procedural. The listening device recorded on 4 May 2017 at 00:52:15 under warrant SD 17/0185 is inadmissible.
Key principles
Where the probative value of evidence is substantially diminished by uncertainties (including conflicting translations) and there is a real risk of unfair prejudice or that the...
Even where evidence is relevant and has some probative value, the trial judge must exclude it if the danger of unfair prejudice outweighs its probative value; that evaluation may...
The assessment of probative value is undertaken on the premise the evidence will be accepted 'at its highest', but that premise does not foreclose the judge from determining that...
The general discretion in s 135 may be exercised to exclude evidence that may be misleading or confusing even if s 137 is not otherwise engaged.
Issues before the court
Whether the listening device recording of 4 May 2017 is admissible where competing translations produce material uncertainties as to what was said.
Whether the fact that admission may force an accused to adduce evidence of other criminal conduct automatically requires exclusion.
Plain English Summary
The Crown sought to admit a Mandarin listening-device recording said to show an admission by an accused. Two interpreters produced materially different translations and parts of the recording were indecipherable. Hamill J held the recording relevant but of low probative value because of translation uncertainties, and that admission would risk unfair prejudice (including forcing the accused to lead evidence about other violent incidents). The recording was excluded under s 137 Evidence Act 1995 (NSW) and, alternatively, s 135.
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Deep Dive
1,719 words · generated 17/07/2026
What happened
This was a pre-trial voir dire in the Supreme Court of New South Wales about the admissibility of a Mandarin-language telephone listening-device recording made on 4 May 2017 at 00:52:15 (warrant SD 17/0185). The recording captured a conversation involving Ian Fan (one of six accused charged in relation to shootings on 23 January and 1 February 2017) and an unidentified male. The Crown sought to tender the recording as potentially probative of Mr Fan’s state of mind and participation in the February shooting. Two interpreters provided competing translations: Mr Nelson Zhou (Crown translation, Ex VDO) and Ms Cathy Xie (defence-mandated translation, Ex VDP). The translations differed materially in places; portions were indecipherable and marked “IND” in transcripts. The defence argued the translation disputes and the risk that admission would force Mr Fan to adduce prejudicial evidence about other violent incidents made the recording inadmissible under ss 135 and 137 Evidence Act 1995 (NSW). Hamill J excluded the recording. See the judge’s ruling that the recording is inadmissible (Ruling, final line) and the resolution reasoning (Resolution [1]–[5]).
Cited legislation
1 cited instrument linked from this judgment.
Why the court decided this way
The court’s decision rested on a standard balancing exercise under the Evidence Act.
Relevance and probative value
The recording was relevant because, if accepted, it could bear on Mr Fan’s purpose in attending the Guildford premises and thus his state of mind or participation in the alleged common purpose (see Assessing the probative value [1] and [4]). The Crown argued the recording conveyed an admission consistent with the Crown’s case (T 24/08/2020, p 576) and the words “it was mainly to fix him/her up” or “to give him trouble” could be read as such (Translations section).
The court applied the High Court’s approach in IMM v The Queen (2016) that, although the admissibility assessment proceeds on the basis the evidence will be accepted at its highest, surrounding circumstances may indicate that even accepted at its highest the evidence is of low probative value ([50] of IMM cited at Assessing the probative value [1]). Hamill J expressly adopted that approach (Assessing the probative value [2]–[3]).
The two translations differed on key points (for example, whether someone was “hit by a gun shot”, whether the aim was to “fix him/her up” or “give him trouble”, and whether “carried” referred to weapons or objects). The audio quality and interpreter disparity (one interpreter claiming to hear words the other could not) meant the real probative value was eroded (Assessing the probative value [1]–[3]).
The judge observed the necessity for “a leap of faith” when accepting translations and said that here the perils of that leap had been exposed (Assessing the probative value [3]).
Risk of unfair prejudice and confusion
Section 137 requires exclusion if probative value is substantially outweighed by unfair prejudice. Section 135 permits exclusion where evidence might be misleading or confusing.
The judge identified two sources of unfair prejudice: (a) the jury might impermissibly speculate about indecipherable parts of the recording; (b) admission would likely force Mr Fan to adduce evidence explaining the conversation, and that evidence would disclose other violent incidents involving weapons and gang-like conduct (Assessing the probative value [3]; The potential for the evidence to mislead or be confusing [3]–[4]).
