New South Wales Court of Criminal Appeal CITATION : R v Bunevski [2002] NSWCCA 19 FILE NUMBER(S) : CCA 60204/01 HEARING DATE(S) : 6/2/02 JUDGMENT DATE : 6 February 2002 PARTIES : Regina Zivko Bunevksi JUDGMENT OF : Wood CJ at CL at 1, 7; Sully J at 5; Dowd J at 6 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0459; 98/110308 LOWER COURT JUDICIAL Wall DCJ OFFICER : COUNSEL : P M Strickland (App) M G Allnut (Crown) SOLICITORS : S E O'Connor D J Humphreys CATCHWORDS : CRIMINAL LAW - appeal against conviction and sentence - failure to make directions to jury at trial - inadmissibility of record of interview - admissible only for credibility - retrial ordered. CASES CITED: R v Horton (1998) 45 NSWLR 426 R v Rahme [2001] NSWCCA 414 DECISION : Appeal allowed. Conviction set aside. New trial ordered. - 2 -IN THE COURT OF CRIMINAL APPEAL 60204/01 WOOD CJ at CL SULLY J DOWD J Wednesday 6 February 2002 REGINA (COMMONWEALTH) v ZIVKO BUNEVSKI Judgment 1 WOOD CJ at CL: In these proceedings the appellant has raised a ground of appeal to the effect that the trial judge erred in failing to direct the jury that certain evidence, adduced in the cross examination of the appellant, based upon an excluded record of interview was not admissible against him, but could only be used in respect to his credibility. 2 A similar point arose for consideration by this Court in R v Rahme [2001] NSWCCA 414 in relation to a co-accused. The Court there said: "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. … 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." 3 In the light of that decision it is conceded by the Crown that ground 2 is made out, that the conviction should be set aside, and that a new trial should be ordered. 4 It is not submitted by the appellant that any other orders should be made and, accordingly, I would propose that orders be made in the terms conceded by the Crown. 5 SULLY J: I agree. 6 DOWD J: I agree. 7 WOOD CJ at CL: The orders of the Court will therefore be as I have 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.