Read the full judgment text of CACC 000470/1992 on BabelCite. This Court of Appeal judgment was delivered on 29 September 1993 before Yang CJ, Bokhary JA, Mayo J.
Criminal law – conspiracy – pervert the course of justice – common law – appeal against conviction and sentence – Crown Counsel wanted for corruption – escape from Hong Kong via Macau and China to Philippines – forged passport – use of forged visa discovered at airport – applicant's defence that he did not know Reid's true identity – evidence of co-conspirators – co-conspirator's rule – admissibility of co-conspirator's words and acts in furtherance of conspiracy – whether admissibility is for judge or jury to decide – standard of proof for foundation evidence – whether 'reasonable evidence', 'balance of probabilities' or 'prima facie case' test applies – whether statements and acts done prior to accused joining the conspiracy are admissible – corroboration – lies as corroboration – three-test formula from R v Lucas – whether lies told to Chinese authorities at airport capable of corroborating accomplice evidence – hotel records, shared accommodation and flight ticket payments as corroboration of concerted activity and guilty knowledge – whether corroboration warning required for evidence of named co-conspirator not on trial – sentence of four years' imprisonment for solicitor and Auxiliary Police officer. Held, dismissing the applications: (1) the trial judge (not the jury) must decide on the admissibility of co-conspirator's words and acts under the co-conspirator's rule, following Ahern v R (1988) 165 CLR 87; (2) the proper standard for the foundation evidence is the 'prima facie case' test, requiring independent evidence (other than the co-conspirator's hearsay evidence itself) linking the accused to the conspiracy, sufficient to ensure the hearsay evidence does not 'lift itself up by its own bootstraps'; (3) co-conspirator's statements and acts done in furtherance of the common purpose are admissible against an accused even though done prior to his joining the conspiracy, provided the accused is properly charged with the more extensive conspiracy; (4) following R v Lucas [1981] 1 QB 720, a deliberate lie is capable of amounting to corroboration, whether told in court or out of court, if it meets three tests – the lie must be deliberate, it must be clearly shown to be a lie, and the defendant must have lied because he realised he was guilty and feared the truth coming out; (5) no corroboration warning is required in relation to the evidence of a named co-conspirator who is not on trial; (6) the four-year sentence was proper in all the circumstances, reflecting the gravity of assisting a high government official to escape from justice. Application for leave to appeal against conviction refused; application for leave to appeal against sentence refused.
Legal issues: Co-conspirator's rule – who decides admissibility and standard of proof for foundation evidence · Admissibility of co-conspirator's statements and acts done prior to the accused joining the conspiracy · Whether deliberate lies can amount to corroboration
Outcome: Application for leave to appeal against conviction refused; application for leave to appeal against sentence refused; four-year sentence upheld.
Cited by 1 case