The second source is not a per se rule that forcing disclosure of unrelated offences always mandates exclusion. Rather, the court examined whether the particular evidence to be adduced would produce unfair prejudice in context. The judge referred to authorities (Taranto; Power; Bridgman; Cook) and concluded the relevant other incidents had a similar character (weapons, stand-over tactics) and hence would be substantially prejudicial (Some authorities; Resolution [2]–[3]).
Combined, the low real probative value (due to translation uncertainties) and the real risk of unfair prejudice/misleading the jury meant the recording had to be excluded under s 137; alternatively, the general discretion under s 135 would also lead to rejection (Resolution [4]–[5]).
Before and after state of the law
Before this ruling:
The statutory framework and leading authorities were well established: s 137 and s 135 of the Evidence Act require balancing probative value against prejudicial/misleading effect; IMM provides the modern test for assessing probative value (take evidence at its highest but assess real probative weight in context).
Prior common law decisions (R v Taranto; R v Power; R v Bridgman; R v Cook) had addressed situations where evidence indicating consciousness of guilt or flight might require the accused to adduce evidence revealing other offences, and the courts had balanced admissibility on facts.
This ruling:
Applies IMM’s approach to a context where the principal reliability issue is competing translations and inaudible speech, not identification per se. Hamill J expressly held there is no real difference in principle between the “foggy night identification” example in IMM and the translation uncertainties here (Assessing the probative value [3]).
Reiterates that adducing an accused’s explanation that discloses other offences does not automatically require exclusion. The focus is on whether, in context, that disclosure would produce unfair prejudice that substantially outweighs probative value (Some authorities; Resolution [1]–[4]).
Confirms that where translation uncertainty meaningfully diminishes probative value and increases risk of jury speculation, exclusion under s 137 or s 135 is appropriate.
After the ruling:
The case emphasises careful scrutiny of interpreter evidence and the recognition that competing translations can render otherwise relevant hearsay-like material inadmissible. The ruling is a procedural pre-trial exclusion, so it shapes trial strategy and Crown decisions about reliance on recorded foreign-language material.
Key passages with plain-English translation
Selected passages from Hamill J and a plain-English paraphrase.
"The acceptance of translations by Courts and juries involves a leap of faith in every case; but here the perils involved in the leap have been exposed." (Assessing the probative value [3])
Plain English: Courts and juries always have to trust interpreters, but in this case the risks of trusting are obvious because the translations contradict each other and key words are unclear.
"Even so, the evidence retains a capacity to impact on an assessment of the facts in issue. It is relevant evidence. However, its probative value as an admission is not particularly high." (Assessing the probative value [4])
Plain English: The recording could be relevant but, because of the translation problems, it is not strong or convincing evidence of guilt.
"I am satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to Mr Fan. The evidence 'must' be excluded under s 137 of the Evidence Act." (Resolution [4])
Plain English: Balancing benefits and harm, the judge concluded the recording could do more harm than good to a fair trial, so it must be left out.
"I accept that, in spite of clear direction, the jury may speculate as to what was said in the indecipherable and inaudible parts of the conversation." (The potential for the evidence to mislead or be confusing [3])
Plain English: Even with instructions, jurors might guess what was said in the parts they cannot hear or where the interpreters disagree.
What fact patterns trigger this precedent
This ruling is most directly applicable where:
The prosecution seeks to admit foreign-language recorded conversations or transcripts as evidence of admissions or state of mind, and
Competing translations differ materially on words or phrases central to the inference sought, and
Portions of the recording are indecipherable (marked as inaudible or 'IND'), causing the jury to lack the linguistic competence to resolve disputes, and
Admission would likely force the accused to call evidence that discloses other uncharged but similar criminal conduct (weapons, stand-over incidents), thereby risking unfair prejudice in the context of the charges.
In short: foreign-language audio + conflicting translations + inaudible passages + potential for compelled prejudicial explanation = strong trigger for exclusion under s 137 (and s 135).
