Chiha v The King

[2024] NSWCCA 222

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Chiha v R [2024] NSWCCA 222

Hearing dates:

07 August 2024

Date of orders:

11 December 2024

Decision date:

11 December 2024

Before:

Price AJA at [1];
Garling J at [163];
Rigg J at [212]

Decision:

(1) Leave to appeal against conviction granted.
(2) Appeal against conviction dismissed.
(3) Leave to appeal against sentence granted.
(4) Appeal against sentence allowed.
(5) Quash the sentence for counts 1 and 2 imposed in the District Court on 21 April 2023.
(6) In lieu thereof, for count 1, sentence the applicant to a fixed term of imprisonment of 6 years commencing on 13 September 2022. As to count 2, sentence the applicant to a term of imprisonment of 16 years consisting of a non-parole period of 11 years commencing on 13 September 2022 and expiring on 12 September 2033 with a balance of term of 5 years commencing on 13 September 2033 and expiring on 12 September 2038.
(7) The earliest date the applicant is eligible to be released on parole is 12 September 2033.

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — where trial judge allowed witness to refresh memory in court in the absence of jury — where witness was in custody prior to hearing and did not have opportunity to read his statement — where applicant’s counsel did not oppose this course — whether this process was so irregular that it constituted a miscarriage of justice — whether witness was pressured to give evidence in accordance with his prior statements — whether applicant was prejudiced — whether outcome of trial was capable of being affected

CRIME — appeals — appeal against sentence — error in commencement date — commencement date backdated to reflect all of applicant’s time in custody

Legislation Cited:

Crimes Act 1900 (NSW), s 93T(4A)

Criminal Appeal Act 1912 (NSW), ss 5(1), 5DA, 6(1)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)

Evidence Act 1995 (NSW), ss 32, 38

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 69

Cases Cited:

Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288

Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17

Brown v Commissioner of Taxation (2002) 119 FCR 268; [2002] FCA 38

CC v R, R v CC (2021) 289 A Crim R 453; [2021] NSWCCA 71;

De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1

Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308

Ex Parte Hamilton; Re Fagan [1996] 2 NSWR 732

HCF v The Queen (2023) 97 ALJR 97; [2023] HCA 35

JA v R [2024] NSWCCA 130

Kennedy v R (1997) 94 A Crim R 341

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Lau Pak Ngam v The Queen [1966] Crim LR 443

MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46

R v Basha (1989) 39 A Crim R 337

R v Lars (1994) 73 A Crim R 91

R v Pachonick (1973) 2 NSWLR 86

R v Sandford (1994) 33 NSWLR 172

R v Tripodina (1988) 35 A Crim R 183

Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35

Regina v Richardson [1971] 2 All ER 773; [1971] 2 QB 484

Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Texts Cited:

J D Heydon, Cross on Evidence (14th ed, 2023, LexisNexis Australia)

Westlaw AW, The Laws of Australia (online) 16 Evidence

Category:

Principal judgment

Parties:

Charles Michael Chiha (Applicant)
Rex (Respondent)

Representation:

Counsel:
B Walker SC / T F Woods (Applicant)
M Millward (Respondent)

Solicitors:
YK Legal (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s):

2018/00091616

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of any information that reveals or tends to reveal the true identities of Witnesses A, B, C and SF.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 April 2023

Before:

Conlon SC ADCJ

File Number(s):

2018/00091616

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was found guilty by a jury of two counts: participating in a criminal group contrary to s 93T(4A) of the Crimes Act 1900 (NSW) and manufacturing a large commercial quantity of MDA contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The Crown case was that the applicant used his position as managing director of Risdon International, a perfume and fragrance company, to import sassafras oil for use in the manufacture of MDA.

The first ground of appeal was that the trial miscarried because the trial judge allowed witness A’s memory to be refreshed in court in the presence of the judge and the applicant’s counsel but in the absence of the jury.

The second ground of appeal was that the trial judge failed to count the 13 days the applicant spent in custody, whilst on remand from 22 March 2018 to 3 April 2018, when setting the commencement date for the applicant’s sentence. The Crown conceded the error and the need for an adjustment of commencement date.

Held per Price AJA and Rigg J, allowing the appeal on sentence and dismissing the appeal on conviction:

The trial judge’s irregular approach of refreshing the witness’ memory in the courtroom had neither the capacity for practical injustice nor was capable of affecting the result of the trial: [158] (Price AJA); [213] (Rigg J).

By repeating, without additions or comments, the parts of the induced statement the Crown Prosecutor asked the witness to read, the trial judge did not pressure the witness: [139] (Price AJA).

The process undertaken before the trial of the witness refreshing his memory did not result in any material difference in the evidence he gave before the jury to his memory being refreshed by the Crown in a conference outside the courtroom. It gave the applicant’s counsel a forensic advantage: [140]-[142] (Price AJA).

The majority of the material to which the witness’ attention was taken in the absence of the jury was not adduced in evidence in chief: [215] (Rigg J).

The events which occurred shortly after the witness was affirmed did not amount to the trial judge putting pressure on the witness to give evidence in accordance with his induced statement: [159] (Price AJA); [228] (Rigg J).

Per Garling J (dissenting):

The judge allowed a procedure to occur in the formality of the courtroom which is not contemplated in the course of any trial. A failure to observe the requirements of the criminal process in a fundamental respect occasioned a miscarriage of justice: [202], [207].

JUDGMENT

1. PRICE AJA: Charles Chiha (“the applicant”) seeks leave to appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”) against his convictions on two counts on an indictment which were:

Count 1: between 4 September 2017 and 22 March 2018, in Wetherill Park and other locations in the State of New South Wales, did participate in a criminal group whose activities were organised and on-going by directing any activities of the group, knowing it was a criminal group and knowing that his participation contributed to the occurrence of any criminal activity contrary to s 93T(4A) of the Crimes Act 1900 (NSW).

Count 2: between 4 September 2017 and 22 March 2018, in Neville and other locations in the State of New South Wales, did manufacture a prohibited drug, namely, 3, 4-Methylenedioxymethamphetamine (MDA), in an amount not less than 24 kilograms, being a large commercial quantity for such drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

2. Following a trial before a jury over which Conlon SC ADCJ (“the judge”) presided in the District Court at Sydney which commenced on 6 September 2022, the applicant was found guilty of both counts on 26 September 2022.

3. The applicant’s ground of appeal against his conviction is that the trial miscarried because the judge adopted an irregular and prejudicial process with respect to a central prosecution witness.

4. The applicant was sentenced on 21 April 2023 to a fixed term of imprisonment of 6 years commencing on 26 September 2022 for count 1. As to count 2, the applicant was sentenced to 16 years’ imprisonment, with a non-parole period of 11 years. The non-parole period commenced on 26 September 2022 and was to expire on 25 September 2033.

5. As the two sentences were to be served concurrently, the total effective sentence imposed was 16 years’ imprisonment with a non-parole period of 11 years commencing on 26 September 2022.

6. The applicant also seeks leave to appeal against his sentence on the ground that the judge erred by failing to give him credit for the full extent of his pre-sentence custody.

The appeal against sentence

The trial judge erred in sentencing the applicant by failing to give him credit for the full extent of his pre-sentence custody

7. The applicant’s complaint is that the sentence commencement date of 26 September 2022 failed to take into account his 13 days in custody whilst on remand following his arrest on 22 March 2018 until his release on conditional bail on 3 April 2018. The applicant contends that his sentence should have commenced on 13 September 2022. The Crown accepts the applicant’s contention and concedes that the sentence will need to be backdated so that it commences on 13 September 2022.

8. Neither party suggested that this Court should re-exercise the sentencing discretion “afresh”. The error is not one that affects the sentencing discretion as discussed in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255. The error can be readily addressed by moving the commencement date of the sentences to 13 September 2022: Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 at [53] and JA v R [2024] NSWCCA 130 at [35].

9. It will only be necessary to take this course if the applicant’s complaint against his convictions is unsuccessful. Should the applicant be successful, he asks that the convictions be set aside, and the matter be remitted to the District Court for retrial.

An overview of the trial

A summary of the Crown case

10. The Crown case was that the applicant was party to a joint criminal enterprise with various named persons to manufacture a large commercial quantity of MDA. The manufacture took place on a farm in Neville about 30-40 kms south-west of Bathurst in rural New South Wales. MDA was manufactured using safrole distilled from sassafras oil as the base ingredient. Dr Daniel Coughlin, a forensic chemist, was of the opinion that a large commercial quantity of both MDA and 3,4-methylenedioxyphenyl-2-propanone (“MDP2P”) had been manufactured at the farm.

11. The Crown case was that the applicant, the managing director of Risdon International (“Risdon”), a perfume and fragrance company, diverted chemicals supplied to Risdon, including but not limited to sassafras oil for use in the manufacture of the MDA. The Crown neither alleged that the applicant had a “hands-on-role” in the manufacture nor that he visited the Neville farm or another property in Mount Rankin where chemicals used in the manufacture were stored.

12. The Crown case consisted of a combination of direct and circumstantial evidence. At the commencement of the trial, a document entitled “Summary of evidence for trial” was admitted into evidence and became exhibit “A”. This document detailed surveillance carried out by police from 4 September 2017. It included summaries of conversations between persons who were alleged to be part of the criminal group which had been lawfully recorded.

13. The Crown called evidence from various police officers who had conducted surveillance showing association and contact between the applicant and other members of the criminal group. The Crown also tendered telephone intercepts between members of the criminal group.

14. It was the Crown case that the applicant was responsible for placing chemical orders for Risdon which included sassafras oil. Barry Clark, an industrial chemist, explained that sassafras oil was one of the precursor chemicals that were delivered to the Risdon factory at Yennora. He gave evidence that Risdon could not on sell sassafras oil to anyone. He said that the precursor chemicals were kept isolated and locked up at Risdon, so that not just anyone in the company could touch them. Mr Clark gave evidence that the applicant, as the managing director of the company, was responsible for obtaining quotes and placing orders for chemicals. Both he and the applicant were responsible for recording in the Red Book how the precursor chemicals were used.

15. Mr Clark said that sassafras oil was used by the applicant to manufacture “China soap” for export to China. It was the Crown case that the applicant was able to import sassafras oil under the pretext of a legitimate use being the production of China soap for export. “End User Declarations” (“EUD”) were completed specifying the use of the oil was for China soap and that the oil would not be used in the manufacture of prohibited drugs. Mr Clark gave evidence that the applicant would place an order for restricted chemicals and then complete the EUD.

16. The Crown adduced evidence that between June 2016 and 27 February 2018, Risdon imported a total of 1,362 kgs of sassafras oil from a US supplier, Bronson and Jacobs.

17. Mr Clark gave evidence that the applicant was notified when the sassafras oil arrived at Risdon and that China soap was manufactured after 4.30pm. The applicant would attend Risdon and manufacture the China soap which was placed into 200 or 215 litre drums. The drums would be placed on a pallet ready for collection the following morning.

18. Mr Clark said that it would take about one to two hours to manufacture China soap. After looking at a document which looked like a production sheet for China soap, he said that the volume of sassafras oil in the China soap was 340 kgs in a 600 kgs final batch, which he agreed was about 50%.

19. The Crown tendered a summary of Risdon batch sheets for China soap obtained under a search warrant. Three out of four of the batch sheets bore the applicant’s signature. All the batch sheets indicated that the China soap contained 50% sassafras oil. The China soap was manufactured for a company in Guangzhou called Bohui Paper Development.

20. The Crown tendered a further document, being a summary of material data sheets produced by CS Logistics, a freight forwarding company that sent the manufactured China soap to Guangzhou.

21. Senior Constable Smyth gave evidence that the material data sheets confirmed that the product was stated to contain Teric GN9, quaternary ammonia compressed, fragrance, and water with no sassafras oil. It was the Crown case that when China soap was exported, it did not contain any sassafras oil.

22. The Crown adduced evidence that the charge to the customer of China soap by Risdon was $2.25 per kg whereas the cost to Risdon of a kg of sassafras oil was $109. The Crown contended that the manufacture and export of China soap was not economically viable.

