Citation: R v Xie (No 20) [2015] NSWSC 2131
Court: Supreme Court of New South Wales
Date: 18 August 2015
Judge(s): Fullerton J
Background
The accused stood trial for the murders of multiple deceased persons. As part of the police investigation, a prison informer (referred to as Witness A) was placed at Long Bay prison alongside the accused and, with police direction, engaged the accused in a series of conversations designed to elicit admissions about the killings.
Police devised a stratagem involving an undercover officer using the pseudonym "Harry Samios." The primary pretence was that Harry was Witness A's friend with access to a corrupt police officer who could supply the accused with information about the case against him, including whether CCTV footage of him purchasing a hammer (alleged to be the murder weapon) had been withheld from the brief of evidence.
A second scheme, known as "Plan B," involved the planting of incriminating evidence on a corpse Harry supposedly had access to through work at a crematorium, with the aim of framing another person for the murders and securing the accused's release. Some conversations between the accused and Witness A about these schemes were captured on listening devices worn by Witness A; others were documented only in handwritten notes. The admissibility of a recorded conversation between the accused and the undercover officer Harry was the central question before the court.
Legal Issues
- Whether the recorded conversations with the undercover officer were capable of constituting evidence of consciousness of guilt and/or admissions within the meaning of section 85 of the Evidence Act 1995 (NSW)
- Whether the evidence met the threshold for relevance and admissibility under section 55 of the Evidence Act
- Whether the evidence should be excluded in the exercise of the court's discretion under section 90 (unfairness in obtaining admissions), section 135 (general discretionary exclusion), or section 137 (mandatory exclusion where probative value is outweighed by the danger of unfair prejudice)
Decision
Fullerton J accepted that the recorded conversations were capable of amounting to evidence of consciousness of guilt and, potentially, admissions. The court found the relevant passages in the recording had sufficient probative value to satisfy the relevance threshold in section 55 of the Evidence Act, notwithstanding the accused's arguments about audio quality and the limited detail discernible from the recording.
On the question of discretionary exclusion under section 90, the court declined to exclude the evidence. Section 90 permits exclusion of admission evidence where it would be unfair to use it against a defendant, having regard to the circumstances in which the admission was made. The court was satisfied that the recording, taken as a whole, did not warrant exclusion on that basis.
The defence also pressed for exclusion under section 135 (on grounds of undue waste of time and the risk of misleading or confusing the jury) and section 137 (on the basis that the danger of unfair prejudice substantially outweighed probative value). The court rejected both arguments. Fullerton J held that, with appropriate jury directions, the jury could approach the relevant passages with adequate care before drawing adverse inferences. The risk of misinterpretation did not rise to the level required to justify exclusion under either provision.
The court also addressed a specific submission concerning the accused's apparent silence or murmured assent in response to certain statements made during the recording. The defence argued this created a real risk of the jury treating silence as an admission. Fullerton J found that appropriate directions would be sufficient to guard against that risk.
Orders Made
No orders were made in this decision.
Key Takeaways
- Covertly recorded conversations obtained through an undercover police operation conducted in a prison setting are not automatically excludable under sections 90, 135, or 137 of the Evidence Act 1995 (NSW); each discretion requires a case-specific assessment of probative value against identified risks.
- Under section 137, the mandatory exclusion threshold requires that the danger of unfair prejudice substantially outweigh probative value; here, the court found that threshold was not reached, even where parts of the recording were of imperfect audio quality or limited detail.
- Where a recording captures ambiguous conduct such as silence or murmured assent, the prospect of jury misinterpretation does not, of itself, justify exclusion; the court can instead address the risk through carefully framed directions.
- Engagement by an accused with an undercover operative during a covert police operation may constitute evidence of consciousness of guilt, provided the recording is capable of conveying meaning relevant to that inference on the facts.
- The Evidence Act sections 85, 90, 135, and 137 operate as distinct filters; each requires independent analysis, and the failure of an exclusion argument under one provision does not determine the outcome under another.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 85, 90, 135, 137
Cases
- Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452
- R v Swaffield; R v Pavic [1998] HCA 1; 192 CLR 159