Chidiac v The Queen (No 2)

[2016] NSWCCA 120

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Chidiac v R (No 2) [2016] NSWCCA 120

Hearing dates:

28 October 2015, 7-9 March 2016, and 18 March 2016

Date of orders:

04 July 2016

Decision date:

04 July 2016

Before:

Bathurst CJ, Button and Fagan JJ

Decision:

1. Appeal dismissed.

 

2. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act):

 

(1) Order that, up to and including the 18 July 2016, there be no disclosure (by publication or otherwise) of this judgment.

 

(2) Direct that the parties, on or before the 11 July 2016, file submissions as to whether and to what extent Order (1) should continue beyond 18 July 2016.

 

(3) The grounds for making this order are those specified in s 8(1)(a), s 8(1)(c) and s 8(1)(e) of the Act.

 

Note that this order does not extend to circulation of the summary of judgment in the form approved by the Court.

 ADDENDUM – 18 July 2016
(4) That there be no disclosure (by publication or otherwise) of the entire pars [203] and [205], the first nine words of par [206] and the words after “[42]” and before “that the AFP” in par [211] of this judgment, subject to any review of those materials on an application for special leave to the High Court.

Catchwords:

CRIMINAL LAW – appeal against conviction – referral of the whole case – Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)(b) – witness recanted evidence – whether recantations admissible

 

EVIDENCE – hearsay – recanted evidence – witness not available – admissibility – whether previous representations likely to be reliable – circumstances of representations – Evidence Act 1995 (NSW), s 65

 

CRIMINAL LAW – appeal against conviction – evidence exculpating appellant – whether evidence credible

 

CRIMINAL LAW – appeal against conviction – Crown failure to call witness – police informant – prosecutor’s duty to call material witness – public interest immunity – forensic advantage to accused – whether miscarriage of justice – whether denial of fair chance of acquittal – whether jury verdict unreasonable or unsupported

  CRIMINAL LAW – appeal against conviction – fresh evidence and new evidence – whether verdict unreasonable or unsupported

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW)
Mutual Assistance in Criminal Matters Act 1987 (Cth)
Sentencing Act 1995 (WA)

Cases Cited:

Alister v The Queen [1985] HCA 85; (1984) 154 CLR 404
Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432
Chidiac, Neil – Application pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2015] NSWSC 157
Diehm v Director of Public Prosecutions (Nauru) [2013] HCA 42; (2013) 203 ALR 42
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Ambrosili [2002] NSWCCA 386; (2002) 55 NSWLR 603
R v Apostolides [1984] HCA 38; (1984) 154 CLR 536
R v Birks (1990) 19 NSWLR 677
R v Bolte [2010] SASC 112
R v Cartwright (1989) 17 NSWLR 243
R v Lappas [2001] ACTSC 115
R v Oti (1990) 19 NSWLR 561
R v Parez-Vargas; R v Stevens (1986) 8 NSWLR 559
Regina v Chidiac (Court of Criminal Appeal (NSW), Gleeson CJ, Meagher JA and Loveday J, 15 December 1989, unrep)
Regina v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450
Regina v Riscuta and Niga [2003] NSWCCA 6
Rich v R [2014] VSCA 126; (2014) 43 VR 558
Tema v State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104
Youkhana v R [2013] NSWCCA 85
Zonneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

Category:

Principal judgment

Parties:

Neil Chidiac (Appellant)
Regina (Respondent)
Commissioner of the Australian Federal Police (Interested party)

Representation:

Counsel:
Mr David Bennett QC/Mr Clive Steirn SC/Mr Alexander Flecknoe-Brown (Appellant)
Mr Christopher O’Donnell (Respondent)
Mr Peter Melican (Commissioner of the Australian Federal Police)

  Solicitors:
Katsoolis & Co (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)
Australian Government Solicitors

File Number(s):

2015/097982

Publication restriction:

The grounds for the making of these orders are those specified in sections 8(1)(a), 8(1)(c) and 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW): 1. Until further order, there be no disclosure (by publication or otherwise) of the identity of the person referred to as “George” in the judgment of the District Court that is the subject of the present proceedings (“George”), or of information that may tend to reveal the identity of that person, otherwise than between the persons identified in paragraph 5 of the orders [sought in the amended notice of motion filed in Court on behalf of the Commissioner of the Australian Federal Police on 7 march 2016]. 2. Until further order, there be no disclosure (by publication or otherwise) of any evidence given by any officer of the Australian Federal Police (AFP) or by George in relation to whether there have been any dealings between the AFP and George and, if there have been any such dealings, the nature and content of those dealings, otherwise than between the persons identified in paragraph 5 of the orders [sought in the amended notice of motion filed in Court on behalf of the Commissioner of the Australian Federal Police on 7 march 2016]. 3. Subject to paragraph 6A of these orders, and until further order, there be no disclosure (by publication or otherwise) of any document, or any information from any document, produced by the AFP pursuant to the Orders for Production dated 10 and 11 February 2016 which relates to whether there have been any dealings between the AFP and George and, if there have been any such dealings, the nature and content of those dealings, otherwise than between the persons identified in paragraph 5 of the orders [sought in the amended notice of motion filed in Court on behalf of the Commissioner of the Australian Federal Police on 7 march 2016]. 4. Subject to paragraph 5 of these orders, there be no access to the Confidential Annexure to this Notice of Motion, to the affidavit of Kevin Zuccato sworn on 3 March 2016, or to the written submissions of the Commissioner of the AFP in support of this application dated 7 March 2016, other than by persons identified in paragraphs 5.1 to 5.4 of these orders [sought in the amended notice of motion filed in Court on behalf of the Commissioner of the Australian Federal Police on 7 march 2016]. 5. The Appellant shall only access the documents referred to in paragraphs 3 and 4 of these orders at the premises of his solicitor. 6. Order 1 applies throughout the Commonwealth.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

15 February 1989

Before:

Smyth DCJ

File Number(s):

88/11/0880

Judgment

1. THE COURT: On 15 February 1989 following a trial by jury Neil Chidiac (“the appellant”) was found guilty of a charge that between about 1 May 1984 and about 4 July 1985 he conspired with Michael Asfour, Samir Helais, Alfred Oti, Wilson Kwalu and divers other persons to import into Australia a traffickable quantity of heroin.

2. As a result of an order pursuant to s 79(1)(b) Crimes (Appeal and Review) Act 2001 (NSW) made by Beech-Jones J on 9 March 2015, Chidiac, Neil – Application pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2015] NSWSC 157, the appellant’s challenge to this conviction is now before this Court to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). The hearing of the appeal commenced on 28 October 2015 with Macfarlan JA presiding. An adjournment was granted to enable the appellant’s counsel to prepare cross-examination of a police officer whose affidavit was served belatedly. Upon resumption on 7 March 2016 Macfarlan JA was unavailable. Both parties consented to the appeal proceeding part-heard with the Chief Justice replacing Macfarlan JA.

3. These reasons are arranged under the following headings, each subject commencing at the paragraph number indicated:

Appeal history [4]

Grounds of appeal and nature of proceeding [9]

Outline of Crown case at trial in 1989 [17]

Evidence-in-chief of Oti at trial [21]

Evidence-in-chief of Kwalu at trial [22]

Cross-examination of Oti at trial [23]

The Crown case at trial apart from Oti and Kwalu [33]

George not called at trial [39]

The appellant’s dock statement [44]

Circumstances of Oti giving evidence at trial [45]

Detective Venchiarutti’s evidence of the origins of Oti’s co-operation [47]

Durak Dursun’s account of a recantation letter or letters of late 1989 [56]

Oti’s handwritten recantation, 23 November 1994 [62]

Durak Dursun’s account of obtaining Oti’s recantations, 23 November 1994 [64]

Ian Jameson’s account of obtaining Oti’s recantations, 23 November 1994 [69]

Oti’s record of interview, 23 November 1994 [72]

Oti’s television interview, 25 March 1997 [93]

Innuendo against Detective Venchiarutti in the television interview [117]

Appellant’s evidence in the appeal relative to obtaining Oti’s recantations [122]

Oti’s recantations are not in evidence in the appeal by force of the reference [127]

Oti is not “available” to give evidence for purposes of s 65 Evidence Act [137]

The appeal is a “criminal proceeding” for purposes of s 65 Evidence Act [142]

Recantations “against the interests of” Oti, s 65 Evidence Act [144]

The range of relevant circumstances in which the recantations were made [145]

Motive for Oti to recant falsely [150]

Oti’s given reasons for recanting [154]

The origins of Oti’s purported willingness to recant [157]

Internal inconsistencies in the recantations [160]

The evidence purportedly retracted was not inherently unbelievable [177]

Ground 1 – recantations by Oti and exculpation of the appellant [181]

Evidence in the appeal from George [183]

Ground 2 – asserted post-trial exculpation by George; evidence of Alan Taciak [198]

Ground 3A – failure of the Crown to call George [210]

Ground 3(a) – fresh evidence from Durak Dursun [243]

Ground 3(b) – evidence of Alan Taciak regarding George [247]

Ground 3(c) – evidence concerning the appellant’s pager [249]

Ground 3(d) – reasons for the appellant’s visit to the Solomon Islands [253]

Ground 3 – conclusion [263]

Determination of the appeal [268]

Appeal history

4. Following his conviction the appellant was on 24 February 1989 sentenced to 20 years imprisonment commencing on the day of his arrest, 31 March 1988, and expiring on 30 March 2008. A non-parole period of 14 years was fixed, expiring 30 March 2002.

5. The appellant appealed to the Court of Criminal Appeal against conviction and applied for leave to appeal his sentence. The appeal and leave application were dismissed: Regina v Chidiac (Court of Criminal Appeal (NSW), Gleeson CJ, Meagher JA and Loveday J, 15 December 1989, unrep). An application to the High Court for special leave to appeal was dismissed on 1 March 1991: Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432.

6. On 10 February 1997 the appellant was released on parole having served slightly less than 9 years imprisonment. The balance of his term has now expired. In 2012 he applied to the Supreme Court under s 78 Crimes (Appeal and Review) Act for an inquiry into his conviction. Section 79(1)(b) of that Act empowers the Court to “refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912” if “it appears there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case”.

7. The reasons of Beech-Jones J for having made the order for referral need not be considered in this judgment. We refer to the proceeding now before this Court as “the appeal” because s 79 requires it to be dealt with as if it were one notwithstanding that the appellant has already exhausted his right under the Criminal Appeal Act to appeal against his conviction in the District Court. The present appeal commenced with the filing by the appellant of grounds on 2 June 2015. The Court granted leave to file amended grounds on the last day of the hearing, 18 March 2016. The issues now for consideration are defined by the amended grounds, not by Beech-Jones J’s identification of matters which appeared to his Honour to raise “a doubt or question as to the convicted person’s guilt” (s 79(2)).

8. The appellant’s motivation in seeking review of his conviction is in part economic. Property of his, including real estate, was forfeited under proceeds of crime legislation on the basis of the conviction. He expects to recover compensation for that property if his conviction is quashed. We refer to this merely to explain the reasons for the review. It does not imply any criticism of the applicant in seeking to pursue it.

Grounds of appeal and nature of proceedings

9. The grounds, as follows, are all concerned with evidence said to be new or fresh, except for ground 3A concerning the Crown’s failure to call a witness:

1.    One of the two principal Crown witnesses at the appellant's trial, Alfred Oti, has recanted his evidence and now exculpates the appellant. Accordingly, the appellant's guilt is not established beyond a reasonable doubt. His conviction ought to be quashed and a verdict of acquittal ought to be substituted.

