Supreme Court New South Wales Medium Neutral Citation: R v Hawat (No 5) [2019] NSWSC 1727 Hearing dates: 29 November 2019 Date of orders: 03 December 2019 Decision date: 09 December 2019 Jurisdiction: Common Law Before: N Adams J Decision: The material contained in LDs 1, 2, 4, 5 and 6 is inadmissible, except for the audible passages referred to at [50]-[54]. Catchwords: CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – listening device material – relevance – probative value – inaudible Legislation Cited: Evidence Act 1995 (NSW), s 55, 56, 76, 78, 79 Cases Cited: Butera v Director of Public Prosecutions (1987) 164 CLR 180; [1987] HCA 58 Colby v The Queen [1999] NSWCCA 261 Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611; [2011] HCA 21 Honeysett v R (2014) 253 CLR 122; HCA 29 Kheir v R [2014] VSCA 200 Lithgow City Council v Jackson (2011) 244 CLR 352; HCA 36 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; 2001 NSWCA 305 Papakosmas v The Queen (1999) 196 CLR 297; HCA 37 R v Georgiou [2005] NSWCCA 237 Regina v Leung and Wong (1998) 47 NSWLR 405; NSWCCA 287 Williams v The Queen [1982] Tas R 266 Category: Procedural and other rulings Parties: Regina (Crown) Osama Hawat (Accused) Representation: Counsel: Mr T McCarthy (Crown) Mr J Kelly SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Dib & Associates Lawyers (Accused) File Number(s): 2017/194590 Judgment Background 1. On 20 November 2019, the trial commenced in this matter. The accused is charged with the murder of Hamad Assaad of either being part of a joint criminal enterprise or being an accessory before the fact to the shooting of the deceased by others. The Crown case against the accused relies in part on various listening device recordings as well as CCTV footage, telephone intercepts and alleged lies told in his ERISP. 2. Prior to the trial commencing, the Crown Prosecutor indicated to the court that the recordings were of "very poor quality" and that the Crown relied upon a statement made by Detective Lucy Ede, who listened to them "many, many times". There was no further discussion of this issue during pre-trial arguments. 3. On Tuesday 26 November 2019, prior to the tender of the listening device recordings, the Crown Prosecutor indicated that he was having difficulty playing the recordings in court such that they were unable to be properly heard or understood. The Crown requested and was granted an adjournment to obtain better recording equipment, either from New South Wales Police or the Office of the Director of Public Prosecutions. 4. On Thursday 28 November 2019, equipment was brought to court in an attempt to play the recordings in such a manner that the words spoken were audible. Efforts were made to see whether noise-cancelling headphones could be provided to the jury but they were incompatible with the court playback system. After a number of adjournments and efforts to play the recordings, I was informed that the best option would be that the original recording (rather than the compilation which had been edited to be played as an exhibit) be played on external equipment and that it could be played with the aid of the "hearing loops" provided by the court for those with hearing difficulties. 5. Mr Kelly SC, who appeared on behalf of the accused, was afforded the opportunity to listen to the relevant recordings played on the court system in the way I have just described, with the accused present, during the adjournment period. Having heard all of those recordings Mr Kelly made application on behalf of the accused that recordings LD 1, 2, 4, 5 and 6 (out of 14 recordings) be excluded on the basis that it is impossible to discern the words being spoken on them without the transcript prepared by Detective Senior Constable Ede and that she should not be permitted to tell the jury what she believed was recorded on them. 6. A voir dire was subsequently conducted on the admissibility of the identified recordings. The evidence on the voir dire included the statement of Detective Senior Constable Ede, the transcripts of the relevant recordings and the recordings themselves. No viva voce evidence was given on the voir dire. Admissibility of the transcripts Admissibility of "expert" evidence of Detective Senior Constable Ede 1. Detective Senior Constable Ede was attached to the Homicide Squad of the State Crime Command between 7 September 2014 and 19 January 2019. During that time she reviewed tens of thousands of conversations which had been captured on surveillance devices. She was also required to identify the parties involved and summarise or transcribe their conversation. She stated that she was consequently able to identify persons in recorded conversations from a number of characteristics, including: gender, age, accent, tone and pitch of voice, words or phrases used, apparent education level and use of particular names or terms. 2. On 7 December 2016, Detective Senior Constable Ede commenced lawfully monitoring the accused's primary mobile phone and a secondary mobile phone that he also used. She stated that she consequentially became familiar with his voice. After the Telecommunication Interception Branch had transcribed these calls, she checked them to ensure that they were true and correct. 3. Listening devices were installed into the accused's premises and remained in place for four months. In total, Detective Senior Constable Ede reviewed 40 days and approximately 960 hours of lawfully recorded conversations from this address. A listening device was also installed in the accused's vehicle. She reviewed approximately 325 hours of conversations recorded from this device. During the monitoring of the surveillance devices she identified a number of relevant conversations. She then reviewed these relevant conversations up to 50 times. She then prepared a typed transcript of each conversation. Submissions 1. Mr Kelly SC submitted that to allow the recordings to be played with the transcripts would usurp the jury's function. That is, if the jury could not hear the recordings, it was not permissible for another party to instruct them as to what was said. If the transcripts were not provided, then words were only audible in isolation. If the words were only audible in isolation, it followed that their probative value was lessened. If this was combined with the transcripts, then there was a high risk of unfair prejudice to the accused. 2. The Crown submitted that the transcripts were admissible because Detective Ede was an ad hoc expert. He relied upon the general principle that a police officer can become an ad hoc expert if recordings are listened to many times by him or her. He accepted that the decisions he relied upon focussed on the police evidence going to the question of attribution rather than the contents of what was being said. He was unable to identify any decision where the police evidence admitted was to the effect of what that police officer believed was being said rather than who was saying it. Consideration 1. I am satisfied that the transcripts provided by Detective Ede are relevant and thus admissible on that basis. If accepted, they could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings, namely, what the accused said to his wife about his involvement in the crime with which he has been charged: ss 55 and 56 of the Evidence Act 1995 (NSW). 2. Turning to the exclusionary provisions, the next question is whether they ought to be excluded on the basis that they are opinion evidence. Section 76(1) of the Evidence Act provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. There are exceptions to this rule. 3. Section 78 of the Evidence Act provides: 78 Exception: lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. 1. Section 79(1) of the Evidence Act provides: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 1. The admissibility of transcripts was considered by the High Court in Butera v Director of Public Prosecutions (1987) 164 CLR 180; [1987] HCA 58. In that trial a recording was tendered which was mostly in Punjabi but partly in English and partly in Thai or Malay. Some parts of the conversation were muffled or indistinctly recorded and it was necessary for a person familiar with the languages used to listen to the tape repeatedly in order to determine what had been said. Mason CJ, Brennan, Deane and Dawson JJ held that the transcripts had been properly admitted in evidence and it was appropriate for the jury to have had them in the jury room, so long as the jury were instructed that they were not to be used as a primary source of evidence. In Butera, Mason CJ, Brennan and Deane JJ specifically addressed the situation where a transcript is provided for an indistinct recording. Their Honours observed, citing Williams v The Queen [1982] Tas R 266 at 274, that: "Where the quality of the recording is such that the provision of a transcript for the use of the jury would permit them clearly to follow an indistinct recording, a transcript may be seen as an aid to listening though it is not independent evidence of the recorded conversation. As Everett J. said [29] : "To deny the jury the benefit of reading with their eyes the same words as they heard with their ears seems to me to put the law into an ill-fitting straitjacket." The basis on which a transcript may be provided to the jury was stated by Cooke J., speaking for the majority in Reg. v Menzies [1982] 1 N.Z.L.R. 40, at p. 49. Noting that Phipson said that the relaxing of the rules of evidence tended "to effect economy, convenience and dispatch", his Honour said: "The problem is how best to enable a jury to assess the contents of a tape, in the light of those aims. It is a problem sui generis and not automatically answered by settled principles. If the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape. But there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language. Or deficiencies in the recording may make it necessary to play tapes more than once to enable a better understanding, yet the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury. In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc. And we see no compelling reason why his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the Judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused." 1. In Menzies, the relevant recording had been played twice to the jury and several times to the trial judge in the absence of the jury. The judge ruled that the tapes were inadmissible "because being listened to once of twice the tapes were unintelligible". However, the judge found that when the recordings were replayed to him with a transcript, they became intelligible. The recording and transcripts were subsequently ruled admissible and the police officer that compiled the transcript was held to have a "special expertise" because he had listened to the recordings repeatedly. The New Zealand Court of Appeal surveyed the different jurisdictional approaches to the admission of transcripts and held that the evidence had been correctly admitted. This was because they held that juries should be guided by what they hear themselves and transcripts only serve as an aide memoire. Furthermore, correctness of the transcripts was not contested and there was no unfairness to the accused. 2. In R v Georgiou [2005] NSWCCA 237, a ground of appeal to the NSW Court of Criminal Appeal concerned the provision of transcripts of conversations to the jury as well as the tape recordings of them. It was held that the transcript would have aided the jury's apprehension of the tapes. There was no suggestion in this matter that the tapes themselves were inaudible. Furthermore, it was held that the trial judge had correctly instructed the jury that the tapes were the primary evidence and the transcripts were merely aide memoirs to use as assistance. 3. Although these cases make reference to parts of the recordings being inaudible, the principle to be derived from them is that the transcript is only an aide memoire and the evidence is what the jurors hear in the recordings. It is a standard direction that jurors are directed that the evidence is what they hear on the recordings, not what is in the transcript and that the transcript is only an aide memoire. It seems to me that if, as in the present case, the recordings are inaudible, then the evidence can only be what is in the transcript, which is contrary to the direction these decisions provide should be given to juries. 4. In NSW, the approach to ad hoc expert evidence of police officers (or interpreters) as to attribution of voices heard on recordings has been that such evidence can be admissible under s 79 of the Evidence Act. In Regina v Leung and Wong (1998) 47 NSWLR 405; NSWCCA 287, Simpson J (as her Honour then was) considered the admissibility of evidence of an interpreter who had compared recordings of police interviews conducted in English with recordings of conversations in Cantonese. His evidence of the translation of the Cantonese evidence was not in dispute. What was in dispute was his identification of the speakers in the Cantonese conversation using the police interviews. That is, his evidence did not rely upon his unchallenged expertise as an interpreter. Her Honour's conclusion (with which Spigelman CJ and Sperling J agreed) was that the evidence was admissible under s 79 of the Evidence Act because the witness possessed a "specialised knowledge based on [his] training, study or experience": "42 To characterise this as a simple voice comparison exercise would be to over simplify the exercise Mr Fung undertook. As he said, he listened to the pitch and modulation of the voices, but he also took into account the use of language, accent, and the speed of speech. In the process of translating the DAT tapes he had listened to the voices many times and had, no doubt, acquired (even unconsciously) a familiarity with the voices on those tapes, their accents and speech patterns. On the other hand, the basis he had for comparison was very limited. One criticism, which has some merit, was that the recording of the police conversation with Wong was, except when Wong stated his name in Cantonese, all in English. In relation to Wong, therefore, Mr Fung was comparing a voice speaking in Cantonese on the DAT tapes with a voice speaking in English in the police tapes. In Leung's case most of the conversations on the police tapes were had with the assistance of one of the police interpreters and, in so far as Mr Fung heard Leung speak, he was comparing two recordings in the same language, but, as was pointed out in the cross-examination on the voir dire, in very different circumstances. Further, Mr Fung placed some emphasis on the relative volume of speech, but conceded that he was unaware of the location of the speakers relative to the transmitting device in the garage conversation, or the tape recorder in the police tapes. There were therefore, some deficiencies in Mr Fung's capacity to reach a view about the identification of the voices." 1. In Victoria, an approach has more recently been taken to admit such evidence under s 78 of the Evidence Act rather than s 79. The Victorian Supreme Court of Appeal took this approach in Kheir v R [2014] VSCA 200. In that case a police officer gave evidence about telephone calls obtained through a telephone intercept warrant. The officer had spent approximately four weeks listening to over 1,000 calls. He had become familiar with the voices on the intercepts and consequently believed he could identify the various speakers. The Court of Appeal (Maxwell P, Redlich and Beach JJA) held that the officer was not an expert as he did not have any special language or interpretation skills. Rather, he was expressing a "rolled up" inference about what he had perceived as a lay witness (see Lithgow City Council v Jackson (2011) 244 CLR 352; HCA 36 at [45]). Their Honours concluded that: "65. In our view, the evidence of Sergeant Bray was more appropriately viewed as falling within s 78 than s 7 9. The 'matter' of which Sergeant Bray had a 'perception' was the audio recordings of the telephone intercepts, the recordings of the applicant's record of interview and a comparison of the two. His perception of that comparison met the test of relevance because he was in a better position to make that comparison than the jurors were. Whether the voice heard in the intercepts was also that in the record of interview was a fact in issue, and the comparison could rationally affect the assessment of the probability of that fact. Sergeant Bray's opinion was based upon that comparison, and his opinion — that the voices on the two tapes were the same — was necessary to shed light upon the observations he made about the voices' similarities." 1. The relevant expertise in Kheir and Leung was concerned with voice identification evidence. The alleged expertise of Detective Senior Constable Ede is the identification of the particular words said to be spoken by the accused in circumstances where there is no dispute that it is his voice in the recordings. 2. The Crown did not identify any authority for the proposition that a police officer could give opinion evidence (expert or otherwise) as to what he or she could hear when listening to a recording in English that is inaudible. It is to be noted that the recordings in the decisions referred to above were generally in other languages and the question as just how indistinct the recordings were was not addressed in any of these decisions. 3. I am not satisfied that the decisions pertaining to ad hoc evidence of attribution of an accused person's voice extends to opinion evidence of what is actually contained in any recorded conversation of an accused person when the recording itself is inaudible. Such evidence would not be admissible under s 78 as it goes far beyond giving opinion evidence as to identity of an accused: Kheir. Even if such evidence could be admissible as ad hoc expert evidence under s 79, a question in relation to which I have some doubt, I am satisfied that in the present case it ought to be excluded under s 137 of the Evidence Act which provides that: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 1. The application of s 137 of the Evidence Act requires me to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused. "Probative value" is defined in the Dictionary to the Evidence Act as "[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". The term "unfair prejudice" is not defined in the Dictionary. 2. The danger at which s 137 is directed is the danger of prejudice that is unfair in the context of an accused person's right to a fair trial. McHugh J described this danger in Papakosmas v The Queen (1999) 196 CLR 297; HCA 37 at [91] as the risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender. Similarly, Mason P observed in Colby v The Queen [19 99] NSWCCA 261 at [9 7] that "[t]he focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case ..." 3. In relation to all expert evidence relied upon by the Crown in any criminal trial there must be the capacity for an accused person to challenge such evidence, either by challenging the expertise of the witness, by challenging the assumed facts underpinning the expert opinion evidence and/or calling an expert witness of his or her own. In Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611; [2011] HCA 21 at [37] the High Court approved the decision of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR; 2001 NSWCA 305 (at [85]) as to the requirements in s 79 as follows: "Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded." 1. In Makita v Sprowles, Heydon JA observed, inter alia, at [85] the following in relation to the requirements in s 79: "….so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it." 1. In Honeysett v R (2014) 253 CLR 122; HCA 29, the ad hoc or otherwise expert evidence in issue was that of a Professor said to be an expert in "body mapping" who watched footage said to be that of an accused person and compared it with known footage of the accused. It was ultimately conceded that his only specialised knowledge was in anatomy and thus there was no need to consider whether "body mapping" was as area of expertise. The High Court held that the "expert" evidence was based on his subjective impression of what he saw when he compared the images as opposed to his expertise in anatomy. As their Honours