Chidiac v R (No 2)

1. [1]

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

2. [2]

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

3. [3]

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

Appeal history

1. [4]

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

2. [5]

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

3. [6]

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

4. [7]

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

5. [8]

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

Grounds of appeal and nature of proceedings

1. [9]

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

2. [10]

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

3. [11]

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

4. [12]

   Section 86 Crimes (Appeal and Review) Act provides:

5. [13]

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

6. [14]

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

7. [15]

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

8. [16]

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

Outline of the Crown case at trial in 1989

1. [17]

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

2. [18]

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

3. [19]

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

4. [20]

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

Evidence-in-chief of Oti at trial

1. [21]

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

   1. (1)

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

   2. (2)

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

   3. (3)

      During this conversation the appellant said:

   4. (4)

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

   5. (5)

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

   6. (6)

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

   7. (7)

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

   8. (8)

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

   9. (9)

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

   10. (10)

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

   11. (11)

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

   12. (12)

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

   13. (13)

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

   14. (14)

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

   15. (15)

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

   16. (16)

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

   17. (17)

       Oti had no further contact with the appellant after this.

Evidence-in-chief of Kwalu at trial

1. [22]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

Cross-examination of Oti at trial

1. [23]

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

2. [24]

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

3. [25]

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

4. [26]

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

5. [27]

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

6. [28]

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

7. [29]

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

8. [30]

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

9. [31]

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

10. [32]

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

The Crown case at trial apart from Oti and Kwalu

1. [33]

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

2. [34]

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

3. [35]

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

4. [36]

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

5. [37]

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

6. [38]

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

   1. (1)

      27 May 1985: departed Brisbane and arrived in Honiara.

   2. (2)

      31 May 1985: departed Honiara and arrived in Vanuatu.

   3. (3)

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

   4. (4)

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

George not called at trial

1. [39]

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

2. [40]

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

3. [41]

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

4. [42]

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

5. [43]

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

The appellant’s dock statement

1. [44]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

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

   6. (6)

      The appellant had planned a family holiday with his children for May 1985 during school holidays. He postponed his departure until the day after his brother’s wedding. At the reception for this wedding Samir Helais had said “I have a contact in Honiara and when you get there just look him up, he might help you to get around and tell you something about the island”. The named contact was Alfred Oti, whom the appellant contacted with the assistance of someone on the reception desk at his hotel in Honiara.

   7. (7)

      “So, I rang him [Oti] up and I told him who I am. He didn’t have the faintest idea who the hell I am. He said, who is Neil and all this rubbish about Sam’s arriving to Honiara then Sam change his mind and Neil is arriving to Honiara. The (sic) he didn’t know anything about that whatsoever of the the only thing he could relate to Sam a Sam from Sydney.”

   8. (8)

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

   9. (9)

      Oti visited the appellant’s hotel again around 6 or 7 o’clock the next evening: “We were just about to go for dinner. I talked to him for a couple of minutes. I tried to fob him off. He asked for some more money. I gave him $20 for a drink and he stayed at the bar while we had dinner.”

   10. (10)

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

   11. (11)

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

   12. (12)

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

   13. (13)

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

   14. (14)

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

Circumstances of Oti giving evidence at trial

1. [45]

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

2. [46]

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

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

1. [47]

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

2. [48]

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

3. [49]

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

4. [50]

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

5. [51]

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

6. [52]

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

7. [53]

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

8. [54]

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

9. [55]

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

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

1. [56]

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

2. [57]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

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

   6. (6)

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

   7. (7)

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

   8. (8)

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

   9. (9)

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

3. [58]

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

4. [59]

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

5. [60]

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

6. [61]

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

Oti’s handwritten recantation, 23 November 1994

1. [62]

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

2. [63]

   The handwritten statement is to the following effect:

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

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

1. [64]

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

2. [65]

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

3. [66]

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

4. [67]

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

5. [68]

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

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

1. [69]

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

2. [70]

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

3. [71]

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

Oti’s record of interview, 23 November 1994

1. [72]

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

2. [73]

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

3. [74]

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

4. [75]

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

5. [76]

   At pp 20 – 21 the questions and answers reverted to the subject of what Detective Venchiarutti had said in 1987 when encouraging Oti to give evidence concerning the appellant (see the summary of pp 12 – 15 above).

6. [77]

   Then at p 21 the following question and answer appear:

7. [78]

   It is clear that the questioner, Mr Jameson, was aware Kwalu had given evidence at the appellant’s trial which supported Oti’s account of a three way conversation between Oti, Kwalu and the appellant in Honiara in May 1985 concerning the importation of drugs into Australia. It was apparent to the questioner, as it is to the Court, that if Oti had fabricated this evidence at trial then either Kwalu must have collaborated with him about the version of events to be fabricated or, by extraordinary and highly improbable coincidence, Kwalu had fabricated the same story independently. Otherwise the evidence of Kwalu would suggest that that of Oti was a true account of events which both he and Kwalu were able independently to recall.

8. [79]

   In the questioning at pp 21 – 26 Mr Jameson fully explored with Oti whether he might have intimated to Kwalu the terms of the purportedly false story that Oti was going to tell against the appellant in order to give Kwalu an opportunity to fabricate to the same effect. But Oti said that he had no discussions at all with Kwalu about the appellant during telephone calls from the prison after he had first spoken to Detective Venchiarutti. He agreed that he had written from the prison a letter to Kwalu and given it to Detective Venchiarutti to deliver. In that letter “I just told him to co-operated (sic) with Venchirautti (sic) for what ever questions he asks. …I say something along the lines that Err if [Venchiarutti] asking anything about Neil or anybody else just to answer they Err answer him Err correctly say the truth. Tell them the truth”. Oti denied that he told Kwalu what Oti himself had said to the police about the appellant and denied that he made any suggestion to Kwalu about what the latter might say.

9. [80]

   In the face of these answers the questioner pressed Oti with the seeming contradiction that the evidence he had given against the appellant, which he now said was fabricated, appeared to have been independently corroborated by Kwalu. Oti endeavoured to reconstruct how this might have come about:

10. [81]

    Mr Jameson pressed Oti yet again with this difficulty at pp 25 – 26:

11. [82]

    At pp 26 – 32 questions were asked about the manner in which Oti had been further questioned by the authorities after Kwalu had made his first statement. As referred to at [28], there was a significant discrepancy between Oti’s statement of 17 October 1987 and Kwalu’s first statement in that Oti had asserted Kwalu’s October 1984 visit to Australia was merely a holiday whereas Kwalu acknowledged that it was the first in the series of four importations. Mr Jameson’s questions over these pages explored whether there might have been any impropriety on the part of the police or the Crown in seeking to bring Oti’s evidence into conformity with that of Kwalu. No such impropriety appears from the answers given. The process described is the usual and ethical one of re-interviewing a witness, prior to trial, when information comes to light which casts doubt upon an aspect of his statement to police. In this case that resulted in Oti making his supplementary statement of 1 July 1988 in which he admitted that Kwalu’s 1984 visit to Sydney had been for the purposes of effecting an importation.

12. [83]

    At p 32 Oti said that he did not again speak to the appellant after the latter left Honiara in May 1985, contrary to the evidence he gave at trial. Also at pp 32 – 33 he said that he had written a letter of regret and recantation to Durak Dursun whilst in prison. This is the passage referred to at [61].

13. [84]

    At pp 33 – 37 Oti said, consistently with the evidence he had given at trial, that George phoned him in 1985 to say that Sam would be coming to Honiara to see him and that subsequently either George or Sam phoned to say that a different person would be coming, who turned out to be the appellant. He said he had never learned the appellant’s full name until he was giving evidence at the trial. He related visits he had received in gaol from George and George’s girlfriend. Oti said that Durak Dursun had told him in gaol that George was an informer.

14. [85]

    At pp 38 – 40 Oti was asked about visits he had received from a number of Solomon Islanders whilst he was in gaol and about the value of the drugs he had carried.

15. [86]

    At pp 40 – 41 Oti answered questions about the manner in which he caused his letter to Kwalu from prison to be delivered. He said he gave it directly to Detective Venchiarutti. Detective Venchiarutti’s evidence on the appeal included that he received the letter through a Corrective Services officer. This subject does not appear to have been of any significance at this point in the record of interview because Oti made no positive assertion to Mr Jameson that the letter communicated an improper invitation to collaborate about giving false evidence against the appellant.

16. [87]

    At pp 42 – 44 Mr Jameson’s questions were directed to the telephone number for the Voice Call paging service. At p 42 Oti said he was not aware the appellant had a pager at the time of the visit to Honiara on 27 May 1985 but that he had subsequently been told either by Sam Helais or George and that one or other of those two persons gave him the number: “They said this is the contact, contact Neil”. This answer is inconsistent with Oti’s assertion that his meeting with the appellant in Honiara had been purely social, isolated and fleeting, with no subsequent contact or reason for contact. This difficulty must have been apparent to the questioner who continued as follows:

17. [88]

    At p 43 the questioner put to Oti a series of leading questions concerning Oti’s evidence at the appellant’s trial to the effect that he had made contact with the appellant using the paging service. Oti told Mr Jameson that that evidence had been false. That was followed up in this manner:

18. [89]

    The first question in this sequence introduced the proposition that Oti had been asked by someone to give evidence that he had contacted the appellant through the paging service. This was a gratuitous suggestion which Oti adopted. His adoption of it is of little weight. It is not clear that he understood the question or his answer to it as involving the proposition that he was requested by police to fabricate this part of his evidence – as opposed to being asked to give evidence of it in court, having first volunteered the information truthfully out of court.

19. [90]

    Further questions “Did you have the number prior to that?” and “You were totally unaware” and “The first time you got it was from Terry” were put in disregard of the answer that Oti had given on the previous page. Namely, that the number of the paging service had been provided to him by either George or Sam, as the contact for the appellant.

20. [91]

    Having led Oti into this inherent contradiction in his evidence, the questioner continued to procure contradictions with more leading, as follows (at 44):

21. [92]

    The record of interview concluded on pp 44 – 46 with Oti being asked to reconfirm those parts of his handwritten statement in which he had said that he was no longer afraid of receiving a longer sentence and was therefore now telling the truth. A very improbable answer was given to a question on the last page of the interview as follows:

Oti’s television interview, 25 March 1997

1. [93]

   The appellant tendered in the appeal a DVD recording an interview conducted with Oti by Mr Mark Llewellyn, the presenter of a television programme entitled “Witness”. Portions of this interview were extracted by the television producers and incorporated into a programme which was broadcast in 1997. The programme also included exchanges between Mr Llewellyn and the appellant, the appellant’s wife Mrs Cassandra Chidiac and his trial counsel, Mr McCrudden. The appellant tendered transcripts of the entire interview with Oti and of the programme.

2. [94]

   No direct evidence was led or tendered on the appeal to explain how the producers of this programme were introduced to the subject of the appellant’s conviction and of Oti’s recantation. The programme commenced with the film crew and Mr Llewellyn standing outside the gates of Berrima Correctional Centre in February 1997 in company with Mrs Chidiac and Mr McCrudden. During the recorded programme Mrs Chidiac is described as having been a family friend of the appellant at the time of his trial who watched it throughout and who subsequently “worked tirelessly to clear his name”. In her own words, spoken during the programme, she fell in love with the appellant and married him whilst he was serving his sentence. We infer that Mrs Chidiac must have invited the television producers to make the programme.

3. [95]

   The only information regarding how Oti was contacted in order to conduct the interview is contained in the programme itself. Mr Llewellyn said:

4. [96]

   The full interview of Oti by Mr Llewellyn is highly repetitive. The following is a summary of the significant parts arranged in order of the chronology of the events described with the numbering of the question to which the answers were given indicated in the brackets.

5. [97]

   Oti said he had been involved for some time in importing drugs from Honiara into Australia with George and Sam Helais when he received calls from George to say, first, that Sam was coming to Honiara and, later, that Neil was coming (Q 22 – 23). The appellant arrived in Honiara, Oti met him but they did not on that or on any other occasion speak about drugs (Q 24 – 26).

6. [98]

   Oti stated that Wilson Kwalu physically met the appellant at his hotel in Honiara in May 1985 and was present when Oti and the appellant spoke on that occasion, being Oti’s second meeting with the appellant. Drugs were not discussed (Q 66 – 76).

7. [99]

   Oti said he met Detective Venchiarutti when he came to the prison where Oti was serving his sentence for the December 1985 importation:

8. [100]

   Oti said Detective Venchiarutti told him that police:

9. [101]

   Oti said he was told by Detective Venchiarutti and other police that he would be a long time in gaol but if he helped them by giving evidence against the appellant he would “get out very quickly” as “we have been trying to get him”. Oti made up a story about the appellant to try “to get myself out of gaol quickly” (Q 32 – 34, 44 – 45, 167 – 168).

10. [102]

    Oti gave the following answers, to the effect that police interviewing him had provided cues for the story they wanted him to fabricate:

11. [103]

    Oti gave these answers:

12. [104]

    Oti asserted that he was not asked to make up the account that gave or any particular account – and that he invented his evidence on his own.

13. [105]

    Oti repeated that what he now claimed were lies told to police to incriminate the appellant had been invented unaided.

14. [106]

    Oti gave answers to the effect that when police asked him what had taken place between him and the appellant upon the latter’s visit to Honiara in May 1985 he had initially told them that the appellant was merely on a holiday, before changing his story to implicate the appellant with a view to obtaining assistance for his early release from prison:

15. [107]

    Oti said police already knew that the appellant had visited Honiara in May 1985, when they came to interview Oti in prison. Oti stated his suspicion that they had gained this knowledge from George. He said George knew of the visit because he was the person who had informed Oti, first, that Sam Helais was coming to the Solomon Islands and, subsequently, that the appellant was coming in his place (Q 247 – 253).

16. [108]

    Oti claimed to have believed George would also have told police about the involvement of Kwalu in the importations during 1984 and 1985 because they asked him “Is Wilson involved?”. Oti said that when he told them Kwalu was involved the police asked him to include Wilson in the story about Neil Chidiac (Q 192 – 196).

17. [109]

    Oti said George had provided him with the number of the Voice Call paging service at the time of advising that “Neil” would visit Honiara in place of Sam. George had said “When Neil returned (scil. returns), this is the number you can contact” (A 308). Two questions further on Oti contradicted this and said that this conversation took place after the appellant had visited. Then at A 316 he said that it was George who told him “When you ring the pager service, ask for Neil and say, ‘This is Alf’.” (Q 306 – 320).

18. [110]

    Oti asserted that Kwalu knew to tell police the same fabricated story that Oti had told, incriminating the appellant, because Oti wrote him a letter from prison telling him “to say that we met Neil here and discussed something about drugs and that when he went over to Sydney that he met Neil” (A 54). Detective Venchiarutti did not tell Oti what to write in this letter and Oti did not tell the detective what he had written. Oti did not see the detective read the letter but suspected that he did. Oti gave the letter to Detective Venchiarutti who delivered it to Kwalu in Honiara (Q 49 – 65, 198 – 201). At Q 223 – 228 Oti claimed the letter had been opened before it was delivered to Kwalu and that he suspected Detective Venchiarutti had done this and therefore knew that Oti had coached Kwalu.

19. [111]

    Oti said the Crown prosecutor had conferred with him about differences between his first statement to police and Kwalu’s statement concerning the reason for Kwalu’s November 1984 trip to Sydney (see [28]). Prosecuting counsel and others “visited me to… tell me that my evidence, the statement that I gave against Neil, was not in line with the evidence that Wilson gave… [prosecuting counsel] said I had to change mine, some of the things to… go in line with Wilson’s statement” (A 361, 363). After this discussion with Crown counsel “the coppers came up bringing that statement, Wilson’s statement. …I looked at it. …I did not actually change the first [statement] but [I made] an additional statement” (A 377 – 379).

20. [112]

    Oti claimed that Detective Venchiarutti instructed him not to send his letter to Kwalu “through proper channels” of Corrective Services and the post. “He told me not to send it; …[he] would come and pick it up and bring it over [to Honiara] himself”. Oti asserted that Detective Venchiarutti “smuggled the letter out”, contrary to prison regulations (Q 239 – 245).

21. [113]

    Oti said he did not expect the appellant to go to jail and was surprised at his arrest:

22. [114]

    Oti claimed to have been hoping, notwithstanding the provision of his evidence, that the appellant would not go to jail (Q 344 – 357). “I did not expect him to be found guilty” (A 348).

23. [115]

    Oti said he had written to Mr Dursun while both were in prison, after Oti had given evidence against the appellant. He could not remember everything he said in the letter but it had included that he had not intended “to send anybody to prison” (Q 336 – 343).

24. [116]

    Oti said he became a Christian when he left gaol, was “a committed Christian” at the time of the interview for the television programme in 1997 and was sorry for having given false evidence against the appellant (Q 82).

Innuendo against Detective Venchiarutti in the television interview

1. [117]

   The television interviewer’s manner of questioning conveys implicit assertions of improper conduct, in two respects, of the police officers who were in 1987 and early 1988 investigating the appellant’s possible involvement in drug importation. These assertions appear to the Court misconceived and unfounded. The first is that police improperly pressured or induced Oti by telling him, prior to the making of his statement on 17 October 1987, that he would spend a long time in prison if he did not co-operate with police by giving evidence against the appellant.

2. [118]

   Detective Venchiarutti does not dispute that this is what Oti was told. It did not amount to improper influence or inducement. When he made his first statement Oti still had 8 years and 2 months of his effective non-parole period to serve under the sentence imposed in the District Court on 3 April 1987. He would be eligible for parole on 22 December 1995. He would have had very good prospects of obtaining significant reduction in that sentence if he co-operated with authorities, especially if his doing so enabled police to charge another offender whom they would not have been able to bring to justice without his help.

3. [119]

   Oti’s sentence was significantly reduced by the Court of Criminal Appeal: R v Oti (1990) 19 NSWLR 561. From the reasons of this Court published at that time it appears the reduction came from the application of amended sentencing legislation in New South Wales and from the interaction of the amended provisions with the relevant Commonwealth statute. The reasons make no reference to a reduction for assistance to authorities. The result was the reduction of his original sentence to 5 years and 6 months commencing 23 December 1985 and expiring 22 June 1991 with an additional term (during which he might be released on parole) of 1 year and 10 months.

4. [120]

   For the reasons stated at [55], no impropriety is involved in informing a prisoner that he may obtain reduction of sentence, either prior to first sentencing or by the introduction of fresh evidence on an appeal, by assisting authorities. Impropriety would be involved only if the prisoner was encouraged to give false evidence. That is the subject of some of Oti’s answers given during the interview, contradictions in which and the unreliability of which will be considered hereunder.

5. [121]

   A second theme of the television interviewer’s innuendo was that the police officers’ lack of interest in the incriminating information which Oti offered regarding George reflected deliberate targeting of the appellant and favourable treatment of a co-conspirator. In view of George’s evident status as a police informant, the investigating officers’ lack of interest in evidence from Oti concerning him is understandable. In accordance with usual and legitimate operational decision making it would not be expected that George should be charged.

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

1. [122]

   An affidavit of the appellant sworn 31 May 2013 was read on the hearing of the appeal. He gave short supplementary oral evidence-in-chief to the effect that he did not discuss drugs with Oti when they met in Honiara and that he had never met Kwalu before seeing him at his trial in February 1989. Significant parts of the cross-examination of the appellant will be referred to later in these reasons. At this point reference will be made only to those passages which bear upon the circumstances of Oti having offered his recantations in November 1994 and March 1997.

2. [123]

   In evidence-in-chief the appellant made no mention of a letter having been written by Oti to Mr Dursun and shown by Mr Dursun to the appellant whilst the two of them were in custody in Parklea prison. Nor is there any account given by the appellant of the circumstances which led to Mr Jameson and Mr Dursun travelling to Honiara in November 1994 to obtain Oti’s handwritten statement and to interview him or of the circumstances which led to the television interview of Oti in March 1997.

3. [124]

   In cross-examination before this Court (T 55 – 56) the appellant said Oti had sent a letter to Mr Dursun “apologising for what he did to me as the police are concerned” and stating “the police made him do that”. According to the appellant this had occurred whilst all of them were in jail. Mr Dursun had shown the letter to the appellant when those two were at Parklea in “89/90” but the appellant did not obtain a copy. He understood the letter as “implicating the Federal Police – by twisting [Oti’s] arm as such – to say what he said”. The appellant said he engaged Mr Jameson “to get a statement from Mr Dursun about this matter” (T 55.47). He did not say when that engagement was made. He said that on release from prison in February 1997 he engaged Mr Jameson to go to Honiara to see Oti.

4. [125]

   The appellant gave these answers (T 57.15 – .23, .32 – .38):

5. [126]

   The appellant further said that he did not pay Mr Jameson, even for his travel expenses. He did not instruct Mr Jameson to have Mr Dursun accompany him to Honiara. He understood that Mr Dursun was a friend of Oti’s and that he had offered to go. The appellant did not meet with or speak to Mr Dursun before they departed for Honiara. The appellant denied that he had sent Mr Dursun for the purpose of intimidating Oti.

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

1. [127]

   When the hearing of this appeal commenced on 28 August 2015 the appellant submitted that he was entitled to rely upon all of the material which had been received by Beech-Jones J on the application under s 79 Crimes (Appeal and Review) Act (see [2]). This included the recantations of Oti from November 1994 and March 1997, in handwriting and in transcript and video recorded interviews.

2. [128]

   The application to Beech-Jones J had been determined on the papers. In accordance with s 79(4) the Crown was permitted to make submissions. It did not object to his Honour taking into account the “previous representations” of Oti in unsworn written form. In this appeal the appellant submitted that that material “went in properly, bearing in mind the nature of the proceedings” and had become “part of the case” as presented to Beech-Jones J. It was argued that when the order was made to “refer the whole case to the Court of Criminal Appeal,” as provided for in s 79(1)(b), the result was that everything that had been before Beech-Jones J was to be regarded as being in evidence before the Court of Criminal Appeal.

3. [129]

   In this connection the appellant cited the judgment of Gaudron and Toohey JJ in Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 311 – 312. That case was concerned with s 140 Sentencing Act 1995 (WA) by which power was conferred upon the Attorney-General of Western Australia to refer a petition in relation to an offender to the Court of Criminal Appeal of that State for “the whole case to be heard and determined as if it were an appeal by the offender against the conviction”. The full passage from their Honours’ judgment was as follows:

4. [130]

   We do not consider that this passage supports the appellant’s contentions as paraphrased at [128] at all. We have earlier quoted (at [10] and [11]), from the judgment of Gummow, Hayne, Callinan and Heydon JJ in Mallard v The Queen, their Honours’ statement that “the words ‘the whole case’ embrace the whole of the evidence properly admissible, whether ‘new’, ‘fresh’ or ‘previously adduced’, in the case against, and the case for, the appellant” (emphasis added).

5. [131]

   Section 79(1)(b) Crimes (Appeal and Review) Act employs language closely similar to s 140 Sentencing Act 1995 (WA) and the purposes of the two provisions respectively are substantially the same. We consider that “the whole case” in s 79(1)(b) is limited to “the whole of the evidence properly admissible” just as the High Court found the same expression to be so limited in the statute considered in Mallard v The Queen. This is further confirmed by consideration of s 86 Crimes (Appeal and Review) Act (quoted at [12]).

6. [132]

   If the appellant had brought this appeal directly under the Criminal Appeal Act rather than by reference, the reception of new or fresh evidence would be limited to that which would be admissible. We reject the proposition that everything which was before the judge who ordered the reference is part of “the whole case” irrespective of its admissibility according to the rules of evidence applicable in the appeal.

7. [133]

   The appellant’s trial was conducted before the enactment of the Evidence Act 1995. Whether that Act or the pre-existing common law governs the admissibility of Oti’s recantations in this appeal is a question which may be answered by analogy with the rule which would apply in a conventional appeal concerning new or fresh evidence. The general principles governing appeals of that nature have been restated in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63].

8. [134]

   The choice of the applicable evidentiary rule is readily resolved by reference to two considerations. First, the recantations are “fresh” evidence in that this material did not exist at the date of trial and was not available to be adduced by the appellant however diligently his legal representatives may have prepared his defence. Evidence which has emerged subsequently has no natural connection with the date of the trial such as would justify adopting that date for the ascertainment of the applicable rule of admissibility. It would be incongruous now to apply a rule of evidence which operated at the date of trial to material which surfaced later, if the law had altered in the meantime – as it has.

9. [135]

   Secondly, in an appeal such as the present, where the only relief sought is the quashing of the conviction and the substitution of acquittal, this Court is asked to make its own finding of whether the verdict is “unreasonable, or cannot be supported” upon “the whole case”. This should be decided upon evidence admissible at the time the finding is to be made according to evidentiary rules then in force. This is not an appeal where the soundness of the jury’s verdict is to be considered upon the limited basis of the material tendered at trial plus any additional evidence which was reasonably admissible at the time of the trial and could have been tendered therein. If that were the issue, logic would suggest that rules of evidence applicable at the date of trial would also be applicable in the appeal.

10. [136]

    It follows that the rule of evidence to be applied must be s 65(2) of the Evidence Act which is in force at the time of the appeal before this Court and which governs the reception of material for the making of a decision now. This accords with the view taken by the Victorian Court of Appeal in Rich v R [2014] VSCA 126; (2014) 43 VR 558 at [132] – [135]:

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

1. [137]

   Unless s 65 Evidence Act applies to the “previous representations” by Oti, s 59 renders them inadmissible. Section 65 provides as follows so far as relevant:

2. [138]

   As at 28 October 2015 when the hearing of this appeal commenced the appellant had not located Oti and was therefore not in a position to obtain from him an affidavit verifying his recantations. The appellant was not then able to procure Oti to give evidence orally either by attending Court in Sydney or by means of an audio visual link from Honiara.

3. [139]

   On 2 February 2016 the appellant filed an amended application seeking a certificate under s 39A Mutual Assistance in Criminal Matters Act 1987 (Cth). This was with a view to having the Attorney-General for the Commonwealth request the Solomon Islands to arrange for Oti to be examined there. The appellant envisaged that the examination would take place over an audio visual link. On 24 February 2016 the Court ordered that such a certificate should be issued.

4. [140]

   The Attorney-General for the Commonwealth duly requested the Solomon Islands to make arrangements for Oti to be examined in Honiara. The Solomon Islands Attorney-General complied. A facility for an audio visual link was reserved in Honiara from 2pm (Sydney time) on 8 March 2016 and from 10am on 9 March 2016, being the second and third days of the resumed hearing of the appeal. Mr Oti failed to attend at the location in Honiara where the link was set up at either of these times.

5. [141]

   In these circumstances the appellant now submits that Oti is “not… available to give evidence” within the meaning of s 65(1). The Court accepts that this pre-requisite for the application of s 65 is satisfied. The appellant has done all that could reasonably have been done to have the witness give sworn testimony, without success.

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

1. [142]

   Section 65 applies if the appeal is to be regarded as a “criminal proceeding”. That expression is defined in Pt 1 of the Dictionary to the Evidence Act, as follows:

2. [143]

   A criminal appeal such as the present would not in ordinary legal usage be described as “a prosecution for an offence”. However it is a proceeding which concerns ascertainment of liability for a criminal offence. The question whether this is sufficient to bring the appeal within the meaning of a “criminal proceeding” as used in the Evidence Act is not covered by authority. The words of the definition do not in terms exclude an appeal; they are capable of being read widely enough to embrace this aspect of the criminal process. Interpretation in these circumstances is strongly influenced by consideration of the purpose of the section. It must have been intended by the legislature that the same rules of evidence would apply to evidence first introduced on appeal as would apply at trial. We consider that the expression “criminal proceeding” should be construed sufficiently broadly to embrace the appeal presently before this Court.

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

1. [144]

   The only possibly applicable part of s 65(2) is paragraph (d). Oti’s representations in his handwritten recantation, in the answers he gave in the record of interview with Mr Jameson and in the television interview were against his interests in that they involved confessions to his having lied on oath at the trial of the appellant. Within the meaning of subs (7) of s 65 such admissions tend to damage Oti’s reputation and to show that he committed an offence against the laws of New South Wales of perverting the course of justice. That leaves the issue of whether the representations were made “in circumstances that make it likely” that they are “reliable”.

The range of relevant circumstances in which the recantations were made

1. [145]

   In R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603 at [15] – [40] Mason P considered a number of decisions concerning the range of “circumstances” to which regard may be had in applying those paragraphs of subs 65(2) where the likelihood or probability of a person’s representations being either reliable or a fabrication is a threshold question for admissibility. From those decisions his Honour drew conclusions about what circumstances may be considered in deciding whether a previous representation is “unlikely” to be a “fabrication” – the terms employed in par (b) of subs (2). The expression “made in circumstances” is used uniformly in each of pars (b), (c) and (d) of subs (2). The legislature would not have intended any different meaning from one paragraph to the next. Mason P’s conclusions are therefore applicable to par (d). This view is supported by the judgment of Leeming JA (with whom Johnson and Schmidt JJ agreed) in Sio v R [2015] NSWCCA 42 at [27] and by the legislative history of par (d), as traced in that judgment.

2. [146]

   In R v Ambrosoli at [28] – [29] Mason P accepted that s 65(2)(b) is

3. [147]

   At [31] Mason P said that “evidence tending merely to the reliability or otherwise of the asserted fact (usually the ultimate issue at the trial) could not be advanced on the voir dire for or against the admissibility of the evidence of the previous representation”. Putting this another way (at [34]), his Honour held that at the point of determining admissibility under s 65(2) “evidence tending only to prove the asserted fact” should be excluded from the examination of the circumstances in which the previous representation was made.

4. [148]

   Mason P held at [36] that prior or later statements or conduct of the person making the previous representation may be taken into account on the threshold assessment of likelihood (or otherwise) of reliability but only “to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s 65(2)”. His Honour concluded that in the case then before the Court it was relevant for the trial judge to have considered both the manner in which police had interviewed the maker of the witness statement tendered under s 65 and also the evidence of the witness in examination-in-chief and in cross-examination at committal.

5. [149]

   In addition to being cited with approval in Sio v R, R v Ambrosoli has been applied in this Court, for example in Youkhana v R [2013] NSWCCA 85. On an application for special leave to appeal the decision in Sio v R, heard on 11 March 2016, there was reserved to the full bench of the High Court the question whether leave would be granted in relation to a ground of appeal concerning the construction of s 65(2). The issue in that appeal regarding s 65(2) if it should be entertained by the full bench would concern the need to consider individual answers given in a long interview as to whether they were, severally, given “against interest” in a case where the interviewee attributed blame to a co-accused thereby tending in fact to exculpate the interviewee himself. It is not apparent that issues which may be argued in the High Court in Sio v R concerning s 65(2) would be of significance to the present case, given that all of the statements made by Oti in 1994 and 1997 upon which the appellant wishes to rely were against his interest for the reasons given in [144].

Motive for Oti to recant falsely

1. [150]

   The purported recantations of November 1994 and March 1997 were not inherently likely to be truthful merely by virtue of the circumstances in which Oti wrote and spoke on those occasions. Having returned to Honiara soon after his release from protective custody on 22 June 1991, Oti was not in a situation of which it could be said that it would be unlikely he would offer a recantation unless it were true. The making of the recantations is equally consistent with him having felt at risk of repercussions from the appellant or his associates. His conduct could be explicable on the basis that he felt pressured by the approach of Messrs Jameson and Dursun in November 1994, whether they intended it or not. He knew that they were speaking with him at the behest of the appellant.

2. [151]

   In March 1997, only weeks after the appellant had been released from prison, Oti may have continued to feel apprehension about repercussions. When interviewed by the television presenter, he may have additionally felt a need to attempt to maintain consistency with what he had told Messrs Jameson and Dursun two and a half years earlier.

3. [152]

   Both in November 1994 and March 1997 Oti may have considered that he was not at risk of any further action by authorities against him if he should falsely recant. He had secured his release. Thus, he may have calculated that he could appease the appellant by purporting to recant at no cost to himself in the sense of incurring further attention from authorities.

4. [153]

   In accordance with the appellant’s request we have viewed the video recording of the March 1997 television interview. The appellant has characterised Oti’s presentation therein as showing “a friendly and open demeanour”, said to be inconsistent with him having felt any pressure or threat from the appellant. The Court’s impression of Oti’s demeanour is that he tended to maintain a fixed smile throughout, whilst purporting to speak of the gravest wrongdoing on his own part. This incongruous manner whilst being questioned by the television presenter does not assist the Court in evaluating the reliability of his representations.

Oti’s given reasons for recanting

1. [154]

   The circumstances in which the recantations were made include the reasons given by Oti for his change of position. In November 1994 his only purported explanation for a change of moral sense was that he had “been a dedicated Christian since [he] had got out of jail” (see [63](2)). This was in his November 1994 handwritten statement and was repeated by him in the record of interview of that date (see [73]). We accept Detective Venchiarutti’s evidence that Oti stipulated the opportunity to continue with his bible studies as a condition of co-operating with police in late 1987 (see [48](3)). Religious observance was not new to him in 1994.

2. [155]

   At pp 18 – 19 of the record of interview with Mr Jameson, Oti was challenged about his claim to have adopted a stronger morality since giving evidence at the trial (see [73]). We find Oti’s purported distinction between, on the one hand, being a reformed and dedicated Christian at the time of giving evidence, and, on the other hand, being “born again” at the time of recanting unconvincing. His purported change of moral outlook is left unexplained. His claim that reform from alcoholism had improved his memory, reduced his confusion and contributed to him telling the truth in November 1994 (see [74]) lends no plausibility to the recantations as against his original evidence. When he gave evidence in the appellant’s trial he had been in prison for over 3 years and would have been well and truly free of the effects of alcohol addiction.

3. [156]

   Similarly in the March 1997 television interview Oti failed to explain the different effect of his Christianity at the time of offering his recantations as opposed to at the time of giving his original evidence. The difference was said to be that in March 1997 he was now a “committed Christian” ([116]). We find in this no explanation at all and nothing to make it likely that his moral outlook was more sound and dependable in March 1997 than at the appellant’s trial.

The origins of Oti’s purported willingness to recant

1. [157]

   The evidence of how Oti first communicated his willingness to recant is beset with contradictions and improbabilities. In July 1994 Mr Dursun told Mr Tunstall that Oti had written to him in prison a number of letters expressing regret that he had given false evidence (see [57](6)). In oral evidence in this appeal Mr Dursun said there was only one letter ([58], [59]). Oti said that there was only one letter in his record of interview with Mr Jameson in November 1994 ([61], [83]). The appellant’s evidence in the appeal was that there was only one letter. If there was correspondence with Oti in this vein one would expect the recipient, Mr Dursun, to recall whether it was one letter or a series.

2. [158]

   One would also expect that a letter of this nature, or a copy of it, would have been retained – at least by Mr Dursun, who claims to have had sufficient interest in the appellant to have shown him the letter at Parklea. It would also be expected that the appellant, in the situation he claims to have been in of having been falsely convicted, would have made every endeavour to obtain and keep a copy of the letter. If he could not do this, it would be expected that the appellant would report the contents of the letter he had seen promptly to his legal representatives. However Mr Dursun asserts that the appellant did not consider he needed the letter and returned it to Mr Dursun who tore it up ([59], [67]). Mr Dursun’s evidence to the effect that this letter was shown to the appellant in the second half of 1989 ([60]) is consistent with the appellant’s claim that he saw it in “89/90” ([126]). Yet there is no evidence to suggest that the appellant reported the contents of the letter or took any action to have Oti followed up with respect to it until Mr Jameson was engaged in the first half of 1994 ([69]). The Court finds it inconceivable that if there had ever been such a letter brought to the appellant’s attention in 1989 or 1990, he and those protesting his innocence would have failed to act upon it throughout the ensuing years whilst he continued to serve out his prison term.

3. [159]

   Thus, the purported recantations include within them what we find to be an unconvincing and unacceptable narrative of how Oti’s willingness to recant was first made known. This is not a matter about which there would be any ambiguity, uncertainty or improbability in the recollections of Messrs Oti, Dursun and Chidiac if Oti had truly, at some point before November 1994, communicated his willingness to give a version of events different from that which he had sworn at the trial.

Internal inconsistencies in the recantations

1. [160]

   Internal inconsistencies in Oti’s purported recantations and contradictions of aspects of them by objectively established surrounding events are further circumstances making it unlikely that the recantations are reliable. Of great significance in this respect is Kwalu’s corroboration (see [22](1) – (3)) of Oti’s original evidence that the two of them had discussed the importation of drugs into Australia with the appellant in the early evening of 28 May 1985 at the Mendana Hotel in Honiara. Oti’s evidence is summarised at [21](7) and (8). Differences in Oti’s and Kwalu’s respective recollections of the details of what was said with respect to the business of drug importing tend against there having been collaboration regarding the conversation.

2. [161]

   The difference in recollection of the particulars of the discussion are consistent with an imperfect command of English, especially on the part of Kwalu, and the lapse of time between the single brief meeting which both witnesses attended with the appellant and the date on which they made statements and gave evidence. It was open to the jury to accept that the subject of discussion was the importation of drugs into Australia, in which all three would participate, albeit that the evidence left uncertainty as to what precisely was said on this subject. That is the view that the Court takes of this aspect of the evidence at trial.

3. [162]

   The manner in which Mr Jameson cross-examined Oti, leading to him floating the possibility that he had collaborated with Kwalu by means of a letter from prison prior to the latter’s statement being taken by police (see [77] – [81]) was calculated to encourage Oti to proffer a rationalisation which had no basis in his actual recollection. As referred to at [81] it was only after protracted and pressing questioning that Oti said, with respect to the conundrum of Kwalu being a corroborator of Oti’s purportedly false evidence, “I now see I think ...” followed by him tentatively suggesting that he could have schooled Kwalu as to what to say, either in a letter or a phone call. The Court gives this explanation no weight having regard to the manner in which it was procured and the hesitation with which it was expressed. The independent corroboration by Kwalu of evidence which Oti claims he fabricated stands as an apparently insurmountable refutation of the claim that Oti simply made up his evidence against the appellant.

4. [163]

   Kwalu’s statements to police were not tendered in the appeal. According to his evidence in cross-examination by the appellant’s counsel at the trial he made a statement on 19 March 1988 and another one on 29 June 1988. It appears from the trial transcript that in the first statement he explained the purpose of his first trip from Honiara to Sydney in late November 1984 as tourism – just as Oti had done in his statement of October 1987. Kwalu admitted at the trial that this was a piece of collaborative concealment. He had in fact carried drugs in November 1984. He said that in a phone call of about 5 or 10 minutes duration, prior to Kwalu making his first statement, Oti had said that he should “forget about the first trip and start second trip”.

5. [164]

   In cross-examination at the trial Kwalu said that he had travelled to Australia to give evidence in the committal proceedings with respect to the appellant in June 1988. He had then told the prosecutor of the real nature of his visit to Australia in November 1984. This was made the subject of a supplementary statement dated 29 June 1988. He was questioned about the additional revelation in his second statement when he was examined in the committal on 6 July 1988. It appears that after Kwalu had acknowledged to the prosecution that he had imported drugs into Australia in November 1984, Oti was further questioned and he also admitted this.

6. [165]

   Kwalu did not in his first statement of 19 March 1988 refer to Oti’s successful drug importation from Honiara to Australia in February 1985. In cross-examination at the trial he said he had been aware of Oti travelling to Australia at that time but he was told by Oti it was a visit in connection with his work as a customs officer. Kwalu said when Oti had returned from Australia he had “greetings from our friends in Australia” but he did not tell Kwalu, even up to the time of Oti giving evidence in the trial, that this had been a drug run. On the basis of that evidence it does not appear that Kwalu collaborated with Oti about concealment of Oti’s February 1985 drug importation. As has been mentioned (at [29]), Oti made no reference to this in his 17 October 1985 statement.

7. [166]

   In the television interview of March 1997, Oti positively asserted he had coached Kwalu concerning the May 1985 discussion of drug running with the appellant by means of a letter written from prison which he said had been hand delivered to Kwalu by Detective Venchiarutti ([110]). His firm assertion on this occasion is of no weight in light of the way he had tentatively proffered this possible explanation after a strongly leading interrogation, in his record of interview with Mr Jameson in November 1994 (see [72] – [81]).

8. [167]

   In the March 1997 television interview Oti gave a variety of answers to questions about the manner in which his statement was obtained from him by police, all of them conflicting with each other as to whether police had suggested to him what story he should tell (see [102] – [106]). In his record of interview with Mr Jameson at pp 12 – 15 Oti said police told him they believed the appellant was involved in drug importations and that he, Oti, “came up with the assumption that the appellant was involved” because Sam Helais and George had told him the appellant was coming to Honiara for a holiday. Oti said that he had then “assumed that he was involved with them with drugs importation” and took the “opportunity of the fact that [the appellant] had come [to Honiara] for a holiday visit to tell the police that he was involved” through conversations on that occasion (see [72], referring to pp 12 – 15).

9. [168]

   In these answers Oti made no suggestion that police already knew, when they interviewed him, of the appellant’s visit to Honiara. He made no suggestion that police had given him any hint of the particulars of the evidence he might give. Similarly in the March 1997 television interview in answer to Q 29 Oti said because the appellant’s name had been mentioned by George he thought, when police informed him that they suspected the appellant’s involvement in the importation, that their suspicions were correct (see [100]). The answer to Q 41 was to the same effect.

10. [169]

    In answer to Q 37 and Q 38 on 25 March 1997 Oti for the first time asserted that the police had asked him leading questions, hinting what to say to implicate the appellant: see [102]. No such suggestion had been made by Oti in the interview with Mr Jameson in November 1994. This theme of having been led by police as to the content of false allegations which he should make was reiterated in the answers to the other questions quoted and referred to at [102] – [103]. These answers are interspersed with others in which Oti said that police “did not mention what to say”. For example, the passage quoted at [104] – [105], especially the answers to Q 264 and Q 265, where Oti said “I just made it up… on my own”.

11. [170]

    Yet another variant was Oti’s assertion, in answers to Q 273 – 292 (see [106]), that police had already known that the appellant met with Oti in Honiara and that he had commenced by telling them (truthfully, as he asserted in the March 1997 interview) that the appellant was there for a holiday. In this description of the way police obtained information from him he said that “as we went on, then I started switching over” to an assertion that the meeting had concerned drugs. In answer to Q 296, again, he said “they seemed not to believe what I said first so they kept pressurising me to tell lies as the truth… so I told lies”. This was two-thirds of the way through the interview. Until that point Oti had never suggested that he started out giving police an innocent explanation of the appellant’s visit to Honiara in May 1985 and had only changed to an incriminating account under pressure.

12. [171]

    Oti’s answers throughout the two interviews concerning the provision to him of the number of the Voice Call paging service exhibit both internal contradictions and a high degree of suggestibility on his behalf. The course of questioning by Mr Jameson is summarised at [87] – [91]. In the television interview two and a half years later, in answer to Q 306 – 320 (see [109]) Oti said George gave him the number of the appellant’s pager at the time of advising him that the appellant would travel to Honiara in place of Sam. Oti said he was at this time told “when Neil returned (scil, returns), this is the number you can contact”. In answer to Q 316 he said it was George rather than the appellant who advised him when ringing the pager service to “ask for Neil and say, ‘this is Alf’”. If, as Oti was asserting in this interview, the appellant did not involve himself in the drug importation conspiracy by the terms of his conversations with Oti in Honiara or otherwise, it would be expected that Oti would have reacted to George giving him the appellant’s pager number and telling him how to make contact by means of it, by asking something to the effect “why will I be wanting to contact the appellant at any time after he has visited Honiara?”

13. [172]

    Neither in the context of this series of answers nor elsewhere in the interview did Oti state that he had reacted to George’s communication on this subject along those lines. This tends against the credibility of Oti’s assertion that he did not have conversations with the appellant touching the subject of drug importations. His acceptance of the pager number and of instructions how to use it to contact the appellant on an ongoing basis suggests that the appellant did reveal himself to Oti as involved in the importation conspiracy. This is so whether the pager number was provided to Oti by the appellant in Honiara (as he said at the trial) or by George over the telephone (as asserted in this part of the March 1997 television interview).

14. [173]

    Oti’s suggestibility under leading questions was again illustrated – and exploited by the interviewer – at Q 197 of the television interview. He was asked “Why did you write the letter to Wilson Kwalu?”. The video recording of the interview shows a long pause during which Oti hesitated without answering. Before he could proffer an answer he was prompted with the suggestion that he had been invited to write to Kwalu: “Who asked you to write the letter to Wilson Kwalu?” With the question in this leading form Oti answered promptly “Terry Venturutti (sic)”. Oti went on to say that he “suspected he wanted me to write to tell Wilson what to say, what to tell Terry” and that he did tell Kwalu what to say in the letter which he then prepared.

15. [174]

    We accept Detective Venchiarutti’s evidence that he did not ask Oti to write to Kwalu with an express or implicit instruction that Oti should in such a letter tell Kwalu what evidence to give. There is nothing in the evidence before us to support an inference or even a suspicion that Detective Venchiarutti acted in such a corrupt manner. He knew that he would not be taking a statement from Kwalu until he had Oti’s statement. This was in fact the order in which things were done. If he had had the intention of causing the two witnesses to collaborate he could readily have achieved this when face to face with Kwalu by leading him in the preparation of Kwalu’s statement, using Oti’s statement of 17 October 1987 as a script. There is no reason to think that a police officer wishing to corrupt the course of justice in the manner asserted by Oti would do so by involving Oti in the process, causing him to bring into existence a written record of the collaboration and entrusting Oti and Kwalu to achieve a collaborative outcome through their own machinations. Oti’s suggestions of dishonest and improper conduct by Detective Venchiarutti in connection with his letter to Kwalu is from every point of view highly improbable.

16. [175]

    In one part of the March 1997 television interview an attempt was made to lead from Oti evidence which would accord with one of the appellant’s contentions, about which the interviewer and his assistants were evidently briefed. The appellant had said in his dock statement that he had never seen or heard of Kwalu until the committal proceedings ([44](3)). He reiterated this when interviewed by the television presenter for the program (AB 2/251.38). The presenter attempted to obtain Oti’s confirmation of this as follows:

17. [176]

    Oti’s acquiescence in the proposition put to him in Q 74 – 76 is of no weight. What remains is Oti’s adherence to his recollection that Kwalu did meet the appellant and that a conversation took place between Oti and the appellant in Kwalu’s presence. This is contrary to the appellant’s assertion in his dock statement and his evidence in this appeal.

The evidence purportedly retracted was not inherently unbelievable

1. [177]

   Oti’s recantations might be more “likely” to be “reliable” if his evidence given at the appellant’s trial, which Oti was purporting to retract, appeared unbelievable, for example by reason of inherent improbability of its substance or by reason of the manner in which it was given. In this respect the appellant relied heavily upon admissions by Oti in the course of his cross-examination that he had lied extensively, including to police officers and on oath (particularly in the Magistrate’s Court). The appellant in particular relied upon this passage of the trial judge’s summing-up:

2. [178]

   The credibility of Oti’s evidence at trial is a subject which will be returned to later in these reasons when evaluating the totality of the case against the appellant, as presented at trial and when coupled with such additional evidence as may be received in this appeal. It is sufficient for present purposes to say that we have reviewed carefully the protracted cross-examination of Oti. On our analysis the lies to which he admitted were not concerned with the subject matter of his communications with the appellant, which constituted the core of the Crown’s case. He admitted to having lied about collateral matters, such as his “suppression” from his 17 October 1987 statement of the fact that Kwalu’s November 1984 visit to Australia had been to carry drugs. He admitted to having lied by concealing his own first importation from Honiara into Australia in February 1985. These and other matters about which he admitted to having had lied about were collateral to his evidence of the appellant’s adherence to the conspiracy.

3. [179]

   In cases where it would be open to a jury to find that the accused had told lies it is common for a direction to be given that there may be any of a number of reasons for a person to have told a deliberate untruth and that jurors should not reason that the accused having done so is evidence of guilt of the offence charged: Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 at [24]. Just as this is regarded in law as a sound direction with respect to lies of the accused, it is sound also to consider whether lies on collateral matters told by an accomplice or co-conspirator may be explicable on some basis other than that the witness lacking credibility on all subjects and that he must have fabricated his account of the central matter upon which he was called by the Crown to testify.

4. [180]

   Here, it must have been apparent to the jury that Oti had a very obvious reason for telling lies on collateral matters which was nevertheless consistent with him having told the truth regarding the involvement of the appellant. His lies concerned criminal conduct of his relative in-law, Kwalu, in November 1984 and of himself in February 1985. These were matters of which the police otherwise had no knowledge and with which neither Kwalu nor himself had been charged. It would have been open to the jury to conclude that Oti had lied about these matters out of more abundant caution, to save himself from the risk of any further prosecution and perhaps also to avoid any further disgrace to himself for breach of his position of trust as a customs officer. The jury could reasonably have inferred that whilst Oti had such reasons for lying on these matters they were not reasons which would have infected the truthfulness of his assertions about the appellant’s activities in late May 1985.

Ground 1 – recantations by Oti and exculpation of the appellant

1. [181]

   The Court rejects the tender of Oti’s handwritten recantation dated 23 November 1994, the record of interview of the same date and the television interview of 25 March 1997. For the reasons given at [150] – [180], these previous representations are not “likely” to be “reliable” and do not qualify for reception under s 65. Consequently there is before the Court no evidence of a recantation by Oti with respect to the evidence that he gave at the appellant’s trial and no evidence from him purporting to exculpate the appellant. Ground 1 must therefore be dismissed.

2. [182]

   The appellant submitted in the alternative that Oti’s recantations should be received in the appeal not under s 65(2) or any other exception to the hearsay rule and not as evidence of their truth but as evidence only of the fact that he made the representations. The Court does not consider that the mere fact of these representations having been made is relevant to whether “on the whole case” it appears that the verdict is “unreasonable or cannot be supported”. It cannot be said that the making of these recantations is consistent only with their having been true and with the evidence of trial having been false. There are other possible explanations, as considered at [179] – [180]. Proof of no more than the mere making of these representations, if they are untrue, would prove nothing more than that Oti is erratic and capable of odd behaviour. It would not support or undermine his credibility with respect to the substance of any particular utterance by him, including his evidence at trial.

Evidence in the appeal from George

1. [183]

   An unsigned statement of George dated 12 November 2003 was tendered when the appeal was first before the Court for hearing on 28 October 2015. It was marked as an exhibit, subject to objection. George was called on 7 March 2016 and did not adopt this statement. The tender is therefore rejected.

2. [184]

   The subject matter of the unsigned statement was an approach to George by the AFP at some unspecified time, in which George was requested to make a statement to the effect that the appellant was a drug dealer. George’s evidence-in-chief was:

3. [185]

   In cross-examination George said that he had known the appellant in the 1980s, possibly from before 1984, as a bookmaker. He had never spoken to the appellant. He had been “asked a few time (sic) to make a statement about Chidiac but I didn’t. …I have no knowledge of Chidiac, why should I make any statement”.

4. [186]

   George said that he had met Oti “in 1980 or 81, I’m not sure”. He gave this evidence about the circumstances of the meeting:

5. [187]

   George’s evasions and refusals to answer were at this point overcome by direction of the Court to answer, on the basis that a certificate would be issued under s 128 of the Evidence Act so that any answer he might give could not be used against him in subsequent proceedings. This resulted in him giving the following answer

6. [188]

   When asked if Kwalu had been involved in trying to locate the two suitcases in Honiara in about 1980, George initially said no but then said he could not remember. He said that he believed the suitcases had contained hashish and had come from Lebanon. After serving the term of imprisonment referred to in his answer quoted in the preceding paragraph, George had returned to Australia where he was imprisoned for an offence committed prior to his travels in the Pacific region.

7. [189]

   George claimed that from Long Bay prison he telephoned Oti on an occasion which, from his own chronology, must have been before 1984. He said that he told Oti he was in jail and consequently

8. [190]

   Later George said the person to whom he gave Oti’s phone number, due to his own incapacity to continue dealings, was “a person named Sam” whose surname he did not know but who did “the bookwork for Mr Chidiac” (T 23). Sam was at this time in Long Bay prison together with George. George said the only reason he gave Oti’s number to Sam was because Sam asked for it. He denied that this was for the purpose of Sam contacting Oti to effect drug importations. George said:

9. [191]

   The Court finds George not a credible witness and his evidence wholly unsatisfactory and unreliable for reasons which are illustrated by the passages quoted and summarised thus far. George evaded questions which he did not wish to answer, at times by purporting not to remember. Implausibly he asserted that, at a date before 1984, he had declined any further involvement in activities with Oti because of his own incarceration and criminal record but then denied any knowledge of the nature of the activities from which he was withdrawing. His claim to have handed over to Sam the phone number on which Oti could be contacted only because Sam asked for it and without knowing Sam’s purpose beyond that he might wish to befriend a customs officer in Honiara, is absurd. We reject George’s evidence of his phone conversation with Oti from Long Bay prison and his evidence of having handed over contact with Oti to Sam. The Court considers that the improbability of these answers reflects adversely upon the credibility of everything else that George said on oath in the appeal.

10. [192]

    George denied that he had asked Oti in 1984 to assist with the importation of drugs into Australia from Malaysia via the Solomon Islands. In support of this denial he claimed to have been present with police when they intercepted a telephone call to Oti concerning the appellant’s visit to Honiara in May 1985. George said he heard the caller falsely identifying himself as “George”, in a voice which was not his own and which plainly was not spoken by him as he was sitting with police listening to the call as it took place.

11. [193]

    The Court is satisfied that there was no such event. There was no evidence that police were intercepting telephone calls from George or calls to Oti at the time when the appellant’s May 1985 visit to Honiara was being arranged. There is a strong positive inference that police were not intercepting such telephone calls at that time. Evidence of intercepts would have been adduced in the trial of the appellant if they had taken place. It is apparent on all of the evidence before us that police were not even investigating the activities of Oti in May 1985. They did not arrest him until 23 December 1985. In conflict with George’s evidence about his declarations to police of innocence and non-involvement in 1985 there stands the evidence of Durak Dursun that George was, in 1985, actively engaged in drug importing whilst being a police informant (see [57](1)).

12. [194]

    Even if police were in May 1985 intercepting a telephone service upon which a call might have been made to Oti, it is improbable in the extreme that George would have happened to be present with police when an incriminating conspiratorial call was intercepted and could have been listened to, live. Later in his evidence George contradicted this account by saying that he listened to recorded telephone calls played back to him and that he did not know what the calls were about (T 21 – 22).

13. [195]

    George further claimed that in about 1984 police had questioned him as to whether he was involved with the appellant in drug importation. He said that at the invitation of police he made a call from their office, in their presence, to Oti “and tell him that you are not dealing with George. I am George but you are dealing not with George. You are dealing with Sam…”. George claimed that he “did tell the Federal Police about Oti that, yeah, he’s a Custom, and he might be involved in a drug smuggling operation, yeah”. He said that he passed this information on at about the time when he had given Oti’s number to Sam and when his name had been used, without his knowledge, in a telephone call to Oti. That is, he was asserting that this occurred in about 1984.

14. [196]

    If such information had been provided to Australian Federal Police it is inconceivable that they would have acquiesced in George telephoning Oti, in their presence, to assert that his name was being misused by some other person who was in communication with Oti making arrangements for the appellant to travel to Honiara. Possessed of such information about Oti it would be expected that the AFP would make all reasonable endeavours to prevent such a communication by George to Oti, whilst they investigated his assertions. A phone call to Oti such as George asserts would have compromised an investigation fatally. This aspect of George’s evidence is adversely affected both by its inherent improbability and by George’s general lack of credibility.

15. [197]

    The appellant sought to rely upon George’s evidence before us for his statements, quoted at [184] – [185], that he had no knowledge of the appellant and for his further answers in cross-examination (at T 25 – 28) that he knew nothing of any involvement of the appellant in drug importation, that he had not telephoned Oti in about May 1985 to arrange for the appellant to meet Oti in Honiara and that he was not himself involved in organising two drug importations, with Oti, prior to May 1985. The Court is unable to place any weight upon George’s denials in these respects.

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

1. [198]

   George’s testimony in this Court has been received and is to be taken together with all of the evidence given at the trial and any other new or fresh evidence received on the appeal for the purpose of determining whether a verdict of guilty on the basis of “the whole case” would be unreasonable or could not be supported. It is the Court’s view that George’s evidence in the appeal is so lacking in credibility and reliability that it may be discounted entirely in this assessment.

2. [199]

   Ground 2 asserts that George’s purported exculpatory evidence is “corroborated by a former officer of the Australian Federal Police”. This is a reference to Alan Taciak from whom an affidavit was read in the appeal and who gave oral evidence. From 1982 to 1986 he was a member of the AFP seconded to the Commonwealth State Joint Task Force on Drug Trafficking. In 1986 he returned to the AFP and from late in that year until some date beyond May 1988 he acted as the controller or handler of George. George was, by late 1986, already a registered informant and had been under the control of other AFP officers prior to Mr Taciak assuming the role.

3. [200]

   Mr Taciak’s contract with the AFP was not renewed from 1995 after a Commission of Inquiry found that he had been guilty of corrupt conduct.

4. [201]

   The appellant submitted that the following paragraphs of Mr Taciak’s affidavit corroborate what ground 1 refers to as George’s “evidence [in the appeal] exculpating the appellant”:

5. [202]

   The affidavit does not specify what information George “supplied” to the AFP in relation to Neil Chidiac. George’s evidence in this Court is that he had no such information and supplied none. Although the Court is unable to rely upon George’s evidence in any respect, that general rejection of him does not enable us to find, affirmatively, the contrary of his assertions. Of itself it does not enable the Court to find that George supplied information to the AFP or, if so, what information.

6. [203]

   [SUPPRESSED]

7. [204]

   At T 105 Mr Taciak’s evidence was that George did “obtain further information against Neil Chidiac”. He could not recall “exactly what the specifics of it were, but it was fairly vague from recollection”. At T 112 Mr Taciak said “I can’t recall him [George] actually ever telling me anything of any significance about Chidiac at all”. Mr Taciak could not recall George ever having provided to himself any specific information about hotels or dates of travel which might have had a bearing upon the case which the Crown ultimately presented against the appellant.

8. [205]

   [SUPPRESSED]

9. [206]

   [SUPPRESSED] … the Court is left with no affirmative evidence of what George did in relation to building the police case against the appellant, other than Mr Taciak’s general statement that George obtained “further information against Neil Chidiac” which was “fairly vague” and of which Mr Taciak could not recall “the specifics”. For the appellant the highest that this evidence goes is to support an inference that George provided some intelligence to police which enabled them to obtain evidence admissible against the appellant from other sources. As has already been considered at length (see [39] – [43]), George did not himself give admissible evidence against the appellant at his trial.

10. [207]

    There is no relevant sense in which information provided by George to police regarding sources other than himself of admissible evidence against the appellant could have been false. This appeal is concerned with the veracity of the evidence which the AFP unearthed and which the Crown presented to the jury. It is concerned with the capacity of that evidence to prove beyond reasonable doubt the charge which was laid against the appellant. Those questions could not be affected by whether the person who led police to that evidence (if that is what George did) was in any sense untruthful about the intelligence he provided. The appeal turns upon the evidence, not upon the intelligence which led police to it.

11. [208]

    The appellant was convicted on the evidence of Oti and Kwalu concerning conversations they had with the appellant to which George was not a party. George was never in a position to implicate the appellant regarding those conversations. He is not and never has been in a position to exculpate the appellant with respect to those conversations.

12. [209]

    Oti gave evidence of phone conversations between himself and George in furtherance of the conspiracy. Kwalu gave evidence of meetings with George in Australia. If such evidence had been contradicted by George or if it were now contradicted that might have a bearing upon Oti’s credibility with respect to the principal face to face conversations he claimed to have had with the appellant in Honiara. However the fresh evidence of George is not in the least credible so far as he denies conspiratorial phone conversations with Oti (see [191] – [196]).

Ground 3A – failure of the Crown to call George

1. [210]

   Ground 3A is a composite of two propositions. First, that the failure of the Crown to call George deprived the accused of a fair chance of acquittal. Secondly, that the failure to call him “warranted of itself a finding that the appellant’s guilt was not established beyond reasonable doubt”. The second proposition is apparently intended to mean that the absence of this witness from the trial had the consequence that the jury’s verdict of guilty was “unreasonable, or cannot be supported” within the meaning of s 6(1) Criminal Appeal Act and should therefore be set aside.

2. [211]

   The appellant has attempted to support both propositions by a contention framed in the wording of ground 3A itself that the AFP “at all material times after the arrest of the appellant and until the trial of the appellant” believed George “to be a reliable witness”. That contention is not established as a matter of fact. It does not specify what evidence the AFP thought George could reliably give. The Court infers from the circumstances referred to at [39] – [42] … [SUPPRESSED] … that the AFP never considered what evidence George himself could give and never entertained the notion of him being called as a witness. There is no evidence that the AFP ever formed a view that he could reliably give evidence to any particular effect, relevant to the charge upon which the appellant was tried. Rather, the AFP believed George to be a reliable informant in the sense of a source of intelligence. They considered him so because, in relation to the appellant, he had provided information that had led police to witnesses other than George himself whom police believed were sufficiently credible and could give sufficiently reliable evidence to warrant laying the charge.

3. [212]

   As to the first proposition under ground 3A that George was clearly a material witness. It was open to the appellant’s counsel to require the Crown to call him at the trial. The discretion and responsibility for deciding whether to call George, including whether to do so in response to a defence request, rested with counsel for the Crown, to be exercised with due regard for fairness toward the accused. As was said in R v Apostolides [1984] HCA 38; (1984) 154 CLR 563 at 575:

4. [213]

   There would be grounds for the Court to set aside the conviction on appeal if the Crown’s decision not to call George, when viewed against the conduct of the trial as a whole, gave rise to a miscarriage of justice: R v Apostolides at 575. In an appeal arising from a reference under s 79 Crimes (Appeal and Review) Act the Court could have regard to the additional evidence in deciding this question although it is difficult to envisage how the additional evidence could bear upon the fairness of the trial in this respect.

5. [214]

   In the circumstances of this case, the matters to be considered in determining whether a miscarriage of justice occurred are:

   1. (1)

      what reasons the Crown may have had for deciding not to call George, given that on the face of Oti’s account of events George should have been able to give material evidence;

   2. (2)

      whether it appears to this court that George’s evidence may have assisted the defence and

   3. (3)

      the significance of the appellant’s counsel not having requested the Crown to call George.

6. [215]

   Regarding (1), commonly a decision not to call such a material witness would be made by the Crown upon an assessment that he would not be a witness of truth. Here the failure to call George could not have been justified upon that basis. It was apparent the Crown had not interviewed him let alone formed an adverse view. The case officer, Detective Sergeant Venchiarutti, also had not spoken to George (AB 2/598). Compare Regina v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450.

7. [216]

   Nor could the failure to call George have been justified upon the ground that he was a co-conspirator. It was clear that he had not been charged and that he would not be. As he was co-operating with police he was not in any sense aligned in loyalty to the accused in circumstances which might incline him to give false evidence biased against the Crown.

8. [217]

   It is a clear inference that the reason for the Crown not calling George was to protect information which was the subject of public interest immunity as claimed by the AFP; that is, information as to George’s full identity and status as an informant. The learned trial judge told the jury that the Crown had given no explanation for not calling George (see the passage extracted from the summing up at [230]). That appears to be correct in so far as it refers to evidence and submissions in the trial and the lack of any attempt to articulate to the jury why George was absent. It was material for his Honour to point out the lack of explicit explanation for George not having been called as part of the direction in accordance with Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. However on appeal this Court may infer an explanation by reference to both the trial transcript and the entire circumstances of the case, for the purpose (different from that of the jury) of discerning whether a miscarriage of justice arose from the Crown’s omission of this witness. The reason for George’s absence, which was not in terms explained to the jury, seems readily apparent to this Court.

9. [218]

   If the Crown on appeal had invoked the AFP’s immunity claim as a basis for not having called George, that would not, without more, answer the complaint of unfairness through absence of a material witness. The immunity could be insisted upon by the AFP in respect of a material witness only at the expense to the Crown of not being able to prosecute in a fair trial – and therefore at the risk of not being able to hold on to the verdict – if other relevant considerations should lead to a conclusion that the trial was unfair in the absence of George.

10. [219]

    Regarding matter (2) in [214], we are not satisfied that evidence from George would have assisted the defence either by contradicting the accounts given by Oti and Kwalu or by raising in any other manner a reasonable doubt as to the appellant’s guilt. The evidence which George has given on the appeal is entirely lacking in credit, for reasons stated at [186] – [197]. The appellant’s written submissions implicitly acknowledge this, yet assert that his absence from the witness box has resulted in wrongful conviction:

11. [220]

    The Court accepts the first sentence of this submission but the second sentence does not follow. Uncertainty about what George might have said does not support a finding that any miscarriage of justice occurred by him not being called. Still less does it lead the Court to a conclusion that the verdict is “unreasonable, or cannot be supported” so as to warrant setting aside the verdict outright.

12. [221]

    As for matter (3) in [214], the Court finds that a deliberate choice was made by the appellant’s counsel not to require that George be called by the Crown. It is an inescapable inference that counsel clearly appreciated George was a police informant (see [39] – [42]).

13. [222]

    At trial it must have appeared highly unlikely that George would give evidence tending to exculpate the appellant. If, as appeared to be the case, he was co-operating with police then it could be inferred that they knew what he would be able to say about the events giving rise to the charge. If that amounted to exculpation then it would have been a serious abuse of process and breach of the duty of disclosure for the AFP to have held back such material from the Crown and the defence. That such misconduct might have occurred may well have appeared to defence counsel most improbable in the circumstances of this case. If it had occurred it would likely have been discovered by the trial judge on the application for the suppression order.

14. [223]

    It would have appeared much more probable to defence counsel that if the Crown should be forced to call George he would give evidence supportive of Oti’s account of conspiratorial dealings between those two and would also give evidence of dealings between George, Sam, the appellant and Asfour, who was co-accused with the appellant. Requiring the Crown to call George would therefore have appeared likely to produce the disastrous result of having a third witness, in addition to Oti and Kwalu, give direct evidence of the conspiracy and of the appellant’s adherence to it.

15. [224]

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

16. [225]

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

17. [226]

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

18. [227]

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

19. [228]

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

20. [229]

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

21. [230]

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

22. [231]

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

23. [232]

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

24. [233]

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

25. [234]

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

26. [235]

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

27. [236]

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

28. [237]

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

29. [238]

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

30. [239]

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

31. [240]

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

32. [241]

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

33. [242]

    We reject ground 3A.

Ground 3(a) – fresh evidence from Durak Dursun

1. [243]

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

2. [244]

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

3. [245]

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

4. [246]

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

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

1. [247]

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

2. [248]

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

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

1. [249]

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

2. [250]

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

3. [251]

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

4. [252]

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

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

1. [253]

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

2. [254]

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

3. [255]

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

4. [256]

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

5. [257]

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

6. [258]

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

7. [259]

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

8. [260]

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

9. [261]

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

10. [262]

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

Ground 3 – conclusion

1. [263]

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

2. [264]

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

   1. (1)

      The evidence at trial.

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

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

   6. (6)

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

   7. (7)

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

   8. (8)

      Evidence of the appellant in the appeal.

3. [265]

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

4. [266]

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

5. [267]

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

Determination of the appeal

1. [268]

   For these reasons the order of the Court is:

   1. (1)

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

   2. (2)

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

   3. (3)

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