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Court of Criminal Appeal 6 June 2001

Regina v Hemmelstein

[2001] NSWCCA 220

Drugs
CRIMINAL LAW WRONGFUL EXCLUSION OF EVIDENCE RELEVANCE AND ADMISSIBILITY OF EVIDENCE APPEAL DISMISSED.

Citation: Regina v Hemmelstein [2001] NSWCCA 220
Court: New South Wales Court of Criminal Appeal
Date: 6 June 2001
Judge(s): Meagher JA, Hulme J, Smart AJ

Background

The appellant was convicted in the District Court of knowingly importing a commercial quantity of cocaine into Australia and sentenced to nine years imprisonment with a non-parole period of six years. When he arrived at Sydney Airport, customs officers discovered approximately 2.15 kilograms of cocaine concealed in the false bottom of a hard-sided golf carry case among his luggage.

The appellant denied any knowledge of the drugs. His defence centred on a man he identified as "Jim Simonds," a property developer who he claimed had given him the golf carry case and financed two separate trips to Australia. The appellant maintained he had come to Australia purely to play golf and was unaware the cocaine was hidden in the bag.

The appeal was brought solely on grounds relating to the exclusion of evidence at trial. Senior counsel for the appellant conceded that the Crown's case was "strongish" and that the evidence justified the guilty verdict, but argued that three pieces of excluded evidence should have been admitted.

  • Whether the trial judge wrongly excluded out-of-court statements made by the appellant to his brother about his intention to play golf in Australia
  • Whether a solicitor's note recording statements made by a "Mr Simonds" was wrongly excluded
  • Whether evidence of a telephone call received by the appellant's brother from a man identifying himself as "Jim" shortly after the arrest was wrongly excluded
  • Whether the excluded evidence, if wrongly excluded, caused a substantial miscarriage of justice warranting a new trial

Decision

The Court of Criminal Appeal dismissed the appeal by majority (Meagher JA and Hulme J, with Smart AJ dissenting), though the three judges reached notably different conclusions across the individual grounds.

On the first ground, the golf-intention statements to the appellant's brother, Hulme J and Smart AJ agreed the evidence was both relevant and admissible. The Crown had made the appellant's state of mind a fact in issue by challenging whether he intended to play golf at all. Meagher JA dissented, finding that hearsay evidence of an intention to play golf could not rationally affect the assessment of whether the appellant knew he was carrying cocaine, since a person can import drugs and play golf. Hulme J, while finding the first ground made out, concluded the exclusion caused no substantial miscarriage of justice because the evidence would have added no significant weight to the defence.

On the second and third grounds, the majority (Meagher JA and Hulme J) held that the solicitor's note and the telephone call evidence had no sufficient relevance to the facts in issue and were properly excluded. Smart AJ dissented on both grounds, finding the evidence admissible under section 65(8) of the Evidence Act 1995 (subject to a warning), and concluding that the combined effect of the rejected evidence would have made the appellant's defence more credible by pointing to another person having placed the drugs in the bag.

Smart AJ would have allowed the appeal, quashed the conviction, and ordered a new trial. His Honour found that the rejected evidence, taken together rather than in isolation, was capable of raising a reasonable possibility that the appellant did not know the drugs were present.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A majority of the Court of Criminal Appeal held that exclusion of evidence may not warrant appellate intervention where it can have added no significant weight to the defence and caused no substantial miscarriage of justice, even if its exclusion was technically in error.
  • Under section 55(1) of the Evidence Act 1995, evidence is only admissible where it could rationally affect the assessment of a fact in issue. The majority and minority judges disagreed about whether evidence of an intention to play golf could satisfy that test in a prosecution for knowing drug importation.
  • Where the Crown's conduct of a prosecution places an accused's state of mind directly in issue, evidence tending to prove that state of mind may become relevant and admissible, even if it would not otherwise have been (per Hulme J and Smart AJ).
  • The dissenting judgment illustrates that contested pieces of excluded evidence should, in principle, be assessed cumulatively rather than in isolation when determining their potential impact on the defence case.
  • Section 65(8) of the Evidence Act 1995 may provide a pathway for admitting first-hand hearsay evidence in criminal proceedings, though the decision confirms such evidence would ordinarily attract a warning under section 165(1)(a) of the same Act.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 65(1), 65(8)(a), 72, 165(1)(a)
- Customs Act 1901 (Cth), s 233B

Cases:
- Sugden v Lord St Leonards (1876) LR 1 PD 154
- Walton v The Queen (1989) 166 CLR 283