2.    A witness, "George", who the Crown failed to call at trial, has now given evidence exculpating the appellant (which evidence is further corroborated by a former officer of the Australian Federal Police). Accordingly, the appellant's guilt is not established beyond a reasonable doubt. His conviction ought to be quashed and a verdict of acquittal ought to be substituted.

3A.    The witness “George”, who was not called at trial, was believed by the Australian Federal Police, at all material times after the arrest of the appellant and until the trial of the appellant, to be a reliable witness. The failure to call George of itself deprived the appellant of a fair chance of an acquittal, and further warranted of itself a finding that the appellant’s guilt was not established beyond a reasonable doubt. Accordingly, the appellant’s conviction ought to be quashed and a verdict of acquittal ought to be substituted.

3.    Further evidence which is now available, which was not called at trial, either separate from or alternatively together with the evidence described above, namely:

a.    evidence of Mr Durak Dursun, which corroborates the evidence of Mr Oti exculpating the appellant;

b.    evidence of Mr Alan Taciak, in relation to the failure to call "George" at trial;

c.    evidence in relation to the use of a pager owned by the appellant in 1985; and

d.    evidence in relation to the reasons for the appellant's visit to the Solomon Islands in 1985,

consolidates the conclusion that the appellant's guilt is not established beyond a reasonable doubt. His conviction ought to be quashed and a verdict of acquittal ought to be substituted.

10. This Court’s approach to an appeal which comes before it by referral under s 79 Crimes (Appeal and Review) Act is governed by what four justices of the High Court said in Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 at [9] – [13] concerning closely similar Western Australian legislation. In deciding such an appeal “the whole case” (as referred to in s 79(1)(b)) embraces “the whole of the evidence properly admissible, whether ‘new’, ‘fresh’ or previously adduced, in the case against, and the case for the appellant”. “New” evidence, as understood in relation to conventional appeals, is that which was available at the time of the trial and which could, by the exercise of reasonable diligence of the appellant and his advisers, have been adduced in the trial. In accordance with Mallard v The Queen “new” evidence in this sense is freely to be taken into consideration by the appellate court in deciding whether the verdict is to be set aside. Such evidence is not to be disregarded upon the basis that its omission earlier was not productive of unfairness in the trial.

11. The High Court’s decision also requires that this Court should assess “the whole case” unconstrained by the way it was dealt with in the earlier conventional appeals. Their Honours said at [10]:

“That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. … The inhibitory purpose and effect of the words ‘as if it were an appeal’ are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code.”

12. Section 86 Crimes (Appeal and Review) Act provides:

“86 Reference to Court under section 77 (1) (b) or 79 (1) (b) following petition to Governor or application to Supreme Court

On receiving a reference under section 77 (1) (b) or 79 (1) (b), the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly.”

13. As the present proceeding is, by force of ss 79 and 86 Crimes (Appeal and Review) Act, an appeal against conviction, the following words of s 6(1) Criminal Appeal Act apply:

“The court … shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, … or that on any other ground whatsoever there was a miscarriage of justice, … provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

14. It is important that in this appeal the only relief sought is the quashing of the appellant’s conviction and the substitution of a verdict of acquittal. For obvious reasons having regard to the passage of 19 years since the appellant completed his sentence he does not ask for an order for retrial. Grounds 1, 2 and 3, each of which turns upon evidence additional to that tendered at trial, necessarily depend upon the appellant bringing himself within that part of s 6(1) which speaks of a verdict that is “unreasonable, or cannot be supported, having regard to the evidence”. Ground 3A, which concerns the Crown’s failure to call witness, must satisfy a different part of s 6(1), namely, “that on any other ground whatsoever there was a miscarriage of justice”.

15. This Court’s approach to assessment of “the whole case” for the purpose of determining whether the verdict of guilty was “unreasonable, or cannot be supported” must be the same in this appeal referred under s 79 Crimes (Appeal and Review) Act as it would be in a conventional appeal brought directly under s 5(1) Criminal Appeal Act. That is, in accordance with the following passages from the judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 – 495:

“[6] Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. … The question is one of fact which the court must decide by making its own independent assessment of the evidence (Morris v. The Queen [1987] HCA 50; (1987) 163 CLR 454) and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’ (See Hayes v. The Queen (1973) 47 ALJR 603 at 604). …

[7] Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (See Whitehorn v. The Queen (1983) 152 CLR at 686; Chamberlain v. The Queen (No.2) (1984) 153 CLR at 532; Knight v. The Queen [1992] HCA 56; (1992) 175 CLR 495 at 504-505, 511). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (Chamberlain v. The Queen [No.2] (1984) 153CLR at 621).

[8] [Their Honours considered the judgment of Barwick CJ in Ratten v. The Queen (1974) 131 CLR at 516) and qualifications thereto expressed in Whitehorn v. The Queen and Chamberlain v. The Queen [No.2]] … [A]ccount must be taken of the advantage which a jury has in seeing and hearing the witnesses. To ask only whether the court has a doubt may place insufficient emphasis upon the fact the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.

[9] … In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v. The Queen (No.2) (1984) 153 CLR at 618-619; Chidiac v. The Queen (1991) 171 CLR 432 at 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v. The Queen (1991) 171 CLR at 443, 451, 458, 461-462).”

16. In order to apply these principles to grounds 1, 2 and 3 it is necessary to identify the evidence in the trial so far as it is relevant to the grounds raised, identify the additional evidence which has been tendered in the appeal, determine the admissibility (where challenged) of the additional evidence and then, upon all of the received material, reach a conclusion as to whether it has been shown that the jury, if it had had all of the admissible evidence including that which has now been received in this Court, must have felt a reasonable doubt – and if so, quash the conviction. On ground 3A this Court must determine whether any miscarriage of justice was occasioned by the Crown not having called George.

Outline of the Crown case at trial in 1989

17. The two principal Crown witnesses at the appellant’s trial were Alfred Oti (“Oti”), a senior officer in the Solomon Islands Customs Service, and Wilson Kwalu (“Kwalu”), a relative of Oti’s wife. Both were alleged to have been co-conspirators of the appellant and both gave evidence under indemnity from prosecution.

18. Oti said that in 1979 or 1980 he and Kwalu met in Honiara a person who was referred to throughout the trial only by the name “George”. This was pursuant to an order for suppression of George’s full identity, made by the trial judge on application of the Australian Federal Police (“AFP”). George was not called by either party, in circumstances to be referred to hereafter.

19. The evidence of Oti and Kwalu was to the effect summarised in the judgment of Dawson J in Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 448 – 449, as follows:

“[2] [In Honiara in 1979 or 1980] George sought assistance in locating two missing suitcases which he eventually said contained hashish. George then made arrangements with Oti and Kwalu to post drugs from Malaysia to Honiara concealed behind framed pictures. The drugs were to be collected by Oti and Kwalu and sent on to Sydney.

[3] Nothing further happened until 1984 when George contacted Oti by letter and by telephone. George said that there would be a parcel of drugs sent towards the end of the year. Oti was to collect it and to tell George when it arrived. It was then to be sent on to George. Oti informed Kwalu of the development and George kept in contact with Oti by telephone from Sydney. At about this time Oti was introduced by George to the applicant Asfour on the telephone and Asfour also spoke to Oti about drugs. Oti gave George the fictitious names of Tahai and Moli to use as addressees on the parcel.

[4] A parcel arrived in Honiara late in October 1984. It was postmarked Penang, Malaysia, and was addressed to either Tahai or Moli at a post box number. It contained framed pictures in the back of which were plastic packages of pink powder resembling icing sugar in texture. In total they weighed 800 to 1000 grams.

[5] Oti telephoned George in Sydney and arrangements were made for Kwalu to bring the packages to Sydney and for George to pay his expenses. Kwalu carried the packages, taped to his legs, by air to Brisbane on 29 November 1984. There he was met by George and Asfour. All three travelled by bus to Sydney, the packages having been transferred to a briefcase carried by George or Asfour. Kwalu returned to Honiara from Brisbane by air on 6 December 1984. Oti later paid Kwalu $1,000 with funds sent from Sydney.

[6] During December 1984 George again contacted Oti. He said that more of the same ‘stuff’ would come in January or February in a manner similar to that of the first parcel. The parcel arrived and Oti told George of the fact. Oti, at George's suggestion, told Asfour by telephone that the drugs had not yet arrived. Money was sent to Honiara and in February 1985 Oti flew to Sydney with the packages contained in the parcel. He delivered them to George and a man introduced to him as George's brother, Sam. Oti returned to Honiara. Asfour telephoned Oti, expressing anger at being deceived about the last parcel. Asfour said that he would send someone to see Oti in Honiara.

[7] Early in May 1985, George telephoned Oti and told him that he would be sending someone named Sam to discuss the redirection of further packages. In mid-May George told Oti that it would not be Sam but someone named Neil. Neil is the first name of the applicant Chidiac. On 27 May 1985, Chidiac arrived in Honiara with his family and telephoned Oti. Oti met Chidiac at the Mendana Hotel where Chidiac was staying. Chidiac referred to George, the previous parcels, the dangers involved, and other ways in which drugs could be brought to Honiara and smuggled into Sydney. The next day Oti again met Chidiac, this time with Kwalu. There was further discussion of drug smuggling and payments that would be made. Chidiac gave Oti a piece of paper with a telephone number, 211-1100, written on it. The number was that of a paging service to which Chidiac was a subscriber.

[8] Shortly thereafter Chidiac left Honiara and telephoned Oti from Vanuatu. Chidiac returned to Sydney on 6 June 1985. George again telephoned Oti and told him to expect a further parcel. More packages arrived as before. This time the powder was white. Oti telephoned George and then Chidiac. The latter said he would send Oti money for the airfare from Honiara. The money arrived and on 1 July 1985 Kwalu flew from Honiara to Brisbane with the packages taped to his body. On 3 July 1985 he telephoned George. Asfour then telephoned Kwalu and the next day Kwalu travelled by bus to Sydney where he was met by Asfour and was later introduced to Samir Helais. Helais was a bookmaker's clerk who worked for Chidiac, the latter being a bookmaker by occupation. Kwalu went to Asfour's house with Asfour where he gave the packages to Asfour. Asfour and Helais divided the white powder between them. Kwalu remained in Sydney for a short time during which he met George. He returned to Honiara and further funds were sent from Sydney to Oti.”

20. The Crown case depended critically upon the jury finding beyond reasonable doubt that the appellant had discussed drug importation with Oti and Kwalu in Honiara in May 1985. Any discounting of other aspects of the evidence of these two principal witnesses would be relevant to their credibility and reliability on this issue. But unless the jury felt a reasonable doubt about the critical conversations of May 1985 in Honiara the charge of conspiracy would be sustained.

Evidence-in-chief of Oti at trial

21. The events summarised in pars 2 to 6 of Dawson J’s judgment were given in evidence by Oti and Kwalu in terms broadly consistent as between the two witnesses. Expanding upon Dawson J’s summary in respects specifically relevant to the grounds and submissions in this appeal, there may be extracted the following aspects of Oti’s evidence at trial which went directly to proof of the appellant’s participation in the conspiracy:

1. George, who had been Oti’s principal contact in relation to importing drugs into Australia in October 1984 and February 1985, notified Oti in early May 1985 that “Neil” would come to Honiara “to see me to discuss about redirecting some of the same packages to Sydney” (AB 2/382).

