Chidiac v The Queen

High Court of Australia|1991-03-01|Before: McHugh JJ, Meagher J, Loveday J

High Court of Australia Mason C.J. Dawson, Toohey, Gaudron and McHugh JJ. Chidiac v The Queen [1991] HCA 4

ORDER Grant to the applicant Asfour an extension of time in which to apply for special leave to appeal. Applications for special leave to appeal refused.

Each applicant was convicted of conspiring with the other and with three named persons and others to import into Australia prohibited imports to which s. 233B of the Customs Act 1901 Cth applied, being narcotic goods consisting of a quantity of heroin not less than the trafficable quantity. The New South Wales Court of Criminal Appeal (Gleeson C.J., Meagher J.A. and Loveday J.) dismissed appeals against those convictions. The applicants now seek special leave to appeal against the dismissal of the appeals on two broad grounds. The first principally concerns deficiencies in the trial judge's directions about corroborating evidence. The second ground is that the convictions were unsafe or unsatisfactory, though this ground was advanced principally by Chidiac.

The Crown case depended very largely upon the evidence of two accomplices, Alfred Oti and Wilson Kwalu. The Crown case was that Oti and Kwalu lived in the Solomon Islands, Oti being a senior officer in the Solomon Islands Customs Service, Kwalu being a relative of Oti and a taxi driver. There was evidence that on four specific occasions they were involved in the importation of drugs into Australia. On the last of these occasions the drug was positively identified as heroin and the evidence entitled the jury to conclude that the same drug was involved on the other three occasions.

It all began when a man known as "George" introduced himself to Oti and Kwalu in 1979 or 1980. He arranged with them that he would post drugs concealed in framed pictures to them in Honiara from Malaysia. They would collect the drugs and send them to Sydney. In 1984 George informed Oti that a parcel of drugs would be sent from Malaysia late in the year. Oti was to collect it and send it on to George in Sydney. George introduced Oti to Asfour by telephone and Asfour discussed drugs with Oti. The first importation into Australia occurred in November 1984 when Kwalu arrived in Brisbane with packages of powder taped to his legs. He gave evidence that Asfour and George met him at the airport and that they then travelled by bus to Sydney, the packages having been placed in a briefcase carried by George or Asfour. Kwalu was paid by Oti for his part in this venture with funds sent from Sydney after Kwalu returned to Honiara.

The second importation was initiated in the following month when George contacted Oti and arranged for drugs to be brought to Sydney. In February 1985 Oti flew from Honiara with packages and delivered them to George and another man said to be George's brother. There were telephone communications between Asfour and Oti. On George's instructions, Oti falsely told Asfour the shipment had been delayed. Asfour later complained that he had been misled in this respect by Oti.

In or about the month of May 1985, according to the evidence of Oti, George telephoned him from Sydney and said he would be sending someone named Sam to the Solomon Islands to discuss further deliveries. Later George telephoned Oti to tell him that Neil, not Sam, would be coming. Neil is the given name of Chidiac.

According to Oti, Chidiac arrived at the Hotel Mendana in the Solomon Islands with his family and a meeting took place between Chidiac, Oti and Kwalu. At the meeting they discussed the importation into Australia of further shipments of drugs. At this meeting Chidiac gave Oti the telephone number of "Voice Call", a paging service to which Chidiac subscribed in Sydney. Shortly after, Chidiac and his family returned to Australia. Subsequently George telephoned Oti concerning a shipment.

The third importation followed that meeting, in July 1985. Kwalu flew via Port Moresby to Brisbane with packages of powder taped to his body and legs. He telephoned George and then received a telephone call from Asfour. On the next day Kwalu travelled by bus to Sydney where he was met by Asfour and subsequently joined by a man named Sam (Samir Helais). Helais was a bookmaker's clerk employed by Chidiac who was himself a bookmaker. Kwalu went with Asfour to his house where he gave the packages to Asfour who divided the powder between himself and Helais.

The fourth importation resulted in the arrest of Oti. He pleaded guilty to a charge of importing heroin and was sentenced to twenty years imprisonment with a minimum term of ten years.

It is common ground that Oti and Kwalu were unsatisfactory witnesses. As Gleeson C.J. pointed out, they admitted having told lies, having told lies on oath and having changed their stories from time to time. On their own account they had personally engaged in drug running. In the case of Oti, this had resulted in his receiving a heavy sentence on his conviction. Both Oti and Kwalu were given an indemnity against prosecution.

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 very 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.

Despite his unflattering description of the Crown's two principal witnesses, the jury convicted.

The concession on appeal that there was corroborating evidence and the nature of that evidence

In the Court of Criminal Appeal, counsel for the applicants conceded that there was evidence capable of corroborating the evidence of the two principal Crown witnesses. In the case of Chidiac, he admitted in his unsworn statement that he had met Oti in Honiara. He explained the meeting by saying that he attended a social function at which he announced that he was going on holiday to the Solomon Islands, as a result of which Helais, who he acknowledged was his clerk, made arrangements for him to meet Oti when he arrived there and a meeting took place, but there was no discussion of drugs. He admitted telephoning Helais from Honiara but said that it was merely to inform Helais that he had met Oti. Also implicating Chidiac was Oti's evidence that he had made telephone calls to a "Voice Call" number which operated as a paging service. There was independent evidence that Chidiac was a client of "Voice Call". Chidiac denied that he subscribed to "Voice Call" at the material times but admitted that he was a subscriber shortly afterwards. On the evidence it was open to the jury to find otherwise.

In the case of Asfour, Oti gave evidence in relation to the drug importations of telephone conversations between himself and a person whom he subsequently identified as Asfour. The police found a notebook belonging to Asfour during a search of his residence. This notebook contained Oti's telephone numbers at home and at work. There was also independent documentary evidence of telephone calls made to Asfour's telephone number in Sydney from Oti's home and work numbers in Honiara and vice versa.

In his unsworn statement Asfour denied any acquaintance with Oti. He offered no explanation for the presence of the telephone numbers in his notebook and denied making telephone calls to Honiara. Asfour said that his girlfriend's brother, who is the person known as "George", had access to his flat and would often use his telephone to make long distance calls. Asfour did admit travelling to Brisbane with George in November 1984, meeting Kwalu in Brisbane and returning to Sydney by bus with George and Kwalu. He proffered the unlikely explanation that George had invited him on a bus trip from Sydney to Brisbane and back and that Asfour and his girlfriend had taken the trip as some sort of short holiday.

In the Court of Criminal Appeal the applicants contended that the trial judge failed to explain to the jury what evidence might constitute corroboration, that he failed to direct them that the evidence of one accomplice could not corroborate that of the other and that he failed to distinguish between evidence capable of constituting corroboration and evidence which the jury, as judges of fact, might conclude amounted to corroboration. The Court rejected these contentions, pointing out that the trial judge had drawn the jury's attention to the corroborating evidence to which I have referred, other than Chidiac's telephone call from Honiara to Helais and the telephone numbers in Asfour's notebook, though he did not describe the evidence as "corroborating evidence" and referred to it only indirectly by the terms "objective fact" and "independent evidence". By "objective fact" he meant the meeting at Honiara and by "independent evidence" he meant the documentary evidence concerning the telephone calls to and from Asfour's number.

