R v Livingstone [2004] NSWCCA 407 | Case summary

R v Livingstone [2004] NSWCCA 407 | Case summary | Zoe

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the Crown case 3 Put briefly, the case advanced by the Crown was as follows: in the mid 1980s the appellant was practising as an accountant in Frenchs Forest. He provided accountancy services to a man called Michael McPhee who operated cake shops in the area. From 1986 (at least) McPhee was involved in the importation from Thailand into Australia of shipments of cannabis which he purchased through a Malaysian national called Wan Idris. 4 The appellant became involved in the third such importation, after McPhee told him of what he was doing and how he had taken money for payment of the drugs out of Australia. The appellant advised him that his method, which was simply to carry out large amounts of Australian currency in a suitcase, was dangerous, and that he could provide a safer method of funds transfer. He had access to a bank account in the name of an accountancy partnership (Scott and Slattery) by whom he had previously been employed. 5 In early October 1986 McPhee attended at the appellant's office and handed him $260,000 in $50 and $100 notes, being $200,000 for the purchase of cannabis and $60,000 as payment to the appellant for his participation in arranging the transfer of the money. On 2 October 1986 the appellant deposited $165,000 in cash into the Scott and Slattery account, together with cheques taking the total amount of the deposit to $190,073.57. In accordance with an arrangement made between McPhee, Idris and the appellant, the appellant obtained bank account details and arranged for Scott to make the transfer. This was duly done. This was the appellant's involvement in the importation which gave rise to the first count on the indictment. 6 The importation was completed on 13 November 1986. McPhee and his brother in law, John Thompson, were arrested that day and charged (McPhee in respect of the November importation, Thompson in respect of that and two earlier importations.) Each ultimately served a term of imprisonment. The appellant's involvement was not at that time known to police and he was not then charged. 7 McPhee was sentenced, under the then prevailing sentencing legislation, to a minimum term of imprisonment for six years with an additional term of six years. He was released on parole in May 1990. 8 While in prison and after his release McPhee developed and harboured a suspicion that the appellant had not forwarded the funds to Malaysia. (Later inquiries revealed that this suspicion was unfounded.) McPhee discussed his suspicion with another prisoner, Ivanhoe Matthews. Matthews and another man (Graham Shaw) visited the appellant. The purpose of the visit was plainly to intimidate the appellant. Matthews told the appellant, in effect, that he was investigating the whereabouts of the money. The attempt at intimidation succeeded. The appellant responded by reporting the threat to an acquaintance/client who was also a police officer. In order to conceal the fact that the intimidation concerned the illegal importation of drugs he fabricated a story that Matthews and Shaw had attempted to extort money relating to the Bankstown Football Club. Police began an investigation of the appellant's allegations. 9 It appears that communication between the appellant and others (Matthews and Shaw) acting on McPhee's behalf, and perhaps McPhee himself, continued. McPhee's suspicion that the appellant had not remitted the funds was not allayed. 10 During the course of their investigation of the appellant's untruthful account of the basis of the threats he alleged had been made, police identified Matthews as a suspect. They showed photographs of Matthews to the appellant, who denied that Matthews was one of the men involved in the "extortion". Police became suspicious of the appellant's bona fides. Eventually his allegations were referred to the NSW Crime Commission, which conducted an enquiry. The appellant gave evidence between 3 and 17 February 1994. He was questioned about the source of cash amounting to $165,000 which he had deposited in the Scott and Slattery account. He gave a false account, claiming that it had come from a client (Vera Jones) who had subsequently died. He went to some lengths to provide hard evidence to substantiate his story. This included forged documents. The evidence he gave to the NSW Crime Commission was the foundation for the second count, of perjury.

