Citation: [2018] NSWSC 195
Court: Supreme Court of New South Wales
Date: 26 February 2018
Judge(s): Harrison J
Background
Four accused faced trial in the Supreme Court in connection with events surrounding the disappearance of a man referred to as Mr Vollmost on 31 March 2015. The Crown alleged the accused were involved in drug dealing and that their activities on the night in question were captured on CCTV footage from a premises at 79 Cox Street.
The Crown sought to tender listening device recordings, comprising both audio files and written transcripts, capturing conversations involving all four accused on various dates between 9 April 2015 and 3 September 2015. A fifth individual, Joshua Thomas, the brother of one of the accused, appeared in the first recording.
All four accused opposed the tender of this material. The court had previously ruled in related proceedings that the recording from 12 April 2015 was admissible. This judgment dealt with the remaining recordings.
Legal Issues
- Whether the listening device recordings were relevant and therefore admissible
- Whether any of the recordings should be excluded as unfairly prejudicial to the accused
- Whether the difficulty in understanding the context of the conversations rendered them inadmissible
Decision
Issue 1: Relevance of the recordings generally
The accused argued that the recordings were too difficult to understand without discernible context, and therefore lacked any relevance. The court acknowledged some difficulty in fully appreciating the conversations but held that this alone did not make the evidence unfit for the jury. The relative closeness of the conversations in time to the events of 31 March 2015 was itself sufficient to give the material evidentiary value (at [4]).
Issue 2: Individual recordings
The court assessed each recording separately. The 9 April 2015 recording, made only nine days after Mr Vollmost's disappearance, was found to be highly relevant and contextually clear: it showed one accused coaching Joshua Thomas on what to tell police about a white Hyundai station wagon and instructing him to limit or refuse to answer police questions (at [5]). The 15 April 2015 and 27 April 2015 recordings were also found to be highly relevant, with the later recording appearing to dovetail with the earlier coaching instructions (at [7]-[9]).
The 16 June 2015 and 17 June 2015 recordings were found clearly relevant, the former to the Crown's drug-dealing allegations and the latter because the accused appeared to discuss CCTV footage of their activities on the night in question (at [11]-[12]). The 24 July 2015 recording, in which one accused remarked that the group had been too casual and complacent in how they discussed relevant events, was found not to be irrelevant (at [14]). The 3 September 2015 recording, made at a police station, showed two accused apparently discussing police material about their suspected involvement and was clearly relevant (at [15]). The 12 June 2015 and 19 July 2015 recordings were found to have little obvious or barely any relevance respectively, yet the court did not exclude them on that basis (at [10], [13]).
Issue 3: Unfair prejudice
The accused contended the material was unfairly prejudicial. The court rejected this, drawing a distinction between material that may be damaging to an accused's interests and material that is unfair in the legal sense. The recordings may have been adverse to the accused, but that did not render them unfairly prejudicial (at [16]).
Orders Made
- The listening device product is admissible.
Key Takeaways
- The Supreme Court confirmed that recordings need not be fully intelligible in every detail to be admissible; sufficient evidentiary value can arise from the temporal proximity of conversations to the events in issue (at [4]).
- Evidence that one accused coached a witness about what to say to police, recorded nine days after the alleged offence, was found to be highly relevant and contextually clear enough for the jury (at [5]).
- A finding that evidence may damage an accused's interests does not, without more, establish unfair prejudice in the relevant legal sense (at [16]).
- Individual recordings within a body of listening device material may have varying degrees of relevance, but low relevance alone did not lead the court to exclude those recordings from the jury's consideration (at [10], [13]).
- Where recorded conversations could be understood as an accused's reaction to publicly released police information or CCTV footage related to the alleged offence, that connection was sufficient to establish relevance for the purposes of admissibility (at [4], [12]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 175