Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Arnold Bloch Leibler (Paul Peter Dougas)
Stary Norton Halphen (Mark Andrew Read)
Colin Biggers & Paisley Lawyers (Geoffrey Kym Linke)
File Number(s): 2018/150442; 2018/150387; 2018/150400
[2]
Judgment: EX TEMPORE
The three accused seek a distorted memory direction, the draft of which is set out in MFI 31 and which I set out for convenience below:
"Related impact of delay
There is a related matter which I must caution you about which arises due to the delay. Because of the passage of so many years between the date of the alleged offence, and the date of Mr Chapple's first account about those alleged events, I must give you a warning about the reliability of Mr Chapple's evidence.
My warning to you is as follows. The honest recollections of a witness about events that s/he believed to have occurred many years before may be unreliable.
You will easily understand that the passage of time may affect any witness's memory. While in some cases people simply forget things, in other cases their memory may become distorted. That is, they may come to remember things that did not really happen. They may also reconstruct memories and events from documents or other material.
Human recollection is frequently erroneous and liable to distortion in this way. The likelihood of this error increases with delay.
You will recall that Mr Chapple himself accepted that recalling the alleged events was a 'human endeavour' and that to use his words regarding his memory he is 'a grandfather not a computer hard drive'.
Warning
The law says that every jury must take this potential unreliability into account when considering evidence that is given after a long delay.
You must take this potential unreliability into account in determining whether you accept Mr Chapple's evidence at all, and if you do accept it, in whole or in part, in deciding what weight to give to that evidence. However, it is ultimately a matter for you as to whether you accept Mr Chapple's evidence as accurate and what weight you give to it.
In making this assessment you must carefully consider not only whether Mr Chapple's evidence is honest, in the sense that Mr Chapple believes it to be true, but also whether it is in fact true. While you should use your common sense and experience in assessing the effect of the delay upon Mr Chapple's memory, you must also consider the possibility that he honestly believes what he is saying, but is mistaken due to the distortion of his memory.
Supporting evidence
In considering whether it is safe to rely on Mr Chapple's evidence, you should have regard to any supporting evidence led in this trial that you accept. By 'supporting evidence' I mean evidence that is not from Mr Chapple's testimony in this court, and that tends to show the truth of his evidence of the accused's guilt.
In this case the prosecution relied on various documents as evidence of the accused's guilt. Those documents are essentially those contained in Exhibit A which you were provided at the outset of the trial.
It is important that you have careful regard to the source of those documents and to whom they were provided.
Some of the documents in Exhibit A are emails written by Mr Chapple during the charge period. The prosecution submitted to you that these were contemporaneous and unguarded emails, written prior to any internal company investigation or AFP investigation. The accused ask you to be careful to keep in mind that he was the person who wrote the emails when considering how they impact on your assessment of his evidence and further asked you to consider if Mr Chapple wrote them as self-serving attempts to provide cover if his criminal activities were later discovered. You should also consider whether those emails were or were not acknowledged or replied to.
Finally you must scrutinise carefully statements made in emails that the prosecution rely on to prove the involvement of an accused in the conspiracy if that accused was not a recipient of those emails."
The introduction which they seek to be inserted into the proposed distorted memory direction pursuant to s 165B of the Evidence Act 1995 (NSW) is in MFI 29 with one additional sentence in a red box on the right-hand side of MFI 30, together set out below for convenience:
"You have heard that this investigation commenced in 2013 when the Australian Federal Police first spoke with Mr Chapple. That followed on from an investigation conducted by the company in 2012. By 2012 seven years had passed since the end of the charge period and 12 years had passed since the start of the charge period. Obviously by 2013 that was one year more. It now being 2022 - twenty two years have passed since the start of the charge period and 17 since its end.
There is a warning I must give you relating to this issue of the delay in the allegation being made.
It is most important that you appreciate fully the effects of delay on the ability of the accused to defend himself by testing prosecution evidence or bringing forward evidence in his own case, to establish a reasonable doubt about his guilt.
In this regard, I refer to the following specific difficulties encountered by the accused in testing the evidence of the prosecution or in adducing evidence in his own case. The delay, for which the accused had not been responsible, has created those difficulties. These difficulties include the possibility of distortion in human recollection. This includes the witness's capacity to remember events that occurred between 17 and 22 years ago, including the specifics of conversations.
These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence himself to establish a reasonable doubt about his guilt, or both.
The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.
Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that Mr Chapple's and the other Crown witnesses' memory for details would have been clearer. This may have enabled his evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it.
Had the accused learned of the allegations at a much earlier time he may have been able to recall relevant details which could have been used by his counsel in cross-examination of Mr Chapple.