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the trial 11 The trial began on 1 February 1999. On the advice of his counsel the appellant formally made a number of admissions, including the fact of the importation of 354 kilograms of cannabis in November 1986. 12 McPhee, Matthews, Thompson and Shaw all gave evidence for the prosecution. Their evidence constituted a significant part of the Crown case. 13 McPhee was the first witness called. He was in possession of undertakings from the Commonwealth Director of Public Prosecutions and the Attorney-General of NSW protecting him against prosecution in relation to any answers, statements or disclosures made in the course of giving evidence in the trial other than in proceedings relating to the alleged falsity of his evidence. This was made known to the jury at the outset of his evidence. Nevertheless, it is a significant matter in relation to two of the grounds of appeal argued on the appellant's behalf. 14 McPhee's evidence, if accepted by the jury, was such as deeply to implicate the appellant in the importation. His evidence was that he had first met the appellant in about 1972 or 1973 in an accountant-client capacity. He said that, having been involved in the two earlier importations of drugs, he was driving an expensive car on one occasion when he consulted the appellant. The appellant asked him about the source of the finance for the vehicle to which McPhee frankly replied that it was cash resulting from drug shipments. From there, he said, the appellant advised him on, and became involved in, the remission of funds to Malaysia. McPhee gave evidence of a number of meetings with the appellant, including one in which he took Idris, who had travelled to Australia, to the appellant's office. At the request of the appellant, he introduced him under an assumed name (John Stone). That meeting took place on 22 September 1986. At that meeting, on McPhee's evidence, there was discussion about bank account numbers (in Malaysia), about the quality of the drug shipment, price, and quantity. There was also conversation about the transfer of money. 15 McPhee said that he then attended the appellant's office in late September or early October, taking with him a black bag in which were two calico bags containing, respectively, $160,000, and $100,000, in Australian currency. He said the appellant counted the money, enclosed it in the bags and put it in a safe in his garage. Of this money, $200,000 was to be remitted to Idris in Malaysia, and $60,000 was to be retained by the appellant as his commission. 16 McPhee gave evidence of other contact and communications with the appellant. He said it became apparent that what the appellant was doing constituted a departure from McPhee's normal or previous practice, but that when he asked the appellant about it, the appellant told him not to worry as he (the appellant) was taking care of it all. He said he was not sending money through Thailand because it was "too hot". 17 McPhee also gave evidence that the appellant directed another individual (Thompson) to create a false typewritten note explaining the source of $100,000 by reference to the estate of Julie McPhee, a sister-in-law of McPhee who had recently died in a motor vehicle accident, and in the administration of which estate the appellant was involved, presumably as an accountant. He said that the appellant lent a manual typewriter to Thompson to enable him to create the document. 18 McPhee gave evidence of the arrival of the shipment of cannabis, of picking it up in a pantechnicon, unloading it in a garage, telephoning the appellant, and then taking half of the drugs to Ulladulla. He said that during the course of this telephone conversation the appellant had asked if he had picked up the shipment. 19 McPhee was arrested later on that night, 13 November 1986. He said that the appellant lent McPhee's wife the sum of $20,000 to put towards his legal expenses. 20 McPhee also said that, whilst he was in custody, his wife received telephone calls from overseas asking questions about the money. He said that he told her to see the appellant about the telephone calls. 21 McPhee said that he met Matthews in gaol and that he himself was paroled in May 1990. It was not, however, until October 1992 that he again saw the appellant, in the appellant's office. McPhee had arranged the meeting in order to ask for $2,000 to make repayments on his motor vehicle, but the appellant gave him only $500. He said there had been earlier conversations about borrowing $20,000 for a bakery business. 22 McPhee said that, angered by the appellant's failure to give him as much money as he had requested, he falsely told him that "the Thais" had turned up, looking for "the bank numbers". He said that, on being told this, the appellant became agitated and expressed concern. 23 He said the appellant produced a red ledger book, containing an entry indicating that $200,000 had in fact been sent to Idris. He said the appellant said that he would send proof that the money had been remitted. 24 McPhee said that, in October 1992, at his request, Matthews met him in Ulladulla, and that McPhee asked Matthews to "go and pay a visit" to the appellant. The purpose of this visit was to attempt to retrieve the money, the total sum of $260,000. He told Matthews to say that he was representing "the Thais". 25 He said that he rang the appellant after Christmas and the appellant had promised to send proof that the money had been remitted, but also told him that he had received a visit from "the Thais". McPhee was subsequently visited by two men known as "Bagshaw" (or "Bags") and "Vince". He said that Bagshaw told him that they were there in relation to two men who had been sent to the appellant's office. 26 At the conclusion of his examination in chief, McPhee was asked about an interview on 19 October 1993, when he had spoken to two police officers, Detectives Freeman and Hutchings. 27 McPhee was extensively cross-examined. A large part of the cross-examination was directed to undermining his credibility in the eyes of the jury. He was attacked in relation to evidence he had given to the NSW Crime Commission. He freely admitted that some of his evidence in that forum had been untrue. A somewhat incongruous situation arose on a couple of occasions when he claimed that the evidence he had given to the Crime Commission was untrue and senior counsel then appearing for the appellant suggested that it had been true. However, in respect of other evidence, it was put to him that he had lied to the Crime Commission, and in respect of some of this evidence he agreed that he had indeed done so. Some questions and answers should be noted in more detail. On one occasion he was asked: "You are trying to make it worse for the man on trial, Mr Livingstone, aren't you?"

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(It may be that this is a mis-transcription for "Yes, I will to be quite honest.". But the sense is not greatly different - McPhee freely accepted the proposition put to him by senior counsel for the appellant.) 29 However, on another occasion, between these two passages, he denied the proposition that he was trying to impress the jury in order to secure the appellant's conviction. 30 In another passage, he agreed that he had given untrue evidence in committal proceedings. 31 Some time later it was put to McPhee that, on the occasion of the visit by Bagshaw and Vince (the timing of which can, on the evidence, only be fixed as some time after the end of January 1993) he had told them, or one of them, that it was the appellant who had given information to the police that implicated him in the cannabis shipment; that the appellant had been the cause of his spending four years in gaol and that the appellant would be made to pay for that; and that McPhee would secure his revenge on the appellant. McPhee denied each of these propositions. He denied that, at the time of that visit, he had believed that the appellant had been the informer. He said, however, that, at that time, he had believed that the appellant had retained the money that was intended to have been sent to Malaysia. 32 Notwithstanding his denial of having told Bagshaw and/or Vince that he believed the appellant was responsible for his incarceration, or that he so believed at the time of their visit to him, McPhee agreed that there had been a time when he did believe that the appellant had been the informer responsible for his arrest and imprisonment. He had held this belief at the time he had asked the appellant to lend him $2,000, and had received only $500. He had probably first formed this belief when sent to prison. 33 It is unnecessary, having regard to the grounds of appeal, to recapitulate the evidence of all Crown witnesses. However, it may be noted that John Scott (the "Scott" of Scott and Slattery) gave evidence that, in October 1986, the appellant had telephoned him, advising that a client wished to send money to Malaysia and asking whether that could be arranged. Scott agreed, and identified a deposit slip in the appellant's handwriting recording a deposit, made on 7 October 1986, of the sum of $190,073.57, of which $165,000 was in cash. On 8 October Scott drew a cheque in the sum of $200,000 made payable to the Commonwealth Bank. It was presented at the North Sydney branch of that Bank. Scott and Slattery internal records linked that cheque with the name "Wan". The appellant was the source of that information. 34 The appellant also gave evidence. He denied any knowledge of, or involvement in, the importation of the cannabis. He admitted having made a transfer of $200,000 to Idris' account, but said that this was innocent. He claimed that Idris had spoken to him about investing in Australian real estate and had transferred $200,000 to him for this purpose. He had deposited that in the Scott and Slattery account. Later Idris had required that the money be returned and the appellant had complied. He again claimed that, on 1 October 1986, a client of his, Vera Jones, had given him envelopes containing $165,000 in cash, saying that the money had come from her mother's estate, porcelain, and savings. She said that she had kept it in cash because she did not wish to incur a tax liability on interest that would have accrued had she deposited it in a bank. She now wished the appellant to look after it for her, by depositing it in an account not in her name. The appellant gave a great deal of detail, which it is not necessary here to reproduce, concerning his receipt and disposal of this money. 35 In other respects, the appellant addressed factual details of evidence given in the Crown case. I do not propose to restate the effect of all of his evidence. He claimed that the Crown witnesses named above had all given false evidence.

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It seems reasonably plain, and appears to have been common ground, that the "associate" referred to by Matthews was in fact McPhee. 43 It was accepted that copies of these documents had not been made available by the Crown to the appellant's legal representatives at or prior to the trial. Nor was their existence explicitly stated. However, in a statement made by one of the investigating detectives, which was served on the appellant's legal representatives, it was clearly stated that the detectives had had a conversation with McPhee at his house on 19 October 1993, followed by a further conversation at the Milton Police Station. Reference to the same conversations was also made by McPhee in his statement, which also was served. At the end of McPhee's examination in chief he was asked about, and gave evidence of, the interview. Senior counsel who appeared for the appellant in this court accepted that an experienced criminal counsel (such as the senior counsel who represented the appellant at trial) would have been aware of the likelihood (or near certainty, in my opinion) that some record or note would have been kept of the conversations. Indeed, affidavit evidence admitted in this Court established that notes of the 13 October interview with Matthews were, on the second day of the trial, and at the request of junior counsel, provided to the appellant's legal representatives. This is strongly suggestive that counsel were aware that the interviews had taken place, had turned their minds to the likelihood of the existence of some record of the interviews, and that the records would be made available should they request access. The present question is, essentially, whether any miscarriage of justice resulted from the failure of the Crown to make available copies of the documents. Senior counsel who appeared for the appellant in this court argued that each document contained material which would have provided useful ammunition in cross-examination of McPhee and Matthews. Each was an important witness in the Crown case against the appellant and the credibility of each was important. To have been in possession of documentary materials which lent support, particularly in the case of McPhee, to a contention that he had reason to be, and was, antipathetic towards the appellant, could well have strengthened the impact of the cross-examination.

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the prosecution's duty of disclosure 44 The extent of the prosecution's undoubted duty of disclosure has become something of a recurring theme in recent times: see, for example, Grey v The Queen [2001] HCA 65; 75 ALJR 1708; R v Reardon [2004] NSWCCA 32, unreported, 20 February 2004. In the last-mentioned case, I specifically agreed that a test, originally derived from a 1993 UK decision in a matter identified as Melvin and Dingle (20 December 1993) and adopted by the English Court of Appeal in R v Keane [1994] 2 All ER 478, ought also to be adopted by this Court. That test is in the following terms: "I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)." 45 It was again adopted by the English Court of Appeal in R v Brown (Winston) [1998] AC 367 at 376-7. The issue of the prosecution's duty of disclosure came before the High Court of Australia in Grey, but in circumstances in which the Crown conceded that the undisclosed material there in question was of a kind which ought to have been disclosed; the High Court was thus concerned with the consequences of the admittedly erroneous non-disclosure. 46 The first and second grounds of appeal are both concerned with the consequences of the belated revelation of the records of the interviews. However, they approach the issue in different ways. The first ground focuses upon the non-disclosure by the prosecution of the material to the appellant's legal advisers, and is, accordingly, directed to the issues raised in the authorities to which I have already referred. 47 The second ground is framed in terms of fresh evidence and raises considerations of of a different kind: see, for example, Mickelberg v The Queen (1989) 167 CLR 259. 48 Although the two questions may sometimes be related even closely related, it is important to bear in mind that they raise very different issues. The distinction was recognised by the High Court in Grey (see, for example, [8] - [12]). There, the Court held that the material in question was (as the prosecution conceded) of the former kind, that is, material that should have been disclosed to that appellant. It was therefore unnecessary for the Court to embark upon a consideration of the application of the fresh evidence principles, or, indeed, of the boundaries of the obligation to disclose. 49 So it is, for different reasons, here. Having regard to the concession he had already made (noted above at [43]) (that is, that an experienced trial counsel would have been alerted to the likely existence of these documents, and that reasonable diligence on the part of the appellant's legal representatives at the trial would have unearthed them) senior counsel made, in this court, a further concession to the effect that if the proper characterisation of the records of the interviews put them into the fresh evidence category as distinct from the non-disclosure category, then ground 2 could not realistically be pursued. I think, in the circumstances of this case, it is correct to characterise the issue as one raisng considerations of non-disclosure and not of fresh evidence. It is the first ground of appeal on which attention ought to be focussed. 50 It seems to me that the first ground of appeal raises four discrete questions: (i) were the documents now under consideration of a kind which come within the postulated test and therefore require disclosure; (ii) what is involved in "disclosure", that is, the content of the duty; (iii) whether the documents were in fact adequately disclosed; and (iv) if the first and third questions are answered favourably to the appellant and unfavourably to the Crown, whether the non-disclosure resulted in a miscarriage of justice. 51 I turn then to the first question outlined above in [50]. Were the notes apparently recording the interviews (or the substance of the interviews) with McPhee and Matthews of a kind that the Crown should have disclosed to the defence? If they were, it could only be because they come within category 1 of the Melvin and Dingle tripartite test: that is, that they were relevant or possibly relevant to an issue in the trial. The salient issue in the trial in this respect, was, of course, the credibility of the witnesses McPhee and Matthews. Plainly the credibility of each of these Crown witnesses was likely to be a relevant issue in the trial. McPhee's record is redolent with hostility towards the appellant and evinces a number of reasons for that hostility. It appears that McPhee was bitterly resentful of his conviction and subsequent circumstances; that he believed that the appellant had defrauded him of a large sum of money supposed to have been sent to Malaysia; that he believed that the appellant had been involved in the offence of which he had been convicted but had escaped prosecution; and that he also believed that the appellant had been instrumental in enabling his (McPhee's) brother to obtain, at the expense of McPhee, the majority of the proceeds of the business they had previously conducted. The document could undeniably have provided a significant basis for cross-examination of McPhee, evidencing bitter hostility towards the appellant and therefore a motive either to lie about his involvement in the importation, or, at least, to colour his evidence in a way adverse to the appellant. I am satisfied that the record of the interview with McPhee could (and should) have been seen, on a sensible appraisal by the prosecution, to have been relevant, or possibly relevant, to an issue in the case. The document came well within the first Melvin and Dingle test, and was, accordingly, a document that should have been disclosed. 52 In relation to the record of the interview with Matthews, the position is very different. I am quite unable to see that it comes within the same category. So far as I can tell, the record of that interview is quite anodyne. I do not propose further to refer to it. There is nothing in it that obviously throws any light on Matthews' credibility, and the court was not told of any circumstance that would suggest that it could have done so. I will limit my further consideration of these grounds to the McPhee interview. 53 My first conclusion in relation to the McPhee interview requires consideration of the second and third questions; i.e., what did the duty of disclosure require the prosecution to do? Was it obliged to do more than provide material from which a reasonably astute lawyer could have inferred the existence of the records and sought them out? Were the references in the statements to the interviews adequate disclosure of the documentary evidence of the content of the interview? 54 This is the relevance of the reference to the interviews contained in the two statements which I have already noted. Senior counsel's concession makes it clear that an alert counsel would not have been oblivious (as was the position in Grey) to the existence of some note or record of the interviews. The fact of the interview having occurred was reinforced in the final questions asked of McPhee in his examination in chief. In any event the request by junior counsel for access to the notes of the interview of 13 October with Matthews put beyond any reasonable doubt that the appellant's legal advisers were alive to the likely existence of documents of the kind. The ready provision of the notes of the Matthews interview adds to the strong inference that the documents were available, and would have been provided to the appellant on request. It is for this reason that senior counsel shied away from the fresh evidence ground, opting to put his eggs in the non-disclosure basket. 55 In Grey, the participants in the majority judgment (Gleeson CJ, Gummow and Callinan JJ) observed that: "...there was no reason why the defence in a criminal trial should be obliged to fossick for information ... to which it was entitled." 56 That was a case where, in this Court, the majority had considered that the undisclosed material in question was properly characterised as fresh evidence, within the Mickelberg principles: the minority view was that the proper characterisation of the issue did not involve fresh evidence principles (Mickelberg) but the Crown obligation of disclosure. The High Court upheld the latter view. The passage extracted above appears in the context of the rejection of the proposition that reasonable diligence on the part of that appellant's legal advisors would or might have elicited the information, about which those legal advisors were, at the time of the trial, ignorant. 57 I have already stated my view that the information was information that should have been disclosed. It is, in my opinion, a fine question whether what it is now suggested the appellant's legal advisors should have done involves "fossicking". In Reardon (at [95]) I postulated a possible distinction between the prosecution's duty to provide copies of documents as part of the prosecution brief, and a duty to disclose the existence of documents and to make them available for inspection, should an accused person's legal representatives wish to take advantage of that course. I did not intend, in that reference, to include disclosure of the existence of documents by way of disclosure of other material from which an astute legal representative might infer the existence of the document in question. Rather, what I had in mind, was the provision of a list of documents held by the prosecution. 58 I have come to the view that the record of the McPhee interview was not adequately disclosed. The most that could be said is that the fact of the interview was adequately disclosed and that this may - even should - have alerted an astute legal representative to the possible existence of a record of the interview, and provoked a request for its provision, or a subpoena for its production. This, in my opinion, comes perilously close to requiring the defence to "fossick" for information to which it was entitled. 59 It follows that, in my opinion, the second question outlined in paragraph 50 above, should be answered in terms that require, at the very least, an explicit statement that the record of the interview was in existence and in the possession of the prosecution; and the third should be answered in the negative - that is, that the document was not adequately disclosed. 60 That brings me to the fourth question, whether the non-disclosure resulted in a miscarriage of justice such that the appeal should be allowed. 61 As in Grey (see [24]) the outcome of the first ground of appeal depends upon the application of s6(1) of the Criminal Appeal Act 1912, which provides as follows: "(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it 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, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 62 As I indicated much earlier in these reasons, the use to which senior counsel for the appellant would have put the record had he had access to it was in cross-examination of McPhee and, in particular, to establish his antipathy towards the appellant and his attendant bias. One thing that should be observed is this. The cross-examination would have gone to the issue of McPhee's antipathy as at the date of giving evidence - February 1999. The record of the interview is clearly capable of establishing antipathy as at the date of the interview - 19 October 1993. But senior counsel did cross-examine McPhee to this effect. McPhee freely admitted that, as at the time he was giving evidence, he was trying to make it worse for the appellant; and that he was trying "to put the boot into" the appellant so as to prejudice him in the eyes of the jury. It is of some interest that it was never put to McPhee directly that, as at the date of giving evidence, he retained a belief that the appellant had been the person who, by informing the police, had caused his arrest and his imprisonment. When asked if he had ever had that belief, he replied: "Yes, I did for a stage."

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ground 3 66 Ground 3 raises for consideration the provisions of s165 of the Evidence Act 1995. That section relevantly provides as follows: "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: ... (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, ... (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) ..." 67 Under ground 3 it was argued that a direction in accordance with s165 was required to be given in relation to the evidence of four prosecution witnesses: McPhee, Thompson, Matthews and Shaw. Only McPhee and Thompson could be categorised as witnesses who might reasonably have been supposed to have been criminally concerned in the importation of the cannabis. It was common ground, however, that each of those witnesses was such a person. It was not suggested that any of the four came within any of the other categories of witness, or that their evidence came within any of the categories of evidence identified in s 165(1). 68 At an early stage in the summing up the trial judge gave the following direction: " ... the evidence in the Crown case relied very heavily upon the evidence of McPhee and Thompson of course, to a lesser extent on Matthews and Shaw. Now I must give a direction, members of the jury, as to how you must approach the question of the weight you would attach, in particular, to the evidence of McPhee and Thompson. The law recognises that evidence, in some circumstances, can be unreliable and the law is that evidence given by a witness, who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings, that evidence is - could be, in the circumstances in which it is considered by a jury, it could be unreliable. As a matter of law, members of the jury, I must direct you that the evidence of an accomplice comes into that category. An accomplice means somebody who has taken part in the alleged offence. And quite clearly, certainly McPhee and Thompson, were involved as principals in the sense that they were involved in the importation, in the finding of cash and in the case of McPhee, to pay for the importation. In the case of Thompson, providing the know how as to - involving the paper aspect of the importation, he being involved in his training and work in the paper industry. And, members of the jury, it is quite clear that both of those persons were accomplices to the offence, whoever was involved in it. So for that reason it is important that you consider their evidence with great care. The reason, of course, that an accomplice's evidence may be unreliable depends on a number of things which you would expect, in the case of evidence being given by an accomplice. People who are accomplices, first of all, in most cases tend to minimise their own involvement. They tend to shift the blame to other people. They give accounts, they lock themselves into accounts involving, in many occasions, other people and having done so find themselves in the situation that they must stick to the story they have given. So for that reason, it is important to realise that accomplices are often unreliable and you must look very carefully at their evidence. It is important that you examine their evidence with caution to see whether you think it is appropriate that you should act on what the accounts given, in particular by McPhee and Thompson in this trial. You should look for corroboration for their evidence. In other words, is there evidence coming from other sources, independent of the accomplice, I will deal with them separately, tending to establish what was said with regard to the accused and confirming, in a material particular, that evidence." 69 His Honour then went on to refer the jury to evidence they could regard as corroborative of the evidence of those witnesses. 70 The judge then proceeded to deal with the evidence of Matthews and Shaw. He said: "Well now, members of the jury, the evidence of Matthews and Shaw is also evidence, with respect of which I propose to give you also a warning of the need to consider their evidence with care. In the sense that they were, on the Crown's case, involved in these approaches to the accused, demanding the return of moneys arising out of the transaction. Demanding either $200,000 or $260,000. It is appropriate, members of the jury, that I should warn you also that you look at their evidence with care, their evidence may be unreliable and again, it would be appropriate that you would look to see whether there is corroborative evidence in respect of their accounts." 71 His Honour then followed the procedure he had in relation to the earlier named witnesses and directed the jury as to the evidence that they could regard as corroborative of the evidence of Matthews and Shaw. 72 Notwithstanding these comprehensive directions, it was, on appeal, contended that they were inadequate. Two separate criticisms were made. Firstly, it was argued that the decision of this court in R v Chen & Ors [2002] NSWCCA 174, unreported, 11 June 2002, mandated a direction that it would be dangerous to convict the appellant upon the uncorroborated evidence of any of the four witnesses. In Chen, the following paragraph appears: "58 In our opinion, Chan was plainly an accomplice. Though s164(3) of the Evidence Act 1995 abolished the universal common law duty to give an accomplice warning, the power and the duty to do so in appropriate circumstances survives: see also s165(5). It became, therefore, incumbent upon the learned presiding Judge to give the jury a clear direction to the effect that it would be dangerous to convict the appellant, and his other co-accused, upon the uncorroborated evidence of that accomplice. This, as it seems to us, his Honour plainly and correctly did. It became, then, further incumbent upon his Honour to give the jury assistance in understanding the nature of corroborative evidence; and in identifying those matters of fact which, if accepted by the jury as having been proved, could constitute such corroboration in the appellant's particular case. This, also, we think his Honour plainly and correctly did." 73 Senior counsel for the appellant relied upon the ruling that it was "incumbent" upon the trial judge to give a clear direction that it would be dangerous to convict the appellant upon the uncorroborated evidence of the accomplice; and that it was also "incumbent" upon him to assist the jury in understanding the nature of corroborative evidence and in identifying matters of fact which the jury could regard as constituting corroboration. 74 It is to be observed that the paragraph relied upon does not purport to be a statement of general principle to the effect that a particular form of words is required to be used in any case where an accomplice gives evidence. The observation was made with particular reference to the facts of the case that were before the Court as then constituted. Further, the observation was made in the context of a reference to the power and duty to give "an accomplice warning", notwithstanding s164(3) of the Evidence Act, in appropriate circumstances. 75 Here, the only departure from what was said, in Chen, to be necessary in the circumstances of that case, was the failure of the trial judge to use the words "dangerous to convict". Other than that, I am of the view that the trial judge met the requirements mentioned (for the circumstances of that case) in Chen. Differently constituted benches of this court have not accepted the proposition that s165 requires a direction that it would be dangerous to convict: see R v Sneza Suteski [2002] NSWCCA 509, unreported, 20 December 2002, R v AGJ, unreported, NSWCCA, 30 October 1997; R v Kerrie Anne Clarke (1997) 97 A Crim R 414. I do not accept that Chen is authority for the proposition that the form of words proposed in that case should be used in all cases; nor that it was, in the present case, "incumbent" upon the trial judge to use the language proposed. I am satisfied that the s165 direction was entirely in accordance with the legislation, with principle, and with what was required in the circumstances of the case. 76 The second point raised on behalf of the appellant was that a direction in accordance with The Queen v Pollitt (1992) 174 CLR 554 at [600], to the effect that the four witnesses could not corroborate each other should have been, but was not, given. It was conceded that no such direction was sought and leave under Rule 4 of the Criminal Appeal Rules is required if the point is to be argued. There is no longer any requirement that any evidence be corroborated: Evidence Act, s164. Pollitt, accordingly, must be applied in this jurisdiction subject to the Evidence Act: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1; ALMD5165. 77 The passage in Pollitt referred to is, principally, a passage referring to an established rule that one accomplice cannot corroborate another, and that a direction to that effect is required in cases where two or more accomplices give evidence. Dawson and Gaudron JJ, from whose judgment the passage is extracted, went on to note that, in cases not involving accomplices, but where the possibility of joint fabrication exists, it is necessary to direct a jury to look elsewhere for corroboration. Their Honours do not, however, lay down any general principle as to the circumstances in which such a direction is required. 78 Here, as I have already noted, the trial judge specifically drew attention to the evidence which was capable of constituting corroboration, and this was from sources other than the four witness whose evidence is now under consideration. Indeed, in respect of one of those witnesses, Thompson's wife, his Honour expressly invited the jury to be sceptical about the value of her corroborative evidence because of her relationship with Thompson. 79 I am satisfied that there is no merit in this ground of appeal. I would reject it.

[28]

ground 4: directions concerning cross-examination of prosecution witnesses 80 The trial judge commenced his summing up in a conventional way, giving directions of law. He paid particular attention to explaining the second charge, of perjury, and detailing the manner in which the prosecution alleged that the evidence given by the appellant to the NSW Crime Commission was false. He then devoted some considerable time to the evidence of the four witnesses to whom reference has already been made in the consideration of ground 3. He told the jury that the appellant had given evidence although he was not bound to do so and that that exposed him to cross-examination. 81 At a relatively early point in the summing up he moved to the cases put by the Crown and by senior counsel for the appellant. 82 The first matter with which he dealt was the appellant's case in relation to the money sent to Malaysia. He told the jury that the appellant acknowledged having sent $200,000 to Malaysia, but claimed that he did so for an entirely innocent reason. His Honour dealt extensively with the evidence relevant to that discrete issue. He did so in a manner which, on appeal, attracts no complaint. 83 He then referred, quite extensively, to the address of senior counsel of the appellant and made particular reference to counsel's submissions to the jury in relation to McPhee's credibility. During the course of this he touched, on a number of occasions, on matters raised in cross-examination of the prosecution witnesses. His Honour then said: "Well what I propose to do, members of the jury, is to go through the evidence with you, but only in a very brief and abbreviated way. You of course have the transcript, or you will receive it when you retire to the jury room. You will also have an index of the transcript, so if you want to pick up anyone's particular evidence it will be there for you, you will just have to look up the page as to the reference of the examination." 84 He explained the symbols in the index. 85 As he had indicated he would do, his Honour briefly outlined the evidence of each of the witnesses, both prosecution and defence. 86 At the conclusion of his Honour's review of McPhee's evidence in chief, the transcript records him as saying: "Well then there was considerable cross-examination of Mr McPhee and he was challenged as to the account that he has given and (sic) every serious aspect and I do not propose to go though that cross-examination with you." 87 He took the same course in relation to the subsequent witnesses. 88 His Honour continued summing up until the lunch adjournment. At that time senior counsel for the appellant submitted that his Honour should deal with some aspects of the cross-examination of McPhee. He submitted that if that were not done, the summing up would be unfair and unbalanced. His Honour replied that he did not propose to go through the cross-examination of the appellant and that he was not bound to sum up the evidence at all. 89 There followed a discussion between the trial judge and senior counsel which culminated in his Honour saying: "... I don't propose to change my way of doing things." 90 At the end of the discussion the Crown Prosecutor intervened, giving some support to the submissions made by senior counsel. He stated that he did not oppose senior counsel's application that reference be made in the summing up to the cross-examination of McPhee in relation to the date of the payment of the money, provided that was balanced by some reference to the evidence given by the appellant in cross-examination on the same issue. He referred to some passages in the transcript and concluded by saying that, while it was not necessary to give a verbatim account of the evidence, he would not oppose what was sought by senior counsel for the appellant. When the jury returned the judge did make specific reference to the conflicting evidence about the date of payment of $260,000. He read some questions of and answers by both McPhee and the appellant.

[29]

91 On resumption his Honour continued summing up in the same manner until the court adjourned at the end of the case proceedings. 92 The following day, before the jury returned to court, senior counsel again requested his Honour to deal in summing up with the cross-examination of McPhee. He made particular reference to a conflict in the evidence concerning the date on which the $260,000 had allegedly been paid by McPhee to the appellant. The discussion continued over several pages of transcript. At the conclusion of the discussion, senior counsel provided the trial judge with the directions he submitted should be given to the jury. These proposed directions were in the following terms: 93 "1. Michael MacPhee was granted an immunity from the Attorney-General (NSW) on 20 June 1995 and by the Commonwealth DPP on 28 October 1994. They are conditional immunities that are subject to him giving frank and truthful evidence. The fact that he has immunities from the prosecuting authorities is a matter which you the jury should take into account on the question of his honesty and reliability as a witness. He has not been dealt with in relation to the first two drug importations, nor for giving false evidence to the state Crime Commission or before the committing Magistrate in September, 1995. He admitted in the trial to lying to the Magistrate after he had been granted the 2 immunities. He still has a reason to fabricate a story. He has been proved to be a person who is not prepared to give truthful evidence or to comply with the conditions of his immunities. 2. A number of the witnesses who have given evidence in the prosecution case are admitted perjurers. Those persons include: · Michael MacPhee (sic) · Rhonda MacPhee (sic) Those persons' evidence may be unreliable for that reason alone. You (the jury) should take considerable caution before accepting their evidence. 3. A number of witnesses for the prosecution have given evidence of conversations which are alleged to have occurred in 1986 and/or 1992. Evidence of this nature may be unreliable due to the effluxion of time and the fallibility of human recollection. I warn you to be careful about accepting such evidence. This is particularly so where the witness made no written contemporaneous record of that conversation." 94 His Honour declined to direct the jury in accordance with the document. He said, however: "I will deal with the matters that you have raised with regard to the cross-examination of McPhee on the other hand."

