Ground 2
The trial Judge erred in his directions to the jury concerning the evidence of Huang in that he impermissibly removed from consideration any and all legitimate hypotheses consistent with innocence.
30 It is apparent from the cross-examination of Mr Huang and the closing address of the solicitor appearing for the Appellant that the defence case was that whatever banking Mr Huang had done was not for the Appellant and might well have been done under instructions from the Appellant's father or brother.
31 The foundation for the possible involvement of the Appellant's father and brother lay in evidence that Mr Huang was friendly with the parents and frequently went for meals to premises occupied by the Appellant and his parents, that there were a number of faxed and other communications that went to those premises unaddressed to the Appellant and some of which the Appellant's father or brother rather than the Appellant were involved in.
32 It was submitted in this Court that this evidence left open the possibility that Mr Huang's actions were done for the Appellant's father or brother and not the Appellant and that the effect of some of his Honour's remarks, in particular some referring to "evidentiary material" and what was or was not evidence, was effectively to preclude the jury considering the possibility. It was submitted that in the course of his summing-up his Honour identified exhaustively and restrictively the material to which the jury could have regard and, upon the basis that such matters were not evidence, effectively excluded from their consideration possibilities or hypotheses consistent with innocence. Attention was directed also to statements wherein his Honour had erroneously characterised matters as not evidence and on one occasion had characterised a matter as established because Mr Huang had given evidence to that effect.
33 The Crown submitted that his Honour's remarks did not go as far as the Appellant's counsel maintained and that in any event it had been made clear to the jury that the Crown's case depended upon the jury being sufficiently satisfied by the evidence of Mr Huang.
34 The passages relevant to this ground upon which reliance is placed on behalf of the Appellant or the Crown, and others to which is appropriate to refer, are as follows:- (Again I have broken up what is transcribed into shorter paragraphs and numbered them. I have not thought it necessary to identify areas where I have omitted passages I do not regard as relevant to this ground.)
2.1 In order to make a decision about something, and it does not matter what it is, you have to know the facts upon which the decision will be based. In a criminal trial it is for the jury to decide for itself the facts within the body of evidentiary material upon which it will base its verdict. In deciding the facts within the evidentiary material it is for the jury to decide what factors or considerations it considers proper and appropriate to be taken into account in deciding the facts upon which it will base its verdict.
2.2 You are required by the oath or affirmation to determine all relevant questions of fact according to the evidentiary material that has been presented to you in the courtroom during the course of the trial. That evidentiary material comprises, as you know, what was said by the twenty-two witnesses and the way or manner in which it was said, and I will have something to say about that shortly, and that which is contained in the sixty-three exhibits. That is the material and that is the only material to which you can bring your common senses to bear, and I will say something about that in a moment, and that is the material and that is the only material, as I said to you in my opening statement now nineteen days ago, upon which you can act to reach your verdict in this trial - AB15-16.
2.3 I said a moment ago that I will tell you about your use of common sense. You are asked to use your common sense, your individual experience and wisdom, your understanding of the ways of humankind. Each of us in our walk of life meets life's experiences. Meeting life's experiences gives us that common sense, that individual experience and wisdom, that understanding of the ways of humankind. You are asked to use your common sense when you assess the witnesses and the evidence that each has given. Moreover, as the learned solicitor for the Accused said to you, not only do you use your own common sense but you use the collective common sense of twelve different people. Each of you in your own walk of life has met, as I have said, life's experiences. You have met different life's experiences from the others of you. You have formed a different understanding of the ways of humankind. So there is this pool of common sense of twelve different people. So, not only do you use your own common sense, but in your discussions that I expect that you will have in the jury room you use the common sense of your other jurors in assessing the witnesses, although really there is only one witness to assess, and in assessing the evidence presented to you in this trial.
2.4 I have said already that over the last two days you have heard from the learned Crown prosecutor and learned solicitor for the Accused would put submission to you as to how you might view the evidentiary material leading towards your verdict. I said that I expected that each of them would endeavour to assist you in your task as the judges of the facts to decide within that evidentiary material the facts upon which you would base your verdict. It would not have surprised you that the learned Crown prosecutor put to you that there were evidence and reasons which, if you accepted them, would lead you to a verdict of guilty. Equally it would not have surprised you that the learned solicitor for the Accused put to you that there were evidence and reasons which, if you accepted them, would lead you to a verdict of not guilty. Each of them was referring to the same evidentiary material, yet each of them submitted to you that examination of that evidentiary material would lead to a different result. Each was doing that which his role required of him. Each did things in a different way, albeit that both of them referred extensively to the evidentiary material, particularly the surveillance of Mr Huang, the photographs at the 141 Ninth Avenue Belfield house, the intercepted telephone conversations, and the intercepted facsimile transmission. You will be comforted, I hope, to know that I will not be referring to the extent that the learned Crown prosecutor referred or to the extent to which the learned solicitor for the Accused referred to that evidentiary material.
2.5 I want you to give to the submissions of the learned Crown prosecutor and the learned solicitor for the Accused such weight as you, as the judges of the facts, consider proper and appropriate to be given. That is your role in this trial. As I said to you at the beginning of my summing-up, it is not for the learned Crown Prosecutor or the learned solicitor for the Accused, any more than it is for me, to tell you, the judges of the facts, how it is that you decide your verdict in this trial. But give to counsel's submissions such value as you consider that each deserves, remember, as I have said already, when the lawyers have said all the words in this trial, and I am one of the three of them, it is for the twelve of you, the judges of the facts, to decide for yourselves in the privacy of the jury room the facts within the evidentiary material upon which you will base your verdict.
2.6 This brings me to the evidentiary material. I have said already that the evidentiary material is that which was said by the twenty-two witnesses and the way or manner in which they said it, and that which is contained in the sixty-three exhibits. As you know, I have prepared a list of the witnesses in the order in which each gave evidence and you have a copy of that list, and I have prepared a list of the exhibits in the order in which each was admitted into evidence and you have a copy of that list. That is the material and that is the only material to which you bring your common sense to bear.
2.7 In a criminal trial the jury is entitled as the judges of the facts to take into account the way or manner in which a witness answers questions. We lawyers call it demeanour. Psychologists call it body language. It does not matter what term you use to describe it. You are entitled to take into account, if you wish to do so, the way or manner in which each witness answered questions. However, having said that, of all of the twenty-two witnesses there is really only one witness whose evidence is under serious challenge, and that obviously is Mr Huang, whose evidence is central to the Crown's case against the Accused.
2.8 So, members of the jury, when you look at all the 22 witnesses you will find, I expect, that the witness whose evidence is seriously challenged is Mr Huang.