noted at [44]: "…it would have been open to prosecuting counsel in the course of her closing address to have invited the jury to inspect the images and find that Offender One and the appellant share each of the characteristics identified by Professor Henneberg without the necessity of evidence" 1. In the present case the jury could not undertake this task for itself. The opinion evidence of Detective Ede cannot be tested in any way by the accused or the jury. It seems to me that it is unfair to permit a police officer to come to court to give evidence to the jury to the effect that "you cannot hear this but let me tell you what it says". An accused person should not be obliged to obtain a separate ad hoc expert to spend hundreds of hours listening to the recordings. In the circumstances of this trial I am satisfied that there is a real danger that the jury would use the evidence to reason that the inaudible recordings must include the words the police officer says they do as no contrary evidence was brought to the court's attention. Nor do I consider the fact that the accused could give evidence to challenge the transcript is an option. The onus is on the Crown to prove that the recordings contain the words said to be in them and to do so in a way that can be properly tested by the accused. 2. It was for these reasons I ruled that the police opinion evidence of what was on the tapes was inadmissible. Admissibility of the inaudible recordings 1. The next question was whether the recordings themselves ought to be admitted into evidence without the transcripts. 2. It was common ground that without the transcripts prepared by Detective Ede most of the six recordings the subject of this application were inaudible. It was also agreed that the process that I would adopt in order to rule on the admissibility of these recordings is that I would first listen to them without the benefit of the transcript prepared by Detective Ede. I would then listen to each recording a second time with the aid of the transcript. This process took place in open court in relation to the five recordings the subject of this application. The transcripts 1. I do not propose to extract all of the transcripts of the six disputed recordings here. Some of them were lengthy. They all pertain to conversations between the accused and his wife in his home. For the purposes of these reasons it is necessary for me to highlight the "admission" said to be contained in each of the relevant transcripts. In the following extracts, "OH" refers to the accused and "AM" to his wife. LD 1 "OH: You know that Hamad at Georges Hall…I drove around….the street" AM - Oh yeah yeah… OH - Yeah yeah… I drove in the street…. AM - …(indistinct) …. OH - …(indistinct) …. AM - What? OH - I drove in the street, I drove in the street but nothing else (OH whistles and says, Hey girl). OH -…(indistinct) … AM - Were they behind you? OH - Huh? Nah I drove in and … don't think they know. AM - …(indistinct) … you know who did it…? AM - …(indistinct) …I was going to….. OH - …(indistinct) …ask him about…my van…going around in the street? I go yeah. He goes, Nah. I go, Yeah … (indistinct) …the number plate…. He goes yeah….they go, alright,….my number….he didn't know. He gave them my mobile number. OH - Aw alright, I've been there….fucken…. AM - ….go around the corner. OH - Yeah. AM - Like you know when you go down the back of….the loop, but you can still get out of that street? OH - Yeah I know…(indistinct)…. AM - That … (indistinct) … changing the plates? OH - No….I already changed the plates….I already told him….and he's seen me around the thing, you know what I mean? AM - I don't…(indistinct)… OH- I'm not joking bro, yeah, I'm not laughing, like, c'mon. It's got to be done, that's it. AM - Alright. But I'm just saying that if they found something on you, it'll be….where's your life..? OH - Yeah, I know, but they got nothing. AM - Yeah but……me. OH - I know man, I always think about you…but bro it had to be done, it had to be done, straight out. Wallah it had to be done." LD 2 "OH: You too…I dunno man, I dunno…fuck em, what have they got? They got nothing. That's what I mean. …. OH: Let them call me up. Yeah but who cares, they don't…… now, they don't…anyway, you know what I mean?" AM - …(indistinct) …. OH - …lift it up…What? Do I have….? AM - ….they know…. OH - Yeah but, they told him they were going to call me….that's why…wanted that and he said….cause if they…they would call me. So if they seen the van going….house….You know the…. AM - What, after….? OH - Yeah. AM - ….(indistinct)…. OH - Yeah (pause). Yeah but before….doing that…they, they report it stolen. Bit remember it was taken, so if it was used….If it was, I was, you know what I mean? We got it off m can. That was the whole….all the number plates (pause). ,,,,see my can…talking…involved in it, you know what I mean? …. OH - I need you to write an invoice and work out the last…. 10.. Check the invoices and then I'll ring to make note of the invoices AM -…. Don't have any invoices OH - and I just put number 8 and… The invoice number, write invoice number 8… 8 after… 8 Cause the next one is going to be 9, 10 you know what I mean OH - In the background she was barking…….. Why can't they just give me my money…..I got two grand from him." LD 4 "OH: No, I need to confirm with em. Make sure there's no camera there at his house….look…tell me…. (pause). All around. I gotta hope so there's nothing." LD 5 "AM: you know where there is footage from? OH: Mmm AM: The camera from that shop….. Anyone will know…. In… The shops OH:: Mmmmm….. …. OH: but I'm telling you Ammoun we'll say it's because someone I know lives in the street." LD 6 "OH - …my…, ……. They're gunna……the van, this van and …..been there……..They can take it if they want, they don't have nothing on me, at least if they would, If they had anything on me, they would've gone to my dad straight away and say I was there man. UM - One day, maybe find out where you were, straight out 100% coz bro, even if you…..cuz, they have to - - - OH - Get a warrant. UM - For you, but like they gotta find you and give it to you, you know what I mean. OH - Yeah. UM - Not anyone else , that's why they'll and find out where you are - - - OH - alright. UM- - - - ….They're just enquiries. OH - They just … (indistinct) … that's why. …. OH - Emack (pause). Eidey, looking out for my boy, Eidey helping out, that's, that's all it was." UM - (indistinct) OH - But I would've rolled around drinking in melbourne, but they gotta prove that - - UM - Mmmm. OH - - - -I'm, where I live, fucken…..everything…. UM - Yeah that's right. OH - But now, they thing cuz, my van. But, but still, I have to, what do you do? UM - Like I told you, if they have got something on you find out where you live. OH - Just ask me man, yeah? UM - Yeah. OH - Walla…maybe they went…If I was there at the time. UM - They probably do, you don't know." 1. A document was tendered by the Crown which was a transcript of LD 1 with highlighted portions in yellow which those instructing the Crown Prosecutor submitted could be discerned without a transcript. It was accepted at the time of that tender that the two solicitors instructing the Crown Prosecutor had both listened to the recordings many times and always with the assistance of the transcript. Submissions 1. Mr Kelly submitted that without recourse to a transcript, the jury would not be able to inform itself of what is being said by the accused in the recordings. Thus, the "contents and the tenor" in which the exchanges were made was foreclosed from the jury. He submitted that the quality was insufficiently clear for a jury to make its own assessment of what was said. Although a person listening to the recording could "get snatches" of the conversation, the full content of each conversation could not be heard. On this basis, it was submitted that the files should be excluded from the jury's consideration. 2. The Crown submitted that hearing is a "very subjective matter" and if something could be heard, it was a matter for the jury to consider and it should be left with them. It was accepted that there could be no agreement between the Crown and Mr Kelly as to whether certain portions could be heard. 3. Furthermore, it was conceded that without the transcript the jury would struggle to hear anything. It was also accepted that the admissibility of each recording depended on whether I could discern what was alleged to have been said. The shortcomings in relation to the recordings were accepted by the Crown. When I queried whether it was necessary for me to listen to each recording multiple times outside of court the Crown Prosecutor indicated that this was not necessary. His submission was that his instructions were that the words were there and if the jurors listened many times it would be entirely possible that they could hear them. 4. The Crown Prosecutor conceded that he had only ever listened to the recordings with the transcript. Ultimately, his submission was that the jury should be allowed to have the recording and "see the best they can make of it, and then I could make submissions about it in my closing address". Consideration 1. The admissibility of the recordings turned on the question of their relevance; if they are inaudible, they cannot be relevant. In determining whether the evidence is relevant I am required to assess the capability of the evidence rationally to affect the assessment of the probability of the existence of a fact in issue. 2. As I indicated on the record after hearing each of the recordings, although some words were discernible, I could not make out most of the sentences attributed to the accused in the transcript. When I listened to the recording whilst reading the transcript, the transcript certainly appeared to follow the intonations and patterns of what I could hear but I would often lose my place on the page. That is, I could not independently follow what was being said even with the transcripts as not every word was transcribed in the longer conversations. If I did not have the transcript before me the words did not bear any particular meaning. It seems to me that if you listened to the recordings with the aid of the transcript multiple times you may subsequently be able to discern the words when listening without the transcript, but there would be no way of knowing whether that was because the words had been suggested to the listener in the first place. 