Ahad discussed how he might be able to get to Australia. He was told by Masood that he could travel to Australia via Indonesia from whence he would leave by vessel to Australia. The cost would be $US7000, $US5000 of which would be retained by a friend of Ahad until such time as the friend was advised of Ahad's safe arrival in Australia. The remaining $US2000 was to be given by Ahad to a person in Indonesia by the name of Hassan Ayaub, who Ahad understood to be Masood's brother. The directions given by Masood to Ahad included advice that the $US2000 was to be shown initially to officials at an airport in Indonesia. Ahad had no passport, but at Masood's request he gave him photographs in order that Masood could organise an unofficial passport.

7 It appears that Ahad first met Masood in Peshawar in Pakistan. Arrangements were then made for a further meeting in Lahore and there Ahad stayed at two different hotels for a period of about one month. He was instructed by Masood that, to avoid risk, he should refrain from leaving the hotel. Shortly thereafter, somebody gave Ahad a passport and airline tickets, enabling him to fly from Lahore to Karachi. There, he saw Masood again and he was given further information and instructions relevant to travel. The route he was to take to Australia was through Thailand, Hong Kong, Singapore and Jakarta. In Jakarta, Ahad was to be met by a person in immigration.

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8 In due course, Ahad took the nominated route and arrived in Jakarta. He there met a person who had his name on a piece of paper. He handed over his passport and air ticket. He was then taken outside the airport and to an hotel, by a man called Zahed. The following day, he was introduced to Hassan Ayoub, to whom he gave $US2000, as previously directed. Ahad then remained in Indonesia for a period of about two months, staying in a variety of different locations.

9 Ahad saw Hassan Ayoub again in "Ponchak" and he was put on a bus. The bus, accompanied by another, made its way to a ferry. It was dark at the time, but Ahad was able to recognise the fact that there was a boat waiting at an island. He then boarded the boat and, with a group, travelled to Christmas Island where the vessel or vessels were intercepted by Australian Federal Police.

10 Investigations by the Australian Federal Police included showing Ahad a photoboard on which he recognised a photograph of the man Masood. It was admitted by the appellant at trial that the photograph identified by Ahad was a photograph of him.

11 The evidence from Afazali was similar to that given by Ahad. He was born in Afghanistan. He left that country in 2001 after his family paid $US6000 to a "people smuggler" to get him to Australia. He travelled to Peshawar in Pakistan and then on to Karachi, where he was given a passport and where he met a man named Masood and others. The first meeting was in an hotel and he was informed that he would be travelling to Australia via Thailand, Hong Kong, Singapore and Indonesia. This was the route that he followed. He was shown a photoboard, or what appears more accurately to have been a book of photographs of different persons, from which he identified Masood. The photograph was admitted by the appellant to be a photograph of him.

12 A number of other witnesses were called to give evidence that they had been brought to Australia by the same means as Ahad and Afazali, and by a man named Masood. The travel arrangements were identical in each case. These witnesses were unable to make positive identifications of Masood when shown photoboards. Some of these witnesses were unable to make any identification at all, whilst others were able to estimate with varying percentage degrees of certainty that a particular person on the photoboard was Masood. In some instances, these degrees of "certainty" were as low as 10 or 20 per cent. One witness made an estimate of 60 per cent "certainty" that a photograph on the photoboard was that of Masood. What, however, they all had in common was that

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they had all dealt with a man named Masood. In each case, the photograph about which a "degree of certainty" existed in the identifying witnesses was that of the appellant.

13 There was evidence at trial of a confessional statement made by the appellant to a man named Raja Azajr Ali Khan. This evidence was admitted into evidence by the learned trial Judge pursuant to the provisions of cl 7(1)(c) of Sch 3 to the Criminal Procedure Act 2004 (WA). The provisions of this clause allow for the admission into evidence of a statement of a witness in circumstances where the witness is out of the State and is not able to give evidence at the proceeding by means of a video link or an audio link, notwithstanding that the witness might return at some future time. A Judge has a residual discretion to refuse to admit such a statement or recording if satisfied that the admission of it would be unfair to the accused person.

14 Khan's statement was signed and dated 5 March 2004, in Phnom Penh, Cambodia. At that time, Khan was 37 years of age and running a restaurant in Phnom Penh. He claimed to be a graduate in law, economics and English from Peshawar and Islamia Universities in Karachi. He stated that he first met Masood Ahmed Chaudhry about four or five months before signing the statement at the Penchit Hotel, Phnom Penh. He was introduced to Masood, whom he called "Moon", which was said to be his nickname. He knew that Moon was a Pakistani from the town of Gujranwala in Pakistan. About a month later, he met Moon in Bangkok where they visited a restaurant. Some days later, Moon called him and asked whether he wished to go to the prison with him because his brother was in prison. They went there and, whilst waiting, Moon told Khan that his brother was in prison for one and a half years because he had been caught in Cambodia for smuggling people to Australia. He had been in Cambodia and was now in Thailand. He asked Khan whether he could assist to get his brother out of prison.

