Chidiac v The Queen; Asfour v The Queen

A'1r -!i_~~i~~(~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S9 of 1990
B e t w e e n -
NEIL CHIDIAC

Applicant

and
THE QUEEN

Respondent

Office of the Registry

Sydney No S22 of 1990
B e t w e e n -
MICHAEL ASFOUR

Applicant

and
THE QUEEN

Respondent

Applications for special
leave to appeal

MASON CJ DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 OCTOBER 1990, AT 10.03 AM

(Continued from 3/10/90)

Chidiac

4/10/90

MASON CJ: Yes, Mr Bennett.

MR BENNETT: If Your Honours please. Yesterday,

Justices Dawson and McHugh asked me a number of questions suggesting that there may be a
distinction in applying the unsafe and
unsatisfactory line of cases between those where,
as in circumstantial evidence cases, one had a
volume of evidence and the question was, "From that
evidence could one assume guilt? and cases where
one was, as it were, going back a step further and
saying, "Well, there is clear evidence of guilt but
the credibility of the witness giving it is very
much in doubt.".
What we have found overnight is a string of cases and a couple of text.references which suggest
that the courts are prepared in considering whether
a verdict is unsafe or unsatisfactory to look at
questions of credibility. And I have given
Your Honours a bundle of photocopied cases which I
will very quickly take Your Honours through which
support that proposition.
The only case which actually has a discussion

of the principle and says at the end, "Yes it can
be done on credibility as well." and there is no

such distinction as that Your Honours were putting
to me is a recent decision of the New South Wales
Court of Criminal Appeal, and that is the last of the cases I will take Your Honours to.

DAWSON J: But it must surely be inherent credibility, not

credibility which depends upon looking at .....

MR BENNETT: Well, in our respectful submission,

Your Honour, the difference is only one of degree
in the same way as when one applies Warren
v Coombes in a civil case, it is only in the most
extreme circumstances that a Court of Appeal is
entitled to say, "We come to a different conclusion
on credibility", but in an extreme case the court
will do so.

Your Honour remembers the lottery ticket case, An example, is the Kozary case.
Voulis v Kozary, where this Court ultimately
reversed a Court of Appeal and a trial judge on a
pure credibility issue. Having read the evidence
this Court said it just could not accept that the
court would believe one witness who said something
against another witness.

DAWSON J: That is where you have got a conflict. You have

not even got that here. You have not even had your
client get into the box and contradict what was
said by the Crown witness.

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MR BENNETT:

No, Your Honour, but, in our respectful

submission, that does not make a difference. May I
put this extreme - - -

DAWSON J: But it might make a considerable difference

because it makes it very much easier for the jury
to accept what was said in the Crown case.

MR BENNETT:

It is a difference of degree though,

Your Honour, we would submit.

DAWSON J:

The degree is the matter for the jury usually.

MR BENNETT: Well, Your Honour, in our respectful

submission, that is not always the case. May I

just put this extreme case to Your Honours. We put
the very simple case first; put the case of the
man who gives evidence and then says in
cross-examination my evidence in-chief was a tissue
of lies and his evidence in-chief is the only

evidence against the accused. Now it is open to
the jury to reject the evidence in
cross-examination and accept the evidence in-chief
and the judge cannot take the matter away from the
jury. But having done so, if the jury convicts and
that is the only evidence, it is open to an
appellate court to say, "This is unsafe and
unsatisfactory when one looks at the overall
circumstances." and we submit that is this case. In this case, of course, as Your Honours will
see, there are additional factors; there are
pieces of evidence which make the evidence of the
two people intrinsically unlikely. There are
contradictions in the precise evidence which is
given against us as well as in their general
credibility and there are other matters, but in my
respectful submission, all that goes to is degree.
The Court is entitled to look at the question of
credibility and may I just show Your Honours the
cases where is has been done. First, if I can just

show Your Honours this. The very first document I
have given Your Honours is the textbook on Watson &

Purnell on criminal law and Your Honours see on the second page of the two pages I have given
Your Honours, the first page just has the heading
"Verdict unsafe or unsatisfactory" and on the
second page, the second paragraph:
The proper test of whether a verdict

should be set aside because it would be
unsafe, unjust or dangerous to allow it to
stand, is to ask whether the jury, acting
reasonably, must have entertained a sufficient
doubt as to the guilt of the accused, ie must
have entertained a reasonable doubt as to the
guilt of the accused.

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When it is submitted that it would be
dangerous and unsafe for a verdict to stand
because the conviction was based on evidence
intrinsically unworthy of credence, -

which is this case -
the appellate court is required to

DAWSON J: That is not this case. When you say

"intrinsically unworthy of credence" you mean there
is something in the evidence itself that makes it
unbelievable. All you have got here is a man who
says he is a liar and lies, but the evidence itself
which is against the accused is not inherently
incapable of credence.

MR BENNETT: In determining that, in our respectful

submission, one does look at the whole of the
evidence of the witness.

DAWSON J: Well, that is not an inherent characteristic of

the evidence.

MR BENNETT:

In my submission, the word is not used in that

narrow sense and when one talks about evidence
"intrinsically unworthy of credence" one must have
regard to other evidence, including, as in this

case, the other evidence of that witness. It goes
on:
the appellate court is required to examine the
evidence itself -

et cetera. The English test, which is referred to
in Halsbury in the next document is slightly
different since 1968. Prior to 1968 the English

Act was in the same form as ours. In 1968 it was
amended and the formula which the courts had used,
unsafe and unsatisfactory, was substituted and Your
Honours see that the way Halsbury describes it in
paragraph 650 volume 11:

In order to establish that a verdict is
unsafe or unsatisfactory, it will not
generally be sufficient to show that the case
against the appellant was a weak one, or that
the verdict is against the weight of the
evidence, or that the judge of the court of
trial felt some doubt about it and has given a
certificate on that ground. The Court of
Appeal is not prepared to usurp the functions of the jury, but will nevertheless ask itself the subjective question, whether it is
prepared to let the matter stand as it is, or
whether there is not some lurking doubt in its
mind which makes it wonder whether an

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injustice has been done. This is a reaction
which may not be based strictly on the
evidence; it is a reaction which can be
produced by the general feel of the case as
the court experiences it.

DAWSON J:	Now, that is a case which has never been applied.
MR BENNETT:	No, that is so.
MASON CJ:	You are not urging that we apply that test, are

you?

MR BENNETT:

No.

The first of the English cases is

Jefferson, (1908) Cr App R 95. This was slightly
different to the others in that this was a case
where the evidence that the jury apparently
rejected was evidence which the court said in
effect should have been accepted. This was an

insanity case. The prisoner:
was found ..... cutting off the head of a woman

in the road with a table-knife. When spoken
to, he continued cutting off the head.
Helliwell went for help, and returned with two

other men. Appellant was then found .....
cutting off the arm of the woman, and when
remonstrated with he continued to cut off the
arm.

When he was taken with them he took with him her:
umbrella, hat, and corsets, and he spoke to
the men of the sum of money he would get on
the.sale of -

them and so on. Three doctors, not surprisingly,

said he was insane and the jury convicted. The
Court of Criminal Appeal said, it is the judgment
of Mr Justice Lawrance:
In the opinion of the Court this verdict was
unsatisfactory, and ought not to stand. The

court has read the evidence of the doctors.
There was very strong evidence before the jury
that this man at the time he committed the
offence was not in a state of mind to make him

responsible for his actions. No question has
arisen here as to the direction •.•.. In the
opinion of the Court the verdict of the jury
ought to have been that the appellant was
insane .... The order must be that the sentence
be quashed, and -

et cetera. That was done, as far as one can see,
under the general provisions of the Court of
Criminal Appeal legislation, the Criminal Appeal

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Act, which had just come into force. So, it is a case where the jury apparently rejected evidence
and the Court of Criminal Appeal said it should

have been accepted. It is a pure credibility case
although in reverse.
The next one is Hart, (1914) 10 Cr App R 176.

The judgment is at page 178 and it is under the
same section, of course, as us:
The appellant was convicted of an

indecent assault, and he appeals to this Court
on the certificate of the Deputy-Chairman that
the case is a proper one ..... The case has been
argued, first, on the ground that the verdict
was unsatisfactory -

and then another basis.
The case deals with an assault on a girl who was just fourteen years of age, and therefore,

the question of consent was material. No
complaint can be made of the direction of the Deputy-Chairman, who indicated clearly to the jury that his own view was one favourable to
the appellant. It is just one of those cases
where it is difficult to say which is the
exact piece of evidence that leaves an
unsatisfactory impression on the mind. This
Court has power to allow an appeal if it
cannot be supported, having regard to the
evidence, and looking at the whole of the
evidence, and bearing in mind the observations
of the Deputy-Chairman who heard the witnesses
and observed their demeanour -

that is his observations that they should not be
believed, of course -
we have come to the conclusion that this was
not a satisfactory verdict, and that,
therefore, the conviction must be quashed.

While it must not be supposed that the mere fact that the judge who tried the case does
not approve of the verdict is a sufficient
reason for asking the Court to set it aside,
it is a factor for consideration.
Well, there is no doubt what His Honour

thought here about the witnesses. He said you
would not hang a dog on their evidence, and it is
analogous, we would submit, in - - -

DAWSON J:	He did not say quite that.
MR BENNETT:	I think it was the precise phrase.

Chidiac

4/10/90

DAWSON J:

He used that expression but in a different sense.

He said - I do not have an exact reading, but it
was not as strong as that.

MR BENNETT:

It was at page 359, starting at line 8:

Now, that does not mean to say that they may
not be telling the truth, but what I am saying
to you is you will look very carefully at what
they said before you would hang a dog on their
evidence.

DAWSON J: Yes, "you would look carefully before".

MR BENNETT:

Yes, but, Your Honour, there is no doubt that

if, as in England, the judge gave some sort of
document setting out his views what those views
would be, and in my submission this is a case where
the court simply said, "We are not satisfied on
credibility".
Barnes is the next one. This was a receiving

case. The accused said he received the stolen
goods from a man named Clifford and Clifford was
called and Clifford disputed the accused's story
and the court formed the view that Clifford was an
unreliable witness and so told the jury but the
jury apparently believed him. At page 147,
starting in the middle of the page, against the
word "honestly" in the left-hand margin,
Their Lordships say this:

But Clifford was called. We have had a very
frank statement in this Court from the learned
counsel for the prosecution, which has been of

great assistance to us. Mr Gordon, who
prosecuted then, and has appeared for the
Crown to-day, has said that, although Clifford
was called, and completely denied the
statement of the appellant •.... most people in
Court formed the impression that Clifford had
not told all he knew about the matter.

Our attention has been drawn to the fact
that the learned Deputy Chairman himself in
the course of the case put some questions to
Clifford which at least seem to indicate that
there was a lingering suspicion in his mind
that Clifford might be something other than an
extremely honest workman -

et cetera, and then at the bottom of page 148:
The case was one in which the learned

Deputy Chairman undeniably formed a very
strong view, and his summing up was one of
which it may be said that, short of

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withdrawing the case from the jury, it could not have been put more strongly. He did all
he could to point out to the jury the
extremely unsatisfactory nature of the
evidence, and warned them in the clearest
terms as to the danger of accepting such a

case for the prosecution. In the last words of his summing up he used expressions such as

these: "I wonder who stole this drill; I
wonder if the person who stole it gave it to
the prisoner ..... .

This Court has come to the conclusion,
without in the least blaming anybody in this
case, and certainly not suggesting for a
moment that the learned Deputy Chairman could
have done anything more than he did in the
matter, that this was not a satisfactory
verdict.

That is pure credibility in that case, that the
jury did not reject someone who they should have
rejected.
Dent is another example of the same thing in a

case involving a child, 29 Cr App R 120. At
page 123 they refer to the general principle about
the uncorroborated evidence of young children. say this:
In the present case it has been agreed throughout that the evidence of the three
little girls was wholly uncorroborated -

they were 12, 13 and 14; there was a discussion of
that -
It is also agreed, and it is only fair to the
learned Commissioner that this should be
stated in the plainest possible terms, that

the learned Commissioner did give to the jury

the proper warning in the proper way. He told
them that it was the practice to warn juries
that it was dangerous in the case of sexual
offences, and more particularly in cases where the complainants were little girls, to convict on the evidence of the complainants alone. He
stated that quite plainly, and we have no
criticism to make of the way in which he
stated it. But, none the less, having
received that warning, the jury, after an
absence of three hours, thought fit to
convict .....

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The question now arises what this Court should do in a case of that kind. Ordinarily
speaking, there can be no doubt that, where
the jury have been given proper warning, and notwithstanding that warning have convicted,
this Court will not interfere; but it is
sometimes advisable to go back beyond the
decided cases to the Act of Parliament -

which is then set out; there is a reference to
some earlier cases and the general principles;
then, the last two paragraphs -
It is upon that principle -

that is the one put in very general terms -

that the Court proposes to act in the present

case. The Court which heard the application
for leave to appeal said that this matter
required very careful consideration. Having
given that consideration to this case, this
Court does think that, notwithstanding that proper warning ..... the verdict of the jury on the exceptional circumstances of this case was
unreasonable, and a verdict which cannot be
supported having regard to the evidence.
I do not think it necessary to analyse in

detail the considerations with regard to the
evidence which have led us to that conclusion.
The little girls, unfortunately, were plainly
little girls whose credibility required very

great scrutiny. One of them was described by
the doctor as presenting the appearance of a
married woman, and for the reasons I have
indicated generally, though not in detail, we
think that this is a conviction which cannot
be safely allowed to stand -

pure credibility.

I have given Your Honours the case Reg v Cooper, although that is under the new Act but it
indicates that a similar sort of approach is taken.

MASON CJ:

Now, in what respect is the jurisdiction under

the new Act wider than the old jurisdiction? I
know that Chief Justice Barwick said in Hayes that
it was a wider jurisdiction but in what respect is
it a wider jurisdiction?

MR BENNETT:

It is hard to see how it should be,

Your Honour. One would have thought that the
English Act having taken away the old formula and
put in the words "unsafe and unsatisfactory" which
is the summary formula the courts had been applying

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for years to the old longer formula, one would have
thought in a sense that was a re-enactment.
The cases referred to by Halsbury seem to

suggest a broader and more subjective approach
where the court looks at what is described as "the
feel of the case" and so on.

MASON CJ: But that is a matter of different test or

standard, is it not, rather than jurisdiction?

MR BENNETT: Yes, Your Honour, that is so.

McHUGH J: There is a famous article by Lord Devlin called

Sapping and Undermining which is reproduced in The
Judge which refers to this jurisdiction and refers

to some of these cases. He is very critical of the
English decisions.

MR BENNETT: Yes.

McHUGH J:

I think on the basis that they do not go far

enough.

MR BENNETT: Yes. Well, it is easy, I suppose, to take

fanciful examples. One could take one, for
example: suppose you had a bank robbery committed
by two men with balaclavas and one is caught and he
says, "The man who was with me was X", X being a
supreme court judge who had previously sentenced
that man for armed robberies in the past, and he
gives that evidence and he does not quail from it

and it goes to the jury. One can make the case
stronger by adding alibi considerations if one
likes, and the judge gives the strongest possible
direction to the jury about how no one could act on
the uncorroborated evidence of this man in these circumstances, and the jury convicts. One would
have thought an appellate court would just have no

difficulty with that sort of case. It would say,
"This man had a motive to lie. He ought not to
have been believed in that sort of allegation."

If one denies that jurisdiction, and as comes

from cases like Reg v R, which I will take
Your Honours to, one also denies the power of the
trial judge to take this sort of case away from the
jury, one is left with an extremely dangerous
situation where a jury which does come to a
perverse verdict simply cannot be attacked because
the direction is so strong and so satisfactory.

DAWSON J:

The Court of Criminal Appeal did none of those things here.

MR BENNETT:	No, the Court of Criminal Appeal did not analyse the evidence at all.	What it said was the
Chidiac	30	4/10/90

attack is based on credibility; it is not unsafe
clear to the jury that these people were unworthy and unsatisfactory because the judge made very
of belief, nevertheless, the jury believed them.

DAWSON J:

It said there was evidence fit to be considered

by the jury and it was for the jury to come to
their conclusion on it.

MR BENNETT:

Yes, Your Honour.

DAWSON J: They may be wrong about that; they may be right

but where is the special leave point?

MR BENNETT: But all the cases say, Your Honour, that is not

the test. All the cases say that what the
appellate court must do is look at the evidence for
itself and see if it can be satisfied of that. The
special leave point is that "unsafe and
unsatisfactory" is cured by a favourable direction
and that is something which all these cases which I
have taken Your Honours to in England seem to
suggest is wrong because in each of these cases the Court of Criminal Appeal went out of its way to say the judge gave the jury the clearest possible
warning; one cannot criticize what the judge said
but, nevertheless, we think it is unsafe and
unsatisfactory.
In any event, the only point about Cooper's case is it refers to some of this broad language

under the new Act. It is also a case where, as
Your Honours will see from page 271B:

The important thing about this case is

that all the material to which I have referred

was put before the jury. no one criticises
the summing-up -

et cetera. And then the way they put it in the
last full paragraph on the page:

However, now our powers are somewhat
different, and we are indeed charged to allow
an appeal against conviction if we think that
the verdict of the jury should be set aside on
the ground that under all the circumstances of
the case it is unsafe or unsatisfactory. That
means that in cases of this kind the court
must in the end ask itself a subjective
question, whether we are content to let the
matter stand as it is, or whether there is not
some lurking doubt in our minds which makes us
wonder whether an injustice has been done. This is a reaction which may not be based
strictly on the evidence as such; it is a

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reaction which can be produced by the general
feel of the case as the court experiences it.

MASON CJ: But is there not an earlier English case under

the new Act which emphasizes that it is only very
sparingly that the court would exercise this power
to arrive at a conclusion that the verdict was
unsafe or unsatisfactory where the attack is based
on the credibility of witnesses. Is there not a
case called Turnbull in which that statement has
been made and, as I understand it, followed in
subsequent cases?

MR BENNETT:

I did not come across that, Your Honour, but I

would not dispute the proposition that the court
would be slow, under any of these provisions, to
act in a case where the basis is credibility. I do
not suggest for a moment it is something this Court
should do every day, but this case we put as the
extreme case, as the case where you have witnesses
who tell lies on every page; who are the worst
type of witness and whose evidence, as Your Honours
will see, is for practical purposes totally
uncorroborated.

DAWSON J:

Mr Bennett, when you say "tell lies on every

page", in relation to the crucial evidence, the
witness at no stage admitted that he had told an

untruth, is that right. I mean he admitted he
was - - -

MR BENNETT:	He admitted changing the story as to detail but not as to the essential matter that is so,
Your Honour.
DAWSON J:	No, although he - - -
MR BENNETT:	Although the two of them gave totally different

stories.

DAWSON:

Yes.

MR BENNETT:	But, no, that is so, Your Honour.
There are a couple of New Zealand cases next,

Sutherland is the first, (1953) NZLR 676, and that
was a case where Dent was applied in a sexual
assault case and at the bottom of page 678, having
referred to all these matters, they say:
We have refrained from discussing in

detail the evidence in this case lest we
appear to prescribe a set of circumstances
requiring a similar decision to that reached
by us upon these circumstances. There is
often something of a pattern in these cases
and we must not be taken as saying that, where

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that pattern or some part of it occurs in
another case, a jury should not convict or
that the verdict of the jury must be set aside
if there be a conviction on uncorroborated
evidence. Each case must always turn upon its
own facts and upon the special inter-relation
of those facts.
Because in this case we are satisfied

that the verdict of the jury is unreasonable
and cannot be supported, we have decided to
take the very exceptional course of setting it
aside.

When one goes into the detail of it, it is a case of uncorroborated evidence of two young girls, the court examines that and says that the girls have
been in previous trouble, there were reasons why
the jury would have doubt about their evidence and
allows the appeal.
A case where it was not done in New Zealand

but where the same sort of test was applied is
Reg v Johnston, (1956) NZLR 516 where Sutherland is
referred to, Dent is referred to again, and at the
bottom of page 517, Mr Justice Shorland says:
It cannot be questioned that the girl's

evidence, if believed, establishes an indecent

assault by the appellant. The credibility of
the girl is attacked on the grounds that it
contains serious inconsistencies.
[And after a detailed examination of the

girl's evidence, the judgment continued:] The
matters referred to, in our view, lend
credence to the girl's story, notwithstanding
the discrepancies ..... Upon a careful
examination of the evidence, we find it to be
such that it would not be unreasonable for a
jury to believe it if the demeanour of the
girl in the witness-box, and the manner in

So the court analysed it; asked itself the which she gave her evidence, convinced the jury.
question; applied a harder test, of course, and
found the case did not satisfy it. But it did
proceed to take that course.
There is one case in Western Australia called

Coulter and Treffene, (1926) 29 WAR 40, and at
page 44, two-thirds of the way down the page, the
Chief Justice says:
On the facts we were asked to say that

the verdict is against the evidence and the

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weight of evidence and cannot be supported.
We must remember that we are not in the position of the jury. The intention of the legislature has not been to substitute a trial
by three judges who have not had the witnesses
before them -

et cetera; and then there is the statement about
how careful the court has to be; and then they say,
at page 45, line 10 -
We must give effect to these words. In
England judges who have had to consider this
point have always asked themselves whether the
verdict in question is a satisfactory or an

unsatisfactory one. The expression
"satisfactory" is perhaps somewhat wanting in
preciseness, but I think its elasticity is an
advantage. It is quite clear that we have on
the one hand to guard against the danger of
substituting trial in this court for trial by
jury -

and I concede that -
but, on the other hand, we must not shirk the
responsibility which has been placed on us by

the legislature. I think, therefore, that the
duty of this court is in every case in which
there is an appeal on the facts to give the
most careful consideration to those facts, and
then to ask itself whether it is prepared to
say the verdict of the jury is or is not a
satisfactory one."

And then they say, on this case, it was a
satisfactory one and they talk about the attack on

the credibility of Clarke and that is set out. And
it is quite clear that the attack which was made
and which the court countenanced, but ultimately
held was not sufficiently made out, was one on the
credibility.

DAWSON J:

If you read on that was a case in which the

principal witnesses all were liars and nevertheless
he said it is quite clear the jury accepted the
evidence as being reliable and they were justified

in so doing. I mean, you cannot really compare
case with case but it is a case in which the
witnesses had no real credit.

MR BENNETT:

Yes, Your Honour, but His Honour did not say

that once the witness is held to have no real

credit that is insufficient on its own. No court
has gone that far and said that one may not, in
such a case. Obviously, in most cases, where the
only attack is on credit, the court will be very

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careful about interfering for all the reasons given
in the these cases. But what the cases do not do

is suggest that the court cannot do that. And I
have given Your Honours examples of English cases
where the courts have done so.

DAWSON J: Yes, but they are all cases in which there is

some additional feature. If you take the case of
sex cases where the children are young children,
there is an inherent unreliability in that sort of
evidence. All you can point to, in this case, is
that these people or a particular witness - I do
not know about Kwalu.

MR BENNETT:

I will come to that.

DAWSON J: Yes, but the one you have been referring to

admitted that he was a liar.

MR BENNETT:

It is a little more than that and, repeatedly,

was contradicted on his evidence in the court
itself. But, Your Honour, I would submit the
position of children is, in a sense, analogous.
The rule about accomplices and the rule about
children is very similar. In each case one needs
to give a direction about corroboration because of
the inherent unreliability. It is for different
reasons, of course, but I would submit the fact
that they are admitted accomplices on their version
is, indeed, principals, in a sense, on their
version, is the special feature if one needs to
look for one.
But the feature in this case is that when one

looks at.the whole of it one has, as Your Honours
will see, not a single incriminating fact in the

objective evidence. Two men who, on admitted
evidence, have - there is no suggestion they have
any other contact at any time with my client and
then there is one accidental visit which is
suddenly, years later, said to have had certain
things said at it. But I will come to that

Your Honour, if I may.

DAWSON J:

It is not said to be accidental by the Crown

witnesses. They gave a version of it which was

consistent with your client's guilt. Your client
did not deny that on oath.

MR BENNETT:

No, but he made a statement, Your Honour, which

is true.

DAWSON J:

But that does not help.

The jury may have given

no weight to that statement at all and it would
have made it very much easier to believe the story
which the Crown witness gave in the witness box.

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MR BENNETT:

One is not entitled, Your Honour, to apply a

Jones v Dunkel approach to the evidence of the accused himself and one cannot say that it is - - -

DAWSON J: Is is not applying that approach. It is not a

case of the witness not being called; it is a case
of evidence which has been given is easier to
believe when it is not denied on oath. That is a
self-evident proposition.

MR BENNETT: Well, it still has to reach the standard, - - -

DAWSON J: True.

MR BENNETT:

- - - and that is the question in this -

DAWSON J: It is easier to accept that it has reached the

standard in that situation.

MR BENNETT:

Yes, as a matter of degree I accept that,

Your Honour.

DAWSON J:

You see, in the end the question is merely, would

a reasonable jury have had a doubt in this
situation?

MR BENNETT: Yes, Your Honour.