3. The reason the recordings were of such a poor quality was that they were taken in the home of the accused and it appears that his residence was on a major road. The sound of traffic is very loud. In one of the recordings a cooking program is being played on television. Although I was able to follow what was being said in the cooking show, the conversation between the accused and his wife was virtually impossible to discern. 4. Although it is always open to a jury to listen to an exhibit many times in order to assess what they can hear in it, in order for me to rule on whether the recordings would ever be capable of being deciphered, there is a limit to how many times I should be required to listen to them. For my part, I listened twice in court and then 4-5 times each in my chambers. I was ultimately able to make out some individual words. 5. The Crown submitted that what can be heard is one of "those subjective things and the ultimate test is what the jury makes of it". Although that is to be accepted to some extent, if I could not hear the words relied upon, it would be inconsistent with my role as the judge of the law in this matter to put something to the jury as relevant when I was not in a position to assess whether it could, if accepted, rationally assess the probability of the existence of a fact in issue in the trial. 6. After listening to the recordings, I provided the parties with a document in the following terms indicating what I could actually discern on the recordings without the aid of a transcript. 7. Of the multiple pages of transcript I could make out the following. LD 1 "OH - I drove in the street, I drove in the street but nothing else." "OH - …he's seen me go around the thing you know what I mean? I'm not joking bro yeah I'm not laughing like c'mon it's gotta be done that's it AM - all right but I'm just saying, that if they found something on you, it'll be… Where is your life…? OH - Yeah I know that they got nothing AM - (indecipherable) me OH - I know man, I always think about you… But bro it had to be done straight out (indecipherable)." LD 2 "OH - I dunno….fuck em, what have they got? They got nothing. … OH - let them call me up. Yeah but who cares, they don't…… You know what I mean. … OH - I need you to write an invoice and work out the last…. 10.. Check the invoices and then I'll ring to make note of the invoices AM -…. Don't have any invoices OH - and I just put number 8 and… The invoice number, write invoice number 8… 8 after… 8 Cause the next one is going to be 9, 10 you know what I mean OH - In the background she was barking…….. Why can't they just give me my money…..I got two grand from him." LD 4 1. The sentence relied upon as an admission in this recording is the following sentence: "No, I need to confirm with em. Make sure there is no camera there at his house…. look…. tell me……. all around. I gotta hope so there's nothing." After repeated hearings I was unable to decipher the word "camera" but I could hear the words "all around". LD 5 1. The sentence relied upon as an admission in this recording is the following sentence: "AM - you know where there is footage from? OH - Mmm AM - The camera from that shop….. anyone will know…. in… the shops. OH - Mmmmm….." 1. Later, the following sentence is relied on: "OH - But I'm telling you Ammoun we'll say it's because someone I know lives in the street." 1. After repeated hearings I was able to decipher the accused's wife making the statements about the footage but it is not clear to me that those observations were expressly adopted by the accused 2. As for the sentence including the word "Ammoun", I could hear the words "like even" and "street" but nothing else. LD 6 1. This was a longer recording and a number of matters were relied upon. I was able to discern the following statements: "OH - they don't have nothing on me…" 1. The unidentified male then tells the accused that they have to find him and give "it" to him. 2. The conversation then becomes less clear in quality, but I could hear the words. "OH - I would have rolled around drinking in Melbourne but they gotta prove….. OH - But now, they got my thing cuz my van." 1. On the basis that anything that was audible was relevant and thus admissible, I was satisfied that LDs 4 and 5 were inadmissible as so little could be heard on them but that the portions of LDs 1, 2 and 6 I have described above were admissible. 2. The sole basis of the objection of these recordings was relevance. On this basis, I was satisfied that these specified portions could be played as part of the Crown case, but that all other parties were irrelevant and inadmissible. ********** Amendments 11 December 2019 - spelling correction - "Makita (Australia) Pty Ltd v Sprowles" instead of Makita (Australia) Pty Ltd v Sproules" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2019