23. The Crown played a lawfully intercepted conversation between the applicant and Witness B, a member of the criminal group, on 20 March 2018 at Westmead Hospital. The conversation included the applicant saying:

“You know how much it costs me? To get the ……in? I cost me 270 dollars now. Gone up again, up again. Want to charge me extra for storage and everything. You saw it the other day. I wasn’t using the soaps in China, my own soaps, it wouldn’t be worth even buying. Only cause I’m using it for my own soaps costs me 0.1 cent. 0.1 cent you know what I mean in the formula.

…

… I got none left. Its all been used and manufactured. I cant leave it in stock. Got to use it straight away. I never leave it in stock.

…

… When I buy it, it is not for resale Cuz. Its only for manufacture. That’s why. She is trying to get 8 kilos. All over Australia.”

24. It was the Crown case that in that conversation, the applicant admitted that he was not using sassafras oil in the China soap exported to China.

25. A number of white containers with red lids containing sassafras oil were found at the Risdon factory on 22 March 2018. The location in which they were found was consistent with the description by Witness B as to where he would collect the sassafras oil. The containers in which the sassafras oil was stored were as described by Witness A, Witness B, and Witness C, all members of the criminal group. The total quantity of sassafras oil recovered from the Risdon factory was about 227 kgs.

26. White containers with red lids were found at Mount Rankin. On analysis, they contained safrole. Another container was found to contain MDP2P as well as safrole. The total amount of safrole recovered from Mount Rankin was about 104 kgs.

27. Dr Helen Salouros of the Australian Forensic Drug Laboratory analysed seven samples of safrole found at Mount Rankin, Neville and at the Risdon factory. She opined that six of the seven samples were consistent with being from a common origin. The seventh sample, which had a different chemical profile to the other six, was one of the two samples found at Neville. The Crown contended that this evidence provided further support that the source of the sassafras oil used in the manufacture, or at least a significant proportion of it, was from Risdon.

28. Senior Constable Smyth had given evidence that on the execution of a search warrant at Risdon, Manage Your Own Business (“MYOB”) data was obtained. He prepared a summary of purchases and sale data (Exhibit “BBB”) which was based on the MYOB data. Exhibit “BBB” disclosed that 340.4 kgs of sassafras oil had been delivered from Bronson and Jacobs.

29. As 227 kgs of sassafras oil were seized from Risdon, it was the Crown case that there was a shortfall of 113 kgs which were unaccounted for. It was the Crown case that the sassafras oil had not been used in the manufacture of China soap.

Mr Zaiter’s evidence

30. In 2018, Mr Zaiter, the applicant’s cousin, worked part time as a sales representative at Risdon, supervised by the applicant and Mr Clark. Mr Zaiter gave evidence that he was aware that police located sassafras oil during their search of the factory on 22 March 2018, although he did not know where it had been found. He also assisted police during the execution of the search warrant by providing access to Risdon’s computer system database. ^[1] He gave evidence that, on the morning of the execution of the warrant, the applicant called him and explained that there was to be a raid at the warehouse and Mr Zaiter was required to assist police throughout the day, which he did. ^[2]

    1. Tcpt, 14 September 2022, p 340-341.

    2. Tcpt, 14 September 2022, p 341-342.

31. Mr Zaiter said that he accompanied police to the locked area where precursor chemicals were kept but did not recall the sassafras oil being located there. ^[3]

    3. Tcpt, 14 September 2022, p 343.

32. In cross-examination by the applicant’s counsel, Mr Zaiter described receiving a phone call from Mr Vanni Raisa, a director of Risdon, while the applicant was overseas, informing him that he knew of some people who were robbing the factory of sassafras oil. Mr Zaiter said he was instructed to send workers home because he was under the impression somebody was going to rob the factory. Mr Raisa was adamant that the applicant should not be informed about what was happening, although Mr Zaiter called the applicant anyway. When he called the applicant, Mr Zaiter said the applicant had no idea how this information was coming about.

33. Mr Zaiter said that as a result of this information, the general consensus moving forward was that they would “potentially use other drums [to store the sassafras oil] as opposed to the normal steel drums that they would arrive in to better disguise them in case of robbery or theft or anything like that”. ^[4] Mr Zaiter said that the sassafras oil was placed in containers with the red cap. He agreed the general position was that the containers would be placed where they were disguised and couldn’t be found.

    4. Tcpt, 14 September 2022, p 347(21-25).

30. Mr Zaiter gave evidence that there were occasions when Mr Raisa would come to the factory and get stock and materials. Mr Raisa asked him to assist but he refused. He believed there were drums in Mr Raisa’s bags.

31. The Crown Prosecutor was granted leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr Zaiter. In cross-examination, Mr Zaiter agreed that he was aware that, when police executed the search warrant on 22 March 2018, they were looking for sassafras oil. He confirmed that he was aware that there was sassafras oil on the premises but not aware of the quantity. He confirmed that he became aware of China soap being on the premises when he did a stocktake at Risdon’s current factory around June or July 2019, but did not notify police about it. ^[5] He confirmed that he knew police wanted him to notify them, but he did not. He said he was acting of his own volition and not under instruction from the applicant when he did nothing. ^[6] He also confirmed that he did not tell police about boxes which he knew contained sassafras oil. ^[7]

    5. Tcpt, 15 September 2022, p 374-375.

    6. Tcpt, 15 September 2022, p 375.

    7. Tcpt, 15 September 2022, p 377.

32. Mr Zaiter said that the applicant either organised someone else to decant the sassafras oil or did it himself. He said that he never decanted the containers. He said he had no knowledge of when the decanting occurred or where it was stored. That was the idea of the system. No one was to know.

33. Mr Zaiter did not agree that he provided untruthful evidence to assist the applicant and did not agree that he was seeking to convince the jury that there was an innocent explanation for the sassafras oil going missing. He agreed that he never touched the sassafras oil and never gave it to anyone. ^[8]

    8. Tcpt, 15 September 2022, p 389.

34. Three witnesses called by the Crown, witness A, witness B and witness C, had been part of the criminal group.

Witness A’s evidence

39. Witness A told the jury that he was a serving prisoner in NSW, having pleaded guilty to the offence of participating in a criminal group and to the manufacture of a large commercial quantity of MDA. He confirmed that he was sentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 5 years. He confirmed that his sentence had been discounted by 25% for his guilty plea and 20% for assistance to law enforcement authorities. He confirmed that 10% of that was for the induced interview with police in which he made disclosures about his role in the syndicate and 10% for giving evidence in court.

40. Witness A gave evidence that he knew the applicant. He said that when he first met him, the applicant was interested in learning how to mine cryptocurrency and how to fly.

41. Witness A said that he had been to Neville on a number of occasions for the purposes of manufacturing MDA. Witness C and witness B were responsible for asking him to go to Neville.

42. He said that he had conversations with the applicant at “maybe [the] end of 2017”. ^[9] He thought the applicant had just wanted some pills, maybe 10,000. He did not think that the applicant asked him to go to Neville, only to press some pills.

    9. Tcpt, 16 September 2022, p 446(19-20).

43. Witness A gave evidence that the applicant provided the sassafras oil for the manufacture of the MDA at Neville. He said that he had packed up 50 or 100 litres but did not know when this occurred. He said that he collected it from some units at Wetherill Park. He thought it was in white drums with red caps. He said that he took the sassafras oil to Neville.

44. When asked what dealings he had with the applicant in relation to sassafras oil, he said “it was between a couple of us and it was to make MDMA”. ^[10]

    10. Tcpt, 16 September 2022, p 449(26).

45. Witness A confirmed that on 19 March 2018, he travelled from Newcastle to Carlingford Shopping Centre. After being asked to read paragraph 86 of Exhibit “A” and shown Exhibit “PP” (a photograph of himself meeting with the applicant), he agreed that he met the applicant. He stated that during the meeting they had talked about a lot of things including cryptocurrency and flying. When asked about any activity of the syndicate, he said he spoke about a couple of them owing the applicant some money. He could not remember whether MDMA or sassafras was discussed.

46. When further asked about the conversation he had with the applicant on 19 March, he said they spoke about teaching the applicant to fly, about cryptocurrency and “either MDMA or sassafras”.

47. The Crown Prosecutor asked the judge if the applicant could refresh his memory. After reading questions and answers 580 to 590 in his induced statement (MFI 19), witness A agreed that it assisted his recollection of the context of his conversation with the applicant. He said that the applicant was not too happy that making MDMA was “taking slower than normal”. ^[11] When asked whether the applicant said anything about what he wanted the powder for, he replied “I would say it’d be pressing pills”. ^[12]

    11. Tcpt, 16 September 2022, p 453(7-14).

    12. Tcpt, 16 September 2022, p 453(14-15).

48. Witness A was asked whether there was any discussion about the time period in which the applicant wanted the MDA manufactured. He was directed by the Crown Prosecutor to questions and answers 586 to 590 of MFI 19. Witness A said “yeah, by the weekend”. ^[13] He thought his answer was “should be done by the weekend”. He agreed that the applicant wanted to know about finishing the product.

    13. Tcpt, 16 September 2022, p 453(24).

49. When asked if the applicant indicated why he wanted the MDA, he replied that the applicant might have met somebody who wanted to buy it.

50. Witness A was further referred to paragraphs 56 and 57 of Exhibit “A” by the Crown Prosecutor. He confirmed that on 19 January 2018, between 6:20pm and 7:05pm, he was recorded as being in shed 1 at Neville containing the tablet press. He agreed that he transferred a blue-coloured powdered substance from a white bucket into a tablet-press hopper and started a single-station mechanised press, which operated until 11:22pm.

51. In cross-examination, witness A confirmed that he knew if he cooperated with police, he would probably receive a lesser sentence. He agreed that was part of the reason he went to the interview with police on 27 February 2019. When asked what the other reason was, he said, “Suppose, you know, I’m arrested and, you know, other people aint”. ^[14]

    14. Tcpt, 16 September 2022, p 459(50).

52. He agreed that he had decided to plead guilty by the time of the interview. He knew that he was charged for supply of a prohibited drug, and it was a criminal group. He knew also who was in the criminal group, which included the applicant.

53. Witness A did not agree that the material he provided to the police was made up.

Witness B’s evidence

54. Witness B gave evidence that he was prosecuted for manufacturing a large commercial quantity of MDA at Neville. He agreed that he was sentenced to 7 years and 4 months’ imprisonment with a non-parole period of 3 years and 8 months. He agreed that was after a total discount of 55% being 25% for his guilty plea; 20% for past assistance, participating in an interview with the police in which he made disclosures, and 10% for further assistance, which included giving evidence.

55. Witness B said that his father and the applicant’s father were first cousins. He confirmed that he assisted police during interviews on 15 October and 20 November 2018. He said that he knew of China soap from working at the Risdon factory. He was not involved in the manufacture of China soap. He understood the formula of China soap to include 50% sassafras oil and 50% of other chemicals.

56. Witness B said that 50% of sassafras oil did not go into the manufacture of China soap. He knew that as he had seen the applicant make it a few times. He said to the applicant, “How come you don’t put the sass oil in it?” The applicant replied, “Don’t worry, I’ll just – that’s how I make it”. ^[15] The applicant told him that the China soap went to China, it had other chemicals in it but not the sassafras oil. It was then put in 200 litre drums, shipped to the airport, then shipped to China.

    15. Tcpt, 19 September 2022, p 561(9-15).

57. When asked whether he knew what happened to the sassafras oil that was not used in the manufacture of China soap, witness B said they took part of it to Neville and other parts of it were sold on the black market for about $2,500 a litre. He did not know how much was sold on the black market.

58. Witness B said he took sassafras oil to Neville in the boot of his car. The oil was transported in white 25 litre containers with red lids.

59. He said that he knew Phil the chemist, who had made China soap once using sassafras oil. The applicant told him that Phil had put 50 litres of sassafras oil in the China soap and sent it overseas. He said that the applicant was “spewing” because Phil had wasted 50 litres of oil. Phil did not know what was going on. The applicant told him that he had someone dump the China soap which was sent overseas.

