New South Wales Court of Criminal Appeal CITATION : R v Ahmadi [1999] NSWCCA 161 FILE NUMBER(S) : CCA 60615/97 HEARING DATE(S) : 23 June 1999 JUDGMENT DATE : 23 June 1999 PARTIES : Regina Ghulam Ahmadi (Appellant) JUDGMENT OF : Spigelman CJ at 32; Studdert J at 1; Adams J at 33 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/11/0882 LOWER COURT JUDICIAL OFFICER : Luland DCJ COUNSEL : P.G. Berman (Crown) M. McColm (Appellant) SOLICITORS : C.K. Smith (Crown) Watsons (Appellant) CATCHWORDS : Criminal law; evidence; admissions; considerations of reliability and fairness; Evidence Act ss 85(2), 90. Drug Misuse and Trafficking Act ACTS CITED : Evidence Act Sentencing Act Crimes Act CASES CITED: House v The King [1936] 55 CLR 499 at 504 Lowe v The Queen [1984] 154 CLR 606 DECISION : Appeal against conviction dismissed; leave to appeal against sentence granted; appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60615/97 SPIGELMAN CJ STUDDERT J ADAMS J Wednesday 23 June 1999 REGINA v Ghulam AHMADI JUDGMENT 1 STUDDERT J: The appellant, Ghulam Ahmadi, was found guilty by a District Court jury of an offence under s 25(1) of the Drug Misuse and Trafficking Act, 1985 concerning the supply of heroin. He was sentenced in respect of this offence to a minimum term of two years eight months and an additional term of two years. He now appeals against his conviction and seeks leave to appeal against the severity of the sentence imposed. 2 The grounds of the appeal against conviction have been expressed as follows: (1) The trial judge erred in admitting into evidence the conversations between the appellant and Det. Stephen York and Det. Peter Thurtell; (2) The trial judge erred in admitting into evidence the ERISP interview between the appellant and Det. Stephen York and Det. Peter Thurtell. 3 The appellant was arrested at a carpark adjacent to a McDonald's food outlet at Kensington on the night of 13 January 1993. On the prosecution case the appellant was involved immediately prior to his arrest in the supply of a quantity of heroin to an undercover police officer. The driver of the car in which the appellant arrived at the carpark was Jamil Malki, and the prosecution case was that Malki left the car to meet the undercover police officer who was in a second car nearby. The police officer produced a sum of money which Malki checked before returning to his own car in which the appellant was seated. On the prosecution case, the appellant was seen then to hand to Malki a white plastic bag and Malki placed that bag in the boot of his vehicle. He then opened the boot and passed the bag to the police officer. That bag contained five small plastic bags of heroin. The arrests of the appellant and of Malki followed. 4 The appellant was taken in handcuffs to the police station at Surry Hills, where in an ERISP the appellant - and I summarise the effect of the interview - admitted being given a quantity of heroin by a woman he had met in India and further admitted placing that in the car which he and Malki drove in to the carpark for the purpose of selling the drug. The ERISP in question was immediately preceded by an interview not electronically recorded but with the same police present at the later ERISP. At the earlier interview the same admissions were first made. 5 The evidence as to the admissions was allowed into evidence at the appellant's trial after there had been proceedings on the voir dire. Indeed, those proceedings had been conducted at an earlier trial in which the jury had been discharged, but the ruling that followed that voir dire was accepted as applying at the later trial when the appellant was convicted. 6 It was submitted at first instance that the evidence of admissions should have been excluded under s 85 of the Evidence Act and, alternatively, under s 90 of that Act. It was submitted that the necessity to exclude the evidence under s 85 arose taking account of s 85(3) which provides: (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put; and (ii) the nature of any threat, promise or other inducement made to the person questioned." 7 In his reasons for allowing the evidence as to the admissions, the trial judge expressed himself as being satisfied on the balance of probabilities that the evidence in question was admissible after considering s 85 of the Evidence Act, and he also determined that the admission of the evidence was not unfair so as to warrant its exclusion in the exercise of his discretion under s 90. 8 In his written submissions on this appeal, counsel for the appellant has submitted that the evidence ought to have been excluded under s 90 for the following reasons: (a) the appellant's limited intellectual capacity; (b) his poor understanding of English; (c) the failure to provide him with an interpreter; (d) that the appellant did not understand or comprehend his rights including his right not to answer; (e) that there was error in the failure to exclude the evidence on the basis of unfairness. 