Citation: R v Hawat (No 5) [2019] NSWSC 1727
Court: Supreme Court of New South Wales
Date: 9 December 2019
Judge(s): N Adams J
Background
The accused stood trial for the murder of a man, with the Crown alleging he participated either as part of a joint criminal enterprise or as an accessory before the fact to the deceased's shooting. The Crown's case relied substantially on listening device recordings, CCTV footage, telephone intercepts, and alleged lies told during a recorded interview.
A significant practical problem emerged once the trial commenced. The listening device recordings were of very poor quality, and efforts to play them audibly in court, including trialling noise-cancelling headphones and the court's hearing loop system, proved only partially successful. The Crown had earlier flagged the quality issue and indicated it intended to rely on a transcript prepared by Detective Senior Constable Ede, who had listened to the recordings extensively.
Defence counsel applied on voir dire to exclude five of the fourteen recordings (LD 1, 2, 4, 5, and 6) on the basis that the words could not be discerned without the transcript and that Detective Ede should not be permitted to tell the jury what she believed was being said on them.
Legal Issues
- Whether the listening device recordings, or portions of them, were relevant and therefore admissible under ss 55 and 56 of the Evidence Act 1995 (NSW)
- Whether the transcripts prepared by Detective Ede were admissible, and on what basis (lay opinion under s 78 or specialised knowledge under s 79)
- Whether Detective Ede could properly be characterised as an "ad hoc expert" capable of giving opinion evidence about the content of the recordings, as distinct from the identity of speakers
- Whether recordings so indistinct as to be largely unintelligible should be excluded for lack of relevance
Decision
Adams J held that the transcripts prepared by Detective Ede were relevant and prima facie admissible under ss 55 and 56. If accepted by the jury, they could rationally affect the probability of a fact in issue, namely what the accused said to his wife about his involvement in the alleged offending. The threshold question of relevance was therefore satisfied.
The court examined the High Court's analysis in Butera v Director of Public Prosecutions (1987) 164 CLR 180, which addressed transcripts of poor-quality or partially indistinct recordings. That authority confirms a transcript may be provided as an aid to listening, provided the jury is directed that it is not to be treated as primary or independent evidence of the recorded conversation. The court noted, however, that the Crown's reliance on Detective Ede's evidence went beyond speaker identification, the scenario addressed in the cases cited by the Crown, and extended to the content of what was said. The Crown conceded it could not point to any decided case where police opinion evidence of that kind had been admitted.
On the central contested question, the court undertook its own listening exercise. Adams J personally reviewed each of the disputed recordings multiple times using the available court equipment. The result was determinative of the admissibility question. Her Honour found that LD 4 and LD 5 were so indistinct that so little could be heard on them as to render them inadmissible for lack of relevance. By contrast, identifiable portions of LD 1, LD 2, and LD 6 were audible, and those portions were held to be admissible and capable of being played as part of the Crown case. All remaining portions of those three recordings that could not be discerned were found to be irrelevant and inadmissible.
Orders Made
• Portions of listening device recordings LD 1, LD 2, and LD 6 (as specifically described) are admissible and may be played as part of the Crown case
• Listening device recordings LD 4 and LD 5 are inadmissible
• All other portions of the recordings are irrelevant and inadmissible
Key Takeaways
- Relevance under ss 55 and 56 of the Evidence Act 1995 (NSW) operates as the threshold question for listening device recordings: recordings from which nothing intelligible can be discerned fail that threshold and are inadmissible.
- Following Butera v DPP, a transcript of an indistinct recording may be provided to a jury as an aid to listening, but it does not constitute independent evidence of the recorded conversation, and the jury must be directed accordingly.
- The Crown's "ad hoc expert" argument, which is generally accepted in cases involving speaker identification, was not extended by this decision to cover police opinion evidence about the substantive content of what was said. No authority was identified supporting that wider application.
- A court may undertake its own listening exercise to assess whether recordings are sufficiently audible to cross the relevance threshold, and that exercise may produce admissibility outcomes that differ between different recordings or different portions of the same recording.
- Where only discrete portions of a recording are audible and relevant, admissibility may be granted on a portion-by-portion basis, with the inadmissible portions excluded.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 76, 78, 79
Cases
- Butera v Director of Public Prosecutions (1987) 164 CLR 180; [1987] HCA 58
- Colby v The Queen [1999] NSWCCA 261
- Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611; [2011] HCA 21
- Honeysett v R (2014) 253 CLR 122; [2014] HCA 29
- Kheir v R [2014] VSCA 200
- Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Georgiou [2005] NSWCCA 237
- Regina v Leung and Wong (1998) 47 NSWLR 405; [1998] NSWCCA 287
- Williams v The Queen [1982] Tas R 266