Another aspect of the accused's disadvantage is that had he learned of the allegations at a much earlier time he may have been able to find witnesses or items of evidence that might have either contradicted Mr Chapple or supported his case, or both.
The accused may have been able to recall with some precision what he was doing and where he was at particular times on particular dates and to have been able to bring forward evidence to support him. This is compounded by the lack of specificity in Mr Chapple's evidence as to the timing and location of some of the key alleged conversations which makes it difficult for the accused to raise any defence to those allegations other than denial. Were there greater specificity in relation to timing and location the accused may have been able to adduce evidence to raise a reasonable doubt as to those matters.
You should also take into account that because of the delay, the accused has lost the opportunity to bring forward evidence from sources including:
1. Lack of telephone records to show Mr Chapple's telephone contact with the accused during the charge period. This includes an absence of any text messages.
2. Unavailability of evidence from other witnesses who may have been present when significant events occurred and who may have been able to assist in establishing a reasonable doubt about the allegations or to contradict Mr Chapple's evidence.
3. Unavailability of complete documents for the relevant period including company records, email accounts, diaries, and accounting records.
4. Lack of complete and reliable HR records - you will recall the evidence from Mr Dorian who commenced work at SKM in 2005 in relation to both the incompleteness and the inaccuracy of the company HR records.
Because the accused has been put into this situation of significant disadvantage he has been prejudiced in the conduct of his defence. As a result, I warn you that before you convict the accused you must give the prosecution case the most careful scrutiny. In carrying out that scrutiny you must bear in mind the matters I have just been speaking about - the fact that Mr Chapple's evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it, or to support his defence. I do not intend to suggest that you cannot convict because of the delay in prosecution, only that there is a need for careful scrutiny."
[emphasis to show additional sentence in MFI 30 which does not appear in MFI 29.]
The Crown opposes a distorted memory direction and submits it is not required because the way in which the case has been conducted would have been more than sufficient to alert the jury to the difficulties occasioned by delay. The Crown submits that this is part of the jury's function as the tribunal of fact, that they are well aware of these matters and that I should not give a judicial imprimatur to a warning about distorted memory in this context when they are well able to work out these matters for themselves, as part of their orthodox activities as the tribunal of fact.
The Crown referred me to the decision of the Victorian Court of Appeal in Wade (a pseudonym) v R [2019] VSCA 168 (Wade), in which there was consideration about an equivalent provision, s 32 of the Jury Directions Act 2015 (Vic).
I was also referred to the decision of R v Reardon [2002] NSWCCA 203; (2002) 186 FLR 1 (Reardon), a decision of the New South Wales Court of Criminal Appeal in which Simpson J at [143] expressed the view that, where potential unreliability and the reasons for it were fully exposed to the jury through evidence-in-chief, cross‑examination and final addresses then this could constitute a good reason for declining the direction. That statement was made in the context of, I apprehend, an appeal against conviction when her Honour was considering whether the trial judge's omission, or refusal, to give such a direction constituted an error, which ought lead the Court to quashing the conviction.
I am, however, in a different position in the sense that I am in the position to decide whether the direction should be given prophylactically, which would mean the question which arose for the Court of Criminal Appeal's consideration in Reardon would not arise.
There is significant force in the Crown's submission that the potential unreliability of Mr Chapple's evidence on the grounds, relevant for present purposes, of delay, and the reasons for it, were fully exposed to the jury. Certainly Mr Chapple was extensively cross-examined about prior inconsistent statements, which he had made in the course of the initial investigation by Sinclair Knight Merz (SKM) conducted by Jones Day in 2012; and the police investigation, which commenced in 2013 and led to the laying of charges in 2019 and a committal hearing in 2020.
However, in Wade at [35] their Honours, Priest, Forrest and Weinberg JJA, said that relevantly, if there is any doubt in a judge's mind as to whether a s 32 [Jury Directions Act 2015 (Vic)] direction ought be given - which is the equivalent to this distorted memory direction, which is in MFI 31 - then prudence and, indeed, the structure and language of s 32 requires that a direction should be given. I consider, relevantly, that s 165B(2) and (3) of the Evidence Act have the same effect.
I am not sure that a direction is required. On the other hand, the giving of the direction would emphasise to the jury the potential for the memory of Mr Chapple to have been distorted by the passage of time. Although this did not constitute the complete challenge to Mr Chapple's evidence, it was one of a number of important challenges.
In these circumstances, I am persuaded that I should give a direction in accordance with MFI 31 and that I should foreshadow the direction using the words in MFI 29 including the sentence in the box on the right‑hand side in red in MFI 30.
[3]
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Decision last updated: 20 April 2022