15 Khan and Moon went into the prison and there met a person whom Moon described as his brother, Ayoub. On a later occasion, Khan met Moon again in Bangkok, where he was introduced to a third person whom Moon described as his brother. This man's name was Liaquet Chemma. There was a general conversation during which Moon said words to the effect:

"Liaquet and Ayoub worked together in Indonesia sending people to Australia by boat. I was in Pakistan and I sent people to them in Indonesia. I would arrange the airline tickets and tell

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the people that Ayoub or Liaquet would meet them in Indonesia. Once the people were on the plane I would telephone Ayoub or Liaquet and let them know how many people were coming, their names and what flight they were on."

16 There was further discussion later between Khan and Moon about the fact that his brother Ayoub had been sent to Australia, where he was alleged to have been involved in people smuggling. There were other aspects of the statement which it is unnecessary to recount.

17 The admissibility of Khan's statement was challenged by counsel for the accused at trial. The learned trial Judge exercised her discretion to permit the statement to be read in an edited form and a direction was given that there should be "an agreed approach whereby matters which would reflect adversely possibly on Mr Khan's credit be adopted so that the jury are in some acceptable form made aware of those matters". The learned trial Judge indicated that she also intended to give the jury "a very strong direction as to the weight, if any, they may care to attach to Mr Khan's evidence given that he has not been here to be cross-examined".

18 There was evidence from investigating police officers that the appellant had been asked whether he had a brother called Hassan Ayoub, but he had denied that this was so. He said he had a brother called Naheem Chaudhry who was in prison in Australia and that his brother was not known as Ayoub as far as he was aware. The appellant admitted that he had the nickname of "Moon" and admitted that, whilst he normally lived in Pakistan, he had been in Cambodia. A police officer gave evidence that he was involved in an Australian case in which a person named Hassan Ayoub had been extradited from Bangkok to Australia in 2003 and that this person also used the name Naheem Chaudhry.

19 The appellant testified at his trial. He stated that he was 37 years of age, born in Gujranwala in Pakistan, where he lived until he went to work in Japan as a crane operator for a period of about seven years. He left Japan in 1997 to return to Pakistan, where he married and later travelled to Bangkok. Initially, this was for a holiday, but he decided to stay in Bangkok and participate in a business venture exporting guns from Bangkok to Lahore in Pakistan. He said he had been involved in this venture for about six years, during which time on a number of occasions he left Bangkok to travel for business and holiday purposes. The business closed in about 2003 and he left to travel to Cambodia, where he commenced the business of an Indian restaurant which he called "Bamboo

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Moon", Moon being his nickname. The appellant said that he had met Raja Azajr Ali Khan in Cambodia and Khan had taken over his business after he (the appellant) had been arrested.

20 In the course of his testimony, the appellant admitted having seen a man named Hassan Ayoub in a Bangkok prison. There was also a Naheem Chaudhry listed at the prison, but neither of these persons was related to him. He contended that the police officer, who made a note that his brother was named Naheem Chaudhry, had made an error or there had been a misunderstanding during the course of their discussion.

21 The appellant denied ever having been to Peshawar. He admitted travelling to Karachi and Lahore in Pakistan, but said that Peshawar was a considerable distance from his home town in Pakistan. He denied ever having helped anybody, including the witnesses called at trial, to travel from Pakistan to Indonesia and contended that, insofar as any of those people gave the name of Masood as the man who had helped them, he was not that man Masood.

22 The appellant contended that he did not know any of the persons who said they had travelled as passengers on a boat to Australia from Indonesia and he had neither met any of them nor had any dealings with them. They were completely mistaken in any instance where they purported to identify him as the person with whom they had dealt.

Grounds of appeal

Ground 1

23 This ground challenges the learned trial Judge's discretionary decision to allow evidence of Khan's statement to the effect that the appellant had confessed to him his involvement in people smuggling.

24 As I have indicated in my summary of the evidence, it is not the case that the appellant ever admitted to Khan that he had been involved in taking part in the bringing or coming to Australia of either Ahad or Afzali between 1 November 2000 and 22 April 2001. The "confessional evidence" was simply that the appellant had at some time been involved with Liaquet and Ayoub in sending people to Australia by boat. What Khan said was that the appellant admitted to having been in Pakistan and to sending people on to Liaquet and Ayoub in Indonesia. His role was to arrange airline tickets and tell the people who would be meeting them in Indonesia. As soon as they were on an aircraft, he telephoned Ayoub or

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Liaquet to advise who was coming and on what flight they were travelling.

25 The evidence had no particularity to the offences alleged against the appellant. The evidence did, however, have probative value in that it was a confession by the appellant of his involvement in people smuggling and in a process whereby he was the link in Pakistan with people in Indonesia. He was the person who organised the airline tickets and communicated with the Indonesia end.

26 The challenge to the admissibility of this statement was not made on the basis that the learned trial Judge took into account any irrelevant or extraneous matter, or overlooked some important principle, but rather that she exercised her discretion wrongly by reason of the fact that the prejudicial effect of the statement of Khan far outweighed its probative value at the trial.

27 Clause 7 of Sch 3 of the Criminal Procedure Act (so far as it is relevant) is in the following terms:

"7. Witness's pre-trial evidence, use of at trial

(1) A court dealing with a charge may admit into evidence a statement of a witness or a recording of a witness’s evidence if the court is satisfied that the statement complies with clause 4 or the recording was made in accordance with clause 6 and -


(a) ...

(b) ...

(c) that the witness is out of the State and is not able to give evidence at the proceeding by means of a video link or an audio link, notwithstanding that the witness might return at some future time;


...

