Chidiac v The Queen; Asfour v The Queen

[1990] HCATrans 225

1n	-:l, AUSTRALIA,1ll-
-'.}}.)-~)>~-«(«'-'-

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

Chidiac 1 3/10/90

MASON CJ DAWSON J TOOHEY J GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 OCTOBER 1990, AT 3.45 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

with my learned friend, MR R.A. BONNICI, for the applicant Neil Chidiac. (instructed by Bolzan & Dimitri)

MR K.P. COOREY:  If it please the Court, Your Honours, I

appear for the applicant.	(instructed by Yvonne
Swift & Co)

MR N.R. COWDERY, QC:  May it please the Court, I appear with

my learned friend, MISS E.A. WILKINS, for the Crown

in both matters. (instructed by the Commonwealth

Director of Public Prosecutions).

MR BENNETT:  Your Honours, I hand up the outline of

submissions.

MASON CJ:	Yes, Mr Bennett.
MR BENNETT:	If Your Honours please. Your Honours, I also

seek leave to file in the Court an amended notice

of appeal. There are two fairly minor alterations

to it in that grounds Sa and lla are sought to be

added. Sa is a matter I will come to at the end of

my submissions, perhaps I might defer it at the

moment; lla is, in a sense, the principal one-

although it may be said to be accommodated by

ground 2 in one sense.

Your Honours, the major problem in the present

case was this:  it is the classic case in which the

evidence called by the Crown is such that any

verdict of guilty would have to be unsafe and unsatisfactory on the basis of that evidence.

Because of a decision I will take Your Honour to in the Reg v Rand a number of other cases, the view

presently taken is that it is not open to a trial

judge to take a case away from a jury where there

is evidence to go to the jury but a verdict would

be unsafe and unsatisfactory. Accordingly, the

judge did hear all that he could.	He gave an
extremely favourable summing up.	He told the jury,
as Your Honours will see, that the two principal

prosecution witnesses upon whom, virtually, the

whole of the case rested were men who were self

confessed liars and perjurers; there were

accomplices of course and he said, indeed, that he

had not in his eight years on the bench come across

such liars as those two men and I will show

Your Honours that that, indeed, is something of an understatement. Had His Honour been on the bench

50 years he would no doubt have been able to make

the same comment.

There was, I will show, no other evidence

against the accused, Chidiac. He gave an account

in his statement, which I will demonstrate to

Chidiac 2 3/10/90

Your Honours was totally consistent with the whole

of the objective evidence and, of course, totally

exculpatory. It was, of course, inconsistent with

some of the evidence of the two men I have

described. Your Honours will see when Your Honours

look at their evidence that they are men who come

into the witness box and contradict themselves in

two or three successive questions and then deny

that they have done so; who, on the evidence, one

has told the other to tell certain lies, who admit

to the fact that they change their story because it

suits their evidence and so on.

In that situation, we submit, it is a classic

case - although there is a case to go to the jury,

because there is evidence of guilt in the evidence

of these two people - of unsafe and unsatisfactory.

The Court of Criminal Appeal said, in a very short

paragraph, "This cannot be unsafe and

unsatisfactory because you got a favourable

direction.	The judge told the jury what liars they
were.	He, in effect, told them that a verdict

would be unsafe, so how can it be?" And we submit

the special point in this case is that a favourable

direction is no answer to an appeal on the grounds

that a verdict is unsafe and unsatisfactory. That

is the short point of law which arises. I can

demonstrate very quickly to Your Honours from

authority in this Court the appropriate test for

unsafe and unsatisfactory if, indeed, it is

necessary. The leading case is the decision of

this Court in Morris v Reg, (1987) 163 CLR 454,

which applied a different aspect of Chamberlain's

case to that which Your Honours have been concerned

with ear.lier today.

In the judgment of the majority in that Court,

Justices Deane, Toohey and Gaudron, Your Honours at

pages 472 to 473 said this. Starting at page 472

at the first full paragraph on that page:

Under a provision such as section 668E of the Criminal Code -

and that is substantially the same as the relevant

provision in New South Wales -

a Court of Criminal Appeal may set aside a

verdict that is unsafe or unsatisfactory

notwithstanding that there is, as a matter of

law, sufficient evidence to support it:

There is a discussion about Whitehorn and I will

not take Your Honours to it.

The test as expressed in Chamberlain No 2

by Chief Justice Gibbs and Justice Mason,

Chidiac 3/10/90

suggests that a verdict which in the view of a

Court of Criminal Appeal is unsafe or

unsatisfactory is necessarily a verdict that

is unreasonable, or is not supported, at least

upon the requisite standard of proof, by the

evidence. For our part, we would think that

there might be verdicts falling within the

concept of miscarriage of justice, as that

expression is used in the common criminal

appeal provisions, by reason of some defect or

weakness of the evidence even though on the

evidence it was open to the jury to be

satisfied of guilt beyond reasonable doubt -

Well, that goes further than I need to go -

e.g., where there is some feature of the

evidence which raises a substantial

possibility that the jury may have been

mistaken or misled. Whether or not this be

so, it is clear that the question whether a

verdict is unsafe or unsatisfactory involves a

Court of Criminal Appeal undertaking an independent examination of the relevant evidence to determine whether it was open to

the jury to be satisfied beyond reasonable

doubt as to the guilt of the accused. That

function is not discharged merely be a

consideration of whether there was a

sufficiency of evidence to sustain a

conviction, for it is clear that a verdict may

be unsafe or unsatisfactory notwithstanding

that there was evidence sufficient to entitle

a reasonable jury to convict -

and so on. Then at page 474 in the last full

paragraph on the page at point 8:

Because the Court of Criminal Appeal did

not make the independent assessment of the
evidence required of it, we are of the opinion

that this is a proper case for the grant of

special leave to appeal.

Your Honour the Chief Justice expressed similar

views. I will not take Your Honours to the

passages unless Your Honours wish me to but they

appear at pages 461, 462 and 463.

Now, in the present case what the Court of

Criminal Appeal did was, in our respectful submission, to take a totally different view. It

appears at page 390 in volume II of the application

book. Your Honours will see at - there is only one

paragraph dealing with the problem and it commences

at line 6:

Chidiac 3/10/90

It was also submitted on behalf of the appellants that the verdict of the jury was

unsafe and unsatisfactory.

The two appellants are combined in this area although, as Your Honours will see, that is not

entirely a correct approach:

The great difficulty of the appellants in

relation to this submission is the very

emphasis placed by the learned trial judge in
his summing up on the problems relating to the
credibility of the principal Crown witnesses.

If ever there was a case in which the jury had

their attention well and truly directed

towards such problems of credibility, this is

it. 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 - I would add "and the absence of anything else", but

I will come back to that -

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 standing in the way of a resolution of the issues ...... Once the jury

decided, as they were entitled to do -

we stress that word -

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.

Your Honours, that is simply, we would submit, a

misapplication of the principle and it is as simple

as that.	The unsafeness and unsatisfactoriness
cannot be cured by favourable direction.

May I now take Your Honours to some of the features of the evidence which demonstrate this and

Your Honours will see at the top of page 2 I have

referred to a number of passages. They are all

fairly brief and I will do this as quickly as I can. Your Honours, I do stress that these are

merely examples. There is almost no page in the

transcript at which there is not some contradiction

or something unsatisfactory in the evidence of

these people.

May I just point out to Your Honours, perhaps

before I take Your Honours to it, what the trial

Chidiac 3/10/90

judge himself said about them. I have referred to

it briefly but I should show Your Honours the

actual passage very quickly. At page 359

His Honour said this at line 6 - volume II:

I have been sitting on these courts for

something like eight years and I have never

heard two witnesses so readily admit that they

have lied on oath. 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. Really,

it is really appalling and you heard it all as

much as I did.

And a couple of pages before at the bottom of

page 357 at line 27 His Honour said:

There is no doubt that Oti and Kwalu are accomplices, on their own statements they are

drug runners. They are hardly the sort of

people that you would want to introduce to the

local Vicar, let alone want to bring home to

meet mother, they are crooks, out of their own

mouths they are evil people, they are drug

runners.

Oti is a man who is fourth in line of

command at the Customs Department of the

Solomon Islands, he is a customs official,

related to the Prime Minister, a stranger

comes to him, through a taxi driver -

et cetera.

Your Honours, we will be submitting that,

surprising though it may seem, what His Honour said

was actually an understatement.

DAWSON J: The trouble is, Mr Bennett, that if the evidence

was inherently unbelievable, such that the jury

should not ..... on it, it would be a case which

ought to be taken from the jury. There was no

evidence, in effect. I mean, you leave it to the

jury on the basis that they can adopt the view that

it is truthful, and if you leave it on that basis

they are entitled to do so.

MR BENNETT:  Your Honour, the whole basis of unsafe and

unsatisfactory is that they are entitled to. It

cannot be taken from the jury, but the remedy is

the appellate court. And we submit - - -

DAWSON J: That is asking the appellate court to decide

questions of credibility which, of course, it will

not do.

Chidiac 6 3/10/90

MR BENNETT:  Your Honour, with respect, it is not quite

deciding questions of credibility. What the

appellate - - -

DAWSON J: That is entirely what the case turns on.

MR BENNETT:  No, Your Honour. It turns on something

slightly more than that. We submit where you have

evidence with, as I will show, nothing to support

it, of a person who repeatedly lies about almost

every aspect of the case - and I should mention one

other feature and this perhaps goes to what

Your Honour is putting - that in the part that

concerns the accused there is one conversation at

which the three are said to be present. The

accused said it did not take place at all, but the
two of them say it took place. They each gave a

version of that conversation incriminating the

accused.

Your Honours will see there is not a single

feature in common in the two versions against the

accused. Completely different aspects of drug

running are said to be discussed by one and by the

other, and neither says the other was discussed.

So it is not only a case of there not being a

case in the sense that they are two liars who give

the evidence. It is a case where their own

evidence internally as to the very matter which is

said to be the offence has no common features

whatsoever.	We do not even know which one was
accepted.

DAWSON J:  It still does not solve your problem. What you

are really saying looking at this case, there was

no evidence on which the jury could rely.

MR BENNETT:  No, Your Honour. I say - - -

DAWSON J:	You are saying that. And yet it is left to the jury on the basis that they can select and rely on
portions of the evidence.
MR BENNETT:	I say there is no evidence on which a jury

could be satisfied beyond reasonable doubt.	It
could say as a matter of - - -

DAWSON J: But you see you cannot say that because, in fact,

if you select out pieces of the evidence and accept

some of it, it could, as the court pointed out.

MR BENNETT: That, I submit, is the very inquiry which is
made in unsafe and unsatisfactory cases.

DAWSON J: But what you are saying in the end is, "You could

not rely on this evidence at all".

Chidiac 7 3/10/90

MR BENNETT:  I do not need to go that far, Your Honour.

DAWSON J: Well, you do.

McHUGH J:  You do. I mean, you are saying this evidence, if

accepted, would prove the case beyond reasonable
doubt, but having regard to the character of these

people, having regard to the inconsistency between

their evidence, it would be unsafe and

unsatisfactory to let a verdict stand, just as in

an identification case a witness says, "That was

the man", but this Court and other courts have said

nevertheless it would be unsafe and unsatisfactory

to let the verdict stand.

MR BENNETT:  I would accept everything Your Honour says,

except the words "beyond reasonable doubt".

Certainly, one can say, looking at their evidence,

taking particular answers and ignoring the general

credibility, that there is evidence and if that

evidence was true, it would establish guilt beyond

reasonable doubt.

McHUGH J: That is what I put to you.	I said - - -
MR BENNETT:	No, Your Honour, there is a missing link.
McHUGH J:	"If accepted" was the qualification.
MR BENNETT:	The missing link is that one could not be

satisfied beyond reasonable doubt that it was true,

that is the missing link. If one accepted that

evidence, well, we would be satisfied beyond

reasonable doubt, yes, and, certainly, that is

evidence. and the acceptance of that evidence is a

jury question but - - -

McHUGH J:  I think there may be a semantic difference. It

is not evidence that you find beyond reasonable

doubt, it is guilt.

MR BENNETT:  Yes, but in a case where the only evidence is

particular evidence, one must say, "Having heard

this man give this evidence, could one be satisfied

beyond reasonable doubt?", and I will show

Your Honours that one could not.

McHUGH J: As to these facts.

MR BENNETT:  Yes, Your Honour. One could not be - - -

McHUGH J: Yes, it is the facts or the -

MR BENNETT: It is ultimately a question of facts. There is

no doubt of that. It is a question of fact that is

the exception, it is the one case where the

appellate court will look at the question of fact.

Chidiac 8 3/10/90

McHUGH J:  I think you are probably going to push this case

further than any case that has gone before and that

you have got to say that the Court can interfere on
the ground that reading the transcript it would be

unsafe for a jury to accept these witnesses as

credible witnesses.

MR BENNETT:  Your Honour, it is a verdict which in the older

days, perhaps, would have been described as a

perverse verdict. When one looks at the cases on

unsafe and unsatisfactory, most of them, I submit,

do look at the nature of the evidence and look at

the case as a whole and say, "Well, could one be

satisfied beyond reasonable doubt of that guilt?".

One does not assume the truth of the evidence and

then say, "Assuming its truth, can one be satisfied

beyond reasonable doubt?".

MASON CJ:  Do any of them look at the question of

credibility?

MR BENNETT:	I understood a number of them did, Your Honour, and in the morning I will have a table for
Your Honours showing which ones looked precisely at
that.  I had not sort of isolated the question
quite in the form that it has been put to me at the
moment but, Your Honour, certainly it is my
submission that they do go that far.
May I now take Your Honours quickly to the relevant passages in the transcript? The first one
is at page 39 at line 35.  My predecessor asks
Mr Oti, the first of these people, this line of questions:

Q. Before I come to that because I would have to go back a bit for it to make sense, you

have got a concept, haven't you, of honest

dishonesty, haven't you? A. Sometimes, yes.

Q. And you mentioned honest dishonesty on

several occasions at the lower court? A.

Yes, sir.

Q. What, tell the jury what you mean when you

say honest dishonesty? A. What I mean was

that the dishonesty can be verified if I have

reasons for the dishonesty.

Q. Dishonesty can be verified if you have

reasons for the dishonesty is that right? A.

Yes.

I think by verified, he means justified, but I will go on:

Chidiac 3/10/90

Q. In other words, one may be dishonest if

one has a good reason for it? Clarify, one

may be dishonest if - can you finish that one?

A. If the dishonesty serves some benefit for

the other person.

Q.	So one may be dishonest if that dishonesty
may benefit someone else? A.	Yes.

Q. Or yourself? A. Not necessarily myself -

and goes on about that. In line 15:

Q. It is one of the principles that you used

when you were giving your evidence, isn't that

so? A. Yes, sir.

Q.	You would conceal things, isn't that so?
A.	Not exactly concealing, but suppressing.
Q.	Which gave a totally different picture in

the end as a result of that suppression, isn't
that so? A. Yes.

Q. You were quite happy to let that dishonest

suppression remain because it suited your
purpose -

he is talking about him giving his evidence,

remember -

isn't that so? A. Yes, sir.

On page 41, line 5:

Q.	So now you concede, don't you, that you
told lies under oath, don't you? A.	Yes.
Q.	You admit you told lies under oath? -

Your Honours will see that is important because in

a moment I will take Your Honours to a passage

where he says he has never told lies on oath:	You also admit, don't you, that you told lies
to the police? A.  I can't recall, sir.

Your Honours will see in a few minutes, he says, "I

told lies to the police, that was all right, but I

don't tell lies on oath".

DAWSON J: That is a consistent approach at least,

Mr Bennett.

MR BENNETT:  Yes, but it is not consistent with what he is

saying here. It is consistent to say, "I tell lies

to the police but I tell the truth on oath".

Chidiac 10 3/10/90

DAWSON J: But that is not an uncommon situation with

witnesses in criminal cases. They say, "Yes, I

tell lies when it suits me".

MR BENNETT:  Yes.

DAWSON J: That is what he is saying.

MR BENNETT:  But the point I am making is, he is at this

point saying the opposite to that, but may I go on?

Having said he cannot recall if he told lies to the

police, he refers them to the transcript and to a

question:

Q. Do you concede now that you told lies to

the police? A. In that instance, yes.

Then, after His Honour has referred to something:

Q.	You told Kwalu to tell the police to tell
a lie? A.	I didn't tell him to tell the

police a lie, I told him that he came on

holiday.

This is in the context where Oti has admitted that he strapped a lot of heroin to Kwalu's legs for him

to bring into Australia and told Kwalu if the

police stopped him to say he came on holiday:

Q. You told him to tell the police he came on

a holiday? A. Yes, sir.

Q. And that was a lie, wasn't it? A. Not

exactly a lie but suppression of some

information.

Q.	The fact, Wilson Kwalu had carried stuff
to Australia? A.	Yes, sir.

Q. It wasn't a holiday at all, was it? A.

It was partly a holiday.

Q. And you say that isn't a lie? A. No,

sir.

Page 42, line 20 refers to a statement:

Q. Do you say that statement in its entirety is true and correct? A.	Not in its entirety.
Q.	So when you said at the end of your

statement, "I declare that the statement is to

my knowledge and memory true and correct", you
meant, did you not, "I declare that this

statement is to my knowledge and memory little

bits of it true and little bits of it

Chidiac 11 3/10/90

correct"? A. I meant the contents of that

statement are true.

Q. But there were some lies in it? A. Some

suppressions.

Q. All you say is in your statement were mere suppressions of the truth, is that so? A.

Yes.

So, he says, only suppressions.	We then come to
the first example:

Q. Your statement states that you met a man,

at the bottom of the first page, called

George, you were introduced to him by your

brother in law, Wilson Kwalu? A.	Yes, sir.
Q.	"Wilson met me in Honiara in the city

centre and told me he had met a man called

George who was looking for someone in Customs

who would help him locate his two suitcases

which were missing. Wilson told me that

George said the suitcases contained some

jewellery which was very valuable and George

would pay a reward for it if it was found·."

Q. In fact, on that occasion George had told

you that he was looking for two suitcases full

of hashish, right? A. Yes.

Q. Is there a single word in that statement

about hashish? A. Can't recall.

Q.	You know very well there isn't, don't you,
Mr Oti? A.	I think so, sir.
His Honour Q:	"I think so" or "I don't think
so"? A.	I think so.

Mccrudden Q: George told you that this

contained hashish? A. Yes, sir.

And so on.	Then page 45, 1 to 8 is a very short
one:

Q. You told Wilson Kwalu to tell the police, "If they ask you about that, say it was a

holiday"? A. Yes.

And Your Honours recall he has admitted already

that at the time Kwalu was carrying drugs for

him:

Q. So you asked him to tell the police what amounted to a lie? A.	I told him to tell all
the facts, all the truth.

Chidiac 12 3/10/90

Q.	You told him to tell all the truth? A.
Yes.
Q.	Told him to be honest? A. Yes.
Q.	And truthful? A. Yes.

And so on. Then, page 47, 1 to 5, and this is

perhaps one of the most important ones in view of

the role George takes in this case which I will

come to later:

Mccrudden Q:  Mr Oti, I would like to just

briefly refer back to your principle or

concept of honest dishonesty. That applies

when you were acting on behalf of a friend, is

that right? A.	Yes,· sir.
Q.	And George is a very good friend of yours?

A. Yes, sir.

Q.	So you would be prepared to be dishonest
on his behalf? A.	Yes.

So we establish, as Your Honours will see later, a

motive in relation to that. Page 51, line 15. He

rejects four suggestions, then accepts one which in

some ways is worse:

Q. Mr Oti, I suggest that you say the most

appropriate thing that will get you out of the

trouble that you are in at any particular

moment, what do you say to that? A. No sir.

Q •.. You are quite prepared to eat your words

and smile afterwards, are you not? A.	No
sir.
Q.	You are quite prepared to go back and
contradict earlier statements? A.	No sir.

Though he does it more times than one can count in

this transcript:

Q. Without any qualms are you not? A. No

sir.

Q. You will say what you are asked to say, is

that not correct? A. Yes sir.

On page 54 there is a clear admission of a lie

on oath, line 25:

Q. In any case that was a.deliberate lie under

oath was it not. You told the court that you

had only made one trip did you not? A. Yes

sir.

Chidiac 13 3/10/90

Q. And that was a lie, was it not? A. Yes

sir.

Q. There is no way of getting around that one

by suppression and even distortion and mistake

and your line being directed to something

else. Your line was fairly and consequently -

I think that should be mind, your mind -

was fairly and consequently concentrated on whether you had made one trip or more. You

deliberately told the magistrate that you had

only made one trip, is that so? A. Yes sir.

Q. And that was a deliberate lie was it not?

A. Obviously, yes.

Q. Obviously? A. Yes.

That is important because in a moment Your Honours

will see he says that he has never told a lie on

oath. Page 55, line 30:

Q. That was the whole point. You had never

disclosed that earlier trip but now the

questioning was getting dangerously close to

it and your first line of defence was to

refuse to answer questions about it, was it
not? A. Yes.

Q. And you later answered the questioning by

admitting that you made a trip in 1985?

A. Yes.

Q. So what you had done Mr Oti was that you

had deliberately concealed from everybody your

trip in 1985 and only admitted to it when you

thought that the evidence was going to

overwhelm you anyway, was that not so? A. I

think so.

Q. That is in fact that line that you also

formed apart from your pattern of dishonesty,
you also have a pattern of only admitting

things when your first story has become

unravelled, is that not so? A. I don't know

sir.

Q. You do not know? A. No.

Page 56:

Q. I suggest that you only admit to what you

think we know? A. Yes sir.

Page 64, line 13:

Chidiac 14 3/10/90

Q. Then·you were asked "Which of John's

friends know you" and your answer was "George,

I don't know anything else about him". Do you

remember giving that answer" A. Yes sir.

Q. "George, I don't know anything about him" .
That was a lie, was it not? A. I wasn't under

oath then.

He is quick to say.

Q. It is only a lie when you are under oath?

A. Sorry?

Q. Is that what you are saying. That when you

tell an untruth it is not a lie unless you are

under oath? A. No sir, I am just saying that

when I said that I wasn't under oath.

Q. Are you saying that or not? A. It was a

lie.

Then at the bottom of that page, line 36, the last

question:

Q. Then the police asked you "Were all the

parcels addressed to Mr Moli" and your answer

was "No". "Q. Who were the other parcels

addressed to? A. Mr Tahia. Q. Do you

remember that answer? A. Yes. Q. Was that

name also told to you by the person John".	Do
you remember what you said then? A. No sir.
Q. You said "Yes". That is a lie is it not? A. Yes.

Q. Of course as you say it was not under oath, you did not feel obliged to tell the truth then, did you? A. No sir.

Q. Was that answer "no sir"? A. No sir.

So when you are not under oath you are not

obliged to tell the truth? A. No sir.

Q. Under oath you do not always tell the truth either do you? A. I do.

I have shown Your Honours how he has admitted to

lying on oath not a few pages ago.

Q. So there is no distinction between giving

evidence under oath or not under oath?

A. There is a difference in it.

Chidiac 15 3/10/90

Q. You are quit capable of lying on both occasions, are you not? A. I don't think so

sir.

Q. Mr Oti, you have admitted to it, have you

not, that you lied under oath? A. I didn't

sir.

He denies it.

Q. Mr Oti, in this court this morning -

and there has been no break since then, it is

page 54 and we are now on page 65 -

Q. Mr Oti, in this court this morning you

agreed that you had lied under oath, are you

trying to tell us now that maybe you did not?

A. Did I say I lied under oath?

Q. Yes. A. I don't know sir.

This is a man who will say anything and the words

that come out of his mouth can almost not be given

meaning in the context of truth and falsity, in our

submission.

Then moving ahead to page 83 - this is the

passage I will be coming to later when I deal with

the question of the actual evidence - but he is
taken through a series of cases where he has given

slightly different versions of a conversation. This

is a conversation where he says that he spoke to

George and George said that Neil, who is my client,

was coming to see him - "a man named Neil". On

some occasions he said it was a friend - George said

it was a friend of George - some - he does not say

that. But in relation to that, at line 17:

Q. That does not appear in any evidence that you have ever given until this day, is that

so? A. That's right.

Q. It doesn't appear in your first statement?

A. No, sir.

Q. Second statement? A. No, sir.
Your evidence in the lower court? No, sir.

And of course this is one of the key pieces of evidence against my client, the mention of his name

by George to Oti.

Q. Now for the first time we hear this

expression, "Neil is a good man, listen to

what he says"? A. Yes.

Chidiac 16 3/10/90

Q. You have put that bit in by yourself,

haven't you?	A. Yes, sir.
Q.	Were you told to say that? A. Yes sir.
Q.	Who told you to say that? A. George.

Then counsel says - counsel does not seem to

believe he has got that answer although I rely on

it.	He said:
Q. I think you misunderstood me. You have
never before mentioned that George said to
you, "Neil is a good man, do what he says", you have never before said that until you gave
evidence in this courtroom? A. That's right.
Q. It has not been written down anywhere? A. No sir.
Q. No statements? A. No sir. Q. No questions and answers? A. No.
Q. And here at this late stage there is a new
piece of material coming in showing that Neil
knows George? A. Yes sir.
Q. You have invented that, haven't you?
A. No sir.

I suppose that is true because he says George told

him to say it.

Q. Why was it never mentioned before? A. I

couldn't remember it before.

Q. Your memory gets better as the years go by?

A. Not as the years go by, as the proceedings

go by.

Q.	Your memory gets better as the proceedings
go by? A. Yes sir.

Then at page 86 it is pointed out that although

in-chief he described a conversation with my

client, which had no mention of money, in the lower

court he had said that my client, as soon as he had

met him, handed him $200 and he is asked a series

of questions about this and all he does is he adds

to what happened before and says:

I asked George for $250 and Neil came and gave me $200.

And that is something which he never said before

anywhere and it is simply introduced for the first

Chidiac 17 3/10/90

time in cross-examination and he says he just asked

for it and he was given it. But what becomes

important - and this goes over on to page 87 at

line 10 - counsel perhaps with some rashness asks

him this question, remembering this is new evidence

in cross-examination:

Q. Did Neil say anything to you when he gave you this $200? A. Yes, he said, "It's from

George."

Q. That is the first time I have heard that,

right? A. Yes.

Q. The first time I have ever heard of this

$200, it was George's money and not Neil's?

A. Yes.

He then goes on to give evidence on page 87

starting at line 39, about a telephone number.	Now
Your Honours will see that one of the pieces of evidence which was relied on heavily against my

client was that it was that Oti said that my client

gave him a telephone number. That number was a

phone number of a company called "Voice Call",

which operates a paging service. One has a beeper

and one rings this number and leaves messages over

the beeper. The evidence completely miscarried,

because it turned out when people were called from

that company, that my client's contract with it and

we are taking that the beeper for my client did not

arise until about six months after all this, so in

fact it was obviously something which he had been

told later, this phone number. But leave that

aside for the moment - I will come to that when I

get to that part of the case.

What is important at the moment is the

incredible story which is told. At the bottom of

the page he says this:

Q.

service, is that what you just said? A. I

You didn't know it was a phone answering

knew it was owned by Neil.

Q.	You did not know it was a phone answering
service, you tell us? A.	No, I did not know.
Q.	You see, he did not say, "If I am not

available to answer in person", Mr Oti,

because nobody ever is on phone answering

services and you now know that, don't you? A.

Yes, I didn't know that, sir.

Q. You knew it when you came to give your evidence later, didn't you? A. Yes.

Chidiac 18 3/10/90

Q. And that is why you put it this way in

your evidence here, you had him saying, "Most

of the time I will not be there"? A.	Yes,
sir.

So he admits altering his evidence to fit facts

that he has now learnt. He has now learnt that
this is a telephone answering service. But just

going back a moment to line 30 on page 87,

Your Honours see he said this at the lower court, before he knew it was a phone answering service:

Q. Did he say anything about the way in which he would be contacted on that number?

I am sorry, I am reading the wrong bit. At page 29

in-chief he had said this at line 20. He says he

was given a piece of paper with this phone number

on it. And then:

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'".

First of all, "most of the time I won't be there"

is a ridiculous thing to say in relation to a

telephone answering service but, secondly and more

importantly, there is no point in leaving a message

in the phone answering service unless one says who

it is for. Indeed, that is the way he interprets
it because Oti says, at page 88, that what he did

was he rang this number and said:

"This is Alf, please ring" -

and then hangs up.	That is at the bottom of page
88, line 35.

They did not	ask you who that message was to
be given to?	A. I can't recall talking to a
person at any	time on the phone. I can't

recall that a	person was on the line talking to
me.

It is classic invention material.

Do you think when I said a phone answering

service - did you think a mechanical phone

answering service? Is that what is in your

mind, tape recorded? A.	I don't know, sir.
Q. A machine?	Didn't a person answer the
phone to you?	A. A voice answered the phone.

Q. And you told that voice, "This is Alfred, please ring"? A. Yes, sir.

Chidiac 19 3/10/90

Q. Do you swear to that? A. Yes, sir.

Q. And then you hung up? A. Yes, sir.

Q. Do you swear to that? A. Yes, sir.

There is evidence, of course, later on from

the phone answering service people who say, "Well,

if that happened, clearly there would be,

obviously, no message given to anyone because one

wouldn't know who it was for". So, it is a highly

improbable piece of fabricated evidence. Obviously

he has been given the number and told, "Say this is

the number given to you by someone".

I notice, Your Honours, it is after twenty

past four.

MASON CJ: Court will adjourn until 10 am tomorrow and

perhaps we ought to look at those authorities first

thing tomorrow, Mr Bennett.

AT 4.23 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 4 OCTOBER 1990

Chidiac 20 3/10/90