DAWSON J:

And you look at the evidence and undeniably they

are entitled to accept some parts of the evidence
of the witness and reject others and they were told

that they were entitled to do that.

MR BENNETT: Yes.

DAWSON J: Well now it must be that the jury accepted the crucial parts of the witnesses' evidence in this

case.

MR BENNETT: Yes.

DAWSON J:

Now, the question really is, were they

unreasonable in doing so?

MR BENNETT:

And we submit, yes, and the Court of Criminal

Appeal has not undertaken that examination.

DAWSON J:

It has not expressed itself as fully as might

have been desirable.

MR BENNETT:

And it said the reason it has not, the reason

it has given for not undertaking it is that it has
said, you got a favourable direction, why are you
here? What are you complaining about? That is the
special error which they have committed, which in
our respectful submission, is - - -

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DAWSON J: Is not the Court of Criminal Appeal merely

saying, well look, in this situation the jury were
entitled to accept the crucial parts of the
evidence. Obviously they did and they did so after
a very strong warning about the credibility of the

witnesses. was it unreasonable for them to have
done so?

MR BENNETT:

They have not answered that question,

Your Honour. That is what they have not done.
They have not looked at the evidence, as all the cases say it is their duty to do, to say if it was

or was not unreasonable. The argument we put is,
when one looks at the evidence, no reasonable jury
could be satisfied. That evidence includes the
weakness of the evidence of these two men. Your Honours, I have almost finished this
bundle of cases. I might just conclude that
exercise and then return to the facts. The·
Reg v Smith, (1979) 2 NSWLR 304, is a New South
Wales case. This was an identification issue. At
the bottom of page 308, the Chief Justice
Sir Owen Street said:

McHUGH J: It was more than an identification case, was it

not, because was there not also confessional
evidence in that case?

MR BENNETT:

Yes, there was,but it was said to be

unsatisfactory. Oh yes, there were other features,
but the ultimate decision is made on the strength
of the case which takes into account matters of
credibility. At the bottom of page 308, the last
three lines:
The aspect also was one which, in my

view, the learned trial judge properly left to
the jury as a basis to support a conviction, either standing alone or in conjunction with
the evidence of identification. But it was,
nevertheless, far from a substantial body of

evidence, and it too is such as to attract the submission that has been made, that is to say,
that this Court, although finding no error on
the part of the trial judge, should,
nevertheless, exercise its powers to quash
this conviction on the basis that it would be
unsafe or dangerous to allow the conviction to
stand.

But at the bottom of that page:
In the present case, I am of the view

that it would be dangerous in the
administration of the criminal law to allow
this verdict of guilty to stand. Although the

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jury was directed by his Honour quite properly
upon the danger of relying upon the evidence of
identification -

so it is another of the special categories -
it seems at least possible that the jury may
not have apprehended the full extent of the
warning that was given to them by his Honour.
The evidence of identification was far from
convincing, although, as I have said, it was
not so flimsy as to require to be withdrawn
from the jury. Nevertheless it was evidence
which, as reviewed in the manner enunciated by
Barwick C.J. -

and that is in Hayes' case -
leads me to the conclusion that the verdict
should not stand.

Then he talks of the "oral confession" and says,
again, it is:
too flimsy a basis -

and there is discussion in Mr Justice Lee's
judgment of the same sort of thing. Flimsiness is
again the basis; it is an aspect of credibility.
Fuller and Slater, (1982) 6 A Crim R 424, is

one where it is not completely clear on the

judgment what was done. The court allowed the
appeal on a number of other grounds so this was not
the only ground relied on and it seems to have done

it in a slightly neutral way. If Your Honours go
to the bottom of page 427, His Honour says:
it is unnecessary for us to deal with any of the other grounds ..... But it is necessary to deal with another and different ground of
appeal raised on behalf of Fuller namely that

Fuller's conviction for murder rested upon
evidence which was so intrinsically unworthy
of credence that it would be dangerous and
unsafe to allow that verdict to stand. In
support of this ground Mr McHugh, QC presented
a thorough analysis of the evidence against
his client -

and the submissions are then set out. They are
basically credibility submissions that:
The case against Fuller rested on the evidence
of five witnesses -

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they were all accomplices who had been in the
affray and they had changed their evidence and the
suggestion which was made was they were concocting it. The jury apparently would not accept that but,
if Your Honours go to eight lines from the end of
that paragraph:
In those circumstances it was submitted that the evidence against him was so obviously
manufactured and given by such worthless and unreliable people that it would be dangerous and unsafe to allow the conviction to stand.
I direct myself that the authorities to which
I have referred require a court of criminal
appeal to examine the evidence for itself and
decide whether it is such that it can take the
responsibility of allowing the verdict of the
jury to stand.

They then find that there was some other evidence
which would justify it and therefore hold that they
will not allow the appeal on that ground. But,
again, they did not quail from examining evidence
on a pure credibility issue; had it not been for
the other evidence there might have been a
different result.
There are only two more; there is one

Queensland case and one New South Wales case. The
Queensland case is Son Hoang Nguyen,
(1988) 38 A Crim R 188. That is a case where there
was discussion of unsafe and unsatisfactory and
Morris was referred to. At the bottom of page 184,
point 6, Your Honours see the application of Morris
by the Chief Justice. His Honour says:
In Morris the High Court reaffirmed the

obligation of a Court of Criminal Appeal to
undertake an independent examination of
relevant evidence to determine whether it was
open to the jury to be satisfied beyond
reasonable doubt ..... As the court there

pointed out, that involves an assessment of
the quality of the evidence and the conclusion
may be reached that the verdict was unsafe or

unsatisfactory notwithstanding that there was
evidence sufficient to entitle a reasonable
jury to convict.

He refers to a "red Mazda" and then says:

Two eyewitnesses on oath said it was not the
appellant ..... and Miss Pham and Miss Cobbo
each effectively denied on oath that it was
the appellant ..... there were no relevant
admissions ..... The only evidence tending -

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was in the statements which, I think, were
statements by those two witnesses -
and the maker of each of those statements
denied on oath that such assertion was true.

Of course it is open to the jury to accept the
statements. This is analogous to the evidence
which is given and then withdrawn by the same
witness.
Whilst it was primarily a question for the
jury whether or not they accepted some or all of either statement as being true, and whilst
it was also for the jury to determine what
weight should be attributed to such
statements, when the totality of the evidence
at the trial is reviewed on appeal I have come
to the conclusion that the verdict of "guilty"
is unsafe and unsatisfactory.

That was, as I say, credibility of statements denied on oath.
The final case is the one which does analyse

it and does specifically state the proposition.
That is a decision of the Court of Criminal Appeal
of New South Wales in Ralph & George,
(1988) 37 A Crim R 202. This was a bribery case.
It was associated with the Jackson case, and
evidence was given by a man called Smith who had
been given a large number of indemnities. At
page 209 after a long passage quoted from the
summing up in which the trial judge, in effect,
said, "Smith is a man who it would be dangerous to
believe. He is an admitted liar", and so on. At
page 209 point 6:
In addition to the foregoing, counsel for the appellants submitted that, in the course
of the present trial, Smith had lied on a
number of material matters. They are

summarised on pages 1-8 ..•.. We content
ourselves with saying that whether, as counsel
for the Crown submitted at the hearing of the
appeals, they were merely demonstrative of
error by Smith, as he had claimed ..... or
whether they constituted deliberate untruths,
they highlight with some force the
unreliability of his evidence upon a number of
material matters.
As the High Court has observed in a

number of cases in recent years, a Court of
Criminal Appeal, in dealing with a submission
that a conviction is unsafe or unsatisfactory,

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is required to undertake an independent
examination of the relevant evidence -

et cetera. And there is references to Morris,
Whitehorn, Chamberlain and Carr.
In most cases, no doubt, where evidence of an
accomplice is not corroborated, but where an
appropriate warning has been given to the
jury ..... an independent examination of the
evidence by the Court of Criminal Appeal, to
determine whether it was open to the jury to
be satisfied ..... would involve substantial
reliance being placed upon the existence of
evidence to support a conviction, and the
importance of the credibility of witnesses
being determined by the jury. But there are
cases, no doubt rare (and this is one of them)
where the credibility of the accomplice whose
evidence is uncorroborated is such that, even
though it was in theory open to the jury to
accept it, to allow a verdict based solely
upon it to stand would be unsafe or
unsatisfactory and may well lead to a
miscarriage of justice.

They then refer to Smith's evidence, and how he was an admitted perjurer and a liar, and so on.
And the conclusion at page 211 in the first full
paragraph is this:
The conclusion which we have reached is that, because the quality of the evidence of
Smith must necessarily be unacceptable unless
corroborated in material respects (which it
was not), it was not open to the jury to be
satisfied beyond reasonable doubt as to the

guilt of either of the accused. In arriving
at this conclusion we would reiterate what
Fullagar Jin another context said in Mraz,
namely that every person •.... is entitled to
justice according to law.

Now, in my respectful submission, that is a

case which is squarely in point. It is the Court

of Criminal Appeal of New South Wales. It
correctly applied the test and it is the only case
which expressly says that it extends to
credibility.

MASON CJ: What does Chambers v Jobling say because the

suggestion implicit seems to be that there may be
some qualification - - -

McHUGH J: That is a civil case.

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MR BENNETT:

Yes, that is a civil case with a general

warning about juries and the importance of
observing them.
Now, Your Honours, that is the line of

authority. In my respectful submission it is clear
from that that in an appropriate case first the
court will undertake an examination of the
evidence, and secondly it will, among other things,
look at the question of credibility.
And as Your Honours will see when one looks at

this case this is a case where the evidence of the
witnesses is inherently unlikely, for reasons which

I will come to, and for reason which I had almost
finished taking Your Honours through, the evidence
of Oti and Kwalu was totally unreliable.

MASON CJ: Yes, now, we do not want to spend too much time

on this, Mr Bennett.

MR BENNETT:

I appreciate that, Your Honour, and I will do

it as quickly as I can. I really have almost
concluded that part of it.
I will omit a number of them, but I will just

take Your Honours to the last one in relation to
Oti. If Your Honours go to page 104, one sees over these three pages a series of statements, reversals

and rereversals. He is asked at line 17:
Q. And about a week later, 10 days later to be

precise, you withdrew $1130. What for? A. I
can't recall, sir.
Q. I suggest you withdrew it to pay for your
plane ticket? A. I deny that, sir.
Q. You deny that but you can't remember what

it was for? A. No.

Q. A fairly large sum ...•. A. Yes.

Q ...... you took it out in cash? A. Yes.
Q. And you paid the Guadal Canal Travel
Service in cash, didn't you? A. No, sir.
Q. Didn't you? You deny you paid them in
cash? A. I can't recall, sir.
Q. You said no a minute ago? A. You were
talking about that amount, I said no.
Q. You thought I had the proof it was paid in
cash right here so you quickly backtracked on
your story, didn't you? A. No.

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Q. I suggest to you you paid the Guadal Canal
Travel Service in cash? A. No, sir.
Q. You deny that? A. Yes.

Q. You paid them by cheque? A. Yes, sir - He then shows them his account -

Q. You paid them, as I understand from their

receipt on 26/6, the sum of $767. Would you

like to show me where that occurs in your bank
statements, Mr Oti? Can you find it? A. No,
sir.

Q. You paid them in cash, didn't you? A. Yes,
sir.

That is three questions later after three times
denying on oath that he paid by cash and saying
that he had paid them by cheque, within two lines:

Q. You paid them in cash, didn't you? A. Yes,
sir.
Q. Why did you just tell us you paid them by cheque? A. Because I can't recall I paid them by cash.

Then we go back to the withdrawing of the money.
Your Honours will recall he said:
Q. I suggest you withdrew it to pay for your
plane ticket? Q. I deny that, sir.
Q. I suggest to you that that $1500 you
got •.•.. was money for your trip in June? A.
I still deny that, sir.
Q. I suggest you drew that money 10 days later
in cash to pay for a ticket for your trip in
June? A. Probably so.

He has just said, not a page ago, he denies he
withdrew it to pay for that ticket.
Q. In April, on 10 April you withdrew $1130 to
pay for an airline ticket, is that correct?
A. I can't recall, sir.
Q. You just said probably? A. Yes, sir.
Q. It is probably? A. It is probably, sir -

And then after an intervention from His Honour -

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Q. I suggest to you you withdrew that amount to cover that ticket? A. Probably so.

And as Your Honours see he denied it previously.
Your Honour, in my submission, his evidence is
simply totally unreliable and I will come, in a
moment, to his motive to lie.
Now, Kwalu was subjected to very much the same

sort of cross-examination with very much the same

sort of results. I again will not take
Your Honours to all of it because Your Honours have seen His Honour's summary, but on page 158, when he
is asked about his statement, line 27:
Q. When you said that statement was true and
correct that was a lie wasn't it? A. Yes.
Q. In particular in that statement on page two
you said in 1984 I saw my brother ..... and told

him ..... That is a lie, correct? A. Yes,
because Alfred rung me.
Q. Never mind why I will come to that later,
you will get your chance. That was a lie
wasn't it? A. Yes.
Q. "I have been working hard for the past few
years and I asked him for the money to pay for
my air fare and meet other expenses." That
was a lie? A. Yes.
Q. "He agreed and he gave me the money nearly
one thousand dollars." And that was a lie?
A. Yes.
Q. "I went and bought a ticket from Guadal
Canal travel service." That was a lie?
A. Yes.
Q. "I then told Alfred I was going on a trip."
That was a lie? A. Yes.

Q. "He told me I should contact George and he
can show you around Sydney as I didn't know
anybody there." That was a lie wasn't it?
A. Yes.
Q. On the next page, "George came to see me a
few times on the hotel and took me
sightseeing" and that was a lie? A. Yes.

And then there is a disputed one which I will not

take Your Honours through. On 163, he says, at
line 10:

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Q. Never mind that. You said that the first

trip to Sydney was a holiday? A. Yes.
Q. That was a lie? A. Yes.
Q. That was a lie that you worked out with
Alfred wasn't it?

Alfred is Oti -
A~ Alfred rung me before the police came to
Solomon Island.
Q. It was a lie that you worked out between you and Alfred? A. Alfred and told me that I
will continue with the second trip.
Q. Alfred told you didn't he? A. Yes.

Q. To tell the police that you are first trip
was a holiday? A. Alfred just told me to
continue with the second trip.

Q. He told you to tell the police your first
trip was a holiday? A. No, myself, I myself
because the first trip he told me not to talk
about I say okay, I say holiday.
Q. That was the idea about being a holiday

was your idea? A. So he says there the idea of being a holiday was

Yes.
his idea. When one goes three pages on, to
page 166, he says Alfred told him to say it, second
question:

Q. You told the court on the first occasion
that Alfred had told you that the first trip
was a holiday? A. Alfred told me that first
trip you forget about and say you just go for
holiday.

Q. Mr Kwalu, why did you tell the court

before that Alfred had told you to say it was
a holiday? A. Alfred told me to talk about
the second trip and said you just neglect the
first trip and say you go for holiday .....

Q. He told you to tell the police that the
first trip was a holiday didn't he? A. Yes.

Q. A moment ago when you said it was your
idea about being a holiday that was a lie
wasn't it? A. He told me then I made myself, okay I continue with holiday and I make up my
mind to make up a holiday.

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Q. When you told the jury, this court on
oath -

this is three pages ago -
that was all your idea about it being a
holiday that was a lie wasn't it? A. It was
true.

He has just said that it was not his idea that Oti
told him to say it.
Q. You have just told us that Alfred told you and you agreed with him? A. Alfred has told
me you just say you go for holiday then after
the police come I go for a holiday.

Then there is a discussion about his indemnity.

DAWSON J: There was no question in this case, was there,

that these two people were involved in drug
running?

MR BENNETT:

No question of that, Your Honour.

DAWSON J: No one disputed that. And, really, although they

tell lies about it in one way or another about the
details but the crucial evidence against your
client was, really, the meeting in Honiara, the

nature of that meeting. Now, was the witness
shaken on that at all?

MR BENNETT:

I will take Your Honours to that.

I was going

to come to that. May I, before answering that
question, just take Your Honours to one other
passage in Kwalu as to general credibility and then
come to answer that question. Again, as
Your Honours see, I have listed a large number of
them but I will only take Your Honours to one or
two.

line 25: Your Honours, at page 192 he is asked this, at

Q. Did he -
that is Alfred -
tell you to tell the police that you had put

the drugs or the stuff in a suitcase? A. No.

Q. He did not tell you to say that? A. No.

Q. You know Mr Kwalu what a suitcase is do

you not? A. Yes.

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Q. Sometimes in the Solomons they call it a
basket, is that right? A. No, box.
Q. Box or basket? A. Basket is small,
suitcase is, I think is a big suitcase.

Q. Did Alfred tell you on the phone: "Don't
tell the police about it being taped to your
body, tell them that you carried it in a

basket"? A. No.
Q. Alfred did not say that on the phone? A.
No.

Over the page he puts to him a question he put
below that he had given the answer - I will read it
to Your Honours:

Q. 6 July p 11, my question Mr Kwalu was

this: "Q. What did Alfred tell you on the

telephone ..... ". Your answer was: "He said
you get - you say just get the basket, I give
you my basket and you put everything inside.
Alfred said that 'I give my basket to you and then you take the drugs to Australia'" that is

what he said? A. Yes that is what he said.
He said on the telephone.

Q. Yes, that is what he said on the telephone
all right, and a minute ago you said he did
not? A. I made a mistake, that is what he
said.

Q. That was a mistake all right? A. Yes.

That is what he tell me to say. He just say
you carry it in the basket.
Q. You had forgotten you told the Lower Court

that did you not? (No answer)
Q. I just asked you now in very plain easy
questions: Did Alfred tell you to say you

carried the drugs in a basket and you said no

you did not? A. Yeah, but Alfred tell me.

And then there was an intervention.
Q. The reason that you said no was you were

too quick to answer the question. Have I got
that right? A. Yes.
Q. He did say that did he? He did say: "You
tell the police that you took them in a
basket"? A. That is what he tell me on the
telephone.

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Q. And did you tell the police that? A. No.
That is the first place and after I find out,
I told the police that I put them in a basket
the first place.
Q. That was a lie was it not? A. Yes.
Q. That was a lie that Alfred told you to say?
A. Yes.

Now, on the main subject, might I just show
Your Honours the evidence there. Oti had gave

evidence in-chief about it at page 27. He
describes how he goes to the hotel foyer and he
asks for someone called Neil whose surname he does
not know and the receptionist could not help him.
While he was around the foyer - at the top of
page 27:
A. I was looking around and I saw a family of
four coming out towards the foyer from the
beach.
Q. You saw a family of four; how was that made up? A. The family was made up of a man, an
adult man, a woman and two children.
Q. What did you do? A. I stood in the middle of the foyer watching them and the man was
staring at me so he walked straight to me and
said, "Are you Alf?" and I said, "Yes, are you
Neil?" and he said, "Yes" and we shook hands.

He is identified.
Q. What happened after those words were
spoken. A. He said, "Let's go to my room and
have a chat there".
Q. What happened? A. So we went to this room
behind his wife and the children .... We entered
that room, walked through it and entered

another internal entrance to the sleeping
room .••.. r sat down on the chair, the only
chair, and Neil sat on the bed and he told me
about what George had told him ..... what did he
actually say? ..... "This is a dangerous job and

we have to trust each other and I am not like other people, ripping off others. As soon as
you receive the stuff, just let me know and I
will pay you straight away ..... He said George
had told him about the previous transactions I
had dealt with him ..... He said George had told
him to see me to discuss a further shipment of
the stuff from Malaysia •.... He discussed with
me some methods of concealing the drugs -

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and there is a discussion about "cigarette
packets", "chopping off cigarettes" and so on.
Q. What else do you remember being said on
this occasion. A. I recall him telling me
about another method, sending carvings to
Sydney in a crate with a false bottom and secreting the packages inside the false
bottom ..... there about between 15 and 30
minutes ..... he offered me a beer or two .... I
said I might come back with
Wilson ..... anything else ..... he went over a method ..... buy carvings and hollow them out -

he remembers nothing else. That is his account of
the first visit. Then, at the second visit, he

goes back with Wilson. The second meeting, I
should say, is completely denied by my client. At
line 31:
Q. What happened? A. Neil opened the door and
we went in.

Q. Who was there in the room? A. Neil
himself.
Q. Anyone else? A. His family were in the
other room.
Q. Was there then some conversation between
you and Wilson and Neil? A. Yes sir.
Q. How long were you -

in the ~oom
30 minutes ..... what was said .•... A. As best I
can recall, Neil went over what he had
discussed with me the previous day and he said
that he would pay us $10,000 per kilo
and •.•.. even if we sent sugar or whatever, he
would still pay us because he said, "As soon
as you receive the stuff and you let me know,

I will send you money. I pay you straight
away and even if I receive sugar whatever,
that is too late, I pay for the job you
did" .•... "If you send stuff over, make sure it
is wrapped in plastic otherwise it will get
wet ..... anything else discussed -

nothing else. Then there was the discussion:
he gave me $200. Your Honours recall the evidence I read to
Your Honours yesterday: in cross-examination he

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said that was on the first day when he first met
him and he has given different versions of that.
He offered -

us -
some beer.
Q. Was anything said about making
contact? ..•.. Neil gave me a piece of paper
with a series of numbers on it which he said
was his telephone number.
Q. Do you still have that piece of paper? A.
Not now.
Q. Do you remember the number on the piece of
paper? A. Yes sir.
Q. What was it? A. It was 211 1100.

That is the Voice Call number.

Q. Did he say anything about that number?
A. Yes, "If you ring up, and most of the time

I won't be there, just leave a message and
say 'This is Alf'"

And that we say is a very unlikely piece of
evidence, bearing in mind it is an answering
service, "most of the time I won't be there".

Q. Was anything else said that you can recall
while the three of you were together?

A. Well, we went over exactly the same things
Neil and myself had discussed the previous
day.

Q.

In due course, did you and Wilson leave the room?
A. Yes, we left the room.

So that is his evidence. Kwalu says something
completely different. His evidence is at page 151
and his evidence is all on that page on this
subject. At the top of the page:

Q. You and Alfred went to the Mendana Hotel?
A. we ..... give a knock then Neil open the
door.

Q. What happened then?
A. We have conversation with Neil and I
thought Neil was coming to set up our

shop, Alfred had told me, but during the
conversation Neil say that, "When the

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drugs come in the yacht you will keep it
here in Solomon Island then we will get
bit by bit, might be you coming over, or
we will send someone to come over".

Completely different type of conspiracy;
completely different method of working. He is
talking about drugs coming over in a yacht and
getting bit by bit. Maybe you will be coming over;
maybe we will send someone over. Nothing about
sending it to Australia in cigarette packages or
the backs of cartons. Totally different type of
allegation.

Q. How long were you in the room with Neil
and Alfred?

A. We stay in the room about half an hour.
A. After we left the room, after Neil had left the room, Neil told us, "Be careful,
this work is dangerous so be careful".

Q. Is there anything else ..... ?
A. In the room I saw two kids with Neil, two kids and his wife, but they were separate
rooms, not one room, separate room.

Q. Did you have a drink while you were there?
A. Yes, I had two beers.
A.

I left.

So that passage is the whole of the evidence which is said to incriminate my client, apart from
undisputed evidence proving, "we went to the
Solomon Islands, stayed in the hotel and had air
tickets and immigration cards" and matters of that
sort.

DAWSON J: But the conversation about the cigarette packets

and so on was the first one we when - - -

MR BENNETT:

Oh yes, but what is said by Oti is that exactly

the same conversation took place on the second

occasion, with one or two additions and he gives

those additions. He says nothing about what Kwalu
says; Kwalu says nothing about what Oti says. All
the evidence of Oti is about a conspiracy under
which the function of Oti will be to send the drugs
on to Australia, either in cigarette packages or in

hollowed out containers. The entire conversation
on both occasions, the entire conversation with
Kwalu, which he gives evidence about, is about you
coming over or us coming over to get it or sending
someone over to get it. Nothing in common at all
except that it is importation of drugs.

Chidiac

4/10/90

I should take Your Honours now to the

statement made by the accused, which is at page 326
and I will summarize rather than read it.

He says he has never heard of or met Asfour; never heard or met Kwalu; never heard of or met

George. He never had any contact, any
communication with them - anything to do with them
ever. He then says he is a licensed bookmaker and
a man called Sam who had some role in the matter
was at one stage his bookmaker's clerk.