2. The appellant arrived in Honiara on 27 May 1985, contacted Oti by telephone and arranged to meet him at the appellant’s hotel, the Mendana. They met in the foyer at about 5pm, went to the appellant’s suite and spoke there in a room separate from the appellant’s family for about 30 minutes.

3. During this conversation the appellant said:

“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 this stuff, just let me know and I will pay you straight away, even before you send this stuff to Australia” (AB 2/384).

4. The appellant told Oti that George had informed him “about the previous transactions [Oti] had dealt with [George]” and had requested the appellant “to see me [Oti] to discuss a further shipment of the stuff from Malaysia”.

5. The appellant discussed with Oti methods of concealing drugs for importation into Australia, including removing the tobacco portion of cigarettes, substituting drugs in the cigarette packets and replacing the butts. The appellant also suggested that Oti should purchase carvings, hollow them out and fill them with drugs and send the carvings to Sydney.

6. Oti told the appellant that he might arrange for Kwalu to carry drugs into Australia. The appellant said he would like to meet Kwalu. Oti arranged this for the next day.

7. Oti and Kwalu met the appellant in his hotel suite on 28 May 1985 at about 5:30pm for about 20 – 30 minutes. The conversation commenced to the following effect:

“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 he went on to say that even if we sent sugar or whatever, he would still pay us because he said ‘soon as you receive the stuff and you let me know, I will send you the money. I will pay you straight away. And even if I receive sugar, whatever that is too late, I pay for the job you did’” (AB 2/385 – 386).

8. The appellant told Oti and Kwalu that they should make sure “the stuff” is wrapped in plastic “otherwise it will get wet and become useless”.

9. Oti had previously requested George, over the telephone, to provide him with $250 “pocket money”. The appellant gave Oti two $100 notes saying that the money was from George and that it was all he had provided.

10. The appellant gave Oti a piece of paper with the Sydney telephone number 211-1100 on it. The appellant said “if you ring up, and most of the time I won’t be there, just leave a message and say ‘this is Alf’.”

11. After this second meeting with the appellant (in company with Kwalu) in Honiara, Oti did not see the appellant again. However the appellant telephoned him soon afterwards saying that he was in Vila in Vanuatu and that “the stuff should be ready to be sent from Malaysia in a week or two and I will send you some money as soon as you (sic) get back to Sydney”.

12. In about mid-June 1985 George telephoned Oti and told him to check the post office as “the stuff” had left Malaysia. Some time after this two picture frames arrived in packages, addressed to pre-arranged false names: Moli and Tahai. They contained 16 packages of white powder.

13. In late June 1985 the appellant telephoned Oti and said he would send money for an air ticket from Honiara to Brisbane and return. “About a thousand five hundred or so” was sent by telegraphic transfer and collected by Oti from a bank in cash. With this he booked return air travel for Kwalu, Honiara – Brisbane. Oti taped the 16 packages to Kwalu’s body and Kwalu imported them into Australia.

14. In July 1985 Oti received a transfer of AU$9000 from Australia, which he collected from his bank and from which he paid AU$4000 to Kwalu (AB 2/392).

15. In late 1984 and February 1985 Oti and George had discussed Oti’s desire to establish a shop in Honiara. This had also been mentioned in conversation between Oti and the appellant at the Mendana Hotel in May 1985. The appellant had then said he was prepared to help Oti with the business: “I can finance it.”

16. After July 1985 the appellant phoned Oti several times. On one occasion he said:

“Alfred, I have heard George and his friends have landed another job so I would like to tell you that I am no longer interested in that business, shop business, and I don’t want to know anything about that other thing that George is arranging, I just want to be out of it altogether” (AB 2/393).

17. Oti had no further contact with the appellant after this.

Evidence-in-chief of Kwalu at trial

22. The parts of Kwalu’s evidence which directly implicated the appellant in the conspiracy and which are relevant to the grounds and submissions now before this Court, were to this effect:

1. In early 1985 Oti informed Kwalu that a person named Neil would come to Honiara. A little while later Kwalu went with Oti to the Mendana Hotel and met the appellant at about 5:00pm one afternoon. The appellant’s wife and two children were in the suite where they met, in a room adjoining that in which Oti and Kwalu spoke with the appellant (AB 2/507 – 508).

2. The meeting lasted about half an hour. The appellant spoke to the following effect:

• “be careful, this work is dangerous so be careful” (AB 2/508);

• “when the 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” (AB 2/508);

• the yacht will carry “a large number of drugs, then you keep it in Honiara” (AB 2/508);

• Oti and Kwalu were to look after the drugs in Honiara;

• “if you have the drugs with you here, then somebody we send from Australia to come and get it or if not, either one of you can go and get to Australia” (AB 2/545).

3. There was also discussion of the possibility of bringing drugs into Honiara concealed in toys but the appellant “was not interested in the toys”.

4. In July 1985 Kwalu travelled to Brisbane carrying drugs taped to his body in packages. From Brisbane he travelled to Sydney by bus. He stayed in Sydney for a few days in early July 1985 and handed the drugs over to Michael Asfour and another man named Sam. [There was independent evidence that he had stayed at a motel in Randwick from 4 to 8 July 1985].

Cross-examination of Oti at trial

23. When Oti gave evidence at the trial of the applicant he was in prison in New South Wales. In December 1985 he had made a trip from Honiara to Sydney carrying heroin. He was arrested in Sydney on 23 December 1985 and charged with having conspired, between 1 October 1985 and 23 December 1985, with Durak Dursun and divers others to import heroin into Australia. Charges of conspiracy to supply heroin and of possession were also laid.

24. Oti remained in custody from the date of his arrest. In due course he pleaded guilty to the charges. On 3 April 1987 concurrent sentences for all charges were imposed, the longest (for the conspiracy to import) being 20 years commencing 23 December 1985 with a non-parole period of 10 years.

25. These facts concerning Oti’s position as a witness were all led in evidence before the jury. Copies of written indemnities against prosecution were tendered, including an indemnity from the Commonwealth Director of Public Prosecutions and an undertaking not to prosecute from the Solomon Islands Director of Public Prosecutions.

26. Oti said under cross-examination at the appellant’s trial that in 1987 he had believed that George “dobbed me in”, causing him to be arrested in December 1985. Therefore he had decided to give the police evidence about George. He had discussed this with Durak Dursun, his co-conspirator, who had been convicted and imprisoned with him in relation to the December 1985 importation. Mr Dursun had “told me that George had been a police informer and I will find it difficult to… give evidence against him”. Notwithstanding this advice Oti spoke with police in 1987, before 17 October, in the course of which “They did not mention Neil’s name. …it was me who mentioned Neil’s name”. Oti agreed with defence counsel’s proposition that the police said “they were not interested in George; the man they wanted was Neil”.

27. In cross-examination evidence was adduced from Oti that he had made a first written statement to police on 17 October 1987 and subsequent statements on 1 March 1988 and 1 July 1988. He was examined at committal on 5 July 1988.

28. In his 17 October 1987 statement Oti had said that Kwalu’s first visit to Australia in November 1984 (see par 5 of Dawson J’s summary at [19] above) was a mere holiday paid for by George. Oti first admitted that this trip had been a drug running venture in his statement of 1 July 1988.

29. Oti omitted from the 17 October 1987 statement any reference to his own drug carrying trip in February 1985 (see par 6 of the extract from Dawson J’s judgment at [19] above). At committal he at first maintained, consistently with his statements, that there had only been three drug carrying trips from Honiara to Australia: two by Kwalu in November 1984 and July 1985 and one by himself in December 1985 when he was caught. Under cross-examination at committal he admitted to his own further trip in February 1985.

30. During cross-examination at committal Oti also admitted that he had deliberately lied to police about George’s first visit to Australia and that he had lied both to police and in the early part of his committal evidence about there only having been three trips in total.

31. Under cross-examination at trial Oti characterised these falsehoods as “suppressions of the truth”. The topics in relation to which deliberate untruths on prior occasions were admitted were collateral to the passages of Oti’s evidence which specifically proved adherence of the appellant to the conspiracy from May 1985. Cross-examination concerning Oti’s description of the appellant’s visit to Honiara and his subsequent telephone conversations with the appellant did not expose any significant contradictions or inconsistencies from one police statement to the next or from the police statements and committal evidence to the evidence-in-chief at trial.

23. Oti was heavily challenged about his account of the meeting and conversations in Honiara and about subsequent telephone conversations with the appellant. He acknowledged some differences of recollection on these matters from time to time but denied that he was lying about them or had ever lied about them. He also rejected the proposition, repeatedly put to him, that he had encouraged Kwalu to tell lies about the dealings of the two men with the appellant in Honiara.

The Crown case at trial apart from Oti and Kwalu

33. The Crown tendered evidence to show that the appellant was in 1985 a subscriber to a paging service which operated through a message dispatch centre having the Sydney phone number 211-1100 – the number Oti said he had been given by the appellant in Honiara in May 1985 (see [21](10)). Exhibit 41 at the appellant’s trial was a printed pro-forma Paging Service-Rental Agreement issued by Page Call International Pty Ltd trading as Voice Call. In this document the printed items and handwritten entries against them were (so far as material for present purposes) as follows:

Printed items

Handwritten entry

Payment received

$584

Date received

2/6/84

Date of agreement

21-6-84

Personal particulars (name)

Address

Jacob/Neil Chidiac

To page for pay

Pager particulars – Cap Code

Type

Purchase

Service

3158

AN

[ticked]

[ticked]

Purchase price

1 @ $500

Service agreement

1 @ $28 per Qtr = $84

Signature

[Signature of the appellant, Neil Chidiac]

34. Against the printed words “Personal particulars”, the name “Jacob” was written in a different pen and possibly in a different hand from the writing of “Neil Chidiac”. The only signature on the document is that of the appellant. Prima facie the document is evidence that the appellant had a pager service with Voice Call from 21 June 1984. The receipted payment of $584 accords with the company’s charges for supply of the pager device plus the first quarter’s service fees. Evidence at the trial explained “To page for pay” as meaning that the company would page the customer to request recurrent quarterly fees, rather than issue invoices. “AN” is an acronym for alpha numeric.

35. There was uncontested evidence that in 1985 Voice Call subscribed to a telephone service having the Sydney number 211-1100. This was also formally admitted by the appellant pursuant to s 404 Crimes Act 1900 (NSW) (Ex 46).

36. Jayne Hunter, an employee of Voice Call, gave evidence for the Crown that the pager with serial number 3158 referred to on this Paging Service-Rental Agreement was an alphanumeric device. A message comprising letters and figures of up to 80 characters could be sent to it. A person wishing to leave a message through the service could do so without knowing the number of the relevant subscriber’s pager. It would be sufficient for a caller to quote the name of the subscriber. Even with part only of a full name the operator might still be able to identify the intended recipient of the message although “there might be some trouble in finding who they want”.

37. In cross-examination Ms Hunter said that the first payment from the appellant which the company “can trace” was a payment made in about November 1985. She said it was possible that the service contract had been entered into by some person other than the appellant and then transferred to him in November 1985. Cecilia Dries, who also worked for Voice Call, confirmed that the earliest record she could find of a payment having been made by the appellant for this service was a receipt from November 1985. She made her search in response to a subpoena issued in connection with the trial. Her evidence did not exclude the possibility that earlier payments may have been made by the appellant, of which no record was held at the time she made her search.

38. The Crown adduced evidence of the appellant’s travel movements in May and June 1985. Some of these were formally admitted under s 404 Crimes Act. The result was unchallenged evidence of the following chronology of air travel by the appellant, his partner Ilona Vallejo and his two children, a boy aged eight years and a girl of three years:

1. 27 May 1985: departed Brisbane and arrived in Honiara.

2. 31 May 1985: departed Honiara and arrived in Vanuatu.

3. 2 June 1985: departed Vanuatu and arrived in Nadi, Fiji.

4. 6 June 1985: departed Nadi, Fiji, and arrived in Sydney.

George not called at trial

39. On the first day of the trial the AFP applied to the presiding judge for an order suppressing the full name of George and any information capable of revealing his identity. This application was supported by a confidential affidavit the contents of which were not revealed to the Crown prosecutor. Public interest immunity was claimed and upheld in respect of the affidavit. The trial judge made orders as sought including that George should be referred to throughout the proceedings only by that name. His Honour expressly reserved liberty to either party to apply to have this suppression order lifted or varied if the revelation of the identity of George should become significant to issues in the trial.

40. From the making of this application by the AFP, supported by an affidavit which was protected by public interest immunity, the experienced counsel who appeared for the appellant would have drawn the inescapable inference that George was a police informant. The cross-examination in which Oti gave evidence of Durak Dursun’s assertion that George was “a police informer” (see [26] above) took place on the second day of the trial and would have reinforced the inference.

41. Counsel for the appellant would have been well aware that George had not been charged with any offences arising out of the importations of drugs from Honiara into Australia as described in the evidence of Oti and Kwalu. If he was not so aware it would only have been through deliberate want of inquiry. Detective Sergeant Venchiarutti acknowledged in cross-examination at the trial that George was involved in all four of the drug importations described by Oti and Kwalu. The Detective said he had never spoken to George. He gave these answers to the appellant’s counsel at AB 2/600 – 602:

“Q. You knew that he [George] had a prominent part to play in the conspiracy we are dealing with here?

A. Yes.

Q. That he had a prominent part to play in the first run of Mr Kwalu?

A. Yes.

Q. And you are aware that he had a prominent part to play in Mr Oti’s first run?

A. I am aware he had some involvement there the exact involvement I do not know.

Q. Officer, have you been deliberately avoiding making any inquiries into George?

A. No.

Q. Were you instructed not to make any inquiries into George?

A. Not in so many words.

Q. Was it hinted to you do not make any inquiries into George?

A. It was an understanding I had with conversations with senior police that I would not make certain inquiries in relation to George.

Q. Was the summary of this understanding, keep George out of it as far as possible?

A. No.

…

Q. Have you seen material in respect of George’s involvement in that 1985 run in which Oti was arrested?

A. Yes.

Q. Does that material indicate that he was a part of it and – ?

A. Yes.

Q. That he was allowed to escape while all others were to be rounded up?

A. No.

Q. He was allowed to escape, isn’t that so?

A. I don’t know the exact details of it whether he was or was not, I am aware he was not charged in relation to that matter.

Q. That was by design?

A. I don’t know.

…

Q. I suggest to you that when you became aware of George’s involvement in this whole chain of events from the first time he met them in 1979\80 until 1985 you wanted to put George’s name on the list of people to be watched in case they had left the country?

A. No, I didn’t.

Q. I suggest to you that you were told not to put his name on the list?

A. No, that is incorrect.

Q. You were not told directly is that what you are saying?

A. In relation to the alert on George it was never raised between me and my senior officers.

…

Q. What arrangements did you make with other police [for George’s name to be put on a watch list or alert at points of international departure]?

A. Discussions – (objected to; allowed)

Q. Could you answer that question?

A. I had discussions with police concerning George and the outcome of those discussions led me not to consider putting him on the alert.

Q. A moment ago [you said] it had never even crossed your mind?

A. That’s right because of the discussions I had with other officers.”

42. Again from this evidence it would have been clear to the appellant’s counsel that George must have been a police informant. There was no other reason why his name would not have been put on an alert with respect to overseas departure when police had, at latest from receipt of Oti’s 17 October 1987 statement, ample prima facie evidence of George’s involvement in the two importations to which Oti was then admitting (those of July and December 1985). The framing of counsel’s questions indicated that he positively believed George had co-operated with police.

43. From all of this the appellant’s counsel would have very well understood why George was not called in the Crown case. Namely, because police preferred to minimise his exposure to identification through the trial process and to preserve his utility as an informant. It must have appeared to the appellant’s counsel that unless George was an informant there could have been no reason why he would not have been charged as a co-conspirator with the appellant in relation to the July 1985 importation and with other persons in relation to the importations of November 1984 and February 1985 (both of which were described in supplementary statements from Oti and Kwalu, served prior to the committal in early July 1988) and in relation to the importation of December 1985 (in which Oti had implicated George in his record of interview conducted on the day he and Mr Dursun were arrested).

The appellant’s dock statement

44. The appellant made an unsworn statement from the dock from which the following points are material for the purposes of this appeal:

1. He denied having any knowledge of or connection with Michael Asfour, his co-accused and alleged co-conspirator, during the charge period.

2. The appellant said he had never heard of George until his name was introduced in the prosecution case against him. He had no association with George.

3. He denied having seen or heard of Wilson Kwalu until the committal proceedings.

4. In 1985 the appellant had been carrying on business as a bookmaker in which he employed Samir Helais as his clerk. He denied having conspired with Samir Helais to import drugs into Australia.

5. With reference to evidence in the Crown case that Samir Helais had in 1987 sold his house and then left Australia on 24 December 1987, about two months after Oti made his first statement, the appellant said he was not told by Helais that he intended to sell his house and depart.

6. The appellant had planned a family holiday with his children for May 1985 during school holidays. He postponed his departure until the day after his brother’s wedding. At the reception for this wedding Samir Helais had said “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”. The named contact was Alfred Oti, whom the appellant contacted with the assistance of someone on the reception desk at his hotel in Honiara.

7. “So, I rang him [Oti] 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 to Honiara then Sam change his mind and Neil is arriving to Honiara. The (sic) he didn’t know anything about that whatsoever of the the only thing he could relate to Sam a Sam from Sydney.”

8. The appellant arranged for Oti to meet him at the appellant’s hotel. Oti arrived “fully intoxicated” and drank more after he arrived. Their conversation was primarily about a shop which Oti wanted to open in Honiara and Oti’s invitation to the appellant to be a partner in this proposed business: “Never he mentioned anything about Wilson Kwalu and if he mentioned anything about George I didn’t notice.”

9. Oti visited the appellant’s hotel again around 6 or 7 o’clock the next evening: “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.”

10. The appellant telephoned Samir Helais from Honiara but only to say that he was “not impressed whatsoever” with Oti’s attitude. Helais told the appellant that when the appellant had returned to Sydney “I will explain it all to you.” The appellant said nothing in this dock statement about whether Helais and himself ever subsequently discussed Oti.

11. From Honiara the appellant and his family flew to Fiji where he met his “engineer who designed the house in 1981”. This was apparently a reference to a house the appellant was having built at Clovelly in the eastern suburbs of Sydney.

12. After the brief encounter in Honiara the appellant “forgot about Oti from there on, never heard of him. Never spoke to him again and all this story about how drugs was discussed there and how to import it from Honiara and as you heard all along this trial it is nothing but a big lie. Big fabricated lie. …There was no money sent to him, that is Alfred Oti and never rang him from Sydney.”

13. The appellant “bought a Voice Call” (apparently meaning a pager device suitable for use with Voice Call’s service) “privately for $200 some time in November 85 or December 85. He was told by “the girl… on the switch” at Voice Call that he could not transfer the service into his name and that he should speak to the sales manager. In conversation with the sales manager:

“I explained to him the situation of the beeper and he brought a contract with the name of Jacob’s on it. I don’t know how the name got to it. But that is the contract with Jacob’s on it. He said ‘don’t worry about it we use this contract nothing to worry it will transferred in your name in no time’… I made 3 months in advance lease on the beeper and there has been no previous record to say I paid earlier payments than that. That was in December 85.”

14. In late May 1985 (the time when Oti said the appellant had provided the Voice Call service number and arranged for future contact by this means) the appellant did not have a beeper and did not know the Voice Call service number.

Circumstances of Oti giving evidence at trial

45. It is critical to our consideration of ground 1 to determine whether evidence of certain “previous representations” made by Oti several years after the trial are admissible on this appeal pursuant to s 65(2)(d) Evidence Act 1995 (NSW) (“the Act”). The term “previous representations”, taken from s 65, here applies to representations made by Oti previous to the hearing of this appeal, in which he purported to recant the evidence he had given at the trial in early 1989.

46. For reasons developed later in this judgment, admissibility of the evidence of these recantations will turn upon whether they were “made in circumstances that make it likely that the [representations are] reliable” (s 65(2)(d)). The circumstances in which Oti came to give his original evidence against the appellant in early 1989 have a bearing upon the question whether his subsequent recantations are “likely” to be reliable. Given that the “previous representations” are a purported unsworn recantation of evidence earlier given on oath, the context in which the earlier sworn testimony was given and the content of that testimony are in our view so connected with the subsequent recantation as to make that context and content a material part of the circumstances in which the recantations were made, relevantly for the application of s 65(2)(d).

Detective Venchiarutti’s evidence of the origins of Oti’s co-operation

47. Part of the context in which Oti came to give evidence for the Crown was adduced from him at trial as referred to at [23] – [32]. That is, that he thought George had “dobbed me in”, decided therefore to talk to police and was told by them that they were interested in any evidence he could give against the appellant.

48. On the hearing of this appeal AFP agent Venchiarutti, now Detective Superintendent, deposed that he was informed by senior officers on 27 September 1987 that Oti may be willing to speak to police. On 14 October 1987 he met with Oti at the Metropolitan Reception Prison where Oti was serving his sentence. Oti told the detective that he had “become closer to God” whilst in custody and that he now wished to assist authorities, asking that consideration be given to five matters for his benefit. Namely:

(1)   indemnity for himself and Kwalu;

(2)   protection for himself and Kwalu;

(3)   opportunity to continue in prison theological studies which he said he was undertaking to further his commitment to God;

(4)   representation at any application for parole or release on licence regarding any assistance he might give to police and

(5)   suppression of his name.

49. Detective Venchiarutti took Oti’s first statement, which was signed on 17 October 1987, by asking him questions and incorporating the responses into a narrative. Thereafter the AFP made their own enquiries to gather evidence which might confirm points in Oti’s account from sources independent of him. These enquiries were pursued in the Solomon Islands where Detective Venchiarutti gathered business records of banks and travel agents and took a statement from Wilson Kwalu.

50. By 30 March 1988 the Commonwealth Director of Public Prosecutions had indicated a willingness to grant indemnity for both Oti and Kwalu. On 20 April 1988 the Director issued the indemnities. Indemnities from prosecuting authorities in other relevant jurisdictions and a personal undertaking from the Solomon Islands Attorney-General not to use the evidence given by Oti and Kwalu against them were issued in May and June 1988. In accordance with Oti’s requests he was placed under protection in custody.

51. In an affidavit read on the hearing of this appeal Detective Venchiarutti deposed that neither Oti nor Kwalu was ever threatened by himself or by any other police officer to his knowledge to induce their co-operation with authorities. He deposed that both of them provided information, including their original and supplementary statements, of their own free will. In examination on this appeal it was put to Detective Venchiarutti that what he “really did [in interviewing Oti for his statement] was feed him information by way of, in a sense, assisting him with so-called objective evidence such as” the phone number for the Voice Call pager service. More sweepingly it was put to Detective Venchiarutti that he “fed the man Oti information in relation to the man Chidiac” which Oti “regurgitated in the statement you took from him”.

52. The detective denied both of these propositions and we accept his denials. The information which Detective Venchiarutti might have “fed” to Oti was not specified in the questions put to him in the cross-examination referred to in the preceding paragraph. Nor was there any evidence that in October 1987 the officers had independent information – such as the appellant’s travel movements, hotel bookings, phone numbers, records of phone calls made, banking transactions or the like – which could have been “fed” to Oti to enable him to fabricate an incriminating narrative around them. Such independent material was obtained months after Oti had signed his statement.

53. Oti’s statement of 17 October 1987 relates to his meetings with the appellant at the Mendana Hotel in Honiara in “late May or early June 1985”. He identified the appellant on a photo board. The statement recounts the substance of the meetings in terms substantially to the effect which he later gave in evidence at the trial of the appellant (see [21]), including the fact that the appellant provided to him the telephone number of the Voice Call switchboard, 211-1100. All of this detail respecting the appellant was given in Oti’s first statement before the police had obtained confirmatory business records. These were not obtained until early in 1988.

49. There is nothing in the evidence to cause the Court to doubt that Oti came to give his evidence against the appellant in the circumstances described by Oti himself at the trial and expanded upon by Detective Venchiarutti before us. It is not inherently implausible that Oti, facing a long sentence in a gaol far from his own country and suspecting that he had been “dobbed in”, should co-operate with police in exchange for, inter alia, their support for a reduction of sentence. There is nothing in the circumstances to make it inherently likely that Oti would have given a false account in this situation, in particular an account containing false allegations against the appellant. Oti’s own explanation, given on oath at the trial, was that he wished to provide police with a case against George. The motivation for this was not gratuitous malice against an unconnected innocent person. It arose from Oti’s contention that George had been involved in the sequence of importations and his belief that George had informed on him. Other evidence in the appeal establishes that George was a police informer in 1985.

50. Subject to our ruling on admissibility of Oti’s out-of-court unsworn recantations, dating from November 1994 and March 1997, there is no admissible evidence that Oti produced his statements and later gave evidence at the trial under pressure from police in any way which would cast doubt upon the reliability of that evidence. Nor is there evidence of any improper inducement. There was no impropriety in Oti having been informed that his co-operation would be taken into account for reduction of sentence. It is the policy of the law to encourage offenders to provide information to police and to give credit for such assistance in reduction of sentence. This is reflected in current sentencing legislation of the Commonwealth and of New South Wales and has been recognised by the courts in sentencing principles restated over decades: R v Perez-Vargas; R v Stevens (1986) 8 NSWLR 559; R v Cartwright (1989) 17 NSWLR 243.

Durak Dursun’s account of a recantation letter or letters of late 1989

56. Evidence was given on this appeal by Durak Dursun (Oti’s co-conspirator in relation to the 1985 drug importation for which both were imprisoned) and Ian Jameson (a private investigator) of events which were said to have prompted an approach to Oti in November 1994 to obtain written and oral recantation of his trial evidence. Mr Dursun swore an affidavit in which he adopted a record of interview between himself and Bill Tunstall, Mr Jameson’s partner in a private investigation business. The interview between Mr Tunstall and Mr Dursun had taken place on 14 July 1994 whilst the appellant was still serving his sentence. Mr Dursun had been released on 15 September 1993 having served one week short of 7 years and 9 months in prison.

57. The interview contains statements by Mr Dursun to the following effect, so far as relevant to the present appeal:

1. George was involved in importations of heroin from Malaysia into Australia via Honiara in 1985 including the importation of December 1985 for which Oti and Mr Dursun were prosecuted and convicted.

2. George was a police informer who had “set up” Dursun and Oti.

3. Mr Dursun used to “look after [Oti, in prison] because he was scared… he doesn’t know nobody here and plus he is a Custom Officers (sic)…”.

4. In prison Oti “never mentioned Neil Chidiac’s name or anything he always mention, he wants to fix George… up for putting him into gaol like he do, he would like George… to do time like he done…”.

5. The investigator showed Mr Dursun a statutory declaration, apparently drafted for Mr Dursun to swear. It contained statements that police “intentionally convinced Oti to fabricate the evidence of what he was involved in and implicate Neil Chidiac instead”. The statutory declaration also contained words to the effect that police had recruited Kwalu “to fabricate and back up Oti’s version of the events”. It appears that this statutory declaration had been drawn up prior to the interview and was presented to Mr Dursun with a view to having it adopted. However he said that he could not write or read English and he did not adopt it.

6. Whilst both Oti and Mr Dursun were in gaol Oti wrote to Mr Dursun a number of letters to the effect that he felt bad because he had put an innocent man, the appellant, in prison. Mr Dursun did not have the originals or copies of these letters but undertook to Mr Tunstall that he would search for them amongst his possessions. These letters were sent between the two men from one gaol to another whilst they were held separately, Oti being in protection. Mr Dursun was asked whether Mr Oti said that he “[g]ave the wrong evidence” and Mr Dursun replied “[y]eah wrong evidence”. According to Mr Dursun Oti did not explain in these letters “why he gave the wrong evidence against Neil Chidiac”. Mr Dursun offered his own speculation that “maybe the police force him to”.

7. Mr Dursun had never heard of Neil Chidiac until he read in the newspapers about him having been arrested and charged with conspiracy to import drugs. Up until then George had never mentioned Mr Chidiac. After this Mr Dursun met the appellant when both were serving their respective sentences in Parklea gaol. In the interview Mr Dursan described this meeting as follows:

“And when I go to Parklea I show the, that letter to Neil Chidiac. …You know I feel sorry for him or something… And then after Neil Chidiac wasn’t worried about it at first. He’s you know, and after he’s realised after, I give him that letter that I think’s true you know, but I don’t know whether I give him or didn’t give him…”.

8. Mr Dursun did not have the letters or any of them with him at the time of the interview but said he would search for them, they were “probably at my brothers (sic) garage or somewhere”.

9. After Mr Dursun was released from prison he rang Oti once, in 1993, and “I say how are you you know, how’s your family and all that”. Mr Dursun agreed that he would be willing to ring Oti again and talk to him.

58. In oral evidence given at the hearing of this appeal Mr Dursun referred to only one letter from Oti on the subject of his having given false evidence against the appellant, rather than a series of letters as referred to in the July 1994 record of interview. He said that he and Oti were together in Long Bay on remand for 18 months. Then Oti was moved into protection at Long Bay and Mr Dursun was moved to Goulburn. The letter was sent from Oti’s protective custody to Mr Dursun at Goulburn.

59. Mr Dursun said that the letter was to the effect: “Sorry what I done wrong with these people and they put me in the corner, I have to say what I have to say. Make me a liar… I’m very sorry for what I have done to these people”. He gave these further answers (at T 87 – 88):

“A. …when I get the change to Parklea, I hand letter to Mr Chidiac, maybe help him with his case if this guy is telling the truth, what he writes in the letter, he done something wrong to some people so he’s asking, ‘Sorry what I done to other people’, so I give it to help the court case and the people.

…

A. …I just seen Neil Chidiac – from Parklea I give it to him, he give me back the letter, he says he doesn’t need this letter for freedom because everything in black and white so he give the letter back to me and I ripped it up and threw it in the rubbish.

…

Q. You didn’t think you should keep it?

A. What I keep it for? I already give Neil Chidiac the letter. He comes back two weeks later and says, ‘I don’t need this letter for freedom’ because his case is very strong for his side so he give the letter back to me. I don’t want to keep it, I don’t need that letter.”

60. Mr Dursun’s best estimate of when he had given the letter to Mr Chidiac was “three years before I get released”, which would have been about the second half of 1989.

61. In a record of interview conducted in Honiara by Mr Jameson on 23 November 1994 (see [72] – [92] below) Oti said that he sent a letter (not multiple letters) to Mr Dursun while they were both in gaol (at [83]). In this he had apologised for having given evidence against the appellant and had written that he “was sort of cornered” and had not intended “to put Neil in gaol”. He told Mr Jameson that he did not have a copy of the letter. He was not asked and did not say why he had written in this vein to Mr Dursun, a man with whom Oti has never asserted that the appellant had any connection. He was not asked and did not say why he had not written directly to the appellant, who was also in gaol at the time the letter was said to have been sent. The Court is not satisfied that any such letter was even written.

Oti’s handwritten recantation, 23 November 1994

62. The appellant tendered on this appeal three documents purporting to contain statements by Oti contradicting and retracting the evidence he gave at the appellant’s trial in January and February 1989. The first is of three and a half pages said to be in Oti’s handwriting and signed by him dated 23 November 1994. Oti had been released from prison on 22 June 1991 and by November 1994 he was again residing in Honiara.

63. The handwritten statement is to the following effect:

1. After Oti had been sentenced (on 3 April 1987) Detective Venchiarutti and another officer visited him in prison and said they

“had known about my other involvement in importing of drugs into Australia and they mentioned Neil Chidiac as one of my conspirators. I was asked to tell everything about this particular importations, otherwise I would spend a very long time in gaol… . They told me to make statements against Neil but most of what I had alleged were not correct or true because of pressure… I was afraid the police might give me additional sentence to what I had already got”.

2. Reasons for (purportedly) giving the truth in this handwritten statement were stated thus:

“[N]ow I am out of gaol and served my time I could now give the true events or statement of the drugs importation that implicated Neil and landed him. Therefore, I am no longer afraid of getting any more sentence from the Police. I am now reformed and I’ve been a dedicated Christian since I had got out of gaol.”

3. The appellant “was not involved in any drugs importations that I am aware of”.

4. Oti met the appellant and his family in Honiara at their hotel but this was only to “chat and to say hello”. Oti only ever received $40 or $50 from the appellant which Oti had requested at the hotel in Honiara “for ‘booze’”. There was no discussion between Oti and Chidiac (with or without Kwalu) concerning the importation of drugs.

Durak Dursun’s account of obtaining Oti’s recantations, 23 November 1994

64. Mr Dursun agreed he went to the Solomon Islands in 1994 with Ian Jameson to obtain a statement from Oti, which in the event was the statement of 23 November 1994 referred to at [62] and [63]. Mr Dursun said this trip came about because “a couple of lawyers and people” came to ask him about the letter after he had been released and he said to them “I just put the letter in the rubbish but if you want me to talk to Mr Oti, I can talk to him and get a statement from him, it’s better to help you out for the court”. He told them “if you want a letter from the guy, I can get it in writing another letter exactly what he’s writing”. The day after this the “couple of lawyers and people” got permission from Mr Dursun’s parole officer for him to go overseas for a week with Ian Jameson to get a statement from Oti.

65. Mr Dursun claimed that he went to visit the appellant in Parramatta Correctional Centre before going to Honiara and that the appellant asked him to “help me out”. He gave this evidence at [T 90]:

“Q. Did he say specifically why he wanted you to go to Honiara?

A. Because no one talked to Alfred Oti, he doesn’t trust anybody except me. I can get this information without doing anything wrong, you know.”

66. This answer is inherently contradictory. If neither the appellant nor anyone acting on his behalf had spoken to Oti then they would not know whether he did or did not trust persons other than Mr Dursun. Mr Dursun was asked why it would not have been sufficient for him to ring Oti and arrange for him to meet Mr Jameson who was, in any event, going to Honiara in the capacity of private investigator on Mr Chidiac’s behalf. Over the course of a page of questioning recorded in the transcript at T 90 – 91 Mr Dursun failed to give any satisfactory explanation for why it was necessary or useful for him as well as Mr Jameson to go to Honiara.

