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District Court 31 March 2014

R v Nguon & Ream

[2014] NSWDC 385

Drugs
CRIMINAL LAW EVIDENCE AD HOC EXPERT TRIAL PROCEDURE USE OF TRANSCRIPT AS AN AIDE MEMOIRE

Citation: R v Nguon & Ream [2014] NSWDC 385
Court: District Court of New South Wales
Date: 31 March 2014
Judge(s): Judge Whitford SC

Background

Two accused, Linna Nguon and Peter Ream, stood trial on charges of attempted possession of a commercial quantity of border controlled drugs, namely cocaine and methamphetamine. The Crown alleged that in November 2011 both accused were among four individuals present at a warehouse in Wetherill Park where they attempted to access a tractor grapple bucket that had been imported from Canada and secretly contained approximately 24 kg of cocaine and 27 kg of methamphetamine. Authorities had intercepted the shipment, replaced the drugs with a benign substance, and installed a listening device inside the bucket before releasing it.

Police surveillance of the warehouse produced three video files combining footage from a concealed camera with audio transmitted from the hidden listening device. The audio quality was poor, affected by industrial noise, background radio or television sounds, electrical interference, warehouse reverberation, and the movement of individuals relative to the device.

An AFP audio-visual specialist digitally processed the recordings by applying four filters, producing an "enhanced" version of the audio. The Crown sought to tender both the unenhanced and enhanced recordings. The Crown also sought to use a transcript of portions of those recordings as an aid for the jury. Both matters were contested on the voir dire.

  • Whether the enhanced audio recording was admissible, having regard to the qualifications and expertise of the AFP officer who produced it, and whether his evidence constituted admissible opinion evidence under s 79 of the Evidence Act 1995 (NSW)
  • Whether the enhanced recording should be excluded under ss 135 or 137 of the Evidence Act on the grounds that its probative value was outweighed by the risk of unfair prejudice, misleading the jury, or undue waste of time
  • Whether a Crown-prepared transcript of the covert recordings could be used by the jury as an aide memoire during the trial

Decision

Admissibility of the enhanced recording and the expert's evidence

Judge Whitford SC found that the AFP officer, Mr Kinraid, possessed sufficient specialised knowledge based on his training, skills, and experience in audio-visual signal processing to give opinion evidence about the enhancement process under s 79 of the Evidence Act. The court accepted that his evidence was directed to explaining the technical work he had performed, and that his opinions were properly based on that specialised knowledge. The court applied the principle from Dasreef v Hawchar that the central question is whether the opinion is wholly or substantially based on specialised knowledge of the requisite kind.

Probative value versus prejudice

The court accepted that the enhancement process had the capacity to create a misleading impression that a speaker was closer to the listening device than was actually the case. However, Judge Whitford SC concluded this risk was manageable through cross-examination of Mr Kinraid and appropriate jury directions, and did not outweigh the high probative value of the enhanced recording. The enhanced audio went to a critical aspect of the Crown case, namely the identification and involvement of the accused Nguon. Accordingly, the court declined to exclude the enhanced recording under ss 135 or 137.

Transcript as aide memoire

The court disallowed the use of the Crown-prepared transcripts as aids for the jury. The key concern was that an English-language conversation, which the jury could assess for themselves by listening, was being transcribed by a party with an interest in the outcome. The court distinguished cases such as Butera v DPP and R v Leung, which concerned transcripts of foreign language conversations or coded speech requiring specialist interpretation. Where the jury was capable of listening to the recordings directly, providing a Crown-prepared transcript risked unduly influencing what the jury heard and attributed to individual speakers. The court noted the jury's task would instead be facilitated by access to both the unenhanced and enhanced recordings.

Orders Made

• The enhanced recording may be tendered before the jury.

Key Takeaways

  • The District Court confirmed that admissibility of enhanced audio recordings turns on whether the enhancing officer's opinion is based on specialised knowledge under s 79 of the Evidence Act, applying the Dasreef v Hawchar framework, rather than on any broader or more general assessment of technical credibility.
  • A technically enhanced recording is not automatically excluded under ss 135 or 137 merely because it may create some misleading impressions, provided that risk can be adequately addressed through cross-examination and judicial directions.
  • Transcripts of covert recordings prepared by the Crown are treated differently depending on whether the conversation is in English or in a foreign language or code. Where the recordings are in English and the jury can assess them directly, there is a substantial risk that a party-prepared transcript will improperly influence the jury's perception, weighing against its use as an aide memoire.
  • The principle from Butera v DPP and related authorities permitting transcripts as aids applies most readily to recordings requiring specialist interpretation, such as foreign language or coded speech, and does not extend straightforwardly to plain English conversations.
  • Probative value assessments under ss 135 and 137 require the court to consider the recording both on its own terms and in the context of the broader Crown case, including the extent to which it supplements or corroborates other evidence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 79, 135, 137, 192

Cases
- Butera v DPP (Vic) (1987) 164 CLR 180
- Dasreef v Hawchar (2011) 243 CLR 588
- Driscoll v R (1977) 137 CLR 517
- Eastman v The Queen (1997) 76 FCR 9; 158 ALR 107
- Gilbert v The Queen (2000) 201 CLR 414
- Li v The Queen (2003) 139 A Crim R 281
- R v Cassar [1999] NSWSC 436
- R v Crouch (1850) 4 Cox CC 163
- R v Hall [2001] NSWSC 827
- R v Leung (1999) 47 NSWLR 405
- R v Menzies [1982] 1 NZLR 41
- R v Richard (1918) 13 Cr App R 140
- Smith v The Queen (2001) 206 CLR 650