He talks about Sam on page 327. He said he

knew him because -
he came from the same city that I came from
and from the same country -

that is Lebanon -
Some years ago ..... some 22 years ago ..... I
lost track of -

him -
We renewed our acquaintanceship .... and I employed him as a bookmakers clerk.
There was no secret about it. It is

recorded -

et cetera.
Then he comes to Oti and on page 328 he

describes being bestman at a wedding of his brother
and he describes at this wedding, which is just
before the trip, he made his bestman's speech and he made a humorous reference to the fact that the
bride and groom were not going on a honeymoon and
he was going on a trip and he said:
my brother is getting married and I will be

going on the honeymoon instead. I mentioned the trip I am taking to

Honiara to Vanuatu to Fiji et cetera. Sam -

who we know is one of the people involved in the
drugs -
during the reception he told me that I have a
contact in Honiara and when you get there just
look him up, he might help you to get around
and tell you something about the island. That
is exactly how it happened. No more, no less,

as simple as that. Now, we all went to
Honiara. Honaria is a small island, small

Chidiac

4/10/90

population ..... the second day I went to the
reception and asked about Alfred Oti, if they
knew him. Apparently it turned out to know
him, brother-in-laws or distant cousin. They
said to me that he was working at the customs
so they gave me the number of the customs.
That wasn't either a surprise because Sam

already told me ..... I rang him up and I told

him who I am. He didn't have the faintest

idea who the hell I am. He said, who is Neil
and all this rubbish about Sam's arriving in
Honiara then Sam changing his mind -

is not right.
Anyway I made arrangement with him to

come and see me that particular afternoon so
we went to the beach ..... was swimming with the children ..... He said "I am Alfred Oti".

And he describes something about that.
My family went into the room we went into the

second room. He came inside I offered him a

beer. I said "I won't be too long I will get
dressed and changed" .....
He asked me for $20 to have some further

drinks and he looked to me at the time that he

didn't need any more drinks at all. He came

in fully intoxicated. We chated for a little

while. He spoke about the island -

and the floor show.

He spoke mostly of the shop that he wanted to rent or buy or whatever.

And the
funny thing about it, the only thing I could
remember he said that he wanted to import ball
point pens -

and there is a discussion of that.

Never he mentioned anything about Wilson
Kwalu and if he mentioned anything about
George I didn't notice. George meaning
nothing to me. e was insisting to coming in
the shop with him as a partner. But I wasn't
interested at all ..... it happened a long time
ago and secondly I had no reason to remember
it.
I did not want to involve myself with him

being in his condition. You see him here
coming to the court healthy but he looked
pathetic due to his drinking problem and my

Chidiac

4/10/90

wife and I don't like people who drink too
much ....
He came the next day .... and he left me a

message. I saw him that particular night

around about 6 or 7 o'clock. We were just

about to go for dinner. I talked to him for a

couple of minutes. I tried to fob him off.

He asked for some more money. I gave him $20
for a drink and he stayed at the bar while we
had dinner. Next day I went on a tour of the
island. Of the relics of war, hired tour and

I rang up Sam about Alfred Oti. I told him I
was not impressed whatsoever with his attitude
and I told him he is raving on about some kind

of a shop. Sam Helais said to me, "Don't
worry about it when you come back to Sydney I
will explain it all to you".
The police have all the records of the telephone calls that I made from Honiara. It
is no secret that I rang Sam. I also rang my
family. It is documented in the papers as

well. I went on ..... to Vanuatu and ..... Fiji.
I forgot about Oti from there on, never heard of him. Never spoke to him again -

and so on. And I will come to Voice Call in a
moment.
Now, that is the statement from the dock of

the -

DAWSON J:

So that what you have got there is an admitted

meeting with an undisputed drug runner, and your
client gives the explanation of that that it was an
innocent meeting, but is not prepared to subject
himself to cross-examination.

MR BENNETT:

Yes, Your Honour, bearing in mind he has not

obligation to do that.

DAWSON J:

That is right.

That is what the jury is

confronted with, as opposed to another version of
the meeting which admittedly took place, which is
given on oath, which may not matter very much in
view of your client's admission that he is a liar,
but is subjected to cross-examination and the
essential story is not shifted under
cross-examination.

MR BENNETT: Well, when Your Honour said "it is not

shifted", it is - Your Honours, I had not intended
to bother Your Honour with this in detail, but we have a bundle which was prepared for the Court of

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4/10/90

Criminal Appeal which summarizes all the
inconsistencies in the evidence of Oti and Kwalu.
It is a very detailed 38 page document and I
certainly will not take Your Honours through it,
but if one takes the evidence of those aspects
certainly the contradictions are not as spectacular
as the others.
On page 11 there are references to Kwalu's

cross-examination about the meeting of Chidiac and
he in cross-examination at page 165 - I am sorry,
it is page 13, there are references to
contradiction in Kwalu's evidence about that visit,
page 14 sets out some more details about that.
Page 174 seems to be the main page on that aspect.
I am sorry, these page numbers are transcript page
numbers, not appeal book page numbers. That is why

I was having trouble. So Your Honours need to go
to the transcript page numbers at the bottom of the

page. He is asked a series of questions about his
conversation with Chidiac - line 5:
Q. Have you any idea why he said: "Is the
store room ready yet?"? A. Which store room?
Can you repeat it?
Q. You are the one who said it: "Is the store room ready yet?"? A. Yes when he first asked
for it -

that is Chidiac -
asked Alfred: Did you ready the store room,
and Alfred said: "No it's ready soon."

Did Neil say: "When you receive the goods you
take the stuff out and sell the goods in
Honiara." Did Neil say that? A. Alfred told
me that.
Q. Did Neil say that? A. I don't know.
Q. I will repeat that question to you

Mr Kwalu: "When you receive the goods and

have them in the store room, you are to take
the stuff out and then sell the goods here in

Honiara." Did Neil say that? A. I don't know,
I forgot.
Q. You do not know? A. Yes.
Q. It is in your statement. Did you know
that? A. No, I forgot.

So this is whole additional material in this
conversation in the statement not given in evidence
he says he has forgotten:

Chidiac

4/10/90

Q. Top of p 5: "Neil said 'When you receive
the goods and have them in the store room you
are to take the stuff out and then sell the
goods in Honiara'" you do not know whether he
said that or not? A. I knew that Alfred has
told me that they are going to put rooms
inside the room and when the drugs come we get
the drugs out from the toys and then we sell
the toys. That is what I know.
Q. But you said Neil said that in your
statement did you not? A. I don't know.
Q. Would you like to see your statement
..... Would you accept that you put it in your
statement? A. But when we were in the room we
talked about selling the - opening the toys and getting the drugs out of the toys. When
we were with Neil and Alfred and I, we talked
about that.
A. And it was Neil that said that? A. Yes Neil
said that too, to tell the same story too.

Q. So Neil said: "When you receive the goods
and have them in the store room you are to
take the stuff out and then sell the goods in
Honiara". Neil said that? A. That is what we
talk about in the room at the time.
Q. That is what Neil said? A. Yes.
Q. I asked you that question before at p 35 on
6 July and this is how the question went: "So
that when you told the police that Neil had
said 'When you receive the goods you are to
take the stuff out and sell the goods in
Honiara'. Neil never said that at all" and

you said: "Yeah that's a mistake." Do you
remember that? A. I forgot.
Q. Mr Kwalu you have forgotten what lies you

have told have you not? A. No, but we were in
the room when we first spoke about the
arranging of the toys. Alfred and I and Neil,
then after Neil has come up with this matter,
saying that the yacht is good.
Q. Mr Kwalu, you have told us before that was

a mistake. Was it a mistake or not? A. What I
know is that we talk about what might be done

that night. I made a mistake but what I say
is we talk about that, bringing the toys with
drugs inside.

Q. Mr Kwalu, it was Alfred that told you to tell that story was it not? A. Pardon?

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4/10/90

Q. Alfred told you to tell the police that
story. When Alfred spoke to you on the phone
he said to you: "You tell the police that Neil
said 'When the stuff comes to Honiara, take it
out and sell the goods in Honiara'" That is
what Alfred told you .....
Q. That is why it is in your statement? A. (No
answer)
Q. Is that not right? A. (No answer)
Q. Mr Kwalu, you and Mr Oti had a story did
you not about this store room, so that if
anybody ever asked you what you were doing
working together, you would have a little
story to tell anybody who might be interested,
is that not so? A. I don't know.

That must be an admission in that context. He is
unable to deny that, that the two of them had a
story together to tell something:
Q. When did you first decide to open a little store room? A. Alfred tell me.

And that was 1979, et cetera.
Now, the second matter, this is 1.3.2 in my

submissions, is that nothing in Chidiac's statement
is improbable. His evidence about Oti being
intoxicated is supported at page 124, where Oti
admits that he is a heavy drinker and he is
sometimes intoxicated at his office. This is as
the fourth in command of customs in Solomons
Islands. So, that statement about alcohol is

supported. He also admits in cross-examination the
story about opening a shop, that appears at page
125:
Q. You told him a story about how you and somebody in Sydney was going to open up a
shop? A. Yes, sir.

Q. And in that shop there would be some
souvenirs and things like that to sell to
tourists? A. Yes.
Q. Do you agree with that? A. Yes, sir.
Q. Was going to be a souvenir shop? A. Yes.
Q. You asked Mr Chidiac if he wanted to come
in on that? A. Yes, sir.
A. He told you no -

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4/10/90

and he says he offered to go into it which seems
even a bit more unlikely.
Then, there are seven matters which we say

amount to serious improbabilities in the Crown

case. The first is, that Oti gave evidence of a
phone call to Oti from Chidiac from Vanuatu. That
is denied in Chidiac's statement and although there
was lots of technical evidence put in about phone
calls, showing which phone calls had occurred and
when they had occurred, there was none about that

phone call and no explanation for it. One would
have thought it would be a matter of going to
Vanuatu, getting hold of the hotel account and
seeing if it was on it, but there is no explanation
for the absence of that evidence.
Then there is the impossibility of leaving a

message with Voice Call and I have taken
Your Honours to that. What Oti says is that he was
told that "Chidiac is sometimes at this number and
often not at it and therefore if he is not there
leave a message". That is something he would
hardly be likely to say in relation to an answering

service. In any event we know he did not have the
answering service at the time. That is also 1.4.3.
Now, I should quickly take Your Honours to

that evidence about Voice Call, I do not want to
spend a lot of time on it, but the two people were
called from Voice Call and they made it quite clear
that what Chidiac says about it is correct, that he
got it later, that is in volume II. There is
evidence of a Jane Hunter who was the manager of
Voice Call and at page 311, she fairly obviously
admits that there is some difficulty in finding
someone if a person only asked for Neil, and she
also says, fairly obviously, if someone just said,
"This is Al please ring and hung up" the operator
would, obviously, do nothing.
But if Your Honours go to page 312, there is

some evidence about a document which was exhibit 41
and this was a Voice Call contract in the name of a man called Jacob in 1984 and it had the name, after
the name of Jacob, someone had added in different
ink and different writing a reference to Chidiac
and it had Chidiac's signature. And Chidiac's
evidence was that he took over the Voice Call
contract from a man called Jacob in November 1985
which is five months after the relevant events.
At page 312 at the bottom of the page, this

question was put:

Q. I suggest what happened was that in
November/December 1985 you were contacted by

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4/10/90

Mr Chidiac and he told you that that had been

transferred to him do you recall that? A. He
didn't contact me, but it is quite possible.
Q. After November 1985 he then took over that
number is that possible? A. Yes, it is.
Q. You know, don't you that these accounts are
paid in advance?
A. Yes, they are, that's right.
Q. Mr Chidiac made his first payment in
approximately November 1985 that you can
trace? A. Yes.
Q. Isn't that so? A .. That is so.

And then he talks about people who have altered the
contract.

The other witness from Voice Call - and this

is even clearer - at page 318 the witness again
refers to the same document in-chief, and then these

questions and answers appear at page 318. She says
that she was asked to search for records.

Q. And you went to various old archives and
repositories and so on?

Q. And you spent quite a number of hours
searching?

Q. Is it a fact that the earliest record you
can find of Mr Chidiac paying money into this
account is November 1985? A. I can't remember
the date, but it is the date that I brought a
copy of the receipt.

And that is November 1985.

Q. You agree that the evidence you gave in
the Lower Court was that the document you

produced on Tuesday ..... that's the receipt for
Mr Chidiac's three months in advance in
November back in five is the earliest record
you have of Mr Chidiac appearing in the books
of the company, is that so? A. Yes, that is
correct.
Q. So November 1985 was the earliest

record ..... ? A. That was the only thing that
they could come up with, yes.

And what Mr Chidiac says in his statement is
exactly that; that Voice Call is something he got
in November 1985 and took it over from Jacob. So
the evidence is all consistent on that, and it is

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4/10/90

totally inconsistent with the evidence of Oti, that
in May 1985 this Voice Call number was given.
Now, the next point, 1.4.4, is that if

Chidiac was indeed a member of some syndicate, why
should he have come and exposed himself on the
Crown case? His trip served no useful purpose at
all. All he did was go over and explain to a man
who was fourth in charge of customs, and who is

apparently a drug dealer, how to conceal drugs.

McHUGH J: Well, except he was there on holidays, was he

not, with his wife and family? So it is quite
consistent that he may have looked them up.

MR BENNETT: Well, Your Honour, if he is there on holidays

accidentally it is a little bit of a coincidence,
one would have thought, that he is on holidays
accidentally and it is the place where he is going
to do this. But it is an unnecessary conversation.
Why does he have to expose himself to Oti and
create that risk for himself when he must be, to
use the colloquial expression, "teaching his
grandmother to suck eggs"?

McHUGH J: Yes, but that is the argument put forward in

almost all criminal trials. Why would the accused
be so stupid to do this? The fact is that people
are stupid sometimes. They do things and it gives
them away.

MR BENNETT:

They do, Your Honour, but it is a factor, I

would submit, that makes the Crown case less

likely. At 1.4.5 Kwalu could not describe the

room in which the disputed meeting occurred. He

did not even know if it had a window. He thought

it had a letter. The plan drawn for the court
called the rooms A and B although, in fact, the

evidence was that it was room 401. And Kwalu
thought that they had letters rather than numbers,
and he was totally unable to describe the room in

any sensible way.

The next matter concerns George. happened was that a rather peculiar procedure was

What

adopted. On the first day of the trial, counsel
who was not prosecuting counsel, appeared for the
federal police, produced an affidavit which was not
shown to either counsel, either prosecution or
defence - it is all in the transcript, but the

affidavit is not reproduced. On the basis of that
the judge made an order for suppression of George's
name.
At the end of the case, at page 336, when

George had not been called, the judge expressed
regret about that and indicated that he thought he

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4/10/90

had been - to use the judge's word - "conned".
But he is the person who Oti said ties in because
he says that George said to him that Sam was coming
and then when Sam did not come he said, "Someone
called Neil is coming."
Now, when one looks at the evidence in detail that is a very suspicious allegation. At page 76, and I will summarize rather than take Your Honours
to it in view of the time, Oti admits that the
police kept saying to him - he says that he was the
first one to name Neil but the moment he named Neil
the police were interested in Neil and showed no

interest at all in George. And he says that a
number of times on that and the subsequent pages.
It is the classic case, is it not, we would

respectfully submit, of the convicted drug runner
who is desperate to try and incriminate someone
else to give the police something that will make
his life a little easier and there is one person
who he met who perhaps he has a little bit of a
grudge against because he did not give him enough
money to buy drinks or did not go ahead with this
business with him so he gives his name to the

police. And the police, of course, immediately,
according to him, are far more interested in that
that they are in George.
At page 108 he says that George is the

mastermind of the operation. And yet we know that
there is this mysterious affidavit about George.
At page 108, line 10:
Q. George is the brains of this operation,
isn't he? He is the organiser? A. Yes, sir.

Q. He was present in every single one of the

transactions you did, wasn't he? A. The one
transaction I did, yes.
Q. Every single one?· A. Yes.

Q. He initiated it? A. Yes.

And they are all described. And he had, in my
respectful submission, a very strong motive to lie
and that motive was this, that Your Honours will
see that there were some rather peculiar gaol

visits which Oti gives evidence of. He describes,
first of all - he has a visit from George's
girlfriend, then a visit from George and he then
sends a message to Kwalu which one of the
detectives takes for him in writing without reading
it.

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4/10/90

At page 68 he fails to deny, when put to him,

that George, through his girlfriend, suggested that

he might be able to get him out. And Your Honours
see that - he describes on page 68 the visit from
George's girlfriend. Then at line 28:

Q. Did she tell you George had nothing to do
with you being picked up? A. Yes, sir.

Q. "Don't blame him for any of your
troubles"? A. That's right, sir.

Q. George would try to work out a way of

getting you out? A. I can't recall her
saying that, sir.

Q ...... is your good friend George? A. Yes,
sir.

Q. One you regard as a good friend? A. Yes.
Q. Do you deny she brought a message in from George that he was trying to get you

out ..... A. I didn't deny. I said I couldn't
recall.

Now, what that plan is emerges from the cross-
examination over the next few pages because it
appears at the bottom of page 69; this is put to
him:

Q. You see, Mr Oti, there is one thing that
you need to keep very, very deeply, and that
is the plan that you have got with George,
isn't that right? A. No, sir.

Q. You have got a plan with George to get you
out? A. No, never sir.
Q. That plan, Mr Oti, was to get yourself
into protective custody firstly and then to be

deported back to Honiara, isn't that it? A.
Completely deny that, sir.

This is the inference which we submit is fairly
clearly open when Your Honours see the rest of
this.
Q. You do not deny that your relatives are highly placed in the Solomons, do you? A.
Beg your pardon, sir?

Q ...... that your relatives are highly

placed ..... ? A. My relatives?

Q. They hold high positions in the Solomons?
A. I don't deny that, sir .....

Chidiac

4/10/90

Q. Your brother-in-law is the Governor
General? A. No, sir.
Q. Is one of your cousins the Governor
General? A. Yes, sir.

There are some questions about that.

Q. Your cousin is the Governor General? A.

Yes, sir .....

Q. You come from a family which is prominent
in Solomon Islands Administration, isn't that
so? A. Yes, sir.
Q. Is it a part of George's plan that you would go back to Honiara where you have such
powerful relatives? A. Not that I know of,
sir -

And then, at page 110, line 30, he admits to this - Q. Tell me, you have received some visitors
while you have been at Long Bay, is that so?

A. Yes, sir.
Q. There is one from the Department of
Communications who claims to be your

brother-in-law, is that so? A. He is the
Minister for Communications.

Q. You have another one from the Foreign Affairs Department of Honiara? A.

Yes, sir.
Q. Is he related to you in any way? A.
There were 3.

Q. I know there was 3 visits, I am asking you

are they related to you? A. One was.

Q. The Minister for Communications? A. No,
sir.

Q. Which one? A. He isn't from Foreign

Affairs, sir .....
Q. That person is your wife's relation? A.
Yes, sir.

Q. You had one from the Prime Minister's
Office? A. Yes, sir.

Q. Who is he? A. The Prime Minister
himself.
Q. The Prime Minister himself came over and had a chat? A. Yes.

Chidiac

4/10/90

Q. And someone from the Department of Foreign
Affairs? A. Yes.

Q. Who was that? A. My brother, sir.

He then denies it but -

Q. They discussed with you what would happen
if by some fortune chance you were deported
back to Honiara?

And so on.
So, while in prison he has had visits from the

Prime Minister, from a number of people from
Foreign Affairs, from the Minister of
Communications and he is - in my respectful

submission, the inference is very clear. He is
hoping in some way to have himself deported or
under some exchange of prisoners program or a gaol
transfer program, sent to the Solomon Islands.
Whether he has any real chance of that of course is
another matter. But it is perfectly clear, in my submission, that that is the reason he is telling
all these lies; that is the reason he is desperate
to try and give someone to the police which will
help him and that inference is clearly open, we
would submit, on the prosecution case.
So, for all those reasons the prosecution case

is, we would submit, a highly unsatisfactory one
and the - - -

McHUGH J:

Do you place any reliance on the evidence at page

76 about how the police said that they were not
going to charge George and they were not interested
in him, that the man they wanted was Neil?

MR BENNETT: Yes, yes. That is the point I summarized

before.

MCHUGH J: Yes.

MR BENNETT:

We would submit what occurred is crystal clear.

He worked out a way to ingratiate himself. He knew
another name because this man had been unfortunate
enough to have this casual visit with him and he
gave that name; the police showed great enthusiasm
and he is anxious, at all costs, to ingratiate
himself.
Your Honours, the ultimate submission is this,

on this part of the case, and the second part will

be much shorter: I accept fully that the
jurisdiction to interfere on this type of ground in
this type of case is one which should not be
exercised except in the most extreme circumstances.

Chidiac

4/10/90

But where you have a man whose version is totally
consistent with innocently being caught up as in
this case, there is nothing incredible or unusual
or surprising about his story, one can see the full
motive to lie in the prosecution witnesses; one
sees what sort of witnesses they are and they are,
for all practical purposes, people on whom no court

could sensibly place any reliance. It is my
respectful submission that it is the rare case
where the resulting verdict must be unsafe and
unsatisfactory.

McHUGH J: Well, you say that he is innocently caught up but

why would Sam who is obviously involved in this
give the applicant the name of these people to see
when Sam is involved with them?

MR BENNETT: Well, Your Honour, the same reason that anyone

may - the Solomon Islands is an unusual place, in a
sense, it is not a place people go to frequently;
it is not a place one would expect someone to have
a contact; it is the most natural thing in the
world when one hears that a friend is going to an
unusual place of that sort to say, "Look, I do know
someone there who may be able to show you round and
help you". That is possibility one; possibil.ity
two is that it was a set-up for some purpose of Sam's. He may wanted to be able at some future
time to do what was done. That is the second
inference.

DAWSON J:	It is clear that Sam was involved in drugs too?
MR BENNETT:	Yes.
DAWSON J:	Sam was this man's bookmaker's clerk?

MR BENNETT: At one stage, yes, Your Honour.

DAWSON J:

And Sam was the one that suggested he meet Oti?

MR BENNETT: Yes.

McHUGH J: Sorry, I just do not recall, but did I see

somewhere that your client went to Sam's place, at
some stage, when the - - -

MR BENNETT:

No, I think that was the other accused,

Your Honour, I do not think that was -

McHUGH J: It was the other accused, yes.

MR BENNETT:

I may be wrong about that, but I do not think

there was - if there was I will give that in reply
but I do not think there was.

McHUGH J: Yes.

Chidiac

4/10/90

MR BENNETT:

Your Honours, that is the first part of the

case. The second part, as I say, is the
corroboration issue.

MASON CJ: Yes, Mr Bennett?

MR BENNETT:

In relation to corroboration there are three

points. The first is that the direction at
page 358 and 359 is ambiguous on the question
whether one co-conspirator can corroborate another
and we submit he cannot. At page 358, line 22,
His Honour says:
You may convict upon the evidence of an
accomplice but it is dangerous to do so unless
that accomplice's evidence is corroborated.

Then, at the bottom of the page:
You as judges of fact have got to decide whether these two self-confessed liars have
told the truth or not. What I am bound to
tell you is that being accomplices as they are
that it is dangerous to convict on their
evidence unless it is corroborated.

What the Court of Criminal Appeal said was, "Well, let's construe that second sentence very
precisely and very grammatically and it is
dangerous to convict on their evidence, singular
but meaning both their evidence, unless it, ie,
both their evidence is corroborated. Therefore the
corrupt direction has been given that there has to
be some corroboration of the evidence of both of
them."
In my respectful submission, that is not as

clear as what the Court of Criminal Appeal
suggested, particularly when one looks back and
sees, not 10 lines ago:

You may convict upon the evidence of an
accomplice but it is dangerous to do so unless
that accomplice's evidence is corroborated.

We submit that His Honour should have given a
specific direction that one cannot corroborate
another.
Gay is the well-known case which says that one

co-conspirator cannot corroborate another and, in
Medcraft, (1981) 5 A Crim R 186 - it is a Western Australian Court of Criminal Appeal judgment. It
is the very last page, page 196 at the seventh
line, in the judgment of Mr Justice Smith,
His Honour says:

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Further, and importantly in the circumstances of this case, his Honour failed to tell the jury that the evidence of one accomplice
cannot corroborate the evidence of another
accomplice. The omission to give the required
direction on these important aspects, I think,
is fatal.

And, of course, no such direction was given here.
Khan's case, (1971) WAR 44, is another case where

there is reference to corroboration. I will not
take Your Honours to that in detail.
The second point, and the more important one,

is that His Honour, having raised the necessity for

corroboration, failed to explain what it was. I
will not take Your Honours to Baskerville and the
leading cases on the definition of corroboration
but what is important to realize is that the jury
must be told the nature of what corroboration is.
In Haddad's case, (1988) 33 A Crim R 400,

Mr Justice Roden specifically referred to that and
at the bottom of page 408 under the heading
"Accomplice/corroboration" His Honour says:
The matters considered to this point have

been considered on the basis that the jury
rejected the evidence of the accomplice, and
found both knowledge and "concern" on the
other evidence. It is also possible that the
jury did not regard that other evidence as
sufficient to warrant either finding, but
convicted on the basis of an acceptance of the
accomplice's evidence. Accordingly the
directions given to the jury with regard to
the manner in which accomplice evidence should
be approached, could have been critical to the
verdict.

That is clearly this case and then at page 410
His Honour says this at point 3:

What was required thereafter, was an
explanation of what may constitute
corroboration. Something might have been
expected along the lines of a traditional
Baskerville direction, referring to material
confirming what the accomplice/witness has
said, and tending to prove that the offence
was committed and that the particular accused
then under consideration was party to it.
What came, however, is what appears in the
remaining emphasized passages. Their effect
appears to be that any material confirming any
of the evidence of the accomplice, and thus
tending to enhance his credit, is

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corroboration. There is no reference to the
necessity that it tend to support the
accomplice/witness in his contention that the offence was committed and that the particular
accused was party to it.

And that is what has happened here. There is
nothing in the direction anywhere which says what
is corroboration. It simply says "unless it is
corroborated" .

MASON CJ:	No direction was sought on this point, was it?
MR BENNETT:	Your Honour, the direction that was sought was

that there was nothing that was capable of
amounting to corroboration, which is my third
point, and His Honour refused to give that

direction. We would submit that really the greater

includes the lesser. The contention of the accused
always was that there was nothing capable of
amounting to corroboration. What was said to be
capable of amounting to corroboration was two
things: first, the fact that there was a meeting;
that we did go to the Solomon Islands and meet with

Oti and the second was the phone number. I have
dealt with both of those and neither, of course, is
something which is capable on the evidence of
amounting to corroboration, we would submit.
Certainly, going to the Solomon Islands and

seeing Oti is not. That is consistent with
innocence and indeed, there is nothing in it
suggesting guilt. There is nothing suggesting that
it was other than an innocent meeting, other than
the evidence of Oti himself. Similarly, in relation
to the phone call, that was proved to have been
something which was not his n\ll\\be~ at the time anQ
was something he took up later, which, of course,
adds support to the general submission that he was
given that number by someone later and told this is

a way of implicating him; someone who later knew
that he had that number.

The third matter in relation to corroboration

is that submission that there is nothing capable of
constituting it. That point was not taken in the
Court of Criminal Appeal, but in my submission it
is Connecticut Fire case, there is no prejudice to

the Crown. If one does not take a point at the
trial, of course, there is prejudice because the
judge could cure it in his summing up, but this
point was taken at the trial and was not in the
Court of Criminal Appeal and we submit it is one

which can be raised now. I should finally, on that
point, remind Your Honours of the decision of the
English Court of Criminal Appeal in Warren,

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2 Crim AR 194. It is a very short decision. I
hand up copies.
His Lordship said this at the bottom of

page 194:

This conviction must be quashed. The

rule is quite clear that the evidence of an
accomplice must be corroborated. It is not
sufficient that the accomplice has said

something which is true. The Chairman did
refer to the fact that this was the evidence

of an accomplice. If there had been any clear
evidence of corroboration we should have
thought that what the Chairman said would have
been sufficient. But .it was so slight that it
required very careful pointing out by him. He
did not do it as fully and clearly as he
ought, having regard to the very slight
corroboration.
What I get from that, Your Honours, is that

where there is only slight corroboration which at
its highest what there was here, then the judge
would give a very careful direction as to what
corroboration is capable of being, and there is simply nothing here which put that to the jury.
There was an exchange with counsel which appears at

page 366, line 28, where the submission is put that
there is no evidence of corroboration and that
should be put. What Mr Mccrudden says is:
Your Honour has told the jury the direction
that they are not to accept the evidence of
accomplices, it is dangerous to do so unless
corroborated, and it is our submission that
there is no evidence of corroboration in
respect of Chidiac that he was involved in
this matter. There are little bits of
evidence which corroborate Oti's statement.

HIS HONOUR: I disagree with you because you

are looking at it from Chidiac's statement.
There is Oti's evidence that Neil was to come,
the corroboration is that Chidiac did go and

did see Oti. Now, Chidiac may have an
explanation for that but it still is
corroborated.

There is discussion about that and the judge
refuses to do it.
Your Honours, in my submission it was a case

calling for a very careful direction on
corroboration and what it was capable of doing.
For all we know the jury may have simply had a
general regard to the vast amount of documentary

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evidence which did nothing more than confirm the
trip to Honiara and say, "Well, all that must in
some way amount to corroboration and that is
sufficient", without applying its mind to the basic
question.
This is a case where, even if Your Honours are

against me on the first part of the case, the
various features I have referred to in relation to
corroboration are made very much more serious by

those factors. And in that sense the matters which
I have put to the Court are really cumulative.
Your Honours, for those reasons, it is my

submission -

DAWSON J:

You do not intend to say anything about rule 4?

MR BENNETT: Well, Your Honour, it is really a matter to be

dealt with in reply if it is raised by the Crown.
In my submission, the reason it cannot be a rule 4
case - rule 4 does not apply to the first part
clearly, the unsafe and unsatisfactory - - -

DAWSON J:	No.
MR BENNETT:	Your Honours, what I say about rule 4 is if

Your Honours are against me on the first part of
the case, all the arguments I have put on that are
reasons why rule 4 should not apply because even if
the rule is that the court cannot interfere where
it is merely a matter of credibility, this case
was, when one looks at the credibility of the
witnesses, such a weak case that a very slight
error in the summing up is sufficient to cause

rule 4 to be invoked. May it please the Court.

MASON CJ: Yes, thank you, Mr Bennett.

Mr Coorey?

MR COOREY:

Yes, thank you, Your Honours.

Your Honours, if

I could hand up the outlines of argument, there are
six copies.

MASON CJ: Thank you.
MR COOREY:	Your Honours, at the outset, perhaps if I

mentioned that this application was a couple of
days out of time and an affidavit was filed, copies
were sent down some time ago but, basically,
Your Honours, the point was that the appeal was
heard on the last day before the Christmas

vacation. My instructing solicitor was ill in the
intervening period and the matter is only, I think,
two or three days out of time. So, perhaps if that
could wait to some later point.

MASON CJ: Yes.

Chidiac

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.MR COOREY:

Your Honours, it is fair to say this that the

case as against Chidiac is a little different to
the case against Asfour but in the major part the
thrust of the Crown case is almost identical, that

is, it rests upon the evidence of the two

accomplices.

There is no doubt that the Crown case could

never have succeeded without Oti and Kwalu if I can
put it that way and the way that His Honour summed
up to the jury it clearly was that sort of a case.
There was never any suggestion that in this case
that if the accomplices were disbelieved one could
then go across to the other material, that is the
non-accomplice material, and in some way sustain a
conviction. It just would not have been possible
and I say that at the outset, Your Honours, to
allow me to rely upon the submissions put by
Mr Bennett as to the inconsistencies and the
problems with the accomplice evidence. It seems to
me that all of those arguments in relation to Oti
and Kwalu, the two accomplices, are attributable to
the Asfour case in toto because, as I said, they
were parallel situations.
Indeed, I think, in one sense the accomplice evidence might even be weaker against Asfour
because there was no suggestion that Oti had ever
met Asfour whereas Oti and Kwalu had both met
Chidiac.
The other material is a little different, that

is the non-accomplice material is a little
different. In the case of Asfour, Your Honours,
the Court of Criminal Appeal was somewhat impressed
with a notebook which was said to have been found
at Asfour's flat and which contained Oti's
telephone number. That evidence, at first blush,
seems to be rather strong except that,
Your Honours, when one examines it the notebook
never appears; the police officer cannot recall
what the notebook looked like and, indeed, he said

something about he did not take the notebook
because he was trying to be subtle, he did not want
to draw attention to the notebook, yet he entered
the flat where the notebook was by the use of a
sledge hammer through the door.
One wonders how the policeman thought he would be subtle after coming through the door with a
sledge hammer and, indeed, takes the telephone
account which one assumes he would be looking
through for telephone numbers but did not take the
notebook because he did not want to draw attention
to a telephone number, I think he said, in the
notebook.

Chidiac

4/10/90

With respect, Your Honours, the notebook evidence is laughable and if I remember correctly
that is the only real distinguishing feature in the
weight of the non-accomplice evidence against
Asfour. That there are telephone accounts and
things like that, that material, Your Honour, in my
submission, although could perhaps amount to
corroboration and I say that very faintly, there
was clear evidence that George, the disappearing
George, used Asfour's telephone number and the

Crown never countered that. So that when Asfour
made his statement he said that George used the
telephone and I think that was corroborated,
Your Honours, by the evidence of Oti who said the
same thing, that when George gave the telephone
number he gave Asfour's telephone number. So,
indeed, that part of the evidence, with respect, is
also extremely weak.
Now, Your Honours, if I could just turn to a

couple of points that were made this morning and
yesterday, I really have got little to say, because
99.9 per cent of the references have been covered
by Mr Bennett, but Your Honours, if I could just
add very quickly, what seemed to trouble
Your Honours was that this was a credibility case
and one can understand how it must be almost
impossible in some situations for an appellate
court to say what a jury should have done when the
appellate court has not seen the witness in the
witness box and is deprived of all those things.
But, Your Honours, this is a special case because
here, in a sense, the credibility of the witnesses
was probably not fully determined. What happened
was that there was six conspirators and only two of
the conspirators are charged and two others give evidence, that is Oti and Kwalu, but the person, George, and the person, Sam, are not called by the
police and there is evidence if one accepts one
view of it where clearly Sam was allowed to depart
out of the jurisdiction and the man, George, was
just never sought.

In one sense, Your Honours, that makes the

defence case very difficult because it is almost
impossible to test the credibility of witnesses
when they keep saying, "But George said this" or
"George said to do this" or "George told me this."
"For example, how do you know so and so's telephone
number? George told me." Well that can never ever
be checked and, as Mr Bennett says, the evidence of
the accomplices was almost laughable, but one
wonders how much worse it would have been if George
had been called by the Crown and the person, Sam,
had been called by the Crown. So in one sense it
is more than just a credibility case, Your Honours,

it has got other problems as well. The tragedy is

Chidiac

4/10/90

that the learned trial judge believed that George
was coming to court and when His Honour made the
suppression order, which is at page 12 - I do not
think Your Honours need to go to it - but at
page 12 when he made the suppression order, clearly
he made the suppression order in relation to a
witness, George.
Now His Honour got quite a shock at the end,

but His Honour's remarks unfortunately about having
been "conned", not by the Crown, but I assume by
the federal police, that was never said in the
presence of the jury. So the jury never knew the

effect of what had happened. The jury were not
conned by the police. Now, Your Honours, I
aware of just what His Honour did think about been
stress that point because, as what Your Honour
Justice Dawson put yesterday in relation to
usurping the jury's function, must be forceful. It
has to be counted here because the absence of
George and the absence of Sam leaves a stigma of
some sort around the accomplice, Evans,
particularly when, Your Honours, this is a case of
concoction. This is a case where the accomplices

concoct with each other - clearly admitted to~
where the accomplices concoct with George,
again -

DAWSON J: Sam's disappearance is explained, but George's is

not.

MR COOREY:

Yes.

I think what he said, Your Honour, was

that "I did not think there was enough evidence
against Sam. "

DAWSON J: And Sam has departed.

MR COOREY:

Sam has gone. But, Your Honour, the problem

with that evidence was that Sam in fact was doing
renovations on his house. He did not leave this
jurisdiction for quite some time, but the police
officer said that because he only had an allegation

from Sam from, I think, Oti and Kwalu - I beg your
pardon, it might have been one of them, Your Honour
- that he did not feel that was enough to charge
Sam, yet he felt that was enough to charge the
accused. There is no doubt that he relied upon
what the accomplices said to proceed against the
accused, but would not do it in the case of Sam.
So Your Honours I stress that point on that because
it seems to me that this is not a usual credibility
case.

McHUGH J: Can I just ask you:

did you hear what

submissions counsel on behalf of the federal police
or George made to the court about - - -

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4/10/90

MR COOREY:

Your Honour, I did not appear and when it was

complained to the trial judge about the affidavit the Crown said, "I don't know what was in the

affidavit." I do not know what the submissions
were, though, Your Honour.

McHUGH J:	You see, I have got doubts whether there is any power in a trial judge of the district court to
prohibit the name and address of a person who was not called as a witness and if that is so, it may
throw a question as to whether or not these proceedings are not fundamentally flawed by reason
by a breach of the open justice rule.
MR COOREY:	Your Honour, I would couple that with what His Honour Mr Justice Deane said during argument in
the Jackson trial - and I stress the Jackson trial,
not the appeal. What His Honour said there was
that he does have grave fears about where names of
persons are suppressed because it prevents the accused having access to publicity about that
witness. And, Your Honour, that would apply
certainly here because here the defence was
deprived of any publicity about George and so -
although one does not know what quantity of information comes from the public, I suppose it smacks at the heart of the system when that sort of secrecy is there.

I could not find the passage. I recall

Mr Justice Deane talking about that in the Jackson
trial and I recall the argument but I could not dig
up the actual passage but, certainly, His Honour
had grave worries about that sort of thing.
Your Honours, if I could just proceed a little

further on that last point before I move on. The
defence being deprived of cross-examination of
George and Sam has very little in the way of other

evidence to discredit the two accomplices. And yet
that was done and done quite convincingly to the

extent of where His Honour made remarks which were quite unusual for a judge in a summing up situation but one has to bear that in mind, Your Honour, that
even with that limitation, two out of the four
parties not being there for the use of
contradictory evidence nevertheless that
discrediting was achieved.

Your Honours, the other feature that I want to turn to was where Your Honour Justice Dawson
mentioned the rule 4 situation which could affect
us. Your Honours, it would be my submission that
rule 4 would never be used here. Clearly, in my
submission, the Court of Criminal Appeal merely
speculated - and I underline "speculated" - when it
talked about, "This may have been a tactic"; that

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4/10/90

is, that the solicitor for Mr Chidiac might not
have wanted any directions around the topic of
corroboration.
In fact, Your Honours, that, with respect,

does not stand up to examination. The solicitor
expressly said that it was disputed that there was
corroboration and, in that situation, in accordance
with what Sir Garfield Barwick said in Kelleher's
case, which is at page 531, I think about half-way
down, that is the very situation where a judge
ought to tell the jury what corroboration means.
That is the very situation where you are inviting
trouble.
If the solicitor was, in a sense, lying low to

sort of pick this point up at a later date,
Your Honours, he chose the wrong time and he chose
the wrong topic. Certainly the wrong time because
the following day the trial judge came back and
completed the summing up - so it was the wrong
time. It was the wrong topic because that
particular topic would have compelled the trial
judge to explain corroboration.
Your Honours, perhaps one could say this: the

Crown prosecutor was present when that topic was
raised - corroboration; one solicitor, one defence counsel and two instructing solicitor were present.
And one could never say that the Crown had any
advantage in doing this sort of thing. And,
indeed, Your Honours, when one looks at what
Mr Justice Roden said in Hayler's case which I do
not need to take Your Honours to - it is on the
list of cases I put up - what Mr Justice Roden was
concerned there was - and it was an identical
situation where neither Crown and, indeed, two
defence counsel and their instructing parties, none
of those persons had indicated to the judge that he
had forgotten to explain corroboration and it seems
to me, Your Honours, that, with respect, bearing that in mind, and particularly the fact that the

case for a rule 4 situation. summing up had not finished, it could never be a Your Honours, the other situation I wanted to
put to Your Honours, in Mr Bennett's argument he
talked about the corroboration, I think, of one
accomplice not being able to corroborate the other
and saying that this direction was not given

adequately. Your Honours, in my submission, I
adopt in toto what was said but it goes further in
this case because in this case there was the
evidence of concoction. So this was a special case
for the direction that one accomplice cannot
corroborate the other.

Chidiac

4/10/90

Your Honours, I will not go through all the

evidence about it but Your Honours remember what being taken out of gaol from one accomplice to
another and I think Oti's evidence was that the
letter was sealed in fact. The police officer said
the letter was unsealed but Oti said the letter was

sealed. You have concoction there, or possibility
of concoction; you have concoction from the
evidence where Oti telephoned Kwalu in the Solomon
Islands and that conversation was the one where he
told him to lie about the first trip; you have the
concoction from George, a co-conspirator, which
would be relevant for the accomplice direction.
George had indicated that there would be a way or a
plan to get Oti out of gaol - I beg your pardon,
that was put by the girlfriend who said George
would get him out of gaol. Oti was very strange
about that and said he did not hear the interview.
It was a gaoled interview but Oti did not hear a
word of it which, with respect, is highly unlikely
but, again, that must have pertained to the
girlfriend's visit, that there was going to be a
plan to get him out of gaol.
All of those things, Your Honours, make the

corroboration direction that one accomplice cannot
corroborate the other absolutely crucial in this

particular case. Even if one could allow that
there would be cases, say, where one accomplice
would not know the other accomplice in any manner
or form a~d in that situation, where there was no
suggestion by the defence of any concoction, one
could understand that that sort of direction would
be unnec~ssary. But in this case here,
Your Honours, it was absolutely crucial bearing in mind the overall plan.
Your Honours, in the evidence of Oti and Kwalu

there is a massive number of discrepancies both
internally and externally in each of their

evidence. I will not go through what Mr Bennett

has put but just one matter springs to mind and
that was the evidence of Oti. Your Honours, if I
could go to the bottom of page 134, at line 35, of
the application book.
If I could just say this, before I start:

basically what happened was this, that Oti had made
three statements before he gave evidence in the
committal proceedings and, in those statements, had
made no mention of the person, Michael Asfour, in
relation to any telephone calls between the two of
them. When he gave evidence, of course, he gave
evidence that there were numerous calls from the
person Asfour.

Chidiac

4/10/90

If I could just read those two passages because that highlights, in fact, the point:
Q. I would just like you to have a look at
both of these statements (shown) dated
17 October 1987 and 1 July 1988 and satisfy
yourself that in neither the long statement of
nine pages dated 17 October 1987 nor the
amending statement of 1 July 1988 just prior
to the committal hearing, in neither of those statements do you mention the name Michael or the fact that you ever rang Michael or that
Michael ever rang you -

Michael, of course, being Michael Asfour -

would you look at them so you can be
completely satisfied that I am telling you the
truth? A. Yes, that's right.

I might say, Your Honours, although counsel there
said two statements, yet if one reads earlier in
the transcript, there are clearly three statements
and that is referred to a few lines up as well. I
think at line 30 it is clear there are three
statements, not two. At the top of the next page -
135 -
Q. No mention of Michael at all? A. No sir.
Q. And then on 4 July 1988, suddenly you tell
the court on oath after you were asked
questions by the Crown - that means you were
in your evidence in chief but almost finished

that - you were asked this question, "Q. Did
you receive any calls from any other person
during this period calling, you believed, from
Australia?" and the answer that is recorded
is, "Well, George gave me several numbers in

Australia. He gave me his home number, he
gave me his brother's number, he gave me his
girlfriend's number and he gave me a number

which I knew it was for Michael, a person

named Michael". (Page 28); that is the first
time that you have mentioned Michael at all,
is it not? A. Yes sir.
One wonders about that where an accomplice has

come into court to give evidence against

Michael Asfour. He could make three statements
that do not mention the man but gets him to court
and talks about what the man has said and done, in

some cases, with some detail. I would not say
great detail but some detail.
Your Honours, if I could turn finally to the

approach by the Court of Criminal Appeal in this

Chidiac

4/10/90

matte~. It is, with respect, fair to say that the
court just did not approach the problem at all.
What the court seemed to do was to say, "This was a
favourable summing up and there were tactics at
stake and so rule 4" et cetera, et cetera. But,
Your Honours, with respect, to say it was a
favourable summing up is partly the fact. If it
had been a totally favourable summing up the
learned trial judge would have gone through a
multitude of discrepancies as sometimes trial

judges in their summing up do. When they list
crucial evidence they show the discrepancies. Here I do not think the learned trial judge highlighted, with any detail, one single discrepancy between the
accomplices, anything which one could point to and
say that that would show the inherent problem with
their evidence.
Indeed, what His Honour did was: he gave a summing up which would incline a lawyer to think it
was to acquit - a hint to acquit - by the use of
disparaging and colourful language against the two
accomplices, but one does not know whether the jury
thought that this was a pro-defence summing up;
the jury does not know what sort of language this
trial judge would normally use; the expressions
such as "look carefully before you hang a dog"~
"villains, crooks, liars, drug-runners", those are
unusual expressions for a trial judge who
demonstrates some degree of restraint and balance

in his summing up. A jury would have no way of
gauging that.
Obviously, to the defence, it must have seemed

like a strong hint for an acquittal from the trial
judge but one must say that the jury either did not
think it, or if they did not think it they were not
interested in it, because they convicted. But it
seems to me that it is a little inaccurate, in a
sense, to say that the summing up was so favourable
that counsel would have done nothing because,
clearly, the solicitor did do something during the

summing up. He made a complaint about

corroboration. So, with respect, it seems that
that has to be balanced against the other points.
The other feature is this, Your Honours, which

is my final point. The Court of Criminal Appeal
never really answered the question on
corroboration. It quoted the decision of
Kilbourne's case and then referred to the specific
page of Lord Hailsham's speech where it was said
that if the word "corroboration" is used then the jury has to be told what the word means. But the
Court of Criminal Appeal did not really focus upon
that at all. What the court did was it said, that
earlier on in his judgment His Honour had used the

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words, when talking about the Crown arguments, and
I underline the Crown arguments, saying, "The Crown
says these are objective facts", "The Crown says
this is independent evidence" and His Honour would
have meant that to relate to corroboration. So that
what, I think, was said at page 356 about the
Crown's argument on objective facts was somehow meant to be connected to what was said at page 358.
With respect, there is no way one would submit

that a jury could possibly have known that what the
judge had said X amount of time ago about a Crown's
argument of an objective fact was meant by us that
when he mentioned the word "corroboration" two
pages, or X time later, was meant by us to tie the
two in.
Indeed, if they had tied the thing in there

might have even been more problems, Your Honours,
because whatever else corroboration is, simply
saying it is an objective fact would not describe
corroboration. Simply saying it is independent
evidence would not describe corroboration. It has
to go beyond that; it has to tend to connect the
particular person with the particular crime. It
could have been an objective fact, for example,
that there was a full moon on a particular night,
that would be an objective fact but it may do
nothing in the particular case to connect the
person with the commission of the crime.
So, in my submissions, Your Honour, the Court

of Criminal Appeal has not even begun to look at
that at all. It has simply said, indeed
speculated, as to what the trial judge would have
meant when he said corroboration that he is giving
a direction on law about a concept of
corroboration, he would have meant that the jury
can tie that back into when he was talking Crown
arguments about objective facts and, with respect,
that just is not possible when one looks at the
judgment detail and just sees the separation

between the concepts.
Indeed, Your Honours, it has been said by

courts many times that corroboration is a difficult

thing for lawyers to understand; how can a jury
possibly understand what corroboration is without
some guidance. With respect, the Court of Criminal
Appeal ought to have said that the trial judge had

a choice; he either had to tell the jury what
"corroboration" meant, which is the short form of
doing it and perhaps the preferable way, or
alternatively he had to tell the jury where the
corroborative material was.

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With respect, His Honour just cannot bow out

of the picture. He cannot just say, "It has to be
corroborated", and do neither, not tell them what
"corroboration" means.

MASON CJ:

Yes, but you are merely repeating now what Mr

Bennett put to us, Mr Coorey.

MR COOREY:

I am, Your Honour, yes.

point because it seems to me that on what the Court
of Criminal Appeal has said that is highlighted

I only stress that

there in that aspect. Your Honours, it is
important in this case, if Your Honours took the
view this was extremely unreliable accomplice
evidence, then it must be a case where the
corroboration warning was crucial, absolutely
crucial. It is not a case where Your Honours would
feel any confidence in saying, "This is not a case
which would have called for the corroboration
direction anyway", and as I have said, repeated ad
nauseam, perhaps almost in effect this was
equivalent to giving no corroboration direction.
It may have even been worse in a sense because having said objective and independent and then
corroboration later, if the jury did not marry the

two it would be misleading. Your Honours, there is

nothing else I wopuld add. I rely upon what has
already been said by Mr Bennett. Thank you,
Your Honours.

MASON CJ:

The Court will take a short adjournment in

order to consider the course that it will take in
this matter.

AT 12.13 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.17 PM:

MASON CJ: Yes, Mr Cowdery.

MR COWDERY:

Your Honours, I hand up an outline of

submissions by the respondent.

MASON CJ:	Thank you.
MR COWDERY:	Your Honours, this is a matter in which it is

submitted that special leave to appeal should not
be granted to either of the applicants.
Your Honours, might I take the Court first to what
has been said by this Court in Morris v Reg,

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163 CLR 454. I go to a passage on page 475 in the
joint judgment at about point 5 where the Court had
this to say:
In exercising its wide discretion to grant special leave to appeal it is proper that the
Court should be - - -

DAWSON J:

I think that is not the majority, Mr Cattery. think that is me.

MASON CJ:

It is an innominate judge according to the page,

but it is Justice Dawson.

MR COWDERY:

I am sorry, Justice Dawson.

DAWSON J:

Nevertheless, you may read it.

MASON CJ:

Well, I am not sure you should read it.

would be taking up unnecessary time.

MR COWDERY: Well, Your Honour, I refer to the

paragraph - - -

McHUGH J:	It is also a dissent.
MASON CJ:	It is, yes.
DAWSON J:	Yes .
MASON CJ:	Is not the real problem on this point that when

you look at the relevant passage in the Court of Criminal Appeal judgment it does appear that the Court did not make an independent examination of
the evidence. The Court contented itself with a
proposition it is an attack on the credibility of
the two main Crown witnesses and therefore it was a
matter for the jury.

