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Director of Public Prosecutions CATCHWORDS : CRIMINAL APPEAL - joint trial - cut throat defence - record of interview withdrawn by Crown because induced by threat - co-accused uses answers in withdrawn record of interview to cross-examine accused - Evidence Act, s84 - "admission".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: