EL-ZEYAT - GROUND OF APPEAL 1
1 The trial judge erred in directing the jury that the evidence of any one "indemnified witness" may be considered as providing support for the acceptance of the evidence of another of the "indemnified witnesses".
163Counsel for Aouad informed the Court that ground 1(b) did not raise any ground independent of ground 1. Ground 1(b) had been added to the grounds of appeal, merely for the purpose of basing the first ground of appeal on the precise words the trial judge had used in her summing-up.
164Ground 1 in Aouad's appeal refers both to witnesses who might reasonably be regarding as criminally concerned in the crime alleged against the appellant and to indemnified witnesses. Ground 1 in El-Zeyat's appeal refers only to indemnified witnesses.
165The witnesses at the trial who had been indemnified were Tony Haddad, Wahib Hannouf, Haissam Hannouf and Khaled Taleb. Bassam Said was not an indemnified witness.
166Suggestions were made at the trial that the two Hannouf brothers might have been criminally concerned in the murder of Ahmed Fahda. However, there would not appear to have been any evidence (apart from evidence of possible motive), and on the appeal this Court was not directed to any actual evidence, as distinct from suggestions made in cross-examination, that the Hannouf brothers were or might have been criminally concerned in the murder. No suggestion was made at the trial that Bassam Said, Tony Haddad or Khaled Taleb might have been criminally concerned in the murder.
167The appellants' grounds of appeal were based on a passage in the trial judge's summing-up. The trial judge had been referring to the evidence of the Hannouf brothers, Khaled Taleb, Tony Haddad and Bassam Said. Her Honour noted that they were all persons of bad character with a history of serious criminality. Her Honour continued:
"Plainly members of the jury, there is a need for you to exercise great care in assessing the evidence of each of these witnesses. You look at whether the evidence impressed you as credible. Whether it is consistent in the case of each witness with accounts that he has previously given, plainly you would look for independent support in considering whether you accepted the evidence of one or more of these witnesses.
It is open to you to have regard to the evidence of one or more of the indemnified witnesses as providing some support for an acceptance of the evidence of another of the indemnified witnesses. As your own commonsense would suggest, you need to approach that exercise with a degree of care. Tony Haddad and Bassam Said are persons with a close association that includes their willingness to engage in serious criminal activities together. Each was suspected by the police of having been an accessory after the fact to the murder of Ahmed Fahda. To the extent that their accounts may seem to coincide, you would assess whether they have had the opportunity to collude and agree upon an account to put forward to the police that serves to exculpate them."
168At the trial there was no complaint from trial counsel for either appellant (or from counsel for the other accused Darwiche) about this part of the trial judge's summing up. Accordingly, r 4 of the Criminal Appeal Rules applies. Nor was there any request pursuant to s 165 of the Evidence Act for any further direction.
169The history of the written submissions of the appellants in support of this ground is somewhat involved. Written submissions dated 6 December 2007 were lodged on behalf of El-Zeyat. These submissions had been prepared by the late Mr Paul Byrne of senior counsel.
170Written submissions were subsequently lodged on behalf of Aouad. In these submissions it was stated Aouad adopted and relied upon the submissions made on behalf of El-Zeyat. This was apparently a reference to the submissions which had been prepared by Mr Byrne. However, in submissions subsequently lodged on behalf of El-Zeyat it was stated that the submissions of 6 December 2007 were withdrawn and that new submissions were being made.
171In the course of the hearing it became clear that the appellants did wish to rely on Mr Byrne's submissions, as well as further submissions.
172The written submissions prepared by Mr Byrne were not really submissions but a survey by Mr Byrne of English and Australian cases on the subject of "mutual corroboration of accomplices". A number of cases surveyed by Mr Byrne were referred to frequently in further written and oral submissions on the appeal. These cases included Pollitt v The Queen (1991-1992) 174 CLR 558; R v Chen & Ors (2002) 130 A Crim R 300; R v Ngo [2003] NSWCCA 82 (reported in part at (2003) 57 NSWLR 55); Conway v The Queen (2001) 209 CLR 203; Kanaan & Ors v Regina [2006] NSWCCA 109.
173In Pollitt the Crown case was that Pollitt and an accomplice named Jones had been recruited to kill one man but had mistakenly killed another man. At the trial Jones gave evidence in the Crown case and a prisoner informer named Denning gave evidence of a confession he said Pollitt had made to him while both Pollitt and Denning were in prison.
174The trial judge gave a direction that Denning's evidence, if accepted, was capable of corroborating the evidence of the accomplice Jones. It was submitted on the appeal that the witnesses Jones and Denning could not corroborate each other.
175At pp 599-600 Dawson J and Gaudron J said in their joint judgment:
"It is convenient first to consider the argument that Denning and Jones could not corroborate each other. Leaving aside the special problems associated with the unsworn evidence of children (which, of course, are not involved in this case) and the position with respect to the evidence of accomplices, there is no rule of law or practice that evidence which attracts a corroboration warning cannot corroborate or be corroborated by other evidence attracting the same warning.
The rule that one accomplice cannot corroborate another is based in large part on the common interest of accomplices in minimizing their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. It is for this reason that a direction is given that accomplices cannot corroborate each other. Thus, if there is no possibility of joint fabrication, as, for example, where the witness was an accomplice in other offences and is called to give similar fact evidence, a direction to this effect is not required. Equally, there may be cases not involving accomplices where, because of the possibility of joint fabrication, it is necessary to direct a jury to look elsewhere for corroboration. But there was no basis for any suggestion of joint fabrication in this case and, thus, there was no need for a direction that Denning and Jones could not corroborate each other."
176In R v Chen the appellants had been charged with importing a commercial quantity of heroin in contravention of the Customs Act . A man named Chan who had been a member of the criminal enterprise gave evidence for the Crown. At para 58 of its judgment the Court of Criminal Appeal said:
"In our opinion, Chan was plainly an accomplice. Though s 164(3) of the Evidence Act abolished the universal common law duty to give an accomplice warning, the power and the duty to do so in appropriate circumstances survives: see also s 165(5). It became, therefore, incumbent upon the learned presiding judge to give the jury a clear direction to the effect that it would be dangerous to convict the appellant, and his other co-accused, upon the uncorroborated evidence of that accomplice. This, as it seems to us, his Honour plainly and correctly did. ..."
177In R v Ngo the Court at para 179 of its judgment quoted part of the joint judgment of Dawson and Gaudron JJ in Pollitt at p 600 and at paras 187 and 188 referred with approval to what had been said at para 58 of the judgment in Chen .
178In Conway v The Queen , Conway was charged with the murder of his wife. It was alleged by the Crown that he had instigated two men to inject his wife with a fatal dose of heroin. The two men gave evidence for the Crown at Conway's trial. The Commonwealth Evidence Act , which was in similar terms to the New South Wales Evidence Act , applied to the trial.
179The trial judge gave the jury a direction that it would be dangerous to convict Conway of the evidence of the two men, who were accomplices, unless the evidence was corroborated. The trial judge directed the jury that a large number of matters were capable of amounting to corroboration. On the appeal it was conceded by the Crown or found by the Court, that some of these matters were not capable of amounting to corroboration.
180The High Court held that ss 164 and 165 of the Evidence Act did not prohibit a judge from warning a jury that it would be dangerous to convict on the uncorroborated evidence of an accomplice. The High Court further held that, although the jury had been misdirected about what evidence was capable of constituting corroboration, no substantial miscarriage of justice had resulted, because the evidence against the accused was overwhelming.
181Kanaan & Ors v Regina featured prominently in the submissions of the parties on the hearing of the present appeal.
182In Kanaan the head of a criminal organisation had been murdered. The Crown alleged that the persons who became appellants in the Court of Criminal Appeal had been parties to a joint criminal enterprise to kill the deceased.
183The Crown case depended principally on the evidence of a witness who had been a member of the same criminal organisation and who might reasonably have been supposed to have been criminally concerned in the joint criminal enterprise. This witness was given the pseudonym of Rossini. The witness was given an undertaking by the Attorney General that, provided that the evidence he gave was true, his evidence would not be used against him.
184The Crown case also depended, to a lesser extent, on the evidence of two brothers who might reasonably have been supposed to have been accessories after the fact to the murder. The two brothers were given the pseudonym "Laycock".
185In Kanaan the trial judge did not direct the jury that it would be dangerous to convict on the uncorroborated evidence of an accomplice. The trial judge did direct the jury that they could find "support" for the evidence of Rossini in the evidence of the Laycock brothers. The Court of Criminal Appeal held that the trial judge had not erred in either respect.
186The High Court refused special leave to appeal from the decision of the Court of Criminal Appeal in Kanaan ((2007) HCA transcript 402 (3 August 2007)). In refusing special leave the Chief Justice said that the Court was of the view that there were insufficient prospects of the appeals succeeding to grant special leave.
187Parts of the judgment of the Court of Criminal Appeal in Kanaan which were particularly referred to on the present appeal were parts of the judgment between paras [202] and [224].
188In para [205] the Court noted a submission by the appellants as follows:
"The appellants' next submission supporting Ground 3 is that it was incumbent on the judge in this case to direct the jury that, as Rossini was an accomplice, it was dangerous to convict the accused on his uncorroborated evidence, to give the jury assistance as to the nature of corroborative evidence and to identify what evidence there was which, if accepted, could constitute corroborative evidence in this case. Reliance was placed on the decisions of this Court in Regina v Chen and Regina v Ngo."
189In para 206 of the Judgment the Court referred to para [58] in the judgment of the Court in Chen . In para 207 the Court set out the provisions of the Evidence Act . The Court commenced para 208 by referring to paras [187]-[188] of the judgment of the Court in Ngo . The Court then proceeded to point out that in neither Chen nor Ngo had any reference been made to the decision of the High Court in Conway , which had been handed down before the decisons in Chen and Ngo were given.
190In paras [216]-[217] of its Judgment in Kanaan the Court said:
"216 In the circumstances that -
(i) Conway v The Queen explicitly states that a common law accomplice warning that it is dangerous to convict is not necessary, although it is permissible,
(ii) the need for corroboration for any evidence (except in relation to trials of perjury or a similar or related offence) has been abolished by s 164, unless some other provision of the Evidence Act required it, and
the terminology of the common law accomplice direction is not imported into the accomplice warning to be given pursuant to s 165(2) (as we have asserted in par [214] supra -
it is, with due respect, not possible to agree with this Court's decisions in Chen and Ngo , and to some extent with the decision in Livingstone , that the necessity for such a direction (or the duty to give such a direction) has survived 'in appropriate circumstances'.
217 In our view, the effect of ss 164-165 (as now interpreted by the High Court) is as follows:
(1) It is not necessary for the evidence of a witness who may reasonably be supposed to have been criminally concerned in the events giving rise to the trial to be corroborated.
The judge, if requested to do so and unless of opinion that there are good reasons not to do so, is:
(a)to give a warning that the evidence of that witness may be unreliable,
(b)to inform the jury of matters that may cause it to be unreliable, and
(c)to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The matters to which reference was generally made in directions which accompanied the common law accomplice warning should, when appropriate, generally be used when informing the jury of the matters which may cause the evidence of that witness to be unreliable.
(4) The Judge may, if satisfied that it is necessary in the interests of justice to do so in the particular case, give a warning that it would be dangerous to convict on the uncorroborated evidence of such a witness, but the judge is never under a duty to do so."
191In paras [219], [220] and [221] the Court said:
"219 The appellants' final submission in support of Ground 3 is that the judge wrongly directed the jury that they could find 'support' for the evidence of Rossini in the evidence of the Laycock brothers. Reliance is placed on Pollitt v The Queen (1992) 174 CLR 588 at 600, where the rule that one accomplice cannot corroborate another was said to have been based in large part on the common interests of accomplices in minimising their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. For the reasons already given (in par [202] supra ), the Laycocks as accessories after the fact were not accomplices. Nor was there any requirement that Rossini's evidence be corroborated.
220. The High Court in Pollitt also said (at 600) that corroboration could not be given of the evidence of an accomplice where there was the possibility of joint fabrication by the accomplice with the other witness. There was such a possibility of joint fabrication between Rossini and the Laycock brothers. It would therefore have been an error if the judge had directed the jury that the evidence of the Laycock brothers could corroborate that of Rossini. He did not do so. His instruction to the jury was that they should look 'to see to what extent there is any independent support' for the evidence Rossini had given. That direction did not invite the jury to equate independent support with corroboration.
221 The words 'independent support' have a far wider meaning than 'corroboration', and therefore 'support' need not be of such a nature that it confirms in some material particular not only that the crime has been committed but also that the accused committed it: cf Rex v Baskerville (1916) 2 KB 658 at 665, 668. Provided that the jury is adequately warned that the evidence of a witness who may have fabricated a story jointly with the 'accomplice' may be unreliable for that reason when looking for support in that witness's evidence of the evidence given by the 'accomplice', there is no reason why the jury may not look for support in such evidence.'
192The decision in Kanaan was handed down on 13 April 2006 during the trial of the appellants. The decision was drawn to the trial judge's attention and her Honour's directions in her summing up were clearly based on Kanaan .
193On the present appeal counsel for Aouad submitted that the trial judge had erred in directing the jury that it was open to them to have regard to the evidence of one or more of the indemnified witnesses for support for the evidence of another indemnified witness.
194It was submitted that all of the witnesses Bassam Said, Tony Haddad, Wahib Hannouf and Haissam Hannouf were "unreliable" witnesses and that the jury could look for support for the evidence of one of those witnesses in the evidence of another of those witnesses, only if the evidence of the other witness was truly independent of the evidence of the first witness and the evidence of the other witness would not be truly independent, unless the possibility of the two witnesses having jointly concocted their evidence was excluded. Counsel referred to Pollitt at p 600.
195A further submission was made that in the part of the trial judge's summing up which I have quoted the trial judge directed the jury that they should assess whether the witnesses Bassam Said and Tony Haddad had had the opportunity to collude and agree upon their accounts but did not give a similar direction about whether other pairs of the unreliable witnesses had had the opportunity to jointly fabricate their evidence.
196Counsel for Aouad accepted that the judgment of this Court in Kanaan appeared to present some difficulties for his submissions. Counsel did not submit that Kanaan had been wrongly decided but did suggest that Kanaan had been "misunderstood".
197Counsel submitted that the passage in the joint judgment in Pollitt at p 600 had continuing significance, notwithstanding the subsequent introduction of the Evidence Act and the judgment of this Court in Kanaan .
198Counsel acknowledged that leave under r 4 of the Criminal Appeal Rules was required to rely on this ground, because there had been no objection to her Honour's direction at the trial, but submitted that leave should be granted.
199Counsel for El-Zeyat made the same principal submission as counsel for Aouad, that is that the jury could look for support for the evidence of one of the unreliable witnesses in the evidence of another of those witnesses but only if the evidence of the other witness was truly independent and the evidence of the other witness would not be truly independent if there was a possibility that the evidence of the two witnesses had been jointly concocted.
200A submission was made by counsel for El-Zeyat that "corroboration evidence" is a species of the genus "supporting evidence" and, if evidence cannot amount to corroboration because of a possibility of joint concoction, it cannot amount to independent support, if there is a possibility of joint concoction.
201It was submitted that the unreliable witnesses in the present case had in fact had an opportunity to jointly concoct their evidence, while they were in prison together.
202Counsel for El-Zeyat's submissions about the judgment of this Court in Kanaan varied. No submission that Kanaan had been wrongly decided had been made in counsel's written submissions. In oral submissions it was submitted that Kanaan had been "misconceived" and "misapplied". Later in counsel's oral submissions it was submitted that the distinction drawn in Kanaan between evidence which is corroboration and evidence which is independent support is fallacious. At one stage in oral submissions an outright submission was made that Kanaan had been wrongly decided.