Regina v KHAMIS [1999] NSWCCA 270

New South Wales Court of Criminal Appeal CITATION : Regina v KHAMIS [1999] NSWCCA 270 FILE NUMBER(S) : CCA 60432/98 HEARING DATE(S) : 6 August 1999 JUDGMENT DATE : 6 August 1999

PARTIES : The Crown Yusuf Khamis (Appl) JUDGMENT OF : Newman J at 1; Windeyer J at 20; Sperling J at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0312 LOWER COURT JUDICIAL OFFICER : Twigg DCJ

COUNSEL : M M Cuneen (Crown) R Burgess ( Appl) SOLICITORS : S E O'Connor (Crown) T A Murphy (Appl) CATCHWORDS : CASES CITED: R v Horton, unreported, CCA, 2 November 1998 R v Schiavini, 1999 NSWCCA 165 DECISION : Appeal upheld

IN THE COURT OF

CRIMINAL APPEAL 60432/98 NEWMAN J WINDEYER J SPERLING J

FRIDAY, 6 AUGUST 1999

REGINA v Yusuf KHAMIS

JUDGMENT

1 NEWMAN J: This is an application for leave to appeal from a conviction and sentence following a trial in the District Court before Twigg DCJ in which the appellant was convicted of the crime of armed robbery. The appellant stood trial following an indictment presented on 18 May 1998, the charge being that on 11 January 1996 at Darlinghurst, being armed with an offensive weapon, namely an axe, did rob Tracey Roqica of a sum of money being her property. He had pleaded not guilty and a trial took place. The jury, on 25 May 1998, found the appellant guilty. He was sentenced to a minimum term of three years to commence on 25 May 1998 and expiring on 24 May 2001 with an additional term of one year. 2 The Crown case at the trial was that the victim nominated in the indictment was working as a prostitute in the Kings Cross area. At about 3 am on 11 January the Crown alleged that she had been approached by the appellant on the corner of Darlinghurst Road and William Street, a conversation ensued in which an agreement was struck between the victim and the appellant that sexual activity would take place between them for a nominated fee. It was further agreed between the victim and the appellant that the sexual encounter would take place at the appellant's premises which were not far away. 3 The Crown case went on to allege that the victim and the appellant then went to the appellant's premises, the fee was paid, sex took place. Following the completion of an episode of sexual intercourse the appellant is alleged to have made a request for further sexual intercourse. The victim then demanded further payment for any additional sexual favour. An argument ensued, the appellant refusing to pay any further fee. The appellant left the bedroom in which he and the victim had been carrying out their sexual activities and returned carrying an axe. A further argument ensued with the appellant demanding further sexual activity, the victim refusing to engage in such activity unless further payment was being made. The appellant demanded his money back. 4 The short and the long of it was that the Crown case was that as a consequence of the appellant being armed with an axe he carried out an attack upon the victim. The consequence of the attack was that the victim left the premises having suffered wounds as a consequence of the use of the axe. The money she had upon her, being, as I would understand the Crown case, her night's takings, including the money she had exacted from the appellant, was taken. Accordingly, the Crown case was that the crime of armed robbery was complete and thus the appellant was guilty. 5 The police came on to the scene very quickly as a consequence of a complaint very promptly made in the street by the victim. The police entered the premises and a search was carried out. A Sergeant Hicks, who was known as May at the time - and nothing untoward about that I hasten to add - gave evidence that following police interviewing and having met the appellant at about 5 am on the morning, Constables May, Baldwin, Kirkwood and Hughes all went to the appellant's premises. At 5.25am an axe was located in the bedroom at the top of the stairs in the premises, that axe being concealed underneath a mattress in a double bed in the room where it was found. 6 Sergeant Hicks, who is variously recorded in the transcript as either Hicks or May, gave evidence that Senior Constable Kirkwood said to the accused, "Is this your axe?" The accused replied, "No, I haven't seen it before." No record was made at the time of that statement. When Sergeant Hicks originally gave her evidence no objection was taken to her deposing as to what had occurred in conversation between Senior Constable Kirkwood and the appellant. 7 However, on the next morning of the trial an objection was taken prior to Senior Constable Kirkwood giving evidence that the evidence was inadmissible because the provisions of s 424A of the Crimes Act had not been complied with. Relevantly, s 424A is in the following terms: "424A. (1) This section applies in relation to evidence of an admission within the meaning of this section. (2) Evidence of an admission is not admissible unless: (a) there is available to the court a tape recording made by an investigating official of the interview in the course of which the admission was made, or (b) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made, there is available to the court a tape recording of an interview with the person who made the admission about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (c) the prosecution establishes that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made. … (4) In this section: 'admission' means an admission: (a) that was made by a defendant who, at the time when the admission was made, was, or ought reasonably to have been, suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence other than an indictable offence that may be dealt with summarily without the consent of the accused. … ." 