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Court of Criminal Appeal 6 August 1999

Regina v KHAMIS

[1999] NSWCCA 270

Assault & violenceTheft & property

Citation: Regina v Khamis [1999] NSWCCA 270
Court: NSW Court of Criminal Appeal
Date: 6 August 1999
Judge(s): Newman J, Windeyer J, Sperling J

Background

The appellant was convicted after a District Court jury trial of armed robbery. The Crown alleged that the appellant, following a disputed sexual encounter at his premises, returned to the room carrying an axe, assaulted the complainant, and took money from her. Police arrived at the scene promptly after the complainant raised the alarm in the street.

When police searched the appellant's premises at around 5:25 am, an axe was found concealed under a mattress. A senior constable asked the appellant whether the axe belonged to him. The appellant replied, "No, I haven't seen it before." No electronic recording was made of that exchange, and the question and answer were not revisited in the subsequent electronically recorded interview conducted at the police station.

At trial, evidence of this exchange was initially admitted without objection. On the following morning, defence counsel objected to a second officer giving the same evidence, arguing that s 424A of the Crimes Act 1900 rendered it inadmissible.

  • Whether the appellant's denial at the scene, "No, I haven't seen it before," constituted an "admission" within the meaning of s 424A of the Crimes Act 1900
  • Whether the requirements of s 424A were satisfied, given that no tape recording was made of the exchange and the statement was not put again in the recorded interview
  • Whether the wrongful admission of that evidence warranted the conviction being quashed and a new trial ordered

Decision

The Court confirmed, following its earlier decisions in R v Horton and R v Schiavini, that a statement of this kind falls within the concept of an "admission" for s 424A purposes even where it is not an admission against interest. The section covers any statement made by a person who, at the relevant time, was or ought reasonably to have been suspected of an indictable offence, made in the course of official questioning. The policy behind the provision is to ensure the integrity of police evidence about what accused persons said, and to provide an objective record capable of resolving disputes.

Because no tape recording existed and the topic was not raised again in the subsequent recorded interview, none of the s 424A exceptions applied. The Crown could not establish a reasonable excuse for the absence of a recording. The evidence was therefore inadmissible and should not have been placed before the jury.

Newman J acknowledged that the Crown's overall case was strong. Physical evidence, including the complainant's underwear found near the premises, a condom packet, and her missing sandals, substantially undermined the appellant's account. However, the credibility of both the complainant and the appellant was directly in contest, and the court could not rule out that the jury had used the wrongly admitted denial to resolve that contest. Newman J concluded that the procedural unfairness arising from the wrongful admission was sufficient to warrant intervention.

All three judges agreed that, while the conviction and sentence had to be quashed, the strength of the remaining evidence made a retrial appropriate rather than an acquittal.

Orders Made

  • Appeal upheld
  • Conviction and sentence quashed
  • Matter remitted for a new trial
  • Bail granted by consent on the same terms and conditions as previously, with a requirement to report to and notify address to Bondi Police Station within 24 hours of release

Key Takeaways

  • Under s 424A of the Crimes Act 1900, a denial or other statement made by a suspected person during official police questioning at the scene constitutes an "admission" requiring tape recording, even where the statement is not incriminating on its face.
  • A conviction may be quashed on the basis of wrongly admitted evidence even where the Crown's remaining case is strong, if the impugned evidence could have influenced the jury's assessment of credibility in a case where that was a live issue.
  • The Court of Criminal Appeal confirmed the approach taken in R v Horton and R v Schiavini: the absence of a tape recording, combined with a failure to re-put the exchange in a subsequent recorded interview, will ordinarily render such evidence inadmissible unless a reasonable excuse for the omission is established.
  • Where inadmissible admission evidence is wrongly received at trial, quashing the conviction does not automatically produce an acquittal; a new trial remains available where the lawfully admissible evidence is otherwise sufficient to warrant one.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 424A

Cases
- R v Horton, unreported, NSW Court of Criminal Appeal, 2 November 1998
- R v Schiavini [1999] NSWCCA 165