MR COWDERY:

Your Honour, I am grateful for that

indication of the area of concern. Might I take up

that point in that case. The passage in the

judgment of the Court of Criminal Appeal is at

page 390. It is quite short, as Your Honours have

been told already, from line 6 to line 19. I
submit that Your Honours should take close regard
to the way in which that passage has been
expressed.
It refers to the fact that it had been submitted on behalf of the appellants that the
verdict of the jury was unsafe and unsatisfactory
and it should be said in passing that that was a
vigour or in the extensive fashion that it has been before Your Honours.
subsidiary point before the Court of Criminal

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MASON CJ:	It may be; none the less, the point was raised.
MR COWDERY:	The point was raised. The Court then went on

to point to the fact that the jury's attention had
been well and truly directed towards such problems
of credibility:
The features of the Crown case which are said
to make the jury's verdict unsafe and
unsatisfactory all relate to the matter of the
credibility of the principal Crown witnesses.

So far so good. And the real point of the passage, we submit, is what follows:
That is a jury question and in the present case it is a question concerning which the
jury were given what must be said to be at the
very least an ample opportunity to apply their
minds to the problems.
Your Honours, in that passage, we submit, that

the court is drawing attention to the fact first,
that the credibility of witnesses is a jury
question and not a matter for either the trial
judge or the Court of Criminal Appeal to intervene
in.

McHUGH J: Well, that is the fundamental point, is it not?

If the question of credibility is a matter that can
be examined by the Court of Criminal Appeal in
determining whether a verdict is unsafe or
unsatisfactory, then this judgment has gone off on
a wrong point.

MR COWDERY:

Your Honour, can I come to the three authorities on that point in a moment?

MCHUGH J: Yes.

MR COWDERY:

But on the question of whether or not there was

an analysis of the evidence, could I simply

conclude that submission by referring back in the
judgment to page 383? At line 6 the court began a
statement of the Crown case, the assertions alleged

by the Crown. It referred to the four specific
occasions on which drugs were imported into
Australia. At line 16:
The first specific act of importation -

which connects with Asfour. At line 21 -

The second specific act of importation -

which on this occasion was carried out by Oti. The
third specific act on page 384 at line 9 which

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followed the visit of Chidiac to Honiara; and the
fourth specific act at line 12.
What we submit is the only stated analysis of

their evidence carried out by the Court of Criminal
Appeal then follows at line 17. Having recited the
acts of importation and the involvement of those
two accomplices in those acts, the court said:
Both Oti and Kwalu were in many

respects -

which is an implication or an inference that the
court had considered those respects -
which were brought to the attention of the
jury and emphasised by the learned trial

judge, unsatisfactory witnesses. They
admitted having told lies, they admitted
having told lies on oath, they admitted having
changed their stories from time to time, and
there was the objective fact on their own
account they were personally involved in drug-

running. That, we submit, is part of the analysis of the
credibility of the witnesses and the weight of the
evidence to be attached to them.
However, there was evidence which it is
conceded on this appeal was capable of
corroborating the Crown Case.

And that was an expressed concession by senior
counsel then appearing for Chidiac on the appeal.
It was not simply a point that was not raised on

the appeal. It was expressly conceded. Evidence
capable of corroborating the Crown case is then
referred to. In the case of the appellant Chidiac it consists of the meeting which is admitted to by

Chidiac. The explanation is referred to, and the

disbelieved by the jury is referred. And that is a fact that the explanation had obviously been
matter that arises in Eade's case which is a
decision to which I will take the Court in due

course. In the case of the appellant, Asfour -
page 385, line 5 -
objective evidence some of which was referred
to in the learned trial judge's summing-up.

And one particular item in addition to that was the notebook to which there had been reference in the
evidence which included in it, as Your Honours have

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heard, a note of Oti's home and work telephone
numbers which were extracted from the notebook and
written by the police officer on the back of the
search warrant which was being executed on that
occasion.
There is then a review of the learned trial

judge's summing up of the Crown case and the
warning that was given. These are all matters then
that were, we submit, in the minds of the Court of
Criminal Appeal as it considered the evidence of
the two accomplices and the weight to be accorded
to it and they finished with the warning that the
judge gave in his summing up on page 387:
That seems to suggest that His Honour had formed an unfavourable view as to the
reliability of the principal Crown witnesses.

And then the judgment continues:
The primary submission that is made on

this appeal on behalf of the appellants
concerns the warning given in relation to
corroboration.

And the matters dealing with corroboration are then
dealt with through to page 388, line 23, where
leave under rule 4 was refused, but in any event
the merits of the argument were considered and

referred to by the court. Your Honours that is the
material from which it must be found, if it is to
be found at all, that the Court of Criminal Appeal
did conduct an analysis of the evidence.

GAUDRON J:

Mr Cowdery, can I interrupt you there.

seems to be that it has been approached at all
stages on the basis that there are really two
discrete issues, namely corroboration and unsafe

and unsatisfactory. Have the issues never been
linked up other than, I think, in

Mr Coorey'ssubmissions today?

MR COWDERY:

They were dealt with discretely, Your Honour,

certainly before the Court of Criminal Appeal,
where, as I indicated, the question of the verdict
being unsafe and unsatisfactory was, but faintly
raised.

GAUDRON J: It would

seem quite wrong to deal with them

discretely, would it not, in the circumstances of
this case? They would seem to run inevitably
together.

MR COWDERY: Well it may well be argued, we would concede,

that if there are difficulties with the question of

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corroboration, those matters may impact on the
question of whether or not the verdict is unsafe
and unsatisfactory, for that reason.

DAWSON J:

Did the Court of Criminal Appeal ever ask itself

the question, would a reasonable jury have had a reasonable doubt in this case? It did not do so explicitly, but did it even do so impliedly?

MR COWDERY:

On page 390 they seem to have stopped at the

point of attributing to the jury the function of
deciding whether or not to accept the evidence, so
the answer to the question is probably, no.

MASON CJ: That seems to indicate they did not apply the

correct test.

MR COWDERY: Except for this, Your Honour, that on page 390

at line 16 the Court has said, expressly:

Once the jury decided, as they were entitled
to do, that they could place sufficient
reliance upon the evidence of Oti and Kwalu,
then there was an abundance of evidence of
guilt of the accused.

McHUGH J: That was an anterior question, really, unless you

get it out of the words, "as they were entitled to
do".

MR COWDERY:

"As they were entitled to do", yes.

The

submission is that it is to be found in those
words. That the court, there, has made an
assessment, has made a judgment, and has found that
the jury was entitled in the circumstances to place
sufficient reliance upon the evidence of Oti and
Kwalu to be satisfied of guilt beyond reasonable
doubt. In other words, they have not completely
abandoned the question to the jury. They have
assessed it for themselves and they have, although
not expressing it in extensive terms, expressed
their own view on the question.

The way in which we put the submission on this

point, Your Honours, is this: that that passage at
page 390 in the judgment simply isolates the
question of the credibility of witnesses as a
question for the jury. It refers to the fact that
the jury had been at least adequately warned of the
dangers in the particular case. The court has gone
on to find, after a review of the evidence, a
review of the Crown case, a review of the
criticisms of those two witnesses, that the jury in
the circumstances was entitled to place reliance

upon that evidence if they chose to do so. It then
decided that a proper basis had not been laid for
it to interfere in that question.

Chidiac

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The test that applies at that point in the

proceedings is very similar, in our submission, to
the test that must be applied here or, at least,
considered by this Court when reviewing a verdict
which depends upon the credibility of witnesses who
are flawed and there is no doubt that they are
flawed although we make the submission that they
are not flawed to the extent that has been asserted
in argument before Your Honours.
They did admit that they had told lies; they did admit that they had remembered things later
that had been forgotten or overlooked earlier;
they did admit that in not fully and frankly
expressing all relevant facts earlier they had, by
and large, been minimizing their own roles. It is
our submission that the lies, the inconsistencies,
the absences of recollection that were deposed to
by Oti and, to a much lesser extent, by Kwalu, all
connected with the involvement of Kwalu in the very
first importation, and Oti in the second one; that
they are not connected in any way at all, except
for minor inconsistencies, minor matters of detail
with the visit of Chidiac to Honiara or with the

importations that then followed; the third one
following Chidiac's visit and the fourth one as a
result of which Oti was arrested.
Your Honours, the question of whether or not the Court of Criminal Appeal should have interfered
with the verdict and whether or not Your Honours
should review their decision in that respect, where
the issue of credibility has arisen, has been
referred to in decisions of this Court and I would
take Your Honours first to the decision of
Whitehorn v Reg, 152 CLR 657. And then,
Your Honour Justice Dawson's judgment commencing at
page 687 - and I think I have it right this time
and I do not think it was a dissenting judgment.
At about point 5 of the page Your Honour had

this to say and I will not read it all but might I

refer Your Honours to the passage that begins:

In particular, a Court of Appeal does not usually have the opportunity to assess the
worth of a witness's evidence by seeing and
hearing that evidence given.
And might I pause to emphasize that proposition in
the circumstances of this particular case.
Your Honours from reading the transcript get but part of the picture that the jury and the trial
judge had during the course of the trial. We would ask Your Honours to pause and reflect on the nature

of these witnesses. They were natives of the

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Solomon Islands; they were men to whom English was
a second language; they were unsophisticated;
their visits to Australia were described in the
evidence; they were brief; they were visits when
they were taken under the wing of somebody here and
shepherded about for short periods of about a week.
True it was that Oti had risen in the bureaucracy

of his own country; no doubt by reason of - in

part at least - family connections. Kwalu, on the
other hand, was earning his living as a taxi driver
in the Solomons having had some brief period of
employment as a mechanic.
And these were men who found themselves being cross-examined by experienced advocates, a
solicitor for Chidiac admittedly, by one well
experienced in criminal practice and, Your Honours,
have had some of the cross-examination, what might
be described as a technical or precise approach to
the questions and answers which really does not
capture the flavour of the uncertainty, the
problems of recall being experienced by the

witnesses at the time. The jury was in a position
to appreciate that and no doubt it was an important
factor in the jury's final decision.
Your Honours, I refer to the rest of page 687

over to page 688 and, again, emphasize the passage
that begins at the first full paragraph on
page 688:
It is far from inconceivable that a court

of appeal may, upon the material before it and
without regard to the verdict of the jury,
entertain the possibility of a doubt itself
but may properly conclude that the jury might
reasonably have reached a verdict of guilty
upon the evidence given at the trial -

and the next sentence we highlight:
Where a result may have turned wholly or

largely upon questions of credibility or upon
competing inferences such may well be the
case.

So, Your Honour has singled out the question where
the issue is the credibility of witnesses as not an exception but a special case where the interference of the appellate court and its substitution of its
assessment for the assessment of jurors who have
heard the witnesses and seen the trial would be
very sparingly made.

TOOHEY J:

I just wonder, in this case, Mr Cowdery, whether

the Court of Criminal Appeal felt absolved to the

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necessity to make the independent assessment by the
concession that was made regarding corroboration?

MR COWDERY:

Your Honour, that rarely, with respect, is a

matter for speculation.

TOOHEY J:	Yes, I know, but in saying, as the Court said, that once the jury decided, as they were entitled
to do, that they could place sufficient reliance
upon the evidence of Oti and Kwalu, it is hard to
know what that means, but that is a possible
explanation.
MR COWDERY:	Yes, and that necessitates then looking to see whether or not there is evidence capable of being
corroboration and, indeed, whether or not this
Court should interfere on that aspect of the
matter, on the corroboration question.
The other case, Your Honours, is Chamberlain, 153 CLR 514, and I go to page 534 in the judgment
of the then Chief Justice and Chief Justice - in the fourth line:

It seems to us that the proper test to be applied in Australia is, as Dawson J. said -

that is a reference to Whitehorn
to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to
have entitled the accused to an acquittal .....
The function which the Court of Appeal
performs in making an independent assessment of the evidence is performed for the purpose
of deciding that question. The responsibility
of deciding upon the verdict, whether of
conviction or acquittal, lies with the jury
and we can see no justification, in the
absence of express statutory provisions
leading to a different-result, for an
appellate tribunal to usurp the function of

the jury and disturb a verdict of conviction
simply because it disagrees with the jury's
conclusion. We do agree that in many cases
the distinction will be of no practical
consequence; it will be merely a matter of
words.

I emphasize the next sentence:
That will not generally be the case where
questions of credibility are decisive.

And on the question of the appellant court

interfering on the ground that a verdict is unsafe
or unsatisfactory, I refer the Court to Carr v Reg.

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I do not think it was on our list of authorities
and I apologize for not having photocopies provided
this morning. But if I might simply read a short
passage from the judgment of Mr Justice Brennan in
that matter.
His Honour referred to a passage from

Chamberlain and said this:
That view accords, I think, with the ratio in
both Whitehorn and Chamberlain No 2. Neither
of those decisions has been reconsidered by
this Court. If a test wider than "open to a
jury to convict" were adopted, it is difficult
to see why the appellate court should not
retry the case on the papers, giving effect to
any reasonable doubt which the court may
entertain though none had been entertained by

the jury. So radical an interference with the
jury's function seems to me - though I say so
with respect - inconsistent with the
institution of trial by jury.

And the difficulties that that kind of review
throws up have been highlighted, in our submission,
in this case.
Your Honours have been taken to a number of

passages in the evidence of Oti, in particular,
which are said to show falsehoods, inconsistencies,
dissembling and faulty recollection by the witness.
If that extensive treatment of that material is to be properly countered then it would require me to
undertake a full review of the evidence of that
witness. and of the evidence of Kwalu in order to
restore what we submit is the proper balance to the
matter; and that is that the unreliability of
those witnesses is not as great as has been
asserted in the course of argument before
Your Honours.
And it is for that reason and on that basis

that we make the first submission that in matters
of this kind where the principal issue is the
credibility of Crown witnesses this Court should be
very loath to entertain an appeal, very loath to
grant special leave for argument to be received on
the safeness or satisfactoriness of a verdict where
the issue is credibility.
The primary submission is made on behalf of

the applicants that a wrong test was applied by the
Court of Criminal Appeal; that is that the court accepted a favourable summing up as being a bar to
a successful appeal against a verdict as being
unsafe or unsatisfactory. In our submission, it

did not do that. In our submission the passage

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that I have referred to Your Honours at page 390
does not go that far; does not express either in
terms or impliedly the proposition that is set out in paragraph 1.1 of my learned friend Mr Bennett's
outline.
In the absence of any indication that the

Court of Criminal Appeal applied an incorrect test
in considering the question, the Court then must
move to the position of determining for itself
whether or not the verdict was unsafe or
unsatisfactory. In order to do that, in our
submission, this Court would be placing itself in
the position of the Court of Criminal Appeal, which
clearly, in our submission, is something that it
should not do and those cases to which I have
referred Your Honours show quite clearly that the
question of special leave is not merely an academic question; that the proper function of this Court is
to be exercised in accordance with those principles
that have been expressed and to which I have
referred.
In order to place itself in the position of

the Court of Criminal Appeal, this Court would have
to undertake a complete analysis for itself of the
evidence before the jury, in order to make a determination for itself whether or not that
verdict was unsafe or unsatisfactory. In our
submission, that is the proper task of the Court of
Criminal Appeal.

MASON CJ: But what if the Court of Criminal Appeal has not

performed that proper task?

MR COWDERY:

Then there exists the possibility, Your Honour,

of the matter being referred back to the Court of
Criminal Appeal for that task to be undertaken in
the way that this Court, should that be the
finding, finds that it has not been done.

McHUGH J: But, in Chamberlain, this is what the Court did.

The Federal Court having taken the view it had no
power, this Court held it did have and then
examined the evidence itself.

MR COWDERY:

Well, Your Honour, I can only refer again to

the statements of principle that have been made.

MASON CJ:

But are you asking us to adopt that course if we

come to the conclusion that the Court of Criminal
Appeal did not apply the correct test?

MR COWDERY:

Then it should be referred to the Court of

Criminal Appeal to consider the matter in
accordance with the correct test.

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MASON CJ:

Is there ariy particular reason why you urge that

course upon us because after all we have had the
benefit of the outline of comprehensive argument on
the part of the applicant? Why should we not deal
with it ourselves?

MR COWDERY:

Two aspects of the matter, Your Honour:

one is

that to do so would be to re-exercise the function
of the Court of Criminal Appeal which this Court
has on occasions said that it will not do.

MASON CJ: But we did it in Morris, for example.

MR COWDERY:

Your Honour, in Morris the issue was within a

relatively narrow compass and that brings me to the
second point that here there is the whole spread of the evidence of Oti and Kwalu to be considered; the
significance of the cross-examination to which
Your Honours have been taken, at least in part; the
true effect of lies and inconsistencies in their

evidence. Your Honours, it could be done, I
suppose, in very short form by my making this
submission that any lies, any inconsistencies, any
shortcomings in the evidence of Oti and less
significantly in the evidence of Kwalu were
relevant only to their own involvement in the first
and second importations; that any other
inconsistencies, any other shortcomings were
matters of detail only and they were the product of
nothing more than an imperfect recollection.
Your Honours, the submission would be left, I

suppose, at that stage without going through
chapter and verse all of the matters that have been
referred to and more.

GAUDRON J:

Does that really solve the problem though,

Mr Cowdery, in this sense? Your first proposition
really simply highlights one of the difficulties
about accomplice evidence such that the warning has

to be given. But when you. have a case of
concoction being put by the defence, does it solve

the problem thus highlighted to say, "Well, it is
only a matter of minimizing their own involvement"?

MR COWDERY:

It does not solve the problem, but it shows the areas in which those matters arose.

Your Honour,

the account given by the witnesses of their contact
with Chidiac, of their contact with Asfour, is and
always has been a consistent account subject to
some matters of detail. And the submission is made
that any inconsistencies are only matters of
detail, matters that are the product of an
imperfect recollection that improves from time to
time.

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GAUDRON J: When you say "the evidence", are you including

in that the statements made prior to committal?

MR COWDERY:

Yes, the content of which was referred to

extensively during the trial, during the course of
cross-examination. They were cross-examined on
their statements. They were cross-examined on the
depositions in the committal hearing. All of those
matters were covered extensively.

MASON CJ:

Mr Cowdery, I think I ought to say that you

should proceed on the footing that in the event
that the Court decides to grant special leave,
there is a real likelihood that the Court will go
on to deal with a substantial question itself
rather than merely remit it .for rehearing by the
Court of Criminal Appeal, and that you should
therefore cast your submissions in the light of
that statement.

MR COWDERY:	I am grateful for that indication, Your Honour.
McHUGH J:	I think over lunch-time you will have to regroup your submissions, Mr Cowdery.

MASON CJ: And perhaps add to them.

MR COWDERY: Yes, indeed. Could I deal first, before doing

that, with the matters raised in points 1.3 and 1.4
of Mr Bennett's outline relevant to the same area.
The point is made, 1.3.1, that:
Nothing in the Crown case except the evidence
of Oti and Kwalu is inconsistent with
Chidiac's statement.

That might simply mean nothing more than that the statement has been tailored to the objective
evidence, the evidence about which there can be no
contest:

1.3.2 Nothing in Chidiac's statement is
improbable.

We would submit that the Court derives no comfort
from that proposition. The probability of
statements made by Chidiac does not weaken the
probability or the plausibility of the Crown case;
1.4 there is reference to serious improbabilities
in the Crown case; 1.4.1, that is reference to a
telephone call, as I understand it, from Chidiac in
Vanuatu to Oti in Honiara after the Chidiacs had
left. That evidence was given by Oti. It would
therefore be an incoming telephone call from
Chidiac in Vanuatu to Oti in Honiara and there
would be no record obtainable certainly from
anywhere in Honiara. That was a matter of

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improbability that was put forward by my learned
friend.
The impossibility of leaving a message with

Voice Call is simply not supported by the evidence,

in our submission. The evidence was given by
Miss Hunter that a message could be left even if
the christian name only of the recipient was given
and that evidence is to be found at page 311 at the
end of her evidence in-chief starting on page 310
at line 34:
Q. If a person rang the Voice Call message
number and knew the pager number of the
subscriber then I suppose that number could be
given and the message relayed? A. That's
right.
Q. If the person did not know the pager number
and gave a name what procedure was
followed ..... A. The operators have the
ability to alphabetically scan for Christian
name, surname or company name.

The evidence was that Chidiac told Oti that all he
had to do was to ring and to say that he had a

message for Neil. It is submitted that it was
improbable for him to state to Oti that very often
he would not be there but that he could leave a
message simply for Neil.

McHUGH J:

But what do you say about the evidence that the

account was not opened by Chidiac until
November 1985?

MR COWDERY:

Well, that, in our submission, with respect,

was simply not the evidence. The primary evidence
is in a document that was exhibit 41. That is a
document which has the name Jacob written on it and
a line next to it and opposite that name the name
Neil Chidiac written apparently in a different hand
and apparently in a different pen and above that
name is also written in pencil the name Neil,
N-e-a-1, misspelled, Chidiac, S-h-i-d-i-a-c, also

misspelled.

DAWSON J:	We do not have copies of that.
MR COWDERY:	I am sorry. There are some copies available.

The exhibits are - - -

MASON CJ:

Mr Cowdery, perhaps we can take this up after

lunch. We will adjourn and resume at 2.15 pm.

AT 1.02 PM LUNCHEON ADJOURNMENT

Chidiac

4/10/90

UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Cowdery.

MR COWDERY:

Your Honours, before lunch I was dealing with

the question of the pager and the service provided

by Voice Call. It is an important area of the
evidence, in our submission, and what I propose to
do is to deal with that before moving more
generally to the question of whether or not the
verdict was unsafe and unsatisfactory.
The evidence about the matter began with Oti,

at page 29. He was there giving evidence of a
conversation with Chidiac in the Mendana Hotel in
Honiara on the first occasion on which he went to see him. At line 15, on page 29, he said:
Neil gave me a piece of paper with a series of
numbers on it which he said was his telephone
number.

He does not have the paper any more. He remembers
the number on it was 211 1100.
Q. Did he say anything about that number? A.
Yes, "If you ring up, and most of the time I
won't be there, just leave a message and say
'This is Alf'".

That was the introduction to the evidence on the

Voice Call pager. One has to bear in mind, in our
submission, that one is there dealing with a man of
the quality, which I described before lunch, in
Honiara in the Solomon Islands where the
sophistications of matters such as paging services,
centralized paging services, are probably unknown
and, in all probability, unfamiliar to the person
being addressed by Chidiac ..

It is suggested by my learned friend that that is an inherently improbable account of events but
our submission is that it is quite consistent with
Chidiac seeking not to involve himself too closely
in the future with Oti being able to keep his
distance if he wished to by not giving Oti his own
home telephone number but by giving him another
number at which he might be contacted and telling
him, in general terms, "That is my number." In
other words, "That is a number at which I can be
contacted". He said, "Most of the time I won't be
there". That is an oblique and no wholly accurate
way of stating that one should not expect to find
him there when one rang that number but that a
message could be left. This is Chidiac the

Chidiac

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manipulator putting to Oti as much as he needed to
put to enable the contact to be in place should Oti
wish to contact him in relation to shipments in the

future. "If you ring up, and most of the time I won't

He said:
be there, just leave a message and say 'This
is Alf'".

In other words, "Leave a message for me, for Neil,

for Neil Chidiac, and say 'This is Alf'" and the arrangement is then in place that Chidiac, if it
suits him, can return the call knowing what is
meant by the name "Alf". In our submission,
nothing inherently improbable in that arrangement
at all.
The next aspect of the evidence is exhibit 41

which is the Voice Call contract itself.
Your Honours, we have the original exhibit in Court
and we have six copies to hand up. Unfortunately,
it is a foolscap-size document and the photocopiers

here reproduce on A4-size paper. I have two sets
of copies: one which starts at the top of the page
and then cuts out and one which starts at the
bottom of the page and cuts out but if Your Honours put the two documents together the whole exhibit is
reproduced.

MASON CJ: Thank you.

MR COWDERY:

Your Honours will see that in the personal

particulars section, near the top of the agreement,
there is first the name "Jacob" and one can see
from looking at the original document that the name
"Neil Chidiac" next to it is written in a different
pen and one can see a slightly different style of

writing. The name "Neal Chidiac" written above
that is, in fact, written in pencil and the stroke
between the names "Jacob" and "Neil" is a pencil

line on the original document. The document is
dated 21 June 1984, just above those name details.

