93 The evidence of William was taken in the absence of the jury. At the conclusion of his evidence there followed the exchange upon which the Crown relies in its written submissions:
"HIS HONOUR: Just stay there for a moment sir. Mr Williams, in the light of all that evidence, do you want this man before the jury?
WILLIAMS: Yes.
HIS HONOUR: You do?
WILLIAMS: I do yes." (AB 156)
94 There followed some further discussion between the Judge and trial counsel, culminating with the Judge asking:
"All I'm asking, why do you want this man anymore he can't backup your client's alibi.
WILLIAMS: I do need him your Honour because I've read what Noi said and I need both of them before the jury." (T 157)
95 The evidence of John was also taken in the absence of the jury. At the conclusion of his evidence the transcript records the following exchange:
"HIS HONOUR: What do you want me to do with this witness?
CROWN PROSECUTOR: I don't want him to be excused" (AB 194).
96 The Crown Prosecutor stated that it was his intention to call William and John that afternoon. He noted that this would give defence counsel the opportunity to obtain his client's instructions over the luncheon adjournment. Following the luncheon adjournment defence counsel said that he was ready to proceed and William was called.
97 The Crown Prosecutor led lengthy evidence from William and John and relied upon it in his closing submissions:
" Manivorn Phaboutdy and Boupaseuth Phaboutdy were called. I am going to deal with those witnesses separately because they slot into a special part of the logic of the Crown case. I'm not going to trouble you now with reviewing their evidence, except by way of summary to remind you that Mr William Phaboutdy, Mr Manivorn Phaboutdy, you might think and this is a matter entirely for you but what he told you in most of the important respects or clearly there are some conflicts. It wasn't materially different to what the accused told you about in the record of interview - I'm sorry what the accused told Mr Kriticos, Federal Agent Kriticos in the record of interview about his movements.
I'll come to some of the differences in a little while but you might think that there's not all that much of a dispute between what Mr Saengsai-Or told Federal Agent Kriticos and what Mr Manivorn Phaboutdy told you but I'll come to that in a minute.
Mr John Phaboutdy was called and his evidence you might think is critical in this case because you remember that Mr Saengsai-Or has told Mr Kriticos that it was John Phaboutdy who gave him the bottles in the lobby of the hotel to bring back for his boss, and Mr John Phaboutdy denies that, and I'll come to that in a minute because it's perhaps an important part of the material. Well not perhaps it is an important part of the material. (AB 417-418)
…
However, it's important that you also realise that the accused person bears no onus of proof. He doesn't have to prove his innocence. And that's really why the Crown called Mr Manivorn Phaboutdy and Mr John Phaboutdy, because you will recall of course that in the recorded interview both the Phaboutdys get guernseys, and so the Crown in essence both the Phaboutdy's to address that issue (sic), because in summary and this is a schematic way of putting it, what the accused did in his recorded interview was tell Mr Kriticos that these are the circumstances and there doesn't seem to be any dispute that those circumstances that I've just set out, but he says to Mr Kriticos this is the explanation, it's an irrational one (sic), it's consistent with my innocence. That in essence is the structure of the logic. And that's why I said I want to deal with the evidence of the Manivorn Phaboutdy and John Phaboutdy a little later, and I'll deal with them in a way in conjunction with the recorded interview, and I'll make some submissions to you about that. (AB 423)
…
Let me turn now to the evidence of the Phaboutdys, that's Manivorn Phaboutdy and his brother Boupaseuth Phaboutdy (that's William and John respectively, or Ki and Noi.) I mean no disrespect to them I hope when I refer to them as William and John, and I'm referring there to Manivorn Phaboutdy, that's the elder and the younger respectively. Let me summarise very briefly the evidence that they gave you.
William Phaboutdy knew the accused. He told you that there was some connection with spoilers. The accused's car was damaged in some way. His brother worked in a spoiler place. They brought the car up. A spoiler was fitted. They went back. There was some discussion, Manivorn Phaboutdy says, about organising a business in Melbourne for spoilers because they both liked cars or whatever it was. It was toyed around generally. At some stage there was a decision to travel to Vietnam. Arrangements were made. I think he said that Mr Saengsai-Or gave him the money for the trip. He came up to Sydney, purchased the tickets, gave the money for the tickets, and then together they flew over to Vietnam. He didn't know at that stage what his brother's movements were and you will remember he said that his brother lived in Sydney and he didn't see him very often, only rang him occasionally. He got to Vietnam. He was distracted, and really that was pretty much it. He remained distracted, it would appear, in his hotel room until he received a phone call from his brother. They linked up, they went out together and shortly thereafter he returned to Australia. That, in essence, is what he said.
Now apart from the fact that Mr Saengsai-Or alleges, when he was speaking to Mr Kriticos, that Manivorn was aware that John was going to be in Vietnam, what Mr William Phaboutdy told you was pretty much - the accounts were pretty much the same. It is my submission to you that you will accept Manivorn Phaboutdy, that's William Phaboutdy, as a witness of truth.
Before I summarise the evidence of John Phaboutdy, let me make this general observation about the evidence of both of them. There seems to be, as I understand the case for Mr Saengsai-Or, a suggestion that together they had been involved in some sort of conspiracy to dupe the accused. That seems to be the suggestion. The Crown says to you that if that was the case these two men have done an extraordinary inept job of covering their tracks. What they have done in their evidence is provide to you, you might think, and it's certainly the Crown's submission to you, very frankly without any attempt to be evasive they have provided to you a scenario which is probably the most suspicious scenario that one could imagine. It would be perfectly open to them, you might think, to come along to court and say, 'we are two brothers. We went up there together. In due course we met up and we were investigating somehow this mufflers and the like. We've got no idea what Mr Saengsai-Or was up to. Then, you know, we came back. And I met my girlfriend.' And that would have been a perfectly reasonable and unexceptional set of circumstances. But that's not what they've told you.
They have told you, and it's my submission to you they've told you the evidence frankly, they have given you an account of their movements which is almost labyrinthine in its detail, and that's to their credit. They have made absolutely no attempt at all to distance themselves from Mr Saengsai-Or." (AB 430-431) (emphasis added)
98 The Crown Prosecutor went on at length to advance reasons why the jury would find that, "both of these men were extremely honest men" (AB 433.25). He concluded his detailed submissions concerning their evidence by saying:
"The Crown says to you those incidents and the way they gave their evidence is that you will be very impressed with their demeanour. When you look at their evidence and you contrast it particularly with the account given by the accused to Mr Kriticos you will accept their evidence and you will accept John Phaboutdy's absolute unequivocal denial he had anything to do with giving this man bottles of heroin." (AB 433)
99 These passages do not support the Crown contention that the witnesses William and John were called at the behest of the appellant's counsel. As noted above, the Crown Prosecutor opened his case on the basis that William and John were to be called. Their names were on the Crown Prosecutor's list of witnesses. The Crown Prosecutor made clear at all times that he intended to call each of them. The exchange on which the Crown based this submission seems to me to have been taken out of context.
100 The Crown's case was a circumstantial one. The appellant in the interview put forward an account that was consistent with his innocence. It was incumbent on the Crown to remove the reasonable possibility that his account was truthful. This was why the Crown Prosecutor called William and John. He explained this to the jury in the passage that I have set out at [95] above.