60. Witness B gave evidence he thought the applicant and Mr Raisa were partners. Mr Raisa’s role in the syndicate was as director of the company who was responsible for ordering all the chemicals. Mr Raisa was the one who asked him to manufacture MDA at Neville but the applicant also knew about it. The applicant was present during a conversation in which Mr Raisa said he had a good place to manufacture MDMA. He said that he and Mr Raisa went up and had a look, but the applicant did not go with them. Witness B said that one of the girls who used to work for Mr Raisa owned the property. Witness B told Mr Raisa that they would start there.

61. Witness B confirmed that sassafras oil was an essential ingredient of the manufacture of MDA at Neville. He packed up the necessary chemicals from Antill Street (at Risdon’s Yennora factory), to which he had a key. He manufactured probably about 100 to 150 kgs of powder over the whole time. He said that MDP2P was manufactured at Neville.

62. Witness B gave evidence that it took about three or four months to make MDA, being about three months to make MDP2P from sassafras oil and then about one month to change liquid MDP2P into MDA in powdered form. He said that 150 litres of MDP2P would produce about 68 kgs of MDA. About 100 litres of sassafras oil had come from Antill Street. Witness B said that sassafras oil went straight from Antill Street to Neville.

63. Witness B said that he knew witness A and that he was part of the syndicate. witness A had purchased about 100 or 200 litres of sassafras oil from Mr Raisa and the applicant. He said that he, “[witness C], [witness A] and [SF]” were behind the whole process of manufacturing at Neville. They picked up the sassafras oil from Antill Street. They made about 100 tonne or 50 kgs. For that to happen, about 500 litres were needed.

64. Witness B said that either Mr Raisa or the applicant would tell him the oil was ready to be picked up. He was at Antill Street most of the time so he would know when the oil was ready. The sassafras oil was stored at the back of the toilet. It was always stored in unmarked white drums with red lids.

65. Witness B was asked about the pills that were pressed at Neville. He said that some of it went into pills and some went into bags. He said that pills or bags of powder would be delivered to customers.

66. He said that on a couple of occasions, he had a conversation with the applicant about wanting a particular quantity of the drugs. He recalled one time at the hospital, around 16 March 2017, the applicant told him that he wanted 30,000 tablets for some customer and to tell Witness C to do it. In relation to the conversation, he thought the applicant said, “[T]ell Sash to tap 30,000 tablets because I need them for an order”. He said that 2 kgs of powder would be required to make 30,000 tablets.

67. In cross-examination, witness B confirmed that he had attended Penrith Police Station on 30 October and gave an induced statement. He agreed that he made his statement knowing that “to get a shorter sentence, he needed to tell police what they wanted to hear”. He agreed that he provided police with information that he thought they wanted. He did not agree that what he told them was not the truth.

68. He did not agree that the story about the applicant getting mad because the chemist made a batch of China soap was untrue. He confirmed that he told the police that the applicant would order 100 litres of sassafras oil from Risdon every three to four months. He agreed that he did not know exactly how much sassafras oil was ordered from Risdon. He said that he told police what he knew and no more. He did not agree that what he told the police about the applicant obtaining 900 litres of sassafras oil a year through three businesses, was untrue.

69. Witness B agreed that the applicant would sometimes be away from the business. He confirmed that he had collected sassafras oil with Mr Raisa whilst the applicant was away.

70. He did not agree that the applicant was never part of the group.

Witness C’s evidence

71. Witness C gave evidence that he was currently serving a sentence of imprisonment of 6 years and 10 months with a non-parole period of 4 years and 5 months after pleading guilty to one count of manufacturing a large commercial quantity of MDA. He confirmed that his sentence was discounted by 60%, comprising 25% for his guilty plea, 15% for past assistance in the form of a police interview, and 20% for future assistance. Half of that 20% was directly referrable to giving evidence against the applicant. ^[16]

    16. Tcpt 16 September 2022, p 477(49-50).

72. Witness C agreed that he participated in a syndicate with witness B, SF, witness A, Mr Raisa, and the applicant. He confirmed that the manufacture of MDA which he participated in involved using safrole or sassafras oil as the base ingredient. He agreed that he picked up the sassafras oil from a factory in Guildford and sometimes from a factory in Smithfield. He said he thought the name of the factory was Risdon, and said the applicant was “always there” ^[17] but didn’t know exactly why he was there. ^[18] Witness C said he mainly would deal with Mr Raisa at Risdon.

    17. Tcpt, 16 September 2022, p 479(24-25).

    18. Tcpt, 16 September 2022, p 480(14).

73. Witness C was directed to parts of Exhibit “A”, which described interactions between him and the applicant which were observed by police. Witness C described the process of the drug manufacturing and agreed that his and Witness B’s role in the syndicate was “manufacturing and on the tools”. ^[19] He described Mr Raisa as “the boss”. ^[20] Witness A was involved in “manufacturing” including pressing pills. ^[21]

    19. Tcpt, 16 September 2022, p 485(15).

    20. Tcpt, 16 September 2022, p 486(17).

    21. Tcpt, 16 September 2022, p 486(1-11).

74. When asked what the applicant’s role in the syndicate was, witness C responded “[the applicant] didn’t know much of it … he wasn’t involved in any of the manufacturing, or anything to do with it”. ^[22] witness C said he was introduced to the applicant by witness B “as a friend”, and there was no discussion with the applicant about pressing pills at any time. ^[23] He also said he never observed the applicant being involved in loading the truck to take glassware up to Neville, where a clandestine laboratory was located. ^[24]

    22. Tcpt, 16 September 2022, p 486(20-24).

    23. Tcpt, 16 September 2022, p 489(33-48).

    24. Tcpt, 16 September 2022, p 491(3-5).

75. The judge granted leave under s 38 of the Evidence Act to allow Witness C to be cross-examined by the Crown Prosecutor. In cross-examination, he agreed that he participated in an interview with police on 18 December 2018. He said that witness B told him to press pills if he wanted extra money. He said he thought he was pressing pills for the applicant, but he wasn’t sure because it was witness B telling him to press them. ^[25] He agreed that the applicant gave him MDMA but said “[witness B] was the main guy who was giving me everything”. ^[26] He also agreed that the applicant “probably could have been present” when he was loading the truck. ^[27]

    25. Tcpt, 16 September 2022, p 494(47-50).

    26. Tcpt, 16 September 2022, p 495(24).

    27. Tcpt, 16 September 2022, p 496(35).

76. Witness C was taken to his police interview, in which he told police that the applicant provided him with sassafras. When asked to confirm that he told police that the applicant would wrap the sassafras in plastic bags, witness C said “probably he – if he delivered it there to – where we’re referring to – deliver to Wetherill Park – deliver it to Wetherill Park – from Yennora to Wetherill Park, and then [witness B] will put it in bags”. ^[28]

    28. Tcpt, 16 September 2022, p 497(34-36).

77. Witness C said it was witness B who told him that he had to learn how to make MDMA, and who taught him how to do so. ^[29] Witness C agreed that he had direct conversations with the applicant in relation to sassafras oil. He said he asked the applicant to help fill up some drums with sassafras oil which the applicant did. Witness C said he did not have any direct conversations with the applicant about what should happen to the sassafras oil. ^[30]

    29. Tcpt, 16 September 2022, p 498(21-24).

    30. Tcpt, 16 September 2022, pp 499-500.

78. Witness C was asked to confirm that he told police he was working for the applicant. He agreed that he told police:

“Because everything was for him. It's like this, 'Here's your money,' if ever I got paid but anyway, 'Here's the oil. Go and do it. There's 100 litres,' and sometimes I'll say, 'Mate, I can't go. I can't go.' [the applicant] said, 'No, you have to go. You have to go. There's 100 litres, okay.” ^[31]

31. Tcpt, 16 September 2022, p 500(42-49).

79. Witness C confirmed that he was sometimes given MDMA as payment for his work. ^[32] He agreed that he had a conversation with the applicant about getting more sassafras oil. He said he couldn’t recall what he told police about the role of the applicant in the syndicate. The following exchange was had with the Crown Prosecutor:

    32. Tcpt, 16 September 2022, p 501(33-34).

Q.   You indicated to the police that [the applicant] was the head. Do you agree that’s what you said?

A.   At the time, yeah.

…

Q.   So, the police ask you, “So, you understand [the applicant] to be the bigger head?” Your answer was, “That’s the main guy”? Do you agree that I’ve read it correctly?

A.   Yeah, but depends on which way, you know.

Q.   Question 370,

Q.   He would coordinate?

A.   The whole lot.

A.   Yeah.

Q.   Do you agree with that?

A.   Him and [Witness B] but anyway, different stages, different people. ^[33]

33. Tcpt, 16 September 2022, p 502(22-43).

80. In cross-examination by the applicant’s counsel, witness C agreed that he had lied to police when he initially told them he did not know the applicant. ^[34] Witness C agreed that during his interview with the police he described Mr Raisa as a “donkey”, so as to downplay his role in the syndicate. He agreed with the cross-examiner that Mr Raisa was in fact “one of the main guys”. ^[35]

    34. Tcpt, 19 September 2022, p 523(37-38).

    35. Tcpt, 19 September 2022, p 534.

81. Witness C agreed he knew what police wanted, so he deliberately described the applicant as the major player and Mr Raisa as a “donkey”. ^[36] Witness C’s evidence included the following:

    36. Tcpt, 19 September 2022, p 534.

Q.   But you understood from the information that you had before you went to the police station what it was that [the applicant] was supposed to have done in the group, yeah?

A.   Yes.

Q.   You understood that if you played ball with the police, so to speak, that you would likely receive a discount on the sentence when you pleaded guilty for your offending, yeah?

A.   Yes.

Q.   That’s what happened actually, isn’t it?

A.   Yes.

Q.   So, what I want to suggest to you is that when you went to the police station, you provided the police with what they wanted, didn’t you?

A.   Yeah.

Q.   But it wasn’t necessarily an account that was truthful in terms of the people. What I’m suggesting to you, is that you told them the truth about what happened, but you bumped up [the applicant]’s role, didn’t you, from nothing to something because you knew that was what they wanted? Well, is that true?

A.   No.

Q.   And that nothing you said about [the applicant] and the collecting of sassafras oil and who provided what, and all the rest of it, that simply wasn’t true. The evidence you give to the jury about [the applicant] being involved is not correct, is it?

A.   It is correct.

Q.   The person who should be named every time you say [the applicant] is, in fact, [Mr] Raisa, isn’t it? He’s the one you should be naming, not [the applicant].

A.   It’ll be some. ^[37]

37. Tcpt, 19 September 2022, p 547.

A summary of the applicant’s case

82. The applicant did not give evidence or call any evidence but relied on his denials of criminal wrongdoing in his police interview tendered in the Crown case as Exhibit “VVV”. The applicant also relied on evidence of his good character in a particular respect from the officer-in-charge who said that the applicant had no criminal convictions for misuse of chemicals or drug offences. ^[38]

    38. Tcpt, 20 September 2022, p 659.

83. The applicant’s case was that the criminal activities of the syndicate were carried out without his knowing involvement. The applicant’s counsel submitted that the Crown had failed to prove beyond reasonable doubt that the applicant participated in the joint criminal enterprise to manufacture the drugs. The applicant relied on the following to support his case:

1. Not all of the sassafras oil found at the drug manufacturing base at Neville came from a common source;

2. To the extent that sassafras oil from the Risdon factory at Yennora was used in the manufacture of drugs at Neville, it got there without the applicant’s knowledge;

3. At times when the applicant was away from the factory at Yennora, chemicals including sassafras oil were taken from it without his knowledge by Mr Raisa and persons with him;

4. Mr Raisa was the person chiefly involved in directing the activities of the criminal group engaged in the manufacture of drugs at Neville;

5. Witness A, witness B and witness C were unreliable witnesses motivated to lie about the applicant’s involvement to obtain discounts on their sentences; and

6. The missing quantity of sassafras oil upon which the Crown placed so much weight was in fact not missing but was still part of the company’s stock as confirmed by Mr Zaiter.

The appeal against conviction

The trial miscarried because the trial judge adopted an irregular and prejudicial process with respect to a central prosecution witness

84. The applicant submitted that the process adopted by the judge in allowing witness A’s memory to be refreshed in court before he gave evidence, was so irregular that it constituted a “miscarriage of justice” under s 6(1) of the Criminal Appeal Act.

85. The applicant submitted that the irregular course taken by the judge constituted a miscarriage because it was prejudicial to the applicant in the sense that it had the capacity for practical injustice and was capable of affecting the result in the trial.

86. In written submissions, the applicant contended that there was prejudice for two reasons:

1. The approach taken by the judge had the effect of putting pressure on witness A to give evidence in accordance with his prior statements, which he might not have wished to do.

2. The process of taking him through the induced interview, question by question, and the topics upon which the Crown Prosecutor proposed to question him, may have affected the quality of the evidence, which he then gave, for example, by improving his recall, and so affected the jury’s assessment of him and their assessment of his credibility.

87. The applicant accepted it was not sufficient to demonstrate that the approach taken by the judge was unusual or irregular. The applicant must persuade this Court that what occurred constitutes a “miscarriage of justice” under s 6(1) of the Criminal Appeal Act. As to what may constitute such a miscarriage, the applicant cited what was said by the plurality (Gageler CJ, Gleeson and Jagot JJ) in HCF v The Queen ^[39] at [2]:

“Beech-Jones CJ at CL recently provided a convenient summary concerning those errors or irregularities that will amount to a miscarriage of justice in observing that, if the error or irregularity ‘is properly characterised as a “failure to observe the requirements of the criminal process in a fundamental respect” then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial’, but otherwise there is no miscarriage unless the error or irregularity is ‘prejudicial in the sense that there was a “real chance” that it affected the jury's verdict ... or “realistically [could] have affected the verdict of guilt” ... or “had the capacity for practical injustice” or was “capable of affecting the result of the trial”’.” (footnotes omitted)

39. (2023) 97 ALJR 978; [2023] HCA 35.

88. Before referring further to the submissions of the parties, it is convenient to review what took place before the judge in the absence of the jury.

The proceedings before the judge

89. On the morning of the eighth day of the trial, the Crown Prosecutor said to the judge in the absence of the jury:

“Can I raise an issue before the jury comes in. I just conferred with [witness A] who's one of the rollover witnesses. He's having a panic attack and anxiety and really wants to give evidence by way of AVL but he is here today. I don't know whether it's possible, if there's an AVL facility or what your Honour would be minded, but I understand he's happy to participate by way of AVL. It may be if, your Honour, if we brought him and we just see which way he's capable. It looks as though I would have to show him. He can't remember all of the adduced [sic] statement in any event so it would be easier if I was here and could show him the document just for ease of reference, but I do appreciate that people do have panic attacks and anxiety.” ^[40]

40. Tcpt, 16 September 2022, p 423(15-26).

90. The applicant’s counsel opposed witness A being permitted to give evidence by AVL. The judge suggested closing the court for the hearing of witness A’s evidence. The applicant’s counsel raised with the judge the principle of open justice and submitted the fact that someone was nervous about giving evidence would not necessarily override that principle. However, his Honour considered that course was appropriate and agreed with the applicant’s counsel that he would not say anything to the jury about the court being closed. His Honour suggested that the Crown Prosecutor might need a short break to talk to witness A, to which the Crown responded that the witness should come into court. ^[41] His Honour then said:

“[W]hen you said you want him to come into court, you mean in the absence of the jury?”

41. Tcpt, 16 September 2022, p 426.

91. The Crown Prosecutor replied:

“Just to see whether he will – he can give evidence. I think we should make that enquiry because he indicated that he didn’t want to give evidence in an open court.” ^[42]

42. Tcpt, 16 September 2022, p 427.

92. His Honour then said:

“Well, what I’ll do, he can be called first in the absence of the jury and then after I ascertain the position, the jury can be brought in and away we go.”

93. After some short further evidence from the officer-in-charge, who had been giving evidence when the trial was adjourned the previous afternoon, witness A was brought into the courtroom by corrective services and the following exchange took place:

HIS HONOUR: [Witness A], I was informed by the Crown this morning that you're suffering an amount of anxiety in relation to having to give evidence today and I have considered an application for you to give your evidence via AVL and that won't be possible, but what I have done is to make an order for your evidence to be suppressed, a non publication order, and the Court has also been closed from any outside persons able to come in here. So, all we have here is the lawyers and the officers so it is also a closed court. Now, Mr Crown, do you want to ask any questions before we have the jury brought back in?

CROWN PROSECUTOR: Will you give evidence in accordance with your adduced [sic] witnesses statement?

[WITNESS A]: I’ll see what I can do.

CROWN PROSECUTOR: Can I just ask you this. I asked you this morning whether you can remember parts of your adduced [sic] witness statement and you—

[WITNESS A]: No, I don’t.

CROWN PROSECUTOR: It may be that I’ll have to show him a document which is the adduced [sic] interview at some stage.

HIS HONOUR: Well, you might have to show him that now if he hasn’t had the opportunity of looking at it.

CROWN PROSECUTOR: Well, not being able to go to the gaol, your Honour.

HIS HONOUR: I understand that. Now, this is the statement, sir. As I understand it, the Crown will be leading evidence from you in relation to your plea of guilty to the charges and your sentence. The fact that persons who plead guilty get obviously a discount and any assistance of authorities, you get a further discount and it was on that basis that you received the sentence that you did. So, if you could look through that document just to refresh your memory. I'll give you the opportunity of doing that before we have the jury brought in and the Crown asks you questions. How long is the document?

CROWN PROSECUTOR: It’s 72 pages but what I wish to do is in fact I’ve indicated that there are particular portions of the summary. I think there’s three or four paragraphs that relate to [Witness A] and I’ll be asking him questions about that.

HIS HONOUR: Are you able to indicate which of those paragraphs he should look at now? ^[43]

43. Tcpt, 16 September 2022, pp 431-432.

94. Whilst the Crown Prosecutor referred to “particular portions of the summary”, it is common ground that he was referring to Witness A’s induced statement (MFI 19) made at Penrith Police Station on 27 February 2019.

95. The Crown Prosecutor replied to the judge’s question that he was going to questions 31 to 38. His Honour then enquired, “What’s the next section?” to which the Crown Prosecutor replied:

“On the previous page, p 6 just what's expressed at the top which is the latter part of question 19.”

96. The following exchange took place between the judge, Witness A and the Crown Prosecutor.

HIS HONOUR: [Witness A], if you would just go to the previous page, p 6, and just look at that top paragraph. So, the top of p 6 and then you go over to those questions and answers, 31 to 38. Then what's the next part?

CROWN PROSECUTOR: Question 49 to question 54 which is pp 8 to 9.

HIS HONOUR: If you can go to 49 to 54. What's the next part?

CROWN PROSECUTOR: Question 69 and the address is going to Wetherill Park. If you read question 69, the answers given there are Wetherill Park.

HIS HONOUR: Have you got 69 there, [Witness A]?

[WITNESS A]: I'm still reading the 59.

HIS HONOUR: It was 49 to 54 and after that just being asked to have a look at 69 as to where it was supplied, the address being Wetherill Park. What's the next area?

CROWN PROSECUTOR: That'll be questions 86 to 93 which is a specific date, 4 September 2017, question 86.

HIS HONOUR: Are you able to go to question 86, [witness A]?

CROWN PROSECUTOR: Bottom of p 11.

HIS HONOUR: 86 through to 93. This is where you were shown an image by the police in respect of their surveillance on 4 September 2017.

CROWN PROSECUTOR: That's already in the trial. What those containers contained is the real issue for the Crown.

HIS HONOUR: So, that's reading now down to question 93. After 93, what's the next area?

CROWN PROSECUTOR: Question 124 on the bottom of p 14 to 134.

HIS HONOUR: If you could to question 24 to 134 and just read those.

CROWN PROSECUTOR: Question 142 which is on p 16.

HIS HONOUR: And after 142?

CROWN PROSECUTOR: 148 to the end of 151 question 151.

HIS HONOUR: 148 to 151, okay. Are you reading 151, now?

[WITNESS A]: Yeah.

HIS HONOUR: What's the next area, Mr Crown?

CROWN PROSECUTOR: Question 154 to 156.

HIS HONOUR: Yes, that 154 to 156. And after that Mr Crown?

CROWN PROSECUTOR: Yes, question 173 to question 176.

HIS HONOUR: Are you up to that Mr [witness A]?

[WITNESS A]: Yes.

HIS HONOUR: 173 to 176. Thank you, and then the next area.

97. This exchange between the judge, witness A and the Crown Prosecutor continued until questions 645 and 649.

98. The Crown Prosecutor then said: ^[44]

“If it's convenient, can I show the witness just in relation to that last topic, this particular document and I'll take him to the top 25 entry, and I'll see what ..(not transcribable).. can you just look at the top entry?”

44. Tcpt, 16 September 2022, p 435(22-25).

99. He said further:

“Do you recognise anything about what's written there?”

100. The applicant’s counsel then objected saying:

[APPLICANT’S COUNSEL]: Your Honour, I think some of these questions – I’m sorry to stop my friend. We’ve gone from memory fresh into questions that should be done in front in the jury.

HIS HONOUR: All right.

[APPLICANT’S COUNSEL]: Just for the record, your Honour I haven’t..(not transcribable).. because I know your Honour wants to move things along and this man has just come from prison. But the normal process is that he is given his document and he is asked to refresh his memory by reading of the document as a whole. I’m not making a complainant [sic] about that. The proper application then, upon being able to question him from the jury, is under s 32 to refresh his memory, and then obviously, sometimes, it goes to s 38.”

101. The following exchange continued: ^[45]

     45. Tcpt, 16 September 2022, p 436(29-35).

[APPLICANT’S COUNSEL]: I’m just checking, your Honour. As I said, just for the record. Sorry, I don’t want to be difficult. I just want to make sure I understand what is, quite an unusual process, because we’re trying to move the case on.

HIS HONOUR: Well, it is. He’s been the opportunity to refresh his memory because of the situation he is presently in, and it’s a convenient method of doing it prior the jury being brought it [sic].”

[APPLICANT’S COUNSEL]: That's fine, your Honour, but I am going to ask him some questions about that - not that we've sat here, but about the fact that he is—

HIS HONOUR: He's been provided the document to refresh his memory from certain parts of it.

[APPLICANT’S COUNSEL]: Yes, basically.

HIS HONOUR: Sure.

CROWN PROSECUTOR: If your answer is you can't say anything about that document and I'll-

[APPLICANT’S COUNSEL]: I just thought we'd agreed there was no further questions.

102. His Honour then directed witness A to hand back the document.

103. The jury was then brought in for witness A to start giving evidence, but it was a false start because he immediately complained about someone that he said he could see through the door. ^[46] The jury was directed to go out, and the following exchange then took place in their absence: ^[47]

HIS HONOUR: I can't see anybody from where I am but, obviously, it was in [witness A]'s vision; is that correct?

WITNESS: Well, there was a bald headed bloke out there with moustache, and whoever went out there would have seen him out there, so.

HIS HONOUR: And, what?

WITNESS: Well, whoever went out there would have seen the bloke out there.

HIS HONOUR: All right. I've indicated to you that what I have done is to exclude anybody outside of the lawyers from being present in court while you're giving your evidence. If somebody was looking in through that rear window, I will make sure that that doesn't occur, but we have to get on with the trial. I can't delay it any further. So, as I've indicated, there's an order I've made for the suppression and non publication of your evidence and I've, in fact, closed the Court. I'll make a further order that, Mr Court Officer, that nobody should be outside of the Court, if they can be moved away from the area. I can see somebody now moving back into the area. Go out and give that order, please. I don't want anybody outside of this Court; they can move away.

COURT OFFICER: Yes, your Honour.

46. Tcpt, 16 September 2022, p 438.

47. Tcpt, 16 September 2022, p 440.

104. Witness A then asked what would happen if he did not give evidence, and the following exchange took place: ^[48]

     48. Tcpt, 16 September 2022, pp 440-441.

HIS HONOUR: That's a matter for you because I'm sure that you've been advised by – and your legal representatives when you were dealt with initially, when you were given that sentence. So, if you weren't to give the evidence as per your undertaking, that would have the effect, as I understand it, of you having to go back and be re sentenced.