In the top right-hand corner it has an annotation

of payment received "$584". The contract number

"PP1984" and the date received "21/6/84". The
sales consultant initial is "BP" and the evidence
was that that was somebody called "Benny Pinchass"
whose signature appears at the bottom of the
document as the witness to the signature of the

subscriber. An important feature to note on the
document, in our submission, is that there is only
one signature of a subscriber on it and that
signature is the signature of Neil Chidiac. There
is no dispute that that is Mr Chidiac's signature.
There were other documents that the jury could

compare it with at the time. So there is one
contract relating to the particular pager, which is

Chidiac

4/10/90

identified by number; it is signed by only one
subscriber; it is expressed to commence at
21 June 1984 and the only matter on the document
which raises any doubt or any suspicion or any
concern about it is the addition of the name
"Jacob" before the name of "Chidiac" the person who
signed it.
Now the witness to the signature, Mr Pinchass,

was, at the time of the trial out of Australia and

there was evidence of that. So he was unable to be
called to give evidence of the circumstances in which his initials came to be placed in the top
right-hand corner or his signature on the bottom of
the page and that evidence was given by other
employees of Voice Call who were called to give
such evidence as they were able to give about the
contract; about the system of work and about the
facilities that were offered. There were two
witnesses who gave evidence of those matters:
first was a Miss or Mrs Hunter and the second was a
Miss or Mrs Dries. Miss Hunter's evidence, about
the facilities that were offered, the relevant
part, is to be found at page 310 in volume II of
the application book. She gave some evidence about Voice Call and what it did and so forth and then at
line 24 she was asked:

Q. Miss Hunter, is the name Neil Chidiac
familiar to you from your employment with
Voice Call?

A. Yes, it is.
Q. Where have you heard it before?
A.

On taking messages at Voice Call. I don't
specifically remember taking a particular

message I remember the name as a familiar
sounding name of somebody - a subscriber
on our service.

Q.

You have said that each subscriber had a number?

A. That's right.

Q. In the case of this one was it the 3158?
A. 3158 was the number.

And I interpolate here that the pager itself, which related to the contract, that is the device that
was carried by the subscriber, was found at
Chidiac's house at the time of his arrest when the
premises were searched.

TOOHEY J:

Mr Cowdery, what is it that identifies 2111100 as

a relevant number?

Chidiac	96	4/10/90
MR COWDERY:	As the Voice Call number, Your Honour. Miss Hunter gave that evidence and there were	I think
formal admissions made about it.

DAWSON J: Page 308.

MR COWDERY:

The accused Chidiac made a formal admissions

pursuant to section 404 of the Crimes Act. I am
referred also to page 301 where there is evidence
by a Telecom employee, Miss Morrison, about the
number 2111100 being leased from Telecom by Page
Call International and that service continued
through the relevant time.
In addition to that, Your Honours, there were

formal admissions made and admission No 2 of the
document that was handed up makes an admission as
to that number.
Now, continuing at page 310 in the evidence of

Miss Hunter, she was asked this:
Q. If a person rang the Voice Call message number and knew the pager number of the
subscriber then I suppose that number could be
given and the message relayed? A. That's
right.

Over the page:
Q. If the person did not know the pager number
and gave a name what procedure was followed by
the operators and I am talking about 84/85?
A. The operators have the ability to
alphabetically scan for christian name -

so "Neil" would enable a person to be called up -
surname or company name. If they could be
given a clue for example Neil, all they have
to enter is NE and see what came up under
alphabetical listing under that for example.

And, of course, while the caller is on the
telephone there is the opportunity for
interrogation to get further particulars. She was
asked in the next question:
Q. If you dialled NE and up came Neville,
Nelly, Nelson and so forth what do you do
then -

and she described the screen and the information
that can be searched -
and if they could give you a surname that
sounded similar -

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4/10/90

then that would identify the person -
It is up to the caller to say who they want.
If they can only give you Neil then there
might be some trouble in finding who they want

but that of course would depend on whether or not
there were other Neils; whether or not the caller
could give a surname or something that sounded like
the surname and so on. And at page 313 Miss Hunter
was asked some questions about the accounts and
this, in our submission, is where some confusion

enters into the picture which can be dispelled. It
was put to her, at the bottom of page 312, in
cross-examination on the document exhibit 41, at
line 37:
Q. I suggest what happened was that in
November/December 1985 you were contacted by
Mr Chidiac and he told· you that that had been
transferred to him do you recall that? A. He
didn't contact me, but it is quite possible.
Q. After November 1985 he then took over that
number is that possible? A. Yes, it is.
Q. You know, don't you that these accounts are paid in advance? A. Yes, they are, that's
right.
Q. Mr Chidiac made his first payment in
approximately November 1985 that you can
trace? A. Yes.
Q. Isn't that so? A. That is so.

Now, the other evidence that relates to that is at
page 318 and the question of tracing the records of
payment for this account having been raised, and
Miss Dries gave evidence. At page 318, at the
beginning of cross-examination, at line 18, she was

asked:
Q. After you received a subpoena you made a
very strenuous search of the records I
understand - is that so - relating to Jacob
and Chidiac -
and so one has the evidence of a search being made
in both names -

A. That is right. I produced this file
initially when the police came in. Then at a
subsequent date I was asked to check for old
records.

Chidiac

4/10/90

Q. And you went to various old archives and repositories and so on? A. Yes.
Q. And you spent quite a number of hours searching? A. I didn't but I had people who
did it.
Q. Under your direction? A. Yes.
Q. Is it the fact that the earliest record you
can find of Mr Chidiac paying money into this
account is November 1985? A. I can't remember
the date -

it turned out that that was the date on the
documents to which she was referring, but it is the
date that I brought a copy of the receipt into
Court with.
Now, the evidence was then that the earliest record of payment for that contract that could be
found was November 1985. It was a payment in
advance, but there is evidence that that is the way
in which payments are made for this service from
period to period, from time to time.
The only signature on the document is that of

Chidiac. The only date on the document is

21 June 1984. The only confusing aspect of the
matter is the name Jacob and what Chidiac had to
say about that, and it is certainly open that in
his unsworn statement Chidiac tailored what he had to say about that to the known objective evidence. And that is the way it was, in fact, put.

McHUGH J: Well, if the jury accepted that it was Chidiac's

contract as from 21 June 1984, that would have been
quite powerful evidence of corroboration, would it
not in his lie, the lie in his statement?

MR COWDERY: Indeed, Your Honour. Indeed it would.

McHUGH J:

Was it ever relied on, do you know?

MR COWDERY:

Yes, it was asserted that he had lied in his

statement in that respect; in respect of the
account that he gave of the speech that he said he
gave at the wedding and how he thereby came to be
given the name of Oti, and there may have been
other matters. But certainly the jury was asked to
consider whether or not they accepted those aspects
of his statement, and if they did not then they
could regard the rejection of that material as
being corroborative to an extent of the account
given by Oti and Kwalu.

Chidiac

4/10/90

And it is clear, in our submission, that the

jury did disbelieve a number of things that he said
in his statement. They must have disbelieved much

of what he said in order to come to the verdict
that they did. That, of course, raises the

question too: how did Oti come by this number if
not in the way that he explained it?

McHUGH J: was there not some suggestion that it was also

George's number, somebody else's number?

MR COWDERY:	Not the pager number, Your Honour, no. George had been living at Asfour's address at one stage,
and so he, at the very least, had access to the telephone that was installed at Asfour's flat.

If it is suggested that Oti was given that

number corruptly and after the event in order to
fabricate a story, to concoct a story that he had
been given the number in May 1985 in Honiara, one
would at least have expected that whoever gave it
to him would have checked first to see that it was,
in fact, Chidiac's contact number at the relevant

time. If such lengths were to be gone to to
concoct a story against Chidiac, to corruptly and
criminally create a conspiracy against him, then
one would have expected that at the very least
someone would check to make sure that that was not a number that he did not acquire until November of
1985, some six months later. And yet that seems to
be the suggestion that is put on the other side of
the argument.
Now, Your Honours, the question generally of the verdict being unsafe and unsatisfactory and the
matters that have been referred to in submissions
to Your Honours require us, in our submission, to
review the evidence that was available against

Chidiac and Asfour. I would propose, subject to
any indications that Your Honours give, to do that.
I would propose also to go to those inconsistencies

in the evidence of both Oti and Kwalu and to refer
to the way in which those inconsistencies arose,
and to the significance that should or should not
be attached to them.
Your Honours, the position of the man George

has been mentioned and might I raise that at the
outset as a separate matter but linked with what

follows. George lived for a time with Asfour and,
indeed, the statement was made by Asfour that
George was a suitor of his sister and so might well have ended up as Asfour's brother-in-law.
George's identity therefore was known to

Asfour and, indeed, during the course of the trial,
inadvertently, no doubt, his full name was referred

Chidiac

100

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to in the course of cross-examination and of
address. But the point that I am making is this,
that there was no secret from Asfour, certainly,
and one might infer from Chidiac of the identity of
the man George.
The circumstances in which his identity came

to be suppressed, at least publicly, were somewhat
unusual but they were, as we understood it,
consistent with authority and it came about, as
Your Honours see from the commencement of the
transcript in volume I of the application book, by
counsel separately retained for the Australian
Federal Police coming forward and making an
application based upon an affidavit, the contents
of which were claimed to be privileged under public
interest immunity.
The privilege attaching to that affidavit was

maintained and the Crown and the accused in the
trial did not at any time have access to the
affidavit and remained, so far as I am aware,
ignorant of its contents. It might be inferred that the man George was some kind of informant.

McHUGH J: Yes, maybe he was but how does that justify an

order preventing his name being published at the
trial if he is mentioned by name?

MR COWDERY:	By itself it would not, Your Honour.
McHUGH J: No.

MR COWDERY: That, as I have said, was a separate

application that was made independently of the
trial as on a voir dire and it was an application

in which the Crown had no role, played no part. It
was a matter that the judge determined on the
affidavit that was presented to him and on the
submissions that were made by counsel for the
Australian Federal Police .. Your Honours, we just

did not become part of it. It was a matter for His

Honour.

McHUGH J:	But even if he was an undercover agent or a member of the Australian Federal Police force it
would not stop his name being used; public policy
would not prevent it.
MR COWDERY:	No, if he was not a witness.
McHUGH J:	He was not a witness.
MR COWDERY:	And it was never contemplated that he would be

a witness. If anything, from the Crown's point of
view, it might have been that he would be an
accused, given the evidence of his involvement in

Chidiac

101

4/10/90

these events. But he was never charged, so far as
we are aware and it was never contemplated that he
would be a witness. There was never notice given
that he would be called as a witness and, of
course, there was no deposition from the local
court.

MASON J: Where His Honour speaks, at page 11 of the

application book of the Crown having applied for an
order, that is a reference to the Commonwealth, is
it?

MR COWDERY:

Yes, Your Honour, that is not strictly

correct. The application was by counsel on behalf
of the Australian Federal Police.

McHUGH J:

Because you were prosecuting in the Crown in

right of the Commonwealth.

MR COWDERY:

Yes, and the counsel retained by the

Australian Federal Police was separately
instructed, not by the Director of Public
Prosecutions who instructed me, but by the

Australian Government Solicitor. His Honour does

refer, on page 12, to:

I make the orders: Publication of transcript
or summary of the evidence of a witness known

as George - I do not know where His Honour obtained the
impression that George would become a witness.

McHUGH J:

Well, he knew he was not because the second

sentence-in the first paragraph of his judgment
says:
The person referred to is not a witness.

MR COWDERY:

Yes. Well, the short submission that we make

in respect of those events is that there was no
prejudice to either accused by that course being

taken. Strictly speaking it may have been

irregular. I have not addressed that topic, it not
having been raised before today, but whatever the
situation he was well known to Asfour and no
complaint is made by Chidiac that he was prejudiced
by the suppression of his name and as I have
indicated to Your Honours, his name was in fact
mentioned in court, although not publicized beyond
it.
Your Honours, the evidence disclosed that

Chidiac came into a conspiracy that was already on

foot. It was a conspiracy - and this was the way
that the case was put - that was created primarily
by the activities of George - when I say

Chidiac

102

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"primarily" I mean in time - by his making contact
with Oti and Kwalu in Honiara.
There was evidence that was given about George

coming to Honiara, about him going to Oti to seek
his assistance to retrieve a suitcase which he

initially told Oti contained jewels and was
therefore precious to him, and for that reason he
wanted to recover it and enlisted the aid of

customs. He had travelled into Honiara from some
foreign country which I do not now remember. They got to talking and drinking together and
during the course of their discussions George
changed his story to Oti and said that the suitcase
did not really contain jewels, it actually
contained hashish and for that reason also was
valuable to him and he was very keen to recover it.
Searches were made, the suitcase was not recovered
and in due course George left.
The evidence disclosed that George in fact

spent some time in gaol, I think in Papua New
Guinea, and then returned to Australia, and that
accounted for the lapse of some years before the
next contact between George and Oti. That contact
came in May or June of 1984 when George wrote to
Oti re-establishing contact with him and saying
that he would be sending some stuff, which was the
euphemism which was used for drugs, although well
understood to the parties who used it, from
Malaysia to Honiara and asking Oti to pick it up
for him in Honiara and to send it to Sydney.
So that was the first communication in. the

establishment of what was to become an ongoing
conspiracy which encompassed four importations of
heroin via Honiara into Australian and in which
Chidiac came later and for, on the Crown case, a
limited involvement.
When he received that 1etter Oti telephoned

George, he having been given his telephone number

in Sydney. There was discussion between them.
George told him to pick up the stuff when it
arrived and to keep it in his office and to let him

know when it was there. These are matters that
are to be found principally in the evidence of Oti
and I am referring at the moment to page 8 of the

transcript of evidence. I regret that the page
numbers are to transcript numbers because I am
taking this from a document that was prepared for
the Court of Criminal Appeal and I have not been
able to transpose the numbers as yet.
George, in that conversation, told Oti that he would send some money to recover his return airfare

Chidiac

103

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to Sydney. Oti gave him two false names to be used
as addressees for the drugs in Honiara on the
packages that were being sent by mail from
Malaysia. George told Oti that when he telephoned

him he should refer to this stuff and the packages
as his "sister" and to say, "my sister has
arrived". That would be a code word that would
indicate that the drugs were there, the money could
be sent for the fares and Oti could then travel
with the drugs.
Oti told his cousin, Kwalu, about those

arrangements. Kwalu had been at that first meeting
between Oti and George and had been part of the
conversation, had shared the drinks, had been part
of the search for the suitcase - the unsuccessful

search. Oti told Wilson about this. Kwalu agreed

to go to Sydney to carry the drugs with him. That
is to be found, Oti at page 9 and Kwalu at
page 134; evidence given separately by the two
witnesses.
In October 1984, some four months later,

George again telephoned Oti. By this time he had
the false names and so forth and told him that the
stuff had left Malaysia one or two weeks ago and
that Oti should keep checking the post office. It
was to be addressed to a post office box number to
which Oti had access but in the false names. Oti
did this, page 8A, and it arrived in Honiara in due
course.
Before that happened, however, there were

telephone conversations between Oti and Asfour - to

be found· at page 9. So that was the first contact
that there was between Asfour and Oti and it
connected Asfour to the conspiracy that had been

generated and put in place by George. I
interpolate here that Your Honours are considering
two separate and different cases against Chidiac
and Asfour because they are different in some

respects. Asfour's involvement is longer in time; it is more immediate in contact and more persistent in contact between Asfour and Kwalu and I will come
to those circumstances as I go through the
narrative.
Towards the end of October 1984, Oti took

delivery at the post office in Honiara of a
rectangular package with Malaysian stamps and a
Penang sending address on it. He kept it in his office at the weekend; he opened it and he found
inside two picture frames, concealed in each of
which there were four packages of pink powder and
the colour of the powder is significant for a
reason that will appear later.

Chidiac

104

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The packages weighed approximately 800 to

1000 grams and Oti then put the packages in his
office separately from the frames - pages 9 to 10.
He telephoned George and told him that the stuff
had arrived. They agreed that Kwalu would bring it
to Sydney. George told Oti that he would send him
the money for the airfare - page 10. George then
sent Oti about $1000 for the airfare and Oti
purchased for his cousin Kwalu a return ticket from

Honiara to Brisbane. He then contacted George
again and made arrangements with Kwalu for the trip
and it was arranged that George would meet Kwalu in
Brisbane and they would travel to Sydney together.
That evidence is: Oti at page 11 and Kwalu at
page 135.

A week or two later, it now being

November 1984, Oti took the packages to Kwalu's home and taped the eight packages of drugs on to

Kwalu's body. He carried them, on this occasion,

on his legs. On 29 November 1984 he left Honiara
and travelled to Brisbane and this was the first of
the four importations - 29 November 1984. In
Brisbane he was met by Asfour and George together.
He handed over the drugs to them and they all

travelled to Sydney. Kwalu was given a bit of a
tour of Sydney; he was looked after while he was
there and returned, again, via Brisbane, he having
travelling between Sydney and Brisbane by bus,
returned from Brisbane to Honiara on 6 December
1984. That is all to be found in Oti, at page 10,
Kwalu at page 134 to page 135 and exhibits 6, 7
and 8.
The evidence was that from that date,

December 1984 until early February 1985, Oti and
George spoke on the telephone together from time to time regarding more stuff to be sent from Malaysia
to the Solomon Islands. George told Oti to collect

it from the post office, to keep it. He said that
he would send money to Oti for his air fare to

that Oti would, on this occasion, bring the stuff Sydney and it was arranged in those conversations

to Sydney. Of the four trips, Kwalu made the
first, Oti made the second, Kwalu made the third

and Oti made the fourth. They were shared between

them. That is to be found at Oti, pages 11 to 12. Another package arrived in February 1985. It
came in the same fashion, addressed in the same
way, packed similarly and, again, it contained
packages of pink powder, as had the first package.
George sent some money to Oti again and Oti, on
this occasion, carried the pink powder to Sydney,

direct to Sydney. I think on that occasion he had
some semi-official purpose for his visit and in

Chidiac

105

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Sydney he gave it to George and this time, in
company with George, was Sam Helais, the clerk to
Chidiac.
If I might just go back to that first trip

that Kwalu made, Asfour, in his statement, told the
court that on that occasion he did in fact go to
Brisbane and did, in fact, meet Kwalu in Brisbane.
The second trip, as I said, on this occasion Oti was met by George and Sam Helais, Chidiac's clerk.
The drugs were handed over to them; Oti had a
short stay in Sydney and returned to Honiara. Before coming to Sydney Oti had had some
telephone contact with Asfour at the request of
George. That is to be found at page 12. So by the
time of the second trip one· has George, Asfour and
Sam Helais all involved in the conspiracy to import heroin in this fashion.
After his return to Honiara following the

second trip, Oti had a number of telephone

conversations with Asfour. The conversations went
both ways, from Sydney to Honiara and vice versa
and in one of the conversations Asfour complained
in reference to the second trip that Oti had
completed that Oti and George had lied to him,
Asfour, about the drugs not having arrived in
Honiara.
If Your Honours just recall there was the

telephone conversation between Asfour and Oti
before Oti made the second trip and Oti told Asfour

that the drugs had not arrived. He was told to do
that by_George and when he arrived he was met by
George and Sam Helais.
Asfour obviously found out about it; was

unhappy about it and when Oti had returned to
Honiara having delivered the second shipment, he rang him and complained to him about it. He said
that he was minded to shoot George, but that that
might not be politic, because George was going to
marry his sister. And that is to be found in Oti's
evidence at page 14 and in exhibit 39, which is

telephone records. The telephone records show a
number of telephone calls from Asfour's address to
Oti's home number: one on 22 April, 1985; one on
28 April, 1985 and from Asfour's address to Oti's
work number, on 30 April and 3 May, 1985. A
telephone at Asfour's premises was connected in
another name, the name of Hannah, but there was no
dispute that it was Asfour's residence; that other
people came from time to time, including George.
In May of 1985, and this is getting close to

the time of the visit of Chidiac to Honiara, George

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telephoned Oti, the contact during April having
been between Asfour and Oti, and told him that a
man named Sam would be coming to Honiara to discuss
redirecting the packages to Sydney. There is some
slight confusion because there are two Sams who
emerge from the evidence but one is certainly
Sam Helais and the other, I think, was George's
brother, also named Sam. The reference in that
conversation, at least according to Oti's
understanding, was that it was a reference to the
Sam he had met and that is Sam Helais.
A short time later George again telephoned Oti, this is early in May, and told him that it
would not be Sam who would be coming, but it would
be Neil in his place, that is to discuss the
question of redirecting packages to Sydney. Oti
told Kwalu about both conversations and it is
significant when one looks at the evidence of Oti
and of Kwalu, that Oti at page 14 gave this
evidence and Kwalu at page 139 also gave evidence
that he was told first by Oti that Sam was going to
come to Honiara and then a few days later he was
told by Oti, "I have been contacted again. It is
not going to be Sam, it is going to be Neil." A
small but important matter of detail in the
evidence of Kwalu, relevant especially, in our
submission, to the question of whether or not all
of this was a concoction of some sort by those two
Solomon Islanders.
On 16 May there was in fact a telephone call

from Asfour's address to Oti's direct work number.
On 18 May and 22 May there were two reverse-charge
telephone calls from Asfour's address to the
Solomon Islands. The number does not appear

because they were reverse-charge calls. On 26 May
there was a call from Asfour's address to Oti's

home number. Now Oti, in his evidence, was unable

to be specific about particular calls. He gave
evidence of the communications to which I have
referred but he was not able to recite in his

evidence what was discussed on every occasion that

there was a telephone call. He was able to give
the substance of what was discussed; the
arrangements that were discussed and put in place,
but could not, in his evidence, tie them down to
the particular calls, which could be proved with
precision from the Telecom records that were
exhibit 39.
On 27 May Chidiac and his family, his wife and

two children, travelled from Brisbane to Honiara
and they had obviously travelled from Sydney,

either on that day or some time earlier, but the
evidence in the trial established that they

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departed Australia from Brisbane to Honiara on
27 May.
Chidiac himself in his statement said that that was the case. They were on a holiday to the
Solomon Islands, Vanuatu and Fiji and returning to
Sydney.
A day or so later - Oti was unable to be

specific about the date, but he knew that it was at
the end of May - Chidiac telephoned Oti at his -
that is, Oti's office - from the Mendana Hotel, and
this is not disputed, and invited Oti to come and
see him at the hotel. So the evidence was that Oti
had been told by George to look out for a man named
Neil who would come to discuss the redirecting of the packages, George by that time being well and
truly involved in the ongoing arrangements to send
heroin from Penang to Honiara to Sydney.
The evidence of Oti is at pages 14 and 15 and

Chidiac's statement page 330. The visit, on both
versions, took place. Oti visited Chidiac at the the sending of stuff, the same euphemism used by
Oti, into Australia.
Your Honours have been referred to

inconsistencies in the accounts given by Oti, the
cross-examination of Oti on the precise contents of
the conversation and so forth. But the broad
picture emerges, in our submission, that what was
being discussed was ways in which drugs could be
trans-shipped through Honiara to Sydney. According
to Oti a number of different possibilities were
discussed: by boat, by hollowed out carvings, by
packages, by hollowed out cigarettes, all kinds of
things, against the background of what had already
occurred. And Oti's evidence was that when Neil
first spoke to him he said, "George has told me
about what has been happening and we're all very
pleased. Keep up the good ·work" kind of

utterances.
So in the conversation initially with Chidiac
and Oti there was a link back to George and to the
arrangements that were already in place, and to the
scheme that had been set up and was running
apparently very successfully with the prospect of
it being repeated many times in the future - Oti
and Kwalu being fairly unlikely looking drug
couriers.
There was discussion, as I have submitted, of

various ways of concealing drugs. There was
discussion about who might go to Australia, Oti or

Kwalu. There had at that stage been one trip each.

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And it was agreed, according to Oti, that he would

bring Kwalu to meet Chidiac the next day. They had
a few drinks. There was general discussion and
they parted company.
On the next day, according to both Oti and

Kwalu - Oti at pages 16 and 17 and Kwalu at
page 140 - those two men visited Chidiac at the
Mendana Hotel. Chidiac denies that meeting and
says that it did not take place and that he never
met Kwalu. That raises the question of how it was
that Kwalu was able to identify Chidiac as the
person to whom he had spoken in Honiara in May 1985
when he came to give evidence in 1988/1989. There are discrepancies between the accounts
given by those two witnesses of precisely what the conversation was on the second occasion. Oti says
in general terms that what they had discussed the
day before, that is between Oti and Chidiac, was
repeated and at the very least one might expect, if
that evidence is truthful, that there would be a
repetition of discussion about the same
subject-matter, Kwalu being part of the conspiracy
already and being ready and willing to take part in
it in the future.
There is the statement that is common to both

accounts of the conversation on the second day, and
that is that Chidiac told them both that this was a
dangerous business. Both Oti and Kwalu - Kwalu at
application book page 140, line 15 - gave that
evidence.
On the contrary, Chidiac denied that that

second meeting took place at all. He said that he
met Oti only once; he said that notwithstanding
Oti's name having been given to him as a contact in
the Solomon Islands as somebody who might be able
to assist him as a holiday-maker and to assist him
with sightseeing, there was no discussion of that

kind; no arrangements made between them; no
invitation to Oti to show him around or to

introduce him to Solomon Islands life or whatever
it was that they were interested in as tourists.
On the account given by Chidiac he was given a

name and number, according to him, by Sam Helais
who simply came up to him having taken the

invitation or the hint in the speech at the
wedding; rang Oti at his office at the Customs
Office; made contact; had him over to the hotel for a very brief meeting; gave him some money;
sent him away and that was all that ever happened.
If any account is improbable, we would submit that
Chidiac's account is the more improbable of those
two versions and the jury must have so regarded it.

