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Supreme Court 12 May 2015

R v Xie (No 11)

[2015] NSWSC 2123

Homicide
CRIMINAL LAW ADMISSIBILITY RELEVANCE UNDER S 56 EVIDENCE ACT

Citation: R v Xie (No 11) [2015] NSWSC 2123
Court: Supreme Court of New South Wales
Date: 12 May 2015
Judge(s): Fullerton J

Background

Following the deaths of five members of a family in July 2009, police obtained a warrant under the Surveillance Devices Act 2007 (NSW) to install audio and video recording devices in the home of the accused. The devices operated from early February 2010 until May 2010, capturing conversations between the accused and his wife over several months. Police also arranged for the wife to be examined under compulsion before the NSW Crime Commission, anticipating that she would relay sensitive information to her husband and that any resulting conversations would be captured by the devices.

The Crown sought to tender a large volume of material derived from those devices, including transcripts of conversations translated from Cantonese and Mandarin into English across eight separate days. The transcripts were said to contain implied admissions by the accused probative of his guilt. Defence counsel objected to the tender of all surveillance material except footage from 6 May 2010 showing the accused destroying shoe boxes, which was conceded to be probative.

The transcripts presented significant practical difficulties. The audio quality was variable, and the final 170-page transcript was heavily annotated with notations indicating indistinct words, incomplete sentences, and overtalk. Additional interpretive challenges arose from idiomatic and grammatical features of the Cantonese and Mandarin languages used by the accused and his wife.

  • Whether the surveillance device transcripts were relevant to a fact in issue under s 56(2) of the Evidence Act 1995 (NSW), such that they could rationally affect the assessment of the probability of any fact in issue
  • Whether any admissible material should nonetheless be excluded under s 135 of the Evidence Act (unfair prejudice, misleading or confusing evidence) or s 137 (exclusion of prejudicial evidence in criminal proceedings)
  • Whether the Crown's failure to propose a narrower or edited tender affected the court's approach to admissibility

Decision

Fullerton J conducted a close reading of all transcribed conversations before hearing argument. Her Honour found that most of the surveillance device transcripts did not satisfy the threshold test for relevance under s 56, noting that the combined effect of poor audio quality, incomplete sentences, indistinct passages, and linguistic and idiomatic complexity rendered the meaning of many exchanges either obscure or wholly impressionistic.

The Crown made no application to tender edited or partial versions of the transcripts in place of the full documents, and tendered all material in its entirety. Her Honour held that, in the absence of such an application, there was no obligation on the court to undertake its own editing exercise to salvage portions of otherwise inadmissible material.

The transcript of 29 April 2010 was treated differently. On a fair reading, that conversation recorded the accused reconstructing or re-enacting for his wife the circumstances in which the body of the deceased was discovered, and directing her as to what she should tell police about their respective lines of sight. Her Honour was satisfied that this material had the capacity to rationally affect the jury's assessment of the probability of the accused's guilt. The extract was therefore admitted.

In relation to the 29 April transcript, her Honour found that the probative value of the evidence was not outweighed by any danger of unfair prejudice under either s 135 or s 137. The audiovisual recording of the shoe box destruction on 6 May 2010 remained admissible by concession, with the accompanying audio used only to evidence ambient sounds during that event.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 56(2) of the Evidence Act 1995 (NSW), surveillance transcripts that are too incomplete, indistinct, or linguistically obscure to yield a discernible meaning do not satisfy the threshold of relevance and are inadmissible.
  • Where the Crown tenders surveillance material in its entirety and makes no application for an edited or partial tender, the court is not obliged to undertake its own editing exercise to identify and preserve admissible portions.
  • A recorded conversation in which an accused person directs a witness as to what she should tell police about events central to the Crown case can satisfy the relevance test, even where the transcript contains some indistinct passages, provided a fair overall reading reveals probative content.
  • Admissibility under s 56 does not automatically resolve the s 135 and s 137 discretions, but those discretions will not operate to exclude evidence where the court is not persuaded that probative value is outweighed by the relevant danger or unfair prejudice.
  • The anticipated use of compulsory examination proceedings (here, before the NSW Crime Commission) to feed information to a suspect, in the expectation that the suspect's home surveillance devices will capture any resulting conversations, was accepted as part of the investigative context without separate admissibility challenge in this ruling.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 56, 135, 137, Pt 3.11
- Surveillance Devices Act 2007 (NSW)

Cases cited: None identified in the provided text.