R v Rahme - [2001] NSWCCA 414

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v RAHME [2001] NSWCCA 414

FILE NUMBER(S):
60790/00

HEARING DATE(S): 4 October 2001

JUDGMENT DATE: 16/10/2001

PARTIES:
REGINA v Joseph Hana Kalife RAHME

JUDGMENT OF: Mason P Levine J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/110308

LOWER COURT JUDICIAL OFFICER: Wall ADCJ

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CRIMINAL APPEAL - joint trial - cut throat defence - record of interview withdrawn by Crown because induced by threat - co-accused uses answers in withdrawn record of interview to cross-examine accused - Evidence Act, s84 - "admission".

LEGISLATION CITED:

DECISION:
Appeal allowed.

JUDGMENT:

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

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.
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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rahme

Details

AGLC: R v Rahme [2001] NSWCCA 414
Case: [2001] NSWCCA 414
Decision Date: 16 October 2001

CaseChat Overview and Summary

The case of R v Rahme involved a criminal appeal where the appellant was tried jointly with another individual, Bunevski. The nature of the dispute centred on the admissibility of a record of interview that had been withdrawn by the Crown due to it being induced by a threat. The co-accused, Bunevski, subsequently used the answers in the withdrawn record of interview to cross-examine the appellant. The court had to determine whether the appellant’s admissions during the interview were admissible under section 84 of the Evidence Act 1995. This section stipulates that evidence of an admission is not admissible unless it can be shown that the admission and its making were not influenced by violent, oppressive, inhuman or degrading conduct or a threat of such conduct.

The key legal issue before the court was whether the appellant's admissions during the interview could be admitted into evidence, given that they were influenced by an implied threat made by the police officer conducting the interview. The court needed to assess whether the implied threat rendered the record of interview inadmissible under section 84 of the Evidence Act. The Crown withdrew the record of interview because it had been induced by the threat, and the trial proceeded without revisiting the issue of its voluntariness. However, Bunevski sought to use the content of the excluded record of interview to cross-examine the appellant. The court had to determine the admissibility of the excluded record of interview and whether it could be used to cross-examine the appellant effectively.

The court found that the implied threat made during the interview rendered the record of interview inadmissible under section 84 of the Evidence Act. The court held that the implied threat had indeed influenced the appellant’s admissions, and thus the record of interview could not be admitted as evidence. The court also ruled that the co-accused could not use the content of the excluded record of interview to cross-examine the appellant as it would have violated the appellant’s rights under the Evidence Act. The court concluded that the appellant's admissions in the excluded record of interview were not admissible, and Bunevski’s attempt to use them during cross-examination was impermissible.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. A voir dire was conducted. 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) 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). 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. 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. 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. 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).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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