Ho v The Queen

[1992] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B33 of 1990

B e t w e e n -

SHIU KAI PETER HO

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 24 JUNE 1992, AT 10.15 AM

Copyright in the High Court of Australia

Ho 1 24/6/92

MR K.C. FLEMING, QC: If the Court pleases, I appear with

MR J.J. ALLEN, on behalf of the applicant.

(instructed by M. Burgess)

MR B.J. BUTLER:  May it please Your Honours, I appear with

MR P.G. CALLAGHAN, for the respondent.

(instructed by D. Field, Solicitor to the Director

of Public Prosecutions (Queensland))

BRENNAN J:  Thank you. Mr Fleming.

MR FLEMING:  May I hand to Your Honours an outline of the

submissions.

BRENNAN J: Yes, Mr Fleming.

MR FLEMING:  If the Court pleases, may I take Your Honours

firstly to paragraph 6 of the summary and to the

passage there referred, which is the commencing

point for the argument, page 12 of the record
book - the record book is paginated at the top

right-hand corner, Your Honours, not on the bottom.

The accomplice, Hua, as I have stated, was

considered to be a critical witness and, indeed, it

was really his version of the facts against the

accused. At page 12 and line 25 there are three

counts on the indictment on which it is alleged

that the accused is a party but, the way that the

case has fallen, it really comes down to an all or

nothing situation, because Hua's evidence - the

credibility of it is really the critical issue in

this case - says that what was contemplated by the

accused was the commission of all three offences.So
everybody in the case recognized that it was a very

important piece of evidence and at line 30 on the

following page:

it is a matter for you whether you accept

beyond reasonable doubt the substance of Hua's

evidence.

And then His Honour moves on to the defence case.

Your Honours, the first point that we make is that in R v Evans, Chief Justice King in South

Australia said that really when you have a case

such as this there ought to be a direction in terms

of Chamberlain; that is that the fact that Hua's

evidence was true and Ho's not - - -

McHUGH J: Chamberlain itself has been undermined, has it

not, if it has not been impliedly overruled by

Shepherd?

Ho 2 24/6/92

MR FLEMING:  Your Honours, I was not going to be so brave as

to say that, I thought it just clarified what

Chamberlain said - - -

McHUGH J: Well, I think I said it in terms in Shepherd.

Others took a different view.

MR FLEMING:  Your Honour, the principle still remains that

if there is a critical fact from which guilt or

innocence is to implied then that has to be proven

beyond reasonable doubt. I do not think Shepherd

undermined that principle. It seemed to have

simply refined, as a result of some criticism of

Chamberlain, what the test was.	Now, Hua's
evidence here is, in fact, critical evidence.	Now,
if that is critical then the fact that Ho told a

lie, because that follows automatically, is

critical evidence. That ought to be determined on

the same basis, that is that Ho was telling lies

beyond reasonable doubt. There was no direction of

that sort given in the case.

The learned trial judge in summing up at

page 26 line 35 of the record - and I have dealt

with this at paragraph 9:

If you are satisfied beyond reasonable doubt

that it was a false denial of any connection
with Hua, then that evidence would be capable

of corroborating Hua's evidence -

and they pause there and say that that was dealt

with by the Court of Appeal to say that there was a

proper direction in respect of that evidence but,

really, that is a direction in respect of the next

step. One must establish firstly whether or not Ho

is telling lies, we submit, and then, secondly, one

must establish whether that lie related to Hua's

association with Ho.

The area obviously is a reasonably difficult

one. The jury ought to have had the benefit of

precise directions on the point and they should

have been taken step by step through the process

that they must follow.	His Honour certainly went
on to say:

Whether you do interpret the evidence in that

way and whether you treat it as being

independent evidence corroborating Hua's

evidence, is a matter for you -

but, it is our submission he simply did not deal

with it in a strong enough manner; indeed he did

not take that two step process.

Ho 24/6/92

DEANE J: Where is His Honour's general direction on onus of

proof, Mr Fleming?

MR FLEMING:	On onus of proof, page 4, Your Honour.
DEANE J:	Thank you.
MR FLEMING:	Yes, at line 30.

McHUGH J: There is also a direction at page 13, is there

not, in the context of Hua's evidence?

