THE SUPREME COURT OF NEW SOUTH WALES
70007 of 1991
v. CHEUNG YING LUN
HONOUR: The accused Cheung Ying Lun also known as Garry Cheung is to stand trial
in this court on 15 February 1993 upon an indictment charging that between 1 August
1988 and 12 May 1989 he was knowingly concerned in the importation into Australia
of a quantity of heroin exceeding the commercial quantity.
accused has applied for an order that all proceedings on the proposed indictment
be permanently stayed. That application is rejected for the reasons following.
8 May 1989, the vessel "Nimos" berthed at the Glebe Island Container
Terminal in Sydney. Its cargo included a freezer and a water heater, within which
were concealed 148 blocks of high grade heroin with a total gross weight of approximately
impending arrival of the drug had on 24 April 1989 been made known to the Australian
Federal Police by one Cheung Siu Wah who had been a party to the export of the
drug in December 1988 from Hong Kong by sea to Vanuatu and who had supervised
its repacking and transhipment in Vanuatu.
activities of those in Sydney who were to receive the drug and deal with local
distributors were monitored by police. A controlled delivery of the drug by Cheung
Siu Wah to those others took place on 12 May 1989 and those involved were arrested.
Cheung Siu Wah, who seemingly was thought to have committed no crime in Australia,
was allowed to return to Vanuatu. Following publicity in that country in relation
to the drug seizure in Australia, he was arrested by Vanuatu police and charged
with importation and possession of heroin in that country. He pleaded guilty and
is now serving a term of imprisonment.
the day of the arrests in Sydney, officers of the Royal Hong Kong Police, acting
on information provided by Cheung Siu Wah and the results of their own investigations
since 24 April, arrested the accused and three others, Cheung Wai Man, Ng Yun
Choi and Fung Chi Kwong.
his arrest and extradition to Australia, Ng Yun Choi pleaded guilty to a charge
of conspiracy to import heroin, and was sentenced to a term of imprisonment which
he is now serving. He gave evidence at the trial, in Sydney during 1991, of six
men all of whom were eventually convicted of conspiracy. They were Cheung Wai
Man (who had been extradited from Hong Kong) and Chan Kam Wah, Chi Tak Leung,
Law Yat Kai, Tsui Lok Ping Tyrone and Law Chiu Chun all of whom had been arrested
in Australia. Cheung Siu Wah also gave evidence at that trial.
accused is a resident of Hong Kong where he was an officer in the Customs and
Excise Service, holding the rank of Inspector. A major part of his work involved
the accumulation of intelligence in respect of illegal drugs, and for that purpose
the cultivation of informants. He was highly successful and had received several
commendations. Ng Yun Choi, Cheung Siu Wah and Cheung Wai Man, known drug dealers,
had all acted as his informants from time to time.
Crown proposes to call both Ng Yun Choi and Cheung Siu Wah, and expects that their
evidence will establish the following facts.
about March 1988, the accused was made aware that Cheung Wai Man was in a position
to provide in Hong Kong a very large quantity of heroin. His principals included
Siu Lain and Ko Lo Wah, said to be members of a gang known as the Big Circle,
who were bringing heroin into Hong Kong from China.
1988 the accused was in close touch with Cheung Siu Wah, a Hong Kong businessman.
Cheung Siu Wah was involved, with one Lau Wah, in a project for the establishment
of a garment factory in Vanuatu, to be staffed with immigrant labour from Mongolia,
a province of China. The accused was contemplating an investment in that project
with a view to his eventual retirement from government service. In August 1988,
the accused proposed to Cheung Siu Wah that the latter participate with him in
the export from Hong Kong and importation into Australia of a large quantity of
heroin. He would be assisted by Ng Yun Choi and the heroin would be obtained through
Cheung Wai Man. Generally the plan was that Cheung Siu Wah would use the cover
of the proposed garment factory to transport the heroin to Vanuatu, from whence
it was thought comparatively easy to bring it undetected into Australia. The accused
would ensure safe passage through customs in Hong Kong. The details were developed
at a series of meetings between the accused, Cheung Siu Wah and Ng Yun Choi. Ng
Yun Choi originally acted only as informer, keeping the accused advised of the
activities of Cheung Wai Man and Cheung Siu Wah, but was gradually called upon
to play a more active part (indeed, ultimately, in about March 1989, he was admitted
to the project with a share of the anticipated profits). It was he who arranged
the purchase of a van in which the heroin would be concealed (according to the
accused's plan) for the voyage to Vanuatu and the painting of the van with the
name of the garment company (as directed by the accused); it was he who eventually
took delivery of two consignments of heroin from Siu Lam and from Law Yat Kai,
an associate of Ko Lo Wah; it was he who concealed it in the panels of the van;
and it was he who drove the van to the loading area and into the container previously
booked by Cheung Siu Wah. The accused co-ordinated these activities and the obtaining
by Cheung Siu Wah of a cheque to enable the purchase of the van; but the Crown
does not allege that he played any direct part in either the purchase of the van
or its financing.
ship left Hong Kong on or about 13 December 1988, a round-a-about voyage via Korea
which would not bring it to Vanuatu before late February. In the meantime, Cheung
Siu Wah travelled to Vanuatu to make arrangements for the collection of the cargo,
the unloading of the van from the container and the heroin from the van, the eventual
transport of the heroin suitably concealed to Australia, and its concealment in
Vanuatu in the interim. Having made those arrangements, he returned to Hong Kong.
followed a great deal of delay both in the arrival and unloading of the heroin
in Vanuatu, and in the re-shipment of it from there to Australia. The cause seems
to have been a combination of the coup attempt in Vanuatu and bad weather. Whatever
the cause, it created a great deal of concern and uncertainty among the conspirators.
In March and April 1989, there was a flurry of phone calls, and finally the accused
directed Cheung Siu Wah (who had by then returned to Vanuatu) to go to Australia
on 24 April 1989, evidently to placate the persons waiting there to receive the
drugs. On arrival in Australia, Cheung Siu Wah went (as earlier noted) to the
police, and it seems that even after the ship had arrived he further delayed delivery
of the heroin to facilitate police surveillance and the conduct of investigations
both here and in Hong Kong. The delays caused such concern to the accused (so
contends the Crown) that on three occasions early in May (the first, the fifth
and ninth) he made telephone calls to Cheung Siu Wah. Those calls were lawfully
intercepted and recorded by the Australian Federal Police, and the transcripts
of what was said are heavily relied on by the Crown to show the accused's guilty
Siu Wah was interviewed a number of times by police in Australia, but for some
reason no statement was obtained from him until some months later, following his
arrest by the Vanuatu police. Cheung Wai Man and Ng Yun Choi were both interviewed
in Hong Kong soon after their arrest, and statements were obtained from them.
Whether or not it was at that time Cheung Wai Man's intention to co-operate with
the authorities and plead guilty, the fact is that he ultimately pleaded not guilty,
and at his own trial he made a statement to the jury denying any involvement in
or knowledge of the importation. The accused was interviewed by police in Hong
Kong on two occasions but made no admissions.
resolution of the stay application would have been assisted had counsel for the
accused chosen to place before the court a complete and precise statement of the
line of defence. He has not chosen to do so, and given that the law imposes no
obligation on any accused person to make any disclosure whatsoever (except in
relation to alibi), it would have been inappropriate for the court to press him
to do otherwise. Clearly it would be wrong to draw any adverse inference from
the failure of the accused to adopt that course - for example, an inference that
he has no substantial defence and is concerned only to put the Crown to proof.
so far as it is sought to mount an argument that, because of certain events or
circumstances, the accused is prejudiced in presenting his defence, the court
is put on enquiry as to what the defence is. Counsel has made many references
to the defence, sometimes quite explicitly, usually rather cryptically, but has
not at any stage sought to define it closely. Rather I have been obliged to attempt
to glean the real nature of the defence from those remarks of counsel, from the
written submissions in support of this application, from the applications of the
accused and his solicitor, and from the transcript of proceedings earlier which
took place before Wood, J. If I have misunderstood the real nature of the defence,
that is a price the accused must pay for the way he has chosen to present this
is my understanding that the accused does not contest that, in much the maimer
alleged by the Crown, an importation of heroin into Australia did take place on
or about 8 May 1989, and that at least for a short time before that date, the
accused was aware that something of that nature was going on. However, he denies
any criminal involvement. He will say that such dealings as he had with Cheung
Siu Wah, Ng Yun Choi and Cheung Wai Man (and especially in the period approximate
to the exportation of the heroin from Hong Kong) were solely referrable to the
perfectly proper pursuit of his duty as a customs officer to gain criminal intelligence
in regard to drug dealings in and through Hong Kong. He will not, as I gather,
contend that he did not have any meetings with them at times proximate to the
drug importation, including possibly some of the meetings of which one or other
of the informer witnesses will give evidence, but he will deny that, at any such
meeting which may have taken place, any such conversation occurred as they allege,
in which he assumed an active role in planning, organizing, conducting or supervising
the drug exportation. It seems that as to some of the meetings alleged he will
deny that they took place at all.
will, to that extent only, raise direct issues of primary fact. He has, however,
not attempted to place before the court on the stay application any evidence to
that effect, for example evidence to show that he was elsewhere at any relevant
date or time.
to the three intercepted telephone calls on which the Crown relies, the accused
does not dispute that they occurred nor does he dispute the legality of the intercept
nor the integrity of the resultant recording. However, he will challenge the interpretation
of the Cantonese conversations into English, and will contend that the conversations
properly understood do not have the sinister connotation which the Crown asserts.
He will endeavour to show that they occurred in a context which dispels any such
OF THE STAY APPLICATION
is an onus on an accused person who seeks a stay of a prosecution, to establish
the facts on which he relies: Regina v. Sloane (1990) 49 A. Crim.
stated, the factual bases upon which it is asserted that the accused is entitled
to a stay are:-
that the Australian Government sought his extradition to Australia from Hong Kong
without paying due regard to the consequences that extradition might have upon
his capacity to conduct his defence;
that the consequence in fact of his extradition is that he is deprived of access
to witnesses, information and documents in Hong Kong which he would need, or at
least, of which he would wish to avail himself, for the purposes of the trial;
that he has exhausted every course of action reasonably available to him to obtain
access to such information, witnesses and documents but in that regard has been
frustrated by the refusal of relevant authorities in Hong Kong to make the same
available to him;
that were he on trial in Hong Kong, he would have available to him familiar mechanisms
of the law, such as exist here, and also the provisions of the Hong Kong Bill
of Rights, to enable him to have access to such materials or at any rate to have
the benefit of a judicial determination, after full argument and examination of
the relevant materials, of the question whether he was entitled to such access.
that were he on trial in Hong Kong, he would likely have the benefit of a jury,
all or most of the members of which would understand Cantonese, whereas an Australian
jury not thus equipped will be unable to comprehend or perceive matters vital
to the credit or lack of credit of the informer witnesses.
legal basis of the application for stay which, in the accused's submission, gives
point and legal effect to the factual matters to which I have referred is to be
found in the decisions of the High Court of Australia in Jago v. The District
Court of New South Wales & Ors (1989) 168 CLR 23 and of the English
Court of Appeal (Criminal Division) in Regina v. Judith Ward (unreported
June 1992). Shortly, the contention founded on Jago is that the consequence
of the facts which the applicant asserts is that he is not able to have in New
South Wales a fair trial and that upon that becoming apparent to the court, the
court should stay the proceedings. It includes a contention that, apart from any
unfairness that may result from his being deprived of access to, and the use of
certain documents that he has sought, there is crucial and incurable unfairness
because he is deprived of the opportunity of a ruling by this court on the claim
of immunity asserted in respect of those documents. To the extent that it might
be argued against the accused that the principle in Jago does not extend
far enough to embrace the sort of unfairness that is alleged here, the applicant
argues that the common law ought be understood, in the absence of binding authority
to the contrary, to give to a citizen of this country all of the rights recognized
by the International Covenant on Civil and Political Rights to which Australia
is a signatory.
relation to this last aspect, an application was made by Mr. Bodor, QC on behalf
of the Human Rights Commission to intervene in the proceedings. I reserved my
decision upon that application but invited counsel to tell me what submissions
would be put on behalf of the Commission should such leave be granted. I received
such submissions, written and oral, accordingly. Since I reserved my decision
on the stay application, I have reached the conclusion that it would be proper
(for reasons which I will briefly state later in this judgment) to grant leave
to the Commission to intervene; and I have accordingly had regard to the helpful,
clear and cogent submissions which Mr. Bodor presented on behalf of the Human
Rights Commission, for which assistance I am grateful.
stated the argument based on Ward's case is that where the prosecution
in fact does not disclose to an accused person all of the matters which the accused
person is reasonably entitled to know before he stands trial, the proceedings
ought be stayed. Counsel for the accused was not daunted by the fact that the
principle expressed in Ward relates to the obligation of disclosure on
the part of the prosecuting authority. His argument directed itself to the fact
of non-disclosure, irrespective of the party whose conduct caused such non-disclosure,
whether the prosecuting authority itself or some third party with authority or
power, lawful or unlawful, to withhold such disclosure. On this submission it
is not to the point that the DPP has no power to compel the Hong Kong authorities
to disclose whatever material may be relevant. The argument for the accused looks
primarily only at the position of the accused and contends that if he in fact
is deprived of access to materials which he ought to have for the purpose of his
defence, the outcome must be the same even if it is not the prosecution who is
withholding such materials from him. However, additionally Mr. Nichsolson sought
to rely on the circumstances surrounding the extradition as effectively extending
the class of person embraced by the phrase "the prosecution" to include
the Government of Hong Kong and/or its law enforcement agencies.
LAW: JAGO v. THE DISTRICT COURT
was a case in which a stay was sought because of the long delay between the offences
and the charges, and between the laying of charges and the trial. The stay was
refused by the trial judge and his decision was upheld by the Court of Appeal
and by the High Court. The High Court held, in effect, that proceedings may be
stayed where the right to a fair trial is so much impaired that the further prosecution
of the proceedings will be an abuse of process. In the words of Mason, CJ.:
continuation of process which will culminate in an unfair trial can be seen as
a misuse of the court process which will constitute an abuse of process because
the public interest in holding a trial does not warrant the holding of an unfair
Chief Justice pointed out that the appropriate remedy for unfairness, specifically
because of undue delay but not limited to that, was not necessarily a stay of
is no reason to confine the discretionary power of the courts by arbitrarily stipulating
that a stay is the only proper remedy for undue delay."
CJ. went on to make a second and related point:
appropriate cases, orders may be made to prevent injustice notwithstanding that
there is no reason to suspect that the actual trial, when held, will not be fair.
Thus orders may be directed to ensuring fairness in pre- trial procedures."
Honour instanced an order for expedition where delay was becoming prejudicial.
His Honour gave other instances of orders which might be made, short of a permanent
stay, to meet the exigencies of the particular case - the grant of a limited or
conditional stay, or the making of an order that a proceedings be stayed and not
proceeded with further without specific order of the court.
are two other important points which emerge from the judgment of Mason, CJ. in
Jago. First, the power to grant a stay or to make any other order to prevent
the use of court processes in a manner which gives rise to injustice is discretionary,
to be exercised in a principled way. Second, the power will be used only in most
exceptional circumstances to order that a criminal prosecution be stayed. The
touchstone for the exercise of discretion is in every case fairness. As to that,
Mason, CJ. said:
test of fairness which must be applied involves a balancing process, for the interests
of the accused cannot be considered in isolation without regard to the community's
right to expect that persons charged with criminal offences are brought to trial.
... At the same time it should not be overlooked that the community expects trials
to be fair and to take place within a reasonable time after a person has been
was his Honour's view that:
permanent stay should be ordered only in an extreme case and the making of such
an order on the basis of delay alone will accordingly be very rare." (p.34).
more generally, rather than in the context of delay alone, his Honour said:
justify a permanent stay of criminal proceedings, there must be a fundamental
defect which goes to the root of the trial 'of such a nature that nothing that
a trial judge can do in the conduct of the trial can relieve against its unfair
consequences': Barton (1980) 147 CLR at 111 per Wilson, J."
J. maintained the distinction between a power to prevent an abuse of process and
a power to ensure a fair trial. His Honour said:-\
power to ensure a fair trial is not a power to stop a trial before it starts.
It is a power to mould the procedures of the trial to avoid or minimize prejudice
to either party."
Honour pointed out that obstacles in the way of a fair trial are often encountered
in administering criminal justice, but do not ordinarily cause the proceedings
to be permanently stayed:
occasioned by circumstances outside the court's control does not make the trial
a source of unfairness. When an obstacle to a fair trial is encountered, the
responsibility cast on a trial judge to avoid unfairness to either party but particularly
to the accused is burdensome, but the responsibility is not discharged by refusing
to exercise the jurisdiction to hear and to determine the issues. The responsibility
is discharged by controlling the procedures of the trial by adjournments or other
interlocutory orders, by rulings on evidence and, especially, by directions to
the jury designed to counteract any prejudice which the accused might other suffer."
the other hand:-
radical remedies may be needed to prevent an abuse of process. An abuse of process
occurs when the process of the law is put in motion for a purpose which in the
eye of the law it is not intended to serve or when the process is incapable
of serving the purpose it is intended to serve. The purpose of criminal proceedings
generally speaking is to hear and determine finally whether the accused has engaged
in conduct which amounts to an offence and, on that account, is deserving of punishment.
When criminal process is used only for that purpose and is capable of serving
that purpose, there is no abuse of process. Although it is not possible to state
exhaustively all the categories of abuse of process, it will generally be found
in the use of criminal process inconsistently with some aspect of its true purpose.
... When process is abused, the unfairness against which a litigant is entitled
to protection is his subjection to process which is not intended to serve or which
is not capable of serving its true purpose. But it cannot be said that a trial
is not capable of serving its true purpose when some unfairness has been occasioned
by circumstances outside the court's control unless it be said that an accused
person's liability to conviction is discharged by such unfairness. ..."
J. pointed out that:
serious delay is attributable to the prosecution and an accused has been prejudiced
thereby, the courts are tempted to offer the remedy of a permanent stay. ..."
avoids the possibility that a person may be convicted after a trial and which
he may suffer some prejudice in his defence."
Honour emphasized, however, that:-
understandable the granting of a permanent stay for delay causing prejudice might
be, the remedy cannot be supported unless it would truly be an abuse of process
to try the case. In determining what does amount to an abuse of process the
considerations which favour the expansion of that notion so that it will support
the remedy of permanent stay for delay causing prejudice to an accused must be
set against countervailing considerations which have particular force in the criminal
jurisdiction. Before this court sanctions such an expansion of the notion, it
is appropriate to consider the need for such a radical discretionary power to
refuse to try a criminal case and the effects of vesting such a power in a trial
Honour continued (p.49):-
the flexible use of the power to control the procedure and by the giving of forthright
directions to a jury, a judge can eliminate or virtually eliminate unfairness.
The judge's responsibilities are heavy but that are not discharged by abdication
of the court's duty to try the case. If it be said that judicial measures cannot
always secure perfect justice to an accused, we should ask whether the ideal of
perfect justice has not sounded in rhetoric rather than in law and whether the
legal right of an accused, truly stated, is a right to a trial as fair as the
courts can make it. Were it otherwise, trials would be prevented and convictions
would be set aside when circumstances outside judicial control impair absolute
fairness. To take an obvious example, the administration of the criminal law in
notorious cases brought to a halt be adverse media publicity. To admit a power
to stay a case permanently for delay causing prejudice seems wrongly to undervalue
the advocacy of the orders, rulings and directions of a trial judge removing unfairness
to an accused caused by delay or other misconduct by the prosecution.
although our system of litigation adopts the adversary method in both the criminal
and civil jurisdiction, interests other than those of the litigants are involved
in litigation especially criminal litigation. The community has an immediate interest
in the administration of criminal justice to guarantee peace and order in society..."
p.53 his Honour expressed disapproval of cases in this court and other State Supreme
Courts where "these courts have asserted that the categories of cases in
which the power to grant a permanent stay should be exercised are not closed and
the power is available whenever it would be unfair to the accused to permit the
prosecution to proceed ... in practice so broad a power does not fall far short
of a power which is incompatible with the rule of law".
J. held that the power of a court to control proceedings before it includes the
power to ensure that the court's process is not abused by the proceedings being
made an instrument of unfair oppression. The reference commonly made to an accused's
right to a fair trial was in his Honour's view not sufficiently precise:
speaking, however, there is no such directly enforceable right since no person
has the right to insist upon being prosecuted or tried by the state. What is involved
is more accurately expressed in negative terms as a right not to be tried unfairly
or as an immunity against conviction otherwise than after a fair trial."
Honour acknowledged that as a general proposition it can be said: -
the fault or impropriety on the part of the prosecution in pre trial procedures
can, depending on the circumstances, be so prejudicial to an accused that the
trial itself is made an unfair one."
Honour proceeded to offer examples:
example is where particulars supplied to an accused have been so inadequate and
misleading that an accused has been denied a proper opportunity of preparing is
defence. Another is where impropriety on the part of the prosecution has concealed
from an accused important evidence which would have assisted him in his defence.
In each of those examples, the effect of the default or impropriety could ordinarily
be dealt with by orders (eg. adjournment, further particulars or new trial) which
would avoid unfairness in a subsequent trial or re-trial. It is however possible
to formulate examples of cases in which the effect of default or impropriety on
the part of the prosecution would necessarily be that any subsequent trial was
unfair to the accused. Thus one can envisage circumstances which calculate an
unreasonable delay on the part of the prosecution in bringing proceedings to trial
that so unfairly and permanently prejudice the ability of an accused to defend
himself that no subsequent trial could be a fair one."
Honour was disposed, as was the Chief Justice, to adopt a broad view of abuse
of process so that the prosecution of an accused in circumstances where the trial
could not be fair might amount to such. He said:
unfair trial represents a miscarriage of the curial process. If circumstances
exist in which it can be seen in advance that the effect of prolonged and
unjustifiable delay is that any trial must necessarily be an unfair one, the
continuation of the proceedings to the stage of trial against the wishes of the
accused will constitute an abuse of that curial process. In such a case, the
continuation of proceedings to the stage of trial will inevitably infringe the
right not to be tried unfairly and a court which possess jurisdiction to prevent
abuse of its process, possesses jurisdiction at the suit of the accused to stay
the proceedings pursuant to that power."
J. also declined to treat the principles of abuse of process and the tight to
a fair trial as separate and distinct. He said:
is consistent with authority in principle to regard each notion as part of the
responsibility of the courts to see that justice is done for the parties and the
wider community, ensuring that the appropriate remedy s applied in the particular
case. Where proceedings have been instituted for an improper purpose (abuse of
process), no remedy is likely to be appropriate other than a stay of the proceedings.
No directions given by the judge at trial can protect the accused in that situation.
On the other hand, where an accused has suffered some prejudice in his defence
by reason of delay in bringing his case to trial (a fair trial), it will often
be possible to cure that prejudice by evidentiary rulings and by directions to
the jury regarding the way they should approach the evidence adduced. But
it is conceivable that delay has been so great and consequent prejudice to an
accused so manifest that directions cannot ensure a fair trial. In that situation
a stay of proceedings is the only remedy that meets the situation. Uncommon as
that situation may be, it cannot be excluded. To treat abuse of process and fair
trial as entirely distinct concepts carries the risk that the remedies in each
case will be seen as necessarily different. That will not always be the case.
Greater flexibility and in the end greater justice will be achieved if the two
notions are understood as bearing on each other."
J. acknowledged the existence of a discretionary power to grant a permanent stay
of proceedings founded not on any narrow view of abuse of process but a power
exercisable if the administration of justice so demands. The power was to serve
the general purpose of controlling the court's process and proceedings and accordingly:
"The limited scope of the power to grant a permanent stay necessarily directs
an enquiry whether there are other means by which the defect attending the proceedings
can be eliminated or remedied. And the purpose directs attention to the legal
propriety of the process or proceeding, as distinct from any broad consideration
of the general merits of the case ... Another feature attending criminal proceedings
and relevant to the grant of a permanent stay thereof is that a trial judge, by
reason of the duty to ensure the fairness of a trial, has a number of discretionary
powers which may be exercised in the course of a trial, including the power to
reject evidence which is technically admissible but which would operate unfairly
against the accused ... The exercise of the power to reject evidence, either alone
or in combination with a trial judge's other powers to control criminal proceedings,
will often suffice to remedy any feature of the proceedings which might otherwise
render them unjust or unfair. The existence and availability of these powers,
when considered in the light of the necessary limited scope of the power to grant
a permanent stay, serve to indicate that a court should have regard to the
existence of all its various powers, and should only grant a permanent stay if
satisfied that no other means is available to remedy that feature which, if unremedied,
would render the proceedings so seriously defective, whether by reason of unfairness,
injustice or otherwise as to demand the grant of a permanent stay."
all of the passages quoted, the emphasis has been added by me.
take from that case the following propositions which govern the way in which I
should approach the present matter.
There is a power in this court to stay proceedings either permanently or conditionally.
It is a power to be exercised in exceptional circumstances only, where the making
of any other order would be ineffectual to secure the object of the exercise of
The object of the exercise of the power is to protect an accused person from being
exposed to a trial which in the circumstances must be unfair.
The exercise of the power is discretionary and involves a balancing of the interests
of the accused on the one hand with, on the other, the community's right to expect
that persons charged with criminal offences are brought to trial.
The conditions for the exercise of the power look not only to the fact of unfair
treatment of the accused but also to its source. Distinctions are to be drawn
between situations of unfairness attributable to the conduct of the accused, the
conduct of the prosecutor, or the conduct of some person or body outside the court's
conditions for the exercise of the power are not satisfied merely by demonstrating
that the accused has been or is being in some respect treated unfairly, whether
or not there is a means available to the court to remedy such unfairness at the
time when it was brought to notice. The condition of the exercise of the power
is that the trial itself will be an unfair trial.
LAW - REGINA v. JUDITH WARD
4 November 1974 Judith Ward was convicted in the Crown Court of 12 charges of
murder and other offences arising out of her alleged involvement in a number of
IRA bombings. On 17 September 1991, the Home Secretary referred her case to the
Court of Appeal (Criminal Appeal Division) acting under s.17(l)(a) of the Criminal
Appeal Act 1968. On 4 June 1992, that court quashed the convictions on all counts.
One of the substantial matters that led to that outcome was the failure of the
DPP to disclose before or during the trial certain evidence not used at the trial,
some in the possession of the police, some in the possession of forensic scientists
engaged on behalf of the prosecution and some in the possession of the DPP itself.
The judgment of the court delivered by Glidewell, LJ. makes a close examination
of the obligation cast upon the prosecution to make disclosure of material in
its possession but not proposed to be used at the trial. The obligation to disclose
arises in relation to evidence which is or may be material in relation to the
issues. Before trial, the measure of the obligation to disclose relates to the
issues which are reasonably expected to arise in the course of the trial. During
the trial, the obligation may be extended, insofar as issues unexpectedly arise
in the course of the trial which were not reasonably foreseeable beforehand. The
obligation is to disclose only such evidence as is or may be material - which
means something less than crucial but admits of the possibility that there may
be material in the possession of the prosecution, the nature of which is such
that it is relatively so insignificant in the context of the case viewed as a
whole that non-disclosure may be excused. The court emphasized however that the
scope of the application of the proposition that there may be evidence the disclosure
of which is not required because it is not material is limited to matters which
at the end of the day can be seen to have been of no real significance.
possibility that this view will ultimately be taken of any particular piece of
disclosable evidence should be wholly excluded from the minds of the prosecution
when the question of disclosure is being considered. Non- disclosure is a potent
source of injustice and even with the benefit of hindsight, it will often be difficult
to say whether or not an undisclosed item of evidence might have shifted the balance
or opened up a new line of defence."
court held that the extent of the prosecution's duty of disclosure was not adequately
to be measured in terms of the Attorney-General's Guidelines (1982) 74
Cr. App. R. 302. The accused is entitled to be supplied with "all relevant
evidence of help to the accused" which is not to be led at the trial. The
court emphasized that "all relevant evidence of help to the accused"
is "not limited to evidence which will obviously advance the accused's case".
It is of help to the accused to have the opportunity of considering all the material
evidence which the prosecution have gathered, and from which the prosecution have
made their selection of evidence to be led. The court recognized the existence
of public interest immunity and the possibility that material might ultimately
be withheld from the accused by reason of the public interest. It emphasized,
however, that it was no part of the duty of the prosecuting authority to make
a decision that certain material should be withheld on such grounds. The decision
whether evidence otherwise disclosable should be withheld from disclosure on the
grounds of public interest immunity was one to be made only by the court.
Ward, there was no issue about the fact of non-disclosure, and the major
matter argued was whether in the circumstances of the particular case the failure
to disclose particular evidence amounted to a material irregularity in the trial.
Consequently, a great deal of the very lengthy judgment is concerned with an analysis
of the significance of particular items of evidence in relation to the issues
at the trial, and needs no further comment. Shortly, the materials not disclosed
comprised a number of statements made by the accused at different stages of the
police investigation; the statements of a number of other witnesses whom the police
had interviewed; and material in the possession of the forensic scientists, which
was relevant to the evaluation of the results of certain tests earned out by the
scientists, upon which the Crown case heavily relied.
pp.60-61 of the judgment, the court summarized the principles of law and practice
which in its view at the present time govern the disclosure of evidence by the
prosecution before trial.
'Where the prosecution have taken a statement from a person whom they know can
give material evidence but decide not to call that person as a witness, they are
under a duty to make that person available as a witness for the defence ...' Archbold,
44th edition, paragraph 4-726. It is part of the same passage as is quoted with
approval in this court in Lawson (1990) 90 Cr. App. R. 107 at 114 from
the preceding edition. 'Material evidence' means evidence which tends either to
weaken the prosecution case or to strengthen the defence case.
Unless there are good reasons for not doing so, the duty should normally be performed
by supplying copies of the witness statements to the defence or allowing them
to inspect the statements and make copies: Lawson. Where there are good reasons
for not supplying copies of the statements, the duty to disclose can be performed
by supplying the name and address of the witness to the defence.
In relation to statements recording relevant interviews with the accused, as we
have already said, subject to the possibility of public interest immunity, the
defence are entitled to be supplied with copies of all such statements.
In relation to the evidence of expert witnesses, both for the prosecution and
the defence, the Crown Court (Advance Notice of Expert Evidence) Rules 1987 now
require that any party to the proceedings in the Crown Court who proposes to adduce
expert evidence must, as soon after committal as possible, furnish the other party
with a written statement of any finding or opinion of which he proposes to give
evidence, and where a request in writing is made by that other party, either supply
copies of, or allow the other party to examine, the record of any observation,
test, calculation or other procedure on which such finding or opinion is based.
There is an exception to rule 4 which is not here relevant. What the rules do
not say in terms is that if an expert witness has carried out experiments or tests
which tend to disprove or cast doubt upon the opinion he is expressing, or if
such experiments or tests have been carried out in his laboratory and are known
to him, the party calling him must also disclose the record of such experiments
or tests. In our view the rules do not state this in terms because they can only
be read as requiring the record of all relevant experiments and tests to be disclosed.
It follows that an expert witness who has carried out or knows of experiments
or tests which tend to case doubt on the opinion he is expressing is in our view
under a clear obligation to bring the records of such experiments and tests to
the attention of the solicitor who is instructing him so that it may be disclosed
to the other party. No doubt this process can often be simplified by the expert
for one party (usually the prosecution) supplying his results, and any necessary
working papers, to the expert advising the other party (the defence) directly.
It is true that public interest immunity provides an exception to the general
duty of disclosure. For present purposes it is not necessary to attempt to analyse
the requirements of public interest immunity. But in argument the question arose
whether, if in a criminal case the prosecution wished to claim public interest
immunity for documents helpful to the defence, the prosecution is in law obliged
to give notice to the defence of the asserted right to withhold the documents
so that, if necessary, the court can be asked to rule on the legitimacy of the
prosecution's asserted claim. Mr. Mansfield's position was simple and readily
comprehensible. He submitted that there was such a duty, and that it admitted
of no qualification or exception. Moreover, he contended that it would be incompatible
with a defendant's absolute right to a fair trial to allow the prosecution, who
occupy an adversarial position in criminal proceedings, to be judge in their own
cause on the asserted claim to immunity. Unfortunately, and despite repeated questions
by the court, the Crown's position on this vital issue remained opaque to the
end. We are fully persuaded by Mr. Mansfield's reasoning on this point. It seems
to us that he was right to remind us that when the prosecution acted as judge
in their own cause on the issue of public interest immunity in this case they
committed a significant number of errors which affected the fairness of the proceedings.
Police (sic; presumably an erroneous substitution for 'these') considerations
therefore powerfully reinforce the view that it would be wrong to allow the prosecution
to withhold material documents without giving any notice of that fact to the defence.
If, in a wholly exceptional case, the prosecution are not prepared to have
the issue of public interest immunity determined by a court, the result must inevitably
be that the prosecution will have to be abandoned. (emphasis added)
For the avoidance of doubt we make it clear that we have not overlooked the Attorney
General's Guidelines for the disclosure of 'unused' material to the defence
in cases to be heard on indictment: see (1982) 74 Cr. App. R. 302. It is sufficient
to say that nothing in those guidelines can derogate in any way from the legal
rules which we have stated. It is therefore unnecessary for us to consider to
what extent the Attorney General's guidelines relating to 'sensitive material'
(the phrase used in those guidelines) are in conformity with the law as we have
expounded it in the judgment."
Nicholson on behalf of the accused placed particular emphasis on the proposition
that appears at the end of paragraph (v) of that extract that "if in a wholly
exceptional case the prosecution are not prepared to have the issue of public
interest immunity determined by the a court, the result must inevitably be that
the prosecution will have to be abandoned". In his submission, the situation
here is entirely analogous to that. Documents exist which may help the accused
and he is being deprived of any opportunity to examine them - to examine the bulk
of evidence from which the prosecution has selected that upon which it will rely.
In his submission, the court should approach the matter from the point of view
of the accused and since the court is not being given the opportunity, by examination
of the non-disclosed material, to determine for itself whether it should be disclosed
or whether it is protected by some relevant immunity, the prosecution must be
on behalf of the DPP contests that proposition. He emphasized the distinction
between the prosecuting authority whose obligation of disclosure was the subject
matter of the judgment in Ward, and any other party which is not the prosecutor
and over which the prosecutor can exercise no control or compulsion. He submitted
that in respect of parties of this sort said to be in possession of documents
required by the accused for the purpose of his defence, there was no obligation
on the prosecutor to obtain that material, but both the prosecutor and the accused
were equally in a position to use such means as the law permits to obtain such
accept the submission made on behalf of the DPP. Ward deals and purports
to deal only with the obligation of disclosure that falls upon the prosecuting
party. The analogy that Mr. Nicholson seeks to advance is not valid. Where the
prosecutor wrongly refuses to produce documents, that of itself might justify
a stay, without enquiry except as to whether any of the material withheld is "relevant
material of help to the accused" - that phrase being understood in the expansive
sense explained in the judgment. The obligation of disclosure that rests on the
Crown is an obligation of voluntary or spontaneous disclosure, not a matter merely
of responding to a request or complying with a subpoena.
where an accused person seeks access to information contained in documents which
are in the hands of a person or body which is not the prosecutor, no such obligation
of disclosure can arise. The only obligation of such a person or body is to comply
with the requirements of a subpoena validly issued.
because there is a valid claim of privilege or public interest immunity, or because
(as here) the party concerned is not amenable to subpoena, the documents are not
made available, the ground (if any) of complaint on the part of the accused is
not that there is a breach of an obligation of disclosure, but that because he
has not access to the documents in question, his trial cannot be a fair trial.