9 There was extensive evidence given on the voir dire hearing by the police officers involved and by the appellant and witnesses called by him to give evidence as to the appellant's limited grasp of English. In addition a psychologist, William John Taylor, also gave evidence directed inter alia to his assessment that the appellant had limited intellectual function "being within the mild intellectually handicapped range." 10 The appellant grew up in Afghanistan, where he had limited education. He came to Australia in 1982 and found employment as a labourer with a local council, later as a cleaner, and finally with Kelloggs, where he obtained a ticket to operate a forklift. The appellant worked for the latter employer for some eight years prior to his arrest. The appellant asserted on the voir dire that he lied in making the admissions there recorded and asserted that he said what he said because of fear of the police. He said that the police officers had told him "We won't hurt you if you tell us everything", and the appellant took this to be a threat that he would be harmed if he did not tell the police what they wanted to know. 11 The trial judge having heard the prosecution evidence on that issue found that the appellant had not been threatened either in the terms alleged or at all. He further expressed himself as being satisfied that there were no circumstances in which the admissions were made to make it unlikely that the truthfulness of those admissions "was adversely affected". This finding was no doubt directed to the terms of s 85(2) of the Evidence Act. It was a finding that was clearly open to his Honour and was not a finding which, in my opinion, this Court can now properly disturb. 12 The trial judge found that the appellant understood the police caution which the evidence established had been given to him. In so finding, his Honour said that he drew upon the advantage he had enjoyed in viewing the ERISP and assessing what the appellant had then said. His Honour also had regard to what the appellant had said in his evidence to the effect that he knew what the police officers were asking him on interview. In point was the following response at pp 96-97 of the transcript: "Q. Just so that I can correctly understand what you are telling me, are you telling me you knew what the police officers were asking you and you told them what you thought they wanted to know because you were scared, is that what you are saying? A. Yes, your Honour. I was frightened. I was so scared and I did not want that they should put me any harm." 13 I have observed that his Honour rejected the appellant's evidence that he had been threatened by the police, but this left the response in the above answer that the appellant knew what the police officers were asking him. 14 In his reasons expressed for the decision taken following the voir dire, his Honour made this further finding on the subject of the appellant's understanding: "I accept that the accused was slow in understanding some concepts such as the caution, but the police in my view ensured it was properly explained to him. Furthermore, he made no complaint to Sgt Porter about any matter of questioning." 15 In the above passage the reference to Sgt Porter is a reference to the officer in charge who entered the video room for the purpose of confirming, if such was the case, that the appellant had undertaken the interview voluntarily and that the interview had been properly conducted. 16 The assessment that the trial judge made of the ERISP after observing and hearing what then occurred was of critical importance in his task of assessing the fairness or otherwise of allowing the admissions to go into evidence. The earlier interview itself did not contain any admission not contained in the later ERISP. In these circumstances, whether or not the officers who conducted it proceeded further than was appropriate does not have any practical significance. There could, in my view, be no miscarriage by reason of the admission of the evidence relating to the earlier conversation, even if it be assumed that that evidence ought to have been excluded. What was important was the ERISP evidence and no error emerges from a consideration of the evidence and from a consideration of his Honour's reasons for allowing into evidence the ERISP material. 17 The judge was, of course, required to consider all the relevant circumstances before deciding whether he should exclude that evidence. The decision which he did take not to exclude the evidence as to the admissions under s 90, involving as it did the exercise of a discretion, could only be disturbed in this Court on proof of an error of the type identified in House v The King [1936] 55 CLR 499 at 504. No such error is discernible from a consideration of the reasons expressed by the trial judge in relation to that ERISP. 18 In my opinion, the appeal against conviction fails. 19 This brings me to the application for leave to appeal against sentence. 20 The jury acquitted the appellant on the first count in the indictment charging the offence of the supply of a quantity of heroin not less than the commercial quantity, so that the appellant was to be sentenced upon the basis of the supply of an indictable quantity only. It seems clear that although the relevant certificate of analysis tendered at the trial afforded evidence that the total weight of heroin in the plastic bags seized was in excess of 338 grams, the jury must have been influenced in their verdict by the appellant's admission that the quantity he had been given was only 180 grams (which is less than the defined commercial quantity). 21 The maximum penalty for the offence in respect of which the appellant was convicted was fifteen years imprisonment (s 32 of the Drug Misuse and Trafficking Act). The appellant was to be given credit for having spent four months in custody before his trial whilst he was waiting for bail and was expressly given credit for this when the minimum term of two years eight months was fixed. 22 The appellant was a man of previous good character with no convictions. Evidence established that he had been a hard-working family man in regular lawful employment, with a wife and three dependent children who were much affected by the consequences of his criminal behaviour. His Honour found special circumstances for the purposes of s 5(2) of the Sentencing Act and this was plainly a course open to him. 23 The aggregate sentence of five years could not prima facie be regarded as manifestly excessive, nor could the structure of the sentence prima facie be considered erroneous. 24 Mr McColm has challenged this sentence on one ground only and that is that by reference to the principles stated in Lowe v The Queen [1984] 154 CLR 606 the sentence ought to be reduced because of what the co-offender Malki received by way of sentence. 25 Malki was sentenced by Judge Moore on 26 October 1994 in respect of the same supply to an aggregate sentence of three years with a minimum term of one year six months. The sentencing remarks in that case were before Judge Luland QC and have been placed before this Court. Unlike this appellant, Malki was being sentenced upon the basis of the analyst's certificate that the quantity of heroin was 338 grams and thus a commercial quantity, so that the maximum available penalty for Malki would have been twenty years imprisonment (s 33 of the statute). 26 However, there were mitigating features in Malki's case which distinguished it from that of the appellant. Unlike the appellant, Malki had pleaded guilty and, on the evidence placed before him, Judge Moore found that Malki "had been duped by his principal, the seller". This presumably was a reference to the appellant, although it did not emerge in the proceedings before Judge Luland what basis there was for Judge Moore to have determined that the appellant's role in this offence was the dominant one. More significantly, Judge Moore found that Malki had been of assistance to the police: "He was of assistance to the police. He went to them very soon after his arrest and made an electronic record of interview, fully inculpating himself, and in it he gave the name and address of one of the men who supplied the heroin to him, and he gave the name and a description of the other man and details of how to find him." 27 Although the sentencing judge did not express any assessment of the value of Malki's assistance, and although he did not state the extent to which he had reduced the sentence because of the assistance given, this factor could well have warranted a significant discount. It was an important feature in Malki's case absent from the appellant's case. 28 Judge Luland was plainly alert to the matters distinguishing Malki from the appellant although he recorded that he was not aware of the evidence which prompted Judge Moore to find that the appellant was more responsible than Malki. For his part, Judge Luland found himself unable to say that the appellant was more responsible than Malki but he found nothing to suggest that he was any less responsible. Judge Luland recognised the relevant finding by Judge Moore as being one point of distinction in arriving at a sentence appropriate in Malki's case and he also recognised the difference in plea and the assistance to the police as being distinguishing features. 29 The distinctions between Malki's case and that of the appellant above identified were such as in my opinion to lead to the conclusion that the sentence imposed upon the appellant should not be disturbed. It seems to me that once the differences in the two cases are recognised and weighed as they were by Judge Luland, the fact that the appellant has been given a harsher sentence to the extent that he has been cannot be regarded as engendering a justifiable sense of grievance. 30 I would grant leave to appeal on sentence but in my opinion such appeal should be dismissed. 31 The orders I propose are that the appeal against conviction be dismissed; that leave to appeal against sentence be granted, but that such appeal be dismissed. 32 SPIGELMAN CJ: I agree with the reasons of Studdert J and the orders he proposes. 33 ADAMS J: I also agree, but I wish to add some remarks. 