67. Mr Dursun said that when he did travel to Honiara with Mr Jameson in 1994 he contacted Oti and arranged a meeting at a hotel where he left the two of them together for the taking of the statement. (In cross-examination he said he remained present for “most of the time”). Prior to this meeting he told Oti that he wanted a letter similar to the one Oti had sent whilst in prison, “…‘no lying, no one pushing you to lie. If you don’t want to talk you don’t want to talk. It’s up to you. …this man is going to do interview and tell the truth, brother’.” (T 95). He told Oti that he had thrown the previous letter in the rubbish and wanted a new, similar letter to take to the courts. Mr Dursun said he did not read what Oti wrote that day as he is not proficient in reading or writing English. Mr Jameson said he was happy with what he got from Oti and therefore Mr Dursun was not concerned to see the content.

68. Mr Dursun denied that Mr Oti was paid any money for making the handwritten statement of 23 November 1994 or for participating in a recorded interview with Mr Jameson (to which further reference will be made shortly). He also denied that he attended in Honiara for the purpose of standing over Mr Oti or that he did in fact stand over him. He said the statement was taken over about two hours, which we infer would include the conduct of the recorded interview between Mr Jameson and Oti.

Ian Jameson’s account of obtaining Oti’s recantations, 23 November 1994

69. In an affidavit read on the hearing of the appeal Mr Jameson deposed that he visited the appellant at Berrima Correctional Centre whilst the appellant was serving his sentence. No date is given but this is likely to have occurred in about the first half of 1994. Mr Jameson was asked by the appellant’s solicitor to conduct inquiries in relation to the offence for which the appellant had been imprisoned, including re-interviewing witnesses and co-offenders. Mr Jameson deposed that Mr Dursun was asked to act as an intermediary with Oti because Oti “had a great fear of all police” and Mr Jameson wanted someone to assure Oti “that we were not working for the police and we were not attempting to endanger anyone else including Mr Oti”.

70. Mr Jameson further deposed that he met Oti in Honiara and asked him to prepare a written statement, which resulted in Oti writing out the document of 23 November 1994 referred to at [62] and [63]. Mr Jameson also conducted a taped record of interview. He identified and authenticated a transcript of that record of interview, also made 23 November 1994. According to Mr Jameson no gifts or rewards were provided to Oti.

71. In cross-examination Mr Jameson described Mr Dursun as a “likeable larrikin” and said that the reason for having him ring Oti before they flew to Honiara and for taking Mr Dursun on the trip was to “allay Oti’s fears that I wasn’t there for any other purpose apart from to gain the truth about Neil…”.

Oti’s record of interview, 23 November 1994

72. The transcript of Mr Jameson’s taped record of interview with Oti on 23 November 1994 covers 46 pages. The content of the first one third of it may be summarised, by reference to page numbers, as follows:

1 – 2: Confirmation by Oti that the handwritten statement of the same date had been made by him and was correct.

2 – 10: Outline of Oti’s first meeting with George in Honiara in 1979 or 1980 and of the first importations into Australia in 1984 and 1985. The answers in this part of the record of interview are for the most part to the same effect as Oti’s evidence-in-chief at the trial of the appellant including the fact that the appellant was in Honiara in May 1985 – but omitting the content of Oti’s conversations with him and omitting any account of subsequent telephone communications between them.

10.8: Oti denied that when he had been speaking to the appellant in Honiara there had been any discussion of importing drugs.

11: Detective Venchiarutti had interviewed Oti in custody and told him police had been trying to “get” the appellant “for drugs”.

11 – 12: Earlier, at the time of his arrest, Oti had told other police officers “the full story” of George’s involvement but not of that of Sam Helais, Michael Asfour or Durak Dursun.

12 – 15: Oti gave an account of how he came to make his first statement implicating the appellant. He said Detective Venchiarutti told him that police believed the appellant was involved in importations. He was “asked to tell everything about this particular importations (sic), referring to Neil Chidiac, otherwise I would spend a very long time in gaol”. He did not assert that he was told, in terms, an additional sentence was going to be added to that which he was already serving but rather that he “got that impression” from what the police said to him. He gave these answers:

“Q: …But as you have said earlier Neil had no involvement in the drug importation. Why did you say that he did have?

A: It was Err a came up with the assumption that he was involved in the Err drugs Err involvement. Because of Sam Helais and [George] and they informed me that Err Neil was come for a holiday and I was going to met (sic) him. And I thought Err I assumed that he was involved with them with drugs importation.

Q: Right. And for that reason… did you take opportunity of the fact that Neil had come here for a holiday visit to tell the police that he was involved sso… (sic) that you would get a shorter sentence.

A: Yes.”

15 – 17: Oti said he tried to tell the police interviewing him about the involvement of George and Sam Helais but they did not appear interested.

17 – 18: Oti reiterated the part of his handwritten statement of 23 November 1994 in which he claimed he never saw Kwalu have a conversation with the appellant and said that the three of them had not discussed importation of drugs together.

73. At pp 18 – 19 Oti gave the following answers in an attempt to explain the difference between the information he was giving to Mr Jameson in November 1994 and the evidence he had given at the appellant’s trial:

“Q: [Y]ou’ve now… reformed and you are a dedicated Christian since you got out of gaol.

A. Yes.

Q: I have read the transcript of the court proceeding [i.e. the appellant’s trial] and in those proceedings you had also said that you were reformed.

A: Yes

Q: And then telling the truth

A: Reformed not in another sense. In another sense not in the same as I’m in now.

Q: Right. So can you explain that for me?

A: For what I meant then was I had not been a dedicated Christian or going to church for over 20 years until I went into gaol. I started to go to church and saying prayers.

Q: And you say that you now you have reformed since you’ve got out of gaol. What has reformed you since you got out of gaol?

A: Arr… Now I have been reformed arr… meaning that I have been born again, Which is different from the time I was in gaol.”

74. At p 19 there was also an attempt by Oti to explain his change in position by reference to reform from alcoholism:

“Q: Can you tell me now why some person or any other person would believe what your (sic) saying now to being the truth as distinct what (sic) you said before.

A: Well before I was content drunked and Err and I my memory was not Err I couldn’t remember things well. And I had confused mind. And now I have gone off these Err off these Err alcohol and Err I believe what I say now is clear with a clear conscious (sic) Err.”

75. Further, on p 19 having said that he now acknowledged the appellant “is an innocent man”, he gave these answers:

220. It appears from the cases that an appeal may succeed on the ground that a miscarriage of justice was caused by the Crown’s failure to call a material witness notwithstanding that defence counsel did not request the Crown to call that witness, even where the defence knew of his or her existence and knew the substance of the evidence he or she could give. See for example Diehm v Director of Public Prosecutions (Nauru) [2013] HCA 42; (2013) 203 ALR 42 at [66]. The failure of the accused to request that the Crown call a material witness has not been treated as governed by r 4 Criminal Appeal Rules (NSW), requiring a grant of leave to argue such a point on appeal.

221. However the failure of the appellant to request that the Crown call George in the circumstances of this case is a significant factor tending to negate any miscarriage of justice. The facts here bear close analogy to those in Tema v State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104. Mr Tema met a police informer named Eddie in Perth Western Australia and was shortly afterwards arrested in his motel room in possession of a large quantity of methylamphetamine. A public interest immunity claim by the Western Australian Commissioner of Police was upheld, at an early stage of the prosecution, in relation to subpoenaed documents relevant to “the informer status [of] or any application for indemnity [by]” Eddie.

222. After a delay of 9 years (during which the accused was at large in breach of his bail) the case came on for trial. During a voir dire examination a police officer stated that Eddie was an authorised undercover officer within the meaning of relevant Western Australian legislation. Defence counsel then appearing had not previously been aware of this. He was granted an adjournment to take instructions, in anticipation (so far as the trial judge was concerned) that he might wish to apply for the trial be aborted. However no such application was made, the trial proceeded and defence counsel did not request the Crown to call Eddie or ask the trial judge to direct that the Crown reconsider its decision that he not be called.

223. In dealing with a ground of appeal that the Crown had failed call a material witness, namely, Eddie, Blaxell JA (with whom Pullin and Buss JJA agreed) said this (with transcript references removed):

“[54] The question whether there was a miscarriage of justice should be viewed against the course of the proceedings as a whole including the manner in which Mr Tema conducted his defence. In this regard it is significant that Mr Tema and the senior counsel then representing him were aware at a very early stage of most of the matters now relied upon in support of ground 2 [i.e. the matters summarised in [225] – [226]].

[55] As a result of the preliminary hearing on 4 August 1997 Mr Tema was aware that he had been under police surveillance from the time of his arrival at Perth airport and that that surveillance had continued while he was in the company of Eddie. The police had mounted the surveillance operation as a result of information from Detective Paton. That information was that Mr Tema would be bringing amphetamines into Western Australia and that he would be in the company of Eddie. Detective Paton had also told Detective Kirby of the two motels where Mr Tema might stay. Detective Paton was present when room 12 was searched, and that same night had been in contact with Eddie by telephone.

[56] The obvious inference in these circumstances was that Eddie was a police informant who was acting in that capacity during the surveillance operation. Although Mr Tema and his counsel did not know that Eddie was an authorised undercover officer, it was obvious that his role had been much more than that of a passive police informant. That Mr Tema was alert to this fact was confirmed when his counsel submitted to French DCJ (on 21 June 1999) that there was “a very strong likelihood” that Eddie had brought the drugs into Western Australia. Counsel also referred specifically to the fact that there had been conversations between Paton and Eddie prior to the drugs being found.

[57] Although Eddie was not named on the indictment as a prosecution witness it was always open to Mr Tema to request that he be called. In the event of the prosecution refusing that request, the issue could have been aired with the judge (pursuant to Apostilides proposition 2) on any of the occasions when the matter was before the court during 1998, 1999, 2000 and 2009. The ruling by French DCJ upholding public interest immunity in respect of Eddie’s status as a police informer did not prevent Mr Tema from taking this course.

[58] By the time of Mr Tema’s trial in 2009 he and his counsel were also well aware that Detective Paton had been convicted of offences involving police corruption in 2003. As shown by his counsel’s opening address, that fact was the main string in the bow of the defence. If this new information about Paton combined with what was known about Eddie necessitated the latter being called as a witness then it was still open for Mr Tema to request that this occur. That option remained available when it also became known that Eddie had been an authorised undercover officer with a criminal record.

[59] In the end, and after all of the matters now relied upon were made known to Mr Tema, the trial was adjourned to allow him to consider his position. That adjournment was specifically for the purpose of enabling Mr Tema to instruct his counsel whether he wanted the trial to continue. In that regard, it was clear from the trial judge’s remarks made before the adjournment that any application to abort the trial would have received serious consideration.

[60] Following that adjournment Mr Tema did not apply to abort the trial. It was entirely a matter between him and his counsel as to why he did not give those instructions, but it may well be that he saw some advantage in the trial proceeding in Eddie’s absence. That would be particularly so if he believed that Eddie’s evidence would potentially strengthen the case against him.

[61] Whatever the reason, Mr Tema effectively elected to proceed with the trial rather than apply for an adjournment with a view to Eddie being called. Mr Tema made that decision upon advice, and with knowledge of all of the circumstances that he now raises in support of ground 2 of his appeal. In my view it necessarily follows that he was not prejudiced in the conduct of his defence and that there was no miscarriage of justice. Ground 2 must fail.”

228. Similarly to the view taken in Tema v State of Western Australia, we conclude that the choice of the appellant’s counsel not to require the Crown to call George is the dominant consideration in determining whether any miscarriage of justice occurred in the present case. The appellant is bound by his counsel’s conduct of the case: R v Birks (1990) 19 NSWLR 677 at 685. In any event, there has not been tendered any evidence to suggest that the appellant did not agree to the course taken by his counsel with respect to George.

229. Here, the appellant’s decision to refrain from requiring that George be called was not only forensically sound, it led to a most favourable outcome. Namely, that the trial judge gave the jury a very strong direction in accordance with Jones v Dunkel.

230. His Honour’s summing-up included this passage (AB 2/721):

“Well, then we come to the other person, George. Now, George is known – you don’t know his name because I made an order to suppress it, but we know that Asfour was going out with his sister. We know that the police have had contact with George and we have not seen George. George is not even named in the indictment. He is one of the divers other persons. Now, George is the only one who can give direct evidence implicating Asfour and Chidiac because it is George, according to Oti, if you could believe anything Oti said, who said that Neil is coming. It is George who is said to have been present when Kwalu handed the stuff over in Brisbane.

Now, as judges of fact you have to decide it on the evidence that is given. You cannot speculate upon what a witness may or may not have said if that person had been called, but the law is not stupid and the law is that if there is a witness who, on the face of it, can give evidence relevant to an issue before the jury and he is not called, the party who could have called that witness, that is the party who would say that the evidence would support its contention does not, and there is no explanation given for failing to call that witness, an inference which the jury can draw, does not have to draw but can draw, is that that witness cannot give evidence which supports the proposition put by that party. If I can rephrase that, if a party, in this case – the Crown – on the face of it George could have given evidence identifying Chidiac and Asfour as being part of this agreement, the Crown did not call George, no explanation has been given as to why he has not been called, that is that he might be dead or sick or out of the country or something like that, but no such explanation has been given, then an inference which the jury can draw is if George had been called he could not have given evidence which would implicate Chidiac or Asfour, and you might think that that is just ordinary, straight commonsense.”

231. The Crown asked for this direction to be withdrawn on the basis that “it would not normally be expected that the Crown would call a co-conspirator to give evidence”. The trial judge refused. His Honour also made remarks to the effect that he suspected he had been “conned” and that his “leg” had been pulled in the application for suppression of the identity of George, given that he was not called as a witness. We do not understand in what respect his Honour suspected that he had been deceived regarding this but it does not appear to be significant to the present appeal. We do not ourselves entertain any such suspicion. If material was shown to his Honour supporting the immunity claim, the suppression orders would have been appropriate whether George was to be called or merely referred to by other witnesses.

232. The failure to call George was not in breach of the prosecutor’s duty to call all material witnesses in circumstances where the Crown had a very good reason for the course it adopted. The Crown would properly be willing to co-operate in the desire of the police to protect George as an informant from exposure to identification through giving evidence. The defence did not request that the witness be called. In those circumstances we doubt that the strong Jones v Dunkel direction should have been given. The observations of Gaudron and Hayne JJ in Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at [6] and of four Justices in Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 at [27] are against the validity of the direction. But accepting a more limited principle concerning the giving of a Jones v Dunkel direction with respect to the presentation of a Crown case (see R v Riscuta and Niga [2003] NSWCCA 6 at [99] – [104] and R v Bolte [2010] SASC 112 at [20] – [23]), the trial judge’s direction in this case does not appear to have been warranted, even as the law stood before Dyers v The Queen. The direction as given was a windfall for the appellant.

233. Another forensic advantage to the accused flowing from his counsel not having requested the Crown to call George was that the Crown committed itself irrevocably. If a request had been received and if George was regarded by the Crown as a witness of truth, in order to ensure a fair trial and a verdict which would be defensible upon appeal, the AFP would have had to waive its public interest immunity claim. It may well have been prepared to do so in order to secure conviction of the appellant and his co-accused. The Crown committed to running the trial without George, which was its preference, in circumstances where the appellant acquiesced in that course.

234. Because the trial judge is not required to adjudicate upon the sufficiency of the prosecutor’s reasons for refraining from calling a witness, controversy about such a decision at trial usually does not lead to the judge ordering a stay on the basis that the trial cannot proceed fairly in the absence of the witness. Incurable unfairness resulting from failure to call a witness, in all the circumstances of the case, is something that generally can only be shown in retrospect on appeal, not in the course of the trial on an application for a stay of proceedings on the indictment.

235. However, where the Crown does not suggest that the relevant witness is untruthful but declines to call the person solely because public interest immunity is claimed in respect of his or her identity or some part of the evidence that might be given, then incurable unfairness may be capable of being identified at trial.

236. There is authority for the proposition that proceedings on indictment may be permanently stayed where material information or a material document is withheld from the accused pursuant to a valid claim for public interest immunity, if the withholding would render a trial upon the charge unfair: Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 431 per Murphy J; Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [87], [97]; R v Lappas [2001] ACTSC 115.

237. It may be that in an appropriate case the withholding from the accused of a witness, like the withholding of a document, upon a valid claim of public interest immunity would similarly justify a permanent stay. But assuming that to be so, the application for stay at trial would have to have been preceded by a requirement from the accused that the Crown should call the witness. The Court need not consider further the possibility of the proceedings on this indictment having been amenable to a stay, given that the appellant’s counsel made no request for George to be called.

238. So far as ground 3A rests upon the first proposition it fails.

239. With respect to the second proposition in ground 3A (see [210]), absence of a witness in circumstances such as those with respect to George cannot of itself render a guilty verdict “unreasonable, or [such as] cannot be supported”. That basis for setting aside a verdict is to be considered, in a conventional appeal, by reference to the totality of the evidence which was before the jury; in this appeal it is to be considered by reference to the trial evidence plus any additional evidence tendered and properly admissible in this Court. Failure of the Crown to call a witness is a conceptually distinct basis of challenge to a verdict, having to do with the fairness of the trial rather than the capacity of the evidence to prove a charge beyond reasonable doubt. The attempt to conflate the concepts in the drafting of ground 3A is misconceived.

240. The appellant cited the judgment of Gleeson CJ, Gummow, Kirby and Kiefel JJ in Mahmood v State of Western Australia at [27] in support of this second proposition:

“In the joint reasons in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [27]-[29] it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. Similar views were expressed by Gaudron and Hayne JJ and by Callinan J in Dyers v The Queen [2002] HCA 3; (2002) 210 CLR 285 at [13], [120]-[123].”

241. The purpose for which a jury may use the unexplained absence of a material witness as contributing to a reasonable doubt is unrelated to the determination by a court of criminal appeal of a ground concerning failure to call a witness. Such a ground of appeal goes to whether there has been a miscarriage of justice in the conduct of the trial, a question which is never before a jury. The passage cited from Mahmood v State of Western Australia only confirms that the second proposition in ground 3A is misconceived.

242. We reject ground 3A.

Ground 3(a) – fresh evidence from Durak Dursun

243. Under ground 3(a) the appellant’s argument is that Mr Dursun’s evidence corroborates fresh exculpatory evidence from Oti, being the latter’s recantations of November 1994 and March 1997. This material from Oti has been rejected by the Court and therefore any purported corroboration of it from Mr Dursun is irrelevant and does not form part of “the case as a whole” which the Court is required to consider under s 79 Crimes (Appeal and Review) Act.

244. In any event, Mr Dursun’s evidence does not in the Court’s view corroborate the exculpatory recantations of Oti which the appellant tendered. If it did we would have taken the corroboration into account in determining whether Oti’s “previous representations” were “likely” to be “reliable” in the course of deciding the admissibility of the recantations under s 65(2)(d) Evidence Act. Mr Dursun’s evidence in this Court is summarised at [56] – [61] and [64] – [68]. We have already stated at [61] our finding that what Mr Dursun has said about Oti having written a letter or letters of apology for falsifying his evidence against the appellant contains significant internal contradictions, is inherently improbable and not credible or reliable. Even if Mr Dursun’s evidence were accepted that such a letter or letters had been written, this would do nothing to confirm the veracity of Oti’s purported recantations of 23 November 1994.

245. Mr Dursun’s evidence of having spoken to the appellant in Parramatta Correctional Centre before going to Honiara in November 1994, of accompanying Mr Jameson and obtaining Oti’s recantations similarly provides no confirmation of the substance and effect of those recantations.

246. Accordingly, the Court rejects the appellant’s contention in ground 3(a) that Mr Dursun’s evidence “consolidates the conclusion that the appellant’s guilt is not established beyond a reasonable doubt”.

Ground 3(b) – evidence of Alan Taciak regarding George

247. Ground 3(b) repeats the misconception referred to at [239]. Namely, that the failure of the Crown to call a material witness can in some way be factored into an assessment of whether the verdict of guilty was “unreasonable, or cannot be supported” on the basis of the evidence at the trial, taken together with any new or fresh evidence received in this Court.

248. The evidence of Mr Taciak “in relation to the failure to call ‘George’ at trial” which is relied upon for par (b) of ground 3 has been summarised at [199] – [206]. It is invoked by the appellant as proof that George was regarded by the AFP as “reliable” at the time of the trial. That, taken with the circumstance that he now says he does not know of the appellant having conspired to import drugs, is said to lead to the conclusion that he should have been called and that his absence led to a miscarriage of justice. These submissions have been addressed at [206] – [209] in relation to ground 2 and at [210] – [237] in relation to ground 3A.

Ground 3(c) – evidence concerning the appellant’s pager

249. The evidence in relation to the appellant’s pager which is sought to be relied upon for the purposes of par (c) of ground 3 is, first, the evidence on this appeal of the appellant himself. At par 26 of his affidavit sworn 31 May 2013 he deposed that he did not have a pager in May 1985. According to the affidavit he purchased a paging service with Voice Call in about November or December 1985 “and the earliest payment I made was December 1985”, when three months in advance was paid. In cross-examination the appellant adhered to this affidavit evidence. He acknowledged his signature on the Paging Service-Rental Agreement (described at [33]) but said he had put it there in November 1985 upon taking a transfer of the beeper device and an assignment of the contract from another person. He did not identify the transferror.

249. This evidence is to the same effect as the appellant’s unsworn dock statement (see [44](13) and (14)). Although it could have been given on oath or affirmation by the appellant at his trial, evidently a tactical decision was taken that he should not expose himself to cross-examination. We understand the effect of the passages cited at [10] and [11] from M v The Queen to be that the evidence is now to be weighed as part of “the whole case” in deciding whether the verdict is shown to be “unreasonable, or not supported”.

250. Secondly the appellant relies upon an affidavit of Tony Hughes read in the appeal, together with his oral evidence given before this Court. Mr Hughes only commenced employment in the telecommunications industry in 1987, two years after the date at which facts relevant to the operation of telecommunications paging services became material in this case. He deposed that alphanumeric pagers were only introduced shortly before 1987 and that, before the advent of these devices, a caller would only be able to make contact with a paging service subscriber if he knew a unique pager number.

251. This evidence is contradicted by that which was tendered at the trial (see [35] – [37]). The Crown called witnesses who worked for the very paging service company which utilised the telephone number that Oti said he was given by the appellant. Those witnesses proved, with the support of contemporaneous business records, that an alphanumeric pager had from 21 June 1984 been on issue under the agreement which bears the appellant’s signature (irrespective of when that signature may have been made). The Crown witnesses at trial proved that a caller might well be able to contact a paging service customer even if the caller only had part of the customer’s name. In oral evidence Mr Hughes, having been shown the Paging Service-Rental Agreement signed by the appellant, said that the caller would have had to give the subscriber’s full name in order to make contact. We do not consider that Mr Hughes was in as good a position as the witness called by the Crown at trial to speak on this subject. We accept Ms Hunter’s evidence as summarised at [36].

Ground 3(d) – reasons for the appellant’s visit to the Solomon Islands

253. In his affidavit filed in this appeal the appellant gave the following explanation for having travelled to Honiara in May 1985:

“3. My decision to travel to the Pacific Islands with my family was made around the time that my brother Emile Chidiac was to get married. The primary reason I was going on this holiday was originally to see my architect, Mr Kenneth Low, who was resident at the time in Fiji. I was having problems with the building of our then family home at 30 Ocean Street, Clovelly, New South Wales, which had been designed by Mr Low.

4. My original intention was to fly only to Fiji. My travel agent, Mr Makram Mansour, of the Golden Wing Travel Agency in Campsie, New South Wales, said to me words to the effect: ‘What a waste of a trip. You can do a tour of the Pacific Islands and it would be more cost effective and enjoyable for the family’. The trip we booked was for 10 days to Honiara, Vanuatu and then Fiji and we were staying three days in each of those places. Mr Mansour is now deceased.”

254. Further evidence explaining these purposes of a family holiday and a visit to the architect in Fiji was given in cross-examination. In addition the appellant filed an affidavit of the architect, Mr Low, sworn 19 October 2012. Mr Low deposed that he was engaged by the appellant in July or August 1981 to prepare plans for a home to be built at 30 Ocean Street, Clovelly. After he had prepared plans the appellant dealt directly with his own builder but called upon Mr Low to attend to difficulties with the job “at least six times in the early 1980s”.

255. Mr Low’s affidavit, so far as relevant, is in these terms:

“7. On 24 July 1983, I decided to return to Fiji to recuperate from injuries sustained in a serious motor vehicle accident on 14 July that year in Sydney.

8. Shortly before I left Sydney for Fiji, I recall that I had a telephone conversation with Neil Chidiac during which I said to him words to the effect; ‘If you have any further problems, contact me in Fiji’. In fact, I had told all my clients that I was leaving Sydney and for them to contact me in Fiji if required.

8. To my knowledge, Neil Chidiac was experiencing ongoing problems with the construction, particularly in relation to the water drainage problems, and, at some point in 1984, on a trip back to Australia, Neil Chidiac came to see me and we visited his building site and discussed his problems with the construction. At that visit I also gave Chidiac my business card with my contact details in Fiji.

9. Also at that time, it was not uncommon to have former clients from Australia visit me in person at my office in Fiji often without appointment.

10. On or about May 1985, Neil Chidiac and his then wife paid me a surprise visit at my office in a Naviti Street, Lautoka, Fiji. We talked about his house and the ongoing problems with its construction, and I promised him to make a site visit to investigate the problems the next time that I was in Sydney.

11. I recall that later that evening I had dinner with Mr Chidiac and his then wife in Lautoka where we continued to discuss the problems he was experiencing with the construction and social chit chat.”

256. A letter from Mr Low dated 25 July 2008 was also tendered in the appeal. This included the following:

“Before I left Sydney, I passed over all my clients’ business files and plans, over to my colleague and associate Ian Rixon of Ian Rixon & Associates, Architects in Sutherland, NSW.

At the end of May to early June 1985, Mr Chidiac paid me a visit to my office at 21 Naviti Street, Lautoka, Fiji, and discussed the problems relating to his building under construction.

As I had to travel to Sydney to see my doctors for medical checkups relating to the car accident claims, I promised Mr Chidiac I should call on him when I was next in Sydney, and introduce him to Ian Rixon who could continue to provide him with architectural service.

According to entries in my office diary records –

On 6/6/1985, I flew to Sydney from Fiji.

On 11/6/1985, I called in on Mr Chidiac in Sydney.

On 12/6/1985, I had lunch with Mr Chidiac and a good friend of mine, in Sydney.

On 18/6/1985, I called in to Ian Rixon’s office in Sutherland.

On 19/6/1985, I returned to Fiji.

On 26/7/1985, I was again in Sydney and again arranged with Ian Rixon regarding Mr Chidiac’s house plans.”

257. In the Court’s view this new evidence of the purported legitimate purpose of the appellant going to Fiji, as a foundation for characterising the diversion to Honiara as a holiday supplement, suffers from significant inconsistency between the appellant and Mr Low and from inherent improbability of the appellant’s account.

258. The appellant deposed that his intended meeting with Mr Low was the “primary reason” for his visit to the Pacific. In cross-examination he said that he pre-arranged, by telephone, his attendance upon Mr Low, as would be expected for a business appointment which was to be the main reason for international travel. Mr Low contradicted this in par 10 of his affidavit, describing the appellant’s call upon him in Fiji as a “surprise visit”.

259. The appellant’s claim that he travelled to the Pacific primarily to consult with Mr Low is highly improbable. In cross-examination he said that he took the house plans with him, met Mr Low at an Indian restaurant and had Mr Low make alterations, in the first instance on a “sketch”, whilst he and Mr Low were together. The sketched changes were incorporated into amended plans of which the appellant took delivery from Mr Low in Fiji. The alterations were intended to address water ingress into a cellar and below-ground garage area and to revise the use of piers and beams. But Mr Low had not seen the state of the excavation when this consultation took place. He had last been there 6 to 8 months earlier. The appellant claims to have taken him photographs and described to Mr Low the “soft rocks”. It would seem highly unlikely that Mr Low would have undertaken such redesign without a site visit and equally unlikely that the appellant would have asked him to do so.

260. The appellant could offer no sensible reason why the outcome he described for the meeting with Mr Low could not have been achieved by posting him a copy of the plans, accompanied by photographs of site conditions and a phone call to describe the conditions encountered in the excavation.

261. Mr Low’s letter of 25 July 2008 quoted at [256] states that he was in any event travelling to Sydney for medical reasons in early June 1985 and that he had promised to call on the appellant and “introduce [him] to Ian Rixon who could continue to provide him with architectural service”. As can be seen from his letter, Mr Low did in fact travel to Sydney on 6 June 1985, the very day the appellant returned and he did meet with the appellant in Sydney on two occasions in the first half of June 1985. This shows the lack of necessity for the appellant to have gone to Fiji for the “primary purpose” which he asserts. It contradicts the appellant’s account of having pre-arranged a business visit to Mr Low and of having secured alterations to the house plans whilst there.

262. The purportedly innocent explanation for visiting Honiara at this time is yet one further step removed. It depends upon the proposition that the appellant found it attractive to convert his purported business trip to Fiji into a 10 day circuit of Pacific locations, with about 3 days in each of the Solomon Islands, Vanuatu and Fiji. The Court does not feel a reasonable doubt about the conviction on the basis of this evidence. We reject the purported business purpose of going to Fiji for reasons given above. This leaves the appellant’s account of a family holiday to the Solomon Islands unsupported by the explanation of its origins, as the appellant sought to establish them. The whole circuit trip around these Pacific locations is at least consistent with the creation by the appellant of a cover story for his visit to Honiara in furtherance of the conspiracy, in the manner recounted by Oti at trial.

Ground 3 – conclusion

263. Ground 3 asserts that the further evidence identified in pars (a) to (d) “consolidates the conclusion that the appellant’s guilt is not established beyond reasonable doubt”. It is not useful for the Court to try to reach a conclusion about the existence of reasonable doubt upon the basis of some part of “the whole case” and then to inquire whether some other part (such as the items referred to in pars (a) to (d) of ground 3) “consolidates the conclusion”. Mallard v The Queen gives no authority for a piecemeal, sequential approach such as this. Rather, whether this Court is to find that the verdict was “unreasonable, or cannot be supported” must be answered by looking at all of the evidence at trial together with all the additional evidence tendered in the appeal as one entire body of proof.

264. As a result of the findings and determinations recorded in these reasons “the whole case” in the present appeal referred under the Crimes (Appeal and Review) Act comprises the following:

1. The evidence at trial.

2. No recantations by Oti, the evidence thereof having been rejected as inadmissible.

3. Evidence in the appeal of Durak Dursun. This was directed to proving circumstances in which Oti recanted. As the recantations have been rejected, this evidence is irrelevant.

4. Evidence in the appeal from George. We have found this to be valueless.

5. Evidence in the appeal from Mr Taciak. This was directed to diminishing the weight of any adverse information about the appellant which George may have given to police around the time of the trial. This is irrelevant to the Court’s present task because no evidence from George was given in the trial and on the appeal he has neither testified against the appellant nor given exculpatory evidence to which any weight can be attached.

6. Evidence in the appeal from Mr Hughes regarding the capabilities of paging systems. We have found this evidence of little weight and prefer that given by Ms Hunter at the trial.

7. Evidence of Mr Low in the appeal. This does not lend any support to the appellant’s purported innocent explanation for his visit to Fiji or (by extension) to Honiara. Mr Low’s evidence contradicts that of the appellant on the particulars of this purported explanation of a business visit to Fiji.

8. Evidence of the appellant in the appeal.

265. As to the appellant’s evidence, his purported explanation of his trip to Fiji is discredited by inherent improbability and by inconsistency with Mr Low. His visit to Honiara is not explained in any way which causes the court to entertain a reasonable doubt regarding Oti’s trial evidence regarding the illicit purpose of their meeting. The appellant’s denial of ever having met Kwalu is contradicted by the evidence of that witness at trial, which he has never recanted. We see no reason to doubt either Oti or Kwalu on this point.

266. The appellant’s denial of having had a pager contract in May 1985 does not in our opinion give rise to a reasonable doubt about guilt. The pager contract shows on its face that it was current from 21 June 1984. The inability of the company to find records of payments from the appellant before November or December 1985 is neutral as to whether payments were made by him earlier than those months. We find the assertion by the appellant that he took an assignment of the pager and its contract unconvincing and not positively supported by any business records or other evidence independent of the appellant himself.

267. On the authority of M v The Queen in combination with Mallard v The Queen this Court must have due regard to the fact that the jury, having heard Oti and Kwalu tirelessly cross-examined and having received the strongest possible warning from the trial judge to exercise caution with respect to their evidence (see [177]), must be taken to have accepted that evidence, in central respects, beyond reasonable doubt. The appellant’s general denial of involvement in the conspiracy to import drugs into Australia, in his evidence on the appeal, does not give rise to a reasonable doubt in our minds. Still less do we consider that the jury ought to have felt a reasonable doubt if they had received such additional evidence as we have found to be admissible on the appeal – taking into account the advantage they enjoyed of seeing and hearing the witnesses and the minimal significance, as we perceive it, of the further evidence.

Determination of the appeal

268. For these reasons the order of the Court is:

1. Appeal dismissed.

2. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act):

1. Order that, up to and including the 18 July 2016, there be no disclosure (by publication or otherwise) of this judgment.

2. Direct that the parties, on or before the 11 July 2016, file submissions as to whether and to what extent Order (1) should continue beyond 18 July 2016.

3. The grounds for making this order are those specified in s 8(1)(a), s 8(1)(c) and s 8(1)(e) of the Act.

Note that this order does not extend to circulation of the summary of judgment in the form approved by the Court.

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ADDENDUM – 18 July 2016

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the Court orders:

(4)   That there be no disclosure (by publication or otherwise) of the entire pars [203] and [205], the first nine words of par [206] and the words after “[42]” and before “that the AFP” in par [211] of this judgment, subject to any review of those materials on an application for special leave to the High Court.

Amendments

19 July 2016 - corrected paragraph numbering

18 July 2016 - Change to suppression orders originally made on 4 July 2016.

Decision last updated: 19 July 2016