8 It was common ground that no electronic recording had been made of the statements allegedly made by the appellant in response to Senior Constable Kirkwood. Not only that, it was common ground that in a subsequent electronically recorded record of interview carried out at the Kings Cross Police Station, the matter put at the appellant's premises by Sergeant Kirkwood was not re-put. 9 While the matter was not an admission against interest, it is plain that what fell from this Court in R v Horton, unreported, 2 November 1998, and R v Schiavini, 1999, NSWCCA, 165, that the statement of the type made by the appellant fell within the concept of admission for the purposes of s 424A. 10 In R v Horton, at p 21, the learned presiding judge, Wood CJ at CL, set out the policy behind the section: "The mischief to which s 424 A was addressed appears in the Second Reading Speech (Hansard Proceedings of the Legislative Council 24 May 1995) concerning the Evidence (Consequential & Other Provisions) Bill. It was there said: In closing I wish to make brief comments on the two Bills which are cognate with the Evidence Bill. The first of these, the Evidence (Consequential and Other Provisions) Act 1967. In addition, it will make amendments to various other Acts which will be required as a consequence of the enactment of the Evidence Bill. It also makes an amendment to the Crimes Act 1900, making the tape-recording of admissions to police compulsory where an accused person is suspected of an indictable offence that may not be tried summarily without the defendant's consent. The Police Service has already introduced a system for the electronic recording of interviews, implementing the 1986 report of the criminal law review division of the Attorney General's Department. That report set out four objectives for adopting an electronic recording system: 1. To provide the Courts with a reliable account of statements made by persons accused of crime whilst in police custody. 2. To provide an objective means of resolving disputes about the conduct and substance of police interviews. 3. To deter and/or prevent the use of unfair practices by the police prior to, during and after interviews; 4. To deter the making of unfair and false allegations of improper behaviour by police. This bill implements one of the recommendations of that report by providing that any unreasonable failure to adhere to the system will result in the inadmissibility of the evidence. The courts are thereby enabled to supervise the operation of the system. It was, in my view, directed to the very mischief that Jordan CJ identified in Jeffries, to ensure the integrity of the evidence of police witnesses concerning representations of any form attributed to accused persons, and to provide an objective means of resolving any dispute concerning that kind of evidence. In this respect it provides, for NSW, an additional protection to that arising under Part 3.4 of the Evidence Act, which is concerned with 'admissions' in the extended sense defined in the Dictionary to that Act." 11 It is plain, and indeed the Crown did not contend otherwise, that the provisions of s 424A as to the admissibility of the statement made was breached. The Crown very properly does not contend that his Honour's subsequent finding that the evidence was admissible was incorrect. Very properly before this Court the learned counsel appearing for the Crown pointed out that the fact that an error had been made does not mean that this Court would necessarily interfere. 12 The submission was put that the words said could not have significantly contributed to the result and indeed, when considered against the totality of the evidence called in the matter, it was insignificant. Thus no substantial miscarriage of justice occurred by the wrongful admission of the evidence. 13 In addition it was submitted that no objection had originally been taken to Sergeant Hicks giving the evidence which she did. The objection put was a belated one and the evidence was thus before the jury in any event. 14 There is some force, in my view, in this argument. However, once his Honour ruled that the evidence was admissible, counsel's hands were very practically tied. There would be no point in counsel making an application at that stage for the jury to be discharged. If his Honour had correctly ruled that the evidence was inadmissible, then it would no doubt have been appropriate for counsel to make an application for the discharge of the jury. As I have said, it would have been futile for counsel so to do in the light of his Honour's ruling that the evidence was admissible. 15 It is also true, as the Crown submits, that the case against the appellant was a strong one. There were a number of matters raised in defence by the appellant which were at odds with the physical evidence given in the trial. 16 Firstly, it should be said that the appellant's case was that not only did he not carry out an attack upon the victim with an axe, nor did he steal any money from her but the victim had somehow forced herself into the premises, no sexual encounter took place and that some odd things occurred of the victim's making which had literally nothing to do with the appellant. This version, as the Crown properly put it, was at odds with physical findings, such as the finding of the complainant's underpants in a pile of clippings in front of the house, the loss of her sandals, which was corroborated to the hilt by the police, that in fact a condom packet containing condoms of the brand described by the victim was found in the house and indeed the improbability of the appellant's story being accepted. 17 However, as in Horton and indeed in Schiavini, the Crown case other than the inadmissible admission made by the respective accused in those cases was, like this case, extraordinarily strong. Here the credibility of both the complainant and the appellant were matters strongly in issue. For myself I cannot say that the jury may not have regarded that the evidence of the admission was other than strong. We do not know what use the false statement by the accused, if it be accepted as false, "No, I haven't seen it before", might have had upon the jury's mind, particularly in a case where, as I have said, credibility was a live and strong issue. 18 While I believe there is force in the submissions made on behalf of the Crown, I am of the view that the procedural unfairness which arises from the wrongful admission of the evidence is such as to cause this Court to interfere. I am thus of the view that the appeal should be upheld. However, it is a case where a new trial should be ordered. 19 Accordingly, I would propose that the court make the following orders: