REGINA v RAHME [2001] NSWCCA 414

New South Wales Court of Criminal Appeal

CITATION : REGINA v RAHME [2001] NSWCCA 414 FILE NUMBER(S) : CCA 60790/00 HEARING DATE(S) : 4 October 2001 JUDGMENT DATE : 16 October 2001

PARTIES : REGINA v Joseph Hana Kalife RAHME JUDGMENT OF : Mason P at 1; Levine J at 46; Howie J at 47

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/110308 LOWER COURT JUDICIAL Wall ADCJ OFFICER :

COUNSEL : Appellant: S J Odgers SC Respondent/Crown: R Sutherland SOLICITORS : Appellant: Nyman Gibson & Co Respondent/Crown: Commonwealth Director of Public Prosecutions CATCHWORDS : CRIMINAL APPEAL - joint trial - cut throat defence - record of interview withdrawn by Crown because induced by threat - co-accused uses answers in withdrawn record of interview to cross-examine accused - Evidence Act, s84 - "admission". DECISION : Appeal allowed.

IN THE COURT OF CRIMINAL APPEAL CCA 60790/00 MASON P LEVINE J HOWIE J

Tuesday 16 October 2001 REGINA v Joseph Hana Kalife RAHME

JUDGMENT 1 MASON P: The appellant and two others (Cane Pejovski and Zivko Bunevski) were jointly indicted on the charge that on 10 December 1997 at Sydney in the State of New South Wales did without reasonable excuse attempt to obtain possession of prohibited imports to which section 233B of the Customs Act 1901 applied, namely, narcotic good consisting of a quantity of 3, 4 methylenediozymethamphetamine (MDMA) being not less than the trafficable quantity application to MDMA which had been imported into Australia in contravention of the said Act. 2 The trial took place in the District Court before Wall ADCJ in May-June 2000. On 2 June 2000 the appellant and Mr Bunevski were found guilty. The jury were unable to agree in respect of Mr Pejovski. 3 The prosecution case was circumstantial. A package containing 214g of pure Ecstasy was intercepted by customs officers when it arrived in Australia. It was addressed to "Beck Architectural Company, 73 Vaumans Road, Peakhurst". It later transpired that the intended address was 73 Baumans Road Peakhurst which was Pejovski's home under renovation. 4 The package (containing a much reduced quantity of Ecstasy) was delivered to the home. Pejovski signed for it and took possession of it and he stored it in a locked shed. He later gave the key to the shed to Bunevski who subsequently travelled with the appellant by taxi to the address and collected the package. All three men were arrested shortly afterwards. 5 There was evidence from the taxi driver that the appellant had given directions, showing the driver a piece of paper with the words "Baumans Road" on it. When they arrived, the appellant told the taxi driver "we are going back to Rockdale, park on [or around] the corner … not in front of the house". The appellant came back to the taxi carrying a plastic bag which was found to contain the drug. 6 The main issue at trial was whether it was proved that each accused was intentionally in possession of the controlled delivery with the requisite belief or awareness of the likelihood that the package contained a trafficable quantity of the drug. There was evidence capable of establishing guilt against each accused. 7 Each accused gave evidence denying awareness or belief. Bunevski and the appellant each claimed that the other misled him. 8 At trial Bunevski testified that he had been told that the package was "for Mr Rackman" (sic, ie the appellant) although he believed that it contained "divorce papers". He testified that the appellant asked him to accompany him to 73 Baumans Road to pick up the package. 9 By contrast the appellant testified that he had been asked by Bunevski to accompany him to an address in Peakhurst and that at some point along the way Bunevski told him that he wanted to "pick [up] a gift from his Aussie friend's house in Peakhurst arriving from overseas". 10 There are three grounds of appeal and they are related, namely: Ground 1. The trial judge erred in admitting evidence of statements made by the appellant in his record of interview. Ground 2. The trial judge erred in failing to direct the jury that the evidence of statements made by the appellant in his record of interview could be used only in respect of his credibility. Ground 3. The trial judge erred in refusing to separate the trials of the appellant and his co-accused. 11 A separate trial application had been rejected by Rummery DCJ on 25 October 1999. 12 Applications for separate trials were renewed before Wall ADCJ on 8 May 2000. They were rejected. As regards the appellant, the learned judge indicated that the argument for a separate trial proceeded on the basis that the appellant's record of interview would be admitted into evidence (AB 72-3). His Honour added that the record of interview appeared to be consistent with an induced statement given by the appellant on the same day, the inference being that the appellant was unlikely to be disputing the material in the record of interview. 13 On the day of his arrest on 10 December 1997, the appellant was taken to Australian Federal Police Headquarters. He was brought handcuffed to an interview room and interviewed by two federal police officers named Barrett and Purcell. The record of interview is quite a lengthy one, spanning the period between 4.11pm and 5.40pm (646 questions). 14 When the prosecutor sought to tender the video record of the interview, counsel representing the appellant objected. He referred inter alia to s84 of the Evidence Act 1995. That provides: 84(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceedings an issue about whether the admission or its making were so influenced. 15 A voir dire was conducted. 