MR FLEMING:  Yes, at page 5, as well, the general direction

goes on. Page 13 at line 20, he certainly dealt

again with the substance of Hua's evidence.	Your
Honours, can I go then to - - -

BRENNAN J:  The question that you really wish to agitate is

whether the summing up, in its terms, appropriately

left the issues to the jury.

MR FLEMING:  Yes.

BRENNAN J: And there is no dispute as to what the

principles are?

MR FLEMING:  Your Honour, no, there is no dispute as to what

the principles are.

BRENNAN J: Only whether they were applied in the instance

case.

MR FLEMING:  There does not appear to be a dispute in

Queensland as to what the principles are, although

they have not been applied uniformly and we will

come to that in a case called El Adl, which is an

unreported decision - I understand Your Honours

have a copy of that. The present Court of Appeal

said that the principles appeared to be applied

generally and then referred to this case as an

example of that, having laid out the four-part test

that one finds in Lucas, as to what can constitute

a lie upon which corroboration can be founded.

Now, some cases in Australia have suggested

that you do not need to give a precise direction to

the jury in terms of all four parts. Other cases

have said it is very necessary to give a very clear

direction to the jury in terms of telling lies and

that is the confusion that appears on the cases

and, indeed, there is even internal confusion, as I

say, in the jurisdiction here in Queensland.

Perhaps it is instructive to go to El Adl because

that sets out the principles in a very clear way

and then states the Court of Appeal attitude to

them. It is an unreported decision, R v Rasha El

Adl, which was delivered here on 1 April 1992.

Ho 4 24/6/92

If Your Honours go to the second page, you see

ground 2(b) at the top, the direction that was

given is set out in the middle of the page and then
Their Honours - it was a judgment of the court -

started their analysis at the bottom of page 2,

going over to page 3 and the four principles corning

out of Lucas are set out on page 3. Your Honours

will note the reference to this case mid-way

through page 3.

BRENNAN J: At the end of the day, Mr Fleming, is there any

more in this case than the question of whether the

particular summing up gave a sufficient

acknowledgment to the relevant four heads that were

dealt with in Lucas and McK?

MR FLEMING:  No, Your Honour, but having said that I can say

there is a Reg v Robinson point as well in the

summing up where the interests of the accused were

stated to be something that they can take into

account.

BRENNAN J: Leaving that aside for the moment.

MR FLEMING:  Yes. No, that is the principle issue.

BRENNAN J: Well then, if we were to grant special leave, there would be two questions: one is, are these

four principles, as it were, set in concrete; and

the second is: was this summing up sufficient?

MR FLEMING:  Yes.

BRENNAN J: Well now, we would not grant special leave to

consider the second of those points.

MR FLEMING:  No, but it would certainly be the consequence

of the first, Your Honour, if there was an

inadequacy in the summing up.

BRENNAN J: If there was but, you see, if the view is	correctly expressed by the Court of Criminal Appeal	that the four points should be put and this summing
up was adequate to alert the jury to the concepts
then that is the end of the case, is it not?

MR FLEMING:  Your Honour, we say it goes further, and that

is that it is set in concrete. I come back to what

Your Honour said before, I suppose, and there is

still some confusion about that. When one reads,

for example, Reg v Heyde, in New South Wales, there

is a suggestion that it is not set in concrete but

then His Honour, especially Mr Justice Clarke comes

back and says, as a matter of course, it should be

done. Now, it is a question of just how far it

should be taken. There are cases which suggest

Ho 24/6/92

that it is not necessary to do it in precise terms.

Your Honour, I have set out at paragraph 14,

at page 4 of our outline, the fact that there is

authority to the effect that further directions in

fact should be given, as well. There is need for a

further direction that Crown must prove beyond

reasonable doubt it is a lie; that is the

Chamberlain point. Now, that has certainly not

been dealt with. That was a decision of

Chief Justice King in South Australia and

Mr Justice Clarke in New South Wales, with whom

Chief Justice Gleeson agreed. It was said that

there should be a further direction that there is no other reasonable hypothesis for the telling of

the lie. He said that should have been included in

that particular case as well.

Now, we would submit that all of those matters are sufficient to give rise to a special leave

point, just what the direction should have been,

and certainly we say that the direction in this

case did not conform with that. It is an

inadequate direction and nor did the Court of

Criminal Appeal deal satisfactorily with those

points, even in the judgment of

Mr Justice Williams, at page 64 of the record.

His Honour at the fourth-last line said:

Thomas J pointed out at 482 -

which is the case of R v McK, here in Queensland

which, in effect adopted the points made in Lucas -

I can simply say to you that what His Honour

Mr Justice Thomas did say was, the use of untrue

statements by an accused, whether made out of

court or in the court, for purposes of

corroboration, is a subject that requires careful

direction. Now, that was the earlier decision of

the Court of Criminal Appeal. Then, when we come

to Mr Justice Williams' reasons, he does not give	it the same sort of significance. So there is
significant turmoil here in Queensland as to the use to which lies can be put, and we go further and
say there is significant turmoil throughout
Australia, nor has it been agitated before this
Court previously.

BRENNAN J: Is there an application for redirection, on this

matter I mean?

MR FLEMING:  No. There was not an application for

redirection on this matter. The fact that Hua's

evidence though was critical is emphasized by the

fact that the jury wanted two portions of his

evidence read to them on additional occasions and

we would submit that because of the critical nature

Ho 6 24/6/92

of Hua's evidence in the end it is a proper vehicle

to give rise to a question before this Court.

DEANE J: Mr Fleming, can I divert you for a moment? The

Court of Criminal Appeal held that in any event

there was no miscarriage of justice in this case.

MR FLEMING:  Yes, they did.

DEANE J: Well now, if you come to the four Lucas points and

if you accept - putting at one side your onus of proof point - that the jury was persuaded beyond

reasonable doubt that your client had denied that

he knew Hua when Hua was there before him.

MR FLEMING:  Yes.

DEANE J: Which of those four grounds would you say was

really open to the jury?

MR FLEMING: We would submit all four were open to the jury.

DEANE J: But when you said he did not know somebody who, on

the evidence, he knew well, he was not deliberately

lying?

MR FLEMING:  Your Honour, there is a problem in that in that

the evidence is not that clear.

DEANE J:  No, but we must surely in view of the directions

accept that the jury were persuaded beyond

reasonable doubt that he, in fact, knew Hua and

that he had, in fact, when Hua was before him said

he did not know Hua.

MR FLEMING:  Yes. Your Honour, I come back and say that the

evidence in fact in the end is not that clear.

~here is a passage in His Honour's summing up about

it but what the evidence appears to be is that Ho

was saying he did not know him by that name, Hua.

Now, there is a conflict on the evidence, I have

got to concede in respect of that.

DEANE J: Well then, assume against what you are putting

that one were persuaded that the jury must have

accepted two things: one, that your client knew Hua; the other, that he had said he did not know Hua.

MR FLEMING:  Yes.

DEANE J: Well, which of the four matters would be

reasonably open to argument?

MR FLEMING:  Your Honours, 1 and 3, certainly of the matters

listed before the High Court.

Ho 24/6/92

DEANE J: Well, the argument on 3 is that His Honour's

direction spoke about what the Crown said, rather

than a direction as to what was required.

MR FLEMING: Yes, Your Honour, a precise direction as to

what was required. Indeed, the second item, that

it relates to a material issue probably is both a

question of law and fact. Probably the judge ought

to have directed that what material issues

were - - -

DEANE J: Yes, except in this case it is rather difficult to

say that whether your client knew Hua or not was

not a material issue.

MR FLEMING:	Yes, but even then, Your Honour, if His Honour had said that to the jury it would have clarified
the issues before the jury - or for the jury. The additional problem in this case is that the jury
was out for some nine hours on a direct conflict of
evidence really between Ho and Hua.  So they
obviously had a great difficulty with it and we submit that if they had a proper direction they may have been able to resolve the difficulty properly. So they did struggle with that point.

There is also the Robinson point, we say,

which also compounded the problem and we, in fact,

were going to seek leave to amend to include a

Robinson point, which creates its own difficulties here in Queensland because there is a division of

opinion in our Court of Appeal on what this Court

really said in Reg v Robinson. There are two cases our learned friends have referred to, or will refer

you to, about that, where this Court is split 2:1.

In addition, yes, and the critical role of eorroboration in the case ought not to be lost

sight of as well. Your Honours, Heyde, if I may

turn briefly to that, (1990) 20 NSWLR 234:

Chief Justice Gleeson, at page 236, at the middle

of the page, dealt with the state of the law as

His Honour saw it, having agreed already that he

agrees with the reasons of Justice Clarke;

pages 240, 241 of Mr Justice Clarke's judgment, the

last two lines at the bottom of page 240 on to page

241, especially between points E and Fon the page;

at pages 244, at a point between A and B, and then,

Your Honour, 246, at point D.

