Citation: R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May [2016] NSWSC 1862
Court: Supreme Court of New South Wales
Date: 30 September 2016
Judge(s): Rothman J
Background
Three accused faced criminal proceedings in which a recorded conversation from 4 November 2014 became contested evidence. The participants in that conversation included a co-accused charged as an accessory after the fact (referred to by role as the co-accused), a witness subject to a non-publication order (referred to as CL), and a third individual. CL had, approximately a week earlier, provided an induced statement to police, meaning the statement was given on the promise that it would not be used in criminal proceedings against its maker.
The Crown sought to tender the recording against the co-accused in the accessory proceedings. Counsel for the co-accused objected on two principal grounds: that the co-accused was under the influence of methylamphetamine (ice) during the conversation, and that the recording was obtained improperly because CL was acting as a police agent without any warning being given to the co-accused of her right to silence.
Legal Issues
- Whether the recorded conversation was admissible under s 85(2) of the Evidence Act 1995, given the alleged drug impairment of the co-accused at the time of the conversation
- Whether the recording was obtained improperly within the meaning of s 138 of the Evidence Act 1995, on the basis that CL was acting as a police agent, and if so, whether the desirability of admitting the evidence outweighed the undesirability of doing so
- Whether specific passages within the recording were so prejudicial to the Charbaji co-accused that they should be excluded or required limiting directions
Decision
Section 85 -- drug impairment. Rothman J confirmed that the test under s 85(2) requires the court to be satisfied that the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. His Honour noted that this formulation, properly applied, imposes a heavier onus than simply asking whether the admission might be unreliable. Critically, the inquiry focuses on the circumstances of the admission, not its content. Although the court accepted for the purpose of the ruling that the co-accused had consumed ice before and possibly during the conversation, it was satisfied that her capacity for rational thought and rational statement had not been seemingly affected. The s 85 objection was therefore rejected.
Section 138 -- improper obtaining. The co-accused argued that, because CL was a police agent and no caution was administered, the recording was improperly obtained in breach of the right to silence. Rothman J accepted that the police considered the co-accused at least a suspect with some connection to the crime, noting that various forensic procedures had been directed at her and a search warrant had been executed on her residence. However, his Honour declined to characterise the police as having formed a firm intention to arrest her at the relevant time, finding that they were still actively investigating the offending. Even on the assumption that the recording was improperly obtained, the court held that its significant probative value and its corroborative weight in relation to the charges meant the desirability of admitting it clearly outweighed the undesirability arising from the manner of its procurement.
Admissibility against the Charbaji co-accused. Rothman J drew a firm distinction between the accused. The recording was admissible against the accessory co-accused because her statements about what others may have done were directly relevant and essential to the charge against her. None of the material was admissible against either of the Charbaji accused. Where particular passages risked prejudice to the Charbaji accused, the court considered whether a proper direction would suffice or whether exclusion was warranted. One passage (at page 22 of the transcript) was excluded. Agreed passages relating to specific statements were also not admitted, and the court endorsed those agreements. Other contested passages were retained on the basis that appropriate jury directions would adequately address any prejudice.
Orders Made
• The passage on page 22 ought not be admitted
• Agreement reached that passages from the end of the fifth last line on page 42 (relating to "he scares me") should not be admitted
• Agreement reached that five lines immediately before start 21, 25, 11 should not be admitted
• Agreement reached that the passage under the heading "start 21, 30, 50" on the bottom of page 44 should not be admitted
• Passages at page 14 (reference to the wrench) admitted with appropriate court direction
• Passage at page 17 admitted
• Evidence relating to Ms Jamieson's knowledge and conduct admitted against her; not admitted against Azam or Haysem Charbaji
Key Takeaways
- Under s 85(2) of the Evidence Act 1995, the relevant inquiry is whether the circumstances of the admission make it unlikely that the truth was adversely affected. Rothman J emphasised that this test focuses on circumstances rather than content, and that an admission may remain admissible even where parts of the conversation are said to be untrue.
- Alleged drug intoxication at the time of a recorded conversation does not automatically enliven the s 85(2) exclusionary discretion. The court must be satisfied that the intoxication actually impaired the person's capacity for rational thought and rational statement.
- Where a witness has provided an induced statement and subsequently participates in a covertly recorded conversation, a court may accept that the recorded person was under some degree of police suspicion without necessarily finding the recording was improperly obtained.
- Even where improper conduct in obtaining evidence is assumed, s 138 of the Evidence Act 1995 permits admission where the probative value and significance of the evidence is high enough that the desirability of admitting it outweighs the undesirability arising from the impropriety.
- In multi-accused trials, admissibility of a recorded conversation is not a single, undivided question. The Supreme Court assessed admissibility separately for each accused, restricting the recording's use to the accused whose own statements were directly captured and relevant, while excluding it against the others and considering passage-by-passage whether directions or exclusion was the appropriate remedy.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 85, 138
Cases
- R v Blackburn [2005] 2 Cr App R 30
- R v Crampton (1991) 92 Cr App R 372
- R v McGovern (1991) 92 Cr App R 228