The Court also pointed out that at the trial no application for redirections was made concerning the particular matters which were capable of corroborating the evidence of Oti and Kwalu. The Court concluded that it was not a case in which leave should be granted under r. 4 of the Criminal Appeal Rules (N.S.W.) to raise the point on appeal and went on to say that the directions given were sufficient and the failure to elaborate did not result in any miscarriage of justice. The Court considered that the terms of the summing up made it clear that the evidence of one accomplice could not corroborate that of the other. Again, no redirection had been sought on this point.

Before turning to the way in which the Court of Criminal Appeal dealt with the ground that the convictions were unsafe or unsatisfactory, it is convenient to deal very shortly with the argument presented to this Court in support of the applications for special leave to appeal so far as it related to the issues concerning corroboration. On that ground I would be content to dismiss the applications on the footing that the decision of the Court of Criminal Appeal was correct were it not for the fact that a review of the corroborating evidence is of assistance in disposing ultimately of the argument that the verdict was unsafe or unsatisfactory. The contention that there was an absence of corroborating evidence is utterly without merit. It was not raised in the Court of Criminal Appeal; indeed, it was conceded in that Court. In this situation it should not have been ventilated in this Court.

In any event, it is plain from the evidence, as I have recounted it, that there was ample evidence to corroborate the testimony of the two accomplices. Chidiac admitted contacting Oti and meeting him in Honiara. He was closely associated with Helais. The jury was entitled to reject, and should be taken to have rejected, the innocent explanation of the meeting in Honiara and Chidiac's statement of his reason for telephoning Helais from Honiara. The fact of the meeting and its initiation by Chidiac, in light of the Crown case that it was not for an innocent purpose, confirms Chidiac's participation in the guilty enterprise in a material particular. In addition, there was the fact that Oti gave the telephone number of Chidiac's "Voice Call" paging service, the jury being entitled to find that he was a subscriber at the relevant time.

Asfour, on the other hand, had an admitted association with George and Kwalu. Although Asfour offered an innocent explanation of the trip from Sydney to Brisbane, the jury was quite entitled to reject it; indeed, it would be surprising if they had not done so. There was the independent evidence of telephone calls from Asfour's number to those of Oti in Honiara and vice versa and Asfour's notebook containing Oti's telephone numbers in Honiara. The jury was entitled in these circumstances to regard the fact of George's access to Asfour's telephone as having no significance.

The submission that the trial judge failed to direct the jury that the evidence of one accomplice could not corroborate that of the other is again utterly without merit. The Court of Criminal Appeal was right in saying that the trial judge spoke of the need to look for evidence corroborating that of the two accomplices and drew attention to the failure to seek a redirection on the point. It is inconceivable that this Court would grant special leave to enable this point to be agitated.

The submission that the trial judge should have more precisely identified the evidence which was capable of corroborating that of the accomplices and should have explained the nature of corroborating evidence has slightly more merit. His Honour should have spelled out more precisely than he did the evidence to which he referred as "objective fact" and "independent evidence" respectively, identified the rest of the corroborating evidence or evidence capable of corroborating, and explained how the jury might have used it. But, when all is said and done, the trial judge did enough to bring to the attention of the jury the evidence to which he referred as "objective fact" and "independent evidence", and he did so in a context in which the jury would have understood the evidence to be evidence capable of corroborating that of the accomplices, if it were accepted. Above all, the judge's warning to the jury and his stern criticism of the accomplices' evidence made it very clear that the jury should be looking for corroboration. The absence of an application for redirections on this point was significant. If it had been made, the trial judge might well have focussed upon the evidence in detail, including some corroborating evidence to which he did not advert, to the disadvantage of the applicants. That was a risk which would have deterred counsel from making an application. The Court was right to refuse leave under r. 4.

The submission that the convictions were unsafe or unsatisfactory

The challenge made by the applicants to the convictions on the ground that they were unsafe or unsatisfactory is not disposed of quite so easily. The Court of Criminal Appeal dealt with this ground as follows:

The great difficulty of the appellants in relation to this submission is the very emphasis placed by the learned trial judge in his summing-up on the problems relating to the credibility of the principal Crown witnesses. If ever there was a case in which the jury had their attention well and truly directed towards such problems of credibility, this is it. The features of the Crown case which are said to make the jury's verdict unsafe and unsatisfactory all relate to the matter of the credibility of the principal Crown witnesses. That is a jury question and in the present case it is a question concerning which the jury were given what must be said to be at the very least an ample opportunity to apply their minds to the problems standing in the way of a resolution of the issues of fact in favour of the Crown. Once the jury decided, as they were entitled to do, that they could place sufficient reliance upon the evidence of Oti and Kwalu, then there was an abundance of evidence of guilt of the accused. In this Court, Mr. Bennett Q.C., for Chidiac, submits that there was an error of principle on the part of the Court of Criminal Appeal in failing to apply the tests laid down in Chamberlain v. The Queen [No. 2] [26] and Morris v. The Queen [1] . According to Mr. Bennett, the Court erred in failing to assess the persuasiveness or reliability of the testimony of the accomplices, concluding that the persuasiveness and reliability of their testimony was exclusively a matter for the jury, once the trial judge had warned them about the desirability of corroboration and pointed to the unsatisfactory nature of that testimony. 1. (1984) 153 C.L.R. 521, at p. 531. 2. (1987) 163 C.L.R. 454, at pp. 461, 472-473.

The exercise of the jurisdiction to set aside a conviction on the ground that it is unsafe or unsatisfactory

The jurisdiction of the Court of Criminal Appeal to set aside a conviction under s. 6(1) of the Criminal Appeal Act 1912 NSW extends to cases in which in all the circumstances the Court is of opinion that the verdict of guilty is unsafe or unsatisfactory. It may not much matter whether the jurisdiction to set aside the conviction on this ground stems from that part of s. 6(1) which speaks of the Court being of opinion that the verdict of the jury is "unreasonable, or cannot be supported, having regard to the evidence" (as to which see Hayes v. The Queen [2] ; Chamberlain [No. 2] [3] ) or that part of the sub-section which refers to the Court being of opinion "that on any other ground whatsoever there was a miscarriage of justice" (see Davies and Cody v. The King [4] ; Ratten v. The Queen [5] ; Chamberlain [No. 2] [6] ) or both: see Morris [7] .

(1973) 47 A.L.J.R. 603, at pp. 604-605. 2. (1984) 153 C.L.R., at pp. 532, 604. 3. (1937) 57 C.L.R. 170, at p. 180. 4. (1974) 131 C.L.R. 510, at p. 516. 5. (1984) 153 C.L.R., at pp. 618-620. 6. (1987) 163 C.L.R., at pp. 472-473.

