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Foo v The Queen P5/2002 [ 2002] HCATrans 527  (24 October 2002)

Perth No P5 of 2002

B e t w e e n -

KOK JUAN FOO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 12.09 PM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC: May it please the Court, I appear with my learned friend, MS Z. GARDE-WILSON for the applicant. (instructed by Pryles & Defteros)

MR J.A. SCHOLZ: May it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

GAUDRON J: Yes, Mr Tehan.

MR TEHAN: Your Honours, this application concerns a short, but important point. In our submission, where the evidence against an accused comes from one witness who is intrinsically unreliable, it is incorrect for a judge to refrain from giving a direction as to the lack of confirmatory evidence, because there is no corroboration of the witness.

GAUDRON J: Well, what is the direction you say should have been given? Should her Honour have gone forward and said, "and there is nothing in this case to corroborate his account"?

MR TEHAN: The judge should have said that there is no confirmatory evidence of the accomplice and that that circumstance - - -

GAUDRON J: But, her Honour did say, "the only direct evidence is that of the accomplice."

MR TEHAN: She did say that, that is true enough, your Honour, but she did not say that there was no confirmatory evidence of the accomplice.

GAUDRON J: Well, you wanted her Honour to repeat herself in slightly different words.

MR TEHAN: She would not have been repeating herself; she would have been making a different point and a significant circumstance that the jury were entitled to take into account in assessing the reliability of the accomplice. That is that his evidence was not confirmed by any other evidence and that that circumstance was one - - -

GAUDRON J: Would that not have been clear?

MR TEHAN: No.

GAUDRON J: Why not? Her Honour made it clear that that was the only direct evidence that the applicant knew what was in the backpack and there was no other evidence of his knowledge. His defence that he did not know was fully put.

MR TEHAN: There was evidence of surveillance. There was also evidence of tape-recorded conversations. The jury, in the absence of the direction that we submit should have been given, might well have used those tape-recorded conversations to confirm the evidence of the accomplice. Of course, if they did so they would have been acting erroneously.

GAUDRON J: Well, they could confirm aspects of his evidence. You see, I have some difficulty of the notion that there was nothing confirmatory of his evidence, in any event.

MR TEHAN: Well, the case proceeded in that way and, in our submission, that view of the evidence was correct.

GAUDRON J: There was evidence to confirm aspects of his account, was there not? There was the telephone call.

MR TEHAN: The fact of the telephone call, and that is why, your Honour, it was so important to give the direction because the jury might have used what was said on the telephone call as providing some confirmatory basis for accepting the accomplice when in fact a direction would have highlighted that such a process is impermissible. What this case is really about is a simple point, and it is this: that the judge decided, in this case, that she would not give, what might be referred to as a full corroboration warning, because there was no corroboration. The Court of Criminal Appeal said that to give a corroboration warning when there is no corroboration is futile. Indeed the Court of Criminal Appeal went so far as to say that in a case where there is corroboration of one witness, then the forewarning ought to be given. Now that is simply illogical, it is discriminatory - - -

GAUDRON J: Well the forewarning goes on to identify what is capable of constituting corroboration.

MR TEHAN: Yes.

GAUDRON J: Such a warning is not usually to the advantage of the defence. In this case there was nothing to say, for example, what aspects of Mr Voong's evidence are corroborated and aspects of it were.

MR TEHAN: Well, I mean, that is a difference that we have, your Honour. In my submission, there was no corroboration and it does not matter for the purposes of the argument - - -

GAUDRON J: There was no corroboration of his account which went to the knowledge of your client.

MR TEHAN: Which was the critical matter.

GAUDRON J: Of course, but there was corroboration of aspects of his account.

MR TEHAN: Peripheral aspects as to happenings and events and when they happened and so on. Yes, I would be prepared to concede that, your Honour, but there was no corroboration of the critical matter in relation to knowledge. I mean, there were some witnesses not called: the man Simon in Melbourne; Ken, the person who had been involved in the previous - - -

GAUDRON J: If witnesses were not called, they were not called.

MR TEHAN: But it makes it all the more important for the judge to direct the jury that in assessing the reliability of the accomplice, one circumstance to take account of is the fact that his evidence is not confirmed.

GAUDRON J: Now was there not a very strong warning as to the dangers of relying on this evidence?

MR TEHAN: Your Honour, we concede there was a warning given and the judge certainly did tell the jury that - - -

GUMMOW J: Which page is that, the warning?

MR TEHAN: The warning is at application book page 13 commencing at line 101 and it proceeds over to the next page.

GAUDRON J: Well you have to start, do you not, back earlier. The direct evidence in this case really is the evidence of Mr Voong.

MR TEHAN: Yes. With respect, your Honour, on that point, it is no answer to the proposition that a corroboration warning be given to say that in this case there was simply one witness. Indeed, in our submission, the fact that there was one witness makes it all the more powerful that the jury should have been directed that there was no confirmatory evidence of that one witness and the illogicality of the approach taken by her Honour - - -

GAUDRON J: Well I fail to see any illogicality; I mean, you assert it. You have a situation in which there is a very strong warning as to the dangers of the jury relying on this man's evidence.

MR TEHAN: There is no warning that there is no confirmatory evidence of the accomplice, there is no warning as to what confirmatory evidence is and there is no warning that, in the absence of confirmatory evidence, it is unsafe or undesirable to convict. The jury may, but it is undesirable to do so. Now the illogicality - - -

GAUDRON J: Well, I do not think one tells juries that it is undesirable for them to do something, does one? I mean the basic rule is that you have to warn juries of any matter which gives rise to a perceptible risk of a miscarriage of justice. That is the foundational principle for accomplice warnings.

MR TEHAN: Yes, and expressed in that way - - -

GAUDRON J: What was the perceptible risk of a miscarriage of justice in the face of a warning such as was given?

MR TEHAN: The risk is this, that in assessing the reliability of Voong, the jury would not have brought to their attention the fact that his evidence was not confirmed by any other evidence and it is the experience of the law that juries need to be told that.

GAUDRON J: I am not entirely sure that that is right. It is the experience of the law that they have to be warned of the dangers of convicting on uncorroborated evidence, but that that is not sufficient, if there is corroboration, because what could constitute corroboration should be drawn to their attention.

MR TEHAN: Yes.

GAUDRON J: It is a two-way thing. Ordinarily the warning has to be tempered. Now you have to say in this case something quite beyond that.

MR TEHAN: The problem is this: if there is corroboration in the case, you get a warning and, I think, Chief Justice Gleeson, in one of the cases we have provided, said, "Well sometimes, of course, forensically counsel does not want a warning in a case where there is, in fact, corroboration." To use the words of the Court of Criminal Appeal in this case, "it can be futile", an exercise in futility. However, if the accomplice or one witness, sexual complainant, it does not matter, is not corroborated by any other evidence, then you do not get the warning. Now, that is inconsistent with the terms of section 50 of the Evidence Act in this State. Similar provisions to that provision exist in most other States throughout the Commonwealth.

GAUDRON J: But let us forget about that, because, in this case, the relevant provision says you do not have to have a warning. What brings the warning into play is the perceptible risk of a miscarriage of justice.

MR TEHAN: And the perceptible risk of a miscarriage of justice - - -

GAUDRON J: - - - was that they might believe Mr Voong without realising that which had the potential to make his evidence unreliable.

MR TEHAN: Yes.

GAUDRON J: And they were told what made his evidence unreliable, were they not, including that he was a liar?

MR TEHAN: Yes, but those matters, your Honour, were not related to the fact that there was no confirmatory evidence of him. So that in assessing those matters, the jury would not have brought to their attention the fact that there was no confirmatory evidence.

GAUDRON J: No, the question really, is it not, whether confirmatory evidence gives reliability to what might otherwise be thought to be unreliable evidence or whether lack of confirmatory evidence gives greater unreliability to the evidence. I would have thought, as a matter of logic, you were stuck with the former, not the second.

MR TEHAN: Yes. Well, in any event, that is perhaps unnecessary for me to answer for the purposes of this exercise because, in our submission, it was not just a case of the jury having brought to their attention the fact that there was no confirmatory evidence, it was also, in our submission, the judge should have said that by virtue of that matter it was unsafe to convict on the evidence of the accomplice. They could do so, but it would be unsafe - - -

GAUDRON J: Well, told it was dangerous, were they not?

