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Court of Criminal Appeal 6 February 2002

R v Bunevski

[2002] NSWCCA 19

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE INADMISSIBILITY OF RECORD OF INTERVIEW ADMISSIBLE ONLY FOR CREDIBILITY RETRIAL ORDERED.

Citation: [2002] NSWCCA 19
Court: Court of Criminal Appeal, New South Wales
Date: 6 February 2002
Judge(s): Wood CJ at CL, Sully J, Dowd J

Background

The appellant was convicted in the District Court following a trial in which a record of interview had been excluded from evidence. Despite that exclusion, portions of the record of interview were used during cross-examination at trial.

The central problem was that cross-examination based on the excluded record was conducted before the jury without any direction from the trial judge limiting the use the jury could make of that material. Without such a direction, the jury was left free to treat the cross-examination as substantive evidence going to the appellant's guilt, rather than as material relevant only to his credibility as a witness.

The same issue had already come before the Court of Criminal Appeal in proceedings involving a co-accused, in the matter of R v Rahme [2001] NSWCCA 414. That earlier decision provided directly applicable authority for the appellant's ground of appeal.

  • Whether the trial judge erred by failing to direct the jury that cross-examination based on an excluded record of interview could only be used for the limited purpose of assessing the appellant's credibility, and not as substantive evidence against him.
  • Whether the conviction should be set aside as a result of that error.

Decision

Wood CJ at CL identified the central ground of appeal: the trial judge failed to direct the jury that evidence drawn from the excluded record of interview during cross-examination was admissible only on the question of credibility. That distinction matters because a jury that receives no limiting direction may use such material as direct evidence of guilt, which is impermissible where the record of interview has been formally excluded.

The Court referred directly to its earlier decision in R v Rahme, which arose from the same trial and involved a co-accused. In that case, the Court found that counsel for the appellant (Bunevski) had placed before the jury what amounted to an admission derived from the excluded record of interview. The jury had not been told to treat those answers only as going to credibility, and the trial judge's summing up reinforced rather than corrected the risk of general misuse. The Court in Rahme found a real possibility that the jury relied on that material in reaching its guilty verdict against the co-accused.

The Crown conceded in the current appeal that the same error was established, that the conviction could not stand, and that a new trial was required. The Court accepted that concession and made orders accordingly. Sully J and Dowd J agreed without addition.

Orders Made

  • Appeal allowed.
  • Conviction set aside.
  • New trial ordered.

Key Takeaways

  • Where a record of interview has been excluded at trial, cross-examination of an accused based on its contents is admissible only for the limited purpose of assessing credibility, not as substantive evidence of guilt.
  • A failure by the trial judge to direct the jury on the limited use of such cross-examination can constitute a material error warranting the setting aside of a conviction.
  • The Court of Criminal Appeal confirmed, consistent with R v Rahme, that there is a real risk of a miscarriage of justice where the jury is left free to use excluded admissions to the general detriment of the accused.
  • Cross-examination that causes a previous representation from an excluded record to be placed before the jury in a manner adverse to the accused's interests can constitute impermissible use of that excluded material, as analysed in R v Horton (1998) 45 NSWLR 426.
  • A Crown concession that a ground of appeal is made out does not prevent the Court from making its own orders; the Court formally allowed the appeal and ordered the retrial on the basis of the concession and the governing authority.

Legislation and Cases Referenced

Legislation:
- Evidence Act (NSW), s 84 (exclusion of admissions influenced by violence or other conduct)

Cases:
- R v Rahme [2001] NSWCCA 414
- R v Horton (1998) 45 NSWLR 426