How later courts have treated it
This judgment itself cites and applies High Court and appellate authority (IMM, Cook, Taranto, Power, Bridgman). The present judgment is a trial-level pre-trial ruling. The transcript provided does not record subsequent appellate treatment of Hamill J’s ruling. Therefore, no authoritative 'later court' treatment of this particular ruling is recorded in the judgment. Parties seeking to rely on or distinguish this decision should search subsequent reported decisions or appellate rulings for later citation.
Still-open questions
Quantitative threshold for translation conflict: The judgment affirms a qualitative balancing approach but does not prescribe a bright-line rule about how many inconsistencies or what degree of inaudibility will diminish probative value sufficiently to exclude evidence. Practitioners must frame arguments factually, not numerically.
Expert interpreter evidence protocols: The decision exposes practical vulnerability where two qualified interpreters differ. It leaves open procedural measures (eg joint contemporaneous hearing of audio with interpreters, use of a third conciliation interpreter, or court-appointed linguistic experts) that might reduce exclusion risk. The judgment does not dictate the preferred procedure.
Jury directions versus exclusion: The judge concluded the risk of jury speculation could not be cured by direction. Future cases may explore whether tailored directions, limiting instructions, or redaction might suffice in less acute cases.
Forced disclosure of other offences: The ruling reiterates that compelled explanation revealing other criminal conduct is not an automatic exclusionary fact; it depends on context and similarity. There remains a degree of uncertainty about how similar or how prejudicial the other conduct must be before exclusion follows.
Electronic translation aids and social-media definitions: The judgment references an Online Urban Dictionary meaning of 'carried' as illustrative. Reliance on popular online sources for interpreting slang in recordings raises questions about admissibility and reliability of such materials and the standards for judicial notice or expert evidence.
Practitioners should treat Al Batat (No 14) as a strong example of exclusion where interpreter disagreement and inaudibility undermine the probative value of a foreign-language recording and where admission would prompt highly prejudicial factual rebuttal. When preparing similar material, counsel should anticipate the court’s concern with: (a) audio quality, (b) interpreter methodology and credibility, (c) the availability of corroborative evidence tying the conversation to the charged events, and (d) the risk that the accused would be required to lead prejudicial evidence to meet the Crown’s inference.
Catchwords
[2016] HCA 14
R v Bridgman (1980) 24 SASR 278
R v Burton [2013] NSWCCA 335237 A Crim R 238
R v Cook [2004] NSWCCA 52
R v Power (1996) 87 A Crim R 407
R v Taranto
Judgment (8 paragraphs)
[1]
Judgment
This is the fourteenth, and last, of a number of judgments generated in the course of a pre-trial hearing that has spanned the last five weeks. The factual circumstances of the case are set out in some of the earlier judgments. Ian Fan (also known as "Michael") is one of six men charged with a range of offences arising out of two shooting incidents that occurred, respectively, on 23 January and 1 February 2017. The target of both shootings was Jun Jia (or "Xiao Jun"). He is said to have failed to pay for some drugs and his suppliers took out a contract on his life. One of Mr Fan's co-accused, Ying Cheng Luo (sometimes known as "Johnny"), allegedly accepted the contract and recruited Mr Fan and others to carry out the killing. In the course of the incident on 1 February 2017 a friend of Mr Jia's, Mr Qin Wu, was killed.
On the prosecution's case, Mr Fan joined the criminal enterprise after the shooting on 23 January 2017. The prosecution alleges that the 23 January shooting was organised by Mr Luo and carried out by Abdallah Al Batat. Chronologically, the first direct evidence of Mr Fan's involvement occurred on 1 February 2017. On that date, Mr Fan, Mr Luo and Jaiyu Liu allegedly obtained two firearms from Jacob Bayliss and, at the same time, supplied him with some drugs. It was later that day that Mr Fan, Mr Luo, Mr Liu (along with a witness known as Leonard Rivers) attended a makeshift Buddhist temple in Guildford and carried out the shooting. The prosecution says that Mr Luo and Mr Liu entered the premises and shot at Mr Jia, killing Mr Wu. They then left the premises and returned a short time later with Mr Fan. All three men were armed with firearms. By this time, Mr Jia had made his escape. Apart from Mr Luo accidently discharging a handgun that was in his pocket, and shooting himself in the leg, no further shots were fired.
This judgment relates to the admissibility of a piece of evidence the prosecution seeks to tender against Mr Fan. The evidence consists of a recording of a conversation between Mr Fan and an unknown male on 4 May 2017 a little after midnight. The conversation was conducted in the Mandarin language and police arranged for some of it to be translated by an interpreter Mr Nelson Zhou. A statement of Xiaolei Yang (Exhibit VD11) raises the possibility that he was the unidentified male although he says he is not certain having listened to the recording.
Counsel for Mr Fan (Mr Quilter) raised a spirited and multifaceted objection to the admission of the evidence. While the objection is based on the provisions in ss 135 and 137 of the Evidence Act 1995 (NSW), the objection is a little more complicated and nuanced than the average. It begins with an argument over the translation.
[2]
The translations
As I have said, Mr Zhou provided a translation of the conversation. His translation of the conversation (Exhibit VDO) was as follows:
"00:52:15
FAN: Now, listen to me...
UM: Might have eaten it.
FAN: What has it got to do with me?
UM: True.
FAN: Right? What has his/her going in there got to do with me?
UM: Mm.
FAN: Isn't he/she a scumbag? He/She...(laughs) Therefore, on the day when we went there, on that day...
UM: Mm.
FAN: ...it was mainly to fix him/her up, to fix him/her up, understand? That's why all carried…
00:52:45
FAN: They said [IND] wanted to send [IND] and was hit by a gun shot.
UM: Mm.
FAN: Later the other party blamed/pointed at Johnny (phonetically). [00:52:50] He/She argued with Johnny, er, Johnny said to him/her, to him/her, 'Look, if you have no money, I can give it to you 500 or 1000. Right? Look, it doesn't matter if you are an elder or not, I'll lend the money to you if you run out of it. If you demand money from me this way, I won't give it to you even if I have to die. You would gamble all the money away even if you get it. You would always have no money like this. You are already at such old age now but you are still so poor. Why is that? It's because how you conduct yourself.' (laughs)
00:53:17
FAN: Someone who did business with him/her before... he/she spent their money. They came to me."
During the conduct of the voir dire, the Prosecutor indicated that he did not press the words that have been struck through in the above extract. [1]
The controversy over the translations arose after Mr Quilter received instructions that the translation provided by Mr Zhou was not a complete record of the relevant conversation. Mr Quilter approached the investigating police and a second interpreter, Ms Cathy Xie, was asked to translate the un-transcribed portion of the recording. Ms Xie translated the whole recording and presented a translation that was substantially different to that of Mr Zhou. For example, there was no reference to anybody getting hit by a gunshot. Ms Xie's translation (Ex VDP) was as follows:
"00:51:27 to 00:52:14
(No conversation)
00:52:14
UKM1: Look, I say, probably, this whole thing should have been
UKM2: What's that got to with me? Uhm? (IND) Can you afford to have anything to do with someone like him? He, he (laugh) That day with the welcome reception, the day we went there, didn't we? that day, right?
UKM1: Mm.
UKM2: That was to give, give him trouble, right? That's why they brought everything along, right? (IND) Got into business directly as soon as arriving at a place. He said to (IND, a name J..), (IND, a name J..) said to him: 'Look, if you haven't got money, I can give you (IND). If you have money, that's fine. It doesn't matter whether you want to work for it or do it in other way, I can lend it to you. (But) If you want money from me like this, I will not give it to you even if it means I need to die for it. You won't be able to get away even if you got the money. You will have no money forever. You are still so poor at your age. Why is that? That's because of the way you behave, hahahah. Someone, previously, was doing business with him. He demanded money on behalf of that someone. He approached me demanding for money.
UKM1: Just like that? (IND) that, that
UKM2: Who?
UKM1: This, I am talking about this (IND, a name)
UKM2: What about him/her?
UKM1: I've never met him/her.
UKM2: You have met before. (IND)
UKM1: So, uhm, what about the other bit? Do I need to give you the address?
UKM2: What address?
UKM1: It's that address of (IND, Jonny's ?) cousin
UKM2: I should have got that already. I have also paid the money too. What do you think?
UKM1: That's fine. Well, I, if there is nothing else, nothing else, I will go back. (IND) will help you. Fine. So, when you (IND) in the evening, I will give you that (IND)
UKM2: I, I, I, I am telling you that's no problem. Fine.