WITNESS: Yep, an extra 12 months.

HIS HONOUR: I don’t know what it would be. It would be a matter for the sentencing court.

CROWN PROSECUTOR: It may be more.

[APPLICANT’S COUNSEL]: Hang on ..(not transcribable).

HIS HONOUR: Let’s not go there. I’m just indicating that that would be the process, [witness A]. I know nothing about your original sentence other than the fact of it. I haven’t read the sentencing judges comments in relation to it, or the reasons why he had given you the additional benefit. I don’t know that. You’ve asked me what would be the situation if you were to not give evidence, and I’m just indicating that that means would not have abided by your undertaking, and then that would require it to go back before this sentencing judge, as I understand it.

[APPLICANT’S COUNSEL]: Your Honour, I think the process is that it goes to the Court of Criminal Appeal, I think, actually, and they decide whether or not they—

HIS HONOUR: It may well be.

[APPLICANT’S COUNSEL]: --want to implement all or some of the discounts so he can serve some of the extra 12 months ..(not transcribable).

HIS HONOUR: It would, in fact, mean a re-sentence.

[APPLICANT’S COUNSEL]: Yes, effectively, but it’s not automatic. They would consider.

HIS HONOUR: The fact of the matter is it means they re-sentence. That’s what it means.

[APPLICANT’S COUNSEL]: There certainly would be a process, certainly, but I’m just indicating.

HIS HONOUR: Because there was a discount given.

[APPLICANT’S COUNSEL]: Yes, absolutely.

HIS HONOUR: So, that’s the situation. You’re either going to continue giving evidence or you’re going to refuse to give evidence. That’s a matter for you.

WITNESS: I’ll continue at this stage.

Further submissions by the applicant

105. The applicant submitted that it was wrong for a trial judge to be seen to put pressure upon a witness, about whom it might be thought that there was a risk he would not give evidence in accordance with his statement. The applicant argued that whatever may be said or done by counsel out of court and in conference with a witness, it was inappropriate for the authority of the judge to be added to the suggestions.

106. The applicant contended that the approach taken by the judge tended to foreclose the possibility that the witness would not only refuse to answer questions but that he would give evidence other than in accordance with his prior statements. The applicant argued that this amounted to an inappropriate interference with the presentation of the evidence.

107. When referring to the exchange between the judge, witness A, the Crown Prosecutor and the applicant’s counsel quoted at [104] above, the applicant submitted that what was said by the judge was inaccurate and it was misleading for the Crown Prosecutor to suggest that the witness’ sentence could be increased.

108. The applicant submitted that the Crown case would have been weaker if witness A had given evidence inconsistent with his undertaking, as might have occurred if he had been called and commenced to give evidence in the proper way.

109. In oral submissions, Mr Walker SC referred to what occurred as a “remarkable pseudo voir dire”. Mr Walker said that the court was convened in the absence of the jury so that the judge was on the bench with the authority of the trial judge. The Crown Prosecutor and the judge between them reminded the witness of his answers to questions by reference to specific, pinpointed passages. ^[49]

     49. Tcpt, 7 August 2024, p 3(3-10).

105. Mr Walker said there was nothing wrong with a conference with a witness in chambers, but a judge would not be there. It was obvious that would be a flagrant breach of impartiality. Mr Walker asked, “Why is it better if it’s done in a courtroom?” The only difference is that defence counsel was present. What happened, Mr Walker submitted, was a process not envisaged by the Criminal Procedure Act 1986 (NSW) or the Evidence Act by which a judge from the bench repeats by way of emphasis and adding the authority of his office, the Crown Prosecutor’s drawing to the witness’ attention passages of his induced statement. Mr Walker said that the judge was being enlisted in an encouragement of the witness to give evidence in accordance with his induced statement.

106. Mr Walker argued that the judge must have understood what was taking place because the Crown Prosecutor had relayed to him the witness’ discomfort and possible reluctance or unwillingness to give evidence. It was further submitted that this meant the “forensic possibility” contemplated by ss 32 and 38 of the Evidence Act was “gone forever”. ^[50]

     50. Tcpt, 7 August 2024, p 6(26-34).

107. Mr Walker referred to the improvised process not being the subject of immediate opposition by the applicant’s counsel. Mr Walker said that the applicant’s counsel had eventually accurately described the process as not being in accordance with s 32 of the Evidence Act. Mr Walker pointed out that there had been a protest by the applicant’s counsel which was not immediate but when it was made it was successful. Mr Walker submitted it was not to the point that a later attempt was made in cross-examination to draw the jury’s attention to witness A’s use of the induced statement as the process which the witness had been through before he gave evidence in front of the jury pinpointed parts of the induced statement.

108. Mr Walker referred to the exchange between the judge, witness A and the Crown Prosecutor quoted at [104] above and submitted that the Crown Prosecutor and the judge combined to remind the witness that his statement was subject to his undertaking. Mr Walker contended that it is impossible to classify what went on “except that there was … the avoidance of either ss 32 or 38 or both to the detriment of the jury being able to see that which is surely germane to a credibility assessment. And it’s for those reasons… that there was a miscarriage, so an important witness’ evidence [was] affected by that process.” ^[51]

     51. Tcpt, 7 August 2024, p 10(42-48).

109. In submissions in reply, Mr Walker emphasised that the applicant’s counsel did protest. Mr Walker argued the fact that the applicant’s counsel drew the jury’s attention to the witness having recourse to his induced statement in cross-examination did not demonstrate that the applicant adopted the irregularity.

The Crown’s submissions

115. The Crown referred to the applicant’s argument that the judge’s approach was prejudicial to him and thereby occasioned a miscarriage of justice and said that this argument was founded upon an assertion that the approach adopted put pressure on witness A to give evidence in accordance with his prior statements and that it affected (in a sense favourable to the Crown) the quality of the evidence that the witness gave. The Crown submitted that “having regard to the context of the trial that took place and bearing in mind the forensic approach taken by trial counsel for the applicant, neither assertion should be accepted.” ^[52]

     52. Respondent’s Written Submissions, p 26 at [51].

116. The Crown submitted that in the exchange quoted at [93] above, the Crown Prosecutor foreshadowed the possibility that he might make a s 32 application, noting that because he was in custody, the witness did not have access to his induced statement. It was in response to that information that the judge suggested the witness might be shown the document.

117. The Crown contended that the extent of the judge’s involvement in the process was to repeat, without elaboration, the portions of the interview identified by the Crown Prosecutor that witness A was being invited to read.

118. The Crown pointed out that the applicant’s counsel did not oppose the course proposed by the judge. This was plainly a rational forensic decision. The applicant’s counsel acknowledged the difficulties that flowed from the witness having come from custody. He also made it clear that he intended to (and later did) cross-examine witness A as to the fact that he had been shown the interview prior to giving evidence.

119. As to the exchange quoted at [104] above, the Crown submitted that the exchange was bookended by the judge making it clear to the witness at the start and at the end that it was a matter for him whether he gave evidence. The Crown pointed out that witness A was the only one to offer any quantification of the further time he might serve if the Crown brought an appeal pursuant to s 5DA of the Criminal Appeal Act.

120. The Crown contended that the applicant’s submission that the process adopted by the judge affected the quality of witness A’s evidence and the jury’s perception of him, ignored his counsel’s cross-examination and the forensic decision taken by his counsel. It was further submitted that his counsel appeared to recognise the process adopted by the judge was designed to afford fairness to the witness. The Crown submitted that the judge did not do so at the expense of fairness to the applicant who was present with his counsel throughout.

121. The Crown argued that the applicant had not established that the process adopted by the judge amounted to an irregularity much less one that occasioned a miscarriage of justice.

Consideration

122. It has long been the case that there is no impropriety in a witness being shown a statement out of court to refresh his or her memory.

123. In Regina v Richardson [1971] 2 All ER 773; [1971] 2 QB 484 (“Richardson”) the English Court of Appeal held there was no general rule that prosecution witnesses might not refresh their memories before trial from statements which they had made non-contemporaneously but near the time of the offence.

124. Sachs LJ recounted at 486-487 the general principles of English law at that stage:

“First, it is to be observed that it is the practice of the courts not to allow a witness to refresh his memory in the witness-box by reference to written statements unless made contemporaneously. Secondly, it has been recognised … that witnesses for the prosecution in criminal cases are normally (though not in all circumstances) entitled, if they so request, to copies of any statements taken from them by police officers. Thirdly, it is to be noted that witnesses for the defence are normally, as is known to be the practice, allowed to have copies of their statements and to refresh their memories from them at any time up to the moment when they go into the witness-box … Fourthly, no one has ever suggested that in civil proceedings witnesses may not see their statements up to the time when they go into the witness-box. One has only to think for a moment of witnesses going into the box to deal with accidents which took place five or six years previously to conclude that it would be highly unreasonable if they were not allowed to see them.”

125. His Honour then quoted the Court of Appeal of Hong Kong in Lau Pak Ngam v The Queen [1966] Crim LR 443, in which that Court held:

“Testimony in the witness-box becomes more a test of memory than of truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at a time closer to the events in question …

Refusal of access to statements would tend to create difficulties for honest witnesses but be likely to do little to hamper dishonest witnesses.”

126. His Honour concluded at 490:

“… there can be no general rule (which, incidentally, would be unenforceable, unlike the rule as to what can be done in the witness-box) that witnesses may not before trial see the statements which they made at some period reasonably close to the time of the event which is the subject of the trial. Indeed, one can imagine many cases, particularly those of a complex nature, where such a rule would militate very greatly against the interests of justice.”

127. The approach in Richardson was applied by Lee J in R v Pachonick (1973) 2 NSWLR 86. His Honour said at 86:

“There is authority which I think should be followed that it is proper in many circumstances for a prosecution witness to refresh his memory, out of court, from a document made contemporaneously with or soon after the events about which he is giving evidence.” (footnotes omitted)

128. The law is now well settled. In Cross on Evidence (14^th ed., 2023), J D Heydon remarks at 17170:

“… for all its apparent orality, an examination in chief is rarely conducted ‘out of the blue’. The witness has usually given a statement (commonly called a ‘proof of evidence’) to the solicitor for the party calling that witness. Alternatively, if the witness is a prosecution witness in a criminal case, the witness will have made a statement to the police. It is on the basis of these statements that the questions put to the witness in chief will be framed. The statement will frequently have been made a considerable time before the trial, and the witness may or may not have retained a copy of it. In these circumstances, it is inevitable as it is desirable that the witness should read the statement shortly before the hearing or even be taken through it by the person to whom it was made. If it were to transpire that there had been anything in the nature of ‘coaching’ by such a person, or some kind of pre-trial conference between witnesses, the trier of fact would no doubt treat the evidence with the contempt it deserved. It was, however, once suggested that it is objectionable for prosecution witnesses to be provided with copies of their statements to the police to be read or gone through shortly before the trial. But it would have been difficult to justify or enforce a special rule for this particular case, and, if the statement were an elaborate one, as even statements to the police sometimes are, the law would have been absurd. The practice has since been held to be perfectly proper. Without it the ordinary trial process would be unworkable.”

129. In Chapter 16 of The Laws of Australia the following appears at [16.4.680]:

“Where leave is given [under s 32] the witness is then allowed to read from the document. Normally the document must also be shown to the other party. If the other party calls to inspect such a document, then the other party is not compelled to tender the document.

There is even more latitude for witnesses to use documents out of court to refresh their memory prior to giving evidence. Witnesses can use any material in an endeavour to refresh their memory prior to giving evidence, including their statements, the statements of other people and media reports of the event. This reflects the reality that it is effectively impossible to control the activities of witnesses prior to them giving evidence. However, where witnesses use a document or other material to revive their memory, the court will order that they provide a copy of this to the other party if the other party requests a copy.”

130. Refreshing a witness’ recollection out of court is subject to the rule that the witness must not be coached by counsel “by advising what answers the witness should give to questions which might be asked”. ^[53]

     53. Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 69.

131. In the present case, it is clear from what was said by the Crown Prosecutor to the judge that he wished to show witness A his induced statement as Witness A had been in custody and had not had the opportunity to refresh his memory. In the exchange quoted at [93] above, witness A told the Crown Prosecutor that he did not remember parts of his statement.

132. It would have been a proper and regular course of action for the judge to permit a short adjournment to allow the Crown Prosecutor the opportunity to provide witness A with his induced statement to read out of court shortly before he gave evidence. There would have been no impropriety in the Crown Prosecutor referring the witness to particular questions and answers to shorten the process. The induced statement was a lengthy document consisting of 72 pages and the jury was waiting for the trial to proceed.

133. In those circumstances, the applicant could not complain that by refreshing witness A’s memory shortly before he gave evidence, the quality of his evidence was improperly impacted. There would be no justifiable complaint that the jury was denied the opportunity of seeing an application being made by the Crown for leave to revive witness A’s memory under s 32 of the Evidence Act or an application for leave to cross-examine him as an unfavourable witness under s 38 of the Evidence Act.

134. It would have been open to the applicant’s counsel before the jury to question the honesty and reliability of witness A’s evidence where his independent recollection was limited but recently refreshed by reading his induced statement.

135. The applicant’s complaint in the present case is founded on witness A’s recollection being refreshed in the presence of the judge and not in an out of court conference with the Crown Prosecutor.

136. It was the judge who decided that witness A should be shown the induced statement in the absence of the jury but in the presence of the applicant and his counsel.

137. Whilst it is not entirely clear from the transcript, it seems that witness A, who had not been sworn, was in the witness box. It appears that the judge took this unorthodox approach as he was mindful not to keep the jury waiting and to keep the trial moving. The jury had been in court for a short period that morning when the evidence of a prior witness was completed.

138. One of the applicant’s complaints is that the judge from the bench, by way of emphasis and with the added authority of his office, drew the witness’ attention to the questions and answers in his induced statement referred to by the Crown Prosecutor. The submission was that the judge was being enlisted in an encouragement of witness A to give evidence in accordance with his induced statement.

139. In my view, a fair reading of the transcript reveals no more than the judge repeating without any additions or comments, the parts of the induced statement the Crown Prosecutor had asked the witness to read. The transcript does not show the time that this process took between each set of questions, but it does not reveal any pressure applied by the judge to witness A. My conclusion is supported by the absence of objection by the applicant’s counsel. As has often been stated, the fact that trial counsel did not object to a procedural step taken by the judge “is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice in what was done”. ^[54]

     54. R v Tripodina (1988) 35 A CrimR 183 at [191]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121].

140. It is not surprising that the applicant’s counsel did not object to witness A’s memory being refreshed in his presence. It gave him an opportunity to appreciate the extent of the witness’ recollection and to assess, at least to some extent, the witness himself. It also provided advance warning of the parts of the induced statement to which the witness may be taken to by the Crown Prosecutor in the presence of the jury. That opportunity would not have been afforded to him if witness A’s memory had been refreshed by the Crown Prosecutor in a conference outside the courtroom. This was in fact a forensic advantage to the applicant’s counsel.

141. However, when the Crown Prosecutor went on to take the witness to a document other than his induced statement, applicant’s counsel objected on the basis that the exercise had transitioned from a “memory [re]fresh” to questions that should be asked in front of the jury. The judge upheld this objection, the jury was called back to the courtroom and witness A was sworn in.

142. I am of the view that the process undertaken before the judge of the witness refreshing his memory did not result in any material difference in the evidence he gave before the jury to his memory being refreshed by the Crown Prosecutor in a conference outside the courtroom. In fact, it gave the applicant’s counsel a forensic advantage to which I have referred at [140] above.

143. In his evidence in chief before the jury, an application was made by the Crown Prosecutor for the witness to refresh his memory which the judge granted. ^[55] The witness was directed to questions 580 to 590 of his induced statement. He told the Crown Prosecutor that reading those parts of his induced statement assisted him in recalling a conversation which he had with the applicant at their meeting at Carlingford on 18 March 2018. ^[56] Whilst not formally stated, it appears that the Crown Prosecutor’s application was made pursuant to s 32 of the Evidence Act.

     55. Tcpt, 16 September 2022, p 452(29-30).

     56. Tcpt, 16 September 2022, p 453(5-10).

144. The applicant’s counsel drew the jury’s attention in cross-examination to how it was that the witness made the induced statement at Penrith Police Station and to his limited recollection without having refreshed his memory that morning. Cross-examination of the witness included the following:

Q. When you came here today, you were given a chance to look at parts of the interview, weren't you?

A. Yes.

Q. Is your position that, "If I hadn't done that, I wouldn't have remembered half of the things I told the jury"?

A. My mental state is not very good. It wasn't at the time of the - so, I've got severe PTSD. I've blocked - I didn't want to know about anything. I just blocked everything out.

Q. What I'm really saying is, if you had to look at that document, you couldn't remember yourself about it, could you?

A. And to be honest, I didn't care about it.

Q. So, when you're asked questions today, you were taken to documents and you read that and that kind of - you're trying to refresh your memory and think about it, aren't you?

A. Yeah, still didn't even really go in there much, but, yeah.

Q. But if you hadn't done that, you wouldn't be able to remember it at all, would you?

A. Some bits, not all.

145. In assessing the honesty and reliability of witness A’s evidence, the jury was clearly aware of the limitations in his recollection of the matters about which he gave evidence. The jury were not disadvantaged in their assessment of the credibility of witness A because his memory was refreshed in their absence.

146. The applicant further submits that the judge’s approach put pressure on the witness, after he had been affirmed, to give evidence in accordance with his induced statement, which he might not otherwise wish to do.

147. It is evident from the outset that the witness’ reluctance to give evidence was founded on his mental state. The Crown Prosecutor informed the judge that witness A “was having a panic attack and anxiety” and “really wanted to give evidence by way of AVL”. ^[57]

     57. Tcpt, 16 September 2022, p 423(18-19).

148. Witness A’s anxiety about giving evidence was further demonstrated when he told the judge, shortly after he was affirmed to give evidence before the jury, about a person “who was looking very angry, and mouthing things” at him through the courtroom door. ^[58] He told the jury in cross-examination that his mental state was “not very good”, and he had “severe PTSD”. ^[59] However, he did not agree that the material he provided to police was made up.

     58. Tcpt, 16 September 2022, p 438(40-42).

     59. See [144] above.

149. The applicant’s contention that witness A may have given evidence inconsistent with his induced statement had he not had his memory refreshed in court as he did, finds no support in the evidence and has no merit.

145. The judge attempted to accommodate witness A’s anxiety by closing the courtroom. The applicant’s senior counsel on appeal does not contend that his Honour erred in doing so. As I have stated at [139] above, the judge did not pressure the witness to give evidence in accordance with his induced statement while his memory was being refreshed.

146. When he was before the jury at the beginning of his evidence, it is clear witness A did not consider that he was obliged to give evidence. After telling the judge about the person at the door, he said that he was not sure if he “wanted to continue at the moment”. ^[60] After being informed by the judge in the passage quoted at [103] above inter alia that the court officer would move people away from the door, witness A enquired, “What’s going to happen if I don’t given evidence right now?” ^[61]

     60. Tcpt, 16 September 2022, p 438(45).

     61. Tcpt, 16 September 2022, p 440(26-28).

147. The judge’s immediate response was, “That’s a matter for you”. True it is in the passage quoted at [104] above that the judge incorrectly referred to it being a matter for the sentencing court which was corrected by the applicant’s counsel. As the applicant’s counsel pointed out it would be a matter for the Court of Criminal Appeal and is not automatic. Bathurst CJ observed in CC v R, R v CC; (2021) 289 A Crim R 453; [2021] NSWCCA 71 at [67]:

“The purpose of such an appeal is not punitive. Rather, as has been pointed out in the cases cited in R v Douar [2007] NSWCCA 123 at [29], its purpose is to enable the Court in an appropriate case to adjust or correct a sentence where it can be seen with the benefit of hindsight to have miscarried by reason of the circumstances set out in the section. In R v El-Sayed (2003) 57 NSWLR 659; [2003] NSWCCA 232 at [31]–[32], it was emphasised that the reduction in sentence for assistance was purely for utilitarian reasons. Where the utilitarian benefit is not achieved as a consequence of a failure to honour the undertaking to give the assistance, then ordinarily it would be accepted that an appellate court will intervene to remove the discount given for the undertaking. See also R v MG [2016] NSWCCA 304 at [15]–[17].”

153. When the judge referred to a re-sentence, it seems to me that his Honour, an experienced judge, had in mind what ordinarily occurs when a witness fails to fulfill an undertaking to give evidence.

154. In any event, witness A had been told by his lawyers that he would be re-sentenced to “an extra 12 months”. He was immediately informed by the judge that his Honour did not know what it would be as that was a matter for the sentencing court.

155. The Crown Prosecutor’s statement that “[i]t may be more” was uncalled for but was not necessarily incorrect. As the Crown pointed out in written submissions, an adjustment by the Court of Criminal Appeal to the applicant’s sentence by 10% as a consequence of his failure to give evidence, could have resulted in a sentence of just over 8 years and 10 months.

156. The judge quickly shut down any further discussion about the length of any re-sentence by stating, “Let’s not go there”. His Honour returned to discussions with the applicant’s counsel. After again being told by the judge that whether he was “going to continue to give evidence or … to refuse” was a matter for him, witness A decided “to continue at this stage”. ^[62]

     62. Tcpt, 16 September 2022, p 441(26-30).

157. I am not persuaded that any pressure was applied by the judge to Witness A to give evidence in accordance with his induced statement, after he was affirmed to give evidence.

158. The unorthodox approach adopted by the judge was an irregularity. However, the applicant has not established that the irregularity had the capacity for practical injustice or was capable of affecting the result of the trial. I am not persuaded that what occurred constituted a “miscarriage of justice”.

159. Furthermore, I agree with Rigg J’s additional reasons for dismissing the conviction appeal.

160. I would dismiss the applicant’s conviction appeal.

Conclusion

161. As the applicant has been unsuccessful in his appeal against conviction, it will be necessary to adjust his sentences by commencing them on 13 September 2022.

Orders

162. The orders I propose are:

1. Leave to appeal against conviction granted.

2. Appeal against conviction dismissed.

3. Leave to appeal against sentence granted.

4. Appeal against sentence allowed.

5. Quash the sentence for counts 1 and 2 imposed in the District Court on 21 April 2023.

6. In lieu thereof, for count 1, sentence the applicant to a fixed term of imprisonment of 6 years commencing on 13 September 2022. As to count 2, sentence the applicant to a term of imprisonment of 16 years consisting of a non-parole period of 11 years commencing on 13 September 2022 and expiring on 12 September 2033 with a balance of term of 5 years commencing on 13 September 2033 and expiring on 12 September 2038.

7. The earliest date the applicant is eligible to be released on parole is 12 September 2033.

163. GARLING J: I am grateful to Price AJA for his comprehensive review of the course of the trial and the evidence adduced by the Crown. I will refrain from unnecessary repetition of that material.

164. I have the misfortune to disagree with Price AJA with respect to the appropriate orders to be made in this application for leave to appeal. I would, for the reasons set out below, grant leave to appeal, uphold the appeal and order a new trial.

Context

165. The submissions of the parties on this application and what occurred is to be seen within an identifiable context. The Crown case against the applicant depended in significant part upon three witnesses (Witness A, Witness B and Witness C), who had each participated to differing extents in the criminal enterprise which was alleged against the applicant. Each of these three witnesses obtained a discount upon their respective sentences which would otherwise have been imposed for the assistance they provided to Police, and for their willingness to give evidence against the applicant in accordance with the information they provided to the Police.

166. Witness A was the first of those witnesses to be called in the trial of the applicant. The attitude which Witness A took to the giving evidence, and his experience of giving evidence, were factors capable of influencing the attitude of Witness B and Witness C to their giving of evidence.

