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Court of Criminal Appeal 24 February 2016

Chidiac v R

[2016] NSWCCA 23

Drugs
CRIMINAL LAW PART HEARD APPEAL AGAINST CONVICTION

Citation: Chidiac v R [2016] NSWCCA 23
Court: NSW Court of Criminal Appeal
Date: 24 February 2016
Judge(s): Hoeben CJ at CL, Adamson J, Button J

Background

The applicant was convicted in 1989 of conspiring to import a traffickable quantity of heroin under the Customs Act 1901 (Cth) and served a lengthy prison sentence, now fully expired. Previous appeals to the Court of Criminal Appeal in 1989 and to the High Court in 1991 were both unsuccessful.

In 2015, Beech-Jones J referred the matter to the Court of Criminal Appeal as a fresh conviction appeal under the Crimes (Appeal and Review) Act 2001 (NSW). A significant factor in that referral was material suggesting that Alfred Oti, a key Crown witness at the original trial, had recanted his trial evidence in a signed document in 1994 and in a televised video interview in 1997.

When the conviction appeal came on for hearing in October 2015, the court granted an adjournment to allow fresh evidence to be put into admissible form. That included pursuing whether Mr Oti, last known to reside in the Solomon Islands, could give oral evidence, give evidence on commission, or appear by audio-visual link. Extensive inquiries by both parties had not located Mr Oti, and the court could not be satisfied he was still alive or still in the Solomon Islands.

  • Whether the Court of Criminal Appeal was the correct court to receive an application under s 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth) in the context of a part-heard conviction appeal.
  • Whether each of the mandatory considerations under s 39A(3) of that Act was satisfied so as to justify issuing a certificate that it would be in the interests of justice for the Commonwealth Attorney-General to request evidence from the Solomon Islands.

Decision

Button J (with whom Hoeben CJ at CL and Adamson J agreed) held that the Court of Criminal Appeal was the correct forum for the application. Under s 39A(1A)(b) of the Act, where proceedings are not in the Federal Court, the relevant court is the Supreme Court of the relevant State or Territory. A part-heard conviction appeal before the Court of Criminal Appeal falls within "a proceeding relating to a criminal matter" under the Act, and no party disputed this.

Turning to the mandatory considerations in s 39A(3), Button J assessed each in turn. On the likelihood of the Solomon Islands granting the request, the court acknowledged genuine uncertainty but noted no positive reason to think the request would be refused. On availability elsewhere, the court observed that all reasonable attempts to secure Mr Oti's evidence by other means had failed, making the mutual assistance pathway the only remaining avenue.

On admissibility and probative value, Button J considered that fresh sworn evidence from Mr Oti would likely be admissible in the appeal, and would be of very high probative value given that his credibility was central to the conviction case. On the question of unfair prejudice, the court found that the applicant would not suffer unfair prejudice in a strict sense if the evidence were unavailable, but that obtaining such evidence would be highly advantageous to both parties.

The court recognised that the certificate would very likely prove fruitless in practical terms given the two-week window before the hearing and the difficulty of locating Mr Oti. Nonetheless, Button J concluded that every mandatory consideration, combined with the central importance of Mr Oti's credibility in an appeal concerning a serious offence where a judge had experienced doubt, argued in favour of granting the certificate.

Orders Made

  • A certificate issued by the Registry of the NSW Criminal Court of Appeal under s 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth) that it would be in the interests of justice for the Commonwealth Attorney-General to request the Solomon Islands to:
  • Take evidence from Alfred Oti (address and occupation unknown)
  • Video-record that evidence
  • Provide an opportunity for legal representatives of both the applicant and the Commonwealth Director of Public Prosecutions to examine and cross-examine Mr Oti, either in person or by video-link from Australia

Key Takeaways

  • The Court of Criminal Appeal confirmed it is the "relevant court" under s 39A(1A)(b) of the Mutual Assistance in Criminal Matters Act 1987 (Cth) for applications relating to proceedings before it, including part-heard conviction appeals.
  • A certificate under s 39A may be appropriate even where the practical likelihood of a successful outcome is low, provided the mandatory considerations in s 39A(3) are satisfied and the interests of justice support it.
  • Where a key Crown witness has apparently recanted trial evidence, and all other avenues to secure that witness's evidence have been exhausted, a mutual assistance certificate directed at obtaining fresh sworn evidence may be warranted.
  • Under s 39A(3)(e), absence of "unfair prejudice" in the strict sense does not preclude a certificate; the court may still grant one where obtaining the evidence would be significantly advantageous to the proceedings.
  • The Commonwealth Attorney-General and Minister for Justice, having been given the opportunity to be heard under s 39A(2), indicated they did not wish to appear, and the Crown opposed the application without success.

Legislation and Cases Referenced

Legislation:
- Mutual Assistance in Criminal Matters Act 1987 (Cth), ss 12, 39A, 39A(1A)(b), 39A(2), 39A(3)(a)-(e)
- Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)(b)
- Customs Act 1901 (Cth), s 233B
- Evidence Act 1995 (NSW), s 65

Cases:
- Chidiac v R [1991] HCA 4; (1991) 171 CLR 432
- R v Chidiac; R v Asfour (Court of Criminal Appeal (NSW), 15 December 1989, unreported)
- Re Chidiac [2015] NSWSC 157