[31]

He took the same course in relation to all defence witnesses. 96 Senior counsel who appeared for the appellant in this court, in written submissions, identified numerous instances of cross-examination of the prosecution witnesses which, he argued, ought to have been the subject of specific reference in the directions of the trial judge. It is not necessary to deal with each of these in detail; a sample will suffice to illustrate the point. I will begin with the cross-examination of McPhee. 97 In one portion of the cross-examination, which covers ten pages of the transcript, McPhee was questioned about the evidence he had given in the NSW Crime Commission. While he did not accede to the extent of untruthfulness put to him by senior counsel, he plainly and repeatedly acknowledged that he had given false evidence. Similar cross-examination was directed to McPhee's evidence given in committal proceedings. McPhee admitted that some of his evidence in those proceedings had also been untrue. The only reference that was made to this by the trial judge occurred in that part of the summing up, at an early stage, when his Honour reviewed the address of senior counsel for the appellant. He particularly mentioned an attack made on McPhee's credibility by senior counsel, and senior counsel's description of him as "a confirmed liar". 98 Reference was also made to a number of passages in the cross-examination of McPhee directed towards establishing the date on which he claimed to have paid the $260,000 to the appellant. In his evidence in chief McPhee had given an affirmative answer to the question: "Now, was there another visit that you had with Mr Livingstone in late September or early October where you took something with you?" 99 The subsequent questions and answers showed that this was the meeting at which, on McPhee's evidence, he had handed the money to the appellant. 100 In response to a number of questions asked in cross-examination, on different occasions, McPhee gave evidence that the money had been handed to the appellant on a date after Idris had left Australia. That occurred on 8 October. Senior counsel for the appellant at trial made much of the discrepancy in the dates. In the summing up the judge merely said (having referred to senior counsel's submission to the jury that McPhee was not a satisfactory witness) that McPhee had given vague evidence as to when he had received the money and when he claimed to have handed it to the appellant. He made further reference to this, but all in the context of reminding the jury of senior counsel's address. 101 There were many other instances of evidence given in cross-examination to which this court was taken and which, it was argued, should have been the subject of specific reference in the summing up. As I have indicated above, I do not propose to deal with each. Similar submissions were made in relation to evidence given in cross-examination by Thompson, Rhonda McPhee, Matthews, Shaw and Peter Dyer. 102 It is, of course, a cardinal rule of summing up that the directions of fact be fair and balanced. It is not the case that the trial judge needs to refer to every piece of evidence, nor to every point made, or sought to be made, in cross-examination on witnesses. Where, as sometimes happens, an assertion made by a witness in evidence in chief is shown, in cross-examination, to be false or incorrect, it could be expected that the trial judge, if he or she has referred to that piece of evidence in the review of the examination in chief, will also refer to the evidence that counterbalances it. The trial judge is not required to repeat every submission that has been made to the jury by the legal representatives of the parties. In these days of lengthy and complex criminal trials juries are subject to an unusual and even unnatural burden, of listening to oral addresses and a summing up, which, frequently, proceed over a number of days. To expect a judge needlessly to repeat what has already been put to the jury by counsel is only to add to this burden. In R v Laverne Terrence Williams (1990) 50 A Crim R 213 at 214, Wood J (as the Chief Judge then was) wrote: "Simple and concise summings up which leave the jury in a position to come to a verdict upon a proper basis should be the aim. Two things should not be overlooked. The first is that by the time of the summing up the jury has had the benefit of addresses from the Crown and counsel for the accused which can be assumed to have focused on the factual issues, and advanced reasons for the jury concluding that the guilt of the accused either has or has not been proved beyond reasonable doubt. The second is that jurors are expected to apply their common sense and experience of life in assessing the evidence and deciding the factual issues. It should therefore not be necessary, certainly in routine cases, for there to be extensive reference to the evidence or the arguments advanced by counsel. Nor should there be any need to emphasise the obvious or to underline what really are matters of common sense. The aim of judges should be to identify and summarise simply and concisely for the jury the issues which arise in the trial, and legal principles to be applied to those and no other issues, and the relevant evidence, so as to ensure that the jurors direct their minds to the true questions to be decided before a verdict is reached." 103 It is plain here that the points that it is now contended ought to have been made by the trial judge were forcefully and clearly put to the jury by senior counsel. 104 The judge did allude to the fact that the witnesses were cross-examined, and, in some cases, identified the point sought to be made in cross-examination - for example, that McPhee had been shown to have previously given false evidence while on oath. It certainly was not necessary to take the jury to specific passages in the transcript. That is even more strongly the case where, as here, the jury were to be provided with an indexed copy of the transcript. The comprehensive manner in which the judge summarised senior counsel's address, including references to points made in cross-examination, immediately preceded the summing up of the evidence. 105 Further, the judge treated both parties equally: in summing up the evidence of the defence witnesses, including the appellant, he outlined only their evidence in chief, and not the cross-examination. I have concluded that, in declining to make specific reference to the cross-examination of the prosecution witnesses, his Honour did not occasion any miscarriage of justice. 106 The proper approach to summing up evidence was discussed in R v Zorad (1990) 19 NSWLR 91 (at p105). Had the judge adopted this procedure, and summed up by reference to factual issues he would have identified both the Crown evidence, and any reference made on behalf of the appellant through cross-examination of the Crown witnesses. This, in my view, would have been a preferable approach. However, for reasons already given, in the circumstances of this case, the evidentiary summing up caused no miscarriage of justice. 107 I would reject this ground of appeal.

R v Livingstone

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