167. The criminal enterprise was alleged to have occurred between about September 2017 and about March 2018. Witness A was arrested on 22 March 2018. He declined to participate in any interview with Police at that time. Subsequently, on 27 February 2019, Witness A was interviewed by Police for about two hours. A transcript of that electronically recorded interview was produced which consisted of 738 questions and 71 pages. That document became MFI 19 at the trial (“induced interview”).

168. Prior to giving that interview, Witness A was induced to participate in it upon the basis of a promise that nothing which he said, and no information given in the course of the interview, would be used against him in any criminal proceedings brought in any Court in NSW except for proceedings which would arise out of the falsity of anything that he said.

169. Although not entirely clear in the record of this Court, it appears that Witness A also made a formal police statement on 27 February 2019, which statement, in part, confirmed that he attended at the interview room of his own free will where the electronically recorded interview was made. That statement also noted the terms of the inducement held out to Witness A by the Police before the electronically recorded interview commenced (“induced statement”).

170. The Crown Prosecutor informed the trial Judge that a suppression order was in place with respect to the identity of Witness A and his evidence, although the precise terms of it and details of when and by which Court the order was made, were not put before this Court.

Witness A

171. Witness A was an individual who, as noted earlier, had been given a substantial discount (20% in total) on the appropriate sentence for his criminal offending for the provision of information to the Police (10%) and giving evidence against the applicant in accordance with his induced statement and interview (10%). The effect of the latter discount was about 12 months of imprisonment.

172. When his time came to give evidence at the applicant’s trial, Witness A was clearly exhibiting a very real reluctance to do so at all, and to do so in the ordinary way in which witnesses give their evidence. It was evident that Witness A had a reasonable understanding of the consequence of his failure to give evidence in accordance with his undertaking. Nevertheless, his reluctance persisted.

173. It was apparent from his evidence that Witness A had little or no independent memory of the events about which he was being asked. He said that:

“… my mental health is not good and it hasn’t been for a long time, and … with my severe PTSD, I’ve just blocked everything out.”

174. In conversation with the Crown on the morning that he was to be called to give evidence at the trial, Witness A said:

“… as I said to … the Crown early this morning, that’s why I didn’t want to be here …”

175. I understand from that evidence that he was reluctant to give evidence because of his mental health issues and his lack of memory. Such statement does not exclude the possibility that his reluctance related to the possibility that his evidence might not be entirely truthful.

176. In the absence of the jury, this reluctance was outlined to the Judge by the Crown Prosecutor in a rather conversational manner, which was interpreted by the Judge to be an Application with respect to the manner of Witness A giving evidence. The Crown Prosecutor said:

“I just conferred with [Witness A] who’s one of the roll-over witnesses. He’s having a panic attack and anxiety and really wants to give evidence by way of AVL but he is here today. I don’t know whether it’s possible, if there’s an AVL facility or what your Honour would be minded, but I understand he’s happy to participate by way of AVL.”

177. The unstated but clear premise of what the Crown Prosecutor was telling the Judge about Witness A’s then mind-set was that he was not prepared to give evidence at all unless by AVL.

178. Counsel for the applicant objected to that proposed course, and the Judge suggested that the Court be closed for the hearing of Witness A’s evidence. Counsel for the applicant drew attention to the principle of open justice for the Judge’s consideration. His Honour ordered that the evidence of Witness A be taken in a closed Court.

179. The request by Witness A to give evidence by AVL, in circumstances where his identity and the content of his evidence was, by order of a court, suppressed from publication, and his safety to that extent was protected, seems to me to be only explicable by his being reluctant to give evidence either in the ordinary way or at all, particularly given his statement to the Crown that he did not want to be at Court.

180. I observe that, in the absence of any evidence of an expert kind, or perhaps from Witness A directly, about the reasons why he did not feel able to give evidence in the ordinary way, there was no developed basis for the order made by the Judge to close the Court whilst his evidence was taken.

181. The applicant did not submit to this Court that this procedure, of itself and without more, constituted an irregularity of a kind that would give rise to a miscarriage of justice. However, this is the context and the setting against which what subsequently occurred is to be considered.

182. The fact that Witness A was a reluctant witness generally was emphasised by a statement made by the Crown Prosecutor at the commencement of the events in Court which gave rise to the irregularity upon which the applicant relies for his appeal.

183. After the Crown Prosecutor raised the issue about Witness A giving evidence by AVL, he added these rather unformed remarks:

“It may be if, your Honour, if we brought him [into the court room] and we just see which way he’s capable. It looks as though I would have to show him. He can’t remember all of the [induced] statement in any event so it would be easier if I was here and could show him the document just for ease of reference …”

184. This was followed, a little later, at the start of evidence before the jury when Witness A claimed that someone was, from outside the Court, “looking very angry, and mouthing things at me …”. Witness A then said, notwithstanding the Judge’s assurance that he would have that attended to, “I’m not sure if I want to continue at the moment. Thank you”.

185. In response to that expressed reluctance, the Judge gave a direction in these terms: “I’ll be directing you [Witness A] to continue at the moment”.

Was there an Irregularity in the Trial Process?

186. The detail of what then occurred reveals a most curious series of events. In trying to describe it, senior counsel for the applicant used the term “… a remarkable pseudo voir dire”.

187. No doubt, reference to a voir dire was used because what occurred was in the absence of the jury, but in the presence of the Judge, counsel, and the accused.

188. It is sufficient for me to attempt to encapsulate the detail of what occurred in the absence of the jury in short form, noting that the detail is fully set out in the judgment of Price AJA. The integers of what occurred are these:

1. Witness A was brought into Court, after the Court was closed. Seemingly, he entered the witness box. No oath or affirmation was administered to him. The Judge provided an explanation about his giving evidence in closed court, and then invited the Crown to ask “any questions” before the jury was brought back into the court room. The Crown then asked the witness whether he would give evidence in accordance with his induced witness statement. Witness A responded: “I’ll see what I can do”. That was hardly a ringing endorsement of his preparedness to give evidence and a further demonstration of his reluctance to which I have earlier referred.

2. The witness was then asked by the Crown whether he could remember parts of his induced witness statement (or perhaps interview) and Witness A said that he could not. The Crown then noted by way of an aside, that he may have to show a document to Witness A, being the induced interview “… at some stage”.

3. The Judge then suggested, if Witness A had not had the opportunity of looking at the induced interview, that the Prosecutor “… might have to show him that now …”. The trial Judge then informed Witness A that he should look through the document “just to refresh your memory”, and further that the Judge would give him the opportunity of doing that “before we have the jury brought in and the Crown asks you questions”. The trial Judge did not identify the date upon which either the induced statement or the induced interview was taken. Nor did the Judge address any of the mandatory integers set out in s 32(2) of the Evidence Act 1995 which were required to be taken into account before a grant of leave to refresh memory in the course of giving evidence could be made under s 32 of the Evidence Act. It is not suggested that there has been any compliance with s 32, nor is it suggested that any application was made in accordance with s 32 with respect to the process which then took place.

4. The Crown later attempted to show Witness A another document which was not clearly identified but was clearly not any part of the induced statement or the induced interview. Counsel for the applicant raised his objection to that process, pointing out that it did not accord with the provisions of s 32, and objecting to any further questions. In the course of the exchange about what was then occurring, the Judge said this in response to a query from counsel for the applicant attempting to understand what was occurring: “He’s been [given] the opportunity to refresh his memory because of the situation he’s presently in, and it’s a convenient method of doing it prior to the jury being brought in”.

189. Although Witness A entered the witness box, and there was no jury present, what followed could not be described as a voir dire. A voir dire is a “trial within a trial”: Ex Parte Hamilton; Re Fagan [1996] 2 NSWR 732 at 734 per Collins J. In Brown v Commissioner of Taxation (2002) 119 FCR 268; [2002] FCA 38 at [90], Sackville and Finn JJ approved the following definition of a voir dire from the CCH Macquarie Dictionary of Law (Revised Ed. 1996):

“a hearing by the judge in the course of, but apart from, the main trial (and in the absence of the jury where the trial is by jury), in order to settle a question raised by either party concerning any fact which has to be assumed for the purposes of the trial proper, e.g., the hostility, expertise, or competence of witnesses, or the voluntariness of confessions.”

190. The essence of the voir dire is that a judge embarks on the hearing of contested facts in order to enable a question of admissibility of evidence to be determined: MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 at p 534; De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 at p 8.

191. As the grant of a voir dire by a court is a matter of discretion and not a right, the Court must first be satisfied that there are reasonable grounds for a voir dire with respect to identified or specified issues: Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308 at [112] per Johnson J; R v Lars (1994) 73 A Crim R 91 at p 184.

192. A different, but acceptable variation of a voir dire, is an examination of a witness in the absence of the jury in the circumstances described in R v Basha (1989) 39 A Crim R 337. The circumstances applicable in that case were that a witness was to be called at trial who had not been called at the committal hearing. In Kennedy v R (1997) 94 A Crim R 341 at p 352, Hunt CJ at CL explained at p 339 that it may properly be open to a trial judge, if satisfied that there was prejudice to an accused, to permit cross-examination of a new witness, as on a voir dire so as to ensure the fairness of any trial, and to avoid any serious risk of an unfair trial. It is appropriate to note the remarks in the judgment of Hunt CJ at CL in Kennedy at p 353 that a “Basha Inquiry” should be requested and take place before the trial proper commences. Further, a “Basha Inquiry” is not the occasion for an accused to “try out risky questions” to avoid embarrassment if the question is asked in front of the jury: R v Sandford (1994) 33 NSWLR 172 at 181.

193. The procedure which took place in Court and in the absence of the jury, was nothing like a voir dire, nor could it even be considered as approaching a Basha Inquiry. It was entirely idiosyncratic and fell outside any known or approved procedure in the conduct of a criminal trial.

194. I agree with the statement of Price AJA at [122] that, as a matter of principle, there is no impropriety in the witness being shown a statement out of court to refresh his or her memory but, in my respectful opinion, that is not what occurred here. Nor is such a course a valid comparison against which to test whether or not there has been an irregularity in the trial process. That is because the nature and location of what occurred could not be said to be in any way comparable to a private conference with the Crown Prosecutor (or their solicitor) to enable Witness A to refresh his memory by reading through the induced interview (or part of it).

195. As I have earlier noted, Witness A was a reluctant witness. Here, with the exception of the very brief exchange in front of the jury, which is set out at [103] above, the reluctance of Witness A to give evidence formed no part of the proceedings conducted in front of the jury. Any expressed reluctance by a witness (in the position of Witness A) to give evidence is a matter capable of going to the credit of the witness and to the credibility or reliability of his evidence. Such matters are available to be taken into account by a jury when considering and evaluating the evidence of a witness. The jury was deprived of any of that material, with the exception of the exchange at [103] when it ought to have had all of that material for the purpose of its consideration.

190. The view which the jury had of Witness A and his giving of evidence must, in those circumstances, have been influenced by the apparent comfort with which he largely gave his evidence, which was a consequence of what had occurred when he was a participant in what can only be described as a three-way conversation taking place in the Court room in which the participants were Witness A, the Crown Prosecutor and the Judge.

191. The effect of what occurred, as though there was a conference taking place, was to remind a reluctant witness of what he had previously said about the events about which he had previously agreed to give evidence, being conducted with the authority of the Court. It was in the court room; the witness was in the witness box; and the Judge was presiding and participating freely in a discussion about which parts of an induced statement or interview to look at. It was a procedure which did not accord with s 32 of the Evidence Act, it could not have been a voir dire examination or a Basha inquiry, and it had no place in a court room being presided over by a Judge, let alone a Judge who was participating in the conversation.

192. I do not regard the availability of the conclusion that the Judge only referred to paragraphs of the induced interview as being determinative of the existence of any irregularity. What occurred was irregular because it did not accord with any known or accepted trial process, and should not have occurred in the Court, nor with any participation at all by the Judge.

193. As well, the fact that a witness gives evidence in Court consequent upon a grant of leave to refresh his or her recollection from an earlier statement or interview with Police upon which they based an undertaking to give evidence, can be a relevant factor and potentially of importance to the jury’s assessment of the worth of the witness’s evidence. Hence, the Evidence Act provides a procedure for that to occur in front of a jury: s 32.