UKM1: Mm. And I will ring you tomorrow morning or around lunch time, what else? I will keep that with me for the time being, and in the evening, I will
UKM2: Whatever suits you. You let me know whenever you want to. I, I
UKM1: I want to (IND)
(The two people walked away) (IND)
UKM2: Where did you leave your phone? Uh? Oh, it's here, it's here. I found it, I found it. Here
UKM1: What kind of a brain...
(IND. The two people walked away again)
UKM2: (IND)"
[3]
Assessing the probative value of the evidence
Mr Quilter's first submission is that the uncertainty over the translations is such that the probative value of the evidence is diminished and that there is a risk that the jury will misuse the evidence by guessing and speculating as to words and phrases that are indecipherable ("IND"). If it is necessary to choose between the translations, the jury would not have a principled or rational way of making the choice because they are unlikely to be fluent in Mandarin. Mr Quilter relies on an example provided by the High Court in discussing the manner of assessing the "probative value" of evidence in its decision in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [50]:
"It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence."
The interpreters in the present case gave evidence and were cross-examined. There seemed to be two identifiable reasons for the difference in the translations. The first had nothing to do with language. In some instances, Mr Zhou said he could hear and make out Mandarin words and phrases even though the recording was of poor quality and the audio very quiet. Ms Xie was unable to do more than say that words were spoken. She could not make out the words. The second reason was linguistic, and concerned what appeared to be a somewhat different approach to the task of translating. By way of example, Mr Zhou translated the phrase just before time stamp "00:52:45" as "that's why all carried …" while Ms Xie translated the same words as "that's why they brought everything along right." Mr Zhou explained his translation in cross-examination: [2]
"Q. Do you see you have written the words 'that's why all carried'?
A. Yes.
Q. Would a faithful translation to that sentence also be this, 'That's why they brought everything along, right'?
A. Some translators might translate that way, I don't know.
Q. Would you regard that as a faithful translation to what you heard?
A. Would you repeat that?
Q. 'That's why they brought everything along, right'?
A. That's acceptable, but yeah I choose not to use this way of translation. I tried to be more verbatim.
Q. When the verb 'brought' is used, can it be used equally for persons and things?
A. That's correct, depending on the context.
Q. So the verb is the same whether you are talking about persons or things?
A. Yes, but in here, in this particular translation, it doesn't mention it all what was carried or what was brought.
Q. So does that leave open the possibility that it is a reference to persons?
A. It leaves the possibility to various things. Could be a person, could be an object, could be anything.
[4]
The potential for the evidence to mislead or be confusing; the danger of unfair prejudice
The danger that the evidence might be misleading or confusing (see s 135 Evidence Act) is obvious. I need say no more about it.
The danger of unfair prejudice arises on two bases. First, it was submitted that there is a risk that the jury will engage in impermissible speculation given the deficiencies and inconsistencies in the translations and the number of occasions where the words used were either indecipherable or inaudible. Second, Mr Quilter took me to other statements and listening device transcripts within the prosecution brief which relate to other events and which, it was submitted, might explain the conversation subject of the objection.
I accept that, in spite of clear direction, the jury may speculate as to what was said in the indecipherable and inaudible parts of the conversation. At attempt on the voir dire to identify where in the original transcript particular words or phrases were used, and what those words sounded like in the original Mandarin, was unsuccessful, not to say farcical. [8] The jury will not have the resources to choose between the translations and will not be in a position to determine whether the words in Mandarin that Mr Zhou says he heard were actually used. The acceptance of translations by Courts and juries involves a leap of faith in every case; but here the perils involved in the leap have been exposed.
Mr Quilter took me to parts of the prosecution brief that are not admissible because they disclose or imply, otherwise irrelevantly, that Mr Fan was involved in other incidents of an unsavoury or criminal nature. This included:
A statement of Weixi Wang (Exhibit VD12).
A statement of Jun Jia (part of Exhibit VDA).
A listening device transcript recorded 25 May 2017 (part of Exhibit VDA).
A listening device transcript recorded 26 May 2017 (part of Exhibit VDA).
The statement of Weixi Wang refers to an incident where Mr Fan, along with Mr Liu, approached him at a hotdog stand with Mr Liu and assaulted him. Mr Liu was armed with a knife. The incident seemed to be motivated by a gambling debt owed by Mr Liu to Weixi Wang.