MR TEHAN: They were not told. With respect, your Honour, they were told that:

It is traditional to warn juries of the dangers of the evidence of an accomplice -

GUMMOW J: Page?

GAUDRON J: Page 13.

MR TEHAN: Page 13, line 103.

GAUDRON J: Well is that not being told it was dangerous.

MR TEHAN: They were never told that it was unsafe to convict on the unconfirmed evidence of Voong. That is the simple point. And the reason why they were not told is simply illogical. The reason why they were not told is because there was no corroboration. What that means is that the door that the judges in Longman referred to, is kept shut; it is never opened, for an accused who has against him one witness whose evidence is not confirmed by other evidence. The door simply remains closed for that particular accused and our submission is that that is discriminatory and unfair, inconsistent with section 50 and inconsistent with decisions of this Court, in particular, Longman. What the effect of the approach taken by the Court of Criminal Appeal is, the effect of this approach is, as we submit, where there is corroboration, you get the benefit of the provisions, the statutory provisions. Where there is no corroboration, you carry the full burden.

GAUDRON J: No, you have a warning as to this evidence. The Act said, you did not need it, according to the Act. You got a warning; you got, what I would have thought was one of the strongest warnings as to an individual's evidence that I have encountered in a long time.

MR TEHAN: We got statements from her Honour expressed in strong terms, but we did not get the warning, the actual warning, that it is unsafe to convict on the unconfirmed evidence of Mr Voong. The Court of Criminal Appeal said that to give such a warning would create confusion. There would be no confusion about it; it would be the simplest, most direct warning that could be given and, generally speaking, in one-witness cases where the witness is intrinsically unreliable, as Mr Voong was, it is almost inevitable that such a warning is given. Indeed, the Court of Criminal Appeal in this State in the case of Lambley, which we have provided a copy of to the Court, said, "It is difficult to envisage circumstances in which a full corroboration direction would not be given when a key prosecution witness, who is an accomplice, is shown to be inherently unreliable and/or in the category of, or similar to, a prison informer."

Now that was the case here. The reason why the direction was not given is because of the illogical view, we submit, that there was no corroboration.

GAUDRON J: You have to say that the warning that was given was not equivalent to a warning that it was dangerous to convict on this man's uncorroborated evidence.

MR TEHAN: We do argue about the adequacy of the warning, your Honour, but the true point of special leave in this case is the illogical approach of her Honour and the Court of Criminal Appeal - - -

GAUDRON J: No, forget the question of illogic. You have to say that the warning that was in fact given was not sufficient to deal with the perceptible risk of a miscarriage of justice. It was not sufficient in the circumstances to alert the jury to the risks.

MR TEHAN: We do not shy away from that for one moment, your Honour. We accept that, because we contend that not one word her Honour uttered would have brought to the jury's attention the fact that it was dangerous to convict on the unconfirmed evidence of the accomplice in this case.

GAUDRON J: The warning was, in effect, that it was dangerous to convict on his evidence. Whether it was confirmed or unconfirmed, the warning was that it was dangerous to convict on this evidence.

MR TEHAN: Well, with respect, your Honour, that does not appear from what the judge said in this case.

GAUDRON J: Not in terms, but it is the only construction you could put on it. The jury must have taken that meaning surely. She said he was a liar. She said his account was internally inconsistent. She said he had a reason to lie.

MR TEHAN: But why, we would ask, why then does not her Honour say, "It is dangerous to convict on this man's unconfirmed evidence."? There was not one word uttered by her Honour to bring to the jury's attention that this man's evidence was not confirmed by any evidence in the case, and the reason why one can be comfortable about that fact is because her Honour articulated the reason why she was not going to give such a warning and we submit that that approach is simply illogical and inconsistent with decisions of this Court and special leave should be granted to correct that error. If the Court pleases.

GAUDRON J: Thank you. Yes, we need not trouble you, Mr Scholz.

Having regard to the issues in the trial, the warning by the trial judge with respect to the evidence of Mr Voong was adequate to alert the jury to the dangers of accepting that evidence. Accordingly, there was no error in the trial process and no miscarriage of justice. Special leave is refused.

AT 12.30 PM THE MATTER WAS CONCLUDED