Citation: R v Aboukhalil (No 2) [2019] NSWDC 799
Court: District Court of New South Wales
Date: 15 May 2019
Judge: P Taylor SC DCJ
Background
Four men were charged with robbery of a motor vehicle with wounding, alternatively wounding, and assault with intent to take a motor vehicle. The alleged offending involved confronting a driver at around 7:30pm, producing a firearm and a knife, and driving away in the victim's car after he was wounded escaping the vehicle. The accused had pleaded guilty to the lesser charge of assault with intent to take a motor vehicle, but the Crown did not accept that plea.
The Crown sought to admit audio recordings captured by a CCTV security system in the hallway of the apartment building where the accused lived. The device recorded conversations near the lift doors on the 21st floor, both before and after the alleged offending. The recordings included statements that, on the Crown's case, suggested advance knowledge of and participation in a planned carjacking.
The accused objected to the admission of those audio recordings. The objection was determined on a voir dire (a preliminary hearing held before the trial judge, separate from the jury, to rule on admissibility).
Legal Issues
- Whether the conversations captured by the CCTV device were "private conversations" within the meaning of the Surveillance Devices Act 2007 (NSW)
- Whether the exception applied: ought the parties reasonably have expected that their conversations might be overheard by someone else?
- If the recording was obtained illegally, whether the court should nonetheless admit the evidence under the balancing test in s 138 of the Evidence Act 1995
- Whether the evidence should be excluded under ss 135 or 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the risk of unfair prejudice
Decision
Were the conversations "private"?
His Honour found that the primary elements of the definition of "private conversation" under s 4 of the Surveillance Devices Act 2007 were satisfied. The conversations took place in an empty hallway outside closed apartment doors, concerned subject matter private to the participants, and there were reasonable grounds to conclude the speakers intended the words to be heard only by themselves.
The critical question was whether the exception applied: ought the parties reasonably have expected to be overheard? His Honour inferred from the available evidence that the CCTV device recorded all conversations near the lift continuously, including those not audible through closed apartment doors. Because the device recorded conversations that would not ordinarily be heard by anyone else, there was no basis to infer that the parties should reasonably have expected to be overheard. The exception did not apply, and the recording was therefore made in contravention of s 7 of the Surveillance Devices Act 2007.
Should the evidence be admitted despite the illegality?
His Honour applied the balancing exercise under s 138(3) of the Evidence Act 1995. He acknowledged the recordings carried high probative value and were important to the Crown's case on the issue of common purpose. However, he weighed against admission the seriousness of the privacy contravention, the fact that the recording was made without any warning to occupants that conversations could be captured, the connection to privacy rights recognised under the International Covenant on Civil and Political Rights, and uncertainty about whether the device could have been rendered lawful through appropriate signage.
Risk of prejudice and inability to test the evidence
His Honour also gave significant weight to the prejudicial character of the recordings. Large portions of the audio were indistinct, creating a real risk that the transcription conveyed a materially different meaning from what was actually said. None of the speakers were proposed as Crown witnesses, meaning the defence had no opportunity to explore the context of the conversations. Citing the Full Federal Court's observation in La Trobe Capital, his Honour noted that evidence of the effect of conversations carries stricter requirements than most other evidence. For all of these reasons, he declined to admit either the transcript or the sound recording.
Orders Made
• The transcript and sound recording are declined to be admitted as evidence
Key Takeaways
- A hallway conversation in an apartment building can qualify as a "private conversation" under s 4 of the Surveillance Devices Act 2007, even though it occurs in a common area, if the circumstances indicate the speakers intended the words to be heard only by themselves.
- The exception to "private conversation" (that the parties ought reasonably to expect to be overheard) does not automatically apply simply because a conversation takes place in a shared or semi-public space. The physical and technical capacity for others to hear is relevant, and a continuously recording CCTV device operating without warning does not, by itself, create that reasonable expectation.
- Under s 138 of the Evidence Act 1995, high probative value alone does not compel admission of illegally obtained evidence. The District Court weighed that value against the gravity of the privacy contravention, the absence of any warning to building occupants, and the connection to recognised rights under international law.
- Where audio recordings contain substantial indistinct passages and the speakers will not be called as witnesses, the risk that transcription errors will distort meaning is a legitimate basis for treating the evidence as potentially highly prejudicial under ss 135 and 137 of the Evidence Act 1995.
- The difficulty of obtaining equivalent evidence by lawful means is a statutory consideration under s 138(3)(h), but its weight cuts in both directions: a device rendered lawful through signage might have deterred the very conversations sought to be admitted.
Legislation and Cases Referenced
Legislation
- Surveillance Devices Act 2007 (NSW), ss 4, 7
- Evidence Act 1995 (NSW), ss 135, 137, 138
- International Covenant on Civil and Political Rights, art 17
Cases
- La Trobe Capital and Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4
- Masri & Masri [2017] FamCA 539
- Right v Stevens [2009] WASC 102
- Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133