R v Xie (No 11) [2015] NSWSC 2123

Supreme Court New South Wales

Medium Neutral Citation: R v Xie (No 11) [2015] NSWSC 2123 Decision date: 12 May 2015 Jurisdiction: Common Law - Criminal Before: Fullerton J Decision: Single transcript admissible. Evidence otherwise not admissible Catchwords: CRIMINAL LAW – admissibility – relevance under s 56 Evidence Act – tender of multiple surveillance device transcripts Legislation Cited: Evidence Act 1995 (NSW) Surveillance Devices Act 2007 (NSW) Category: Procedural and other rulings Parties: The Crown Lian Bin (Robert) Xie (Accused) Representation: Counsel: M Tedeschi QC / K Ratcliffe (Crown) G Turnbull SC / L Fernandez (Accused)

Solicitors: Director of Public Prosecutions (Crown) Kidman Legal (Accused) File Number(s): 2011/147183

Judgment 1. HER HONOUR: On 18 January 2010, a warrant issued under the Surveillance Devices Act 2007 (NSW) entitling police to install audio and video recording devices in the accused's home at Beck Street, Epping. The visual surveillance device was continuously monitored from 8 February 2010 until 10 May 2010 when it was discovered by the accused and deactivated. The audio surveillance device in the accused's bedroom continued in operation until some later date. 2. The accused and his wife, Kathy Lin, were interviewed by police at various intervals during the period both surveillance devices were operative in the expectation that they would discuss the questions asked of them, and that in their conversations they would reveal more of the events of 17 and 18 July 2009 than what they had initially disclosed to police. 3. On 27 April 2010, Kathy Lin was also summonsed to appear at the New South Wales Crime Commission ("the NSWCC"). On 3 May 2010 she appeared and was questioned under compulsion. In the course of her examination she was told, in effect, that the police believed that her husband was the murderer as the shoe print impressions in blood at Boundary Road corresponded with the style and size of sports shoes he was known to wear. That was also done in the expectation that she would reveal this information to the accused. 4. The Crown tendered a large volume of material derived from the operation of the surveillance devices. Objection was taken to the evidence in its entirety save for the audiovisual recording of the accused and his wife on 6 May 2010 where the accused is shown destroying shoe boxes in his wife's presence. It was submitted by the accused that the balance of the evidence gathered by the use of the surveillance devices was irrelevant to any fact in issue and therefore not admissible as provided for in s 56(2) of the Evidence Act 1995 (NSW) or, if any were admissible, they should be excluded under ss 135 and 137. 5. It was conceded by defence counsel that the accused's conduct in destroying the shoe boxes was probative of his guilt. Although the video surveillance device had an accompanying soundtrack, and although the accused and his wife were heard speaking as the boxes were being destroyed, little, if anything, was able to be discerned of what they said. In the result, the Crown relied on the audio record for the limited purpose of evidencing the ambient sounds associated with the destruction of the boxes. 6. The balance of the material derived from the operation of the surveillance devices was in the form of select excerpts from the monitored conversations of the accused and his wife over many months. The surveillance device transcripts relate to eight days, namely the 16 March, 19 March, 20 March, 22 March, 30 March, 6 April, 29 April and 6 May, each of 16 March and 22 March being days when the accused and his wife were interviewed by police. These conversations were translated from Cantonese or Mandarin into English and produced for tender in the form of written transcripts. The transcripts are said by the Crown to contain a number of implied admissions by the accused and thus probative of his guilt. Some parts of the transcripts also record Brenda Lin speaking, and being spoken to by the accused, in a way that is also said by the Crown to be probative of the accused's guilt. 7. Before hearing argument on the question of admissibility, I undertook a close reading of the transcribed conversations. It was the agreed position of the parties that, if the surveillance device transcripts were admitted, I would read the evidence to the jury. 8. It was common ground that the variable quality of the audio record produced by the surveillance devices was such that close consideration and revision of what could be heard, by a number of interpreters, was required before the final version of the transcripts relied upon by the Crown for tender purposes was served during the course of the trial. In its final form, on each of the 170 pages comprising the tender, there are repeated notations by the interpreters that words or phrases are either indistinct (noted on the transcript as [IND]), sentences in whole or in part incomplete (noted on the transcript as [Incomplete] or […]) or notations indicating overtalk (also noted on the transcript as […]). 9. In addition, it appears that the accused and his wife use a Mandarin or Cantonese idiom and phrasing when speaking to one another, which, together with the grammatical construction and syntax particular to both languages, required close consideration and some interpretation to render meaningful in English what was said. In some passages, despite repeated reading and the need for me to make some assumptions as to what is being spoken about, the meaning remained either obscure or wholly impressionistic. 10. The Crown maintains the submission that despite those limitations, it is possible to discern sufficient of what is being said by the accused for the surveillance device transcripts to be admitted in their entirety as probative of his guilt. 11. No application was made by the Crown during the course of argument for an edited form of any of the transcripts to be tendered in substitution for the material. The challenge by the accused to the admissibility of the surveillance device transcripts in their entirety, does not obligate me to undertake any editing exercise, assuming that might be able to be done, there being no submission by the Crown that a narrower reading of parts only of the transcripts on individual days (whether read separately or as a whole) satisfied the test for admissibility under s 56 and/or that a limited tender met the accused's challenge to the exclusion of the evidence under the discretions in Pt 3.11 of the Evidence Act 12. Initially, the Crown did not address the probative value of what are said to be implied admissions by the accused in the tendered material, in the context of what he said to police in the initial phase of the investigation on various dates in July 2009 or upon being further interviewed on 16 March 2010. At my request, the Crown did provide me with a transcript of the interview of the accused on 22 March 2010, which was conducted while the surveillance devices were in operation.