(5) A court may refuse to admit a statement or recording under this clause if the court is satisfied that the admission of the statement or recording would be unfair to the party."

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28 The admissibility of Khan's statement in this case was based upon the fact that he was out of Western Australia and could not be located. In this sense, it was said that he was not able to give evidence by means of video link or audio link. There is no need in this case to give any consideration to the proper meaning to be ascribed to the words "is not able to give evidence". It was accepted for the purpose of the appeal that Khan met the criteria set out in cl 7(1)(c). The question was whether the learned trial Judge was correct in admitting the statement. It was contended that she should have refused to admit it because she should have been satisfied that it would be unfair to the appellant to do so.

29 The provisions of cl 7 of Sch 3 of the Criminal Procedure Act replace s 107 of the Evidence Act1906 (WA), which was repealed by Act No 84 of 2004. Section 107 of the Evidence Act provided for the admission into evidence of any deposition taken in proceedings under Pt V of the Justices Act 1902 (WA) and statements tendered in evidence under s 69 of that Act. Those statements could be admitted into evidence if any one of four conditions provided for by s 107 were met: the witness who made the statement was deceased; or out of Western Australia; or so ill as not to be able to travel, although there might be a prospect of him recovering; or if the witness could be shown to be kept out of the way by the accused.

30 The section was considered in Birch v The Queen (1994) 12 WAR 292. Owen J (with whom Rowland J specifically agreed) said (at 306):

"The question whether s 107 (or, as the appellant's case was put on appeal, s 108) imports a discretion to exclude evidence falling within the terms of the section is not clear: Nalberski v The Queen (1989) 44 A Crim R 434, at 443 per Brinsden J. However, a discretion of this nature can arise under the overriding general discretion to exclude evidence because its prejudicial effect would outweigh its probative value or because it would result in the accused being denied a fair trial: see Nalberski, per Wallace J (at 438) and Pidgeon J (at 444). Put in a slightly different way, the overriding consideration is that of fairness: Galea (at 460)."

31 In the present appeal, it was argued by counsel for the appellant that the test of unfairness in cl 7(5) of Sch 3 of the Criminal Procedure Act is whether or not the prejudicial effect of the statement would outweigh its probative value.

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32 In Galea v The Queen (1989) 1 WAR 450, the Court (at 460) expressed the view that the test in relation to the exercise of discretion under s 107 of the Evidence Act imported an overriding consideration of fairness. The Court adopted what had been said by Brinsden J in Nalberski (1989) 44 A Crim R 434 (at 443), where his Honour said:

"The admission of the complainant's evidence by way of reading of the deposition was argued before his Honour but the opposition to it was not put on the basis, as far as I can see, that its probative value was outweighed by its prejudicial effect. That way of approaching the matter is entirely inappropriate when it is appreciated that the deposition is the evidence that asserts the applicant committed the offence and if believed is, of course, of the highest probative value. Its prejudicial effect must, of course, be extremely high as is any other evidence which establishes the commission of an offence. If the test is unfairness then that must involve some impropriety or illegality in the obtaining of the evidence: Hasler Ex parte; A-G [1987] 1 Qd R 239, 243-244; Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54. This was not a case where there was any impropriety or illegality in obtaining the deposition.

As far as I can see, the only way the applicant can mount a case in an attack on the reading of the deposition is to say that the trial judge did not sufficiently warn the jury of what it should take into consideration when evaluating that evidence."

33 Brinsden J's observations suggest that where evidence has the highest probative value, its prejudicial effect will necessarily be extremely high because it will tend to establish the commission of the offence. The proper test of unfairness was seen by him in terms of whether there was impropriety or illegality in the obtaining of the evidence, rather than prejudice outweighing the probative value of it.

34 In the present appeal, counsel for the respondent effectively conceded that the question whether the prejudicial effect of the statement of Khan outweighed its probative value was a relevant consideration.

35 It is clear that, in the present case, the statement of Khan had a high degree of probative value. That value consisted of the alleged admission by the appellant that he had been involved in people smuggling with two persons in circumstances where he (the appellant) organised air tickets in Pakistan and sent the people on to others in Indonesia from whence they

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were taken by boat to Australia. That was exactly the modus operandi used in relation to the offences alleged in the indictment. As Brinsden J pointed out in Nalberski (supra), the evidence was obviously prejudicial to the interests of the appellant, because it implicated him in the offence alleged. If he had admitted to people smuggling in the past, it was evidence available to the jury to use in considering whether he had been involved in people smuggling on the dates alleged in the indictment.

36 The real question was whether the prejudice, more properly termed "unfairness" occasioned by reason of the fact that the deponent to the statement was not called, was negatived by directions given by the learned trial Judge.

37 It is important to appreciate that the learned trial Judge gave a direction to the jury at the time the statement was read that it was to be treated with care. Her Honour said:

"DEANE DCJ: Thank you. Members of the jury, in a moment Mr Hall, the prosecutor, will read into evidence the statement provided by a person called Raja Azhar Ali Khan. In fact, you have probably heard that person's name mentioned from time to time in the evidence so far. As you have heard, the defence object to the statement being read to you but I have as a matter of law made a ruling that it is to be read to you. You have heard some explanation as to why Mr Khan is not here.

Now, quite obviously you are not going to have the opportunity of seeing Mr Khan as he gives his evidence and of course you will recall what I said to you, that it is important for jurors not only to listen to what a witness has to say but to watch them carefully as they give their evidence. Obviously as Mr Khan is not physically present you will be deprived of the opportunity to watch him as he gives his evidence. You will however hear what it is that he told police when the statement was taken from him. Therefore it is quite obvious that because he is not here, also to be cross-examined by the defence, in that sense you will not have the opportunity to hear and see his evidence being tested.

I will remind you about this in due course, however that may well affect those matters; may well affect the weight you are prepared to attach to the material you are about to hear read."

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38 When the learned trial Judge came to sum up to the jury, she spent considerable time dealing with the statement of Khan and the appellant's evidence in relation to it. After relating to the jury what it was that Khan said, the learned trial Judge proceeded to make the following comments on Khan's credibility:

"Relevant to Mr Khan's evidence, you heard formal admissions made on behalf of the prosecution that Raja Aza Ali-Khan admitted to Australian Federal Police officers in early March 2004 that back in 2001 he, that is Mr Khan, had himself been involved in smuggling Pakistani people into Thailand and further that he had sent about 10 people to Japan. He admitted to police that he had been involved in further illegal activity in causing false passports to be made on his behalf for use by the people being smuggled at a cost of about $US500 each.

In addition to Mr Khan himself having been involved in criminal activity in the form of people smuggling, it was further admitted by the prosecution that the person Nadeem Aman who Mr Khan referred to in his statement as being his cousin in Perth, was not in fact Mr Khan's cousin and further, that the last time Mr Aman had spoke to Mr Khan was in early 2002.

Again, the fact that Mr Khan had himself been involved in criminal activity and further had been untruthful to police in his statement regarding his relationship with Nadeem Aman are matters that you would have to carefully consider in assessing his reliability and credibility and further of course any weight that you might be prepared to attach to the contents of his statement. It is obvious that Mr Khan was not physically present before you and you heard an explanation from the prosecution as to why that was so. Therefore, you were deprived of the opportunity of seeing and hearing him in person and therefore being able to use your impression of him in order to assist you to assess his evidence.

Further, and importantly, his absence has deprived the defence of the opportunity to cross-examine Mr Khan and fully test the assertions that he makes, in particular, relevant to negative assertions he makes regarding Mr Chaudhry or the man Moon, rather. This is of course significant because, as I have said, he does make a number of observations in his statement which are negative and tend to implicate the accused to an illegal activity.

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These are all factors which you will have to take into account in assessing the credibility and reliability of the evidence of Mr Khan and, further, if you do accept his evidence or any part of it then they are factors which may impact upon the weight that you would be inclined to attach to any part of the evidence which you do accept."

39 The learned trial Judge then proceeded to inform the jury of the prejudice to the appellant occasioned by the fact that Khan could not be cross-examined. Her Honour said:

"It is obvious that Mr Khan was not physically present before you and you heard an explanation from the prosecution as to why that was so. Therefore, you were deprived of the opportunity of seeing and hearing him in person and therefore being able to use your impression of him in order to assist you to assess his evidence.

Further, and importantly, his absence has deprived the defence of the opportunity to cross-examine Mr Khan and fully test the assertions that he makes, in particular, relevant to negative assertions he makes regarding Mr Chaudhry or the man Moon, rather. This is of course significant because, as I have said, he does make a number of observations in his statement which are negative and tend to implicate the accused to an illegal activity. These are all factors which you will have to take into account in assessing the credibility and reliability of the evidence of Mr Khan and, further, if you do accept his evidence or any part of it then they are factors which may impact upon the weight that you would be inclined to attach to any part of the evidence which you do accept."

40 By any account this was a very strong direction. Further, as counsel for the respondent pointed out, the appellant was in many ways put in a better position in consequence of the learned trial Judge's direction than he might otherwise have been in. Had Khan been available as a witness, and had he been cross-examined on the matters which were the subject of agreement, he might well have denied some or all of the facts contended against him. The appellant had the advantage of having those matters put before the jury as agreed facts without them ever having been put to Khan.

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41 It is to be observed that in Galea v The Queen (supra) the Court pointed out (at 459) that the statement there under consideration was lacking in the detail which might otherwise have made it difficult for the appellant to overcome. It was obviously of significant probative value, but counsel for the defence had made use of the lack of detail in the statement to his advantage and made the necessary points in his closing address "perhaps better than he could have made them in cross-examination" (at 459 - 460).

42 That, in my view, was the situation in the present case. The appellant gave evidence and denied the detail of Khan's evidence, ascribing to him a motive to lie; namely, that he had taken from the appellant a restaurant which the appellant claimed he owned in Cambodia. This was an allegation which the appellant was not obliged to put to Khan, he not being called to give evidence, and there was therefore no risk of any contradictory evidence on the point.

43 Counsel for the appellant argued that because the statement of Khan went to confessional evidence, it was in a category different from most cases, where the statements have been directed to the actual circumstances of the offence. I can see no such distinction.

44 Although Khan's statement was undoubtedly prejudicial to the interests of the appellant, mere prejudice of itself cannot dictate the exclusion of such a statement. This is made clear in Hill v The Queen [2003] WASCA 177 by McLure J at [82]:

"The evidence is on a central rather than peripheral issue. In my view that is a factor in favour of its admission not exclusion. The prejudicial effect to justify exclusion cannot arise solely from the fact that the content of the evidence is to a defendant's disadvantage. Although there are grounds for challenging the reliability of the proposed evidence that, as the trial Judge observed, could be used to the applicant's advantage."

45 The same point was made by Anderson J in R v Slater [2003] WASC 171 at [10]:

"The evidence is of course extremely prejudicial to the accused but this is because it goes to a central issue. I think this is a factor which weighs in favour of rather than against allowing the evidence to be admitted: Hill v The Queen [2003] WASCA 177 per McLure J at [82]. As her Honour pointed out in that case (in a judgment with which Murray and Wheeler JJ agreed)

(Page 16)

the prejudicial effect to justify exclusion cannot arise solely from the fact that the content of the evidence is to a defendant's disadvantage."

46 In all the circumstances, I consider that the admission of the statement of Khan in the proceedings was the proper exercise of a discretion on the part of the learned trial Judge and there has been nothing demonstrated by the appellant to indicate that the discretion miscarried. I would therefore dismiss ground 1.

Ground 2

47 This ground challenges the adequacy of the learned trial Judge's directions in relation to identification generally, with particular emphasis upon the contention that the learned trial Judge failed sufficiently to isolate and identify for the benefit of the jury matters of significance which might reasonably be regarded as undermining the reliability of the identification evidence.

48 In Al-Hashimi v The Queen [2004] WASCA 61; (2004) 181 FLR 383, I set out the directions required of a trial Judge in a case in which the central issue is identification. I pointed out (at 391) that those directions are well established and were set out by the High Court in Domican v The Queen (1992) 173 CLR 555 (at 561 - 562). Portion of what I there quoted I will repeat:

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed (Kelleher v The Queen (1974) 131 CLR 534, at p 551; Reg v Turnbull [1977] QB 224, at p 228; Reg v Burchielli [1981] VR 611, at pp 616-619; Reg v Bartels (1986) 44 SASR 260, at pp 270-271). The terms of the warning need not follow any particular formula (Reg v De-Cressac (1985) 1 NSWLR 381, at p 384; Reg v Finn (1988) 34 A Crim R 425, at pp 435-436). But it must be cogent and effective (Reg v Dickson [1983] 1 VR 227, at p 230; Reid (Junior) v The Queen [1990] 1 AC 363, at p 380). It must be appropriate to the circumstances of the case (Reg v Aziz [1982] 2 NSWLR 322, at p 328; Reg v Allen (1984) 16 A Crim R 441, at pp 444-445.) Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case' (Smith v

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The Queen (1990) 64 ALJR 588, at p 588). A warning in general terms is insufficient (Kelleher v The Queen (1974) 131 CLR 534, at p 551). The attention of the jury 'should be drawn to any weaknesses in the identification evidence' (Kelleher v The Queen (supra)). Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it (Davies and Cody v The King (1937) 57 CLR 170, at pp 182-183). It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

49 In Al-Hashimi v The Queen (supra) (at 395), I endeavoured to formulate the way in which a trial Judge might indicate to the jury what weaknesses he or she personally saw in the identification evidence. The learned trial Judge in the present case did not follow that suggested formulation.

50 The way in which the learned trial Judge dealt with the subject of identification was undesirable. Her Honour began by summarising the evidence of each of the witnesses called by the prosecution, indicating where in a particular case that evidence was relevant to the issue of identification. The jury was not first given a warning about the dangers of conviction on identification evidence. Further, it appears that after the learned trial Judge had reviewed generally the evidence of the witnesses, she adjourned the court at the end of the day, telling the jury that "identification is of critical importance in this case and tomorrow morning, I will continue my charge and I will direct you specifically in relation to identification evidence".

51 On the following morning, the learned trial Judge returned to the evidence, detailing the evidence of one witness whose testimony she had overlooked, and then providing the necessary direction about the dangers of convicting on identification evidence. Those directions were full and appropriate. They led to the learned trial Judge highlighting in a number of instances the shortcomings of the identification evidence of witnesses.

52 After dealing with the evidence of Khan, the learned trial Judge then came back to identification and gave a direction in relation to the use of photoboards or photosheets and referred to the evidence from police witnesses of the circumstances in which those boards or sheets had been used. Finally, the learned trial Judge highlighted, in the course of

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summarising the prosecution and defence cases, the strengths of the identification evidence contended for by the prosecution and the weaknesses contended for by the defence. There was not a detailed analysis of the defence arguments about the shortcomings of the identification evidence, but a general indication that this was seen by the defence to be the fundamental issue. The learned trial Judge stressed that in the course of the defence submissions the difficulty and uncertainty of identification evidence had been highlighted.

53 The difficulty with the way in which the learned trial Judge approached the subject was that the initial review of the evidence of each of the prosecution identification witnesses (or witnesses who been unable to make an identification) was given in a somewhat neutral context. No directions had then been given about the need for caution in treating evidence of personal identification of an accused person by a witness. However, that said, the question is whether the directions which were given were adequate in the circumstances of the case.

54 There is no doubt that the learned trial Judge gave a very clear and detailed analysis of the evidence of each of the witnesses. This was preceded by telling the jury that the most critical element in the case was that of the issue of identity; namely, whether it was the accused man, Masood Chaudhry, who was the person involved in the way in which the Crown alleged. Her Honour said:

"You will therefore appreciate that identity is a critical issue in this case and I will have considerably more to say about the issue of identification later in the course of my charge."

55 In dealing with the witnesses, the learned trial Judge first singled out Abdul Ahad, whom she described as an important witness because he was the complainant in relation to count 1 on the indictment. Her Honour dealt with Ahad's identification of the appellant, pointing out that Ahad stated that he had met and seen Masood three times and it was some time after he had arrived in Australia that he was shown by police a photosheet on which he identified a photo of the man he said was Masood. The person identified was the appellant.

56 Ahad also described Masood. He said he was of medium build, dark-skinned, shorter than 178 centimetres, and had black, straight hair of a relatively normal length. He agreed that Masood Chaudhry was a common name in Pakistan and he could recall no distinguishing physical or voice features of the man. Her Honour then said:

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"Relevant again to identification Mr Ahad gave a physical description of Masood and referred to the circumstances in which he saw him, those being: the first meeting in a shop in Peshawar in daylight hours for one half to one hour; the second meeting in Lahore occurred a week later at a hotel in the evening for about an hour; the third meeting between them occurred at Karachi airport where they discussed travel arrangement [sic] for approximately two hours.

...

Relevant again to the issue of identification Mr Ahed [sic] agreed he was not asked to identify Masood from a photoboard until 2004, some three years after he had last seen him. It was possible, he said, that over that time his memory had faded but nonetheless he maintained that he recognised the man he circled in exhibit 1 in photo 5 as Masood ... "

57 Her Honour then turned to Mohammad Afzali and related his evidence as to how and when he had met Masood. In relation to identification she said:

"Relevant to identification Mr Afzali said in Karachi he was [sic saw] Masood on two or three occasions, each occasion lasting for a few minutes. After about a week at a hotel in Karachi Mr Afzali was assisted by people he termed as Masood's people to leave the hotel and go to an airport. He saw Masood at the airport but didn't speak to him."

58 Afzali also gave a description of Masood. He said he was of medium height and build, clean shaven, had tanned skin and was between 30 and 35 years of age. He, too, was shown a series of photographs by the Australian Federal Police in his case on 3 March 2004, which was "Quite some time after arrival in Australia ... ". He wrote on the document that he recognised the person on photo number 5 as Masood and that person was the appellant. Her Honour then said, about the circumstances of identification:

"He accepted that the total time approximately that he had spent seeing or being in Masood's company was about 10 minutes but nonetheless maintained that in this respect his memory had not faded over time and stressed or said that there were certain things that he would not forget ... "

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59 It is unnecessary to deal with the way in which the learned trial Judge then reviewed the evidence of the other witnesses. She carefully isolated the evidence of each and spelled out the extent to which a particular witness identified the appellant by reference to photographs on photoboards presented to the witnesses. Some witnesses were unable to identify the appellant. Others made partial identifications in the sense that they were able to give estimates of 10, 20 or 60 per cent "certainty" in relation to the question of identification. Nobody made a negative identification in the sense that they specifically said that the appellant was not on a photoboard. It was unnecessary for there to be any direction about evidence exculpating the appellant. There simply was none.

60 The learned trial Judge made it clear that the evidence of passengers other than the evidence of Ahad and Afzali fell into a special category. It was similar fact evidence in the sense that it was open to the jury to consider that the evidence of those witnesses was similar to the evidence of Ahad and Afzali in respect of the travel plans made to come to Australia. No complaint is made about the direction that was given.

61 No complaint is made about the directions of law given in relation to the dangers of relying upon evidence of personal identification of an accused by a witness. All the appropriate directions were given.

62 What her Honour did at this point was turn to the question of whether there were "any peculiar features that affected the situation which might impact upon identification". Here, the learned trial Judge did give the jury the benefit of a direction which had "the authority of the judge's office behind it", in the sense that she isolated and identified for the benefit of the jury matters of significance which might reasonably be regarded as undermining the reliability of the identification evidence: Domican v The Queen (supra) (at 562).

63 A number of these passages I will quote. The first was:

"Were there any apparent or obvious peculiarities of the person being identified which could assist in the identification? In other words, was there something in particular, physically about their appearance that might make them stand out in some way or might make them perhaps be more memorable? In this, you will recall that none of the witnesses who propertied [sic] to identify the accused, including Mr Ahad and Mr Afzali, could recall anything particular about Mr Masood's appearance in that sense or presentation that marked him out in any way."

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64 Her Honour then dealt with the question of whether identification was made under stress, but as far as I can see from the evidence there was never any suggestion that anybody was stressed at the time the identification was made. Her Honour then dealt with whether there was any particular reason why there should be a basis for a witness remembering particular things about a person. She said:

"You will recall in this trial that quite a number of the witnesses said that they were not asked to identify the man Masood or indeed in some cases the man Ayoub until some years after they had arrived in Australia and therefore it was some time since they had seen either of those people.

You have of course heard from the prosecution as to why that was so. In other words, why there was that time lapse. You must consider whether the witness concerned gave a description of the person they propertied [sic] to identify and whether the witness knew that person from previously and, if so, how well did they know that person?"