34 In this matter, as Studdert J has mentioned, prior to the recorded interview there was a conversation conducted between the investigating sergeant together with another police officer with the appellant in an interview room other than that to which he was later taken for the purpose of the video taped interview. It was said in evidence, and may be accepted, that the recorded interview could not commence immediately since the room was not then available. 35 The conversation commenced with an introduction of the police officers and a caution. As was evident from the immediately following recorded conversation, the appellant had considerable difficulty in understanding the caution given on that occasion and plainly did not appreciate its significance until it was put to him in simple language. I accept the propriety of the conclusion of his Honour that the recorded interview which occurred following the simplification of the caution was voluntary. However, the exposure of the uncertainty of understanding of the appellant on that occasion necessarily raised questions concerning his understanding of the first caution which was cast in conventional but formal terms. 36 After taking some personal details relating to name, date of birth, marital status, place of work and the like, the initial interview then approached the substance of the alleged criminal behaviour by questions directly related to his possible involvement, and plainly designed to elicit admissions. 37 The evidence of the police officer in this regard was (p 61): "Former Detective York and I had no involvement in this operation at all up until that day. I had never even seen or heard of [the appellant] before I entered that interview room. Now we, in order to conduct an interview you have got to have some basic understanding of what's happening. Purely it was just a preliminary interview to find out the extent of the involvement and then the interview was done as soon as the interview room became available." 38 This was somewhat coy, since the questions were asked upon the basis, first of all, that the police understood the appellant was involved in serious criminality in respect to the drugs and, secondly, plainly sought admissions about it. The suggestion that the questions were merely preliminary to an interview dealing with the substantive matters was on the face of it absurd. 39 I consider that there must have been very real doubt about the understanding of the appellant as to the meaning of the caution, and secondly, as to the propriety of the police in the circumstances where no recording of the words used was to take place broaching in a detailed way the possible criminal involvement of the appellant. 40 However, as I have said, I consider that his Honour rightly allowed the evidence of the recorded interview which contained much the same material as had previously been elicited by the police. The possible exclusion of the earlier conversation under ss 138 and 139 of the Act was not urged either on his Honour or on this Court and it is unnecessary to take the matter further, although it is fair to observe that where police are interviewing a person whose English is not fluent, though it might be thought to be adequate, it is desirable for them to inquire from him or her not whether he or she has understood the caution but what they understood the caution to be. This is a commonsense way of ensuring that the caution is understood. 41 The admissions would be admissible unless their truth were rendered doubtful by what had occurred. Having regard to the circumstance that the initial admissions were substantially repeated in an appropriate setting, no question of the truth or reliability of the earlier admissions arises. Accordingly, I consider that they were admissible. 42 The effect of the recently inserted Pt 10A of the Crimes Act relating to detention after arrest for purposes of investigation was not adverted to in argument and I do not wish to say more, except to point out that the requirement of an interpreter for the purposes of investigative questioning is referred to in that part where there is a perceived lack of fluency in English on the part of the suspect. 43 Here, even though, as the ERISP demonstrates, providing the questions were simply put, the appellant's understanding was sufficient and his own expression adequate for the purpose of enabling acceptance of the reliability of his admissions, his language skills fell far short of being fluent. In those circumstances it is desirable, depending of course upon reasonable availability and the exigencies of the investigation, that an interpreter be available. 44 I am also concerned to point out that questioning relating to the substantive criminality of which the person questioned is a suspect should be recorded to avoid precisely the kind of controversy arising as arose in this case concerning the initial oral conversations. 45 Subject to those remarks, I also agree with the orders proposed by his Honour Studdert J. 46 SPIGELMAN CJ: The orders will be as Studdert J proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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