194. Here, the fact that Witness A, outside of the procedure used under s 32 of the Evidence Act, refreshed his recollection in the Court room under judicial oversight and with the Judge’s intervention, deprived the jury of the opportunity of seeing that happen in accordance with the s 32 procedure, and of considering what effect the fact of his memory being refreshed had on the jury’s assessment of the accuracy and reliability of Witness A’s evidence.

195. In those ways the jury obtained a most incomplete picture of the evidence of Witness A. They were deprived of the opportunity of fully assessing his credibility.

196. The jury assessment of his credibility assumed importance because, in the course of his evidence in chief, albeit in a shorthand way, the Crown made an application under s 32 of the Evidence Act to permit Witness A to refresh his memory. He was shown the induced interview, MFI 19. It seems to have been taken, although not stated, that the pre-conditions set out in s 32(2) of the Evidence Act were met, and the jury saw that he only needed to refresh his memory with respect to 10 identified questions within the induced interview. The picture that was painted of the witness’s memory was quite misleading for the jury because of the jury’s lack of knowledge that Witness A in fact needed to refresh his memory from the whole of the induced interview.

Has there been a Miscarriage of Justice?

203. In my opinion, there has been a miscarriage of justice because there has been a failure to observe the requirements of the criminal process in a fundamental respect.

204. It is appropriate to remind oneself of the well-known passage of Barwick CJ about the role and function of a trial judge in Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 at p 517:

“It is a trial not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge’s directions, the jury is to decide whether the accused is guilty or not.” (emphasis added)

205. As Dawson J said in Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 at p 675, the means by which a trial Judge ensures the propriety and fairness of a trial do not extend to the assumption of any responsibility which is properly that of a party. Here, if the memory of a Crown witness was to be refreshed either before giving evidence, or else in the course of giving evidence, then that was the responsibility of the Crown, and was not the responsibility of, or any part of, the role of a judge.

206. At p 682, Dawson J said:

“A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. … It is no part of the function of the trial judge to prevent [a miscarriage] by donning the mantle of prosecution or defence counsel.” (emphasis added)

207. Although Whitehorn is a case dealing with a very different circumstance, namely the power of a trial Judge to call a witness when a Crown Prosecutor did not, the remarks of Dawson J are apt in the circumstances here.

208. The Judge allowed a procedure to occur in the formality of the Court room which is not contemplated in the course of any fair trial. It imposed the authority of the Judge upon Witness A in a way which was no part of his judicial function. The course engaged in deprived the jury of the complete picture of Witness A’s evidence and did not enable the jury to fully and accurately assess the credibility and reliability of Witness A’s evidence.

209. Put differently, in the course of a trial, and in the absence of the jury, the Judge suggested that a procedure take place which was part of the role of one or other party, namely to remind a witness of the contents of an earlier statement or interview, in the Court, in which he then participated, thereby abandoning the proper role of a trial Judge to refrain from taking any part in the contest between the parties. The procedure was not recognised by the law as any part of a fair trial. The involvement of the Judge was followed by a clearly reluctant Witness A, giving evidence without disclosure to the jury, of matters relevant to his credibility and reliability.

210. In light of my summary of what occurred, I have concluded that there has been a failure to observe the requirements of criminal process in a fundamental respect. It follows that there has been a miscarriage of justice.

211. It is that conclusion which leads to the orders which I propose.

212. RIGG J: I have had the considerable advantage of reviewing the draft judgments of Price AJA and Garling J. I agree with the orders proposed by Price AJA, generally for the reasons given by his Honour. In light of the detailed consideration of the issues in both judgments I can state my additional reasons briefly.

213. I do not regard the procedure which occurred before witness A was affirmed as a failure to observe the requirements of the criminal process in a fundamental respect, such that no consideration of the potential effect on the trial is required. The first ground of appeal alleges that the process was prejudicial, and the ground was so argued. The applicant’s written submissions, referring to paragraph [2] of the judgment of Gageler CJ, Gleeson and Jagot JJ in HCF v The Queen [2023] HCA 35, quoted by Price AJA above at [87], confirmed that irregularity in the latter sense raised in that paragraph was being argued. The applicant accepted the burden of demonstrating miscarriage of justice by virtue of the capacity of the course taken to have caused practical injustice or to have affected the result of the trial. ^[63]

     63. Applicant’s written submissions paragraphs [75] – [76].

214. I agree with Price AJA that this has not been demonstrated. There are some aspects of the trial additional to those discussed by Price AJA that I regard as important.

215. The Crown Prosecutor did not adduce evidence in chief of the majority of the material from MFI 19 to which the witness’ attention was taken in the jury’s absence. There were essentially two topics of evidence given by this witness adverse to the applicant. One was the fact of his collection of sassafras oil from the Wetherill Park unit and transportation of it to Neville. The other was the meeting and conversation with the applicant at Carlingford on 19 March 2018.

216. As to the first of these issues, the witness’ evidence in chief was considerably more limited and circumspect, in so far as the applicant’s alleged role was concerned, than appeared in his induced interview, MF1 19, and to which his attention was taken during the procedure in the absence of the jury before his evidence was given. ^[64] The evidence referred to by Price AJA at [43] about the applicant’s provision of sassafras oil was qualified by the witness’ assertion that his knowledge of this was based simply on what other people were talking about. ^[65] One such answer was provided without objection, and an objection to the witness’ account of what others said was then successfully taken because it was hearsay. Although there was significantly more inculpatory, admissible material on this topic in MFI 19, the Crown Prosecutor did not manage to elicit this in the jury’s presence.

     64. Additional representations in MFI 19 to which the witness’ attention was taken in the jury’s absence, but that he did not give evidence about in the jury’s presence, appear at answer 19 on page 6, and answers 31—38, 49-54, 69, 86-93, 124-134, 631-642, and 644-645.

     65. Tcpt, 16 September 2022, p 447(24).

217. The relevant evidence of the witness on the topic of sassafras oil was limited to the fact of his collection of the oil from Wetherill Park on one occasion, which was not in dispute. Cross-examination emphasised that the applicant was not seen by the witness on this occasion, this collection was from Mr Raisa’s business premises, and there were other people he spoke to in connection with this task. ^[66] This collection was relied upon circumstantially by the Crown, connecting it with the known attendance of the applicant at the unit within minutes of witness A, as proved by Exhibit A. ^[67] The relevant evidence of the witness was completely uncontroversial. The witness’ reference to having heard that the applicant was responsible for obtaining sassafras oil added nothing of significance to the Crown case, which included extensive direct evidence of other witnesses and circumstantial evidence on this topic.

     66. Tcpt, 16 September 2022, p 470.

     67. Tcpt, 23 September 2022, p 703.

218. As to the meeting at Carlingford on 19 March 2018, I am not of the view that the evidence as adduced in the jury’s presence artificially concealed any potential unreliability of the evidence demonstrated by what occurred in the jury’s absence. There was no dispute about the meeting having occurred. It was observed by police and photographs of it were tendered. The Crown relied upon the fact otherwise proved that witness A travelled promptly to Neville after meeting the applicant on 19 March 2018, and was observed there participating in the final stages of manufacturing. ^[68]

     68. See Crown closing address Tcpt, 23 September 2022, p 703.

219. On the first occasion the witness had his attention taken to the terms of the conversation at this meeting, in the jury’s presence, he was asked whether there was any discussion with the applicant about MDA. He said, “It was either MDMA or sassafras, I can’t remember.” ^[69]

     69. Tcpt, 16 September 2022, p 450(35).

220. He was asked a second time whether he had a discussion regarding Neville and the manufacture of MDA, and responded “As I said, I spoke to him about something about sassafras or pills.” ^[70]

     70. Tcpt, 16 September 2022, p 451(28).

221. He was asked again about the conversation, and defence counsel objected on the basis this had been asked at least three times already, but the question was allowed. ^[71] He thereafter provided the answer referred to by Price AJA above at [46].

     71. Tcpt, 16 September 2022, p 452(9).

222. It was after three times referring to a conversation concerning something about MDMA or sassafras or pills, that he could not remember, that his attention was taken to answers 580 – 590 of MFI 19 in the jury’s presence. He gave the answers as referred to by Price AJA at [47] – [48].

223. The Crown asked the witness very little after this, after stating that “I’ll just review what I need to do, your Honour” and an adjournment followed shortly thereafter. The Crown Prosecutor did not successfully ask witness A questions concerning the majority of the material regarding which his memory had been refreshed out of court in the impugned procedure. In addition to the considerably greater detail implicating the applicant in the witness’ collection of sassafras oil from Wetherill Park, he had told police of a second collection of sassafras oil by him from the applicant’s workplace, taken there and shown it by the applicant. ^[72] He had described a direct explicit request from the applicant via Blackberry in about January 2018 to make pills for him, with everything set up for him, and the witness’ involvement required only to add colour. ^[73] He had explained his knowledge that the applicant supplied all the chemicals, including as a result of direct conversations in which the applicant had discussed with him his importation, purchase, and sale of sassafras oil. ^[74] He had described his knowledge that Vanni Raisa was subordinate to the applicant, ^[75] and of the applicant getting a lot of “end product” and arranging for another person to make pills for him. ^[76]

     72. MFI 19 A 148 – 151, 154-156, 173 – 176.

     73. MFI 19 A 202 – 206.

     74. MFI 19 A 322 – 325, 450.

     75. MFI 19 A 329, 332-337.

     76. MFI 19 A 564.

224. Cross-examination concerning the 19 March 2018 conversation included defence counsel introducing a different aspect of the witness’ induced statement; namely, the suggestion that the witness paid the applicant $3,000 at this meeting. This had not been referred to in the witness’ evidence in chief, and the witness did not have his attention taken to the relevant parts of the induced interview making this assertion during the procedure that occurred in the absence of the jury. The proposition advanced was that the witness told police this handover of money had occurred, but it did not; and the photographs police took of this meeting did not support money being handed over. ^[77]

     77. Tcpt, 16 September 2022, p 468.

225. It was otherwise put to the witness in cross-examination that the applicant did not state in the conversation at Carlingford that he was unhappy that the process was taking too long. The witness did not accept that proposition. ^[78] When it was put to the witness that the meeting was effectively about mining cryptocurrency and no more he stated there were other things discussed. When it was put to him that there was no conversation about MDMA, about the witness owing the applicant money, or about drugs - that it was strictly about cryptocurrency, and he was directed by the trial judge to indicate whether he agreed or disagreed - he said “Well, it’s in here, and as I said, I cannot remember everything from now till back then.” ^[79] Defence counsel asked him to confirm that he was saying he had no independent memory of the meeting, and the witness stated he had only “little bits”, and referred to having mental health problems. As set out in the judgment of Price AJA, the cross-examination also elicited the fact that the transcript of the interview had been provided to the witness in the absence of the jury, his stated problems of independent recollection, and his motivation for and capacity to provide a false account when he provided the answers in his induced interview.

     78. Tcpt, 16 September 2022, p 468(47).

     79. Tcpt, 16 September 2022, p 469(26).

226. The 19 March 2018 conversation, the terms of which were disputed, was a minor part of the Crown case. It was addressed very briefly in closing submissions. The witness’ professed poverty of independent recollection of it was fully exposed before the jury. The fact that the witness had looked at the eleven answers about it in MFI 19 before he was affirmed in the presence of the jury could not contribute further.

227. Although I acknowledge that witness A had told the Crown Prosecutor he was anxious and having panic attacks, stated that he had PTSD, and stated that he had limited independent recollection of events, this does not mean these assertions were correct or needed to be accepted. There are multiple reasons for a criminally concerned witness who is in custody and has received a benefit from co-operating with the prosecution to be reluctant to give evidence and to claim to have a poverty of recollection of events.

228. However, I otherwise agree with Price AJA that the events which occurred shortly after witness A was affirmed did not amount to the trial judge putting pressure on the witness to give evidence in accordance with his induced interview. I am also of the view that this occurrence, in combination with the impugned procedure that occurred before the witness was affirmed, did not give rise to any miscarriage of justice.

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Endnotes

Amendments

11 December 2024 - Correction to Counsel's name.

Decision last updated: 11 December 2024