In other words, the relevant principles are to be found not in Ward but
Nicholson submitted that for the purpose of the application of the principles
laid down in Ward, it was appropriate to regard the class of persons or organizations
embraced by the phrase "the prosecution" as extending to include the
Government of Hong Kong and/or its law enforcement agencies. He relied upon the
That the accused had never been in Australia until brought here pursuant to the
extradition order and all the acts done by him upon which the Crown relies, were
done or alleged to have been done in Hong Kong.
That by reason of his alleged activities in Hong Kong, he was arrested there and
charged with offences under the law of Hong Kong in respect of which if convicted
there he was liable to a maximum sentence equal to that which he faces in the
That if thus tried in Hong Kong, he would have been able to utilize legal process
under the law of Hong Kong to gain access to the materials that he now seeks,
whereas by reason of his extradition and the attitude adopted by the authorities
in Hong Kong he is in New South Wales deprived of access to those matters.
That that deprivation was a necessary consequence of the decision to extradite
the decision to extradite him was made without regard to his interests, and that
that is established by the contents of Exhibit AS4.
That the investigation which led to the prosecution was carried out jointly by
the Hong Kong police and the Australian police.
find as a fact that the accused was charged in Hong Kong with drug offences under
the Dangerous Drugs Ordinance of Hong Kong and, subject to the availability of
evidence, could have been prosecuted there; that he would in the defence of any
such prosecution have had available to him the remedy of subpoena to secure access
to documents if those documents were not voluntarily or spontaneously disclosed
by the prosecution and that he could have commenced proceedings pursuant to the
provisions of the Hong Kong Bill of Rights Ordinance to compel production if the
ordinary process of subpoena was not effective (but I do not find, looking at
the expert evidence tendered on both sides from Messrs. McCoy and Bruce, that
such proceedings under the Bill of Rights Ordinance would have been successful.
I make no finding either way). I find that the witness Cheung Siu Wah who was
at the relevant time a prisoner in Vanuatu was not willing to go to Hong Kong
to give evidence and could not have been compelled to do so; that at the relevant
time Cheung Wai Man and Ng Yun Choi were under arrest and unlikely to have been
willing to give evidence for the Crown in Hong Kong; and that for those reasons
the prosecuting authority in Hong Kong was not in a position to proceed. I find
d that the decision to extradite the accused to Australia was taken in recognition
both of that fact and of the opinion held that it was contrary to Australia's
interest that persons who appeared to have committed so serious an offence against
the law of this country should not be brought to trial. It was regarded as important
in the interests of Australia to bring the accused and his co-offenders to trial,
and hopefully to conviction and the receipt of heavy sentences, in order to deter
suppliers of narcotics outside Australia from similar activities against the law
of his country. I find that the decision to seek extradition was made without
any consideration being given to the question whether the accused might be prejudiced
in his trial in this country by reason of any inability to obtain access to witnesses
and documents in Hong Kong.
does not appear to me that there is anything in those circumstances to create
a situation in which the Royal Hong Kong Police or the Royal Hong Kong Customs
should be regarded as in any sense part of "the prosecution". They participated
in the investigation, but that is a different matter. The prosecution is a prosecution
in Australia for an alleged offence against the law of Australia and it is conducted
by the Commonwealth Director of Public Prosecutions. The obligation of disclosure
does not fall on those who, whether in Australia or elsewhere, investigated the
matter - it is not an obligation cast on the Australian Federal Police for example.
It is an obligation that falls upon the prosecutor but the extent of it is such
as to require disclosure of materials in the possession of those by whom the investigation
was carried out so far as the DPP is in a position to compel production. Thus
the DPP is obliged to disclose all material able to assist the accused which is
in the possession of Australian authorities and all material which has come into
the DPP's possession from the Royal Hong Kong Police, the Royal Hong Kong Customs
or any other source. It is true that in Ward it was made clear that the
obligation of disclosure extended to materials in the possession not only of the
DPP and the police but also forensic scientists independent of both who had been
engaged to carry out investigations: but it would seem that the DPP was in a position
to compel production of materials supplied to it by its consultants or held by
the consultants on its behalf - hence the obligation of disclosure extended so
far. That is not the relationship between the DPP and the Royal Hong Kong Police
and the Hong Kong Customs. It seems to me that those bodies are not part of the
prosecution and as the DPP lacks any power to compel them to hand over materials
in their possession, it would be absurd and unjust to impose on the DPP any obligation
of disclosure in respect of such materials. For those reasons, I am of the view
that nothing in Ward will assist in the resolution of this application.
LAW - INTERNATIONAL COVENANT
the Human Rights and Equal Opportunity Commission Act 1986, the Commonwealth established
the Human Rights and Equal Opportunity Commission as a body corporate with perpetual
succession, with functions including "to promote an understanding and acceptance,
and the public discussion, of human rights in Australia" and "where
the Commission considers it appropriate to do so, with the leave of the court
hearing the proceedings and subject to any conditions imposed by the court, to
intervene in proceedings that involve human rights issues". "Human rights"
is defined in s.3(1) of the Act to mean "the rights and freedoms and recognized
in the Covenant, declared by the declarations or recognized or declared by any
relevant international instrument".
"the Covenant" is meant "the International Covenant on Civil and
Political Rights", a copy of the English text of which is set out in Schedule
2 of the Act.
3 of Article 14 provides:
the determination of any criminal charge against him, everyone shall be entitled
to the following minimum guarantees, in full equality;
to have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
to examine, or have examined, the witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
Commission resolved to seek leave to intervene in this stay application (not the
trial itself, if it proceeds) for the purpose of assisting the court in relation
to the human rights issues said to be involved in the proceedings. I have determined
that the Commission should have leave to intervene for that purpose and that it
is proper that I should receive submissions on his behalf in view of recent authority
emphasising the relevance of the content of the Covenant to the common law of
Australia. See for example Mabo v. Queensland (1992) 66 ALJR 408 at 417,
422, per Brennan, J. and per Kirby, P. in Regina v. Greer (Court of Criminal
Appeal, unreported 14 August 1992). In Mabo, Brennan, J. said (at 417):-
peace and order of Australian society is built on the legal system. It can be
modified to bring it into conformity with contemporary notions of justice and
human rights, but it cannot be destroyed. It is not possible, a priori, to distinguish
between cases that express a skeletal principle and those which do not, but no
case can command unquestioning adherence if the rule it expresses seriously offends
the values of justice and human rights (especially equality before the law) which
are aspirations of the contemporary Australian legal system. If a postulated rule
of the common law expressed in earlier cases seriously offends those contemporary
values, the question arises whether the rule should be maintained and applied.
Whenever such a question arises, it is necessary to assess whether the particular
rule is an essential rule of our legal system and whether, if the rule were to
be overturned, the disturbance to be apprehended would be disproportionate to
the benefit flowing from the overturning."
have no difficulty with that. It seems to me abundantly clear that the rule of
the common law expressed by the majority in Jago (ironically, not altogether
commanding the assent of Brennan, J.) does not offend but is on the other hand
entirely consonant with "contemporary values", including those expressed
in the Covenant. In Greer, the learned President observed that those
basic rights expressed in the Covenant are rights which the common law in Australia
will ordinarily respect.
appears to me that the relevance of the Covenant to the present matter is this
and no more than this, that it puts the court on notice that a trial conducted
in circumstances where the accused has not been accorded fully the rights referred
to in paragraphs (b) and (e) of paragraph 3 of Article 14 of the Covenant may
be an unfair trial within the meaning of the principles established by Jago.
would have welcomed some assistance from counsel for all parties as to the meaning
of the phrase "in full equality" in the opening paragraph of clause
3 of Article 14 of the Covenant. It may refer to equality with all other persons
facing trial in this country - paragraph (b) is perhaps more compatible with that
reading - or, equality with the prosecutor. Whatever be the proper interpretation,
I am not persuaded that the accused has not been afforded "in full equality"
"adequate time and facilities for the preparation of his defence". So
far as relates to time, the accused has had more than sufficient: I note that
the trial was adjourned by Wood, . in September/October 1991 to allow him the
opportunity of taking such steps as have in fact been undertaken only since the
beginning of August 1992.
is true that some of the material to which the accused seeks access is held outside
Australia, and that, therefore, its production cannot be compelled but is dependent
upon the good grace of those having custody and control of it; but the same is
true of any person who is tried in this country in respect of a crime part or
the whole of which is alleged to have committed in foreign parts; and the same
is true of the prosecutor. In respect of such material as is not available in
Australia, the accused has had, equally with any other person to be tried in respect
of such an offence, and equally with the prosecutor, the opportunity to avail
himself of the provisions of the Australian law for the obtaining of such materials.
He has had the opportunity to have witnesses examined in Hong Kong and so far
as Australian law provides a machinery, has had access to the machinery which
would possibly secure the production for the purpose of that examination of relevant
documents. He has been frustrated in relation to the production of documents and
the attendance of witnesses who are Crown servants, not because the law of Australia
does not treat him equally with every other accused person but because the law
of Hong Kong does not permit compulsion in those regards. I am certainly not prepared
to hold that he has been deprived of adequate facilities for the preparation of
his defence in respect of procuring witnesses other than Crown servants to be
examined in Hong Kong.
is probably the case that if the matter goes to trial the accused will in fact
not be able to obtain the attendance and examination of some witnesses on his
behalf but that is not a consequence of any discrimination against him by the
law of Australia. He has the same right to obtain the attendance and examination
of witnesses on his behalf and under the same conditions as witnesses against
him as does the Crown. It appears to be the fact that certain witnesses whom the
Crown proposes to call are willing to travel to Australia and that the authorities
in Hong Kong are willing to permit them to travel; it is no doubt the case that
if the accused should wish to call witnesses from Hong Kong, they may not be willing
to come or their employers may not be willing to permit them to come, at least
in the absence of proper provision for reimbursement of their expenses and salaries.
The evidence does not show that the accused is in any different position from
the Crown in that regard - neither is in a position to compel the attendance of
witnesses. The evidence shows that the Legal Aid Commission has indicated a willingness
to meet the cost of bringing some witnesses to Australia, but even if that be
not so (and I note that there was some contest about the reasonableness of the
amounts demanded for expenses and salary) it does not necessarily follow that
the trial will not be fair. In any event, the evidence does not show that the
accused is deprived of the opportunity to bring to Australia any particular witness
nominated by him. In respect of witnesses other than Crown servants, just as the
Crown could not oblige any such person to come to Australia to give evidence but
must, if it wished to take that person's evidence, using the procedures provided
by s.7V of the Evidence Act, so too the accused has had the opportunity of availing
himself of that procedure. That it was not entirely successful owes more to the
fact that the application was not made until unreasonably late in the piece than
to any unwillingness on the part of the court or the Crown to facilitate the examination
of such witnesses.
have said, that in my view the effect of the Covenant is that it draws to the
attention of the court that a trial, which takes place in circumstances where
the so called "minimum guarantees" are not afforded to the accused,
may be unfair within the Jago principle. It does not in my view follow
that it must be unfair. It is necessary to examine the circumstances and see to
what extent in the particular case the fact that the accused is deprived in whole
or in part of one of the rights purported to be guaranteed by the Covenant in
fact prejudices him, and whether it does so to such an extent that the trial is
to be seen as unfair.
is clear from the judgments in Jago that a stay of proceedings may be the
appropriate remedy where the prosecution is an abuse of process in the traditional
and narrowest sense (and, per Brennan, J., only then) - that is, where the prosecution
is brought for an improper purpose, or is oppressive (eg. successive prosecutions
for the same act) etc.; but also where the continuance of the prosecution will
be in a broader sense an abuse because, whether on account of delay or for some
other reason, the outcome will be a trial which, no matter how the trial judge
may utilize his many powers and discretions, will be unfair. It is clear that
it is not the possibility of unfairness to the accused which calls for the drastic
remedy of a permanent stay, for such may well be mitigated, or obviated, by other
remedies within the discretion of a judge pre-trial or within the discretion of
the judge at the trial. Absent abuse of process in the narrowest sense, a stay
is justified if it appears, at the time when the stay is sought, that no other
exercise of the court's discretion at that stage or during the trial is likely
to avoid a trial which, after the trial, will be seen to be unfair.
is perhaps worth pausing for a moment to ask what is meant by a "fair trial"
or an "unfair trial". Jago and other relevant authorities from
various jurisdictions were discussed by Professor David Paciocco, The Stay
of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept
(1991) 15 Crim. L.i 315. At p.332-333 the learned author said:
'fair trial' rationale has been challenged on the basis of its uncertainty. It
has been said that the invocation of such a broad discretionary power would be
'unacceptable in a country acknowledging the rule of law.' DPP v. Humphrys
(1977) AC 1 at 24. and its dangers have been lamented as 'too obvious to need
stating'. Connelly (1963) 3 All E.R. 510 per Lord Edmund Davies at 519.
Discretionary powers are not, of course, unknown in the law. They can be exercised
on a more or less principled basis, and this is particularly true, I would suggest,
of a discretion to ensure that a trial is fair. There is a significant difference
between saying that judges have the power to stay proceedings to achieve a fair
result (which might arguably be a subjectively exercised power not in keeping
with the rule of law) and saying that judges have the power to stay proceedings
to ensure a fair trial. This is because the fairness of a trial can be tested
by its conformity with those principles underlying the accusatorial system of
justice ..A fair trial is a public hearing in which the Crown makes a specific
allegation, for which the accused has never before been convicted or acquitted,
that the accused has violated a pre-existing rule of law, during which trial the
Crown bears the burden of establishing that allegation with evidence before an
independent and neutral trier of law and fact, without compelling the accused
in any way to participate in establishing the allegation against him until a case
to meet has been established, and in which the accused is provided with a reasonable
opportunity to make full answer and defence. It is only where the conduct of those
responsible for the prosecution of an offence has jeopardized one or more of these
accusatorial principles that the power to act to ensure a fair trial should arise."
remedy of stay is available to prevent the occurrence of an unfair trial: to prevent
injustice. It is a remedy not to be resorted to wherever and whenever there is
a risk of procedural injustice but only where if, if the trial is permitted to
proceed, the outcome (if a conviction results) would be such that a court of criminal
appeal after the event would be unable to say that no miscarriage of justice had
occurred. The equation of the concept of an unfair trial with the concept of miscarriage
of justice is implicit in the judgment of Mahoney, JA. in Gill v. Walton
(1991-92) 25 NSWLR 190 at 210-211. It may, as his Honour pointed out, include
the situation where there is a denial of natural justice; but I would with respect
include his Honour's use of the term "unacceptable injustice" which
extends beyond the traditional concept of a denial of natural justice to embrace
the "procedural or evidentiary fairness of a particular trial"; but
does not extend so far as to give rise to the power to stay a prosecution "whenever
there will be less than perfect justice". (His Honour dissented in respect
of the outcome of that particular case, but the approach of the other members
of the court was entirely different and did not, as I understand the matter, involve
any dissent from the principles which Mahoney, JA. expressed). Mahoney, JA. went
on to say:
"It is settled that, if a party to a proceeding cannot or will not have a
fair trial of the matters involved, the supervisory jurisdiction of this court
may be invoked. I do not mean by this that this power may be exercised whenever
there will be less than perfect justice. This power is exercisable when the trial
of the issue will depart so far from perfect justice that the result is unacceptable.
The mere fact that a defendant in a proceeding, criminal or civil, suffers from
disadvantages which, in a perfect system operating perfectly, he would not suffer,
is not sufficient to warrant intervention by this court. I made reference to this
in, for example, the Barron case" (Barron v. Attorney General for
New South Wales (1987) 10 NSWLR 215 at 226-22 7) "and in the Cooke
case" (Cooke v. Purcell (1988) 14 NSWLR 51 at 65-67). In Jago,
the members of the High Court made reference to this matter (at 33, 48 et. seq.,
55-56, 71, 76-78). No doubt in each case the court will have regard to what, in
other cases which have been decided by it, it has seen to be an unacceptable disadvantage.
But in the end the court will make a decision, more or less normative, in respect
of the particular disadvantages in question."
court of criminal appeal asked to set aside a conviction upon the grounds of some
demonstrated procedural defect or error of law or discretion does not intervene
merely upon demonstration of the error; but only if the court finds itself unable
to say that no actual miscarriage of justice has resulted. Where the case is able
to be seen in advance as of that nature, the fact that the accused if convicted
might confidently expect to be successful on appeal is not a sufficient reason
to refuse a stay: Barton v. The Queen (1980) 147 CLR 75 at 96-97. However,
the existence of a right of appeal is not irrelevant: the grant of a stay is reserved
for the case where "no other means is available" to avoid injustice,
and unless so much is established at the time of the stay application, the case
for stay is not made out. It is necessary to bear in mind the community's interest
in having a trial (Jago per Mason, CJ. at p.34., Brennan, J. at p.4.9,
Toohey, J. at p.72) and unless there is seen in advance to be a "fundamental
defect which goes to the root of the trial of such a nature that nothing the trial
judge can do in the conduct of the trial can relieve against its unfair consequences",
the proper course is to refuse the stay, leaving the accused to his right of appeal,
when with the benefit of hindsight, the question whether the conviction was a
miscarriage of justice may better be able to be determined.
it seems to me, when it is said that a stay must be granted to prevent an unfair
trial, what is referred to is a trial so affected by the events that have happened
that it can fairly be said in advance that a guilty verdict would be set aside
after the event as a miscarriage of justice.
is not enough that there be a risk of miscarriage - indeed there is a risk of
such in every trial. It is to be recognized that much that appears, in advance
of the trial, to present such a risk can be (and in the ordinary trial is) nullified
by the appropriate exercise of the trial judge's powers and discretions. An "unfair
trial" in the relevant sense is only a trial of which it can be said in advance,
that notwithstanding all that the trial judge may do, a miscarriage of justice
will be the outcome. The degree of probability of miscarriage of justice that
must be shown is a high one: not a mere possibility that the trial will be unfair;
not that such an outcome is "on the cards", or just probable, or very
probable; "there must be a fundamental defect" (per Mason, CJ.), it
must be seen in advance that "any trial must necessarily be an unfair one"
(per Deane, J.).
follows that a trial may be permitted to proceed even after gross delay or even
where the accused has not had the benefit of the "minimum guarantees"
mandated by the international Covenant, where he has no legal representation or
has been unable to locate or summon witnesses whom he would have wished to call,
or to have access to documents which he would wish to have used, unless it can
be seen in advance that the situation is such that should a conviction result
it would represent a miscarriage.
test therefore that has to be applied is a demanding one. It is a test which has
not been addressed by the submissions advanced on behalf of the applicant. Counsel
has been content to demonstrate what materials have been withheld from the accused
and to what forensic purpose such materials may have been put; but has not gone
the necessary further step, to show how the lack of any such material so relates
to the issues in the case that a trial in the absence of access to such material
will necessarily be in the relevant sense unfair. Notwithstanding the lack of
assistance from counsel in that regard, this is a matter that lies at the heart
of the application and which I must consider in due course.
I come to that, it is convenient at this stage to direct some attention to submissions
put on behalf of the accused, which seek to characterize as unfair any trial which
takes place in New South Wales, by comparison of the anticipated incidents of
such a trial with the incidents of a hypothetical trial in Hong Kong.
is true that the accused could have been put on trial in Hong Kong for alleged
offences against the laws of that place: but also, Australia had and has the right
to put him on trial in this country for alleged offences against the laws of Australia,
once the accused is found within the jurisdiction. When he is validly called for
trial here, as he has been, the question whether his trial will be unfair is to
be determined, not by a consideration of how a trial might take place elsewhere,
on other charges and under a different system of law, but by an examination of
the way it will (foreseeably) be conducted here. That in my view is self-evident.
(Indeed, ultimately counsel for the accused expressly abandoned his original submission
that the accused had a right to be put on trial in Hong Kong and that proceedings
here should be stayed until after he had been tried in Hong Kong for any offence
against the laws of that place).
may be the case that in Hong Kong he could have issued subpoenas to the Royal
Hong Kong Police and the Hong Kong Customs and Excise Service (or relied upon
Ward to compel disclosure), and he could have had the benefit of a determination
by the trial judge of the obligation of those parties to disclose information
and produce documents, a determination in the course of which the trial judge
might have exercised a power to inspect the documents before ruling and a determination
in respect of which there may have been a right of appeal; and that he would have
been in a position to issues summonses for the attendance of witnesses who would,
whether Crown servants or not, have been compelled to attend; and to have had
the evidence of Cantonese speaking witnesses heard by jurors who were native speakers
of that language. Such, no doubt, would be the incidents of a trial in Hong Kong
(although it is by no means clear that the claim for public interest immunity
advanced against the accused here, and which would no doubt be advanced in Hong
Kong, would be rejected). But all of that, it seems to me, is beside the point.
accused will (unless a stay be granted) stand trial in Sydney on 15 February 1993.
The question is whether that trial will, in the circumstances, be unfair, so that
if a guilty verdict ensues it might be expected to be set aside for miscarriage
of justice; or whether, notwithstanding that it may appear that in some respects
the treatment of the accused may have been unfair, appropriate orders, rulings
and directions either pre-trial or at the trial will be able to be made and moulded
so as to produce in the result a trial that is not unfair. The fairness or unfairness
of that trial is not to be determined by a consideration of how some other trial
might have been conducted elsewhere.
is appropriate, also, to deal at this stage with a further submission made on
behalf of the accused, which takes its stand upon the proposition that (as will
be seen) documents are being withheld from the accused because of a claim in the
nature of public interest immunity which, asserted by authorities in Hong Kong
in respect of documents which are held in Hong Kong, is not capable of being determined
in this court. It is put that a normal incident of a fair trial in New South Wales
is the right to have access to all documents which may serve a legitimate forensic
purpose and in the event that there is an objection to production, to have that
objection determined by the trial judge. It is put, that the fact that the accused
is deprived of the right to have access subject to any such determination, and
of the right to have that determination made by the trial judge, necessarily renders
the trial unfair.
the fact that the accused cannot compel the production of documents before this
court, and cannot have the issues which arise in respect of such production determined
by this court after proper arguments, inspection of the documents by the trial
judge, if appropriate, and subject to a right of appeal, are circumstances which
are of great relevance in determining whether the trial which may follow must
be an unfair one. But it seems to me that it is not possible to reach a conclusion
that the trial, even in those circumstances, must necessarily be unfair, without
regard to what it is that is withheld from the accused, what is the nature of
the forensic purpose that it would serve if produced, and what is the extent of
the prejudice that the accused will suffer. For example, if there is evidence
available to the accused to support his case on a particular issue, it may be
very difficult for him to show that he is in any way or significantly prejudiced
because he cannot get access to other evidence upon the same issue, because a
party in possession of other evidence upon that issue fails or refuses to produce
it, because he is unable to ask the trial court to rule on the propriety of the
objection that is taken, and because he cannot invoke the coercive powers of the
trial court to have that material brought before it. In short, the question whether
the trial will be an unfair one because the accused is unable to compel the production
of documents before the court, and unable to have the benefit of a ruling by the
court upon such objections to production as may be taken, must depend upon an
evaluation of the forensic purpose to which the documents would be put and the
significance of each particular item in the context of the case as a whole.
resolution of the stay application would have been assisted had the applicant's
counsel provided a single definitive statement of the documents which, it is asserted,
were at the time of the hearing still withheld from the accused, and the lack
of which is asserted to produce (in conjunction with the asserted lack of access
to relevant witnesses) the consequence that the trial of the accused must be unfair.
The argument eventually proceeded on the basis that documents hereinafter referred
to as the Police Schedule and the Customs Schedule were the best reference points.
propose now to set out a brief account of the correspondence between the accused's
solicitor and the relevant Hong Kong authorities in order to show what material
is presently withheld by them from the accused; for what stated reasons; and with
what asserted consequences to the accused.
11 September 1991, 16 September 1991 and again on 30 September 1991, the solicitors
acting for the accused wrote letters to both the Royal Hong Kong Police and the
Hong Kong Commissioner for Customs and Excise requesting that a very large quantity
of documentary material be made available by each, on the basis that it was necessary
to have access to it so that the accused should be able "to obtain a fair
trial". Undertakings to preserve the confidentiality of any "sensitive"
information were offered.
response to both sets of requests was a letter dated 9 October 1991 upon the letterhead
of the Attorney-General's Chambers, Prosecution Division and signed by A.P. Duckett,
QC, Deputy Crown Prosecutor. That letter indicated that the requests for information,
much of which "relates to informers, suspects, surveillance, intelligence
gathering and files associated with the investigation and detection of criminals
involved in drug trafficking", had been considered in the light of the Attorney-General's
Guidelines (1982) 1 All E.R. 734 and of s.57 of the Dangerous Drugs Ordinance,
CAP 134, Laws of Hong Kong which provides, inter alia, measures to preserve the
anonymity of informers or persons who have assisted the police with respect to
offences under that Ordinance. The result was a willingness to supply only a very
limited part of the material sought. The letter states:
remainder of the information requested by you, which is not inconsiderable, has
been considered item by item and in terms of the overall implications. As previously
mentioned it deals for the most part with informers, suspects, criminal intelligence,
surveillance, investigation techniques and the illegal drug trade. It is of a
highly sensitive nature. Despite your assurances of security for any information
released, and with due consideration to your client's right to a fair trial, we
have decided that, because of the potential dangers inherent in the release of
the requested information and the considerations already referred to, your request
for this information should be refused."
request for yet more information was made by the solicitors in a letter to the
Royal Hong Kong Police of 14 October 1991 and in a letter to the Deputy Crown
Prosecutor on 15 October 1991.
22 November 1991 a senior assistant crown prosecutor in Hong Kong wrote to the
solicitors informing that "various materials requested by you" were
being assembled, and a further letter of 17 December 1991 advised that the documents
in question would be posted that day to the Commonwealth DPP who is in a better
position than the Hong Kong authorities to determine whether they should be passed
on to the solicitors having regard to "the case itself, Australian law and
any rulings of the court".
to that correspondence some of the requested material was transmitted from Hong
Kong to the Commonwealth DPP and all of what was received by the DPP was in due
course passed on to the solicitors.
information (or documents containing such) was sought in June 1992; and then on
13 August 1992 the solicitors wrote to the Royal Hong Kong Police and to Hong
Kong Commissioner of Customs and Excise enclosing with each letter a list of documents
still sought from each body respectively, with a request that the same be produced
in Hong Kong in association with and for the purposes of the then proposed and
imminent examination of witnesses pursuant to letters of request despatched from
this court to the High Court of Hong Kong. Copies of these lists had been annexed
to one of the letters of request issued by this court, and they were there identified
respectively as Annexure A (relating to the police) and Annexure B (relating to
need to annex copies thereof to an affidavit later filed produced a confusing
multiplicity of references. For ease of reference and to avoid confusion hereafter
I shall refer to the list of documents solicited from the Royal Hong Kong Police
as "the Police Schedule" and the list submitted to Customs as "the
will later appear in more detail at the relevant stage of this judgment, no documents
were produced in Hong Kong; but it seems that the Hong Kong authorities were prepared
to treat the request as directed not only to production in Hong Kong but as a
further plea to produce relevant material in Sydney for the purpose of the trial
- for by letter dated 4 September 1992, on the letterhead of the Attorney-General's
Chambers, Civil Division over the signature of a senior assistance Crown solicitor,
there was a further and detailed response to the letter of 13 August to the Royal
Hong Kong Police; and by letter dated 8 September 1992, on the letterhead of the
Attorney-General's Chambers, Extradition Unit over the signature of Mr. A.A. Bruce,
a senior assistant Crown Prosecutor, a further and exclusive response to the request
of 13 August 1992 to Customs and Excise.
last mentioned letter maintained, on behalf of the Hong Kong Customs and Excise,
in respect of the items requested in paragraphs 2, 3, 4, 5, 6, 7 and 9 of the
Customs Schedule, the attitude previously expressed on 9 October 1991 by Mr. Duckett.
In relation to the matters mentioned in paragraph 8, the writer indicated that
relevant material was being searched for and if located would be examined and
if not subject to a justifiable claim for privilege, would be made available as
soon as possible. Pursuant to that intimation, material relevant to the request
in paragraph 9 of the Customs Schedule (but not, in the applicant's submission,
sufficient for his needs) was supplied in a letter from Hong Kong Customs and
Excise to the solicitors dated 11 September 1992.
letter of 4 September 1992 referring to the contents of the Police Schedule identified
certain of the documents requested as being not in the possession of the Commissioner
of Police and therefore unable to be released; others as being still examined
to see if they could be released; some as having been already supplied; and other
as to which the attitude expressed in Mr. Duckett's letter of 9 October 1991 was
maintained. As to other parts of the material sought, the documents requested
were enclosed with the letter.
respect of the documents still under consideration, further replies on 9 and 11
November 1992 made some documents available; but disclaimed knowledge of the existence
of or possession of others, and in some cases suggested other sources to which
the request might be directed; and asserted that yet others were still the subject
was how the matter stood when the hearing of the stay application concluded, and
I did not understand Mr. Agius, on behalf of the Crown, to contest Mr. Nicholson's
submission that I should approach the stay application on the basis that no further
documents would be made available. (So too, in respect of one group of documents,
being statements taken by Royal Hong Kong Police Officers from Cheung Wai Man,
who has already been convicted in Australia on a charge arising out of the heroin
shipment, and in respect of which Australian Federal Police have advanced a claim
of public interest immunity on which I have yet to hear final submissions, it
is common ground that I should approach the stay application on the basis that
the accused will not be granted access to those documents).
result of the above described exchanges is that the Police Schedule and the Customs
Schedule stand as the most convenient statement of the documents of which the
accused claims to be deprived, and the lack of which he asserts to have the consequence
that his trial will necessarily be unfair. They are not, however, a definitive
statement of those documents, because they include some material which, it is
conceded, has in fact been supplied, and some the claim for which is no longer
the approach derived from Jago v. District Court, whether a stay should
be ordered requires consideration of the question whether the fact that the accused
cannot get access before the trial to the documents he lists nor make use of them
at the trial will (alone or in conjunction with other circumstances) cause any
trial that ensues to be unfair. That compels an enquiry as to whether any document
to which he points in fact exists, and (if it does) as to the use to which the
accused would put such document or class of document at the trial or in the course
of preparation, that is to say, for what forensic purpose is access sought.
is no basis for objection to a subpoena that the party who served it does not
know whether or not documents exist meeting the description in the subpoena; although
if he is not able to prove that documents exist he will not be in a position to
invite the court to deal with the subpoenaed party for disobedience to the subpoena.
So, it is no objection to the accused's case merely that he has asked for the
production of documents some of which he does not know to exist in fact. However,
the want of such documents cannot be shown to lead to an unfair trial unless it
is shown that such documents do exist (or, perhaps, having at some former time
existed, have since been destroyed: indeed the destruction of evidence which would
otherwise have been available has been a major consideration in many cases where
a stay of proceedings has been granted on the basis of delay). The question whether
each particular document to which the accused points has been shown to exist is
something to be dealt with as a matter of fact in respect of each document as
I come to it.
enquiry into forensic purpose is similar to that which arises where, upon the
return of a subpoena for the production of documents by a stranger to the litigation,
the party producing objects to the documents being made available for inspection
by the parties (but after any objection to the subpoena itself or claim for privilege
or public interest immunity has been disposed of adversely to the party producing):
in terms of the analysis undertaken by Moffitt, P. in Waind v. Hill & National
Employers' Mutual General Association Limited (1978) 1 NSWLR 372, the second
step. His Honour pointed out that there are three steps in the procedure of having
a third party bring documents to court, and in their use thereafter:
first is obeying the subpoena, by the witness bringing the documents to the court
and handing them to the judge. This step involves the determination of any objections
of the witness to the subpoena, or to the production of the documents to the court
pursuant to the subpoena. The second step is the decision of the judge concerning
the preliminary use of the documents, which includes whether or not permission
should be given to a party or parties to inspect the documents. The third step
is the admission into evidence of the document in whole or in part; or the use
of it in the process of evidence being put before the court by cross- examination
or otherwise. It is the third step which alone provides material upon which ultimate
decision in the case rests. In these three steps the stranger and the parties
have different rights, and the function of the judge differs."
relation to the second step, the learned President posed the question, "Does
he" (ie the trial judge) "have a judicial discretion to permit the use
of the documents in any such way as he considers will aid a proper decision of
the issues between the parties, by facilitating the elucidation of the truth in
respect of relevant facts ...?" (p.383) and in the course of the following
pages, gave a firm affirmative answer. His Honour at p.384 observed:
is true that in the exercise of the power in relation to the subpoena, the invasion
of the rights of a third party have been jealously guarded (sic). It is accepted
that the documents should not go beyond the judge against objection of the owner,
unless there is valid reason to do so. It is clear that it can only be legitimate
to do so, so far as is necessary in the proper conduct of the litigation.
It is difficult to see why to do that which is 'requisite for the purpose of justice'
should be restricted by some arbitrary limit ... If a subpoena for production
is properly issued and not set aside, and, if there is ruled to be no valid objection
to the production of the documents to the court, then the documents are in the
control of the judge who is invested with jurisdiction to take all steps necessary
for the proper trial of the issues before him, subject to the due observance of
any relevant rules and procedures of the court. So far as factual matters are
concerned, the proper conduct of the litigation can only be that which fairly
leads to the introduction of all such evidence as is material to the issues to
be tried, and the testing of that evidence by the accepted procedures of the court.
The only legitimate purpose of requiring the production, and permitted the inspection
of a stranger's documents can be to add, in the end, to the relevant evidence
in the case."
p.385 his Honour stated the practice to be as follows:
however objection is raised by the owner of the documents, the judge examines
the documents with some care to ensure there is no abuse of the subpoena, and
to determine whether the documents appear relevant in the sense that they relate
to the subject matter of the proceedings in which event he will permit inspection
by one or both parties at an appropriate time. The question of their admissibility
without more, in accordance with the rules of evidence, does not then arise because,
if relevant, they may be admitted in a variety of ways, as by first establishing
facts or adopting procedures which make them admissible or by their being admitted
by consent. If apparently relevant, I do not see how the objections of the
stranger could prevent their admission in evidence, by consent or otherwise, or
the inspection which may lead to this occurring."
Honour's statement at p.384 that "the only legitimate purpose of requiring
the production and permitting the inspection of a stranger's documents can be
to add in the end to the relevant evidence in the case" is not to be understood
as meaning that there is no right to inspect documents except such as would themselves
be admissible. That is made abundantly clear by the sentence immediately preceding;
and by the passage on p.385 that I have quoted also. Indeed, it was established
in Madison v. Goldrick (1976) 1 NSWLR 651 that an accused is prima facie
entitled to inspect any document which may give him the opportunity to pursue
a proper and fruitful course in cross-examination, in the latter case Samuels,
JA. pointed out that:
some means is available of obtaining access to documents such as witness's statements,
a defendant ... may be quite unable to establish vital discrepancies where they
do in fact occur."
Regina v. Saleam (1989) 16 NSWLR 14, the Court of Criminal Appeal adapted
to the question of the right of access to subpoenaed documents the test expressed
by Gibbs, CJ. in Alister v. The Queen with regard to the question whether
a judge required to rule upon a claim for public interest immunity should inspect
documents. Hunt, J. (as he then was) said:
my view when a trial judge is faced with a subpoena of this kind, he should require
counsel for the accused to identify expressly and with precision the legitimate
forensic purpose for which he seeks access to the documents, and the judge should
refuse access to the documents until such an identification has been made ...
In my view the criterion finally suggested by Gibbs, CJ. in Mister v. The Queen"
(Alister v. The Queen (1984) 154 CLR 404) "as that which had to be
satisfied before a court should inspect documents in relation to which a claim
for public interest immunity had been made is appropriate to be applied also when
the trial judge has to determine whether access should be granted to documents
subpoenaed from the police in relation to which objection has been taken that
no legitimate forensic purpose exists for their production. He must be satisfied
that it is 'on the cards' that the documents would materially assist the accused
in his defence. Before granting access when such an objection has been taken the
judge should usually inspect the documents (or those which the Crown may suggest
are sufficiently representative) for himself, as it is unfortunately not unknown
for the objection taken to be misconceived ... If no public interest immunity
or other privilege is claimed (and upheld), and if a legitimate forensic purpose
for their production has been demonstrated, the judge should not withhold access
to the documents simply on the basis that in his view that purpose would not be
satisfied in that particular case because he can see nothing in the documents
which will in fact assist the accused in his defence. Provided that a legitimate
forensic purpose has been demonstrated, it should be for the accused (or, in appropriate
cases, for his legal advisers only) to satisfy himself on that score after his
own inspection of the documents."
summary, therefore, the accused will have shown a legitimate forensic purpose
for which he seeks access to the documents in question if he shows that they have
apparent relevance to the subject matter of the trial, meaning thereby the issues
to be tried. If they have no apparent relevance, there is no legitimate forensic
purpose attaching to them; if they have apparent relevance, and hence are capable
of being used to add to the relevant evidence, either directly by tender or indirectly
by facilitating the testing of other evidence, it is for the accused and his counsel
to determine whether they can in fact be used, and it would be wrong to conclude
that they have no legitimate forensic purpose, merely because it does not appear
to the judge that the documents in question can in fact be used to the advantage
of the accused.
the Police and Customs Schedules, there is appended to the description of each
class of document sought a brief statement of the forensic purpose to which the
accused would propose to put the material if made available to him. There were
earlier statements of forensic purpose made in certain affidavits of the accused's
solicitor filed at earlier stages of the proceedings especially in relation to
the applications for adjournment in September and October 1991. Also, in written
and oral submissions in the course of the stay proceedings, Mr. Nicholson endeavoured
to make more clear the several forensic purposes that the documents would serve.
far as I am able to gather from the submissions of counsel and the assertions
of forensic purpose in the two Schedules and in Mr. Bilinsky's affidavits, the
documents, or some particular documents or classes of document, are sought for
one or more forensic purposes which I would summarize or paraphrase as follows.
To demonstrate to the jury the true nature of the relationship between the accused
and the informer witnesses Cheung Siu Wah and Ng Yun Choi who, together with Cheung
Wai Man, were informants, conveying to the accused as an investigator valued information
about drug dealing which over the years had led to many major drug seizures and
demonstrate to the jury the professional ability and integrity of the accused
in his duties generally and in his dealings with informants in particular.
To reinforce other evidence of his good character, including demonstration of
his integrity (in that he had not availed himself of many earlier opportunities
to be corrupt) and of the high regard in which he was held by his superiors (manifested
by official commendations and glowing periodic appraisals).
To show that he had earned commendations and good reports despite a tendency,
sometimes criticized by his superiors, to be lax in the matter of submitting written
reports; and in the light of that to minimize the adverse effect of his admitted
failure in the period when the relevant heroin shipment was in progress, to make
any report of the facts or suspicions becoming known to him.
To demonstrate the involvement in the heroin shipment of other persons than those
already charged, and in particular members of the Triad group known as Lo Luen
and of the Big Circle gang.
To demonstrate the lack of evidence of contact between him and those by whom the
shipment was effected, including not only Cheung Siu Wah and Ng Yun Choi and the
five men already convicted after the trial before Sully, J. in 1991, but also
the so far unidentified members of the Lo Luen Triad and the Big Circle gang.
To provide evidence to contradict the evidence of Cheung Siu Wah and Ng Yun Choi
of specific acts done by the accused in furtherance of the heroin shipment, in
particular showing that those men (and indeed the accused himself) were under
police surveillance during periods when meetings are alleged to have taken place
between them, yet relevant surveillance reports do not disclose any such meetings
as the informant witnesses allege.
To show that the accused had filed intelligence reports implicating in criminal
activity some of the very people with whom he is alleged to have conspired to
bring about this heroin shipment; and that the ensuing investigations were, at
least in some instances, committed to investigators other than himself over whom
he had no control; thus founding a submission that it was unlikely, so unlikely
as to be absurd, to suggest that he would have engaged in criminal activity jointly
with such persons.
To equip his counsel for cross-examination of the two informer witnesses by arming
him with every statement made by each, and with the notes or other record of every
interview that each may have had with police officers; and with the statements
of others who participated in various stages of the enterprise.
To examine the extent of the information available to the Australian Federal Police
and Royal Hong Kong Police at each stage of the investigation, in the hope of
showing, should it be the case, that it was possible that:
the informers had been coached to expand or embroider their stories to the detriment
of the accused;
that one or other police force or police officer had concealed or failed to communicate
to others material which might be favourable to the accused or indeed, tend to
show that he was not criminally involved;
that the police had been (whether improperly or merely inefficiently) selective
in respect of the persons they chose to interview or the lines of enquiry they
chose to follow, hence failing to uncover the involvement of others in the shipment
and failing to uncover matters which would have tended to show that the accused
was not criminally involved.
To show the lack of any other evidence to implicate the accused other than the
testimony of the informers and the three telephone intercepts; the lack of corroboration
of the evidence of the informants as to things allegedly said or done by the accused
prior to the first of those telephone calls; and to emphasize that lack in light
of the breadth and depth of the investigation.
To show the existence of and to use, at least in cross-examination of the informers,
evidence of other persons involved in the shipment that is inconsistent with certain
parts of the evidence of those informers; to found a submission that they have
altered their stories to the detriment of the accused, or at least, that their
stories are unreliable or otherwise not worthy of belief.
To show motivation on the part of the informers falsely to incriminate the accused,
in order to eliminate the Hong Kong Customs and Excise Services' best and (to
the informers) most dangerous investigator;
to protect the Triad and Big Circle members by whom the shipment was in fact directed;
to benefit themselves financially and by their securing immunity from prosecution.
To demonstrate the criminal character of the informer witnesses and others.
To investigate whether the maimer m which police officers were required, by relevant
orders or regulations, to deal with informers inhibited Customs officers from
making their informers available to police officers during the relevant period
of the heroin transaction.
(Taken verbatim from the Customs Schedule because I do not understand and hence
cannot paraphrase the forensic purpose asserted). (paragraph 4 relating to Investigation
Bureau Intelligence reports of information provided by certain named persons).
"Gary Cheung seeks to identify the relationship between the named persons
and the Department either through himself or others within the Department as sources
of information concerning dealing in dangerous drugs or to exclude that situation."
does not, of course, follow from the fact that the accused has identified a legitimate
forensic purpose for access to particular documents which are withheld from him,
that a trial held without his having such access will necessarily be unfair. However
the contrary is true - if the accused is unable to show a legitimate forensic
purpose for access to some document, the withholding of it cannot occasion unfairness
at the trial.
Crown's response was threefold - (i) to deny, in most instances, the capacity
of the documents (even if they exist - as to which there was another issue) to
serve the stated purpose; (ii) in some instances to deny the legitimacy of the
suggested forensic purpose; (iii) to submit that, even if any or all of the documents
sought be capable of serving a legitimate forensic purpose, the fact that the
accused has been unable to gain access to them does not mean the trial will be
unfair nor otherwise justify a stay.
the question in fact one of granting or withholding access to documents in fact
produced on subpoena, the Crown's submission that the documents were not capable
of serving the suggested forensic purpose would not arise: R. v. Saleam
(supra). It will, however, be a matter of significance in determining whether
the fact that the accused is deprived of access to documents in respect of which
a legitimate forensic purpose has been identified is likely to cause the trial
to be unfair.
forensic purposes which are stated in the paragraphs I have numbered 1, 2, 3,
4, 6, 7, 8, 9, 11, 12, 13 and 14 appear to be legitimate matters that the accused
might properly pursue at the trial. On the other hand, those asserted in paragraphs
5, 10, 15 and 16 are less obviously so. Indeed that stated in 16, I simply do
not understand; and that stated in 15 appears almost to be frivolous. It was not
the subject of specific submissions. If the implication is that the accused refrained
from disclosing to police his dealings with informers and information received,
because of some inhibition he felt arising from the way that the police were obliged
to act in such event, it would have been open to him to lay an evidentiary foundation
by asserting that such was the case: but that is lacking. If the point relates
to the conduct of other customs officers, it appears to be irrelevant.
to the forensic purpose stated in paragraph 5, I am of the view that to establish,
if it were possible to do so, that others were involved in the shipment in addition
to the six already prosecuted and Cheung Siu Wah and Ng Yun Choi, and (as the
Crown alleges) the accused himself, does not in any way contribute to the defence
that the accused was not and cannot be proved to have been involved. The proposed
investigation of the adequacy, competence or thoroughness of the investigation,
implicit in paragraph 5 and expressed in paragraph 10(c) appears on the face of
it to be no more than a fishing expedition in the sense specifically deprecated
in Associated Dominions Assurance Society Pty. Limited v. John Fairfax &
Sons Pty. Limited:-
'fishing expedition' in the sense in which the phrase has been used in the law
means as I understand it that a person who has no evidence that fish of a particular
kind are in a pool desires to be at liberty to drag it for the purpose of finding
out whether there are any there or not."
show that police did not investigate as thoroughly as might have been done (paragraph
10(b)) is a matter of no relevance or significance unless there is some reason
to believe that a better investigation would have revealed matters of assistance
to the accused; not merely matters implicating others. The existence of any such
matter would have to be shown, or at least reason to believe in its existence.
One would have thought that the accused was best placed to know of the existence
of any exculpatory material upon which he wished to rely, but he has given no
evidence of the existence of any such.
forensic purpose expressed in paragraph 10(a) amounts to fishing, in the sense
that there is no evidence that informers had been coached to expand or embroider
their stories to the detriment of the accused; although there was some cross-examination
at the first trial along those lines. Can it nevertheless be justified? Just as
it may be a legitimate forensic purpose to seek access to statements of witnesses
in advance of their giving evidence, so that discrepancies may be detected, it
may also, as was the case in Madison v. Goldrick, be a legitimate forensic
purpose to seek access to statements in the possession of a police officer in
order to show that he had the wherewithal to construct what was alleged to have
been a false confessional statement. That, however, falls short of showing the
validity of the forensic purpose stated in paragraph 10(a). It would be one thing
to obtain access to successive statements made by the same witness in order to
show how his story had developed or varied from time to time. In such a case,
however, the relevant material would be what appeared in the witness's statements,
not what was within the knowledge of police officers conducting the investigation
- if indeed, the witness's story had been expanded at the instigation of the police,
the source was as likely to be in the imagination as in the knowledge of the police
these preliminary comments, I now turn to a consideration of the accused's claim
in respect of each group of documents he has sought.
DENIED TO THE ACCUSED
appears to me that the onus which rests upon the accused to establish the factual
basis of his claim to a stay requires him to show, as to each document or class
of documents of the withholding of which he complains:
Some prima facie reason to believe in the existence of the document.
That the documents are not available despite reasonable efforts on the part of
the accused to procure them.
A legitimate forensic purpose.
In what way the lack of access to the document will render the trial unfair.
I pointed out in the course of the argument, this last is not so much a matter
of fact to be proved by evidence, but a matter to be demonstrated by legal argument,
on which basis I cut short the oral evidence of Mr. Bilinsky and invited Mr. Nicholson
to tell me from the bar table in what way lack of access to each document would
prejudice the accused.
propose now to consider those matters in respect of each of the documents identified
in the Schedules, except so far as they have already been produced.
is to be noted that of the documents identified in the two Schedules, some have
been provided and need no further consideration, namely in the Police Schedule,
paragraphs 19, 22, 26, 28, 40 and 41 (subject to these qualifications, that material
presented in accordance with paragraphs 22 and 28 excludes the statements from
Cheung Wai Man which are subject to an unresolved claim of public interest immunity;
and of the five files identified in paragraph 41, two only have been provided);
and in the Customs Schedule, paragraph 3. In relation to certain criminal records
referred to in paragraphs 23 and 35 in the Police Schedule, some have been provided;
and there is an offer to produce the record of any other named person once it
is clear that that person is to be a witness at the trial.
is convenient to deal with the documents not necessarily in the order in which
they are set out in the Schedules.
Police Schedule, paragraphs 5, 14, 15, 16, 17, 19, 22, 37, 38 and 39
of these items in the Schedule relates wholly or in part to materials which, if
they exist (as to which I find it unnecessary to make any finding) might be expected
to be in the possession of the Australian Federal Police, in the form either of
originals received from Hong Kong or copies of materials sent to Hong Kong.
is no evidence of any attempt to obtain them from the Australian Federal Police;
and no reason to suppose that the Australian Federal Police will be unwilling
to produce them if called on subpoena to do so, or on request (subject, of course,
to the existence of any legitimate forensic purpose to be served by granting access
to them to the accused). The accused has failed to show that he is denied access
to any such documents; and they therefore call for no further consideration in
relation to the stay application.
shall refer later again to paragraphs 5, 19, 22 and 38 so far as they are expressed
to refer also to materials not likely to be in the possession of the Australian
Schedule, paragraphs 4, 5 and 8
items relate to recording of telephone calls by the Royal Hong Kong Police. To
the extent that paragraph 5 refers also to recordings made by the Australian Federal
Police, it has been already dealt with. Paragraph 4 refers to calls to or by Ng
Yun Choi, Ko Lo Wah, Siu Lam, Law Yat Kai, Cheung Wai Man and Cheung Siu Wah during
the period 1 June 1988 to 3 August 1989; paragraph 5 to conversations of Cheung
Siu Wah during the same period; and paragraph 8 to conversations of the accused
between 1 July 1988 and his arrest on 12 May 1989.
forensic purposes relied upon are two-fold - demonstration of the absence of contact
at relevant times between the accused and the named persons; and demonstration
of the involvement in the crime of other persons apart from those previously identified.
to the latter, I need only repeat my earlier opinion that this is irrelevant.
A distinction has to be drawn between such a case as this, where any number of
people may have been involved in some way and not necessarily all aware of the
involvement of the others, and a case where the crime consists of a single act
obviously done by one or a very small group of people. In the latter type of case,
the issue being whether the accused was the one, or one of an obviously limited
group, proof that particular others were involved may go a long way to exonerate
the accused; but the same is by no means true in the former class of case. In
my view any attempt by the accused to demonstrate the involvement of other persons,
no matter how successful, at the trial would raise a false issue. In those circumstances
I am unable to conclude that the fairness of the accused's trial will be in any
way diminished by his inability to pursue such lines of enquiry. It is to be borne
in mind that a trial is an adversary process directed to the determination of
particular issues, namely whether the Crown has proved beyond reasonable doubt
each of the elements of the offence with which an accused person is charged. It
is a trial of issues, it is not a commission of enquiry into the circumstances
surrounding an offence.
response from Hong Kong to those requests was the letter from the Senior Assistant
Crown Solicitor of 4 September 1992 which says of these requests and others:
documents are not in the possession of the Commissioner and cannot therefore be
is not in terms a statement that no such documents exist, although that may have
been what was intended to be conveyed. In any event, on 7 September the Crown
Solicitor was asked to inform the accused's solicitor who had possession of the
documents referred to, and the reply 11 September 1992 stated that "the Commissioner
of Police is unaware of the existence of these documents and accordingly is inform
you of their whereabouts". There is no evidence to the contrary. In short,
there is no evidence to suggest the existence of the documents; the accused has
failed to discharge the onus of establishing, in this regard, the facts upon which
3. Police Schedule,
paragraphs 9, 18, 19, 22, 28, 29, 32 and 33
is convenient to group these requests together because, one way or another, each
relates to the investigation of the heroin shipment, by the Royal Hong Kong Police:
indeed, one would think it likely that the materials referred to in most of the
other paragraphs, if they exist, would be likely to form part of the investigation
file the subject of paragraph 9.
19, 22 and 28 have already been referred to. The Royal Hong Kong Police have provided
a list of persons from whom statements were obtained, and copies of all such statements
were sent by them to the DPP. The DPP has made available all of those statements,
except two made by Cheung Wai Man, which have been withheld pending determination
of a claim for public interest immunity. There is no evidence of the existence
of any documents within the terms of paragraphs 22 and 28 other than the statements.
far as concerns the statements of Cheung Wai Man, they are identified as having
been made on 14 and 15 May 1989, within a few days of his arrest. The argument
proceeded on the basis that in these statements Cheung Wai Man had given an account
of the heroin shipment, which constitutes probably the earliest account by one
of the persons involved. As remarked earlier, Cheung Wai Man was one of those
who had stood trial before Sully, J. in 1991. The statements were not put in evidence
against him, from which Mr. Nicholson infers that they were statements made on
a without prejudice basis, and that is the conclusion I would draw. (I refrain,
in this judgment, from any reliance on my own knowledge of the contents of the
statements derived in the course of the part heard privilege claim). At his trial,
Cheung Wai Man made an unsworn statement denying any involvement in or knowledge
of the heroin shipment. He is not a person who the Crown proposes to call as a
witness. If he were, the demand for access to his statement would be unanswerable
and it is unlikely that any claim of public interest immunity would be advanced.
The question arises, what use could the statement be put to by this accused, at
a trial in which CheungWai Man was not a witness. Obviously there is no basis
on which the statement could go into evidence. Nor is it easy to see any way in
which it could as such be effectively used in cross-examination of Ng Yun Choi
or Cheung Siu Wah: if it were shown to them it could not be identified nor its
contents revealed. At most, each might be asked whether, having read it (or a
particular part of it) he adhered to some particular part of his own evidence.
The result of such an enquiry can only be guessed. What can, I think, fairly be
said is that lack of access to the statement for that use of it cannot be seen
to be productive of any but minimal prejudice, and certainly would not be a factor
rendering the trial unfair. The most it seems to me that can be said is that the
accused is deprived of the opportunity of knowing what Cheung Wai Man has said,
and hence of following up possible lines of enquiry that his statement might disclose
or obtaining a knowledge of the actions of others, which knowledge might in some
unidentified way assist the defence. To say so much falls far short of saying
that the defence is in fact prejudiced or likely to be prejudiced by the withholding
of Cheung Wai Man's statement.
I note that Cheung Wai Man having been sentenced by Sully, J. is now, presumably,
serving a sentence in New South Wales. It is open to the accused's solicitor to
enquire of him whether he is willing to be interviewed. I appreciate that he has
lodged an appeal and may accordingly be unwilling to co operate. He is, of course,
amenable to subpoena.
to the materials referred to in paragraph 29, it has been stated on behalf of
the Royal Hong Kong Police that the Commissioner has no knowledge of the existence
of any such documents and there is no evidence to the contrary. The onus of proof
not being discharged, there is no need to discuss the asserted forensic purpose.
It might further be observed that the documents referred to, if they exist, are
documents of the Independent Commission Against Corruption (Hong Kong) but there
is no evidence of any request made to that body for access to them.
18 seeks "records of information received from informers during the period
1 July 1998 to 12 May 1989 inclusive concerning the planned or actual shipment
of heroin from Hong Kong to Australia via Vanuatu concerning which shipment Cheung
Ying Lun was charged on 12 May 1989".
is no direct evidence that any such record (or information) exists. The response
of Royal Hong Kong Police was (in respect of this and several other paragraphs
of Schedule A):
documents are still being examined to determine if they can be released."
Nicholson contends that the answer itself provides evidence from which I should
be satisfied of the existence of the documents. I do not agree. No doubt such
an inference could be drawn but I decline to draw it. At most, it seems to me,
the answer is to be read as asserting that consideration is being given to any
documents that may be found to fall within the nominated descriptions. I am not
prepared to infer that particular documents in fact exist within the description
given in paragraph 18.
forensic purpose is asserted in the following terms:
"This will assist Cheung Ying Lun to identify possible reasons for false
accusations by Cheung Siu Wah and Ng Yun Choi against him in respect of the heroin
would accept that this stated forensic purpose is legitimate (cf. paragraph 13
on p.48) but I am quite unable to see on what basis it can be suggested that the
documents sought would advance that purpose.
will also reveal whether contradictory information was available to the authorities
excluding his involvement and naming other persons as responsible. The circumstances
of the investigation or non-investigation of this information could touch upon
the adequacy of the investigation as evidence being presented for trial."
appears to indicate no more than a wish to embark upon a fishing expedition. I
have already expressed my view that it is quite irrelevant to show the involvement
of other persons; I fail to see how material of the kind referred to here could
be capable of excluding the involvement of the accused; and the adequacy of the
investigation is not as such a legitimate subject of investigation at the trial.
could also reflect on the evidence given by the persons Ng Yun Choi and Cheung
is a matter of mere speculation. I am unable to reach a conclusion that the withholding
of any of this material (even if it were shown to exist) would so prejudice the
accused as to cause any concern that the trial might not be fair.
9, 32 and 33 all seek access to material associated with the investigation for
no other purpose than to investigate its adequacy (the purpose I have identified
as number 10 discussed earlier) or, to demonstrate the length and breadth of the
investigation in order to found a submission to the jury highlighting the paucity
of evidence against the accused, against the background of so complete an investigation.
This latter is clearly a legitimate forensic purpose, but I see no reason to believe
that the accused will not be able to lay an adequate foundation for that submission
by cross-examination of the police witnesses, even without access to the materials
requested in these paragraphs.
accused has failed to satisfy me that the withholding of any of the materials
referred to in this section of my judgment will or will be likely to cause any
significant detriment to the fairness of the trial.
Police Schedule, paragraph 34
recordings and transcripts of tape recordings of all interviews with Cheung Siu
Wah and Ng Yun Choi in Vanuatu, Hong Kong or Australia during the period 1 January
1989 to 3 August 1989 inclusive concerning the shipment of heroin ...". The
response from Royal Hong Kong Police on 4 September 1992 was, "These documents
are still being examined to determine if they can be released". Again I would
not from that infer the existence of any document or tape meeting the description
given. Absent that inference, there is no evidence of the existence of any tape
recording of any interview with Ng Yun Choi, nor is there evidence of any tape
recording of any interview with Cheung Siu Wah in Australia or in Hong Kong.
Crown accepts that an interview between officers of the Australian Federal Police
and the informer Cheung Siu Wah took place in Vanuatu following the informer's
arrest there. The interview was tape recorded. The Australian Federal Police assert
that the resultant tapes were taken to Hong Kong by Detective Foster and Detective
Muddle and were left at the offices of the Royal Hong Kong Police. The Royal Hong
Kong Police have stated that they have no record of the receipt of that material
and are not in a position to produce it. The material before me does not establish
the present existence of the tape. It must be accepted that the accused will not
be able to get it for use before and at the trial. He must proceed without the
opportunity to cross-examine Cheung Siu Wah or police officers upon it. Whether
that is in fact a source of prejudice can only be a matter of speculation because
there is no way of knowing whether there will be any variance between Cheung Siu
Wah's evidence and what was recorded. In any event, it appears that at the trial
before Sully, J. in 1991, Cheung Siu Wah was cross-examined on the basis of a
document which purported to be derived from the missing tape, which document is
available to this accused; and that Foster and Muddle will be called in the Crown
case. To a very large extent it seems to me that any possible prejudice stemming
from the unavailability of the tape will be offset by the comment available to
the accused. In any event, it does not appear to me that the loss of the tape
can at this stage be seen to be a matter of such significance as to produce the
result, alone or in combination with other factors, that the trial will necessarily
5. Police Schedule,
request relates to orders issued within the Hong Kong Police Force concerning
practices to be followed when dealing with confidential informers of officers
of the Department of Customs and Excise. The Crown points out that there is no
evidence of the existence of any such documents, the Commissioner of Police denying
their existence. The forensic purpose is that referred to in paragraph 16 on page
45, which I have already described as almost frivolous. One would have thought
that if it were the fact that the accused or other Customs officers were in any
way inhibited in disclosing informer material to the police because of an awareness
that the police would deal with it in a particular way, that much at least would
be the subject of evidence from the accused. He has chosen to place no evidence
before the court on that question whatsoever. In this regard as in others the
onus of proof is not discharged.
Police Schedule, paragraphs 10, 11, 12, 13 and 35
requests relate to intelligence files in relation to named individuals and generally
with regard to the membership of the Lo Luen Triad and the Big Circle Gang. Paragraph
35 relates specifically to Lau Wah and has been dealt with in part earlier. The
request made included his criminal history and the Royal Hong Kong Police have
indicated that that will be provided should it emerge that he is to be a witness
at the trial.
purposes for which the accused's representatives seek reference to the several
intelligence files appear to be two-fold. First, and legitimately, to lend aid
to the contention that there is no evidence of association between the accused
and the named individuals during the period leading up to and embracing the carrying
out of the crime. Secondly, to identify other persons involved in the crime apart
from those already identified. The response from Hong Kong Police to these requests
is to assert that no such documents as are described are in the possession of
the Commissioner or to his knowledge in existence, except documents relating to
Cheung Siu Wah and Ko Lo Wah. There is nothing in the evidence to suggest otherwise.
Accordingly in respect of documents relating to persons other than the two I have
named, the accused has failed to discharge the onus of proof which rests upon
him in this application.
relation to documents dealing with Cheung Siu Wah and Ko Lo Wah, the Commissioner
declines to release them, on the grounds earlier stated in the letter of Mr. Duckett
of 9 October 1991, in short, a claim is made for public interest immunity. For
reasons stated earlier, it does not appear to me that it is relevant to consider
the merits of that claim, nor how it would be resolved if formally advanced at
a trial whether in Hong Kong or here. I am concerned only with the fact that the
claim has been made and the documents accordingly withheld.
have already rejected the contention that it is a legitimate forensic purpose
to seek to identify other persons involved in the crime apart from those whose
identity is already known.
to the question of association between the accused and the named persons, it is
no part of the Crown case that the accused had any direct contact with Ko Lo Wah;
the lack of evidence to rebut that produces no relevant prejudice. It is, of course,
part of the Crown case that there was a close association between the accused
and Cheung Siu Wah, but the existence of such association is not disputed by the
accused. The accused asserts an informer/investigator relationship, and a business
association. Production of the files might confirm the existence of an association
between them, but I fail to understand how it can be contended that anything in
the files could demonstrate that the relationship was limited to those aspects
of it which the accused concedes and did not extend further the involve elements
of criminal behaviour on his part. The most that the files might be capable of
demonstrating would be the absence of material in there indicating that the relationship
was criminal; or, perhaps, self-serving statements by the accused that the relationship
had no criminal aspect.
relation to paragraph 35 and the request for an intelligence file relating to
Lau Wah, there is simply no evidence of the existence of any such.
the accused has failed to satisfy me that the withholding of any of the materials
referred to in this section of my judgment will or will be likely to cause any
significant or relevant detriment to the fairness of the trial.
Police Schedule, paragraphs 24, 25 and 27
documents relate to the question whether named individuals were registered as
informers to the Royal Hong Kong Police and as to the payment of rewards to them
or to other persons in respect of information provided in relation to the heroin
shipment. The Royal Hong Kong Police have declined to release the documents identifying
persons registered as informers, for reasons earlier stated in the letter of Mr.
Duckett of 9 October 1991. Again it is not necessary to consider the merits of
the claim for public interest immunity asserted on behalf of Hong Kong. The question
is, on the assumption which must be made that the accused may not have access
to such material, whether the lack of it causes such prejudice that his trial
would be unfair. I fail to see how that can be asserted. That particular individuals
were or were not registered as informers appears to be irrelevant. If anything
in this area is relevant it is surely the information provided by such persons,
and that was the subject of earlier requests with which I have already dealt.
25 seeks access to records of rewards paid in respect of information concerning
the shipment, but the response is that no such documents are in existence and
in the absence of any evidence to the contrary, that is the end of the matter.
27 seeks schedules and scales of rewards payable by the United States Drug Enforcement
Agency; not surprisingly, the Hong Kong authorities have referred the accused's
solicitors to that Agency and there is no evidence that there is any problem in
gaining access to it.
the result I am satisfied that the lack of the materials referred to in these
three paragraphs of the request produces no relevant detriment.
Police Schedule, paragraphs 30 and 31
requests were in the following terms:
All requests for immunity from prosecution or undertakings not to prosecute made
by Ng Yun Choi or Cheung Siu Wah made during the period 1 January 1989 to 1 September
1990 in respect of the planned or actual heroin importation as a result of which
importation Cheung Ying Lun was charged on 12 May 1989.
All reports concerning or recommendations concerning or submissions concerning
the subject matter of immunity from prosecution or undertakings not to prosecute
or undertakings not to use statements in evidence concerning interviews or statements
to be given by Ng Yun Choi or Cheung Siu Wah during the period 1 January 1989
to 1 September 1990 inclusive by members of the Royal Hong Kong Police Force."
respect of each paragraph the forensic purpose is stated as follows:-
forensic significance of this information to Cheung Ying Lun is that it will allow
him to fix the earliest time at which Ng Yun Choi and Cheung Siu Wah were considering
giving evidence to the police and whether any conditions were attached or inducements
sought for such a course of action on each of their parts. The information should
reveal which officers within the Hong Kong Police Force had contact with each
of the witnesses at the earliest time concerning the subject matter of providing
information in return for immunity or undertakings."
are matters of obvious relevance to the credibility and reliability of the two
informer witnesses upon whose evidence the Crown proposes to rely. If those persons
have been granted immunity from prosecution in Australia or the benefit of undertakings
by Australian authorities not to prosecute them, the existence of such immunities
or undertakings is a matter which, as of course, the prosecution would be required
to (and I am sure would) disclose. It is clear that the Hong Kong authorities
(who have so far not responded to this request other than to state that relevant
documents are still being examined) are under no obligation to make this information
available. It is however the obligation of the prosecutor to disclose everything
known to him which may bear upon the credibility and reliability of the witnesses,
and in relation to informers that must include any grants of immunity in other
parts of the world: Regina v. Booth (1982) 2 NSWLR 847 at 850 per Street,
CJ., at 850 per O'Brien, J. and at 851 per Lee, J., Regina v. Chai (Court
of Criminal Appeal, unreported 6 April 1992). Obviously, the DPP cannot disclose
that which it does not know and cannot be criticized for failure to disclose immunities
granted in Hong Kong of which it is unaware. However, it appears to me to be consonant
with its obligation to the accused, to require that it should bear the burden
of making enquiries from the authorities in Hong Kong as to whether any immunities
have been granted and in what terms, so that it may then disclose the results
of such enquiry to the accused.
of whether a request for immunity was made in Hong Kong and with what result,
the accused will be in a position to direct the jury's attention to immunities
granted in Australia, if any, and to the situation in fact of the two witnesses,
namely that the one is serving a sentence of imprisonment in Australia and the
other in Vanuatu. His counsel will be able to address the jury generally as to
the risks of reliance upon the evidence of such witnesses, and will have the benefit
of such directions in that regard as the law requires the trial judge to give.
In those circumstances, I am not persuaded that should it turn out to be the case
that the accused is left without any substantive response to the requests in paragraphs
30 and 31, the outcome will be an unfair trial. Accordingly I do not regard the
failure of the Royal Hong Kong Police to make this information available up to
this stage as justifying the grant of a stay.
do, however, propose to give certain directions in respect of this matter and
to grant liberty to the accused to apply in the light of the manner in which and
the extent to which those directions are complied with by the Crown. I shall return
to that topic at a later stage.
Police Schedule, paragraphs 1, 2, 3, 6, 7, 20 and 21
of these paragraphs relates to records of surveillance placed upon named individuals
during a period running from 1 June 1988 to 12 May 1989. The details of what is
sought are not immediately important. The persons nominated as perhaps having
been the targets of surveillance including Ng Yun Choi, Ko Lo Wah, Cheung Wai
Man, Siu Lam, Law Yat Kai, Cheung Siu Wah and the accused himself. The response
from the Royal Hong Kong Police is that the Commissioner is unaware of the existence
of any such documents, and in the absence of any evidence to the contrary, that
must be the end of the matter so far as the present application is concerned.
The accused has not discharged the onus of proving the probable existence of any
relevant materials, so that it cannot be said that he suffers any prejudice by
reason of those being not made available to him. In some respects, the forensic
purposes asserted were in any event irrelevant, namely to the extent that it was
sought to establish contacts between the named persons and each other and others
not presently identified.
there is one respect in which the asserted forensic purpose was undoubtedly valid.
The contention was that if any of the persons known to have been involved in the
heroin shipment was under surveillance at relevant times, and particularly if
the accused himself was under surveillance at any relevant time, such surveillance
reports ought to have referred to any meeting that took place between the accused
and any of those named persons. It would be of significant advantage to the accused
if he were able to prove that on the dates and at the times when, according to
the Crown case, he met with Ng Yun Choi, Cheung Wai Man or Cheung Siu Wah, he
or they were under surveillance but that those carrying out the surveillance did
not report the occurrence of any such meeting as, on the Crown case, took place.
police in Hong Kong having denied the existence of any surveillance reports generally
in respect of the periods the subject of the request, and the accused offering
no evidence to suggest the existence of such material, the Crown, reasonably enough,
submits that that is the end of it so far as the stay application is concerned.
I am concerned that because the request was so broadly expressed, and was not
at any time specifically framed in terms of the particular meetings which the
Crown will attempt to prove, it may have been too readily brushed aside by whomever
in Hong Kong had the task of considering it. Were there in fact material in existence
of the kind sought to the knowledge of the Crown, it would clearly be the obligation
of the Crown to disclose it to the accused. It appears to me to be in no way onerous
to require the Crown to make a specific enquiry and to acquaint the court and
the accused of the results thereof. In regard to this matter also, I will in due
course give directions and reserve to the accused liberty to reply.
Police Schedule, paragraph 41
request identifies, by number, five "files, report books and reports".
Two "Reports" identified as WTSRBX 1807/89 and WFRBX 4342/89 have been
report, CB/CCR 1447-8/88, has been considered by the Hong Kong authorities and
withheld. It is said to concern "an investigation into an incident unrelated
to" the accused. The accused gave no evidence about it. Nor have I been able
to identify any part of the submissions, written or oral, that deals with it.
two remaining documents, files numbered NB/CON/80/5/88 and WCH/CCR12239/89 are
said to be still under consideration by the Royal Hong Kong Police. Again, there
is no evidence about them nor any submission specifically directed to them.
that I have in relation to these matters is the statement of forensic purpose
set out in the Police Schedule. There is in my view no basis upon which it could
be concluded that the lack of these particular documents is or will be productive
of any prejudice to the accused.