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At the second meeting, and the existence of

paper with a Sydney contact telephone number and I
the second meeting is important because of this,
have referred Your Honours to the evidence of Oti
at page 29 of the application book on that subject.
On 31 May, four days after their arrival in

the Solomon Islands, the Chidiac family left. If
Chidiac's account that he contacted Oti to give him
assistance in sightseeing and enjoying the delights
of the Solomon Islands is correct, it seems to have
been abandoned without explanation. They were
there for four days; they did nothing to follow up
the contact other than the very brief, and one
might say pointless, meeting - - -

McHUGH J: Well, except, by implication, that Chidiac says

that Oti was intoxicated and wanted to start up a
business or something.

MR COWDERY:

Yes, the allegation of intoxication was put and

was denied. The only evidence, if it be evidence,

of that was Chidiac's statement. The discussion
about starting up the business is part of the

evidence of Oti and of Chidiac. It might well have
caused Chidiac to take fright, I suppose, on one view but if he had it would be inconsistent with
his continuing in an illegal business enterprise
with Oti which is the other version.
In any event on 31 May, the day that they
left, Chidiac telephoned Sammy Helais from the

Mendana Hotel to Sydney. Sammy Helais, I should

interpolate, left Australia. He was not permitted
to leave, as I think the allegation was that was
made, or encouraged to leave; he, in fact, escaped;
got under the guard, and the evidence showed that
clearly enough and on 31 May the Chidiacs went to
Vanuatu and a day or two later, on Oti's evidence
at page 17, Chidiac telephoned him from Port Vila

and told him: ·

that the stuff -

would be -
sent from Malaysia in a week or two -

and that he would send Oti some money as soon as he
got back to Sydney.
Now that, we would submit, is consistent with

a discussion of some kind having taken place
between Chidiac and Helais in the conversation on
31 May and, perhaps, although there was no evidence
of it, some further contact between them from

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Vanuatu when he arrived there, and of Chidiac then getting back to Oti and telling him that it had been arranged; that there would be another
shipment in a week or two.
The Chidiacs eventually returned to Sydney on

6 June, but in the meantime there were two calls on
4 and 6 June from Asfour's address to Oti's work

number on 4 June and home number on 6 June. Oti
had no specific recollection of what was discussed
in those conversations. Later in June George
telephoned Oti and told him that the stuff had left
Malaysia, that it was time to start checking at the
post office, and on 14 June Helais - this is part
of the continuing contact between the
co-conspirators - was seen leaving Chidiac's
premises in Sydney which at that time were under
observation.
On 18, 21, 25 and 27 June there were more

calls from Asfour's address to Oti's home number.
If George had access that telephone, then the
possibility is open that it was George who was
making the calls, but it was in Asfour's notebook
that Oti's numbers were to be found and I will come
to that a little later because it was not until
later that that fact was discovered.
Another shipment arrived in Honiara - this is

number 3 - late in June 1985, consistently within
the timetable provided by Chidiac, within a week or
two. They were addressed in similar fashion to the
same false names, Moli and Tahai, to the same box
number, packaged in the same way, originating from
Penang, again picture frames, again four packages
behind a backing board on the picture frames, a
total of sixteen packages in the frames that were
sent, weighing between one and half and two
kilograms this time, and this time not pink powder
as before, but white powder.
That, it is submitted, is consistent with, on one possibility, Chidiac coming into an established

importation ring with an established source and
modus operandi but obtaining the powder from his
own source in Penang, it being heroin, but being of
a slightly different kind, the process of
manufacture being slightly different so as to
result in white powder rather than pink powder
which had been the pattern up till that time.
Also late in June Oti received the sum of

about $1000 by telegraphic transfer into his bank

account in Honiara. He told Kwalu that he had
received the money for the airfare and that Kwalu
who was going to make the trip this time should

stand by to carry the stuff to Sydney. On 27 June

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Oti purchased a ticket for Kwalu for Solomon
Island dollars 767, covered by the sum that had
been transferred to him, and he gave that to Kwalu.

Oti then contacted both, according to him,

both George and Neil, George with whom he had the
long-standing arrangement, Neil who had recently
come into it and who, to him, seemed to be
connected with this latest shipment, Neil having
told him that it was on the way. Chidiac denies
any further contact with Oti after leaving Honiara.
Oti's evidence, at pages 20 and 27, is that he

told both George and Neil about Kwalu's travel
arrangements so arrangements could be made to meet him. On 1 July there were two calls from Asfour's
address to Oti's home number and three calls from

Asfour's address to Oti's work number. And it was
on that same day, 1 July, that Kwalu left Honiara
with the packages of white powder, this time,
strapped to his body.
This time the route to Australia was a little

more circuitous. He flew first to Port Moresby and
stayed overnight there and on 2 July flew from

Port Moresby to Brisbane. On 2 July when he
arrived in Brisbane he went to a hotel - this is
Kwalu - and telephoned George in Sydney. About
half an hour later, Asfour telephoned Kwalu. This
is to be found in Kwalu's evidence at page 143.
So the contact was from Kwalu to George and

then a pause and then from Asfour back to Kwalu.
Kwalu told him, Asfour, that he had arrived, that
he had the drugs and Asfour told Kwalu that he
should catch the bus to Sydney and that he would
meet him at the bus terminal and there was
discussion about arrangements for that.
On that same day, 2 July, there was a

telephone call from Asfour's address to Oti's home
number. It is not possible from the evidence to
see the time of day at which the call was made but

it was on the same date that Asfour, through
George, it is put, was contacting Kwalu in
Brisbane.

On the next day, 3 July, Kwalu travelled by bus from Brisbane to Sydney.

He was met at the bus

station by Asfour. He was taken to Asfour's house

and Sam Helais arrived at Asfour's house. The
significance of that, it is submitted, is this: if
this was a shipment personal to Chidiac within the
conspiracy it is consistent with Helais, Chidiac's
clerk, coming to Asfour's home to take delivery;
with Chidiac involving himself in a protective way

cHIDIAC

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more closely in it by sending his own associate and

employee. And that is precisely what happened.
Helais came to Asfour's premises while it was

being weighed and took half of the powder away with
him, half remaining with Asfour. That is to be
found in Kwalu's evidence at page 143. In due
course Kwalu travelled back by bus to Brisbane and
then flew from Brisbane to Honiara on 8 July where
Oti once again met him.
Oti's evidence, at page 23, is to the effect

that after that trip Oti had some telephone
conversations with Chidiac, directly, regarding

payment to Oti and Kwalu. Your Honours may recall
the evidence that Oti gave of the promise of
payment of, I think, $10,000 for importation
successfully carried out.

MR COWDERY:

Chidiac told him that they would have to wait for payment. There appeared to be some problems

and in a subsequent call, again in Oti's evidence,

Chidiac told Oti that he would send some of his own

money to Oti to compensate him for the trouble. In

July, the same month, Oti in fact received $A9000

by telegraphic transfer to his bank account.

gave Kwalu $4000 of that and deposited the rest in

another account of his own.

MASON CJ: Could I just interrupt you for a moment,

Mr Cowdery, to ask you whether or not you put this
submission in the same detail to the Court of
Criminal Appeal?

MR COWDERY:

Would Your Honour just pardon me a moment, I

need to check the documents.

MASON CJ: Yes.

MR COWDERY:

Your Honour, the answer is, yes, in the form of

written submissions that were provided to the
Court.

MASON CJ: Thank you.
MR COWDERY:	The first five pages of the written submissions

contain the narrative as I am giving it to
Your Honours.

MASON CJ:

And was that in response to the long document

that Mr Bennett has handed up to us which appears
to have been put before the Court of Criminal
Appeal?

MR COWDERY:

Yes, it was, Your Honour. Not in terms in

response to it but that was part of the material to
which we were responding.

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MASON CJ:

So detailed submissions were made to the Court of

Criminal Appeal by both sides on this very issue?

MR COWDERY:

Yes, they were.

MASON CJ: Thank you.

MR COWDERY: There are just a few other facts that are

relevant to the narrative, Your Honours. The
search of Asfour's premises to which reference has
been made - the colourful allusion by my learned
friend, Mr Coorey, to entry by the sledge-hammer - that occurred on 12 August 1985. This was part of
the evidence that was led. It was in the evidence
of a Detective Lloyd and one other, I think, as
well.
On 12 August 1985 which, as Your Honours can

see, is after the third importation, and before any
of this information had come to the notice of the
police - the police were interested in Asfour for
some other purpose. There was a search warrant in
existence for his premises and entry was obtained

by breaking down the door. The premises were
searched and in the course of the search
Detective Lloyd found a notebook on or under the telephone table in the living room. There were
many entries in it. He was interested only, it
appears, in entries of Oti's name, home telephone

number and work telephone number. He did not seize
the book because there was nothing else in it of
interest and he did not know at that time the
significance of this entry. But it was Solomon
Islands; it alerted his interest; he made a note of it and he made a note of the entries on the back of the search warrant which he had with him at that
time.
He asked Asfour if the notebook was his and Asfour said, yes, it was. Without Asfour seeing
it, he wrote on the back of the search warrant the

number and put the book back in place. It was
because - and this was in the evidence - he was

uncertain of the significance of it that he did not
want to alert Asfour to the interest that he might

have in that contact. I think, really, there was
no secret about it. They were there interested in
Asfour for drug related purposes.

That document and the entry in it, in our submission, provides an important piece of
corroborative evidence. Corroborative of the
contacts between not only Asfour's telephone and
Oti but between Asfour himself. The numbers being
in Asfour's personal book kept in his flat and

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still kept there at a time long after George had
departed the premises.
Well there was a fourth importation and I do

not need to trouble with the detail of it, but it
occurred in December, 1985. This time Oti carried
the drugs into Sydney and this time he was
searched, the drugs were detected and he was

arrested and charged. He then remained in custody

and indeed is still in custody. He was not
sentenced until April, 1987, when he was sentenced
on a number of charges arising out of that

December 1985 importation. He was sentenced to
20 years imprisonment with a 10-year minimum term
and it was not until six months later in
October, 1987 that he made his first statement
telling of his involvement with others, disclosing
the name of Neil Chidiac and telling of his

involvement with Asfour. He had been sentenced on
a full basis, that is, without any discount for
giving any co-operation, other than a plea of
guilty, or of giving assistance to the police or of

giving information about other offenders. The
opportunity for him to gain any credit or any
advantage by giving information, had passed.

McHUGH J: Did the evidence reveal the circumstances in

which he came to make the October, 1987 statement?

MR COWDERY:

It does not, Your Honour, no. He was

cross-examined on a good deal of the contents of
the statement but, from memory, not on the

circumstances in which he came to make it. It was
taken at the gaol, the police having gone to see
him, but I am not sure that there is any evidence
that he initiated contact with the police or they,
by then, had received some information and followed
it up with him. There was a letter, Your Honours
have heard, taken by safe hand from Oti to Kwalu
when Kwalu having been named in Oti's statement the
police wished to interview him and to travel to

Honiara for that purpose. The evidence from Oti
was and from Kwalu was that in that in that letter

Oti told him to tell the truth, but to say that the first trip that he made was a holiday and Kwalu, in
fact, gave a detailed statement relevant to the
contacts with George, the contacts with Chidiac
and the third importation.
Subsequently when he was asked directly about

the other importations, he did disclose the truth.

McHUGH J:

So does that mean that Kwalu was interviewed in

Solomon Islands?

MR COWDERY:

Yes.

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McHUGH J: And so far as the evidence goes the only contact

between them is this letter?

MR COWDERY:

Yes.

The police went to see Oti in gaol here.

Oti said, "Well if you are going to see Kwalu will

you take a letter to him?" He wrote out a letter
and gave it to them and they carried it to Kwalu
and the letter is not in evidence, but the
secondary evidence of it is that it told him to
tell the truth, but to say that the first trip was
a holiday.
There may have been some evidence of a

telephone conversation as well as the letter. That
was the only contact. Kwalu was then interviewed
in Honiara, made admissions about his involvement
except for the first trip which he said was a

holiday. Then indemnities were obtained in
respect of Kwalu, and it was with the protection of
indemnities that he came to Australia to give
evidence. That statement was taken early in 1988.
Armed with the statements of the two men on 31
March 1988 Chidiac was arrested and charged.
So, Your Honours, that is a summary of the

evidence in the Crown case with some comments on
the way as to the significance of some of it.
There was no evidence of any direct contact between
Chidiac and Asfour, but there was evidence of
contact between Chidiac and Helais, very close
contact, a friend and employee. And there was
evidence through Kwalu of contact between Helais
and Asfour at the time of the third shipment in
July 1985.
Now, Your Honours, the inconsistencies and so

forth that have been put to you in submissions have
highlighted, in our submission, the rather
technical - I do not say that in a pejorative way,
but just to characterize them properly - the
technical approach that was taken to
cross-examination. When one looks at precisely
what the inconsistencies were, that is the

substance of them rather than the form of the
questioning and answers that elicited them, in our
submission, the picture is somewhat different.
As far as Oti's evidence is concerned, we are

able to identify what appear to us to be the
significant discrepancies in the evidence. Leaving

aside matters of detail, matters of the precise
sequence in which events occurred, matters that
could fairly be said to have arisen with the
improvement of recollection, the real
inconsistencies are these: iin the lower court Oti
had said that arrangements for the first trip by
Kwalu were made when George wrote a letter to Oti

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asking him to telephone him, and the details were

then worked out on the telephone. Now, what is the
inconsistency is that in his evidence at trial Oti
said that the arrangements for travel were also set
out in the letter, and not made in detail in the

subsequent conversation by telephone. That is one
of the inconsistencies said to be, in the
cumulative, totally destructive of the credit of
these witnesses.
Another one is that at the trial when George

telephoned Oti and told him that it was Neil who
would be coming and not Sam, George also said,
"Neil is a good man. Listen to what he says." And
he was criticized for not having said that on any
previous occasion, in the committal or in any
statement.
Another one: at the committal he said Chidiac

gave him $200 at their first meeting at the Mendana
before going in to Chidiac's hotel room. At the
trial in cross-examination he gave evidence that
the money was given to him in the hotel room. Now
that, with others, we submit, is a matter of small
moment in the overall scheme of the evidence.
Initially, Oti could not recall ringing anyone

in Vanuatu. It turned out that there were some
records that he had called somebody in Vanuatu, not
Chidiac, and later he agreed that he had telephoned
somebody in Vanuatu.
Another one: at the committal proceedings he

said that, in respect of the trip in February 1985
that is the second importation, he was not paid.
At the trial, however, he said that he was paid pocket-money by George in the sum of $3000,
reference having been made to bank records in the
meantime.
Another one: at the committal he said that

money for the air fare in the third shipment was
most probably sent by George, not an unequivocal

statement. At trial he said that the money had

been sent by Neil. The facts were that money had
been sent and received and that it had followed
telephone conversations with both Neil and George.
So, perhaps, not a matter of great moment.
Another one: in his statement and in the lower

court Oti had said that the conversation about
other methods of concealment of drugs took place at
the second meeting at the hotel when all three were
present. At his trial in-chief he said that it
took place at the first meeting, that is, when
Kwalu was not present and in cross-examination he
said he it took place at both meetings and

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Your Honours may recall his evidence that at the
second meeting substantially similar matters were
discussed as had been discussed at the first one,
they were repeated.
He was criticized also for saying, for the

first time during the trial, that Asfour had said
that he wanted to shoot George following the second
importation for not having been told that it was
coming. Something that he had not referred to in
his statements or in the committal proceedings but
which came out, for the first time, at the trial.
Now those, apart from what we would

characterize as word games, to an extent, that
were referred to in large part in the submissions
of my learned friend, Mr Bennett. Apart from those
exchanges that were semantic games they are the
inconsistencies in his evidence of any substance,
in our submission, and when one examines those
inconsistencies one cannot, in our submission, be
drawn to the conclusion that they are such as to
deprive that witness of any credit at all.
The jury was told that it was for them to

assess whether they believed the witness; for them
to choose what parts of the witnesses's evidence
they could act upon him, accept as truthful, rely
upon and for them to choose what parts they could
reject. They could have rejected all of the areas
where there were conflicts and still, in our
submission, have been satisfied on what was left
beyond reasonable doubt of the guilt of Chidiac and
Asfour.
So far as Kwalu is concerned the list is much

shorter. At the lower court he was criticized
later for not having said that Alfred wrote him a

letter after Alfred's arrest. He gave the evidence
at trial that Alfred did write him a letter and
said he had remembered that since and the reason
why he had forgotten it previously was that it had

been a document delivered to him by the police when

they came to interview in Honiara. So he did not
really regard it as a letter having been sent.
These are people, as I submitted to

Your Honours before lunch, to whom, although they
were adequate in it, English is a second language.
In the lower court, Kwalu said that Alfred

told him to say that the first trip was a holiday.
Initially in the trial, in cross-examination, he
denied that it was Alfred's idea but he then agreed
that Alfred had told him this on the telephone
after Alfred's arrest.

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In the lower court, Kwalu said it was a

mistake in his statement where he had said that
Neil had said that the meeting with the three of
them in the Mendana Hotel that the goods should be
put in a store-room in Honiara to be sold from
there. At the trial he said that that conversation
did happen and there were some other minor
inconsistencies about conversations relating to a
store-room.
Finally, Kwalu said in the lower court that

Oti told him only about telephone calls from
George. At the trial he said that he had
remembered that Oti told him that he had received
also a letter from George in gaol in Papua New
Guinea. This predates the first shipment.
Matters, in our submission, of little consequence;
certainly not matters that any reasonable jury
could rely upon as destroying entirely the credit
of the witnesses and not matters that would make it
impossible for a reasonable jury to be satisfied
beyond reasonable doubt of the significant aspects
of the evidence leading to guilt.
There was no contact between Oti and Kwalu

other than the letter and the telephone
conversation prior to and at the time of Kwalu
being interviewed in Honiara; no other contact
between them up to the time of trial. Oti was in secure custody in Sydney and Kwalu was being kept
under supervision elsewhere in Sydney. When they
were asked directly about matters, in our
submission, they unhesitatingly told the truth as
they remembered it. If they were not asked
directly about something then additional material
was not volunteered. That, perhaps, gives rise to
some of the other criticisms that have been made.
But there were no new revelations, no new
inconsistent statements made at the time of trial.
By the time the trial commenced, so far as their
recollections and their accounts were concerned the
record had been got straight by the making of two
statements in the case of both of them, I think,

and their evidence in the committal proceedings. There have been submissions made to

Your Honours that Oti had a motive to lie. We
submit, first, that no motive can be pointed to for

Kwalu to lie. It was suggested to him that he had
pointed to. Kwalu was interviewed once
been asked by Oti to tell a fabric of lies about could be
his identity and his involvement became known to
police here and when first interviewed he
volunteered a great deal of detailed, accurate
information.

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So far as the suggested motive for Oti to lie

is concerned it is said that somehow there might
have been some expectation that by fabricating a
story against a person he had met fleetingly,
nominated to him by some unknown police officer,
presumably, he might be able to be sent home during
the currency of his sentence. It is said that
because of the nature of the visitors he had at the
gaol there was something sinister, something very
fishy about it all.
But the visitors were such as one might expect

to visit a senior bureaucrat in a community such as

the Solomon Islands, where the family ties as well as the occupational ties were strong; where he had family ties reaching up into the highest levels of

government. The Prime Minister was on a visit to
Australia and took the opportunity to visit in
custody a senior official of his bureaucracy and
someone, I think, distantly related to him. The
suggestion that there was some sinister plot afoot
for Oti to be repatriated, to serve out his
sentence in more comfortable surroundings in
Solomon and that this was his motivation to tell a
very detailed, consistently expressed, lengthy
false story, implicating totally innocent people,
is just preposterous. What is improbable is the
content of Chidiac's statement. In Eade's case
there is reference to the rejection of evidence
the rejection of an account given, as being capable
of corroborating the story that it was designed to
meet and we adhere to that principle. The rather
fanciful story of the wedding speech. The account that having made contact for a particular purpose,
he did not pursue the purpose. Another
improbability is the identification of Chidiac by

Kwalu. How could that come to pass?
So, Your Honours, those really are the

submissions that we make on the unsafe and
unsatisfactory ground. All of those matters that I
have submitted to Your Honours were matters that

were available for the jury to consider. They were
all matters that were put. They were matters that
were put to the Court of Criminal Appeal and they
were matters which, in our submission, led the
Court of Criminal Appeal to use those words as they
were entitled to; a short phrase, but a significant
one, against the background of the detailed
submissions and strong contest raised generally and

including the unsafe and unsatisfactory ground. I
said earlier today that that ground was raised only
faintly and that is to, but all of the submissions
relevant to it were before the court and were made,
either in writing or orally.

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Now, Your Honours, the other aspect of the

application is the question of corroboration and I
can probably deal with this aspect very much more
shortly. There are three criticisms made, as we
apprehend it: first is that the jury should have
been told that the accomplices could not
corroborate each other. Our submission is that
they were told that, although not in those terms, but the two men, Oti and Kwalu were identified as
accomplices. If I could take Your Honours to the
summing up, reference was made to it in the
judgment of the Court of Criminal Appeal at page
358, second line from the bottom:
You as judges of fact have got to decide

whether these two self-confessed liars have
told the truth or not.

The two were immediately put into a category.
What I am bound to tell you is that being
accomplices as they are that it is dangerous
to convict on their evidence unless it is

corroborated. Not only are they accomplices,
not only are they down and out villains, not
only are they drug smugglers themselves but
they are self-confessed perjurers and liars.

And in this matter, in our submission, that
evidence has been put to the jury as a category of
evidence that requires corroboration. And it was
not necessary, in the circumstances, for His Honour
to go further and to make the rather obvious
statement, given those words that were used, they
cannot ~~rroborate each other.
The second criticism that is made is that the nature of corroboration was not explained. In our
submission, one has to look at each case in the
circumstances of the particular case. There was a
reference to corroboration at page 356 although the

word "corroboration" was not used. The word
"corroboration" was used a little later for the

first time at page 358, the passage to which I have
just taken Your Honours.
But at page 356 there are two important references, both of which were referred to by the
Court of Criminal Appeal: the first is, at
line 11:
The Crown says, well, there you have an
objective fact -

that is, the expression that is used, that is of
the meeting in Honiara -

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that is, Chidiac did, in fact, meet Oti and

Kwalu at Honiara. I will come to the
relevance of that in a little while; and
further, that shortly after that, stuff was
brought into Australia.

The relevance of it was picked up, admittedly without His Honour referring back to it in terms
but the relevance of it was picked up later when

the direction was given about corroboration. The
other reference on that page is at line 27:
The Crown says in relation to Asfour

there is independent evidence -

that is the expression used in respect of him;
"objective fact" for Chidiac, "independent
evidence" for Asfour -
by way of documents, of phone calls to
Asfour's number, that is phone calls from
Honiara to the number in Sydney, phone calls
from that Sydney number to Oti's number in
Honiara, both his home number and the two

business numbers. His Honour did not refer to the notebook and the
entries of the telephone numbers in the notebooks
but the absence of that reference could only, in
our submission, operate to the detriment of the
Crown, the disadvantage of the Crown not to the
disadvantage of the accused. And it was a matter
that was picked up by the Court of Criminal Appeal
and referred to specifically by it.

That is, as we read the summing up, the only reference to what was corroboration.

The word

itself was used. It is a word which does not have

an esoteric meaning. It is an ordinary English
word and where the expressions "objective fact" and
"independent evidence" had already been used a mere
page and a half previously, in our submission, that

is, in the circumstances of this particular case a
sufficient reference.

McHUGH J: The trial judge did not tell them, however, that

to be corroboration it must be material which tends
to prove both the offence and the implication of
the accused?

MR COWDERY:

No, he did not.

But he made reference to

corroboration in the context of references to the
function of convicting. At the top of page 359:
it is dangerous to convict on their evidence
unless it is corroborated.

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And then in the next paragraph the oft-quoted statement of line 8:
that does not mean to say that they may not be telling the truth, but what I am saying to you
is you will look very carefully at what they
said before you would hang a dog on their
evidence.

The implication being before you would proceed to find the accused guilty. But, in terms,
Your Honour, no, he did not give that direction.
But our submission is, shortly, that in the
circumstances of the particular case where the
nature of conspiracy and of the conspiracy alleged
and of the defences that had been raised had been
clearly explained to them that is not a fatal flaw
in the summing up.

McHUGH J: What you have got going for you is the fact that

no objection was taken.

MR COWDERY:

No redirection was sought.

McHUGH J: But I must say it worries me because the jury

might think that a fact that he went to Honiara is
itself corroboration of their story and it need not
necessarily be corroboration for legal purposes.

MR COWDERY:

It need not necessarily be but, again, in

Eade's case there is reference to the fact that opportunity may, in some circumstances, amount to corroboration depending on the nature of the opportunity. In that case a young girl had been lured into a house and so on.

