Butera v DPP

Supreme Court of NSW|2015-08-28|Before: Harrison J, Patten AJ, Kirby J

Judgment

HIS HONOUR: Michael Rex Clark applies under s 78 of the Crimes (Appeal and Review) Act 2001 for an inquiry to be conducted by a judicial officer of the Supreme Court into his conviction on 2 May 2008 for the murder of his father Ernest Dick Clark. In accordance with and for the reasons that follow, I am of the opinion that the application should be refused.

Introduction

The Crown case was that the applicant had engaged in a joint criminal enterprise with his son pursuant to which his son would murder the deceased when the applicant was well away from the murder scene in order to reduce the chance that the applicant could be accused of an involvement in the crime. Under this arrangement, Ben Clark would be given part of the inheritance that the applicant expected to receive in accordance with the terms of the will of the deceased.
The Crown case was circumstantial. It relied upon a number of matters, including evidence of intercepted conversations between the applicant and his son obtained from listening devices. On the Crown case, part of that listening device product included a recording retrieved on 11 July 2005 in which the applicant is said to have referred to a pact between them: "At the start we made a pact … [ind]…in it until the end."
The Crown contended that this material was evidence of the joint criminal enterprise. The original recordings were tendered as evidence in the trial and so were before the jury as exhibits. The words which the Crown contended were spoken on the recordings were transcribed in the usual way and provided to the jury as aides memoire. Although there was some dispute about the accuracy of the transcribed recordings, counsel for the applicant did not relevantly object to the words quoted above. Kirby J gave the jury the usual directions concerning the primacy of the exhibit and the secondary nature of the transcription. These directions withstood scrutiny in the Court of Criminal Appeal.
The applicant now wishes to contend that a report dated 5 March 2014 provided by Dr Helen Fraser, a phonetics consultant, is fresh evidence. It takes issue with part of the recording made on 11 July 2005. The applicant submits that Dr Fraser's report supports the proposition that the quoted words in fact were "At the start …fuckin' payback", and that the influence of the erroneous transcription may have been sufficient to have led the jury into error.
The Crown opposes the application for an inquiry. The Crown maintains that it was open to the jury to reach its own conclusion as to what the applicant said in fact at the relevant part of the recording, including that it contained the word "pact." Kirby J himself apparently had no difficulty in discerning what the relevant words were and counsel for the applicant made no complaint about it. That is so notwithstanding that counsel for the applicant did complain during a voir dire with respect to other passages in the recording that were thought to be unclear or indecipherable. Furthermore, the applicant himself used the word "pact" although in the context of asserting that the pact was not to reveal what his son had done.
Significantly, the Crown emphasises that Dr Fraser does not say that because she has listened to and examined the recordings at length she is able positively or even confidently to say that the transcription is wrong, or that she has identified the actual but different words that were spoken. According to the Crown, if admissible at all, Dr Fraser's report means that she is only in the same position of the police officer who transcribed the recording, and who the Court accepted as an ad hoc expert, being someone who listened to it on a number of occasions. Finally, and in any event, the recording contained other incriminating material that supported the Crown case which was not subject to the doubt that the applicant maintains affects the passage in question.

The Crown case

The circumstances relied upon by the Crown at trial to prove an agreement between the applicant and his son to kill the deceased were as follows: 1. The applicant was a beneficiary under the will of the deceased and had a motive for wanting him dead. 2. The applicant was in financial difficulties. 3. The applicant was concerned about recent changes in the relationship between the deceased and his partner, which was becoming closer. 4. The applicant was concerned about the amount of money that the deceased was spending upon his partner, including paying for renovations and her mortgage, and the prospect that they were considering buying a business together. 5. The applicant resented his father for the generous way that he treated his partner in contrast to the way that his father treated the applicant when he asked for loans. A Mr Seckold gave evidence, disputed by the applicant, that the applicant described his father as "a tight old prick" who had "more money than he can poke a stick at" and that he wished him dead. 6. On the night of the shooting there was contact by mobile phone between the applicant and his son before and after the murder. 7. Listening device product obtained after the murder included instructions given by the applicant to his son about how to respond to police questioning without linking him to the murder. 8. Part of the conversation recorded on 11 July 2005 included the reference to a "pact" between the applicant and his son. The applicant would pay his son part of the inheritance from the deceased once it was received. The applicant expressed concern that he would forfeit his inheritance if it were established that he had been involved in the murder. 9. The weapon used to kill the deceased was not a homemade weapon as claimed by the applicant's son, but instead was a handgun. 10. There was no other reasonable explanation for the applicant's son shooting the deceased: his allegations that he had been sexually assaulted by his grandfather were not credible.
Two listening devices had been placed in the applicant's home on 8 July 2005. Conversations between the applicant and both his wife and his son were recorded. The Crown's Summary of Trial referred to the listening devices in the following terms: "They were activated and monitored 24 hours a day and recorded on two master tapes. There were two types of conversations, firstly those where members of the family were talking normally that could be heard easily on the listening devices and secondly conversations between Ben Clark and the [applicant] where they were talking to each other in a whisper. The first type of conversation was transcribed and…checked…for accuracy. The whispered conversations were simultaneously recorded on CDs and were sent to technical police and also to some outside agencies where they were enhanced in an attempt to improve the quality. These were listened to a number of times before an initial transcript was served. If he [Detective Sergeant Maree] was unsure or the conversation was indistinct, that was indicated by (ind)."
The Fraser report focuses upon a recording on 11 July 2005 that was tendered at the trial. Detective Sergeant Maree prepared a transcript of the recording after having listened to it a number of times. The transcript was also tendered as an exhibit. It included the words referred to earlier, "Just in case mate. At the start we made a pact…[ind]…in it until the end."
On 19 March 2008, and before the jury received either the recordings or the transcripts, Kirby J gave a direction to the jury regarding the transcripts, which was in the following relevant terms: "Members of the jury, I should say something about the transcripts which you are about to receive. They are sometimes referred to by lawyers as an aide memoire. In other words an aid to you remembering the conversation that you may hear. But it is important that you keep in mind the distinction between the evidence, which is the disk of whatever the particular recording may be. In this case I gather the first one is a telephone intercept, but later on I also gather there will be listening device transcripts. So that is the evidence. The actual recording. And on the other hand the transcript, which is an aide memoire. The distinction is this: The transcripts are simply someone's interpretation of what they hear upon the particular recording. Now in some cases there is no controversy about that and, as the detective has said, and as you will hear yourselves, the particular recordings are in some cases very clear. But in other cases there is controversy, or there may be controversy about what actually is on the tape, or what can be heard on the tape. Or in this case, the disk. What you have got to bear in mind is that it is the disk which is the evidence, so you have got to make up your own mind as to what is there. No doubt you have before you the particular transcript, which is someone's effort to actually transcribe what they hear. But ultimately it is for you to make up your mind as to what is there, and what you hear collectively in respect of these particular matters, because that is the evidence. The other material is simply something which assists you, especially when you are hearing it for the first time, in really following what is on the recording. Alright, so bear in mind that distinction. The recording, the disk, is the evidence, which ultimately must be your guide. The transcript is an aide memoire, which you can disagree with entirely if you believe that what you hear on the disk is something different, or if you believe collectively that you cannot hear what is said to be present according to the transcript."
On 29 April 2008, in his final summing up to the jury, Kirby J provided the following direction: "Before I pass to what the accused says in response to the Crown case let me remind you of something I said at the outset of this trial concerning the transcripts of the listening device recordings, these being an important aspect in the Crown's circumstantial case. Remember that it is the disks that are the evidence, it is not the transcripts. Admittedly the transcripts are the police version of what was said compiled after listening to those disks many, many, many times but, nonetheless, you must be aware the transcripts are simply an aide memoire, as they are called, or a guide. You ultimately must treat as the evidence the discs and make up your own mind as to what was said. Michael Clark does not concede the accuracy of the transcripts compiled by the police. Indeed he denies their accuracy in respect of many of them, if not all of them. He does not suggest an alternative version nor is he obliged to, let me tell you, an alternative version based upon his recollection of the conversation or upon his own listening to the conversation. What he does do is point to the many 'indictincts' which appear right throughout the transcript, the many 'dot, dot, dots' and yet not transcribed. What is said and not transcribed he says, through his counsel, and as a matter of common sense, may affect the meaning. Now Detective Maree, who prepared many of the transcripts, was cross-examined by Mr Thangaraj as to their accuracy. Indeed his attention was drawn, you will remember, to early versions of the transcripts in certain occasions where the police had served as part of the brief of evidence, which they are obliged to do upon an accused person, what they say was in the transcripts. The earlier version in some cases included a version which was diametrically opposed to the version which was ultimately put forward as the real version. You will remember in one case I think a 'not' was left out and that totally changed the meaning, as Detective Maree acknowledged. So obviously this is an aspect of the Crown case which you must approach with some care."
The approach taken by Kirby J and the direction that he gave are consistent with authority: see R v NZ [2005] NSWCCA 278; 63 NSWLR 628 at [177] - [178].
At the third trial, Detective Sergeant Maree gave evidence that, for the purpose of preparing relevant transcripts, he had listened to the sound recordings on numerous occasions. He was in those circumstances properly to be regarded as an "ad hoc expert" within the meaning of the authorities: see Butera v DPP (Vic) [1984] HCA 58;(1987) 164 CLR 180 at 188, endorsing the approach of Cooke J in R v Menzies [1982] 1 NZLR 40 at 49; R v Leung [1999] NSWCCA 287; 47 NSWLR 405; Li v R [2003] NSWCCA 290; R v Tang [2006] NSWCCA 167; 65 NSWLR 681 at [120]; R v Drollett [2005] NSWCCA 356 at [63]; R v Marsh [2005] NSWCCA 331 at [32]; Irani v R [2008] NSWCCA 217; Honeysett v R [2014] HCA 29; 253 CLR 122 at [47]-[48].

No objection taken at the trial

On 11 February 2008, before the jury was empanelled for the second trial, Kirby J heard legal argument concerning the sound recordings from the listening devices and the transcripts that were prepared by Detective Sergeant Maree. He gave evidence on the voir dire about it. Counsel for the applicant objected to portions of the transcripts on the basis of sound quality, and also relied upon ss 135 and 137 of the Evidence Act 1995. He argued in the alternative that no transcripts should be given to the jury at all. Notably, no objection of any sort was taken to that portion of the recordings or the transcripts that allegedly contained reference to a pact. Indeed, counsel for the applicant said in terms, "I'm not objecting to that portion. The part about the pact. I am not objecting to that."
No different approach was taken at the third trial.
It should also be noted that during the voir dire on 11 February 2008, counsel for the applicant advanced a general complaint that the transcript being presented to the jury to accompany the sound recording amounted to a suggestive primer. That submission reflects the contention that underpins the Fraser report. It did not find favour with Kirby J. The applicant did not advance the contention in the Court of Criminal Appeal.

Consideration

This application misconceived.
In order to succeed the applicant must demonstrate that there is material that would cause me to entertain a sense of unease or disquiet in allowing the applicant's conviction to stand. An example of material that could possibly fall into that category might include an expert opinion that the transcripts of the relevant recordings were in fact wrong and that this could be convincingly demonstrated. For instance, Dr Fraser might hypothetically have produced a report based upon her examination of the recording using enhanced listening technology that established or suggested that what went to the jury was incorrectly transcribed. In such a case there would be a real risk of injustice to the applicant because the directions given to the jury would not have been adequate in the face of a factual error that would have meant that the aide memoire was not even arguably correct but was on the contrary entirely or at least partially inaccurate and misleading.
In the present case what Dr Fraser says is no more than that there is a possibility that the jury were misled because one cannot be certain that the words in question were accurately recorded. In such circumstances the suggested interpretation, in this case provided by Detective Sergeant Maree, may inadvertently and disproportionately have given the transcript an authority or significance that was completely and dangerously unwarranted. This is a phenomenon that Dr Fraser refers to as contextual priming. Dr Fraser points to studies that suggest that seeing an inaccurate transcript can significantly influence a listener's perception of the audio recording that they might otherwise have interpreted quite differently, or which they might have been content to conclude was so unclear that it could not be sufficiently understood to be interpreted at all.
That possibility is however well recognised and is implicitly anticipated by the standard jury directions that were given by Kirby J. In other words, the transcript of the recordings should not be used in substitution for the jury's own assessment of what the recordings on one view appear to reveal.
The burden of Dr Fraser's report is therefore not that she has identified fresh evidence that indicates or suggests that there was a miscarriage of justice. Rather Dr Fraser is of the opinion that the directions given to the jury in the applicant's trial were an inappropriate and ineffective mechanism for neutralising the iniquity that she has identified. Indeed, Dr Fraser's opinion appears to be that the problem is so pervasive that directions of the type ordinarily given to juries in cognate circumstances are patently and fundamentally inadequate for their intended purpose. Dr Fraser effectively posits that an indecipherable audio recording should never be transcribed if there is the slightest chance that contextual priming may corrupt the trial process. She asserts that an improper influence evidently operated upon the minds of the jurors in the applicant's trial because the portions of the audio in question could not be unambiguously interpreted or transcribed. Dr Fraser contends that no transcription can or should be relied upon, and should not be provided to a jury, where the audio is not clear because of the associated possibility of a miscarriage of justice.
There is no doubt that these concerns are important. They do not however amount to fresh evidence. The directions given to the jury were standard directions intended as far as possible to focus the attention of the jurors upon the distinction between the evidence on the one hand and aids to its interpretation on the other hand. None of Dr Fraser's interesting and compelling analyses causes me to entertain any sense of unease or disquiet that might not otherwise be generated in every criminal trial by the prospect that jurors may not understand or apply directions that are given to them by the trial judge. That is an ever present but different issue to the issue proffered by the applicant in this case based upon Dr Fraser's report.
The circumstantial Crown case against the applicant was otherwise strong and compelling. This has been referred to already. Significantly for present purposes, the 11 July 2005 recording contained other incriminating material. It is clear from this material that the applicant was providing instructions to his son concerning how he should respond to questioning by the police in a way that did not link the applicant to the crime. The conversation includes reference to the money that the applicant anticipated he would receive from the estate of the deceased and that the money would still be waiting for the applicant's son if he were sent to gaol.

Conclusion

In my opinion the application should be dismissed. I am not led to entertain any sense of unease or disquiet that the applicant was or may have been improperly convicted. He has pointed to no fresh evidence or to any factor that was not available to be utilised or relied upon in his appeal to the Court of Criminal Appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2015

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