Chidiac v R; Asfour v R

Convictions and Sentences

1. The indictment presented against Mr Chidiac stated: "that between about the 1st day of May 1984 and the 4th day of July 1985 at Sydney in the State of New South Wales and elsewhere did conspire with each other and with Samir Helias, Alfred Oti, Wilson Kwalu and divers other persons to import into Australia prohibited imports to which Section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to heroin."
2. In January 1989, Mr Chidiac and a co-accused, Mr Michael Asfour, stood trial before Smyth DCJ and a District Court jury. As noted, they were convicted on 15 February 1989. On 24 February 1989 Mr Chidiac was sentenced to a term of imprisonment of 20 years with a non-parole period of 14 years to date from the date of his arrest on 31 March 1988 (R v Chidiac (District Court (NSW), Smyth DCJ, 24 February 1989, unrep)). Mr Chidiac appealed against his conviction and sentence to the New South Wales Court of Criminal Appeal. On 15 December 1989 that Court dismissed the appeal against conviction and refused leave to appeal against the sentence (R v Chidiac (Court of Criminal Appeal (NSW), Gleeson CJ, Meagher JA and Loveday J, 15 December 1989, unrep)).
3. Mr Chidiac, and his co-accused, then applied for special leave to appeal to the High Court on the grounds that the verdict was unsafe and unsatisfactory, and that the trial judge failed to give an adequate direction concerning corroboration of the evidence of the accomplices. On 1 March 1991 Mr Chidiac's application was refused (Chidiac v R; Asfour v R [1991] HCA 4; 171 CLR 432 ("Chidiac")).
4. On 27 March 1995, an application was made to this Court for an inquiry into Mr Chidiac's conviction under s 474D of the Crimes Act 1900 (NSW), as it then stood. On 28 April 1995 Dunford J was appointed to determine whether an inquiry should be held. On 5 July 1995 Dunford J adjourned the matter pending the outcome of a petition submitted by Mr Chidiac to the Governor-General seeking a pardon, under former s 474C of the Crimes Act 1900 (NSW). On or about 15 December 1996, the Commonwealth Attorney-General refused to refer the matter to the New South Wales Court of Criminal Appeal. Mr Chidiac contends that his s 474D application was never determined. The Court has not been able to locate any record to indicate it was. I am proceeding on that basis.
5. On 10 February 1997 Mr Chidiac was released on parole after serving nine years imprisonment. The balance of his non-parole period has now expired.

Statutory Context

1. Sections 78 and 79 of the Review Act provide: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that 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. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) The Supreme Court may defer consideration of an application under section 78 if: (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. (3B) … (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."
2. On its face and subject to the matter noted at [19], these provisions confer a number of powers on this Court, including the power to direct that the matter be the subject of an inquiry (s 79(1)(a)); that the matter be referred to the Court of Criminal Appeal (s 79(1)(b)); that the matter be deferred (s 79(3A)); and that the application be refused (s 79(3)) on the basis of grounds including, but not limited to, those specified in s 79(3).
3. In Application of Victor Markarov under s 78 of Crimes (Appeal and Review) Act 2001 (NSW) [2013] NSWSC 1468 at [5] Bellew J noted three matters concerning these provisions (which his Honour derived from Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2008] NSWSC 251 ("Holland") at [2] to [12] per Johnson J)).
4. First, his Honour noted that a consideration of this application is an exercise of administrative, not judicial power (Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48 to 50 ("Varley"); Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [124] ("Eastman")). This process may be activated when the criminal justice system has "run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence" (Holland at [10]). In Holland, Johnson J noted that s 78 is not intended to provide a convicted person with another avenue of appeal after the appeal process has been exhausted, nor an opportunity to run the trial again on the papers (Holland at [9]).
5. Secondly, the test to be applied in proceedings of this nature is whether it appears that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case (s 79(2)). Under the now-repealed, but similarly phrased s 475 of the Crimes Act 1900, it was said that the requisite doubt or question may be formed where the material submitted causes the person considering the matter "unease or a sense of disquiet" in allowing the conviction or sentence to stand (Holland at [6], citing Varley at 48; Application of Rendell (1987) 32 A Crim R 243 at 245). This requires available material which "as a matter of practical reality" gives rise to a sense of unease or disquiet (Holland at [8]). That formula has been applied in applications made under s 79(2) (Holland at [6]).
6. Thirdly, in Holland Johnson J stated (at [11]): "The nature of the jurisdiction under Pt 7 involves some flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal."
7. Consistent with this I have determined the matter on the papers. I have considered all the documents annexed to the application of Mr Chidiac and to the submissions of the Attorney-General.
8. As noted, Mr Chidiac was convicted of an offence created by a federal statute. Questions arise regarding the power of the Court to consider this application and exercise all or any of the powers conferred by s 79(1) of the Review Act in relation to federal offences. Detailed submissions were made on behalf of Mr Chidiac to the effect that, by the operation of s 68 of the Judiciary Act 1903 (Cth), the Court could order an inquiry under s 79(1)(a) of the Review Act if s 79(2) was satisfied. However judges of this division have consistently concluded that, with federal offences, this provision and its predecessor only empowers the Court to order a referral of the matter to the Court of Criminal Appeal and not order an inquiry (Application of Pearson [1999] NSWSC 143; (1999) 46 NSWLR 148; El Hani [2007] NSWSC 330 at [23]; Toro-Martinez [2008] NSWSC 34 at [8]; Re Bolus - Application under Part 7 Crimes (Appeal & Review) Act 2001 [2008] NSWSC 806 at [5]).
9. I agree with the reasoning in Pearson and will follow it. However I note that s 12 of the Criminal Appeal Act 1912 (NSW) vests the Court of Criminal Appeal with a number of supplementary powers which may enable the Court to conduct any factual investigation as may be necessary to address any doubt or question that is raised as to Mr Chidiac's guilt. I will approach this matter on the basis that, if any such doubt or question appears within the meaning of s 79(2) of the Review Act, then I would not decline to refer the matter to the Court of Criminal Appeal simply because a more appropriate referral would be for an inquiry if that was available.

The Crown case

1. At trial the Crown case was that Mr Chidiac and Mr Asfour conspired with Messrs Oti, Kwalu, Helais and others to import heroin into Australia. A detailed summary of the Crown case was set out by Dawson J In Chidiac at 448-449: "The prosecution case was as follows. A man identified only as George introduced himself to Oti and Kwalu in Honiara in the Solomon Islands in 1979 or 1980. Both Oti and Kwalu are Solomon Islanders. Oti was a senior officer in the Solomon Islands Customs Service and Kwalu, a relative of his, was a taxi driver. George sought assistance in locating two missing suitcases which he eventually said contained hashish. George then made arrangements with Oti and Kwalu to post drugs from Malaysia to Honiara concealed behind framed pictures. The drugs were to be collected by Oti and Kwalu and sent on to Sydney. Nothing further happened until 1984 when George contacted Oti by letter and by telephone. George said that there would be a parcel of drugs sent towards the end of the year. Oti was to collect it and to tell George when it arrived. It was then to be sent on to George. Oti informed Kwalu of the development and George kept in contact with Oti by telephone from Sydney. At about this time Oti was introduced by George to the applicant Asfour on the telephone and Asfour also spoke to Oti about drugs. Oti gave George the fictitious names of Tahai and Moli to use as addressees on the parcel. A parcel arrived in Honiara late in October 1984. It was postmarked Penang, Malaysia, and was addressed to either Tahai or Moli at a post box number. It contained framed pictures in the back of which were plastic packages of pink powder resembling icing sugar in texture. In total they weighed 800 to 1000 grams. Oti telephoned George in Sydney and arrangements were made for Kwalu to bring the packages to Sydney and for George to pay his expenses. Kwalu carried the packages, taped to his legs, by air to Brisbane on 29 November 1984. There he was met by George and Asfour. All three travelled by bus to Sydney, the packages having been transferred to a briefcase carried by George or Asfour. Kwalu returned to Honiara from Brisbane by air on 6 December 1984. Oti later paid Kwalu $1000 with funds sent from Sydney. During December 1984 George again contacted Oti. He said that more of the same "stuff" would come in January or February in a manner similar to that of the first parcel. The parcel arrived and Oti told George of the fact. Oti, at George's suggestion, told Asfour by telephone that the drugs had not yet arrived. Money was sent to Honiara and in February 1985 Oti flew to Sydney with the packages contained in the parcel. He delivered them to George and a man introduced to him as George's brother, Sam. Oti returned to Honiara. Asfour telephoned Oti, expressing anger at being deceived about the last parcel. Asfour said that he would send someone to see Oti in Honiara. Early in May 1985, George telephoned Oti and told him that he would be sending someone named Sam to discuss the redirection of further packages. In mid-May George told Oti that it would not be Sam but someone named Neil. Neil is the first name of the applicant Chidiac. On 27 May 1985, Chidiac arrived in Honiara with his family and telephoned Oti. Oti met Chidiac at the Mendana Hotel where Chidiac was staying. Chidiac referred to George, the previous parcels, the dangers involved, and other ways in which drugs could be brought to Honiara and smuggled into Sydney. The next day Oti again met Chidiac, this time with Kwalu. There was further discussion of drug smuggling and payments that would be made. Chidiac gave Oti a piece of paper with a telephone number, 211-1100, written on it. The number was that of a paging service to which Chidiac was a subscriber. Shortly thereafter Chidiac left Honiara and telephoned Oti from Vanuatu. Chidiac returned to Sydney on 6 June 1985. George again telephoned Oti and told him to expect a further parcel. More packages arrived as before. This time the powder was white. Oti telephoned George and then Chidiac. The latter said he would send Oti money for the airfare from Honiara. The money arrived and on 1 July 1985 Kwalu flew from Honiara to Brisbane with the packages taped to his body. On 3 July 1985 he telephoned George. Asfour then telephoned Kwalu and the next day Kwalu travelled by bus to Sydney where he was met by Asfour and was later introduced to Samir Helais. Helais was a bookmaker's clerk who worked for Chidiac, the latter being a bookmaker by occupation. Kwalu went to Asfour's house with Asfour where he gave the packages to Asfour. Asfour and Helais divided the white powder between them. Kwalu remained in Sydney for a short time during which he met George. He returned to Honiara and further funds were sent from Sydney to Oti. The prosecution case was supported by evidence, for the most part from Oti and Kwalu. The man identified as George was not called as a witness and it appears to have been common ground that Helais had fled the country. At the time he gave evidence, Oti was in prison. In December 1985 he had made a further journey to Sydney carrying heroin and was caught. He pleaded guilty to a number of offences, including conspiracy to import heroin. For that offence he was sentenced to twenty years' imprisonment with a minimum term of ten years. Kwalu was brought from Honiara to give evidence. Both Oti and Kwalu were indemnified against prosecution in relation to their evidence in this case."