BRENNAN J: This was not the only piece of evidence that was

relied on as corroboration, was it?

MR FLEMING:  No, there were two other pieces of evidence

relied upon as corroboration; one was the hiring of

the mobile telephone, and calls were, in fact, it

appears, made from that mobile telephone, and Hua

Ho 24/6/92

had that, and the second was the receipt of

messages on a pager, which was sent from an hotel room occupied by Hua when he had the child there, and they were received by a pager in Ho's

possession. They were the other two pieces of

information.

BRENNAN J:  If the jury came to the conclusion that Ho knew

Hua, contrary to his assertion that he did not, and had those other two pieces of evidence, is there

any possibility of a miscarriage of justice?

MR FLEMING:	We would submit, yes, Your Honour, because of the problem that the jury had with the whole issue.
As I say, they were out for nine hours. They were locked up overnight and they came back then with
their verdict as a few minutes past 10. so it is obvious that the dispute between Hua and Ho was a
very critical one to the case.

BRENNAN J: And yet there was no application for

redirection?

MR FLEMING:  No, Your Honour. Your Honours, can I refer to

one other passage in Heyde, and that is a passage

at the bottom of page 241, point G, and that is the

way in which lies told by an accused may be used in

a trial in two ways: both corroborative and,

secondly, affirming the evidence of the Crown and

we submit that that, in addition, makes it a very

compelling reason for those directions to have been

given. Of course, the other direction that we

refer to is the Broadhurst direction which deals

with more the second way than the first. Your Honours, the direction in respect of the Reg v

Robinson point, is to be found at page 8.

BRENNAN J:	Was this raised in redirection?
MR FLEMING:	No, Your Honour.
BRENNAN J: Raised in the Court of Appeal?
MR FLEMING:	It was not raised in the Court of Appeal.
MR FLEMING:	And it has not been raised in your proposed

notice of appeal?

MR FLEMING:  No, Your Honour, but I do have an amended

notice of appeal which I would be seeking to file.

This, in fact, was heard prior to Reg v Robinson -

the High Court's decision in Reg v Robinson, it is

quite an old matter now. Your Honours, the other

thing which is of concern in this, and if one

starts.at the top of page 8, is His Honour's

reference to, "I suppose", in that second line:

Ho 9 24/6/92

Now, in that category I suppose you could

consider the underlying theme that was

suggested, I suppose, by the evidence of Mr Ho

that for some reason Mr Hua had set him up.

When it comes to the Crown case, it is, "The Crown said", which we say is an unsatisfactory way of

dealing with it, but if one is to consider the

impact on the jury, generally, as to whether an

injustice is done, we would say that we wanted to

take that into account, and then you come to

line 25:

You also can take into account the

interest that a witness might have in the

outcome -

that Mr Ho obviously has an interest in the outcome

of the proceedings, certainly it is not as strong
as the direction that Your Honours were dealing
with in Robinson, but nevertheless it is one that

still offends the underlying principle of Robinson,

and we say that in the assessment on whether or not

there was some injustice done all of these matters

have to be brought into account, as well, and we

would submit that it is a proper case for the

exercise of special leave. Thank you, Your Honour.

BRENNAN J:  Mr Fleming, the Court is of the view that it is

inappropriate at this stage, to grant you leave to

amend the proposed notice of appeal, in all the

circumstances of the case.

MR FLEMING:  Yes, thank you.

BRENNAN J: We need not trouble you, Mr Butler. The

applicant seeks leave to appeal on the question
whether the learned trial judge was in error in his

directions to the jury in relation to the use which

could be made of the applicant's denials that he

of Hua who was, on his own account and on the case	knew the witness, Hua, to corroborate the evidence
of the prosecution, an accomplice. The Court of
Criminal Appeal was of the view that while the
learned trial judge's directions on corroboration
may have been susceptible of some legitimate
criticism they gave rise to no possibility of
miscarriage of justice. We do not think that the
conclusion of the Court of Criminal Appeal to that
effect is attended by sufficient doubt to warrant a
grant of special leave to appeal to this Court.
Accordingly, the application is refused.

AT 10.51 AM THE MATTER WAS ADJOURNED SINE DIE

Ho 10 24/6/92