16 Mr Purcell said: And as best I can recall … just prior to the interview commencing I said to him, "so you are going to cooperate with police today". He said, "yes, sir" and then I foolishly said to him, "well, that's good. If you cooperate with police today it may be a merry Christmas after all" (Tr p267) 17 Mr Purcell agreed that his remarks carried an implied, albeit unintended, threat that if the appellant did not cooperate he might spend Christmas in custody (Tr pp273-4). The transcript of the record of interview also revealed that the appellant regarded Purcell's words as an inducement (see A633-643). 18 It is hardly surprising that the prosecutor indicated that the Crown did not intend to rely on the record of interview and withdrew the tender (Tr p276). The trial judge therefore did not have to rule on the voluntariness of the record of interview. He contented himself with remarking [AB 370]: Although I had no concluded view about it I must say I was very, very concerned as to the compromised integrity of the record of interview. It was not only an inducement but the converse was a threat or an implied threat. And in the background a man having been handcuffed and taken into custody was going to raise all sorts of problems but be that as it may I will have that noted. 19 The trial proceeded to completion without the issue of voluntariness being revisited. The Crown never suggested that the appellant's answers in what can now be described as the excluded record of interview could go to the jury as evidence of the appellant's guilt. Unfortunately, the appellant's co-accused effectively did so, and the jury were permitted to do so. 20 Immediately after the rejection of applications for directed verdicts at the close of the Crown case there was discussion about the use that could be made of the excluded record of interview. 21 Counsel for Bunevski stated that all parties had assumed at the outset that the record of interview would be admitted into evidence. Nevertheless, he made it clear that he wished to be in a position to cross-examine the appellant in the interests of his client by putting to him any inconsistencies between his sworn evidence at trial and what he had said in the record of interview (Tr pp451-3). It was agreed between counsel for Bunevski and counsel for the appellant that rulings would be sought as to the appropriate limits of cross-examination at the conclusion of the evidence in chief of their respective clients (Tr pp453-4). 22 Counsel returned to the issue a few days later. Reference was made to s104(6) of the Evidence Act which states: Leave is not to be given for cross-examination by another defendant unless: (a) the evidence that the defendant to be cross-examined has given ..includes evidences adverse to the defendant seeking leave to cross-examine and (b) that evidence has been admitted. 23 There was also reference to s103(1) which stipulates that: The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value. 24 Counsel for the appellant submitted that Mr Bunevski should not be permitted to cross-examine the appellant by using the record of interview (a) because that document was not in evidence in the Crown case and (b) because to do so would be unfairly prejudicial (contrary to ss135 and 137 of the Evidence Act). 25 The learned trial judge said this (Tr 23 May 2000 pp 6-7, transcript partially corrected, emphasis added): It [the record of interview] could only have been admitted as statements made by accused which could be before the jury for the purpose of considering that evidence in relation to the over all evidence of the Crown against the accused, Mr Rahme. For the Crown to be able to lead that evidence as evidence relevant to the guilt of the accused, the Crown would have to establish that it was voluntary and that there was no requirement for it to be excluded in the exercise of the court's discretion…. That in my view does not prevent the statements that were made by Mr Rahme to the police about the subject matter of the very charge or the topic relevant to the very charge being a matter of cross-examination by a co-accused in his case, where a co-accused is claiming that he is innocent of any wrong doing and has been led into the net so to speak by the conduct of the co-accused . ELLIS (counsel for the appellant at trial) : It follows from that, if there is a matter of consistency, I would then be entitled to cross-examine Mr Bunevski in relation to statements he made to the police which had been excluded you had (sic) . HIS HONOUR: Certainly they come under no different category. They're prior statements made. In relation to the fact that the jury would be aware that there were conversations between Mr Bunevski and conversation and the police and the conversation between Mr Rahme and the police that can be the subject of the directions to the jury that they confine their attention to the evidence in the trial and not speculate how matters were discussed. As I see it …, each co-accused is entitled should the witness give evidence in the witness box adverse to an accused's interest in this trial, then each co-accused is entitled to cross-examine the witness accused on matters affecting the credit of the witness accused, provided that the matters have substantial probative value. And that means a very substantial and I now using the words of the Supreme Court in … Nikau [Howie AJ, unreported, 23 October 1997] , there must be very substantial connection between the evidence sought to be admitted and the effect that it can have upon the witness's credibility. As an overview so to speak insofar as the record of interview deals with statements made by a witness accused to the police about the very matter going to the root of the charge, I would have thought that there would have been manifest a very substantial connection. It is difficult to imagine a more substantial connection because he's making statements about the very matter the subject of the police investigation that led to the charge. 26 The appellant submits that the passage that I have just set out contain two distinct rulings:

1. that statements of the appellant in the excluded record of interview relating to the events of 10 December 1997 (ie directly relevant to the offence charged) could be adduced by a co-accused in cross-examination where it was adduced for the purpose of establishing the innocence of the co-accused.

2. that evidence of statements made to the police in the excluded record of interview which were inconsistent with his testimony in the trial, which counsel for Bunevski proposed to adduce in cross-examination of the appellant, had substantial probative value (cf s103) and thus the credibility exclusionary rule (cf s102) did not apply. Accordingly, leave was granted pursuant to s104(2) for the proposed cross-examination of the appellant. 27 I agree with this analysis. Had matters remained there, there would still have been very real problems in achieving a fair trial given the difficulty that the jury would have had in separating material adduced in cross-examination of the appellant that could (1) support the case of his co-accused and (2) undermine the appellant's credibility but not (3) operate as substantive evidence in the trial of the appellant adverse to the appellant's interests. The appellant's credibility as a witness was indiscerptible. 28 However, later developments showed that the judge permitted material from the excluded record of interview to be treated as substantive evidence adverse to the appellant's interests in his own case. 29 At one stage during discussion with counsel on 23 May 2000 the trial judge indicated that evidence adduced by cross-examination of one co-accused would be evidence in the joint trial generally. The exchange with counsel was: THANGARAJ (counsel for Bunevski) : I ask the cross-cross-examination by defence counsel, based on material otherwise excluded, be limited to the case of the accused for whom the question is being asked. If Mr Ellis asked Mr Bunevski, you said to the police there was no phone call in the cab and you also said that you never spoke to Vlado in the taxi, that evidence, because it was otherwise inadmissible, be limited to the case of Mr Rahme. HIS HONOUR: No, I can't do that. I won't do that. Any evidence that is given in the witness box, on oath, which by cross-examination, which is within the permissible area of questions that may be asked, is evidence in the trial. That's why I said it is a matter where counsel for each co-accused will have to be very circumspect about what matters they open up in cross-examination of the co-accused. Because the questions, if the question is admissible that is within the ruling I gave in relation to credibility, any answer that is given is evidence in the trial, and it is a matter to be considered by the jury in relation to all three cases, or all four cases I should say. 30 His Honour also adverted to the likelihood that s165(1)(d) of the Evidence Act would be engaged, thereby triggering a judicial warning as to the unreliability of the evidence of a criminal associate concerned in the events giving rise to the proceeding. 31 Later, after the appellant had given evidence in chief, counsel for Bunevski took his Honour back to these rulings in order to clarify what he would be permitted to do in cross-examination of the appellant. The judge effectively confirmed the two rulings summarised at par 26 above, without any remarks restricting the impact of the cross-examination to the case of the party seeking to adduce it by cross examination (Tr 251 on 29 May 2000). 32 While cross examining the appellant, counsel for Bunevski made extensive reference to the record of interview by the police on 10 December 1997. Several of the appellant's answers were put to him. And, when he had agreed with the record, he was challenged either as to the substance of his evidence, as to credit, or on both bases. 33 For example, there was the following cross examination by counsel for Bunevski (Tr p263 29/05/00): Q. You told the police at question 138 "he grabbed something from inside the shed and he tried to get out. I said 'give me that, I took the bags off him, to push the door for him and we went out, we jumped in a taxi"? A: I don't remember sir, I'm sorry. THANGARAJ: He would have to have a copy of the document. He has to at least agree that he told the police that. HIS HONOUR: What is the question? THANGARAJ: 138. He told the police "give me that --- ELLIS: It is an excerpt from a long answer. I concede that the portion there correctly states part of the answer. It has only partly been to put the witness and I am quite happy for it to be put in front of him. HIS HONOUR: It is conceded by Mr Ellis, on behalf of the accused Rahme, that when he was questioned by the police he gave an answer to the effect that when Bunevski was in the shed at Baumans Road on that day, 10 December, that Bunevski grabbed something from inside the shed and tried to get out and that Rahme told the police that he said, that he Rahme said, "Give me that, I took the bags off him, to push the door for him and we went out, we jumped in a taxi". THANGARAJ: Q: What you told the police was that you said "Give me that". You never said that Bunevski said "Hang on to that"? A. I don't remember sir. Q. Because you lied in Court on Friday? A. Never sir. Q. You agree that they are completely inconsistent answers? A. I don't know sir. 34 Several other statements in the withdrawn record of interview were put to the appellant by counsel for Bunevski on the basis that they were lies minimising the appellant's involvement and showing consciousness of guilt. 35 In the summing up the jury were told (in conventional terms) that the evidence in relation to one accused could differ from the evidence available against another accused (SU p8). Later, the jury were reminded of the evidence given by each accused as a witness. The jury were told, in fairly general terms, that the appellant's case (like that of his co-accused) was that he was an innocent dupe: in particular that he was a victim of Bunevski misleading him about picking up a shopping bag for someone who had sent a gift from overseas (SU 60). 36 In the absence of the jury there was discussion about the giving of a direction to the effect that all of the evidence led in the trial was admissible against all accused (SU 64). It would appear that counsel were specifically addressing evidence in relation to certain telephone records. What the jury were told was (SU 68-9): Well I have been reminded by counsel that at the outset I indicated to you that there might be evidence admitted in a case that was admissible against a particular accused only and not against the other accused, and for example, when the telephone records were first tendered and admitted by me in relation to the telephone records between Bunevski and Rahme, on 1st, 2nd, 6th and 9th December, that they were admissible in relation to Rahme and Bunevski only and not Pejovski. But, the way the case has been conducted members of the jury, with each accused going into the witness box and questions being asked and the telephone records being the subject of evidence in the witness box on oath etcetera, all counsel are agreed that the evidence in this trial now is evidence in all cases. Do you understand that? That the evidence that was formerly confined to a particular accused, is now evidence in relation to all cases for you to consider, because all counsel from time to time have referred to particular evidence and there has been evidence given from the witness box about it and there was an opportunity to cross-examine on it. 37 The jury were given no directions as to the limited use to which they might put the cross-examination of the appellant based upon his excluded record of interview. The passage from the summing up that I have just quoted must have reinforced in their mind the propriety of making general use of any evidence adduced in the cross-examination of the appellant, including cross-examination referring to and based upon the appellant's answers in the excluded record of interview. 38 In these circumstances there must be a new trial, because Bunevski's counsel put before the jury "evidence of an admission" by the appellant that was excluded by s84 of the Evidence Act and because of the real possibility that the jury relied upon this evidence in proceeding to their guilty verdict against the appellant. 39 The record of interview was withdrawn because all concerned perceived that the trial judge was not going to be satisfied that the admission, and the making of the admission, were not influenced by "oppressive" conduct or a threat of such conduct. This case is not an appropriate vehicle to explore the inner or outer limits of the concept of "oppressive conduct". It is sufficient that an objection based on s84 had been taken and, following the voir dire, the Crown withdrew the record of interview. The appellant never thereafter waived his objection to the admissibility of the record of interview and the judge was never thereafter invited to revisit the issue of whether he was satisfied of the matters stated in the terms of s84(1). 40 The rulings permitting Bunevski's counsel to use the record of interview (albeit in Bunevski's interests) and the failure thereafter to direct the jury in any way to confine themselves as regards consideration of that evidence in the context of Bunevski's case (assuming that to have been practically possible) meant that evidence which was not made admissible against the appellant went to the jury as evidence of his guilt. 41 The Crown submitted that Bunevski's counsel's use of the record of interview did not constitute the admission of "evidence of an admission" within s84(1). I cannot agree. The Dictionary in the Evidence Act defines "admission" to mean: … a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the proceeding. 42 When counsel for Bunevski got the appellant to agree with the contents of the record of interview in circumstances where those answers were put before the jury; and when those answers were used to attack the appellant's credibility as a witness in the trial generally and thereby to undermine his own case that it had been Bunevski who duped him, the "previous representation" embodied in the excluded record of interview was being used in a manner adverse to the appellant's interest in the outcome of his trial (see R v Horton (1998) 45 NSWLR 426). 43 The questioning should not have been permitted and the jury should not have been left free to use it inter alia to the detriment of the appellant's case. 44 The Crown invoked the proviso, but this was not a case where the court could be satisfied that no substantial miscarriage occurred. 45 I propose the following orders:

1. Appeal allowed.

2. Set aside the conviction and sentence.

3. New trial ordered. 46 LEVINE J: I agree with Mason P. 47 HOWIE J: I agree with the orders proposed and reasons given by Mason P. ***********************

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