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Court of Criminal Appeal 23 June 1999

R v Ahmadi

[1999] NSWCCA 161

Drugs
CRIMINAL LAW EVIDENCE ADMISSIONS EVIDENCE ACT SS 85(2), 90.

Citation: Ahmadi v R [1999] NSWCCA 161
Court: New South Wales Court of Criminal Appeal
Date: 23 June 1999
Judge(s): Spigelman CJ, Studdert J, Adams J

Background

The appellant was convicted by a District Court jury of supplying heroin, following his arrest in a carpark in Kensington in January 1993. The prosecution case was that he had handed a bag containing five small packets of heroin to his co-accused, who then transferred it to an undercover police officer in exchange for money.

Following his arrest, the appellant was taken to Surry Hills police station. There, he participated in an unrecorded oral interview and a subsequent electronically recorded interview in the presence of investigators (known as an ERISP). In both, he admitted to receiving the heroin from a woman he had met in India and bringing it to the carpark for the purpose of selling it.

At trial, the appellant challenged the admissibility of both the unrecorded conversation and the ERISP, arguing he had limited English proficiency, a mild intellectual disability, had not properly understood his rights, and had made the admissions out of fear after an alleged police threat. The trial judge admitted both sets of admissions, and the appellant was convicted. He appealed against both conviction and sentence.

  • Whether the trial judge erred in admitting the unrecorded oral admissions under ss 85 and 90 of the Evidence Act
  • Whether the trial judge erred in admitting the ERISP under ss 85 and 90 of the Evidence Act
  • Whether the circumstances in which the admissions were made, including the appellant's limited English, mild intellectual disability, and alleged threat, rendered them unreliable or their admission unfair
  • Whether the sentence imposed was manifestly excessive

Decision

The Court of Criminal Appeal upheld the trial judge's decision to admit both sets of admissions. Section 85(2) of the Evidence Act requires exclusion where the circumstances in which an admission was made are likely to have adversely affected its truthfulness. The trial judge found, on the balance of probabilities, that no such circumstances existed. The Court held that finding was clearly open and declined to disturb it.

On the question of unfairness under s 90, the Court accepted the trial judge's assessment that the appellant had understood the police caution, noting the trial judge had the advantage of viewing the ERISP directly. The appellant's own evidence on the voir dire conceded he understood what the police were asking him, even if he claimed to have answered out of fear. The trial judge had rejected the claim that the police made any threats.

Adams J, while agreeing the ERISP was properly admitted, expressed concern about the unrecorded initial interview. He noted that questioning a suspect about criminal conduct without any recording creates exactly the kind of contested factual dispute that arose in this case. He also observed that where a suspect's English is not fluent, it is good practice for police to ask the suspect to explain back what they understood the caution to mean, rather than simply asking whether they understood it.

On sentence, leave to appeal was granted but the appeal was dismissed. The Court found no error warranting interference with the minimum term of two years and eight months and additional term of two years.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Under s 85(2) of the Evidence Act, admissions are inadmissible only where the circumstances in which they were made are likely to have adversely affected their truthfulness. A trial judge's finding that no such circumstances existed will not be disturbed on appeal unless it was not open on the evidence.
  • Where an initial unrecorded admission is substantially repeated in a properly conducted recorded interview, the reliability of the earlier admission is not rendered doubtful by the absence of a recording.
  • Adams J observed that questioning a suspect about substantive criminal conduct without recording the exchange is highly undesirable, as it invites precisely the factual disputes about what was said that courts must then resolve.
  • A mild intellectual disability and limited English proficiency do not automatically require exclusion of admissions, provided the court is satisfied the suspect understood the caution and the questions put, and that no threat or inducement operated on the making of the admissions.
  • Where a suspect's English fluency is uncertain, asking them to state what they understood the caution to mean is a more reliable indicator of comprehension than simply asking whether they understood it.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 85, 85(2), 85(3), 90, 138, 139
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), Pt 10A
- Sentencing Act 1989 (NSW)

Cases
- House v The King (1936) 55 CLR 499
- Lowe v The Queen (1984) 154 CLR 606