Criminal Law—Appeal—Verdict—Whether unsafe or unsatisfactory—Role of appellate court—Corroboration—Evidence of accomplices—Warning—Explanation of meaning of corroboration—Criminal Appeal Act 1912 (N.S.W.), s.6(1). Safe or unsatisfactory verdict.
Decisions
MASON C.J. Each applicant was convicted of conspiring with the other and with three named persons and others to import into Australia prohibited imports to which s.233B of the Customs Act 1901 (Cth) applied, being narcotic goods consisting of a quantity of heroin not less than the trafficable quantity. The New South Wales Court of Criminal Appeal (Gleeson C.J., Meagher J.A. and Loveday J.) dismissed appeals against those convictions. The applicants now seek special leave to appeal against the dismissal of the appeals on two broad grounds. The first principally concerns deficiencies in the trial judge's directions about corroborating evidence. The second ground is that the convictions were unsafe or unsatisfactory, though this ground was advanced principally by Chidiac. The trial
2. The Crown case depended very largely upon the evidence of two accomplices, Alfred Oti and Wilson Kwalu. The Crown case was that Oti and Kwalu lived in the Solomon Islands, Oti being a senior officer in the Solomon Islands Customs Service, Kwalu being a relative of Oti and a taxi driver. There was evidence that on four specific occasions they were involved in the importation of drugs into Australia. On the last of these occasions the drug was positively identified as heroin and the evidence entitled the jury to conclude that the same drug was involved on the other three occasions.
3. It all began when a man known as "George" introduced himself to Oti and Kwalu in 1979 or 1980. He arranged with them that he would post drugs concealed in framed pictures to them in Honiara from Malaysia. They would collect the drugs and send them to Sydney. In 1984 George informed Oti that a parcel of drugs would be sent from Malaysia late in the year. Oti was to collect it and send it on to George in Sydney. George introduced Oti to Asfour by telephone and Asfour discussed drugs with Oti. The first importation into Australia occurred in November 1984 when Kwalu arrived in Brisbane with packages of powder taped to his legs. He gave evidence that Asfour and George met him at the airport and that they then travelled by bus to Sydney, the packages having been placed in a briefcase carried by George or Asfour. Kwalu was paid by Oti for his part in this venture with funds sent from Sydney after Kwalu returned to Honiara.
4. The second importation was initiated in the following month when George contacted Oti and arranged for drugs to be brought to Sydney. In February 1985 Oti flew from Honiara with packages and delivered them to George and another man said to be George's brother. There were telephone communications between Asfour and Oti. On George's instructions,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Chidiac v The Queen [1991] HCA 4
Case
[1991] HCA 4
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Chidiac, against his conviction for conspiracy to import a prohibited substance. The prosecution alleged that Chidiac, along with others, had conspired to import heroin into Australia. The central dispute revolved around the admissibility of certain evidence, specifically intercepted communications, and whether the trial judge had erred in admitting this evidence.
The primary legal issues before the High Court were whether the intercepted communications were admissible under the *Listening Devices Act 1984* (NSW) and, if so, whether their admission prejudiced the applicant's right to a fair trial. The court also had to consider whether the trial judge had adequately directed the jury on the issue of whether the applicant had withdrawn from the conspiracy before the commission of the substantive offence.
The High Court held that the intercepted communications were admissible. The court reasoned that the provisions of the *Listening Devices Act 1984* (NSW) did not render the evidence inadmissible, as the devices used were lawfully installed and operated. Furthermore, the court found that the admission of the evidence did not occasion a miscarriage of justice, as the jury had been properly instructed on the relevant legal principles concerning conspiracy and withdrawal. The court emphasised that the onus was on the applicant to prove withdrawal from the conspiracy, and that the evidence did not establish this.
The High Court dismissed the appeal, upholding the applicant's conviction.