MCHUGH J: Yes.

MR COWDERY: This may well, in our submission, fall into

that category where the nature of the opportunity,
the contact being made by Chidiac to Oti and Oti
coming to him at his invitation is an opportunity,

a contact, of a very special kind. It is more than

Chidiac just being in Honiara and bumping into him
in the street or something of that kind, especially
when one looks at the background of the telephone
calls that preceded and followed the meeting.
The corroboration in respect of Chidiac, and

this is the third criticism that is made that there
is no evidence capable of being corroboration, I
should refer to the way in which that has arisen.
At page 366 the only application faintly made

for a redirection was at line 30:

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it is our submission that there is no evidence
of corroboration in respect of Chidiac that
the was involved in this matter.

Then there seems to be a retreat from that bald
proposition:
There are little bits of evidence which
corroborate Oti's statement.

One wonders whether or not tactical considerations may have been operating in the mind of the
representative making the application. But that is
the only passage that could be interpreted as an
application for a redirection.
In the Court of Criminal Appeal it was

expressly conceded that there was evidence capable
of constituting corroboration in respect of both
accused and that concession is recorded at two
places in the Court of Criminal Appeal's judgment
and, Your Honours, might I point out that in
respect of Asfour there was no application for a
redirection of any kind. At page 366, line 44,
counsel then appearing for Asfour stated:
Nothing, your Honour.

The evidence that is capable of amounting to
corroboration, in our submission, is the evidence
of the meeting between Chidiac and Oti in Honiara,
of money being handed over; the amounts differ;
Oti says he was given $200 by Chidiac, Chidiac says

that he gave Oti $20. So money changed hands.
There is.some corroboration by admission of a
transaction at that point. It shows a connection
between them which might be regarded as more than
just the casual connection that Chidiac puts
forward.
The pager number in the possession of Oti and

the evidence that that was Chidiac's pager number

provides some corroboration for that, if one accepts the construction that I have urged upon Your Honours of that evidence relating to Voice
Call - I am sorry, the telephone number through
which Chidiac could be contacted by pager. That is
what I mean by "the pager number".
And then there is, again going to Eade's case,

the jury's obvious disbelief of Chidiac's
explanation of some of these matters is, in itself,
in some circumstances capable of amounting to

corroboration. So far as Asfour is concerned there
are the telephone calls from his premises back and
forth to Honiara and just as importantly, perhaps
more significantly, the entry in his own telephone

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book of Oti's telephone numbers. And that, in
Asfour's case, has to be coupled with a complete denial by Asfour of any contact whatsoever with

Oti. In his statement he said he had never had any
contact at all, just as Chidiac said he had never
had any contact at all with Kwalu.
Your Honours, those really are our submissions

on those two broad topics. We would ask
Your Honours to draw two distinctions in
consideration of the matter. First is a
distinction between the cases against Chidiac, on
the one hand, and Asfour on the other, because
Asfour's involvement is very much longer; very
much more closely involved with the actual
transportation of drugs. Chidiac's, on the other
hand, is an involvement of coming into an existing
arrangement of, on the Crown case, using it for his
purposes with people associated with him and his
taking half of the third shipment through his

agent, Sam Helais. And the other distinction we
ask Your Honours to bear in mind is this, that the
criticisms that might be made of the witnesses are
necessarily different. It is conceded that there
were more inconsistencies and more unsatisfactory
aspects about Oti's evidence, than there were about
Kwalu's, but - and I have taken Your Honours to
those inconsistencies that we see as being the
important ones - in considering them,
Your Honours, have to separate the two witnesses.

They are in different circumstances. The same
criticisms do not apply to them both and the
question has to be asked in respect of Kwalu, where
is his motive to lie? Where is the fundamental attack upon his credit? We submit it cannot be
made; it cannot be sustained and that his evidence
is, because there are fewer inconsistencies, more
capable of acceptance and if one accepts that
without using the evidence of one accomplice to
corroborate the other, by a process of reasoning
one is more comfortably able to accept the evidence
of Oti, regardless of the greater number of
inconsistencies.

For all of those reasons, Your Honours, in our

submission we submit that the verdicts were not
unsafe and unsatisfactory such as to call for the intervention of an appellate court. Unless there
are any other matters, those are our submissions.

MASON CJ: Yes, thank you, Mr Cowdery. Yes, Mr Bennett.

MR BENNETT: Might I have Your Honours' leave to mention the

matter of Bellamy, jointly on behalf of myself and
the Solicitor-General for New South Wales.
Your Honours, two of us jointly ask the Court if it

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is prepared to adjourn that matter to a date next
week rather than deal with it tomorrow?

MASON CJ:

Mr Bennett, the Court would be prepared to list

it for next week but only on the footing that there
is now presently doubt about whether the Court
could conclude all the matters that are listed for
this week by tomorrow afternoon. Now, that is the
only footing on which the Court is prepared to

stand the matter over until next week. In other
words, I want to make it clear it is the exigency
that it looks as if it is going to arise in
relation for listing tomorrow that is the reason

why it is being stood over until next week. It is
not being stood over until next week to meet the
convenience of counsel.

MR BENNETT: If Your Honour pleases. Your Honour the

Chief Justice asked me a question this morning as
to whether in 1968 there was a change in England in
relation to jurisdiction. The answer which I gave
this morning may not have been completely correct.
There is a reference to Whitehorn's case, at page
688, to another change which occurred in 1968 and
that is that for the first time the English Court
of Criminal Appeal was able to order a new trial
and it may have been that to which Your Honour was
referring.

MASON CJ: Yes.

MR BENNETT:

I apologize for not referring to that this

morning. My learned friend submitted that the
Court of Criminal Appeal in fact went through the
evidence, as was indicated by its judgment. In my submission, it is reasonably clear from the way it is set out in the judgment and the way the facts
are dealt with in the judgment that they are dealt
with as a matter of setting out the background
facts of the case rather than with a view to
considering whether the verdict was unsafe or
unsatisfactory. Indeed, the reference to

"unsafeness and unsatisfactoriness" is dealt with
in a separate part of the judgment.
If Your Honours look also at the document my

learned friend handed up, the document he handed to the Court of Appeal of which we unfortunately - - -

MASON CJ:	We do not have a copy of that.
MR BENNETT:	I appreciate that, Your Honour. I only have one

copy, and I propose to hand that up, with Your
Honour's permission, but simply to indicate that it

is done in very much the same way. There are four
pages towards the beginning where the facts are set
out under the heading, "Evidence". It is not put

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on the basis that this is the reason why it is not
unsafe and unsatisfactory. It is simply a
convenient way of setting out the facts, and
Your Honours will see the detail in that document
is considerably less than in my learned friend's
document.

MASON CJ:

Show it to Mr Cowdery.

MR BENNETT:

Yes.

Your Honours, at page 390, line 17, my

learned friend relied on the words, "as they were
entitled to do". In my respectful submission, what
those words show, if anything, is that
Their Honours were dealing with the completely
different question referred to in Reg v R about
when a trial judge can take a matter away from a
jury. Reg v R is reported in (1989) 18 NSWLR 74, and it is one of those appeals by the Crown which
cannot affect the accused after an acquittal. This
question was referred to the Court of Criminal
Appeal:
"Does a trial judge have the power to direct a verdict of acquittal when the trial
judge assesses the evidence is such that a
verdict of guilty based upon it would be
unsafe and unsatisfactory?".

The court answered that question:
"No".

And specifically said, at the end of the judgment, that there was a completely different set of
principles governing when a case can be taken from
a jury and when the decision of the jury can be set
aside on appeal and it is quite clear, I would
submit, that what they are referring to at line 17

is that first question. It had to be put to the
jury and they are entitled to reach a decision but
there is still a role for the Court of Criminal
Appeal which, in my respectful submission, they
have not carried out.

My learned friend described Oti as being

unsophisticated. Your Honours, there is no

evidence of that. He achieved a high position in

the Customs Department. My friend says, with no
evidence, that it was because of his family
connections; he was fourth in the department in
the Solomon Islands; his evidence does not show
signs of having any difficulty with English and the
statement that English is his second language, is
my friend's statement. That does not appear in the
evidence anywhere and, in my respectful submission,
one would not draw any inference about his lack of

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sophistication. Kwalu may have been in a different
position.
Your Honour Justice Toohey asked my learned

friend about whether it was possible that the
concession, in relation to corroboration, had had

an effect on the way the court had deal with the
matter. Your Honour, the court appears to have
drawn a line as counsel did between "unsafe and
unsatisfactory" and the submissions in relation to
corroboration and it does not appear to have
influenced that part of their judgment but, of
course, the concession was that there was evidence
which could have constituted corroboration. It is
a concession I now seek to go back on but it is not
one which, in our respectful submission, affected
the arguments on any of the other issues.
My learned friend suggested, at one stage,

that I think there may have been corroboration in
the fact that there was contact between my client
and a man who was a drug dealer. But, of course,
drug dealers do not walk round in cocoons with
little signs on them saying, "drug dealer" so that
anyone who deals with them is thereby, in some way,
corrupted and one must always bear in mind that
evidence can only be corroboration if it ties the
accused to criminality in some way.
My friend referred to the reference to

credibility in Chamberlain's case at page 537
point 5. The important matter to note about that
passage is that the word "generally" was used; in
other words, the Court specifically took into
account that there may be cases where credibility
is a sufficient basis and that appears at page 534

at point 5. The word "generally" is the first word
in the line and, in our respectful submission, that
is the important word.
My friend submits that at page 390 the Court

of Criminal Appeal applied the correct test but,
Your Honours, if one looks at the words it is
perfectly clear that the reference to the judges'
favourable summing up is given as the reason why no
further inquiry is necessary. At line 6 they say:
The great difficulty -

not one difficulty or one argument against -
of the appellants in relation to this
submission is the very emphasis placed by the

learned trial judge ..... credibility ..... If
there was ever a case -

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et cetera. In my submission, it is clear the court
has regarded that as exonerating it from its normal

duty. My learned friend then went to the

submissions in relation to the Crown case. So far
as the phone call from Vanuatu is concerned, I
accept there may well be difficulties in finding
records of such a phone call, but there was no
evidence of such difficulties, but it would have
been a simpler matter, one would have thought, at
least to have checked the hotel records where
Chidiac stayed to see if there was a phone call to

the Solomon Islands. The Crown did not even
produce any such evidence.
More importantly, my friend referred to

conversations between Chidiac and Oti on the phone.
He referred to them as if they were objective

facts. I accept that is his right as an advocate
but one must remember that those telephone calls
were all denied and that there was not a single document produced from Telecom showing any such phone call to any of the relevant numbers although
evidence was replete with phone calls to Asfour's
number which was also shared with George, as
Your Honours recall. So, again, there was a
complete absence of evidence that one would have
expected to find.
My learned friend submitted that there was

evidence that Mr Pinnychis was out of Sydney. I
say this subject to correction because there may
have been something else that I have missed. But
at page 311, line 40, Mr Mccrudden said to the
witness Hunter:

Q. The person who made out this agreement,

Mr Benny Pinnychis. Where is he? A. He is
in Sydney.
Q. Still working for you? A. That's right,
yes.

And the Crown did not call him. My friend said

there was evidence he was out of Sydney. If there
was I say that subject to correction but I am not
aware of it.

TOOHEY J:

Mr Bennett, was there any evidence as to how long

before the trip taken by Chidiac to Honiara had
been planned?

MR BENNETT:

No, Your Honour, there is no evidence of that.

Mr Chidiac said, as I recall, that it was taken but
he does not - no, there is no evidence of that,
Your Honour. It is also significant, of course,
that there is - my learned friend talks about money
being sent, there was not the slightest bit of

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evidence connecting Chidiac with any of the money
that was sent at any stage.
Your Honour Justice McHugh put to my learned friend the suggestion - and my friend picked this
up - that if there were lies in the statement from
the dock that could be used as corroboration as, of
course, they can, but there was no evidence
contradictory of anything that was said from the

dock except Oti and Kwalu. So there is an element
of circularity in suggesting that one can

disbelieve it and thereby find corroboration. Of
course mere disbelief of a statement is not
evidence that the statement is untrue and
Your Honours will be familiar with those cases:
Gauci v The Commissioner and various other cases.
My learned friend then went through the

history of the matter. I will not go through that
in detail except to refer to one or two minor
matters in relation to - - -

McHUGH J: Just to give you an opportunity to answer it.

What I had in mind was your client's statement that
he did not sign up until 1985.

MR BENNETT: But, Your Honour, the document does not suggest

that he did. The document is totally silent as to
that.

McHUGH J:

I am not sure about that. There is an inference

open to the jury that it was always his document.
If you just looked at the document itself you would
say the contract was entered into on 27 June or
21 June, whenever the date was that is on it. His was the only signature on it and there is the word

"Jacob". Why could not the jury form the view that
he was always the subscriber?

MR BENNETT: Well, Your Honour, if that were so why are the

two names in different handwriting, clearly written
at different times and why are there no records of

earlier payment by Chidiac. There is no evidence
either way, I should say, as to earlier payments by

Jacob. My learned friend submitted that the
evidence was that she could not find any records of
earlier payments. That is not quite right. What
she said was in answer to a specific question,
there was no record of any earlier payment by
Chidiac and that is all that was explored.
That answer appears at page 318:

Q. Is it the fact that the earliest record
you can find of Mr Chidiac paying money
into this account is November 1985?

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And she agrees with that. My friend asked me to
refer to line 20. That does not answer it. She
said:

A. I produced this file initially when the
police came in. Then at a subsequent date
I was asked to check for old records.

She does not say, at any stage, she has not found

any records of any payments by Jacob. But whether
she did or she did not, the important point is that
the document is totally consistent with the
contract having been taken out by Jacob, for some
reason not signed or that copy of it not signed,
and when it was transferred to Chidiac, the
opportunity being taken to have it signed and there
is nothing inconsistent with that in the evidence
and the person who might have given that evidence,
Mr Pinchass, one would expect the Crown to call, is
not called.
My friend made a point about Kwalu identifying

Chidiac. Now, Your Honour, however unintelligent a
person is and however stupid he is and however
unfamiliar with the ways of the world, one would
have thought when there were two accused in the
case, one of whom on the evidence he knows, and he
is asked to identify Mr Chidiac in the courtroom,
is unlikely to have very much difficulty doing so
and one cannot seriously suggest that that in some
way proves that he is telling the truth or
corroborates it, otherwise how could he possibly
have done it?
My friend then says it is improbable that

Mr Chidlac would not have pursued the question of having Oti show him around the island or do whatever he was supposed to do. But Mr Chidiac

gives a reason for that and spells it out. He says
in his statement that he does not like people who

are intoxicated, who drink too much. He was
drinking too much. Clearly, he turned out to be

something of a drunken nuisance rather than the

sort of contact he had been expecting. In any
event, of course, there had been the conversation

about the business which was undesirable. In my
respectful submission, there is ample explanation
of why he did not pursue the matter.
My friend then referred to numerous matters in

relation to telephone calls and the like. All of
them are uncorroborated evidence of Oti, and all of
them are denied.
My friend referred to Oti having had his trial

completed at the time. Your Honour, the fact was,
as I understand it, that there was an appeal

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pending and indeed, still is by Oti against
sentence.
My friend referred to the inconsistencies as

being technical matters and matters depending on verbal plays. I am not going to go through them

again. Your Honours have seen them. Your Honours
have seen the list. In my respectful submission,
they cannot reasonably be so described. Obviously
some of them, and my friend picked some of the more
minor ones, may be in that category, but the vast
majority of them, the making of statements and then
denying them and denying he had said them a few
sentences later cannot be explained on that simple

or verbal basis. And I have taken Your Honours to

the passages. Your Honours have seen them.
My friend submitted Kwalu had no motive to

lie. Your Honours, he had three motives. He had
first the indemnity, which was no doubt very
valuable to him because otherwise he could have

been extradited and charged. He had secondly the
fact that Oti is a relation of his and no doubt he
was anxious to do what he could to back him up.
Thirdly he was, of course, called as a corroborator, and the one thing he did not do was
corroborate, and I have given Your Honours the
details about that.

My learned friend used the phrase

"consistently expressed" in relation to the

evidence of Oti and Kwalu. In my respectful
submission, it would be hard to find a more
inaccurate submission by counsel in the records of
this Court.
In relation to the conspiracy direction - the

co-conspirator's direction - the first two matters,

I think, are sufficiently dealt with. My friend
says that there is a reference to the matters said
to amount to corroboration but, of course, as
Justice McHugh pointed out to him they are not tied
in to the direction on corroboration.

My friend said that opportunity can amount to

corroboration. Certainly in a strong case it can;
in a case where opportunity is something which is
improbable otherwise, but this is a case where the
contact which was described by Chidiac in his
statement, is one which is innocent and as to which
his story is consistent.

McHUGH J: But it is not innocent.

I mean, here the witness

tells a story about entering into a conspiracy to
import into Australia taking place in a hotel in

Honiara. The first thing you would say is, "Is
there any evidence this other person was there in

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Honiara in this hotel room? And the accused
supplies it himself. So, it must be corroboration.

MR BENNETT:

Your Honour, it is corroboration in the English

sense of the word that it is a piece of his
evidence which is shown to be true, although being
common ground one wonders how much value that has.
But the important thing is the evidence which is
admitted to be true, the evidence which is
corroborated, is not itself incriminating evidence.
It does not, in any way - - -

McHUGH J:

It does not have to be incriminating evidence.

If it was you usually do not need the primary
evidence. All it has to do is confirm the story. confirm the commission of the crime, and it does.

MR BENNETT:

Your Honour, the phrase used in Baskerville,

as I recall, Your Honour, is that it must be
evidence - page 667 line 7:
which affects the accused by connecting or

tending to connect him with the crime. In
other words, it must be evidence which
implicates him, that is, which confirms in
some material particular not only the evidence
that the crime has been committed, but also
that the prisoner committed it.

Your Honour, in my submission, it does not do that. To show that he had a conversation with the - it is

common ground the conversation occurred. The
accomplice says, "It was a conversation where we

discussed drugs". The accused says, "It was an

innocent conversation." In order to find
corroboration of the accomplice's evidence it is
not sufficient to say, "Well, we know it did take
place. You've admitted it and here's the evidence

it did". One has to go further and show something
which implicates the accused with the crime and
there is nothing that does that here.

That is the reason, we submit, that that

cannot amount to corroboration. If it does, of
course, it is, as was said in that early case, a
very light corroboration which requires the
clearest possible direction and that is what was
not given.
My friend then submitted that the $20 was

corroboration but, of course, the $20 is the

opposite of corroboration. No one would suggest
that $20 was proper payment or even proper
part-payment for the sort of drug services being

rendered here. It is not the amount which Oti
alleges, of course. It is clearly consistent with

Chidiac

133

4/10/90

trying to get rid of an inconvenient drunk by
offering him $20 to go and buy a beer and leave the
man alone.
It is certainly not corroboration of the story

and to say, "Well, he agrees that he gave him
money, therefore there is corroboration.", is, in
my submission, really playing with words.

GAUDRON J:

Mr Bennett, could I put this to you:

why would

it not be sufficient in a conspiracy charge for the
evidence to corroborate an overt act of the
conspiracy? What else could corroboration go to in
a conspiracy charge?

MR BENNETT:	Your Honour, it would have to be some part of the overt act which had a criminal element.	The
overt act here is the conversation, not the

meeting. The meeting is something which may be

criminal or may not be criminal. It is not on
Chidiac's story; it is on Oti's story. That is neutral. It is what is said at the conversation
which is the overt act and that is something which
is not corroborated in any way.

GAUDRON J: Is that right? The conversation, if accepted,

would be direct evidence of a conspiracy, would it
not?

MR BENNETT: Yes, Your Honour. But to say that a

conversation took place between these two people
without more, where there is an explanation for it
and a sensible explanation, is, in my respectful
submission, something which does not amount to
corroboration. But even if one takes the view that
there is.doubt, it emphasizes the importance of the
judge telling the jury what corroboration was
because they have no idea, they are not given any
idea of the test laid down in Baskerville or as to

what corroboration could be. May it please the
Court.

MASON CJ: Thank you, Mr Bennett. Mr Coorey.
MR COOREY:	Your Honours, the first point is that the Crown

seems to be looking to other evidence, in a sense,
to support what Oti and Kwalu have said.
Your Honours, if I could just leave the reference and perhaps just put the page. In Kilbourne's case, at page 746 - it is in the list
of authorities - at line F:
Corroboration can only be afforded to or by a witness who is otherwise to be believed.

Chidiac

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4/10/90

That is, Your Honours, that the Crown has the onus
of establishing that they are believable before you
go to the corroboration in a sense. What the jury
would have had to do was, at the close of the case,
Your Honours, at the finish of the case the jury
looks back to see if the accomplices are
believable. If the accomplices are not believable
that is where it ends; one does not even go to the
corroboration because you cannot corroborate what
is not believable. If I could just leave that
reference with Your Honours.

Your Honours, finally, the notebook. The

Crown relies upon the notebook as the piece of
evidence against Asfour. It is not suggested by
the Crown that the telephone account is strong

corroboration. The Crown accepts that George used
that telephone and the Crown accepts Oti's evidence
that George used that number. Indeed, Oti said
that himself in evidence that George gave that
number so that the telephone accounts of Asfour

would be minimal. The notebook is the only real
corroboration.
But, Your Honours, the notebook - my friend,

the Crown, referred to it as a personal notebook.
Indeed, it is described at page 296, at line 25,
as:
just a normal one you could buy at a
newsagent.

It has never been described as a personal notebook.
Indeed, it was somewhere near the telephone or on
the telephone table which is consistent with George
as the man who gave that telephone number to Oti.
Thank you, Your Honours.

MASON CJ:

Thank you, Mr Coorey.

The Court will consider

its decision in this matter.

AT 4.42 PM THE MATTER WAS ADJOURNED SINE DIE

Chidiac

135

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[1990] HCATrans 226

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

submission, that does not make a difference.	May I
put this extreme - - -

submission, that is not always the case.	May I
just put this extreme case to Your Honours.	We put

Purnell on criminal law and Your Honours see on the	second page of the two pages I have given
Your Honours, the first page just has the heading
"Verdict unsafe or unsatisfactory" and on the
second page, the second paragraph:

have been accepted.	It is a pure credibility case
although in reverse.

While it must not be supposed that the mere	fact that the judge who tried the case does
not approve of the verdict is a sufficient
reason for asking the Court to set it aside,
it is a factor for consideration.
Well, there is no doubt what His Honour

to some of these cases.	He is very critical of the
English decisions.

that all the material to	which I have referred
was put before the jury.	no one criticises
the summing-up -

girl's evidence, the judgment continued:]	The
matters referred to, in our view, lend

the credibility of Clarke and that is set out.	And
it is quite clear that the attack which was made

consistent with your client's guilt.	Your client
did not deny that on oath.

evidence, and it too is such as to attract the	submission that has been made, that is to say,
that this Court, although finding no error on
the part of the trial judge, should, nevertheless, exercise its powers to quash
this conviction on the basis that it would be
unsafe or dangerous to allow the conviction to
stand.

case which is squarely in point.	It is the Court
of Criminal Appeal of New South Wales.	It

it as quickly as I can.	I really have almost
concluded that part of it.

Q. You paid them, as I understand	from their
receipt on 26/6, the sum of $767.	Would you
like to show me where that occurs	in your bank
statements, Mr Oti? Can you find	it? A. No,
sir.
Q. You paid them in cash, didn't you?	A. Yes,
sir.

him ..... That is a lie, correct? A.	Yes,
because Alfred rung me.

trip to Sydney was a holiday? A.	Yes.
Q. That was a lie? A. Yes.

Q.	Mr Kwalu, why did you tell the court
before that Alfred had told you to say it was

nature of that meeting.	Now, was the witness
shaken on that at all?

this:	"Q.	What did Alfred tell you on the
telephone ..... ".	Your answer was:	"He said

Q. Yes, that is what he said on	the telephone
all right, and a minute ago you	said he did
not? A. I made a mistake, that	is what he
said.
Q. That was a mistake all right?	A. Yes.
That is what he tell me to say.	He just say
you carry it in the basket.

carried the drugs in a basket and you said no
you did not? A.	Yeah, but Alfred tell me.

too quick to answer the question.	Have I got
that right? A. Yes.

Q.	Did he say anything about that number?
A.	Yes, "If you ring up, and most of the time

Q.	You and Alfred went to the Mendana Hotel?
A.	we ..... give a knock then Neil open the

A.	We stay in the room about half an hour.
A.	After we left the room, after Neil had left the room, Neil told us, "Be careful,

Q.	Is there anything else ..... ?
A.	In the room I saw two kids with Neil, two kids and his wife, but they were separate

occasion, with one or two additions and he gives
those additions.	He says nothing about what Kwalu

already told me .....	I rang him up and I told
him who I am.	He didn't have the faintest
idea who the hell I am.	He said, who is Neil

second room.	He came inside I offered him a
beer.	I said "I won't be too long I will get

didn't need any more drinks at all.	He came
in fully intoxicated.	We chated for a little
while.	He spoke about the island -