Citation: R v Dirani (No 8) [2023] NSWSC 70
Court: Supreme Court of New South Wales
Date: 23 September 2022
Judge(s): Bellew J
Background
The accused faced an indictment alleging that between August and October 2015 he conspired with others to do acts in preparation for a terrorist act. The Crown sought to rely on a conversation recorded by a listening device on 2 October 2015 between two alleged co-conspirators.
Counsel for the accused objected to part of that recorded conversation, arguing primarily that it was not relevant. The central dispute turned on whether the recording was of sufficient quality to establish what had actually been said.
Legal Issues
- Whether a listening device recording of sufficiently poor quality could satisfy the relevance threshold under s 55 of the Evidence Act 1995 (NSW)
- Whether the trial judge should determine admissibility by listening to the recording without the assistance of the Crown's transcript, so as not to be influenced by a suggested version of the words
Decision
Counsel for the accused submitted that the recording was so unclear it could not support the transcript the Crown relied upon, and asked the court to assess admissibility by listening to the recording alone. The Crown did not oppose that course. Bellew J accepted this approach, drawing on the method endorsed in R v Bushell; R v Tozer (No 6) [2021] NSWSC 750.
His Honour listened to the recording in open court with the parties present, on more than one occasion, and was unable to determine what was being said beyond isolated single words that carried no probative value. He then listened to the recording several further times in chambers using headphones, with the same result.
After repeated attempts, certain isolated words could be made out, but they were disjointed and incapable of conveying any meaningful content. In those circumstances, the only available conclusion was that the evidence was not relevant within the meaning of s 55 of the Evidence Act 1995 (NSW), and the evidence was excluded.
Orders Made
• Evidence of the conversation between Raban Alou and Talal Alameddine recorded on 2 October 2015 was excluded from admissibility on the grounds that it was not relevant within the meaning of s 55 of the Evidence Act 1995 (NSW)
Key Takeaways
- Where a party objects to the admissibility of a listening device recording on relevance grounds, it is an accepted course for the trial judge to assess the recording without the aid of a Crown-prepared transcript, to avoid being primed with a suggested version of the words.
- Under s 55 of the Evidence Act 1995 (NSW), evidence must be capable of rationally affecting the assessment of a fact in issue; a recording from which only disjointed, isolated words can be discerned does not meet that threshold.
- The Supreme Court confirmed that poor audio quality is not simply a matter of weight: where a court cannot determine what was said after repeated careful listening, the recording may fail the relevance test entirely and be excluded.
- No probative value attached to isolated single words extracted from a largely unintelligible recording, particularly where those words could not be placed in any meaningful context.
- The approach of assessing admissibility without reference to a transcript was consistent with the method previously applied in R v Bushell; R v Tozer (No 6) [2021] NSWSC 750.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 55
- Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases
- R v Bushell; R v Tozer (No 6) [2021] NSWSC 750