The issues at the trial

1. The trial judge suppressed the identity of the person known as "George" in the above extract. The Crown did not call him to give evidence. The trial judge directed the jury that, in light of that failure, "an inference which the jury can draw is if George had been called he could not have given evidence which would implicate Chidiac or Asfour" (see Jones v Dunkel (1959) 101 CLR 298). One aspect of this application concerns the position of George. (As there is no reason to believe the suppression order is not still in effect, I will refer to him as George, even though some of the material uses his full name).
2. The Crown did call Messrs Oti and Kwalu. Each gave evidence directly implicating Chidiac. At the time of the events that were subject of the trial, Oti was almost 40 years old and was employed as a Senior Collector with the Customs Department of the Solomon Islands. As noted by Dawson J in Chidiac, he was apprehended in December 1985 after having made a further journey to Australia carrying heroin. He was sentenced to a term of imprisonment for that offence but he was indemnified from prosecution for the conspiracy the subject of the charge against Mr Chidiac. I have received little material on this application concerning Kwalu, but it is known that he was also indemnified from prosecution.
3. During the trial the credibility of both Oti and Kwalu was vigorously attacked. Both admitted having told lies to the police, having told lies on oath and having changed their stories from time to time. On their own account they had personally engaged in transporting illegal drugs. In his summing up to the jury, the trial judge warned (at 358-359): "You as judges of fact have got to decide whether these two self-confessed liars have told the truth or not. What I am bound to tell you is that being accomplices as they are that it is dangerous to convict on their evidence unless it is corroborated. Not only are they accomplices, not only are they down and out villains, not only are they drug smugglers themselves but they are self-confessed perjurers and liars. I have been sitting on these courts for something like eight years and I have never heard two witnesses so readily admit that they have lied on oath. Now, that does not mean to say that they may not be telling the truth, but what I am saying to you is you will look carefully at what they said before you would hang a dog on their evidence. Really, it is really appalling and you heard it all as much as I did."
4. In Chidiac Dawson J observed that while this warning suggested that the trial judge had formed an unfavourable view as to the reliability of Oit and Kwalu, their versions were essentially the same. His Honour also observed that some of the discrepancies in their evidence, particularly with regard to the sequence of events, were capable of explanation upon the basis of improved recollection as they were asked to repeat their story (Chidiac v R at p 455 per Dawson J). According to his Honour, Oti and Kwalu admitted that they had told untruths, but their cross-examination did not reveal they had any great aptitude for deception. The material supplied in support of this application casts doubt on that assessment, at least so far as it concerns Oti.
5. During his trial Mr Chidiac made an unsworn statement. A copy of that statement was attached to an affidavit sworn by Mr Chidiac in support of this application. In his statement, Mr Chidiac denied any knowledge of George or Kwalu. He said that he had planned a family holiday but he delayed the trip to be the best man at his brother's wedding. He said that during his speech at the wedding he mentioned his upcoming trip and that later Samir Helias told him to get in touch with a friend of his, namely Oti. Oti held a senior position in customs. He said that during the holiday he contacted Oti who met him at his hotel. He said that he bought Oti some drinks but he became "fully intoxicated". He recalled Oti speaking "about the island a little bit" but that he "spoke mostly of the shop he wanted to rent or buy or whatever". Mr Chidiac said that he saw Oti briefly the following evening but he "tried to fob him off" by giving him $20 for drinks. He said that he rang Helias about Oti and told him that "I was not impressed whatsoever with his attitude". He said he never rang Oti from Sydney. Mr Chidiac also addressed the circumstances in which he acquired a pager service. I will address this below.
6. Thus, at the trial it was common ground that Chidiac employed Helias, that Chidiac went to Honiara in 2005 with his family, that he met Oti while in Honiara, that he telephoned Helais from Honiara and that he was at some point a client of "voice call" which operated a paging service. However it was disputed that he ever discussed the importation of drugs with Oti, that he ever met Kwalu, that he gave Oti a piece of paper with a telephone number of his paging service, that he telephoned Oti from Vanuatu, that he ever received a call from Oti in Sydney, or made a call to Oti from Sydney, and that he ever sent or arranged for money to be sent from Sydney to Oti in Honiara.