It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted: Whitehorn v. The Queen [8] ; Chamberlain [No. 2] [9] ; Morris [10] . In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused: Whitehorn [11] ; Chamberlain [No. 2] [12] ; Morris [13] Or, to put it another way, it is for the court to decide whether, on the relevant evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt: Morris [14] . The appellate court does not discharge its responsibility by finding that there was evidence sufficient to entitle the jury to convict because a verdict may be unsafe or unsatisfactory when there is a sufficiency of evidence for that purpose: Chamberlain [No. 2] [15] ; Morris [16] .

(1983) 152 C.L.R. 657, at pp. 660, 686. 2. (1984) 153 C.L.R., at pp. 532, 601, 604, 618-619. 3. (1987) 163 C.L.R., at pp. 461, 473. 4. (1983) 152 C.L.R., at p. 686. 5. (1984) 153 C.L.R., at pp. 534, 606-608. 6. (1987) 163 C.L.R., at p. 461. 7. (1987) 163 C.L.R., at pp. 472-473. 8. (1984) 153 C.L.R., at p. 531. 9. (1987) 163 C.L.R., at p. 473.

In deciding whether the jury, acting reasonably, should have entertained a reasonable doubt, it is the duty of the appellate court to make an independent assessment of the evidence: Ratten [17] ; Chamberlain [No. 2] [18] ; Morris [19] . In making that assessment, the court must necessarily take into account the nature and quality of the evidence, as this Court did in Morris, when it set aside the conviction as being unsafe or unsatisfactory because it proceeded upon the jury's evident acceptance of an admission of guilt which, in the opinion of the Court, was unreliable.

(1974) 131 C.L.R., at pp. 515-516. 2. (1984) 153 C.L.R., at p. 534. 3. (1987) 163 C.L.R., at pp. 463, 473.

The constitutional responsibility of the jury to decide upon the verdict and the advantage which the jury enjoys in deciding questions of credibility by virtue of seeing and hearing the witnesses impose some restraints upon the exercise of an appellate court's power to pronounce that a verdict is unsafe. I use the word "unsafe" as sufficient on its own to designate the basis on which the court exercises its jurisdiction when no procedural irregularity has been established, though I acknowledge that "unsafe or unsatisfactory" may be a composite expression: see Devlin, The Judge (1979), p. 158. It is not the function of the court to substitute itself for the jury and re-try the case. Nor is it for the court to decide whether a verdict is against the weight of evidence. Rather, it is for the court to determine whether there is a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof: Chamberlain [No. 2] [20] . As this Court said in Davies and Cody [21] , with reference to the English Court of Criminal Appeal:

[I]t will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled. This is the basis upon which the English court has set aside convictions resting upon identification conducted in an unfair or unsatisfactory manner. 1. (1984) 153 C.L.R., at pp. 618-619. 2. (1937) 57 C.L.R., at p. 180.

In resolving that question the court must necessarily recognize that issues of credibility and reliability of oral testimony are matters for the jury. For that reason, if for no other, an appellate court will infrequently set aside a conviction as being unsafe because the evidence of a vital Crown witness lacked reliability or credibility. Nonetheless, occasions do arise when a jury proceeds to a conviction when the Crown case rests upon oral testimony which is so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused's guilt to the required degree. Then the appellate court must discharge its responsibility to set aside the conviction as one which is unsafe. When that happens the court is not substituting its view of credibility for that of the jury; the court is giving effect to its conclusion that, notwithstanding the jury's apparent willingness to accept the particular witness or witnesses as credible, the evidence was, having regard to its nature and quality, insufficient to satisfy a reasonable jury of the accused's guilt according to the criminal standard of proof.

Convictions based upon certain categories of testimony which the law has traditionally regarded with great caution provide compelling illustrations of the exercise of this jurisdiction. Thus, the courts have set aside as being unsafe convictions based upon unsatisfactory evidence of identification or the uncorroborated evidence of sexual complainants and accomplices, notwithstanding that the judge has cautioned the jury in appropriate terms about the risk of acting upon the evidence or acting upon the evidence unless it is corroborated, as the case may be. The instances in which this jurisdiction has been exercised are, of course, cases in which there was sufficient evidence to go to a jury to entitle it to bring in a verdict of guilty where nonetheless the quality of the evidence was not such as, in the opinion of the appellate court, to establish the guilt of the accused beyond reasonable doubt, after taking into account the jury's assessment of the credibility of the witnesses based on the advantage which it had in seeing and hearing them.

The second sentence in the passage which I have already quoted from Davies and Cody [22] is certainly not to be taken as an assertion that convictions are not set aside as being unsafe or unsatisfactory, in so far as they rest upon identification evidence, unless the identification has been conducted in an unsatisfactory manner. The second sentence merely serves to identify one category - the relevant category for the purpose of the discussion which followed subsequently in the Court's judgment in Davies and Cody - of cases which fall within the very wide expression of principle in the first sentence of the passage quoted. Because experience teaches us that evidence of identification given by a witness who has a very limited opportunity to see the accused person is very often unreliable, an appellate court is occasionally confronted with the necessity of setting aside convictions based upon the apparent acceptance of that evidence by a jury, in circumstances where there has been no irregularity in identification procedures and the jury has been adequately warned by the trial judge: see Reg. v. Smith [23] (where the identification evidence was described by Street C.J. as "far from convincing" so that his Honour was able to say that "it seems at least possible that the jury may not have apprehended the full extent of the warning" [24] ). See also, for the purpose of comparison, Reg. v. Cooper (Sean) [25] ; Reg. v. Turnbull [26] ; Pope [27] (all being decisions under the Criminal Appeal Act 1968 UK in which the "lurking doubt" test has been applied, a test which has not been accepted in Australia).

(1937) 57 C.L.R., at p. 180. 2. [1979] 2 N.S.W.L.R. 304. 3. [1979] 2 N.S.W.L.R., at pp. 309-310. 4. [1969] 1 Q.B. 267. 5. [1977] Q.B. 224. 6. (1986) 85 Cr. App. R. 201.

Likewise, in Australia, England and New Zealand, appellate courts have set aside convictions as being unsafe in some circumstances where the jury, having been properly warned, has acted upon the uncorroborated evidence of an accomplice or complainant in a sexual case: Ralph and George [28] ; Hart [29] ; Dent [30] ; Reg. v. Sutherland [31] . Ralph and George is a good example. The jury, having been properly warned, convicted in the absence of corroborating evidence on the testimony of an accomplice who had a bad character, had been convicted of serious drug dealing offences and was a liar and perjurer. The Court of Criminal Appeal set aside the conviction as being unsafe or unsatisfactory, having reached the conclusion that the quality of the accomplice's evidence was necessarily unacceptable in the absence of corroboration. In the course of their joint judgment, Yeldham and Allen JJ. made this statement [32] , with which I entirely agree:

[T]here are cases, no doubt rare (and this is one of them) where the credibility of the accomplice whose evidence is uncorroborated is such that, even though it was in theory open to the jury to accept it, to allow a verdict based solely upon it to stand would be unsafe or unsatisfactory and may well lead to a miscarriage of justice. 1. (1988) 37 A. Crim. R. 202. 2. (1914) 10 Cr. App. R. 176. 3. (1943) 29 Cr. App. R. 120. 4. [1953] N.Z.L.R. 676. 5. (1988) 37 A. Crim. R., at p. 210.