Customs Schedule, paragraphs 1 and 8
forensic purpose initially stated in respect of these documents was, "to
establish that his service as an officer of the Department was exemplary and rewarded
with both promotion and commendation". Thus stated, it appears to go to the
issue of character and to specify a legitimate forensic purpose. The request has
been complied with to this extent: that by a letter of 3 October 1991, which is
part of Exhibit CS6, giving a summary of the three annual staff appraisal reports
to 28 February 1989 in which he was rated variously very good or outstanding;
further, a document dated 11 September 1992 despatched from Mr. Chow to the solicitor
for the accused sets out particulars of commendations awarded to the accused since
his joining the Hong Kong Customs and Excise Department on 10 March 1975 (that
document is annexure H to Mr. Bilinsky's affidavit of 15 September 1992); and
Exhibit CS6 includes a document headed "staff particulars" which sets
out, in respect of the accused, details of his progress through the Department
over the period of his employment. So far as the accused seeks to demonstrate
good character, it is difficult to see what else might have been required.
it appeared, as the application proceeded, that the accused sought to make further
use of the documents described in this paragraph, namely to show that he had achieved
such good reports and commendations notwithstanding that he was inattentive to
his obligation to file written reports of his activities. The object, as I would
understand it, was to take away the sting from the fact that, during the period
when the heroin transaction was being planned and carried through, the accused
lodged no reports in relation to any information allegedly provided to him by
the informer witnesses. It appears, however, that Mr. Ronnie Tsang, a superior
officer of the accused, will be available to be called at the trial and there
appears to be no reason to think that he would depart from evidence which he gave
when he was called on behalf of the accused in the course of the extradition proceedings.
It appears to me that he said there all that the accused needs to advance the
submission now in contemplation, when Mr. Tsang said:
is our best informer handler and he's our best interrogator
He's a rather
carefree person and so from time to time he does not follow procedures and from
time to time I have had to hurry him up with his reports. He is also late sometimes
in passing on the information.... As to shortcomings - we need to interview informers
and then pass this on to our boss. And then compile the report. Sometimes he did
this in timely fashion, sometimes I'd have to chase him for his reports. Under
pressure from his superior his paperwork is good. If he's left to his own devices
he's carefree about this."
am unable to perceive any significant prejudice that the accused may suffer by
reason of the lack of the documents referred to in this paragraph - with but one
exception. One of the relevant matters in determining whether the remedy of a
stay is appropriate is to consider what other measures may be available to the
trial judge to protect the accused from injustice. Where it is hoped by the accused
to be able to elicit certain evidence from a witness but the accused lacks assurance
that that witness will give the anticipated evidence and is deprived of the opportunity
of presenting to the witness documents which might induce him to give the evidence
which the accused requires, it would be open to the judge at the trial to permit
the evidence of such witness to be given in the first instance on the voir dire.
This is a consideration that is in my mind when I hold, as I do, that the accused
is not prejudiced by the withholding of this particular material. In other respects
also the same means may be available to protect the position of the accused at
is, however, an additional matter not expressly referred to, but possibly embraced
by the request for the "personnel file". In his affidavit of 7 September
in support of the application, the accused said:
seek access to my leave records and applications for consent to visit foreign
countries. This will assist me in clarifying what my periods of leave were, when
it was that I made overseas trips and what consents were obtained. My wife was
cross-examined by the prosecution on this material in Hong Kong. It is not available
to me. I am unaware what access to my personal file has been given to the prosecution."
is the fact that upon the examination of witnesses in Hong Kong, evidence was
taken from Siu Lai Kwan, the wife of the accused. I am unaware of the significance
of the evidence which she gave in chief, or whether it will in fact be the intention
of the accused to make use of her evidence at the trial. However, she was cross-examined
about overseas trips made by the accused in the years 1985 to 1989. That cross-examination
was conducted in a fashion which made clear that the Crown was in possession of
information about numerous overseas trips undertaken by the accused over that
period of years. It is not clear whether the source of the information upon which
the cross- examination was based was the accused's leave record or some other
source. Be that as it may, it appears to me that whatever document or statement
the Crown may have relied upon in that regard ought to be disclosed to the accused
and I propose to give a direction in that regard.
Customs Schedule, paragraph 2
accused's wish to demonstrate the nature of his relationship with the three informers
as an investigator/informer relationship is no doubt a legitimate forensic purpose.
No doubt the documents to which he refers would advance that purpose. It is by
no means clear to me that the material already supplied (Exhibit CS6) would not
be adequate for his purpose. In any event, it is clear that there is no issue
between the parties that the accused was, in the performance of his duties as
an inspector of customs, expected to cultivate informers and had a reputation
as being expert in that art. It appears to me that there will be no issue that
his relationship with these people was an investigator! informer relationship.
There is no way, as it seems to me, that production of the materials referred
to could assist to negate the existence of an improper relationship going beyond
that of investigator and informer. The Crown case, as I would understand, it is
that the accused took advantage of that relationship to become criminally involved.
far as paragraph 6(a) of the accused's affidavit of 7 September 1992 is intended
to express more precisely a forensic purpose to be served by the production of
this material, it appears to me that the matters raised have no relevance to the
issues in this trial.
Customs Schedule, paragraph 4, 5, 6 and 7
have had the utmost difficulty in understanding the nature of the forensic purposes
asserted in respect of these matters, and the submissions of Mr. Nicholson in
respect of them. The statements in the Schedule which purport to identify a forensic
purpose do not in fact do so. Rather, they assert a wish to do certain things
but do not identify the purpose to be served thereby. The relevant paragraphs
are as follows:
Investigation Bureau Intelligence Report Forms covering all information
provided by the following persons to the Department of Customs and Excise during
the period I January 1988 to 12 Mah 1989: Ko Lo-wah, Cheung Siu wah, Ng Yun-choi,
Sui Lam, Paul Lau (Lau Wah), Law Yat Kai, Law Chui-chun (alias Sha Tsang). (Gary
Cheung seeks to identify the relationship between the named persons and the Department
either through himself or others within the Department as sources of information
concerning dealing in dangerous drugs or to exclude that situation).
Customs Intelligence Report Forms containing all references to the following
persons as associated with drug dealing or smuggling during the period 1 January
1985 to 12 May 1989: Ko Lo-wah, Cheung, Sui- wah, Ng Yun Choi, Sin Lam, Cheung
Wai-man, Paul Lau (Lau Wah), Law Yat Kai, Law Chui-chun (alias Sha Tsang). (Gary
Cheung seeks to identify information available concerning the activities of witnesses
against him generally and specifically in relation to the shipment in respect
of which he has been charged on 12 May 1989. He seeks to identify whether the
persons named including the two proposed witnesses have had to the knowledge of
Hong Kong authorities involvement in drug trafficking or smuggling).
Department of Customs and Excise Investigation Files referred to by file
identifier numbers noted on the body of the intelligence report forms referred
to in either of the preceding two paragraphs. (Gary Cheung seeks to explore and
inform himself of the extent of information known and follow up contained in the
investigation files to which reference is made in the intelligence report forms
recording information as received concerning dangerous drug trafficking or smuggling).
Customs Investigation Files IC/INV/DD:- (followed by some 30 file numbers).
(Each of these investigation files has been identified by a cross-reference identifier
number contained on the face of Intelligence Report Forms and Anti-Narcotics (Importation
and Exportation) Unit Daily Report Forms provided to Gary Cheung for use in the
preparation of his defence. Each of those documents contains a cross- reference
to the relevant file detailing the repository of information referred to in the
daily sheet. Access to the files will allow Gary Cheung to expand his knowledge
of the underlying transactions summarised or cross-referenced in the documents
applied and to examine Mr. Tong King-Yeung, Deputy Commissioner, Narcotics Investigation
Section, when he is called to give evidence in Hong Kong as to the method of record
keeping and existence of records in Hong Kong together with the history of matters
documented in the files. The files will further demonstrate the application of
Gary Cheung in his role as a Senior investigator with the Hong Kong Department
of Customs and Excise and the use to which the Department puts informers providing
information for reward, and grades the quality of their information. It will further
demonstrate the departmental follow- up as a matter of practice and procedure
to be established by Gary Cheung when information concerning dangerous drugs was
received. It will further enable Gary Cheung to demonstrate during examination
the extent to which the method in which he carried out his obligations as a Customs
Officer was countenanced by the Department over a number of years)."
is no issue that Cheung Siu Wah and Ng Yun Choi were informers, and reports relating
to them have been supplied. It is not immediately apparent what might be the significance
of the fact that the other persons named in paragraphs 4 and 5 were or were not
informers. It is common ground that Siu Lam and Ko Lo Wah were members of the
so called Big Circle Gang and were the suppliers of the drug which ultimately
found its way to Australia. Law Yat Kai and Law Chiu Chun were two of those convicted
at a trial before Sully, J. in 1991.
have perused the written submissions on behalf of the applicant but found there
no elucidation. The relevant part of the evidence of the accused appears to be
paragraph 6(d) of his affidavit of 7 September 1992. Again, it amounts to assertions
that the accused wishes to know certain facts, but contains no indication of the
possible relevance of those facts to any issue which will arise at the trial,
including any matter of defence which the accused may wish to raise, unless it
be in the last part of that paragraph viz.: -
person Ng Yun Ming was referred to by me when submitting a report on the person
Cheung Man in 1985. Cheung Man was convicted in Australia arising out of the events
surrounding my being charged. I wish to ascertain what follow up was placed upon
Cheung Man and Ng Yun Ming following my filing of an intelligent report form on
him. It will demonstrate that far from being in collusion with him I had activated
the Department's attention to his activities."
oral submissions, Mr. Nicholson said (p93 of the transcript): "In dealing
with his defence he wishes to show how he conducted himself as a customs officer,
how and in what circumstances information was gained, recorded or not recorded,
investigations instituted, files opened or progress reports, ongoing surveillance,
and how consistent with those practices he dealt with these particular informants.
He wishes to point to the information filed and investigations commenced, surveillance
mounted concerning contacts between these informers and other targets, particularly
the Big Circle identity Siu Lam. It would appear from the evidence that in Hong
Kong in terms of control and threatened violence that the persons Ko Lo Wah and
Siu Lain are at or near the apex of this transaction, that each of the informers,
the three of them, were notorious identities in Hong Kong as far as the authorities
are concerned and were the subject of surveillance and involvement in various
investigations known to him. Indeed amongst the information reports, Exhibit 11
before your Honour (now Exhibit CS6) there is one relating to the informer but
not witness Cheung Wai Man in which he is referred to as the infamous heroin dealer
by Mr. Cheung. The examination of the files relating to those specific information
reports and specific files sought from Hong Kong is to build the picture of these
informers, the persons upon whom they informed, the steps taken by Mr. Cheung
and the Department to cause investigation into those contacts right up until and
slightly later in 1988, the very time when the criminal claim was alleged by the
Crown to have been hatched involving Mr. Cheung. Mr. Cheung for his part and by
his plea of course says that he knew nothing of the precise criminal plan relative
to delivering heroin to Sydney at that time, and certainly he himself played no
part in any criminal plan of any type. He looks back to see what it was that had
come under his notice at the time and leading up to it in which he might find
the answer which he does not know, who was involved in this crime, how can he
show who was involved in it and that he was not. The first step was to secure
as many information reports as he could relating to the three informers and to
identify from that where the body of the investigation material would be, is concerning
those files. There was clear evidence the files exist, your Honour has had that
on oath before you. Reference specifically has been made to five particular reports
where they fall at or about the time of the hatching of this plan and where Mr.
Cheung can point to what he did in relation to those investigations upon receipt
of information, in particular the reference to the activities of Song Man would
appear on its face to be remarkably similar to the case contended for by the Crown
to have occurred. ... Mr. Cheung has succeeded then in identifying to some extent
the information he received from these informers and now wishes to demonstrate
what it led to. The consequences are potentially two-fold, perhaps more. Firstly
they reveal that in his relationship with the informers Mr. Cheung was strictly
a professional customs officer taking information where he could, filing it, participating
in investigations or senior officers of his allocating investigations elsewhere.
Secondly, the investigations being mounted and your Honour has evidence of what
is involved in those files of an investigation nature such as surveillance, progress
reports, cheques, antecedents, cross- referencing, that type of thing, and he
seeks to ascertain what those investigations threw up about these persons, in
particular those in the five reports of Song Man which would appear on their face
to be closely related to what in fact occurred. He seeks to see who their associates
were, what investigation was mounted in relation to those persons. ... There is
information received from the three informers, files, investigations that coincide
with the commencement of this transaction. He seeks to demonstrate the associates
of these persons and his lack of involvement due to the surveillance mounted on
best I can understand it, a number of things are sought to be achieved by reference
to the investigation files.
It is sought to show that persons were involved in the heroin transaction other
than those whose names have already come to light. For reasons indicated earlier
I am of opinion that that is not a legitimate forensic purpose and that the accused
would suffer no prejudice by being deprived of information which might lead in
The accused seeks to demonstrate that during relevant periods persons with whom
he is alleged to have dealings were under surveillance, and he may himself have
been, at the time when he is alleged to have been in contact with such persons;
and if that be so, it would assist his case to show that such surveillance did
not lead to any report of any such meeting as is in the Crown case alleged. I
have already indicated my view about this part of the case and, as foreshadowed
earlier, I propose to give certain directions in relation to surveillance reports.
The accused seeks to demonstrate the existence of an investigator! informer relationship
between himself and the informer witnesses and the man Cheung Wai Man. There is
no issue about the existence of that relationship; as indicated earlier, the issue
is whether it went beyond such a relationship to become a criminal relationship
and it appears to me that production of the files cannot advance the accused's
in that regard.
He seeks to show that he was himself responsible for the lodgement of intelligence
reports implicating in drug dealing some of the very persons with whom he is alleged
to have been criminally involved in the present transaction, in particular Cheung
Wai Man. He seeks from that base to argue to the jury the unlikelihood that he
would have become criminally involved with a man whose activities, he had reason
to believe, were the subject of investigation by officers of the Department other
He seeks to demonstrate that he provided information to the Department implicating
one Song Man in the export of heroin from Hong Kong by a means said to be similar
to that which was in fact adopted in the instant case. He seeks from that base
to argue to the jury the unlikelihood that, knowing that that modus operandi had
been brought to the notice of the Department and was, he had reason to believe,
the subject of investigation by other officers of the Department, he would involve
himself in an enterprise of similar type.
the course of his oral evidence, the accused identified some 15 further investigation
files, by number being files sought by him for the same purposes as set out in
paragraph 7 of the Schedule. in relation to all 45 files, his affidavit asserts:
of the files contains reference to the investigation that followed the receipt
of information containing certain subject matters nominated in each document forwarded
by me. The identity of the informers is known to me and the names of the persons
informed upon is known to me and set out in the documents so far provided. When
these reports are forwarded by me they are forwarded for the attention of my superiors
and the creation of an investigation file or for attachment to an existing investigation
file. It is for persons other than me to decide whether investigation is warranted
and who should carry out that investigation. This information is not known to
identified in his affidavit and/or in oral evidence, certain persons as being
the targets of investigation recorded in those files. They included the informer
witness Ng Yun Choi, the informant Cheung Wai Man and the person Song Man.
am not persuaded that the accused would suffer any significant prejudice by being
deprived of access to the files themselves, having regard to what the evidence
discloses as to the amount of information that he does in fact possess: first,
in the form of the information reports that have been produced and form part of
Exhibit CS6; and second, by reason of his own recollection of the circumstances
as appears from the evidence he gave in cross-examination, In seeking to evaluate
the extent to which the accused may be prejudiced by not having the files before
him, I have taken into account that if the files themselves are not available,
first, they cannot be used by the Crown in any way to contradict anything that
the accused may say, and second, that the accused himself may be in a position
to make very effective comment upon the absence of such material. It appears to
me that the submissions which the accused would wish to make to the jury may sufficiently
be founded on the material that is in fact available. There seems to be at this
stage no reason to believe that the witness Tsang would not confirm what appears
to be the main thrust of the accused's case in this regard, namely that the accused
did make intelligence reports in respect of the persons named; and that investigations
were instituted in relation to the activities of those persons. That material
being before the jury, it will be open to the accused to put the submission that
it is unlikely that he would, knowing that such matters were or were likely to
be the subject of investigation, have involved himself criminally with those persons.
relation to the persons Law Yat Kai and Law Chiu Chun, the accused claims to have
filed intelligence reports relating to these persons. Again, if the accused chooses
to make that assertion, either from his own mouth or by the evidence of Mr. Tsang,
he is in a position to do so without contradiction, and I see no reason to apprehend
prejudice to him by the withholding of the records he seeks. In relation to Law
Yat Kai, the accused by his affidavit indicates that the material he seeks is
or has been in the possession of the Australian Federal Police; but there is no
evidence of any attempt to obtain the material from that source.
Customs Schedule, paragraph 9
respect of this I accept the Crown's submission that to the extent that these
documents may be relevant to the good character of the accused, his supervisor
Mr. Tsang is an available witness to give evidence with respect to the events
to which they relate; and if the facts are as paragraph 9 would indicate, there
is no reason to anticipate that the evidence will not be given.
FOR THE DEFENCE
further matter raised by the accused in support of the application is the assertion
that he is "denied without remedy the power to compel witnesses to attend
and give evidence in Australia on issues of fact".
is certainly the case that if there is any overseas witness of whose evidence
the accused would wish to avail himself at the trial, no mechanism exists whereby
that witness can be compelled to come to Australia and to give evidence. It appears
from the evidence of Mr. Bilmsky (t.84) that he has on behalf of the accused requested
the attendance of four customs officers from Hong Kong to give evidence if required
during the course of the accused's trial, including Mr. Tsang referred to above.
It is my understanding that the witnesses will attend but only if their fees are
paid at a certain rate; Mr. Bilinsky had not yet received confirmation from the
Legal Aid Commission that those expenses would be paid, but said, "I accept
that they will".
12 August 1992, I ordered that a letter of request issue to the appropriate judicial
authority of the Crown colony of Hong Kong to secure the examination in Hong Kong
of 10 witnesses therein named and an order was made accordingly.
of those witnesses, Mr. Gerard McCoy, a barrister of Hong Kong gave evidence before
me in Hong Kong pursuant to that letter of request. For the most part the evidence
which was then given related only to this application for stay; Mr. Nicholson
indicated as to portion of the evidence that it might be sought to use it at the
trial. The evidence having been taken in that fashion pursuant to s.7V of the
Evidence Act is admissible at the trial subject to all proper objections, and
no submission has been made that the accused is prejudiced specifically by the
fact that the evidence of Mr. McCoy, if given at the trial, would be given in
was also taken in Hong Kong, the same fashion, from Ms. Christina Lee also of
the Hong Kong Bar but previously by occupation an interpreter and highly qualified
and experienced as such. She gave evidence as an expert as to the nature of the
Cantonese dialect and the difficulties of conversation in that dialect even between
persons fluent in it. Secondly she gave evidence as to the accuracy of translation
upon which the Crown relies of three intercepted telephone conversations involving
the accused. At the trial the Crown proposes to call Mr. Keith Fung to give evidence
of the English meaning of what was said in those conversations. Ms. Lee gave evidence
which in respect of the bulk of the conversations substantially accords with Mr.
Fung's opinion as to their meaning in English but on certain points, the significance
of which is not yet apparent to me but forms an important part of the accused's
case, she proffered a slightly different English translation. Again, her evidence
is admissible at the trial subject to all proper objections and no submission
has been put that the accused will be in any way prejudiced by reason of her evidence
being given not viva voce before the jury but by reading from the Hong Kong transcript.
letter of request referred to eight other witnesses and I assume by reason of
the fact that the accused sought their inclusion, that the accused or his advisers
regard their evidence as of some significance. Counsel for the accused adopted
the stance that the Crown was under an obligation to call some or all of these
witnesses but the Crown disclaims any intention of doing so. It is to be borne
in mind that the Crown is in no better position than the accused to compel the
attendance of such witnesses in Australia to give evidence.
to the letter of request, three only of those witnesses gave evidence in Hong
Kong. The first was the wife of the accused Siu Lai Kwan to whom reference has
earlier been made. Presumably her evidence in chief covered all such matters as
the accused would have wished to adduce from her had she been called to give evidence
at the trial. It is evidence which may be tendered as evidence of character; and
to deny the existence of any financial motive for criminal conduct on behalf of
Kwok Ping, also known as Patrick Wong gave evidence. He verified a statement made
by him to Hong Kong police on 6 June 1989 in Cantonese characters, an English
translation of which was marked as Exhibit 3A on the examination. He gave evidence
in accordance therewith and expanded somewhat on what was contained in the written
document. Presumably counsel elicited from him all such evidence as he would have
wished to adduce had the witness been called to give evidence at the trial.
Ying Mui gave evidence in accordance with the contents of a statement made in
Cantonese and verified the accuracy of that statement and an English translation
thereof (Exhibit 12 on the examination). Again, presumably, counsel was able to
elicit from her all evidence that he would wish to have adduced had she been called
at the trial.
relation to the three witnesses last mentioned, the complaint is not and cannot
be that the evidence is not available. The witnesses in fact gave evidence in
the manner prescribed by s.7V of the Evidence Act. The real complaint is that
the accused will be deprived of such benefit as may have ensued from the giving
of that evidence orally in the presence of the jury. The impact of the evidence
is no doubt less and where, as here I understand to be the position, the main
purpose of the evidence is not so much to establish the truth of the facts deposed
to by the witness (although that is the matter which makes the evidence admissible)
but to reflect adversely upon the credibility of the informer witnesses whose
evidence, it is said, will be seen to be in conflict with that of these witnesses,
I would accept that it is a disadvantage to any litigant to be obliged to rely
upon evidence read from a transcript rather than evidence given by viva voce before
the tribunal of fact. I do not, however, accept that any prejudice which the accused
may suffer of that kind is of more than marginal significance. The facts of which
the witnesses have given evidence are peripheral to the Crown case (which justifies
the decision of the Crown not to call them). If they gave evidence, they would
do so in Cantonese with an interpreter, a circumstance which tends to minimize
the value of an assessment of demeanour in determining credibility. That brings
one, of course, to the accused's original complaint, that he is being tried in
New South Wales and not in Hong Kong. I repeat, that the question of fairness
or unfairness is to be determined by an examination of the incidents of the trial
here, and not by comparison with a trial in Hong Kong.
relation to the other witnesses, it was necessary for the accused in order to
secure the issue of the letter of request, to give a brief indication of the nature
of the evidence anticipated to be obtained from each. The other witnesses who
were sought to be called in Hong Kong but did not in fact attend (I shall come
back to the reasons for that) and the nature of the evidence which was sought
to be obtained from them were as follows:
"Ms. Chan worked for certain businesses associated
with Lau Wah and came into contact with Cheung Siu Wah. She has some knowledge
of the circumstances surrounding the shipping of a van and sewing machines to
Vanuatu. Her knowledge of the association between Cheung Siu Wah and Lau Wah together
with her knowledge of the shipping of the van will be the subject of questions."
"Mr. Chan will be questioned concerning his knowledge
of the shipment of a van from Hong Kong to Vanuatu, shipping procedures and costs
and the clearing of the van in Vanuatu through customs. He will be asked questions
concerning his association with Cheung Siu Wah and Lau Wah."
"Mr. Cheung will be questioned concerning his past
association with Cheung Siu Wah and the circumstances in which he was introduced
to Cheung Siu Wah and gave him a cheque during 1988 for the purpose of purchasing
"Mr. Mak will be questioned concerning his association
with Cheung Siu Wah and the circumstances in which he received and paid Cheung
Siu Wah the sum of $800 in Vanuatu during May 1989. He will be asked about his
communications with Cheung Siu Wali."
Yip Mei Ling:
"Ms. Yip will be questioned concerning her association
with Ng Yun Choi and her observations of his actions during 1988 and 1989. She
will be asked about phone calls made and received by Ng Yun Choi and persons with
whom he met to her observation."
material tendered in support of the stay application includes copies of the statements
of those witnesses obtained by Hong Kong police and which have been made available
to the accused. I have perused them. The evidence of these witnesses, like that
of Wong Kwok Ping and Lam Ying Mui, appears to me to be peripheral only. Their
evidence stands outside what is relevant to the Crown case, which appears to me
to justify the decision of the Crown not to call the witness, and the accused
does not seek to rely upon them simply because establishment of the facts will
assist his case (it only does so in that each of the witnesses played a small
part, probably innocently, in the transaction and in doing so had nothing to do
with the accused); the real forensic value of the calling of these witnesses,
as I would understand it, is that by creating a factual issue between these witnesses
and the informer witnesses, a doubt may be raised as to the credibility of the
latter. Again, the point must be made that inasmuch as these witnesses would give
evidence, if called before the jury, in Cantonese with the aid of an interpreter,
the jury is not much better equipped to assess their credibility by reliance upon
demeanour than it is if the evidence of the witness is read to them from a transcript
or from a statement. I would not apprehend any significant prejudice to the accused
by having their evidence read to the jury rather than given orally before the
in the case of these witnesses, they did not attend for examination in Hong Kong.
The information that was provided to me at that stage was, in relation to Cheung
Chi-hung, that he was willing to come and that arrangements were made for his
attendance, but through some misunderstanding, as to where he was to meet the
accused's solicitor or his representative, he was mislaid, and as to the others,
that summonses had been issued for their attendance, pursuant to the order made
by the Hong Kong court in response to the letter of request, but that those summonses
had not been served by the bailiff. In that regard it is material to note Exhibit
2 tendered upon the examination, a letter from a Senior Assistant Crown Solicitor
of Hong Kong to the registrar of this court dated 22 August 1992 in which she
said inter alia:
original of the first letter of request reached these chambers on 18 August. I
am pleased to say that we were able to obtain an order pursuant to the request
on 19 August. Our court bailiffs were furnished with sealed copies of the order
on the same day for service on the various witnesses to compel their attendance
before Mr. Justice Badgery-Parker sitting as examiner at a conference of New World
Harbour View Hotel on 25 August 1992.
the extremely short notice I am not certain if the bailiffs will be successful
in effecting personal service on all the witnesses before 25 August."
my view it would be wrong to approach the determination of this matter on the
basis that the accused is unfairly deprived of the evidence of those witnesses
without paying regard to the fact that as long ago as 18 October 1991, Wood, J.
ordered inter alia:
the accused's solicitors file in this court and serve on the Commonwealth Director
of Public Prosecutions, Sydney by 4.00 pm on 25 October 1991, any application
which they care to make pursuant to s.7V of the Evidence Act 1905 that this court
order the issue of a letter of request to the judicial authorities in Hong Kong
that stage, the trial which had been fixed for 25 September 1991 had been adjourned
to a date to be fixed. The matter was again mentioned before Mr. Justice Wood
on 1 November 1991 when his Honour expressed his concern that nothing had been
done to comply with the earlier directions. He noted, however, when the matter
was next before him on 8 November 1991, that by reason of the need for an adjournment,
the accused had eight or nine months, obviously a reasonably time within which
to pursue such proceedings. No doubt there were problems with legal aid, but those
might far more easily have been resolved, as it seems to me, had a firm intention
been expressed to take what were obviously, with respect, the necessary and proper
steps to secure the evidence of the Hong Kong witnesses.
relation to these witnesses, it will be a matter for consideration at the trial
as to whether any prejudice suffered by the accused by reason of their unavailability
can be met by the agreed tender of their statements. I am certainly not persuaded
that the absence of that evidence would create such a situation of unfairness
as to demand a stay.
USE OF INTERPRETERS
is contended that because the evidence of the chief prosecution witnesses will
be given in Cantonese through an interpreter, the accused is effectively prejudiced
by the inability of an Australian jury to comprehend or perceive matters vital
to the credit or lack of credit of those witnesses. That, it is said, is a situation
which would not have arisen had the accused stood trial in Hong Kong. I interpose
to repeat what I have said earlier, that it is not in issue in these proceedings
whether the accused could have had from his point of view a better trial in Hong
Kong than he will have here. It remains to the point, however, that the jury,
presumably not themselves familiar with the Cantonese language, will be at a disadvantage
as compared with the position that they would be in if listening to the evidence
of a witness given in English as his native language. It is submitted that the
accused is disadvantaged accordingly. The complaint appears to have a number of
aspects - first, it is said that expressions used by speakers whose voices are
captured in the tape recordings, by tone and actual expressions employed, suggest
that the speakers are associated with the criminal classes in Hong Kong and that
this type of language is in sharp contrast to the language used by law abiding
citizens of Hong Kong and by the accused himself. Second, it contended that because
all that the jury will hear is the English language words and inflections of one
interpreter, their capacity to access the credit of the witnesses individually
and to compare one with another or the evidence of either with the evidence of
other witnesses called during the trial is significantly limited. Finally, it
is argued that because of the nature of the Cantonese language and the importance
to meaning of tone and inflection, there is room for considerable dispute as to
the meaning of some of the conversations recorded, which dispute an Australian
jury is not equipped to resolve.
is a commonplace in our courts for witnesses to give evidence, whether before
a judge alone or before a judge and jury, in a foreign language, their evidence
being translated for the benefit of the court by an interpreter. This is never
an ideal situation but it is one which is regarded as acceptable. There is and
always has been room for a party to challenge the competence or integrity of the
interpreter and to bring to notice any difficulty of communication which apparently
exists between the interpreter and the witness, such as for example commonly arises
where although both claim to speak their national language, they in fact speak
different dialects of it. in every such case, when issues of credibility arise,
the jury must do the best it can and make allowance for the fact that the witness
is giving evidence in a foreign language thereby depriving them of some of the
indicia of credibility and reliability of which they might otherwise avail themselves.
These difficulties may in a particular case undoubtedly hamper an accused person;
they also hamper the Crown which of course bears the onus of proof. No case has
been cited to me which lends any support whatsoever to the proposition that difficulties
of this kind are to be regarded as affecting the potential fairness of a trial
to such degree as to warrant a stay of the proceedings.
any event it appears to me that the matters raised on behalf of the accused are
matters which are capable of being dealt with by evidence. Not only the accused
but witnesses who might be called on his behalf could be invited to testify as
to the nature of slang or jargon or colloquial expressions used by persons on
the tapes, and as to the inferences available to be drawn therefrom, and the accused
would be entitled to give evidence that it was not his practice to use such language.
How convincing such evidence might be is a different question - some of the best
educated and best spoken in our community are known to yield to the temptation
to adopt the styles and forms of language of others with whom they mix, and that
for a variety of reasons. Nevertheless, the issue is one which is susceptible
of being dealt with by evidence which the accused may adduce by cross-examination
or by calling witnesses.
the extent that it is feared that the accused will suffer damage because any translation
of the taped conversations offered by an interpreter will not convey the impact
of the language in fact used, again I am of opinion that this is an objection
without substance. It would be open to the accused (as the Crown contends) to
call other persons expert in the Cantonese language to give evidence as to the
proper interpretation and import of the conversations taped. I see no reason why
a person giving evidence of the English meaning of the Cantonese words in any
of the taped conversations is limited to conveying a strictly literal interpretation
of them. If they are slang words which have a particular meaning within a particular
sub-group of the population, evidence from a properly qualified person is admissible
of that; if by the tone of voice, a speaker conveys something other than what
would be conveyed by the literal meaning of the words used, evidence can be given
power to order a stay of proceedings is said to be discretionary. In a sense that
expression 'discretionary power' generally signifies a power exercisable by reference
to considerations no one of which and no combination of which is necessarily determinative
of the result. In other words it is a power which 'involves a considerable latitude
of individual choice of a conclusion.': Russo v. Russo (1953) VLR 57 per
Sholl, J. at 62. See also Pattenden, The Judge, Discretion and the Criminal
Trial (1982), p. Notwithstanding this latitude, a discretionary power is necessarily
confined by general principle. It is also confined by the matters which may be
taken into account and by the matters, if any, which must be taken into account
in its exercise.": per Gauldron, J., Jago (supra) at 75-76.
another sense, the power is not truly discretionary. It is rather a matter not
of discretion but of judgment. Once the court concludes that the circumstances
are such that any trial that would ensue must necessarily be unfair, notwithstanding
anything that may be done by way of interlocutory orders or rulings and directions
at the trial, there is no option but to stay the proceedings. On the other hand,
once the court is satisfied that the circumstances, taking into account all interlocutory
orders that may be made and all rulings and directions that may be given at the
trial, are such that the trial will not inevitably be an unfair trial, there is
no option but to refuse to stay the proceedings.
a party has made out his case for a stay, it would not be appropriate to refuse
to order the stay, merely because there were other considerations that tended
to suggest that the party should be deprived of his remedy - for example, in the
present case, failure to comply with earlier directions of the court and dilatoriness
generally in the pursuit of remedies. Perhaps the better analysis is to regard
those matters simply as irrelevant to the exercise of the discretion. In any event,
having regard to the conclusions that I have reached, there is no need for me
to explore these questions further.
several points in the foregoing reasons, I have indicated an intention to give
directions in respect of some aspects of the matter, namely, the question whether
the informer witnesses have been granted immunities in Hong Kong (pages 63-64),
the disclosure of leave records or other materials which were the basis of the
Crown's cross-examination of the wife of the accused in Hong Kong (page 69), and
the question whether relevant surveillance records are in existence (pages 65-66,
74). For the reasons earlier indicated, I propose to give directions along the
That on or before Wednesday 2 December 1992, the DPP file and serve an affidavit
stating, in respect of each meeting between the accused and any other person of
which it is intended to adduce evidence at the trial:
the date and time thereof;
the place thereof;
the name (and any known aliases) of each person who will be alleged to have been
That on or before Monday 21 December 1992, the DPP file and serve an affidavit:
stating whether or not, in the belief of the deponent, any of the persons alleged
to have e been present at any such meeting was, during a period of time including
the date and time of the alleged meeting, the subject of surveillance by officers
of either or both the Royal Hong Kong Police or the Hong Kong Customs and Excise
stating what enquiries have been made by or on behalf of the DPP in that regard,
by reason of which such belief is held;
if in the belief of the deponent any such person was the subject of surveillance
during any such period, stating whether any surveillance report is in existence
in respect of such period which either confirms or fails to confirm or refutes
the assertion that the alleged meeting took place;
if any report of any such surveillance is in existence, annexing a copy thereof;
to the extent that the affidavit does not comply with any of these directions,
stating why that is so and what efforts have been made to secure compliance.
That on or before Monday 21 December 1992, the DPP file and serve an affidavit:
stating whether or not, in the belief of the deponent, the person Cheung Siu Wah
has been granted in Hong Kong any immunity from prosecution or indemnity or pardon
or other consideration in respect of his involvement in the importation of heroin
to Australia in respect of which the accused is charged;
stating what enquiries have been made by or on behalf of the DPP in that regard,
by reason of which such belief is held;
stating whether or not, to the belief of the deponent, the person Ng Yun Choi
has been granted in Hong Kong any immunity from prosecution or indemnity or pardon
or other consideration in respect of his involvement in the importation of heroin
to Australia in respect of which the accused is charged;
stating what enquiries have been made by or on behalf of the DPP in that regard,
by reason of which such belief is held;
if any such immunity, indemnity, pardon or consideration exists in documentary
form, annexing a copy thereof;
to the extent that the affidavit does not comply with any of these directions,
explaining why that is so and stating what efforts have been made to secure compliance.
That on or before Monday 21 December 1992, the DPP deliver to the solicitor for
the accused a copy of the leave record of the accused or such other documents
in possession of the DPP as provided the basis for the cross-examination of Sin
Lai Kwan, in the course of the proceedings in Hong Kong pursuant to the letter
of request, on the subject of travel by the accused.
I grant liberty to the DPP to apply within the period specified for compliance
with directions, on affidavit setting out what efforts have been made to comply,
for an extension of the time within which to comply.
I grant leave to the accused to apply on or after Monday 21 December 1992 (or
on or after such later date as may be fixed for compliance with the above directions)
for such order as he may be advised. I propose to have the matter mentioned later
today, or at an early date, to settle the form of such directions.
accused has failed to satisfy me that, by reason of any of the matters complained
of in relation to the availability of documents and witnesses, and whether his
complaints be considered individually only or cumulatively, that they do or are
likely to occasion him such prejudice as to render his trial on 15 February 1993
necessarily (or even probably) unfair.
dismiss the application for stay, and confirm the trial date, 15 February 1993.
updated 19 May 2003.