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Court of Criminal Appeal 13 October 2025

Ihemeje v R

[2025] NSWCCA 162

Drugs

Citation: Ihemeje v R [2025] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 13 October 2025
Judges: Payne JA (principal judgment); Weinstein J and Rigg J agreeing

Background

The appellant was arrested in October 2018 and charged with both State drug supply offences and Commonwealth offences of importing a border controlled drug (methamphetamine). A first trial was aborted after a Crown witness known as "Witness X" caused an outburst. Before the retrial, the State and Commonwealth charges were severed. In November 2021, a judge sitting alone acquitted the appellant of the two State supply offences.

The Commonwealth importation charges proceeded before a separate judge and jury in October 2022. That conviction was subsequently quashed by the Court of Criminal Appeal on a procedural ground unrelated to the merits (the indictment had been signed without authority): see Ihemeje v R [2023] NSWCCA 72. A second retrial on the Commonwealth counts took place in February 2024, resulting in guilty verdicts on counts 1 and 2 (importing methamphetamine in marketable and commercial quantities). The appellant was sentenced to imprisonment and has since been released on parole.

The appellant sought leave to appeal out of time from those convictions, raising four grounds. Three grounds concerned the intersection between the admitted evidence, the prior acquittals, and the trial judge's directions to the jury.

  • Whether telephone intercept evidence and Witness X's testimony about drug supply were wrongly admitted at trial (Ground 1)
  • Whether evidence elicited in cross-examination from Witness X by the appellant's own counsel improperly controverted the prior State acquittals, causing a miscarriage of justice (Ground 2)
  • Whether the trial judge's failure to direct the jury about the prior acquittals caused a miscarriage of justice (Ground 3)
  • Whether the trial judge should have discharged the jury of his own motion following the disputed evidence from Witness X, even without any application from the appellant's counsel (Ground 4)

Decision

Ground 1 (Evidence admission): Leave granted, appeal dismissed. The Court confirmed that the "correctness standard" applies when assessing probative value of challenged evidence: the evidence is taken at its highest and on the assumption the jury will accept it. Both Witness X's testimony and the intercepted phone call evidence were held to be properly admitted. The evidence was plainly relevant to whether the appellant was the user of a phone recovered in his car and whether that user had knowledge of or involvement in the importation offences. References in the calls to a different drug did not undermine their utility. The jury received appropriate directions, and the Crown had not invited the jury to treat the evidence as touching on the prior acquittals.

Ground 2 (Contravening prior acquittals): Leave refused. The Court found that the intercepted calls were admitted for a proper purpose, with probative value outweighing prejudicial effect, and appropriate directions were given. One answer from Witness X in cross-examination may have been capable of being understood as calling into question one acquittal, but that answer was elicited by a deliberate forensic choice made by the appellant's own counsel. No direction was sought after it was given. Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applies to bar a ground not objected to at trial, and the Court refused leave. The Court also found that the isolated statement, which was not referred to again by either party or the judge, did not deprive the appellant of the possibility of a different verdict.

Ground 3 (No direction on acquittals): Leave refused. The trial judge was under no obligation to direct the jury about the acquittals in the absence of evidence of those acquittals being led before the jury. The appellant's counsel had a clear forensic reason for not adducing that evidence. The Court also noted that the appellant failed to formulate what direction should have been given, which is ordinarily fatal to such a ground. Leave was refused under r 4.15. Even if leave had been granted, the Court indicated it would have dismissed the ground.

Ground 4 (Jury discharge): Leave refused. The argument that the trial judge was obliged to discharge the jury of his own motion was rejected. The trial judge had specifically asked whether the appellant wished to lead evidence of the acquittals; counsel made a deliberate choice not to do so and not to seek any further direction. The evidence in question was not referred to by either party in addresses or by the judge in summing up. Counsel's forensic decision not to apply for discharge engaged r 4.15, and leave was refused on that ground as well.

Orders Made

  • Extension of time to file the Notice of Appeal granted (to 5 September 2025)
  • Leave to appeal granted on Ground 1
  • Leave to appeal refused on Grounds 2, 3 and 4
  • Appeal dismissed on Ground 1

Key Takeaways

  • The "correctness standard" for assessing probative value of admitted evidence requires the evidence to be taken at its highest, on the assumption the jury will accept it, without discounting for the possibility of disbelief: the Court applied this standard from IMM v The Queen (2016) 257 CLR 300, R v Bauer (2018) 266 CLR 56, and TL v The King (2022) 275 CLR 83.
  • Where evidence is introduced for a proper purpose, with probative value that outweighs its prejudicial effect and with appropriate jury directions, that evidence does not improperly controvert a prior acquittal simply because it touches on related subject matter.
  • Deliberate forensic choices made by trial counsel carry significant consequences on appeal: Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 operates to block leave on grounds that were not objected to at trial, particularly where the silence reflected a strategic decision rather than an oversight.
  • A trial judge is not obliged to give directions about prior acquittals where no evidence of those acquittals has been led before the jury, and a failure to formulate the direction said to have been required is ordinarily fatal to a ground on appeal.
  • An isolated and ambiguous comment by a witness, not subsequently referred to by either party or the trial judge, will not ordinarily establish that the appellant was deprived of the possibility of a different verdict: the Court applied the test from Brawn v R (2025) 99 ALR 872.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Code 1995 (Cth), ss 11.1(1), 307.1(1), 307.2(1), 307.5(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Evidence Act 1995 (NSW), ss 55, 135, 137
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3), 3.5(2)-(4), 4.15

Cases:
- Ihemeje v R [2023] NSWCCA 72
- IMM v The Queen (2016) 257 CLR 300
- R v Bauer (a pseudonym) (2018) 266 CLR 56
- Brawn v R (2025) 99 ALR 872; [2025] HCA 20
- Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531
- Harriman v The Queen (1989) 167 CLR 590
- Aravena v R (2015) 91 NSWLR 258
- Greenhalgh v R [2017] NSWCCA 94
- Abdallah v R [2019] NSWCCA 294
- Medich v R (2021) 390 ALR 398
- R (Cth) v Seguel [2024] NSWCCA 37
- DPP v Ultutui [2014] VSCA 110
- Nudd v The Queen (2006) 80 ALJR 614
- R v Baden-Clay (2016) 258 CLR 308
- Pemble v R (1971) 124 CLR 107
- Crofts v R (1996) CLR 427