Corroborative Evidence

1. As noted, one ground upon which Mr Chidiac sought special leave to appeal to the High Court concerned the form of the directions given by the trial judge in respect of the evidence that was said to corroborate, or be capable of corroborating, the evidence of Oti and Kwalu. As part of that argument it was contended that there was no such evidence. Special leave to appeal on that ground was refused on the basis that the Court of Criminal Appeal did not err in rejecting that contention. Mason CJ noted that it had been conceded in the Court of Criminal Appeal that there was corroborative evidence (Chidiac at 440.5).
2. Nevertheless in the course of addressing the contention that the conviction was unsafe and unsatisfactory, three of the judgments in Chidiac addressed the evidence that was said to corroborate, or be capable of corroborating, the evidence of Oti and Kwalu so far as it implicated Mr Chidiac (at 440 per Mason CJ, at 455 per Dawson J at 464 - 466 per McHugh J). The most detailed analysis of that evidence was undertaken by McHugh J (at 464 to 466): "8. The first piece of corroborative evidence against Chidiac was his admission that he had met Oti in Honiara on the occasion that Oti and Kwalu swore that there was a discussion concerning the importation of drugs into Australia. However, Chidiac was there with his family, allegedly for a holiday, and, although he admitted the meeting, he denied that the conversation took place. In addition, he explained his meeting with Oti by claiming that Helais had asked him to introduce himself to Oti. In these circumstances, the admitted meeting throws little light on whether there was a conversation in the terms alleged by Oti. I do not think a reasonable jury would have held that the conversation was confirmed by this piece of "corroborative" evidence. 9. The second piece of corroborative evidence against Chidiac was his admission that, after meeting Oti, he telephoned Helais in Sydney from Honiara. But on Chidiac's uncontradicted version the purpose of the call was to complain about Oti's conduct. Again I do not think that a reasonable jury would have regarded this telephone call as confirming the evidence of Oti and Kwalu. 10. The third piece of corroborative evidence against Chidiac was the strongest. Oti swore that, during his conversation with Chidiac, Chidiac handed him a piece of paper with the number 211-1100 on it. At the same time Chidiac said: "If you ring up, and most of the time I won't be there, just leave a message and say 'This is Alf'". Chidiac denied the conversation and that he had given Oti the number. However, in his dock statement, Chidiac admitted that from November or December 1985, some six months after he was in Honiara, he became a subscriber to a paging service. The number of that paging service was 211-1100. 11. Chidiac's rental agreement with the paging service was tendered in evidence. The only subscriber's signature on the agreement was that of Chidiac. But alongside the name of the party to the agreement was the word "JACOB". Immediately above that word the date of the agreement was shown as "21-6-84". On the same line as the word "JACOB" was a diagonal line which intersected the right corner of the bottom loop of the "B" in that word. Alongside the diagonal line were the words "NEIL CHIDIAC" written with a different pen and in a different style of writing. The top corner of the document disclosed a payment of $584 on "21-6-84". However, a search of the records of the paging company showed no payment by Chidiac until he made a payment "in advance" in November 1985. 12. Upon this evidence, the Crown contended that Chidiac had been a subscriber to the paging service since June 1984 and that this corroborated Oti's evidence that in May 1985 Chidiac had given him the number of the paging service together with instructions as to how to contact Chidiac on that number. Chidiac, on the other hand, contended that the date "21-6-84" was linked to the person "JACOB" who either had been or had intended to become a subscriber. In addition, he submitted that the fact that his first payment was not made until November 1985 showed that he had not been a subscriber in May 1985 as implicitly alleged by Oti. 13. On its face, however, the paging agreement was one made and signed by Chidiac on 21 June 1984. No doubt the insertion of the word "JACOB" is curious and so is the use of a different pen and writing for that word. But nothing in the document suggests that "JACOB" became a subscriber. There is no surname after the word "JACOB" except the word "CHIDIAC". Moreover, the effect of the evidence was not that Chidiac had made his first payment in November 1985 but that no record of any payment from him could be found before that date. Upon these facts, a reasonable jury was entitled to find that Chidiac had been a subscriber to the paging service since June 1984." 14. Once that finding was made, the case against Chidiac wore a very different complexion. Upon making that finding, a reasonable jury was entitled to conclude that the assertion by Chidiac in his dock statement that he was not a subscriber to the paging service until November or December 1985 was a lie, borne out of a consciousness of guilt, for the giving of his number was altogether inconsistent with his claim as to the nature and result of his meeting with Oti. Moreover, once the reasonable jury found that Chidiac was indeed a subscriber to the number 211-1100 in May 1985 and that he had lied about it in his dock statement, it was open to them to find that he had given that number to Oti for the purpose to which Oti had deposed. 15. Consequently, although a reasonable jury would approach the evidence of Oti and Kwalu with great caution, the evidence concerning the paging number convincingly confirmed their evidence that Chidiac was involved in the conspiracy to import drugs into Australia and had given Oti a telephone number by which he could be contacted."
3. The analysis of Mason CJ (at 440.5) and Dawson J (at 445) of the corroborative evidence was similar, although their Honours did not diminish the weight to be attributed to Chidiac's meeting with Oti in Honiara or his telephone call to Helias, or elevate the weight to be attached to the pager contract, as McHugh J did in the above passage.
4. As noted the discussion of the corroborative evidence in the judgments in Chidiac was undertaken in the context of considering whether the jury's verdict was unsafe or unsatisfactory, that is whether a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the accused. This necessitated that considerable deference be afforded to the advantage enjoyed by the jury in having the opportunity to hear and observe Oti and Kwalu give evidence (at 443.6 per Mason CJ, at 452.9 to 453.1 per Dawson J, at 458 per Toohey J, and at 462.1) although there were differing views in respect of the degree of deference that should be afforded (at cf 453.1 per Dawson J with 457 per Toohey J and 459 per Gaudron J). Hence in the above extracts of McHugh J does not record findings of fact but only findings "a reasonable jury was entitled" to make.
5. Also, in discussing the so called corroborative evidence, their Honours were referring to it in the sense of evidence that "confirm[s] or tend[s] to confirm the accused's involvement in the events as related by the accomplice" (Doney v The Queen (1990) 171 CLR 207 at 211.9). Standing alone, the matters discussed in the above passage were not capable of demonstrating Mr Chidiac's participation in a conspiracy to import heroin.

Alfred Oti

1. It was submitted on behalf of Mr Chidiac that a doubt or question arises as to Mr Chidiac's guilt by reason of new material that has been obtained suggesting that Oti perjured himself in implicating Chidiac.
2. In 1994 a private investigator travelled to Fiji and interviewed Oti (the "1994 Interview"). During that interview Oti adopted a handwritten statement which stated (tab 13): "I was originally sentenced to 20 years with a minimum of 10 years and later (when I appealed) I was sentenced to 7 years with a minimum of 5½ years. After I was sentenced (about 2 years later), I was approached by [name of Detective] and one other police who told me that they had known about my other involvement in importing of drugs into Australia and they mentioned Neil Chidiac as one of my conspirators. I was asked to tell everything about this particular importations, otherwise I would spend a very long time in gaol, that I had a family to go back to, etc. They also added that they had been trying to get Neil Chidiac but they couldn't. They told me to make statements against Neil but most of what I alleged was not correct or true because of the pressure. I only made the statements and later gave evidence against Neil because I was afraid Police might give me additional sentence to what I had already got. However, as far as I am concerned, Neil had not had any conversations with me about importing of drugs. I came into his hotel room in Mendana Hotel to chat and to say hello to him and his family. He was not involved with me or Wilson Kwalu or any other person that I know in importing drugs. I've never received any money from Neil for any reason apart from $40 or $50 odd dollars that I had asked for in the Hotel for 'booze'." I saw Neil again the next day when I was with my friends besides Wilson but I never saw them having conversation nor did I discuss the importation of drugs with them. I continue to give evidence against Neil until he was convicted because I was still in gaol and I was afraid of getting more sentences. But now I am out of gaol and served my time I could now give the true events or statement of the drugs importation that implicated Neil and landed him … Therefore, I am no longer afraid of getting more sentences from the Police. I am now reformed and I've been a dedicated Christian since I had got out of gaol. During the time I was involved in drugs importations I was drinking alcohol very heavily (about 7 days a week) and it was affecting my memory. However, I have been off alcohol for over 10 years now. From the very beginning, I had always felt sorry for Neil, so now, I believe the truths I am now telling will help to get him out of gaol. I believe he is an innocent man and I regret having telling lies and confusing statements about him. I repeat again that Neil was not involved in any drugs importations that I am aware of. I am making this statement for the purpose of telling the truth about Neil and for no other purpose."
3. The balance of the 1994 interview is instructive. Oti nominated "George" as the organiser and financier of a number of drug importations, including the importation the subject of the charge against Mr Chidiac (p6 to p 9). Oti confirmed that the investigating detectives told him that they "have been trying to get Neil Chidiac", but he denied that he told the police at any time that the statements he made implicating Mr Chidiac were untruthful (p 15.1), or that they suggested the role played by Mr Chidiac in the drug importation racket (p 20.10). He also stated that he had assumed Mr Chidiac was involved in importing drugs because of his association with, inter alia, Helias (p19.10). Oti said he told them of George's involvement, but the police were not "interested in asking questions" about him (p15.10).
4. During the interview Oti was asked about a letter he wrote to Kwalu while in custody. The letter was taken to Kwalu by one of the investigating detectives (see [42]): "Q: Can you tell me what was contained in that letter? A: mmm Almost the same things I told him on the phone. I just told him to co-operate with [the Detective] for whatever questions he asks. Q: Did you tell him what you had said about Neil Chidiac in that letter. Did you write out what you said about him. A: No No Q: Did you ask him to make a statement against Neil Chidiac to corroborate what you had said. A: Something along that line. Yes I did. Q: Can you remember what those words were? A: I say something along the lines that Err if Terry asking anything about Neil or anybody else just to answer they Err answer him err correctly say the truth. Tell them the truth. Q: In the truth did you what the truth was? As Err or make any suggestions to him about what to say? A: No. I didn't make suggestions. Q: You understand what I saying is that you have now said that the information you gave was false. A: mmm Q: How did Wilson come to corroborate something that was false? Which you Err nnnow say is false? A: Err Probably I could have mentioned something in the letter Err but I can't remember. What I said."
5. The last answer in this passage appears to show Oti anticipating that the questioner was exploring a theory that Oti included (false) details concerning Mr Chidiac in the letter in an endeavour to manufacture corroborative evidence from Kwalu.
6. During the interview, Oti was also asked about Mr Chidiac's pager. He denied being aware that Mr Chidiac had a pager when he visited Honiara but states that he was subsequently told by George that Chidiac had a pager and was given his number (p42). Oti stated that he never contacted Chidiac. However he later stated he was given the pager number by one of the investigating detectives while in gaol and that he did not have the number prior to that (p 43 to 44).
7. In 1997 Oti was interviewed by reporters from the "Witness" program (the "1997 interview"). During that interview he reiterated what he stated in the above statement. The television program that was broadcast included footage of Oti writing the statement in [34] and extracts from the 1997 interview. Included in the materials provided in support of this application is a transcript of the entire 1997 interview. Four points should be noted about that interview.
8. First, in the 1997 interview Oti said the investigating police had suggested Kwalu's involvement to him and he had confirmed it (A192). He suggested that they may have learned of it through "George", the alleged organiser.
9. Second, in the 1997 interview Oti was asked about the letter to Kwalu. He said that the investigating detective told Oti that he would be travelling to Honiara to see Kwalu and suggested that he, Oti, write a letter to Kwalu (A49). Oti said that he gave the letter to the detective who took it to Kwalu (A56). He said that he did not see the detective read the letter but suspected that he did (A59).
10. At Mr Chidiac's trial the detective agreed that he took a letter from Oti in gaol to Kwalu in Honiara (Tab 7 p231). The extract of the trial transcript that has been provided in support of this application does not record any question being asked of the detective as to whether he read the letter or was otherwise aware of its contents.
11. It is instructive to compare what Oti said about the contents of the letter in the 1997 interview with the 1994 interview as set out in [32]. In the 1997 Interview, he was asked: "Q. 50 What was in the letter that you gave to [the Detective]? A I can't remember all of the contents of the letter, but I - I mentioned to Wilson that he had to co-operate with [the Detective] and not to mention any other names except Neil's name, because [the Detective] was going to come over to him to talk about Neil. … Q54 Did you tell Wilson the story he should tell about Neil Chidiac, about the meeting that was supposed to happen here? A Yes, I told him in that letter to - to say that we met Neil here and discussed something about drugs and that when he went over to Sydney that he met Neil." Thus, by this time Oti was claiming that his letter advised Kwalu of the supposedly false details to include in his testimony against Mr Chidiac. In the extract from the 1994 interview, set out in [32], he initially denied doing so but then suggested he "could have mentioned something in the letter."
12. Third, during the 1997 interview the reporter asked Oti about the pager service. Oti said that Chidiac never gave him the number of "Neil's pager" but instead it was "George". In particular he was asked: "Q 316 Did Neil ever say to you, "When you ring the pager service, ask for Neil and say, "This is Alf""? A. Right, yeah, that's right. Yeah, that's what George told me. … Q318 Neil never said that? A. No, he didn't say that." Unlike the 1994 interview, Oti did not suggest the police gave him the pager number.
13. Fourth, from "Q360" of the 1997 interview onwards, Oti alleged that at some point he changed his statement to conform with Kwalu's statement. He said he did this at the request of the prosecutor, then a senior barrister. He said the barrister visited him in jail and "told me that the statement that [Kwalu] gave [the Detective] and the statement that I gave [Kwalu] a bit - some bits are needing alteration" (A374). He said that some days later the police provided him with a copy of Kwalu's statement and that he, Oti, provided an additional statement to "match Kwalu's".
14. This aspect of the 1997 interview is significant. The television program that was broadcast emphasised Oti's efforts to reform his alcohol problem through religion. It included extracts from the video interview in which Oti exonerated Chidiac and expressed regret for implicating him in the conspiracy. However, a viewing of the entirety of the video, especially these later extracts, shows Oti as being both highly suggestible and manipulative. He is prepared to take morsels of information from the questioner and then elaborate upon them in his answers. Thus the part of the interview in which he implicates the prosecutor commences with Oti attempting to recall the name of the barrister but not identifying his role. He is then asked by the reporter as follows: "Q 360 [Name] was the prosecutor. Do you remember him? A Yes I do. Q 361 And what do you remember? Tell me A I remember at one stage after I have - I had given evidence against Neil I was transferred down to another gaol, a special unit in Long Bay gaol. [the barrister] and others visited me to - to tell me that my evidence, the statement that I gave against Neil, was not in line with the evidence that Wilson gave."
15. Viewed as a totality, and not in light of the sympathetic treatment given in the television program that accompanied it, the 1997 interview does not reveal Oti to be a reformed liar seeking to expunge his conscience. Nevertheless the material still raises concerns about any conviction that rests substantially on his evidence. In his efforts to explain how he (apparently) falsely implicated Mr Chidiac in a conspiracy to import heroin, Oti appears to be prepared to implicate others in a conspiracy to pervert justice and appears to have done so only after their names were suggested to him.
16. Otherwise I note the submissions on behalf of Mr Chidiac also referred to an interview he conducted with (then) Detective Mark Standen on 23 December 1985 (tab 2). The submissions noted that, in that interview, Oti did not mention Mr Chidiac. This takes the matter nowhere. The subject matter of that interview was the importation that led to Oti's arrest in 1985 and not the earlier importation that was said to involve Mr Chidiac.

Kwalu

1. I was not provided with any material addressing the position of Kwalu. As best as I can ascertain he travelled from the Solomon Islands to give evidence against Mr Chidiac. He does not appear to have had as stronger a motivation to lie about Mr Chidiac's involvement as Oti. Although he received an indemnity from prosecution, there does not seem to have been much prospect of his being extradited and prosecuted. However he was a relative of Oti's and the tenor of the above is that Oti expected him to assist police, presumably to aid Oti in obtaining favourable treatment.

The Pager

1. In his unsworn statement to the jury Mr Chidiac said the following about the pager: "Now, I come to the part, the story of the voice call. I bought a Voice Call privately for $200 some time in November 85 or December 85. I rang up the girl at the time on the switch board, I can't remember the name, and I told her I bought a private beeper, I wish to transfer it in my name. The girl at the time she said we don't do this service. Because you can not purchase beepers through private people. The only way you can purchase the beeper is through us. We buy the beeper and you lease it from us, maybe it for financial purposes. She said the best way to deal with this is to see Benny Pinnychis he was the sales manager at the time or something like that. I rang him up and made an appointment after a couple of days and I saw Benny Pinchas. I explained to him the situation of the beeper and he brought a contract with the name of Jacob's on it. I don't know how the name got to it. But that is the contract with Jacob's on it. He said 'don't worry about it we use this contract nothing to worry it will transferred in your name in no time' and the same sales pitch and everything is smooth. I agreed to that. I made three months in advance lease on the beeper and there has been no previous record to say I paid earlier payments than that. That was in December 85. So the time when Alfred Oti supposed to ring me and make this fantastic way of contacting me I didn't have a beeper at the time. I didn't even know the number myself. Somebody read the contract and seen 1984 on it, said he must have had a beeper but someone has made a mistake. This beeper was a bit of dud beeper, malfunctions a lot. Using too many batteries. Every two days you have to load the battery in it. I complained about it later on and that was the only beeper available. Later on knew beepers came on the market and I purchased another beeper from Benny Pinchor and I cancelled the previous beeper service on it. That is why the it appears here in some papers saying that my account is overdue. They didn't cancel it. The they let it run although I am not using it. And another, name, Carnagie on the envelope, that is the person I rang him later on, we have a bit argue about it and I say I refuse to pay service on the beeper although I cancelled it and I don't wish to have the second beeper. I think your services are not required any more. There was no secret about my beeper at all. I printed on my letterheads in my company December 85, I wasn't hiding the fact I possessed a beeper. It was the companies name, which appeared today. Same name, same form."
2. In support of the application Mr Chidiac's solicitors supplied an affidavit from Tony John Hughes. Mr Hughes explained that in 1987 he commenced work in the telecommunications industry. He said that around that time the industry had introduced alpha numeric codes but that, prior to that time, all pagers were either linked to a dedicated phone number or required the caller to know the beeper owner's unique pager number, which they would supply when telephoning a common call centre.
3. The effect of Mr Hughes' evidence was that a person in Oti's position who was seeking to contact Mr Chidiac would have needed more information than simply the number of Chidiac's paging service, which was 211-1100. Instead Oti would either have needed a unique pager that identified Mr Chidiac or the paging company would have had to operate an answering service which would have allowed Oti to request that a message be left for Mr Chidiac. Mr Hughes also stated that it was possible for a person to buy or rent a pager and subsequently transfer it to someone else, as stated by Mr Chidiac in his unsworn statement.
4. Based on his affidavit it was submitted that Mr Hughes' evidence negates a 'critical assumption' of McHugh J's reasoning in Chidiac, "namely that it was possible to contact Mr Chidiac directly by knowing only the paging number 211-1100 and providing a cryptic code phrase upon calling that number". It was contended that the fact that it was not possible "confirms that Oti was lying in his account".
5. I do not agree. In Chidiac McHugh J was not confronted with any challenge to Oti's evidence concerning the pager on the basis that it was not possible to contact Mr Chidiac by merely possessing the number of the paging service company. The matter addressed by McHugh J concerned Mr Chidiac's denial that he did not possess a pager service at the time of the alleged conspiracy, namely May 1985. His Honour reviewed the contract and concluded that it was open to a reasonable jury to find that he did subscribe to a pager service with voicecall at that time.
6. Otherwise there are a number of difficulties with this aspect of the application. First, Mr Hughes commenced working in the telecommunications industry in 1987. I am sceptical of his capacity to opine about the position of the paging company's operations in 1985. Second the transcript of the evidence given by Oti at Mr Chidiac's trial on the question of the pager has not been provided. It is not clear whether he described some system that did involve, for example, telephoning the paging company and requesting the operator to send a message. Third, according to his unsworn statement, Mr Chidiac was a subscriber to the paging company from late 1985. If in 1985 it was necessary to do more than simply call their number to contact him then it is to be expected that Mr Chidiac would have known that and raised it with his Counsel. It seems that did not happen. To the contrary, in his unsworn statement Chidiac said that his pager number was on his business letterhead. No doubt he was implying that Oti could have obtained the pager service number from that source and not from him. It seems highly improbable that if Oti had not accurately described the system for contacting Mr Chidiac on a voice call pager some issue would not have arisen about it at trial and on appeal.
7. That said, the significance of the material about the pager service should not be overstated. By itself, it only provided mild support for Oti's evidence implicating Mr Chidiac. There appears to be a number of means by which Oti could have obtained Chidiac's pager details. As noted, he appears to have a propensity for digesting morsels of information and incorporating them into his narrative. It is true that McHugh J concluded that the pager contract "convincingly confirmed" Oti and Kwalu's evidence but that was only because his Honour held that a reasonable jury was "entitled" to conclude that Mr Chidiac lied in saying he had a paging service in May 1985. In turn this depended upon a reasonable jury being "entitled" to conclude that the contract proved he did so. A finding to either effect was not compelled by the evidence.

