New South Wales Court of Criminal Appeal CITATION : Regina v YZ [1999] NSWCCA 263 FILE NUMBER(S) : CCA 61261/97 HEARING DATE(S) : 21/6/99 JUDGMENT DATE : 27 August 1999 PARTIES : Regina "YZ" JUDGMENT OF : Beazley JA at 1; Sully J at 2; Dunford J at 21 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0699 LOWER COURT JUDICIAL OFFICER : Blanch CJDC COUNSEL : Mr. P. Hastings QC/Miss S. McNaughton - Appellant Mr. J. Doris - Respondent SOLICITORS : Commonwealth DPP - Appellant Murphy's Lawyers Inc. - Respondent CATCHWORDS : Criminal Law (C'th) - plea of guilty to charge of conspiracy to import prohibited drug - offer of assistance to authorities - sentence discounted accordingly - subsequent refusal to give evidence in accordance with undertaking - whether original undertaking given in good faith - whether refusal was "without reasonable excuse"; held: (i) Court not satisfied of lack of good faith; (ii) Court satisfied that lack of reasonable cause had been established. ACTS CITED : Commonwealth Crimes Act 1914 Customs Act 1901 (Cth) DECISION : Appeal allowed; substituted in accordance with s.21E(3) of the Commonwealth Crimes Act, and in place of the sentence imposed by Blanch CJDC, a sentence of 10 years and 4 months commencing on 5 August 1994, and having a non-parole period of 7-1/2 years. IN THE COURT OF CRIMINAL APPEAL 61261/97 BEAZLEY JA SULLY J DUNFORD J 27 August 1999 REGINA v "YZ" JUDGMENT 1 BEAZLEY JA: I agree with Sully J. IN THE COURT OF CRIMINAL APPEAL CCA 61261/97 BEAZLEY JA SULLY J DUNFORD J 27 August 1999 REGINA v "YZ" JUDGMENT 2 SULLY J: This is an appeal brought pursuant to section 21E of the Commonwealth Crimes Act 1914 by the Commonwealth Director of Public Prosecutions,["the Director"]. The respondent to the appeal is a prisoner who is known, for the purposes of the present proceedings, by the Court-approved pseudonym, "YZ". 3 On 5 August 1994 YZ was arrested and charged with having conspired to import into Australia prohibited imports, to which section 233B of the Customs Act 1901 (Cth) applied, to whit, narcotic goods consisting of a quantity of cannabis resin being not less than the commercial quantity prescribed for cannabis resin. The maximum statutory penalty for such an offence is life imprisonment. 4 YZ pleaded guilty to the charge and before a Local Court Magistrate. On 5 March 1996, YZ adhered to that plea before his Honour Justice Blanch, Chief Judge of the District Court. Thereafter, and on 5 and 8 March 1996 Blanch J heard submissions on sentence. Put simply, YZ indicated to Blanch J his willingness to assist the Director by giving evidence for the Crown in a pending prosecution of a man called Warren, an alleged co-conspirator with YZ and others in connection with the cannabis resin importation previously mentioned. YZ signed an undertaking to that effect; and it will be necessary to return presently to a consideration of the terms of the undertaking and of the way in which it was subsequently implemented. On 11 March 1996 Blanch J sentenced YZ to imprisonment for 9 years with a non-parole period of 6-1/2 years. His Honour indicated that he had reduced the head sentence from 10 years 4 months and the non-parole period from 7-1/2 years, in consideration of YZ's undertaking to give future assistance to the Director in connection with the prosecution of Warren. 5 The trial of Warren commenced on 21 April 1997. On 17 April 1997, and in circumstances to which it will be necessary to refer later herein, YZ was called in connection with a pre-trial voir dire. The purpose of the voir dire was, put shortly, to establish: first, whether YZ would give evidence at all in fulfilment of his undertaking in that behalf; and secondly, if so, what evidence he would give. At the voir dire hearing, YZ made it clear that he was not prepared to give any evidence against Warren at the latter's trial. On 28 May 1997, and in the wake of that refusal, the Director instituted the present section 21E appeal. 6 The Director seeks, by way of the appeal, to have the sentence actually imposed by Blanch J increased to the level of the sentence that his Honour indicated he would have imposed had it not been for YZ's undertaking to give future assistance in the prosecution of Warren. The terms of section 21E(3)(a) require imperatively that the Court, "if it is satisfied that ……… [YZ] …….has failed entirely to cooperate in accordance with the undertaking", must reinstate the head sentence of 10 years 4 months and the accompanying non-parole period of 7-1/2 years, which Blanch J himself would have imposed but for YZ's undertaking to give future assistance. 7 The Crown case is simple. It is: first, that YZ, at the time when he gave the undertaking to Blanch J, was not acting in good faith; and secondly that YZ has failed, in fact, entirely to cooperate in accordance with his undertaking; and has so failed "without reasonable excuse". The phrase "without reasonable excuse" appears in section 21E(2)(c). Section 21E(2)(c) entails, so far as is now relevant, that the Director, before instituting an appeal of the present kind, must consider, among other prescribed things, whether the relevant failure to comply with an undertaking to give assistance to law enforcement agencies occurred, in fact, "without reasonable excuse". 8 In an interlocutory judgment handed down on 23 March 1999 this Court held that the Court itself, when called upon to exercise its powers under section 21E(3), must consider for itself whether, if in fact there had been an entire failure to cooperate with the relevant undertaking, such failure could properly be characterised as having been "without reasonable excuse". 9 For YZ it was submitted strenuously that, although he had indeed failed entirely to give evidence in accordance with his relevant undertaking, there had been, at the time of such failure, "reasonable excuse" for the failure. 10 The gravamen of YZ's case in connection with the present appeal can be summarised as follows: (1) He gave the undertaking in all good faith; but (2) He believed, when he gave the undertaking, that in consideration of his giving the projected evidence against Warren, he would be given such reasonable protection, and assistance otherwise, as would reasonably assure his physical safety and that of his immediate family; (3) That by the time he was called on 17 April 1997, and in the context of the pre-trial voir dire earlier herein mentioned, there had been widespread publicity, both within, and outside, his place of confinement, of the fact that he was proposing to give evidence as a Crown witness in the trial of Warren; and that there had been, in the aftermath of such publicity, threats, which he took very seriously indeed, of physical harm to him and to his immediate family. (4) Further, and in exacerbation of the matters referred to in (3) above, it was ruled by the presiding Judge that the pre-trial voir dire hearing should be conducted in open Court; and that he, YZ, would be cross-examined in open Court by Senior Counsel briefed to appear for Warren at the latter's trial. This particular Senior Counsel held, also, a brief to appear for a very notorious criminal about whom YZ had given to the police, at some earlier time, information that inculpated that criminal in certain extremely serious criminal offences. YZ apprehended that, if so cross-examined by that particular Senior Counsel, he would be cross-examined, and in open Court, about his having given to the police that particular inculpatory information. (5) The cumulative effect of the foregoing matters was that when he was called at the voir dire hearing, he was terrified, with every good reason, of the harmful consequences that, as he judged the situation, would certainly result from his then giving evidence in accordance with his undertaking. 11 In considering these two competing cases in connection with the present appeal, it is convenient to take as a starting point the terms of the undertaking given by YZ to Blanch J. The undertaking took the form of a written document in the following terms: "I, ….[YZ]…., undertake; (1)(a) to give evidence for the Crown in any proceedings against the person nominated below arising from his involvement in the importation of cannabis resin into Australia on 4 August 1994: Patrick William WARREN (b) that in giving evidence I shall fully and frankly detail my involvement and that of Patrick William WARREN concerned in the importation of cannabis resin described in (a) the subject of any proceedings brought by the Crown of which I have knowledge. The evidence I am prepared to give will implicate Warren as one of the principals in the said importation. [ * ] I acknowledge that my counsel has fully explained to me the effect of section 21E of the Crimes Act 1914. I acknowledge that I fully understand its effect and the consequences of any failure by me to honour this undertaking. Signed ….[YZ]…. 5 March 1996" 12 Between 11 March 1996, when YZ was sentenced by Blanch J, and 17 April 1997 when YZ was called on the pre-trial voir dire hearing, the Director made repeated attempts to obtain from YZ the usual form of statement of the evidence which YZ, if called to give evidence at the trial of Warren, would be able and willing in fact to give. YZ rebuffed all such approaches by the Director. He would not attend a conference with counsel. He would not give a statement of his own composition. The result was, of course, that the Crown could not provide to Warren's solicitors, and in advance of the commencement of Warren's trial, the appropriate advance notification, not only of the intention of the Crown to call YZ at the trial of Warren, but also the nature and extent of the evidence which it was expected that, when so called, YZ would in fact give. The Crown sought to deal with the situation by sending to YZ's solicitors a copy of the undertaking given by YZ to Blanch J; and by applying to the Judge who was to preside at the trial of Warren, for a voir dire hearing in order to establish clearly what YZ, if called at that trial, would be able and willing to give in evidence. 13 I have read the relevant portions of the transcript of the proceedings before Blanch J. It is not easy to make sense of them for present purposes. The proceedings were conducted, of course, in open Court. That entailed that the placing before Blanch J of various documents involved the use of sealed envelopes, accompanied by cryptic comments about the contents of the same. It is, however, fair in my opinion to accept at least the following propositions: (1) YZ did not at any time dissemble about his stance with regard to giving the relevant undertaking. He did not, for example, offer to give future assistance in connection with more than one of his alleged co-conspirators, (and there was a large number of them), and then provide assistance as to some one in particular of that number of alleged co-conspirators. At all times, YZ gave an assurance, and ultimately the written undertaking to which I have referred, that he would give evidence only against Warren. (2) The Crown Prosecutor was alive to the limited nature of the assistance being offered by YZ. It was, indeed, in contemplation of the Crown Prosecutor's perception of those limitations that it was insisted by the Crown that there be included in the written undertaking the short paragraph marked ….[…*…]…. in the reference made earlier herein to the terms of the undertaking as finally given. (3) The Crown could have refused to deal with YZ upon the basis of the only undertaking as to future assistance that YZ was prepared to give. The Crown could not, I think, have prevented YZ from informing Blanch J that he was prepared to give assistance in accordance with the undertaking; but I do not see why the Crown could not have told Blanch J that the Crown regarded the proffered assistance as either worthless, (if that were the Crown perception), or of such marginal worth as would not dispose the Crown to call YZ in the trial of Warren, (if that were the Crown perception). It seems to me, however, that the Crown's position was that YZ's evidence was not worthless in connection with the pending trial of Warren; and that, albeit the Crown would have preferred a much greater degree of assistance from YZ, the Crown was prepared, nevertheless, to accept, however grudgingly, what was in fact offered by YZ, and to call him, accordingly, at the Warren trial. 14 For the Crown it was submitted that YZ, at the time he gave the particular undertaking, was in a position to give assistance to the relevant law enforcement agencies as to many more of the alleged co-conspirators than only Warren. It was submitted that YZ was well aware, at the time at which he gave his undertaking, that Warren was in fact senior in years and in ill-health; and that YZ undertook to give evidence against Warren at the latter's trial because, or predominantly because, YZ's true belief at the time was that Warren would never be brought to trial because of his age and ill health, with the result that YZ himself would never be called upon to honour in fact his undertaking to give evidence against Warren. 15 That level of scepticism about YZ is, in my opinion, wholly understandable. I do not think, however, that there is to hand precise and credible evidence which, if accepted, would justify a positive finding that such scepticism has been vindicated. Nor do I think that such scepticism is of itself sufficient to cut down any of the propositions (1)-(3) previously mentioned. 16 It then becomes necessary to consider whether cause has been shown for a finding that YZ, when he resiled from his undertaking, acted "without reasonable excuse". 17 My first impressions, at the hearing of the appeal, were that there was more than a little force in the essential argument put forward by YZ: that is to say, the argument that, by the time he was called to give evidence on 17 April 1997, he had been put in such a position that he faced a stark choice between two evils, of which the lesser was, in his then reasonable perception, to resile from his undertaking. 18 In that connection, it should be acknowledged, in my opinion, that by 17 April 1997 things had happened that might have been thought, very reasonably, by YZ to be threatening as to either his own safety or that of his immediate family. By 17 April 1997 YZ was aware that a copy of his undertaking had come into the possession of Warren, and had been circulated by, or at the instigation of, Warren, widely throughout the criminal milieu to which YZ himself was connected. There had been some very strident media publicity which had conveyed, some of it in the most lurid terms, and to the world at large, that YZ had become a police informer. Some graffiti, having obviously nasty overtones, had been sprayed onto various parts of YZ's then home. YZ himself had been assaulted in prison as a police informer. 19 As I have said, such considerations originally disposed me to think that there might be, indeed, substance in YZ's present contention that his resiling from his undertaking had not been done "without reasonable excuse". Upon further reflection I have come, however, to the conclusion that a positive finding to that effect should not be made. My reasons are, broadly speaking, the following: (1) The importation in connection with which YZ was charged was a major operation. It involved three connected syndicates of people. The people concerned in the operation, certainly at the level within it of YZ himself, were engaging actively in a criminal enterprise of major proportions. I have no doubt that YZ himself was well aware of that fact; and that he was sufficiently a man of the world to understand that the kinds of people with whom he was dealing in that context were unsavoury and potentially dangerous. (2) YZ appears to have had at all material times experienced professional legal representation and advice. He had, certainly, such representation and advice in connection with his appearances in Court before Blanch J, and in connection with his giving, in the context of those proceedings, the undertaking here in question. (3) It must have been apparent to YZ, when he gave his undertaking, that all the protection in the world could not prevent his having to come face to face in Court with Warren on whatever occasion he, YZ, gave evidence against Warren and in accordance with his undertaking. I do not accept it as reasonable to suppose that YZ, given the level of his professional representation at the material times, did not understand that nobody could give him a guarantee that, when he came to give substantive evidence against Warren at the latter's trial, he would be allowed to do it in closed Court and hermetically sealed off from any risk of any publicity concerning his evidence. I do not accept it as reasonable to suppose that YZ, advised as he was, can have imagined that there was anything other than a very real likelihood that he would be required to give any substantive evidence against Warren in open Court and in accordance with the normal requirements of the law in that behalf. (4) It seems to me that, given the foregoing propositions, certain further propositions necessarily flow. There was never any real prospect that YZ, if he gave evidence in accordance with his undertaking, would not be cross-examined. I would not think it a reasonable possibility that YZ was under any illusion that, when so cross-examined, he would be tested to the hilt upon his credit; and that it was entirely likely that, in that connection, he would be cross-examined so as to suggest to the jury at trial that he was an established police informer for his own selfish advantage, and as such was both dishonourable and unreliable. (5) In sum, there does not seem to me to have been any prospect that YZ could give evidence against Warren at the latter's trial without Warren being present while he did so. That at once entailed, as it seems to me, not only that Warren himself would know that YZ had informed against him in connection with the importation at the centre of Warren's trial, but also that Warren would see to it, in the very nature of things, that the fact was made known throughout the criminal milieu of which both of them were a part; and both within and outside the prison system. If it be accepted that YZ acted in good faith when he gave the undertaking to give evidence against Warren, then it must follow, in my view, that YZ gave that undertaking with his eyes open to, at the very least, the realities of which I have latterly spoken. The events which in fact happened, deplorable though they were, really brought forward sooner rather than later results that were going to occur sooner or later in any event. 20 For the foregoing reasons, I am satisfied that the Director has established beyond reasonable doubt that YZ has failed entirely to honour his undertaking to give evidence; and that such failure is "without reasonable excuse". It must follow that, in my opinion, the appeal should be allowed; and that there should be substituted in accordance with section 21E(3) of the Commonwealth Crimes Act, and in place of the sentence imposed by Blanch J, a sentence of 10 years and 4 months commencing on 5 August 1994, and having a non-parole period of 7-1/2 years. ********** IN THE COURT OF CRIMINAL APPEAL 61261/97 BEAZLEY JA SULLY J DUNFORD J 27 August 1999 R v "YZ" JUDGMENT 21 DUNFORD J: I agree with Sully J. 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