Chidiac v R

HOEBEN CJ AT CL: I agree with Button J.

ADAMSON J: I agree with the order proposed by Button J.

BUTTON J:

On 22 February 2016, an application was made to this Court on behalf of Mr Neil Chidiac, pursuant to s 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth) (the Act). The relevant portions of that section are as follows:

The submission made before us was that it would be in the interests of justice for the Commonwealth Attorney-General to make a request to the Solomon Islands that evidence be taken from a Mr Alfred Oti. The subject matter of the certificate that was sought is itself derived from s 12 of the Act:

The parties were in agreement that the conviction appeal of the applicant, which is part heard in this Court, falls within the definition of “a proceeding relating to a criminal matter” as that concept is understood by the Act. Nor was it disputed that, pursuant to s 39A(1A)(b) of the Act, it was appropriate for the application to be made to the Court of Criminal Appeal.

In accordance with s 39A(2) of the Act, both parties to the proceeding and the Commonwealth Attorney-General were given an opportunity to be heard on the application. Correspondence was received by the Registrar of this Court from the Attorney-General’s Department to the effect that neither the Attorney-General nor the Minister for Justice wishes to be heard.

Both the applicant and the Crown were represented by counsel, and the latter opposed the granting of the certificate.

The background of the application may be shortly stated. In 1989, the applicant was convicted of conspiring to import a traffickable quantity of heroin, contrary to s 233B of the Customs Act 1901 (Cth). He was sentenced to many years in prison. Mr Oti was a significant Crown witness at the trial.

In December 1989, an appeal against conviction to this Court was dismissed: see R v Chidiac; R v Asfour (Court of Criminal Appeal (NSW), 15 December 1989, unrep).

In 1991, special leave to appeal to the High Court of Australia was refused: see Chidiac v R [1991] HCA 4; (1991) 171 CLR 432.

The applicant spent many years in prison. His sentence has now completely expired, and he is at liberty.

On 9 March 2015, Beech-Jones J referred “the entire matter” to this Court as an appeal against conviction, pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW): see Re Chidiac [2015] NSWSC 157. It can be seen that an important factor in the reasoning of his Honour was that there was material to the effect that Mr Oti had recanted the evidence he gave in the trial, by way of a signed document in 1994, and in a video-recorded interview that was broadcast on television in 1997.

The matter came on for hearing before Macfarlan JA, Button J and Fagan J on 28 October 2015. Ultimately, an application for an adjournment was made and granted, so that all of the fresh evidence to be relied upon by the applicant could be, to the extent reasonably practicable, placed into an admissible form. That included making efforts either to have Mr Oti attend to give evidence orally in the witness box; or to have his evidence taken on commission in the Solomon Islands (where he was last known to reside); or to have his evidence taken by audio-visual link from that nation; or, if none of those things can be achieved and all of the preconditions of admissibility pursuant to s 65 of the Evidence Act 1995 (NSW) are able to be made out, by way of the tender of documents.

On 10 February 2016, a number of notices to produce were issued by this Court; at this stage, some documents have been produced, and some of the notices are pending.

As for inquiries made with regard to the whereabouts of Mr Oti, they have been reasonably extensive on the part of both parties. They have not borne fruit. On the evidence one cannot be satisfied that Mr Oti is indeed still alive, and, if he is, that he is still present in the Solomon Islands.

Senior Counsel for the applicant submitted that all of the mandatory matters for consideration contained in s 39A(3) of the Act argued in favour of the certificate being granted.

The point was also made that, on the last occasion, the court indicated that fresh evidence must be presented in accordance with the rules of evidence. Accordingly, it was submitted, all that can reasonably be done to obtain the evidence of Mr Oti should be done, and this Court should play its part in that.

It was emphasised that the assessment of the credit of Mr Oti will be a very significant part of the conviction appeal.

It was accepted by senior counsel that it is most unlikely that, within the two weeks between the day of the application and the day of the hearing, the certificate will be transmitted from Sydney to Canberra; the request will issue from Canberra to Honiara; Mr Oti will be located by the government of the Solomon Islands; arrangements will be made for the taking of videotaped evidence; and arrangements will be able to be made for the attendance of counsel so that examination-in-chief and cross-examination can take place. The submission was made, however, that one can but try.

Finally, it was made clear that the ancillary motivation for the application is so that, as necessary, the applicant can in due course submit that he has taken all reasonable steps for the purposes of s 65 of the Evidence Act, in support of a submission that Mr Oti is unavailable and that hearsay evidence of his prior representations should be admitted.

The Crown opposed the granting of the certificate, albeit not forcefully.

It was first said that the application had come too late, and should have been made shortly after the referral by Beech-Jones J, almost one year ago.

The second submission in opposition was that, reasonably extensive enquiries having been made by both parties, the granting of the certificate, and the making of any request of the Solomon Islands, will almost certainly be a futile exercise.

Turning to my determination, there is force in the proposition of the Crown that all of this is being done very late; indeed, perhaps too late.

One can also accept that the issue of a certificate by this Court is very unlikely to lead to Mr Oti being located and examined on oath.

Having said that, it is quite correct that an assessment of the credibility of Mr Oti is a very significant part of the conviction appeal. That assessment could be made far more readily if there were a recent video-taped examination of him, rather than if the court were merely seeking to discern where the truth lies in a number of documents (including the film of the interview broadcast in 1997). Whilst one may accept that a certificate and a request are very unlikely to find success, still and all there is force in the argument that the extra effort should be made, on the off-chance that it bears fruit.

Turning to the mandatory matters for consideration, no material was placed before us as to the likelihood of the Solomon Islands granting such a request: s 39A(3)(a) of the Act. But I think that one can take judicial notice of the fact that Solomon Islands is a close neighbour of Australia, and that the two nations are on generally friendly terms.

Secondly, if the court is deprived at the hearing of the appeal of recent evidence on oath from Mr Oti, it will not otherwise be available: s 39A(3)(b) of the Act. As I have said, assessment of his credibility on the basis of documents only will be a much inferior procedure.

Thirdly, if Mr Oti were able to be located and examined on oath, it is highly likely that the Court of Criminal Appeal would admit that material into evidence in the conviction appeal: s 39A(3)(c) of the Act.

Fourthly, sworn evidence of Mr Oti of 2016 relating to the truthfulness or otherwise of his evidence in the Crown case in 1989 would be likely to be of very high probative value in the conviction appeal: s 39A(3)(d) of the Act.

Fifthly, I do not believe that the applicant would be unfairly prejudiced, in the strict sense, by the unavailability of a recent sworn version of Mr Oti: s 39A(3)(e) of the Act. But it would be highly advantageous to him (and indeed the Crown) for such evidence to be available.

In short, every mandatory consideration, along with the overarching factor of the centrality of the assessment of the credibility of Mr Oti in a conviction appeal for a very serious offence (with respect to which a judge has experienced a sense of doubt or unease), argues in favour of us granting the certificate, despite the fact that it will very likely be fruitless.

In short, I consider that this Court should grant a certificate that it would be in the interests of justice for the Commonwealth Attorney-General to make a request to the Solomon Islands that the appropriate authority of that nation arrange for evidence to be taken in the Solomon Islands from Mr Alfred Oti; arrange for a tape-recording to be made of the taking of that evidence; arrange for a copy of that tape-recording to be sent to Australia; and that an opportunity be given for Mr Oti, when giving evidence, to be examined and cross-examined (either in person or through a video link to Australia) by the legal representatives of the applicant, Mr Neil Chidiac, and the Commonwealth Director of Public Prosecutions.

I propose the following order: