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Court of Criminal Appeal 4 July 2016

Chidiac v R (No 2)

[2016] NSWCCA 120

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION REFERRAL OF THE WHOLE CASE WITNESS RECANTED EVIDENCE HEARSAY RECANTED EVIDENCE

Citation: Chidiac v R (No 2) [2016] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 4 July 2016
Judges: Bathurst CJ, Button and Fagan JJ

Background

The appellant was convicted by a jury in February 1989 of conspiring to import a traffickable quantity of heroin into Australia between 1984 and 1985. He was sentenced to 20 years imprisonment, released on parole in 1997, and had exhausted his conventional appeal rights by 1991. In 2012, he applied to the Supreme Court for a review of his conviction under the Crimes (Appeal and Review) Act 2001 (NSW).

A Supreme Court judge referred the whole case to the Court of Criminal Appeal in March 2015 under s 79(1)(b) of that Act, on the basis that a doubt or question existed as to the appellant's guilt. The appeal was therefore treated as if it were a fresh appeal under the Criminal Appeal Act 1912 (NSW). The appellant's motivation for seeking review included the fact that property had been forfeited on the basis of the conviction, and he stood to recover compensation if the conviction were quashed.

The Crown case at the 1989 trial rested significantly on the evidence of two co-conspirators, Alfred Oti and Wilson Kwalu, both of whom had agreed to cooperate with authorities. Since the trial, Oti had made several statements and given a televised interview purporting to recant his trial evidence and exculpate the appellant. A separate figure, referred to only as "George," had also come forward with evidence said to exculpate the appellant, and the appellant argued the Crown had been obliged to call George as a witness at the original trial.

  • Whether Oti's post-trial recantations were admissible in the appeal proceedings under s 65 of the Evidence Act 1995 (NSW), given that Oti was not available to give evidence
  • Whether the recantations, if admitted, were sufficiently credible to establish a reasonable doubt about the appellant's guilt
  • Whether post-trial evidence from "George" exculpating the appellant was credible and sufficient to undermine the conviction
  • Whether the Crown's failure to call George at the original trial constituted a miscarriage of justice, either of itself or in combination with other matters
  • Whether additional fresh or new evidence (regarding a pager, a visit to the Solomon Islands, and corroborating witnesses) collectively rendered the verdict unreasonable or unsupported

Decision

Admissibility and weight of Oti's recantations. The Court found that Oti was not "available" as a witness for the purposes of s 65 of the Evidence Act, as he was located overseas and there was no realistic prospect of securing his attendance. That satisfied the precondition for admitting his prior representations as hearsay. However, the Court conducted a detailed analysis of the circumstances surrounding the recantations and concluded they were not sufficiently reliable to be admitted. The recantations contained significant internal inconsistencies, the circumstances in which they were obtained raised serious concerns, and Oti had clear potential motives to recant falsely. The Court also found that the original trial evidence was not inherently unbelievable. Accordingly, the recantations were not admitted into evidence.

Evidence from "George". George gave evidence in the appeal purporting to exculpate the appellant. The Court examined that evidence carefully but found it was not credible. The additional evidence of a former AFP officer (Alan Taciak) regarding George was also considered but did not alter that conclusion.

Crown's failure to call George at trial. The Court addressed the separate argument that the Crown's failure to call George at the original trial was itself a miscarriage of justice. The AFP had apparently considered George a reliable witness prior to trial. The Court analysed the principles governing a prosecutor's duty to call material witnesses, including where public interest immunity considerations are involved, but ultimately found that the failure to call George did not deprive the appellant of a fair chance of acquittal. This was particularly so given the Court's findings about the lack of credibility of George's exculpatory account.

Remaining fresh evidence. The additional evidence concerning the appellant's pager and his reasons for visiting the Solomon Islands was considered but found to carry minimal weight. Taken individually or collectively, none of the fresh or new evidence raised a reasonable doubt about the conviction. Applying the approach mandated by Mallard v The Queen and M v The Queen, the Court gave appropriate weight to the jury's acceptance of the core evidence of Oti and Kwalu, who had been extensively cross-examined and were the subject of strong judicial warnings. The appeal was dismissed.

Orders Made

  • Appeal dismissed
  • A non-publication order was initially made in respect of the judgment until 18 July 2016
  • A further suppression order was made on 18 July 2016 in respect of specified passages of the judgment (paragraphs [203], [205], part of [206], and part of [211]), subject to any High Court special leave application

Key Takeaways

  • Under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), when the Supreme Court refers a whole case to the Court of Criminal Appeal, the Court considers all evidence properly admissible in the case, whether new, fresh, or previously adduced, following the approach established in Mallard v The Queen.
  • A prior representation by an unavailable witness may satisfy the "not available" precondition in s 65 of the Evidence Act 1995 (NSW) where the witness is overseas and attendance cannot realistically be secured; however, admissibility also requires the representation to have been made in circumstances likely to render it reliable, and that further requirement can defeat admission.
  • Recantations of trial evidence will be scrutinised closely for internal consistency, the circumstances in which they were made, and any potential motive to recant falsely; the Court found Oti's recantations failed on all of these considerations.
  • In dismissing the appeal, the Court reaffirmed that appropriate weight must be given to a jury's verdict, particularly where the jury heard key witnesses extensively cross-examined and received strong cautionary directions from the trial judge.
  • A prosecutor's failure to call a witness who may have been regarded as reliable by investigators does not automatically constitute a miscarriage of justice; the appellant must establish that the failure deprived him of a fair chance of acquittal, assessed in light of the actual content and credibility of what that witness would have said.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), s 65
- Crimes Act 1900 (NSW)
- Mutual Assistance in Criminal Matters Act 1987 (Cth)
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

Cases
- Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432
- Chidiac, Neil – Application pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2015] NSWSC 157
- Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
- R v Apostolides [1984] HCA 38; (1984) 154 CLR 536
- Alister v The Queen [1985] HCA 85; (1984) 154 CLR 404
- Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397
- Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
- Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
- Diehm v Director of Public Prosecutions (Nauru) [2013] HCA 42; (2013) 203 ALR 42
- Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R