R v Charbaji, Azam

[2016] NSWSC 1862

Supreme Court

New South Wales

Medium Neutral Citation:	R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May [2016] NSWSC 1862
Hearing dates:	30 September 2016
Date of orders:	30 September 2016
Decision date:	30 September 2016
Jurisdiction:	Common Law - Criminal
Before:	Rothman J
Decision:	Evidence admitted as disclosed in reasons.
Catchwords:	CRIMINAL LAW – admissibility of recorded conversation – alleged impropriety in obtaining recording in circumstances where it is alleged that one participant was an agent of the Police and no warning was given – submission that accused was under influence of self-induced drugs at time and, pursuant to s 85 of the Evidence Act 1995, the conversation should not be admitted – examination of the terms of the recording – conversation admitted except in certain respects.
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Blackburn [2005] 2 Cr App R 30 R v Crampton (1991) 92 Cr App R 372 R v McGovern (1991) 92 Cr App R 228
Texts Cited:	Australian Law Reform Commission, Evidence (Interim) (ALRC Report 26), 1985
Category:	Procedural and other rulings
Parties:	Regina (Crown) Azam Charbaji (Co-accused) Haysem Charbaji (Co-accused) Lexy May Jamieson (Co-accused)
Representation:	Counsel: M Cunneen SC (Crown) K Chapple SC (Co-accused, Azam Charbaji) M Austin (Co-accused, Haysem Charbaji) M Shaw (Co-accused, Jamieson)     Solicitors: Office of the Director of Public Prosecutions (Crown) Alexander Lawyers (Co-accused, Azam Charbaji) Oxford Lawyers (Co-accused, Haysem Charbaji) Blair Lawyers (Co-accused, Jamieson)
File Number(s):	2015/5665; 2015/5907; 2015/26215
Publication restriction:	NON PUBLICATION ORDER IN RELATION TO WITNESS CL: THE NAME OF THE WITNESS TO BE CALLED BY THE CROWN, THE ADDRESS OF THE WITNESS TO BE CALLED BY THE CROWN, OR ANY FAMILY OF THE WITNESS OR ANY MATTER THAT WOULD IDENTIFY THE NAME, ADDRESS OR PHONE NUMBER OF THE WITNESS OR HIS FAMILY, WILL NOT BE PUBLISHED AND THE WITNESS SHALL BE REFERRED TO AS CL.

EX-TEMPORE Judgment (UNREVISED)

1. HIS HONOUR: Objection is taken to the admission into evidence of a conversation that occurred on 4 November 2014 between three relevant persons, CL, about whom there is a non-publication order, at least in force temporarily, Ms Lexy Jamieson who is a co-accused in these proceedings, having been charged with accessory after the fact, and Mr Ahmed Khalil also known it seems as Alex Ali. One small and irrelevant point that there is a fourth participant in the conversation.

2. The preliminary facts which it is necessary to note are that on or about 29 October 2014 CL, who is to give evidence in these proceedings, provided a statement to police in relation to a conversation that purportedly occurred some short time before 29 October 2014. The statement was an induced statement in that the information given in it was promised not to be used in any criminal proceedings against the maker of the statement. The conversation to which the witness or future witness referred was a conversation between the other two relevant participants in the recorded conversation on 4 November 2014.

3. Objection is taken by counsel appearing for the co-accused, Ms Jamieson, pursuant to the terms inter alia of s 85(2) of the Evidence Act1995 in that the evidence, it is said, is not admissible unless the circumstances in which the admission was made was such as to make it unlikely that the truth of the admission was adversely affected.

4. The Australian Law Reform Commission report which gave rise to the introduction of s 85(2) refers to the proposition that it is for the trial judge to determine:

“as a preliminary issue whether the reliability of the admission may have been impaired by the way it was obtained. The judge should consider all the circumstances including the characteristics of the person making the admission. In making this decision he (sic) should take into account a number of factors, whether there was misconduct by those interrogating, whether procedural safeguards were adopted, whether the ability of the person making the admission to make rational decisions was substantially impaired. It would also be relevant to this question, whether other incriminating evidence was discovered or obtained as a consequence of the admissions being made.”

5. The Court has looked at this question on a number of occasions. With great respect to the judge in R v Crampton (1991) 92 Cr App R 372, the judgment seems to me to reverse the test. The test must be that the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. In other words, it is not whether what was said or done is likely to be rendered unreliable but whether it is unlikely that it is unreliable and that test casts a heavier onus in terms of admitting the material.

6. Nevertheless, that which is examined are the circumstances, not the content, of the admission. Thus the fact that the actual admission turns out to be untrue or that other statements made at the time of the admission are untrue does not mean that the circumstances in which it was given is otherwise than one which makes it unlikely that the truth of the admission is adversely affected. I refer in particular to the judgment in R v McGovern (1991) 92 Cr App R 228 and R v Blackburn [2005] 2 Cr App R 30.

7. I take into account the fact that it is alleged, albeit at this stage not in evidence, that the accused against whom this evidence is sought to be adduced was consuming ice, that is methylamphetamine, during the period in which the conversation that was recorded occurred.

8. Secondly, I take into account that this was a conversation, which, at least in part, is said by the Crown not to be true.

9. Now, it must be said that I earlier stated that it is not the content of the admission that must be proved to be such as to be unlikely that the truth was adversely affected, but the circumstances in which the admission was made.

10. The fact, assuming it be the fact, which I do for this purpose, that Ms Jamieson was affected in some way by the consumption of ice is a factor which has caused me to look at the statements made and said to be a transcript of that which can be heard in the recording with an eye to the issue of whether those statements were ones that seem to have affected the likelihood, or otherwise, of the truth of the admission or any admission that was made.

11. I am satisfied that, of itself, the fact that Ms Jamieson was consuming ice before and after the conversations in question, or even during, if that be the case, is not one which has seemingly affected her capacity for rational thought or rational statements and I am satisfied that that circumstance is not one which renders it unlikely that the truth of the admission was adversely affected.

12. The second aspect is slightly more difficult. Mr Shaw, who appears for the co-accused, relies on the provisions of s 138 to say that the evidence was obtained improperly and ought not be admitted, unless the desirability of admitting the evidence outweighs the undesirability of admitting it because of the circumstances in which it was obtained.

13. Mr Shaw submits on behalf of his client that the evidence is not necessary for the Crown case and its probative value, if any, does not outweigh, or the reasons it should be admitted do not outweigh the undesirability of admitting the evidence, given the improper manner in which it was obtained.

14. It is necessary to deal briefly with the question of the impropriety that is said to arise. It is said that the recording was made in circumstances where, and I am putting this very much in summary form and without the eloquence that Mr Shaw gave it, that CL, the witness, was an agent of the police and, as such, and given that the police are required to warn and to provide a suspected person with the right to remain silent, that recording this conversation and the admissions in it was a fundamental breach of that right to silence, and a fundamental breach of the duty imposed upon law enforcement agencies in relation to the obtaining of evidence from persons suspected of a crime.

15. There are a number of aspects to that which require explanation. As earlier stated, CL provided an induced statement on 29 October 2014, about a week before the recorded interview. Much of that which is in the recorded interview is also, one way or another, a matter of description in the induced statement of 29 October.

16. The fundamental difficulty it seems to me that occurs in relation to this issue from the point of view of Ms Jamieson is the degree to which the police, at the point in time that the recording occurred, considered Ms Jamieson a person who was suspected, in a sense, of an impending charge or were just seeking to investigate a crime that obviously had been committed; I say “obviously” because whether or not Ms Jamieson is guilty or, indeed, her co-accused, there can be little doubt that some crime was committed, given the objective evidence that has been adduced.

17. Prior to the recording of this interview, the police, it seems, had engaged in a number of forensic procedures, some of which were aimed directly at Ms Jamieson. They also effected a search warrant on a house which was, at least in part, occupied by Ms Jamieson.

18. Mr Shaw puts the submission that there can be little doubt that the police had an intention to arrest her. I think, with respect to Mr Shaw, that is putting it slightly too high. It is, however, fairly clear that the police considered her one of some of the suspects who may have some knowledge of, or connection with, the crime that had been committed. It seems to me that the police in recording this interview were doing a number of things.

19. First, given what might otherwise be thought to be the unreliability of CL giving evidence of admissions that might have been made orally, was seeking to sure up that evidence.

20. Secondly, it seems to me that the police were continuing to investigate the crime notwithstanding what CL had said arising out of the earlier admissions that were said to have been made. Ms Jamieson was never in fact charged with murder and I infer from that, that the police were still investigating the issues that were then before them.

21. The second and far more important aspect, is this: I accept for present purposes that the evidence of this interview is not “necessary” to make out a case. However, it is of significant probative value and is corroborative of other evidence that has been adduced in relation to Ms Jamieson, and is corroborative of the charges against her in some sense in a way that the other evidence does not attest.

22. It seems to me that the interview is highly significant and, as such, even if I were of a mind that the recording of the interview was improper, in the sense suggested by Mr Shaw, I would be satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the manner in which it had been obtained. That deals with the general objection, if I can put it that way.

23. There are other objections by the co-accused to the admissibility of some parts of the conversation. It must be stressed at the outset that the Court has already informed the jury that some evidence will be adduced against some accused, one or more accused, and not against the others and they will have to differentiate, in their own mind, the evidence in relation to each.

24. The knowledge of the accused, Ms Jamieson, of the fact that a murder occurred in relation to the evidence in which she says what others may have done is relevant to her case and, indeed, an essential element of the charge against Ms Jamieson. In those circumstances, it is plain that the evidence is admissible in the case against Ms Jamieson. None of this material, however, is admissible in the case against either Azam or Haysem Charbaji.

25. Nevertheless, matters have been raised by each of those co-accused, or on their behalf by counsel, as to the fact that some these comments are so prejudicial that no matter what is the direction of the Court in relation to separating out the cases, that would unfairly prejudice the case against that accused. I can deal with them one by one.

26. In relation to the objection at page 14, being the reference to the wrench, I do not reject that passage and consider that a direction, properly given, will suffice.

27. In relation to the passage at page 17, I do not reject that evidence as being too prejudicial such as to outweigh its probative value. Now, the difficulty with that assessment is that it has no probative value in relation to the accused, Azam Charbaji. Nevertheless it is, in effect, evidence that has already been given and is already before the Court.

28. As to the conduct of Mr Azam Charbaji, what is not before the Court is the extent of the knowledge of Ms Jamieson, as a consequence of which it seems to me it is highly probative but is not prejudicial such as to outweigh its capacity to be admitted.

29. Can I then go to the passage at page 22. It seems to me that the passage to which objection was taken on page 22 ought not be admitted.

30. Agreement has been reached in relation to the passages, from the end of the fifth last line on page 42, a passage relating to “he scares me” question and answer, or two statements, one by Ms Jamieson and one by Mr Khalil.

31. An agreement between the Crown and counsel for the co-accused has been reached as to the five lines immediately before start 21, 25, 11. I think that agreement is an appropriate one. I do not think any other part of that discussion is such that it should be, for the reasons already given, not admitted against Ms Jamieson.

32. The last passage to which objection is taken is that found under the heading “start 21, 30, 50”, on the bottom of page 44. Agreement is reached that should not be admitted and I consider the agreement appropriate and simply record it.

**********

Decision last updated: 20 December 2016