The statement of Jun Jia includes reference to an incident involving Mr Liu and Yixi Wang (presumably a reference to Weixi Wang). That incident occurred about 3-4 months before the 1 February 2017 and involved Mr Fan (referred to as "Michael") and a person called "Ling Ling". The motivation is unclear but the men were fighting and a gun was produced and discharged by Ling Ling who was in company with "Michael" (Mr Fan) and Mr Liu.
[5]
Some authorities
In R v Taranto; R v Freeman [1999] NSWCCA 396 the Court considered evidence of consciousness of guilt when the accused avoided his home after the alleged commission of an offence of malicious wounding with intent. The applicant said his conduct was explicable by the fact that he faced unrelated charges of goods in custody and possession of drugs and guns. The trial Judge admitted the evidence in spite of the fact that he was placed in a position where he may be required to adduce evidence of other criminal conduct in order to explain his behaviour. Hidden J held at [48] - [50] that it was "open" to the trial Judge to admit the evidence. The Court ordered a retrial and Hidden J said at [50] that if the same objection was taken at the re-trial "it would be a matter for the trial judge to determine [admissibility] in the light of the circumstances that he or she finds them".
Similarly, in R v Power (1996) 87 A Crim R 407, evidence of flight overseas was admitted even though the accused presented a "credible explanation" for the flight, namely that they were "panicked" when advised the police were suspicious that they were involved in a series of bank robberies. The Court of Criminal Appeal of South Australia upheld the trial Judge's ruling on the basis that such evidence was admissible despite there being another credible explanation for the conduct.
In R v Bridgman (1980) 24 SASR 278, a trial Judge excluded evidence that an accused person absconded from bail shortly after the events giving rise to the charges. The reason was that the accused also faced the prospect of serving ten months imprisonment which constituted the balance of parole on an existing sentence and would be required to elicit prejudicial evidence to explain his flight.
These authorities, and others, were considered in R v Cook [2004] NSWCCA 52. That case also involved evidence of flight. Mr Cook was convicted of threatening to inflict grievous bodily harm with intent to have sexual intercourse. His explanation for taking flight was that he was on an apprehended domestic violence order, had been sentenced for a breach of that order and was under suspicion for a further breach. The breaches involved assaults against a female complainant. Simpson J (as her Honour then was) explained at [32]:
"The prejudice to the appellant is plain. Not only would his explanation expose him as a person with a criminal record (the assault and the previous breach), it would also expose him as a person with a history of violence against women. In the context of the charge he faced, that exposure would have particular poignancy."
[6]
Resolution
I do not accept the proposition advanced by the Prosecutor that the accused must demonstrate that the prejudice involves eliciting evidence of "offences with a disturbingly close relationship to the offence with which he is charged." [9] While that expression was used in R v Cook, and referred to in Decision Restricted (at [113]), it is not a legal test but rather a description of the evidence in question in the former case. Further, the evidence in Cook did not involve identical offending and the offence with which the accused was charged was far more serious than the incidents he was required to prove if he was to explain his flight.
In the present case, the evidence in the statements of Jun Jia and Weixi Wang does involve criminal conduct of a similar kind to that now charged against Mr Fan. The incidents in question involved the use of weapons (a knife in one case and a gun in the other) and a strong suspicion of gang related stand-over tactics. One of Mr Fan's current co-accused, Mr Liu, was involved in those incidents. The danger of unfair prejudice is real and substantial.
Further, as I have explained, the probative value of the evidence is diminished by the mysteries surrounding what words were actually spoken and what those words truly signified.
I am satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to Mr Fan. The evidence "must" be excluded under s 137 of the Evidence Act.
I am further satisfied that the probative value is substantially outweighed by the danger that that the evidence may be misleading or confusing. Even if s 137 was not engaged, I would exercise the "general discretion" in s 135 of the Evidence Act to reject the tender of the evidence.
[7]
Ruling
For those reasons, the listening device recorded on 4 May 2017 at 00:52:15 under warrant SD 17/0185 is inadmissible.
[8]
Endnotes
Transcript (T) 21/08/2020 pp 566-567.
T 21/08/2020, pp 554 - 555.
T 21/08/2020, pp 557 - 558.
The third definition of "carried" in the Online Urban Dictionary is in the following terms: "someone is 'carrying' when they have a weapon, in most cases a gun, on their person. It is normally only applied to a weapon that has been concealed."
T 24/08/2020, pp 566-568.
T 24/08/2020, p 576.
T 24/08/2020, p 577.
T 21/08/2020, pp 562 - 564.
T 24/08/20, p 582.
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Decision last updated: 25 November 2020
The listening device recorded on 4 May 2017 at 00:52:15 under warrant SD 17/0185 is inadmissible.
Mr Quilter drew attention to the many variations and inconsistencies that can be identified in the two translations. The Prosecutor submitted that the critical details are more or less the same and that the conversation is capable of being construed as an admission by Mr Fan of his involvement in the shooting on 1 February 2017.
In re-examination, he was asked to explain this evidence: [3]
"Q. Sir, you were asked about the portion of your transcription where you have the words 'that's why all carried', and an alternative translation of that was put to you of 'that's why they brought everything along, right'. You said that that second version was acceptable, but you chose not to because you try to be more verbatim?
A. Yes.
Q. In what way do you say that your translation 'that's why all carried' is a more verbatim transcript of what was said?
A. Yes, I chose not to use that version - I am just - read out to me by the counsel because based on the context and right above there, when we went there, that means someone going from this direction, from this point to a certain point, to another point somewhere out there. Normally, you know, maybe I'm just too strict with grammar. We normally say if you take something from this point to another point, we tend to use 'take' or 'carry'. If you move something from the other point to where you are, we normally use the word 'bring'. So at the time, you know, I believed that it would be more appropriate to use the word 'carry' instead of 'bringing'. That was my, yeah, that was a discretion I exercised at the time. It was simply a technical issue."
The Prosecutor indicated his intention was to use Mr Zhou's translation ("that's why all carried") even when asked about the potential unfairness of such a potentially loaded expression. [4] It seemed the Prosecutor may have used the alternative translation - using a word like bring or brought - if the concern may have led to the exclusion of the evidence. [5]
Mr Zhou translated the conversation as including: "we went there, on that day … it was mainly to fix him/her up." It seems the same words were translated by Ms Xie as "we went there, didn't we? That day, right? That was to give, give him trouble". The Prosecutor submitted that these words essentially conveyed the same meaning and that either version betrayed "a state of mind consistent with a guilty participation in the common purpose that the Crown alleges". It was submitted the evidence was an admission concerning:
"Mr Fan's purpose in going to 5 Kennedy Street, that it was mainly to fix someone up, or, in terms of the other translation, to give him trouble." [6]
Mr Quilter conceded (correctly) that, in terms of drawing an inference that the conversation relates to the events at the so called "temple" on 1 February 2017, the Court must not, at the admissibility stage, consider whether any other inferences are open: cf, for example, R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at [159]-[160], [196]-[198]. However, Mr Quilter submitted:
"[i]t is proper to recognise these limitations in the 'real probative value of the evidence' (IMM at [50]). Such limitations remain even if one disregards alternative interpretations of the recorded conversation."
The Prosecutor relies on the general proposition that the authorities - including IMM itself - insist that, for the purpose of determining admissibility, the evidence is to be taken at its highest and the determination is to be made on the basis that the evidence will be accepted. The Prosecutor seemed to suggest that the "foggy night identification of a stranger" referred to in IMM was essentially limited to identification evidence because such evidence has a "very particular set of concerns and drawbacks and weaknesses. This isn't identification evidence." [7] However, in the present case, due to the infelicities and uncertainties surrounding the translations, the same kinds of questions arise. Just what does the evidence - "taken at its highest" - establish that Mr Fan said to the unidentified male? What words and phrases did he actually use? Did he say he (or they) were going to "make trouble" or did he evince an intention to "fix him up"? And just what do those expressions portend in Mandarin or, once translated, in English?
It might be thought that there is some internal tension in the decision in IMM. It seems difficult to reconcile the result (that the evidence is inadmissible) with the principle that the assessment of probative value proceeds on an assumption that the evidence will be accepted. If it is assumed the jury will accept the evidence, how does the source of the evidence (in that case, the complainant) matter? Even so, the High Court made it clear that taking the evidence at its highest does not involve a complete abandonment of an assessment of matters that may lead to a conclusion that the highest level to which the evidence goes may "not be very high at all".
While the listening device evidence under consideration here has some capacity to impact on the assessment of the facts in issue - and in particular, Mr Fan's state of mind - I am satisfied that the deficiencies and complications in the translations do, in the circumstances, impact on its probative value. I can see no difference in principle between the circumstances arising here and the foggy night identification of a stranger referred to by the High Court in IMM.
Even so, the evidence retains a capacity to impact on an assessment of the facts in issue. It is relevant evidence. However, its probative value as an admission is not particularly high. The admissibility of the evidence turns on an assessment of the "danger of unfair prejudice" (s 137 of the Evidence Act) and the extent to which the evidence "might" be "misleading or confusing" (s 135 of the Evidence Act).
The two listening device recordings (commencing respectively at pp 214 and 249 of Exhibit VDA) capture Mr Fan discussing those, and possibly other, similar incidents. The discussions suggest that Mr Fan was involved in at least two nefarious incidents seemingly unrelated to the events giving rise to the allegations made against him and his cohorts in the current trial.
The prosecution will not lead the relevant parts of the statements and listening device recordings in the trial, presumably because they are not relevant and would create unfair prejudice.
Mr Quilter submits that if the translated listening device recording of 4 May 2017 is admitted, Mr Fan will be forced into the position where he will be required to adduce this kind of evidence to establish the possibility that the conversation with the unknown male had nothing to do with the 1 February 2017 shooting. He says the admission of such evidence would create incurable and unfair prejudice.
Having considered the authorities, her Honour observed at [47].
"In my opinion none of the authorities to which reference has been made support the proposition advanced on behalf of the appellant. There is no general principle that, when the explanation for flight involves revealing other offences, the evidence should be rejected. Indeed, it is part of the conventional direction in relation to evidence indicative of a consciousness of guilt (whether of lies, or flight, or otherwise), that the jury be alerted to the possibility that the accused person has undertaken that course of conduct by reason of consciousness of guilt, not of the offence charged, but of some other offence or discreditable conduct."
However, Simpson J concluded at [49] that the evidence was "wrongly admitted" in Mr Cook's trial. This conclusion was explained at [48]:
"The admission of the evidence put the appellant in an awkward position. His response to the evidence not only disclosed previous criminal offences, it disclosed criminal offences with a disturbingly close relationship to the offence with which he was charged. That the evidence would have a prejudicial effect is clear. The appellant's explanation, although disbelieved by the trial judge (and disbelieved in terms forcefully expressed) was not, in my view, incapable of belief by a jury. The appellant had gone to Ms Bruen's home in the early hours of the morning, while she was in bed, and joined her, uninvited, in her bed. Whatever he said to police about his state of mind with respect to the currency of the ADVO, it was then undoubtedly still current. His attendance at the house put him in breach of it, and having regard to the circumstances, in serious breach. It remains to be determined whether the prejudicial effect of the evidence was unfair. Bearing in mind the substance of the charge the appellant faced, and the nature of the evidence he would have to adduce in order to meet the flight evidence, I have come to the conclusion that the prejudicial effect was unfair, and that it outweighed the probative value of the Crown evidence. In this regard, it cannot be overlooked that the decision to admit the evidence may well have been a factor in the consideration of whether the appellant was to give evidence or not."
In Decision Restricted [2016] NSWCCA 92, the Court was concerned with admissions made by an accused to the complainant in "pretext" calls recorded by investigators. The accused argued that the evidence should be excluded because he was required to explain the admissions by reference to "past allegations of unspecified conduct by the complainant's sister" (at [114]). Schmidt J held at [115] that the conversations had "real probative value" and that while "their receipt would be prejudicial, as would any other evidence which tends to establish the respondent committed the offences charged, it would not be unfairly prejudicial".
These cases demonstrate that the admissibility of such evidence will turn on the peculiar circumstances of each individual case, an assessment of the probative value of the evidence and of the potential for the evidence to cause unfair prejudice. Two propositions are clear. First, the fact that there may be some other plausible explanation for the evidence is not sufficient to justify the exclusion of evidence that is probative of guilt. Second, the evidence may still be admissible even if the accused is forced to elicit otherwise inadmissible evidence in order to explain the conduct in question. However, there may be cases where the prejudice is so great that the evidence must be excluded.