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Court of Criminal Appeal 16 October 2001

REGINA v RAHME

[2001] NSWCCA 414

Drugs
CRIMINAL APPEAL JOINT TRIAL CUT THROAT DEFENCE EXAMINE ACCUSED EVIDENCE ACT, S84 "ADMISSION".

Citation: [2001] NSWCCA 414
Court: New South Wales Court of Criminal Appeal
Date: 16 October 2001
Judges: Mason P, Levine J, Howie J

Background

The appellant was jointly tried in the District Court with two co-accused on a charge of attempting to obtain possession of prohibited imports, specifically a quantity of MDMA (Ecstasy), contrary to the Customs Act 1901. The prosecution case was circumstantial: a controlled delivery of the drug was intercepted, traced to a residential address, and collected by the appellant and one co-accused by taxi. All three men were arrested shortly after.

On the day of his arrest, the appellant was interviewed by Australian Federal Police. Before the interview began, one of the officers made a remark to the effect that if the appellant cooperated, "it may be a merry Christmas after all." The officer later conceded that this carried an implied threat that non-cooperation might mean custody over Christmas. The appellant indicated he regarded the remark as an inducement.

At trial, when the prosecution sought to tender the video record of interview, the appellant objected under s 84 of the Evidence Act 1995. Following a voir dire, the Crown withdrew the tender. The record of interview was never formally admitted. The complication arose when the appellant's co-accused, running a "cut-throat" defence (each accused blaming the other), sought to use that withdrawn record in cross-examination.

  • Whether the trial judge erred in permitting the co-accused's counsel to cross-examine the appellant using answers from the withdrawn record of interview
  • Whether the withdrawn record of interview constituted an "admission" within the meaning of s 84 of the Evidence Act 1995, such that its use was regulated by that provision
  • Whether the trial judge erred in failing to direct the jury to confine their use of that material
  • Whether the trial judge erred in refusing to order a separate trial for the appellant

Decision

The Court of Criminal Appeal allowed the appeal, with Mason P delivering the principal judgment (Levine J and Howie J agreeing).

On the s 84 question, the Court rejected the Crown's submission that the co-accused's use of the record of interview in cross-examination did not constitute the admission of "evidence of an admission" under s 84(1). The Evidence Act dictionary defines "admission" as a previous representation made by a party that is adverse to that party's interests. When counsel for the co-accused put the contents of the withdrawn record to the appellant and obtained his agreement with those answers in front of the jury, those answers were being used in a manner plainly adverse to the appellant's interests, including to attack his credibility and undermine his own defence.

The Court found that the cross-examination should not have been permitted. The Crown had withdrawn the record of interview after a voir dire exposed serious concerns about its integrity, including both an inducement and an implied threat made to a handcuffed man in custody. The appellant had never waived his objection to admissibility, and the trial judge was never subsequently asked to revisit whether s 84(1) was satisfied. The net result was that evidence not properly admitted against the appellant went to the jury and could be used against him in assessing his guilt.

The Court also found that no direction was given to limit the jury's use of that material. The Crown invoked the proviso (arguing any error caused no substantial miscarriage), but the Court rejected that submission. A new trial was ordered.

Orders Made

  • Appeal allowed
  • Conviction and sentence set aside
  • New trial ordered

Key Takeaways

  • Under s 84 of the Evidence Act 1995, evidence of an admission is inadmissible unless the court is satisfied it was not influenced by oppressive conduct or a threat of such conduct. The Court of Criminal Appeal confirmed this protection is not bypassed simply because a co-accused, rather than the Crown, seeks to use the material.
  • The definition of "admission" in the Evidence Act is broad: a previous representation by a party that is adverse to that party's interests qualifies, regardless of how or by whom it is later used in the proceedings.
  • Where the Crown withdraws a record of interview following a voir dire raising s 84 concerns, the accused's objection to admissibility remains live. A co-accused's subsequent use of that record in cross-examination does not cure the underlying admissibility problem.
  • Joint trials involving co-accused running competing defences (sometimes called "cut-throat" defences) create particular evidentiary risks. The fact that one accused may benefit from using another's excluded statement does not make that use permissible.
  • Failing to direct the jury on the limited (or prohibited) use of improperly introduced material compounded the error in this case, and the Court found the proviso could not save the conviction.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 84, 103(1), 104(6) and Dictionary definition of "admission"
- Customs Act 1901 (Cth), s 233B

Cases
- R v Horton (1998) 45 NSWLR 426