It has been suggested that the examples of the exercise of the jurisdiction to which I have referred, as with convictions which are based upon the prior out-of-court statement of a witness (see Son Hoang Nguyen [33] ; Reg. v. Parkinson [34] ) are all instances of appellate intervention where the evidence has a special character such that a jury must treat it with particular caution. So much may be conceded. But there is no foundation in principle for confining the jurisdiction of a court of criminal appeal to set aside a conviction because it is, in the opinion of the court, unsafe to cases of this kind. I am, of course, speaking in the context of cases where no procedural irregularity is established. The imposition of such a limitation on the appellate jurisdiction would be arbitrary, bereft of any support in the language of the statutes and inconsistent with the authority of the decisions of this Court, notably Davies and Cody, Hayes and Ratten . In this respect it is significant that, in Fuller and Slater [35] , the New South Wales Court of Criminal Appeal would have been prepared to set aside convictions for murder on the basis that the evidence of five witnesses was intrinsically unworthy of credence but for the existence of some evidence not affected by any inconsistency. As it was, a conviction for manslaughter was substituted.

(1988) 38 A. Crim. R. 180. 2. [1990] 1 Qd R. 382. 3. (1982) 6 A. Crim. R. 424.

The critical question then is whether, in the present case, the Court of Criminal Appeal discharged its responsibility to exercise the jurisdiction conferred upon it by s. 6(1). If the passage which I have quoted from the judgment of the Court of Criminal Appeal were to be viewed in isolation, I would be inclined to the view that their Honours proceeded according to an overly narrow view of their jurisdiction. They seem to be saying that the fundamental issues raised questions of credibility on which the jury had the benefit of instructions which were adequate and favourable to the applicants. Furthermore, the absence of a detailed discussion of the evidence available to corroborate the testimony of Oti and Kwalu might appear to confirm the claim that their Honours failed to make an independent assessment of the evidence.

However, it is necessary to bear in mind that it was conceded in the Court of Criminal Appeal that there was corroborating evidence. That would account for the absence of a review of that evidence and an assessment of its scope and cogency. No doubt the challenge to the convictions as being unsafe was allied to the other submissions concerning corroboration which the Court had examined at greater length. That in turn would account for the comparatively summary treatment which the challenge received at the hands of their Honours. After all, once it was conceded that there was corroborating evidence, in the circumstances of this case guilt or innocence turned on the jury's assessment of the credibility of Oti and Kwalu. And the Court of Criminal Appeal was right in recognizing that it was such a case. For my part, I have no hesitation in saying that there was significant evidence corroborating the applicants' guilt so that it was a clear case in which the jury, acting reasonably, was entitled to accept Oti and Kwalu and be satisfied of the applicants' guilt to the requisite degree. Accordingly, I am not persuaded that in this respect there was any error of principle on the part of the Court of Criminal Appeal.

In the result, notwithstanding that I have found it necessary to discuss a question of principle in order to arrive at the conclusion that the Court of Criminal Appeal did not err, I would refuse both applications for special leave to appeal.

Both applicants seek special leave to appeal against their conviction for conspiring to import into Australia not less than a trafficable quantity of heroin. They were alleged to have conspired with each other and with Samir Helais, Alfred Oti, Wilson Kwalu and divers other persons. Each was sentenced to twenty years' imprisonment with a minimum term of fourteen years.

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 1,000 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 $1,000 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.

Both applicants made unsworn statements. Chidiac denied any knowledge of George and said that he had never met Kwalu in his life. He admitted that Helais was his clerk. He also admitted that he had met Oti in Honiara, but said that he met him at the suggestion of Helais who, when he learnt that Chidiac was travelling to Honiara as a tourist, gave him Oti's name as someone who might help him to get around and tell him something about the island. He admitted that he gave Oti $20 on two occasions to buy drinks but denied any discussion about drugs. He said that he did not involve himself with Oti because the latter appeared to have a drinking problem. Chidiac admitted having contacted Helais from Honiara but said it was to tell him about Oti. He denied ringing Oti from Sydney and denied sending money to him. He admitted being a subscriber to a paging service, but said that he did not become a subscriber until November or December 1985.

Asfour admitted travelling to Brisbane with George in 1984 and meeting Kwalu. He admitted that they returned to Sydney by bus with Kwalu. He said that he had no further contact with Kwalu and denied receiving any drugs from him. Asfour denied having had any contact with Oti. He said that George had access to his home and used his telephone.

During the trial the credibility of both Oti and Kwalu was vigorously attacked by defence counsel and a number of discrepancies and inconsistencies emerged. Both admitted having told lies to the police and having told lies on oath. In his summing up to the jury the trial judge warned them:

The grounds upon which special leave is sought are that the verdict of the jury was unsafe and unsatisfactory and that the trial judge failed to give an adequate direction concerning corroboration of the evidence of Oti and Kwalu. It was conceded before the Court of Criminal Appeal that there was evidence capable of amounting to corroboration. It should be added that the extent of the corroborative evidence had an obvious bearing upon the reliability of the evidence of Oti and Kwalu.

The Court of Criminal Appeal dealt shortly with the submission made to it that the verdict of the jury was unsafe and unsatisfactory. Gleeson C.J., with whom the other members of the Court agreed, said:

It is clearly established by authority that, in determining whether the verdict of a jury is unreasonable, or cannot be supported having regard to the evidence - whether it is unsafe or unsatisfactory - the test is whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty: Whitehorn v. The Queen [36] ; Chamberlain v. The Queen [No. 2] [37] ; Morris v. The Queen [38] ; Carr v. The Queen [39] . If upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory. The test to be applied by a court of criminal appeal in this country is not, as it is said to be in England under a somewhat different statutory provision, a subjective one: "whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done"; nor is the court to proceed upon "a reaction which may not be based strictly on the evidence as such a reaction which can be produced by the general feel of the case as the court experiences it": seeReg. v. Cooper (Sean) [40] ; Stafford v. Director of Public Prosecutions [41] . It was observed in Whitehorn [42] , that "[w]ide as the powers of an Australian court of criminal appeal are, they do not, under the legislation which prevails in this country, empower a court to set aside a verdict upon any speculative or intuitive basis".

(1983) 152 C.L.R. 657, at pp. 660, 686. 2. (1984) 153 C.L.R. 521, at pp. 534, 607. 3. (1987) 163 C.L.R. 454, at pp. 461-462, 472, 478-479. 4. (1988) 165 C.L.R. 314, at pp. 330-334. 5. [1969] 1 Q.B. 267, at p. 271. 6. [1974] A.C. 878, at p. 892. 7. (1983) 152 C.L.R., at p. 689.

The test is not whether the court itself entertains a reasonable doubt, although that will very often amount to the same thing, but whether a reasonable jury was bound to do so. The difference is significant, because a court of criminal appeal must act upon that view of the facts which the jury was entitled to take, having seen and heard the witnesses. As Brennan J. said in Carr [43] : "An appellate court must itself consider the evidence in order to determine whether it was open to the jury to convict, but the appellate court does not substitute its assessment of the significance and weight of the evidence for the assessment which the jury, properly appreciating its function, was entitled to make."

A court of criminal appeal in considering whether a verdict is unsafe or unsatisfactory is concerned with a question of fact. It is not confined to the question whether there was any evidence to support the verdict, a question which has come to be regarded as a matter of law. Error of law is a separate ground for setting aside a verdict. But the question remains whether a reasonable jury must, upon the evidence, have entertained a reasonable doubt. The statement by Deane, Toohey and Gaudron JJ. in Morris [44] that "there might be verdicts falling within the concept of miscarriage of justice by reason of some defect or weakness of the evidence even though on the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt" is, taken out of context, too wide. But, as Brennan J. points out in Carr [45] , their Honours in the very next sentence correctly state the test, saying that "the question whether a verdict is unsafe or unsatisfactory involves a Court of Criminal Appeal undertaking an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused".

(1987) 163 C.L.R., at pp. 472-473. 2. (1988) 165 C.L.R., at p. 333.

It is in that light that the decision in Morris must be understood. In saying as they did [46] that "[a] Court of Criminal Appeal must make an independent assessment of the evidence, both as to its sufficiency and its quality", I do not understand Deane, Toohey and Gaudron JJ. to have been saying that a court of criminal appeal is entitled to substitute its view of the quality of the evidence for the view which the jury was entitled to take. Where the quality of the evidence depends upon the credibility of the witnesses, that would be to disregard the advantage enjoyed by the jury in having seen and heard the witnesses. What was meant, I think, was that there may be cases, perhaps relatively infrequent, where the quality of the evidence is such that no reasonable jury could have failed to entertain a doubt. Morris, it will be recalled, was a case in which the prosecution case depended almost entirely upon the confession of the accused who was a chronic alcoholic suffering from brain damage. This raised the possibility that his confession was the product of confabulation. The majority in Morris concluded that a reasonable jury must have doubted the reliability of the confession and, since there was no corroboration of its content, they must have doubted the guilt of the accused. The Court by a majority held that the Court of Criminal Appeal failed to give sufficient attention to this aspect of the case and so granted special leave and allowed the appeal.

A similar case was Ralph and George [47] in which the only evidence against the accused was that of an accomplice who was a convicted criminal, an admitted liar and perjurer and one capable of clever deception. His evidence was uncorroborated. The New South Wales Court of Criminal Appeal held that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. In so holding, the Court of Criminal Appeal was not substituting, as a mere matter of preference, its view of the quality of the evidence for another view open to the jury. It was determining, in the exercise of its appellate function, that no reasonable jury could, on the evidence, have failed to have a reasonable doubt. In that context, the observation in the judgment of Yeldham and Allen JJ. [48] , that "a verdict may be unsafe or unsatisfactory notwithstanding that there was evidence sufficient to entitle a reasonable jury to convict" may be ambiguous. It is true that their Honours add [49] : "The court must as well assess the quality of the evidence." But the function of a court of criminal appeal in making an assessment of the quality of the evidence is, as I have explained, necessarily a limited one and, even when it is required to exercise that function, the question which it must ask itself remains the same, namely, whether a reasonable jury must, on the evidence, have entertained a reasonable doubt. When a jury has been adequately instructed and there has been no procedural irregularity (including the wrongful rejection or admission of evidence) or misdirection of law or fact, that is the only question that can remain for a court of criminal appeal in determining whether the jury's verdict is unsafe or unsatisfactory. If it were otherwise, a court of criminal appeal would be assuming the function which is constitutionally entrusted to the jury.

(1988) 37 A. Crim. R. 202. 2. (1988) 37 A. Crim. R., at pp. 204, 209. 3. (1988) 37 A. Crim. R., at p. 204.

In Davies and Cody v. The King [50] , this Court drew attention to the fact that the Court of Criminal Appeal in England at that time had no power to order a new trial, but pointed out that it had taken no narrow view of its duty to quash a conviction when it thought that on any ground there was a miscarriage of justice. This Court went on [51] to observe of the English Court of Criminal Appeal:

It has consistently regarded that duty as covering not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled. This Court noted that the Supreme Court of Victoria was under a similar duty and it may be added that the same is true of other courts of criminal appeal in this country under the common appeal provisions which prevail. Davies and Cody was a case in which the evidence of identification was in question. I take the passage which I have set out to mean no more than that, in a case of that sort, the evidence of itself may be so inadequate that a reasonable jury could not fail to have a reasonable doubt or that the jury may have been misdirected or inadequately directed concerning the proper use which they might make of the identification evidence. Any of those events would amount to a miscarriage of justice. Indeed, in Davies and Cody itself, this Court held that, notwithstanding the adoption of an unsatisfactory mode of identification, there was sufficient evidence to support a conviction had a proper warning concerning its use been given to the jury. Accordingly, a new trial was ordered. 1. (1937) 57 C.L.R. 170, at pp. 179-180. 2. (1937) 57 C.L.R., at p. 180.

In this case, whilst the witnesses Oti and Kwalu admitted that the statements which they had made to the police and the evidence which they gave at the committal proceedings were untruthful in certain respects, the story which each told at the trial was essentially the same. Moreover, some of the discrepancies in their previous 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. They were natives of the Solomon Islands and were relatively unsophisticated. Their visits to Australia were brief. English was a second language only. They admitted that they had told untruths, but their cross-examination did not reveal any great aptitude for deception.

No real purpose would be served by a close analysis of the evidence given by Oti and Kwalu in this case because, unlike the evidence in cases such as Morris or Ralph and George, that evidence was corroborated in significant respects. For that reason, if for no other, the Court of Criminal Appeal were justified in reaching the conclusion that the jury were entitled to place sufficient reliance upon that evidence to provide proof of the guilt of the applicants.

Although Chidiac denied that he contacted Oti in Honiara for any purpose connected with drugs, he admitted that he did contact him. If the jury rejected the explanation given by Chidiac in his unsworn statement for that meeting, as they clearly did, it tended to implicate Chidiac in the subsequent drug running of which there was uncontradicted evidence. There was an admitted association between Chidiac and Helais and Chidiac admitted contacting Helais from Honiara. The telephone number which Oti gave in evidence was the number of Chidiac's paging service and, although the latter denied becoming a subscriber to that service until some time after the events in question, there was evidence upon which the jury could conclude that he was a subscriber at the earlier time. If the jury accepted that evidence, Chidiac's unsworn statement contained a deliberate lie. The prosecution also placed reliance upon the evidence that, following upon Chidiac's visit to Honiara, the colour of the powder arriving from Malaysia changed from pink to white. Kwalu was able to identify Chidiac during the trial, although Chidiac denied ever having met Kwalu.

There was an admitted association between the man named George and Asfour. Telephone records showed that calls were made from Asfour's home to Oti in Honiara both at his home and at work. George had access to Asfour's telephone, but a notebook in Asfour's possession contained Oti's telephone numbers in Honiara. Asfour admitted having met Kwalu in Brisbane and Helais was a common link between Asfour and Chidiac.

The Court of Criminal Appeal did not attempt an elaborate analysis of the evidence in their judgment. Nevertheless it is apparent that in the course of argument before them the evidence was examined at length. The Court concluded, correctly in my view, that a reasonable jury was not bound to find the evidence of Oti and Kwalu totally unreliable and, that being so, it was for the jury to determine those portions which they accepted and those which they rejected. Upon that basis, the jury acting reasonably were not bound to acquit the applicants: see Doney v. The Queen [52] .

The trial judge gave the jury a warning that it would be dangerous to convict upon the uncorroborated evidence of Oti and Kwalu, who were accomplices. Clearly the case called for such a warning. It was suggested before us that there was no evidence capable of amounting to corroboration, but, as I have already indicated, such a suggestion cannot be sustained. The real complaint which was made was that the trial judge failed to tell the jury that Oti and Kwalu, being co-conspirators, could not corroborate one another and that he failed to explain the nature of corroboration.

As to the first matter, the manner in which the trial judge questioned the credibility of both Oti and Kwalu must have made it plain to the jury that one could not corroborate the other. In saying that it would be "dangerous to convict on their evidence unless it is corroborated", the trial judge was clearly referring to the totality of their evidence and the need to look for corroboration elsewhere. Similarly, whilst the trial judge did not explain the term "corroboration", in the context of a summing up in which he referred to "an objective fact" and "independent evidence", it ought to have been apparent to the jury what the trial judge meant by the use of the term. In making those references, the trial judge indicated portions of the evidence which were capable of amounting to corroboration. When it is necessary or desirable to give the customary warning about the need to look for corroboration, it is preferable to give some explanation of what is meant. But "corroboration" is not a term of art and, whilst a formula such as is to be found in R. v. Baskerville [53] , may be both compendious and useful, it has been remarked more than once that an appropriate direction is better tailored to the particular circumstances of the case, without embarking upon a technical exposition: see Reg. v. Hester [54] ; Reg. v. Kilbourne [55] .

[1916] 2 K.B. 658, at p. 667. 2. [1973] A.C. 296, at pp. 309, 328. 3. [1973] A.C. 729, at pp. 740-741.

No doubt it would have been better had the learned trial judge given some direct explanation of what he meant by corroboration rather than leaving it to the jury to deduce the meaning from the rest of his charge, but his forceful criticism of the evidence of both Oti and Kwalu can hardly have left the jury in any doubt that they should look for confirmation of that evidence elsewhere. No redirection was sought at the trial and leave was required under r. 4 of the Criminal Appeal Rules (N.S.W.) to raise the matter before the Court of Criminal Appeal. Leave was refused, although the Court did go on to indicate that in their view there was no misdirection. Even if there were inadequacies in the trial judge's summing up on the question of corroboration - and I am not persuaded that, if there were, they amounted to a misdirection - they would not in the circumstances provide a sufficient ground for granting special leave to appeal: cf. Tripodi v. The Queen [56] . I would refuse special leave to appeal.

(1961) 104 C.L.R. 1, at pp. 10-11. Toohey J.

I agree, for the reasons given by Dawson J., that the Court of Criminal Appeal was right in its conclusion that the jury, acting reasonably, were not bound to acquit the applicants and was right in rejecting the applicants' argument that their convictions were unsafe or unsatisfactory. Special leave to appeal should therefore be refused in each case.

In so agreeing, I should not be taken as endorsing in their entirety his Honour's comments on what was said in Morris v. The Queen [57] . What was said in Morris, in the passages referred to, was intended only to assert that the concept of miscarriage of justice in the common appeal provisions in Australia may not be confined to cases in which the jury must have entertained a reasonable doubt as to the guilt of the accused. By those provisions, it is a miscarriage of justice that leads to the setting aside of the jury's verdict. If an appellate court considers that a conviction is unsafe or unsatisfactory, in the sense that upon the evidence the jury must have entertained a reasonable doubt, the verdict is set aside because "it must follow that it would be a miscarriage of justice to allow the verdict to stand": Chamberlain v. The Queen [No. 2] [58] . Whether there are other situations in which a jury's verdict may be set aside as giving rise to a miscarriage of justice is a matter which was not explored in Morris nor in the present applications. In particular, the Court was not asked to reconsider the reference in Davies and Cody v. The King [59] , to "some feature raising a substantial possibility that the jury may have been mistaken or misled", which three members of the Court in Morris saw as pointing to a defect or weakness of the evidence which might fall within the concept of miscarriage of justice even though, on the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt.

(1987) 163 C.L.R. 454, at pp. 472-473. 2. (1984) 153 C.L.R. 521, at p. 531. 3. (1937) 57 C.L.R. 170, at p. 180.

Certainly, nothing said in Morris, on the pages mentioned or elsewhere in the judgment of Deane J., Gaudron J. and myself, suggests that, in determining whether a conviction is unsafe or unsatisfactory in the sense explained in the preceding paragraph of these reasons, an appellate court may substitute its own assessment of the evidence for that of the jury. The independent examination of the evidence which the appellate court carries out is for the purpose of concluding whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused.

The facts are set out in the judgments of Mason C.J. and Dawson J. I agree with their Honours that the Court of Criminal Appeal of New South Wales was correct in rejecting the argument that the applicants' convictions are unsafe or unsatisfactory. I would make some observations on the nature of the question raised when it is contended that a conviction is unsafe or unsatisfactory.

The common criminal appeal provisions operating in this country do not speak of a conviction that is unsafe or unsatisfactory. That term is sometimes used to describe a conviction obtained in circumstances involving some defect in the summing up: see, for example, Carr v. The Queen [60] . More commonly it is used to describe a conviction obtained when it was not open to a jury to be satisfied beyond reasonable doubt as to the guilt of the accused or, as put by Dawson J. in the present case, if "a reasonable jury must, upon the evidence, have entertained a reasonable doubt": see Morris v. The Queen [61] .

(1988) 165 C.L.R. 314, at pp. 340, 345. 2. (1987) 163 C.L.R. 454, at p. 473.

A conviction that is unsafe or unsatisfactory in the sense that a jury must, upon the evidence, have entertained a reasonable doubt is one which must be set aside under the common criminal appeal provisions: see, e.g., Whitehorn v. The Queen [62] ; Chamberlain v. The Queen [No. 2] [63] ; and Morris. Such a conviction is one which, in terms of the common criminal appeal provisions, is "unreasonable, having regard to the evidence". It is also one which necessarily involves a miscarriage of justice so that, once a conviction has been characterized as unsafe or unsatisfactory, there is neither scope nor occasion for the application of the proviso to the common criminal appeal provisions. Thus, a conviction which is unsafe or unsatisfactory in the sense earlier indicated is also commonly and accurately described as one involving a miscarriage of justice. But the expression "miscarriage of justice" is not restricted to the situation in which a jury must, on the evidence, have entertained a reasonable doubt. That was the point of the statement in Morris [64] that "there might be verdicts falling within the concept of miscarriage of justice by reason of some defect or weakness of the evidence even though on the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt". The statement proceeded to refer, by way of illustration, to the situation recognized in Davies and Cody v. The King [65] , where "there is some feature raising a substantial possibility that the jury may have been mistaken or misled": see also McKay v. The King [66] .

(1983) 152 C.L.R. 657. 2. (1984) 153 C.L.R. 521. 3. (1987) 163 C.L.R., at p. 472. 4. (1937) 57 C.L.R. 170, at p. 180. 5. (1935) 54 C.L.R. 1, at p. 10.

The argument in the present applications raises no question of the kind considered in Davies and Cody and in McKay . It raises only the question whether the convictions are unsafe or unsatisfactory in the sense that, upon the evidence, the jury must have entertained a reasonable doubt. And that question is not raised, as in Morris, by reference to a claimed defect inherent in the nature or quality of evidence, thus requiring its independent evaluation. Rather, the question is raised by reference to the general issue whether particular witnesses were or were not to be accepted as witnesses of truth on the matters connecting the applicants with the offences charged. I agree with Dawson J., for the reasons that his Honour gives, that that limited question must be answered against the applicants.

The second question raised by the applications concerns the sufficiency of the direction given by the trial judge with respect to corroboration. It was said in Tripodi v. The Queen [67] that, in the circumstances of that case, that question did not constitute a sufficient ground for granting special leave to appeal. The circumstances of that case were similar to those involved in the present applications. However, the Judiciary Act 1903 Cth has since been amended to require this Court, when considering whether to grant special leave to appeal, to have regard to "whether the interests of the administration of justice, in the particular case, require consideration of the judgment to which the application relates": s. 35A(b). And, quite apart from that requirement, the frequency with which resort is now had to the evidence of informer-accomplices makes the question of the sufficiency of a direction as to corroboration one of considerable contemporary importance. Notwithstanding these matters, special leave to appeal must be refused because, in the circumstances of the present case, no miscarriage of justice was involved in the direction given.

Although it is usual practice for a trial judge to explain what is meant by corroboration and, in appropriate cases, to explain that one accomplice cannot corroborate the evidence of another accomplice, the critical requirement is that the jury be left in no doubt that it should look to see whether, elsewhere in the evidence, there is something that strengthens the evidence of the accomplices by confirming or tending to confirm the involvement of the accused in the events as related by them: see R. v. Baskerville [68] ; Reg. v. Hester [69] ; Doney v. The Queen [70] . Given the limited nature of the matters in issue and the trial judge's criticism of the evidence of the informer-accomplices, the directions given, even though not expressed in conventional terms, left no room for doubt that that was the task to be undertaken by the jury. Directions in the more conventional form could only have served to draw attention to the respects in which other evidence was capable of corroborating the evidence of the informer-accomplices. It is not surprising that further directions were not sought. The Court of Criminal Appeal was correct in refusing leave to the applicants to raise this issue in their appeals to that Court.

[1916] 2 K.B. 658, at p. 667. 2. [1973] A.C. 296, at p. 325. 3. (1990) 171 C.L.R. 207, at pp. 210-212.

Special leave to appeal should be refused in each case.

The facts and issues in these applications are set out in the judgments of Mason C.J. and Dawson J.

In New South Wales, the Court of Criminal Appeal must allow an appeal against conviction if the Court is:

of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, provided that the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred: Criminal Appeal Act 1912 NSW ("the Act"), s. 6(1). From its inception, the Court of Criminal Appeal has regularly set aside convictions on the ground that there has been a misdirection or non-direction (whether of fact or of law), an error in procedure, a wrongful rejection or admission of evidence or that, as a matter of law, the evidence was insufficient to support the verdict. Although these are the usual grounds upon which the Court of Criminal Appeal sets aside a conviction, its jurisdiction extends to any case where the Court concludes that, in all the circumstances, the conviction is unsafe or unsatisfactory. Moreover, the Court is entitled to conclude that a conviction is unsafe or unsatisfactory even though the evidence is sufficient, as a matter of law, to sustain the conviction and notwithstanding that there has been no misdirection or non-direction, error of law, or wrongful rejection or admission of evidence: see Chamberlain v. The Queen [No. 2] [71] ; Morris v. The Queen. [72] . If the Court of Criminal Appeal concludes that, on the evidence, a reasonable jury would have had a reasonable doubt about the guilt of the accused, the Court not only has the power but it also has the duty to set aside the conviction on the ground that it is unsafe or unsatisfactory. I say that the Court has the duty because I cannot conceive of a case where it would be appropriate for the Court to apply the proviso to s. 6(1) once it found that, on the evidence, a reasonable jury would have had a reasonable doubt about the guilt of the accused. 1. (1984) 153 C.L.R. 521, at pp. 532-533. 2. (1987) 163 C.L.R. 454, at pp. 461, 473.

In exercising the jurisdiction to set aside a conviction on the ground that the evidence is too unsafe or unsatisfactory to support the conviction, the Court must make an assessment of what it thinks a reasonable jury would have made of the evidence: cf. Ratten v. The Queen [73] ; Chamberlain [No. 2] [1] ; Morris [2] . In that respect, the Court's function differs from its function when it determines whether it should set aside a conviction on the ground that, as a matter of law, the evidence cannot sustain the conviction. In exercising the latter jurisdiction, the only question for the Court is whether there was evidence which could reasonably support the conviction if the jury accepted that evidence. But in exercising its jurisdiction to set aside a conviction on the ground that it is unsafe or unsatisfactory, the Court must itself examine the nature and quality of the evidence for the purpose of determining whether a hypothetical reasonable jury would have accepted sufficient of the evidence to be satisfied beyond reasonable doubt of the guilt of the accused. In exercising this extraordinary jurisdiction, the Court of Criminal Appeal has to be mindful of the great advantage which a jury has in seeing and hearing the witnesses. It must act on that view of the evidence which is most consistent with the conviction except to the extent that it is satisfied a reasonable jury would not have so acted. But unlike an appeal against a jury's verdict in a civil action, the Court is not bound to act upon that view of the credibility of the witnesses which is most consistent with the verdict of the jury. In an appropriate case, the Court is entitled to hold that, despite the jury's verdict, a reasonable jury would not have accepted the evidence of a particular witness or witnesses to the extent necessary to be convinced beyond reasonable doubt of the guilt of the accused. Thus, in Ralph and George [3] , the Court of Criminal Appeal set aside two convictions which depended upon the uncorroborated evidence of a convicted drug dealer who was an admitted liar and perjurer. The Court was of the opinion that, although the evidence, if accepted, was legally sufficient to convict the appellants, the nature and quality of that evidence made it unsafe or unsatisfactory to allow the convictions to stand.

(1974) 131 C.L.R. 510, at pp. 515-516. 2. (1984) 153 C.L.R., at p. 534. 3. (1987) 163 C.L.R., at pp. 463, 473. 4. (1988) 37 A. Crim. R. 202.

In determining the reaction to the evidence of the hypothetical reasonable jury, the Court imputes to that jury the collective experience of the judicial process. Even if most juries would have accepted the evidence relied upon by the prosecution, the Court may hold that a reasonable jury would not have accepted it if the experience of the courts has shown that evidence of the class concerned is unreliable. Thus, where part or all of the incriminating evidence against the accused consists of identification evidence, the Court will examine the case in the light of its knowledge, gained from long experience of criminal trials, that identification evidence is a potent source of miscarriages of justice: see Davies and Cody v. The King [4] . If, for example, there was no pre-existing relationship between the identifier and the accused and the opportunity for identification was fleeting, it is very likely that, absent other incriminating evidence, the Court will set aside the conviction: see, e.g., Reg. v. Smith [5] . But it would be a mistake, in my opinion, to hold as has been suggested (Chamberlain [No. 2] [6] ) that:

There must be some special character in the evidence upon which the jury has acted in finding the facts against the appellant which permits the court to intervene though the verdict is not unreasonable or it can be supported having regard to that evidence. The Court is entitled to set a conviction aside on any ground which in the Court's opinion amounts to "a miscarriage of justice" (s. 6(1)). There is no justification for holding that the Court of Criminal Appeal can only intervene in this class of case if the evidence has "some special character". In Hargan v. The King [7] , in referring to s. 6 of the Act, Isaacs J. said: It is, therefore, not an answer to the appellant to say that what he complains of is not an error in strict law. If he can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance. Notwithstanding that a jury has convicted an appellant on evidence legally sufficient to support the conviction, the Act has imposed upon the Court of Criminal Appeal the duty to determine whether there has been a miscarriage of justice. If that Court concludes that no reasonable jury would have convicted the accused on the evidence, then its duty is to allow the appeal whatever the nature of the evidence relied upon to support the conviction. 1. (1937) 57 C.L.R. 170, at p. 180. 2. [1979] 2 N.S.W.L.R. 304. 3. (1984) 153 C.L.R., at p. 604. 4. (1919) 27 C.L.R. 13, at p. 23.

In the present case, the Court of Criminal Appeal seems to me to have decided the "unsafe or unsatisfactory" ground against the applicants on the basis that those features of the Crown case which allegedly made the convictions unsafe or unsatisfactory related to the credibility of the principal Crown witnesses and that that was "a jury question". Consequently, the Court of Criminal Appeal made no independent assessment of the evidence against the applicants. The Court said:

Once the jury decided, as they were entitled to do, that they could place sufficient reliance upon the evidence of Oti and Kwalu, then there was an abundance of evidence of guilt of the accused. But, with great respect, this statement applies to the "unsafe or unsatisfactory" ground the same test as that which applies in determining whether, as a matter of law, there is evidence to support the jury's verdict. In my opinion, the Court of Criminal Appeal did not carry out the duty imposed on it by s. 6 of the Act in that it failed to make its own assessment of the evidence for the purpose of determining what a reasonable jury would have made of the relevant evidence.

It does not follow, however, that this Court should grant the applicants special leave to appeal because the Court of Criminal Appeal has failed to exercise the jurisdiction conferred on it by s. 6 of the Act. Failure to exercise that jurisdiction is not of itself a special leave point. In the context of this case, the grant of special leave would be appropriate only if this Court formed the view that the applicants were likely to succeed in their appeal if special leave were granted. And I have come to the conclusion that an appeal would not succeed because the convictions of the applicants were not unsafe or unsatisfactory.

The strength of the applicants' cases lies in the fact that both Oti and Kwalu, on their own admissions, were co-conspirators in importing trafficable quantities of heroin into Australia, that they have given false evidence on oath in these proceedings, and that they have changed their stories from time to time. The learned trial judge said that in eight years on the District Court he had "never heard two witnesses so readily admit that they have lied on oath". A reasonable jury would have treated the evidence of Oti and Kwalu with great reserve no matter how much they were impressed by their demeanour. A reasonable jury would not have acted upon the evidence of the two men unless it was convincingly corroborated by other evidence. The characters and evidence of Oti and Kwalu were too unsatisfactory for a reasonable jury to accept their evidence without cogent corroboration. Moreover, although there was evidence corroborating their evidence against Chidiac and Asfour, two pieces of the corroborative evidence against Chidiac were very weak and there was a serious question as to whether the other piece of corroborative evidence relied on against Chidiac was true.

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.

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.

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.

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.

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.

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.

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, born 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.

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.

The corroborative evidence admissible against Asfour was even stronger than the corroborative evidence admissible against Chidiac. Asfour had gone with "George" from Sydney to Brisbane in November 1984 and met Kwalu on an occasion when Kwalu flew into Brisbane with packages taped to his body. The jury was entitled to conclude that the packages contained heroin. Asfour then travelled with "George" and Kwalu from Brisbane to Sydney. A reasonable jury was entitled to reject Asfour's explanation that he and his girlfriend had gone to Brisbane at "George's" suggestion that they should have "a short holiday to Brisbane with George". In addition, there was independent evidence of calls between Asfour's phone number and Oti's number in Honiara. Finally, although in his dock statement, Asfour said, "I did not ever see Mr. Oti, I did not speak to Mr. Oti either in [sic] the telephone or in any other places", Asfour's notebook contained entries of Oti's name and his home and work telephone numbers. Accordingly, a reasonable jury was entitled to find that independent evidence convincingly confirmed the evidence which Oti and Kwalu had given against Asfour.

Upon the evidence it is not possible to say that a reasonable jury must have had a reasonable doubt about the guilt of Chidiac or Asfour. The claims that their convictions are unsafe or unsatisfactory must be rejected. An appeal to this Court would not be likely to succeed.

The applicants also contended that the convictions were unsafe because of various directions concerning corroboration. For the reasons given by Mason C.J., however, there is no substance in these additional contentions of the applicants.

At a glance

Court

Decision date

Before

Source

Judgment (121 paragraphs)

Parties