65 Her Honour then dealt with the detail of the description given in relation to the person identified and singled out the evidence of Ahad and Afzali in this way:

"Physical features such as hair length, hair style and weight can of course also vary over time. In relation to count 1, for example, Mr Ahad was not asked to identify Masood from a photoboard until three years after he had last seen him and in this context you must consider as a matter of commonsense whether a person's memory fades over time.

Similarly, Mr Afzali, relevant to count 2, was not asked to identify the man Masood until 2004, some three years after his arrival in Australia."

66 Her Honour then pointed out variations in the evidence given by different witnesses as to the description of Masood. She said:

"You also must consider any differences that witnesses gave in describing what purports to be the same person and whether those differences are significant or not. For example, Mr Ahad in count 1 describes the man Masood as having black relatively straight hair whilst Mr Afzali in count 2 describes the man

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Masood has [sic] having curly hair so you have to ask yourself is this a significant difference or not.

Mr Ahad and Mr Afzali, for example, describe the man Masood of being of medium build whereas Mr Paimani described him as being of heavy build so once again this is the type of matter you have to consider and ask is this a significant difference in description or not? You will also recall that a number of witnesses, Mr Paimani, Mr Ramattullah Safdari, his nephew Mr Shafiullah Ahmadzai and Mr Matiullah Sheerzad could not, after their arrival in Australia, identify the man they said was Masood from photoboards shown to them by the Australian Federal Police ... "

67 The learned trial Judge made reference to the evidence of witnesses who had claimed that the person on the photoboard looked 10, 20 or 60 per cent "familiar" as Masood. Her Honour said that "those kinds of percentages ... obviously very much affect the weight you would be inclined to attach to their evidence of identification". Her Honour also warned that an identification about which the jury was unsure could not support another identification about which it was also not sure. Further, if not satisfied about a particular piece of identification evidence from one witness, that evidence could not be used to "prop up any deficiencies in identification evidence of another witness". All of this was entirely in accordance with the required directions.

68 Finally, her Honour made these directions about the caution with which identification evidence should be treated:

"In order to find the accused man guilty on either count on the indictment, you would have to be satisfied in each instance of all of the elements of that charge, including the particular relevant complainant's evidence of identification of the person they identify or purport to identify as Masood as being the accused man, Mr Chaudhry. Therefore, Identification evidence is, you will understand, uncertain because it depends on many variables of the nature that I have brought to your attention.

It is the case that human perception is fallible and it is the case that our memories can sometimes play tricks on us and we can experience difficulty in recalling certain things. Our minds have on occasion a tendency to respond to suggestion. However, in this case, certainly you have heard that when

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witnesses were shown photoboards by the Australian federal police the witness was not given any indication that the photograph of any particular person was on that board."

69 The last observation may not have been entirely correct, although no point is taken about it on the appeal. I mention it because the evidence of Afzali reveals that when shown photographs he was at first asked if he knew anybody "from the camp" and was then asked "if [he] can recognise a person called Masood". There was no answer given to the first question, but Afzali said that he was able to circle a photograph whom he believed to be the man Masood.

70 However, early in the course of her direction to the jury, the learned trial Judge detailed the evidence of Afzali, and, in particular, his evidence in relation to the identification process. Her Honour pointed out that he had been given between three and five pages of photographs of people and asked generally if he could identify anybody he recognised. According to the learned trial Judge, Afzali was then specifically asked if he could recognise somebody called Masood.

71 The learned trial Judge also reviewed the evidence of Federal Agent McDowell. His evidence was that, when dealing with Ahad, he (McDowell) did not tell Ahad that Masood was shown on the photosheet. Ahad looked at the photosheet and selected photo number 5 as being Masood.

72 The learned trial Judge also referred in her directions to the evidence of Federal Agent Mellick. His evidence was that when Afzali was shown the photoboard, he had been told that he was under no obligation to identify anybody.

73 The evidence of Afzali as to how he came to make the identification of Masood must therefore be considered against this background. If it was the case that he was first asked if he could recognise anybody whom he knew from the camp and answered that he could, the second question whether he could recognise a person called Masood creates no difficulty.

74 Further, if Federal Agent Mellick's evidence was an accurate account, it would seem that there was an additional statement made to Afzali; namely, that he was under no obligation to identify anybody on the photoboard.

75 The directions in relation to the need for caution in treating the identification evidence were certainly strong and the jury was warned of

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the great care with which they should approach the assessment of identification evidence.

76 Counsel for the appellant was critical of the learned trial Judge's failure when identifying shortcomings in the identification evidence to point out to the jury that Ahad had only seen the appellant on three occasions. However, it was the case that, when reviewing the evidence generally, the learned trial Judge had made a particular point of reminding the jury of the meetings between Ahad and Masood, the first of which was in a shop in Peshawar for between half an hour and an hour, the second a meeting in Lahore about a week later for about an hour and the third at Karachi airport for approximately two hours. In my view, the jury was unlikely to have forgotten this, and, in any event, I find it difficult to understand the submission of counsel for the appellant that this should have been brought to the jury's attention as a shortcoming in the identification evidence of Ahad. If, indeed, he had seen Masood on three separate occasions for a period of somewhere between three and a half and four hours, that might be said to strengthen his evidence in relation to identification, rather than to weaken it.

77 Counsel for the appellant also criticised the learned trial Judge's failure to remind the jury in the course of her directions about the shortcomings in the identification evidence of the fact that Afzali had only seen Masood for a total period of about 10 minutes. However, the learned trial Judge did tell the jury in the course of her directions on the shortcomings of the identification evidence that they needed to consider in relation to both Ahad and Afzali their opportunity, or opportunities if there was more than one occasion, of accurate observation which existed at the time or times upon which they say they saw or spoke to or dealt with a man they purported to identify as Masood.

78 Earlier, when reviewing the evidence generally, the learned trial Judge had told the jury that Afzali had testified that he had seen Masood in Karachi on two or three occasions, each occasion lasting for a few minutes. He said that he saw Masood at the airport when he was leaving, but had not spoken to him.

79 In my view, the jury could not have failed but to appreciate that critical to their consideration of the evidence of identification by both Ahad and Afzali was the period of time during which each of those persons had available to them to identify Masood. The learned trial Judge stressed the question of opportunity to identify as a critical factor.

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80 We were informed by counsel for the respondent that during the jury's deliberations, they returned to the court and requested that the evidence of both Ahad and Afzali be read to them in full. They could not therefore have failed but to appreciate the period of time during which each of the respective witnesses had available to them to make an identification of Masood.

81 In these circumstances, I consider that the learned trial Judge did direct the jury adequately in relation to identification evidence generally and did comply with the requirements in that respect set out by the High Court in Domican v The Queen (supra). I would therefore dismiss ground 2.

Ground 3

82 This ground contends that the verdict of the jury should be quashed on the basis that it is unsafe and unsatisfactory because of a lack of evidence capable of establishing beyond reasonable doubt each of the elements of the offences. In particular, it is contended that the evidence as to identity of the offender was inadequate and lacked probative force.

83 I have already reviewed the way in which the learned trial Judge summarised the evidence of each witness.

84 There was firm evidence from each of Ahad and Afzali of positive identification of the appellant from photographs shown to them. This, they said, was the man they had met in Pakistan and who had arranged their travel from Pakistan.

85 Ahad related that he had seen the appellant three times for up to four hours in totality, those meetings having been at Peshawar, Lahore and at Karachi airport. The meeting in Peshawar lasted from half an hour to an hour, the meeting in Lahore for about an hour and the meeting at the airport in Karachi for up to two hours. Ahad had considerable time within which to observe the person with whom he was dealing.

86 As I pointed out in Al-Hashimi v The Queen (supra) (at 389), McKechnie J in R v Kelly [2002] WASCA 134; (2002) 129 A Crim R 363 gave a detailed analysis (at 371 - 372) of the different circumstances in which identification might be made. Sometimes, it is by initial observation at a crime scene and on other occasions it is by subsequent identification. In the first instance, there may be brief observation by a stranger, there may be observation of a suspect who is known to the observer, or there may be actual recognition. There may also be good

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circumstances of observation of a suspect by a stranger. When dealing with subsequent identification, the reliability of the identification and particularly the reliability of the identification of a suspect from a group are important factors.

87 In the present case, it would seem that Ahad had ample opportunity to observe the man with whom he was dealing and because he had him under scrutiny for such a substantial period of time, it was open to the jury to be satisfied beyond reasonable doubt that he was later able to identify him, notwithstanding that the identification came a substantial time thereafter.

88 The evidence of Afzali was that he saw the man Masood two or three times in Karachi for a few minutes each time and during these meetings he was given travel tickets, advised what countries he would be travelling to, how he would be helped at the airport and who would be meeting him in Indonesia. He did not see Masood for anything like the same period of time as did Ahad, but it was open to the jury to be satisfied beyond reasonable doubt that the meetings which Afzali had with Masood were sufficient in number and although short, sufficient in duration for him to be able to later identify him from a photoboard. Again, the identification was a substantial period thereafter, but it was open to the jury to be satisfied beyond reasonable doubt of this evidence.

89 There was evidence from five further witnesses who identified the appellant from photoboards to varying degrees. Six witnesses were unable to identify the appellant at all on the photoboards, but, nobody said that the man Masood was not pictured on any photoboard.

90 The prosecution case clearly depended on the jury's assessment of the identification evidence of Ahad and Afzali. Their evidence was supported to some extent in terms of identification by the five witnesses who made partial identifications. The jury was warned of the dangers of acting upon those partial identifications.

91 By reason of the fact that there were positive identifications made by Ahad and Afzali, and it was open to the jury to be satisfied beyond reasonable doubt that they could rely upon those identifications, I am unable to agree that the verdict of the jury was unsafe and unsatisfactory. Furthermore, there was additional evidence in the form of Khan's written statement which (if accepted) contained a confession by the appellant that he had been engaged in the past in people smuggling. If this evidence was accepted, he had arranged airline tickets in Pakistan and sent people to

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Indonesia, where they were met by others and thence sent by boat to Australia. That was powerful probative evidence of guilt and when added to the identification evidence of Ahad and Afzali, it was sufficient to entitle the jury to be satisfied beyond reasonable doubt of the guilt of the accused on each of the two counts on the indictment. It could not be said that the verdict was unsafe and unsatisfactory because of a lack of evidence capable of establishing beyond reasonable doubt each of the elements of the offences for which the appellant was convicted. I would therefore dismiss ground 3.