Mr Chidiac's trip to Honiara

1. Mr Chidiac's solicitors also supplied a letter from Mr Kenneth Low dated 19 October 2012. Mr Low practiced as an architect in New South Wales in the early 1980s. Mr Low was engaged by Mr Chidiac to design his house in Clovelly. He stated that, after he was involved in a car accident in 1983, he closed his architectural practice and returned to Fiji. He recalled that, at the end of May or in early June 1985, Mr Chidiac visited him in his offices in Fiji to discuss the progress of the renovations. In an affidavit sworn in support of this application Mr Chidiac stated that he originally planned only to visit Mr Low in Fiji but at the instigation of his travel agent he added a trip to Honiara to the itinerary.
2. It was submitted that this material provides an innocent explanation for how it was that Mr Chidiac came to be in Honiara and then meet Oti. However I do not consider that it advances the matter very far. Mr Chidiac made no mention of this in his unsworn statement. The fact that Mr Chidiac visited Mr Low in Fiji provides little justification for him then travelling to Honiara. That said, while the fact that Mr Chidiac met Oti in Honiara, as he agreed he did, is capable of arousing some suspicion, of itself it is not incriminating. As noted by McHugh J in Chidiac this did not confirm the evidence of Oti or Kwalu to the extent that they implicated Mr Chidiac.

Failure to call George

1. The summary of the Crown case in Chidiac at [21] described the role of the person known as "George". At [22] I noted the direction given by the trial judge concerning the Crown's failure to call him as a witness.
2. In support of this application, an extract from the evidence of the investigating detective at Mr Chidiac's trial was supplied. The detective agreed that "George" had a "prominent part to play in the conspiracy", the subject of the charge against Mr Chidiac. The detective was also asked whether he was instructed not to make inquiries about George. He replied "not in so many words" but added "it was an understanding I had with conversations with senior police I would not make certain inquiries in relation to George" (T226.9.)
3. Mr Chidiac's solicitors also provided an affidavit from Mr Alan Taciak. Mr Taciak is a former AFP officer. He confirmed that George was a registered informant of the AFP's Sydney drug unit. Mr Taciak states that in 1986 he was appointed as George's controller. Mr Taciak states that he was directed by a Detective Inspector within that unit to "give further information against Neil Chidiac which he did". Mr Taciak states that "George … received a reward" for doing so. He opined that the information supplied by George concerning Mr Chidiac was false information and that at the time of Mr Chidiac's trial the AFP was aware of his whereabouts.
4. There was also supplied an unsigned statement from "George" prepared some time around November 2003. The origins of the statement are explained by an affidavit from a private investigator sworn on 14 November 2003. The investigator explained that the statement was prepared following a conference between a senior barrister, acting for Mr Chidiac, and George. He said the statement was then amended in accordance with instructions from George but he was not willing to sign it.
5. In his unsigned statement George recalled being been told by Mr Taciak that it was believed that Mr Chidiac "was involved in drugs" and he was asked to verify this. He said that he made inquiries and was told that Mr Chidiac was a "very smart man and could be the mastermind of Sam [Helias]". George stated that he was then requested by the Detective Inspector to make a statement implicating Mr Chidiac as a drug dealer. The statement records that he refused, telling the detective "I do not believe that it was true".
6. Mr Chidiac's submissions in support of the application contended that from this material it was possible to "infer that questionable dealings" were behind the Crown's refusal to identify "George" at the trial and call him as a witness. It was also contended that it is clear that the information that George supplied to the AFP and which lead to the charge against Mr Chidiac was false and that "serious questions must be asked about the methods and practices employed during the AFP investigation". Finally it was contended that, instead of there merely being a basis for drawing a Jones v Dunkel inference against the Crown by reason of the failure to call George, in light of George's statement, there was and is a basis for a much stronger inference, namely that if George had been called at the trial he would have exonerated Mr Chidiac.
7. I note four matters in relation to this issue.
8. First, in contrast to the practice prevalent at the time of Mr Chidiac's trial, the current approach is that where the Crown does not call a material witness whom it would be expected to call, that does not warrant the drawing of adverse inferences in respect of its case as per Jones v Dunkel. Instead it is treated as a matter relevant to "whether the jury … should entertain a reasonable doubt about the guilt of the accused" (Mahmood v Western Australia (2008) 232 CLR 397 at [27]). However nothing in this matter turns on this.
9. Second, to the extent that the submissions in support of this application invite speculation about "questionable dealings" by the AFP in handling George then the invitation must be rejected. Even if I had held some suspicions or misgiving about police conduct that is not the same as having the requisite sense of unease about a particular conviction.
10. Third, the Crown contended that the unsigned statement from George is not evidence at all as it is unsigned. This echoes a repeated theme of the Crown's submissions concerning the alleged inadequacy of the unsworn form of the material provided in support of this application, much of it being either interviews or statements and not affidavits. That may be so but generally all fresh material set out in statements provided in support of these applications including affidavits is "hearsay". Nevertheless it can and must be considered and given the appropriate weight (see [18]). For the purposes of this application, the affidavit from the investigator provides a sufficient basis for concluding that George told the investigator and the senior barrister what is set out in the unsigned statement. That said, the statement of George is inconsistent with the statement provided by Mr Taciak. Mr Taciak states that George provided information implicating Chidiac whereas George states that he only provided an initial assessment that Chidiac might be the controller of Helias and claims to have otherwise told them that Chidiac was not involved. The statement of Mr Taciak tells against the third submission noted in [64]. His statement suggests that if George had been called to Mr Chidiac's trial he would, or at least might, have implicated Mr Chidiac (although Mr Taciak's personal opinion was that that would have been false).
11. Fourth, Mr Taciak's statement suggests that there may have been a proper reason for not calling George at the trial, namely that he had clearly been involved in criminal conduct and there was reason to believe he would not be a witness of truth. However, no such explanation appears to have been provided to the trial judge and the decision not to call him was not explained by the Crown in its submissions in support of this application either. The fact that the investigating detective inferred that he was not to make inquiries in relation to George, and that the detective did not make these enquiries, is troubling.
12. The end result is that there was an unjustifiable and admitted failure by the investigating detective to make inquiries into a person he believed to be the organiser of the relevant conspiracy, and there was and is, an unexplained failure by the Crown to call that person as a Crown witness. Moreover material has now been provided, albeit relatively weak hearsay, that is capable of suggesting that the witness could have exonerated Mr Chidiac and did tell one investigating detective that he was innocent. The potential significance of this relevant to the satisfaction of the statutory test is addressed below.

Conclusion

1. Leaving aside the evidence of Messrs Oti and Kwalu, there are undoubtedly some aspects of Mr Chidiac's conduct in 1985 that arouse suspicion. Mr Chidiac employed Helias who was clearly involved in the drug importation ring. He travelled to Honiara and, at Helias' suggestion, met with Oti who also was involved in drug importation. If Mr Chidiac was not involved in the importation of drugs then Mr Helias was incurring a very significant risk in having his employer meet one of his drug contacts, especially someone as unreliable as Oti.
2. However of itself this material was and is not capable of supporting Mr Chidiac's conviction. At best it constitutes objective facts consistent with Oti and Kwalu's account. While the evidence concerning the existence of the pager contract may have been the "strongest" piece of corroborative evidence against Mr Chidiac (see [28]) that is not much of an achievement in Mr Chidiac's case. Oti only implicated Mr Chidiac after he was arrested for another offence. There are a number of means by which Oti could have obtained his pager contact details in the meantime.
3. The case against Mr Chidiac rested exclusively on the testimony of two confessed criminals and perjurers, namely Messrs Oti and Kwalu. The guilty verdict was sustained by the need to give appropriate deference to the undoubted advantage the jury enjoyed in hearing their evidence and observing it being delivered (see [31]). However, at this point the strength of that deference is diminished because, while Oti admitted at the trial that he had lied, he did not admit, as he has since, that he lied about Mr Chidiac's involvement.
4. I have been provided with evidence that Oti has twice retracted claims of Mr Chidiac's involvement. While I have misgivings about a number of aspects of the statements he made in the 1994 interview and the 1997 interview, those misgivings only reinforce the concerns about his evidence at the trial implicating Mr Chidiac. In light of that material there are strong reasons to doubt whether any reasonable tribunal of fact, properly instructed, could act on any aspect of his evidence implicating Mr Chidiac even with the three items of corroborative evidence identified by McHugh J in Chidiac. That evidence and the evidence of Oti and Kwalu had a reinforcing quality about it, but that only means that undermining one part has the potential to affect the force of the rest. The Crown case was weak and once a substantial part of it is diminished, namely Oti's testimony, the remainder loses some, and perhaps much, of its force.
5. In many other cases the mere fact that an important Crown witness recants will not of itself give rise to the requisite sense of unease about the conviction. There are many reasons why a witness may recant. However, in this case, even if one does not accept the veracity of Oti's retractions, it only highlights the fragility of a conviction that depended upon his evidence. An already weak case has been weakened further. In the end result I am left with a sense of "unease or a sense of disquiet" in relation to the conviction (see [16]). I consider that there does appear to be a doubt about Mr Chidiac's guilt within the meaning of s 79(2) of the Review Act.
6. Of itself the circumstances surrounding the failure to call George and the limited material that has been obtained concerning him since does not lead me to have the requisite sense of unease about Mr Chidiac's conviction. However it should not be considered alone. It provides some additional support for my conclusion that the requisite doubt has been established.
7. This application has been made more than 20 years after Mr Chidiac's conviction. Notwithstanding the conclusion in [75], I considered whether to decline to make any order under s 79(1) of the Review Act by reason of the delay in the making of this application. I will not do so for three reasons. First, the Crown did not make any submissions to that effect. Second, I have already noted that Mr Chidiac made an application to this Court in 1996 but no record of it having been determined can be found. There is a real potential for injustice to refuse this application where a previous application was not determined. Third, the effects of delay can be considered by the Court of Criminal Appeal or any judicial officer to whom the matter is referred. In particular, if the effect of delay is such that a particular matter cannot be properly investigated then presumably that would tend to support the maintenance of the conviction rather than undermine it.
8. Accordingly, pursuant to s79(1)(b) of the Review Act, I refer the whole of Mr Chidiac's case for review of his conviction to the Court of Criminal Appeal.

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