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[2007] QCA 113
Court of Appeal (Qld)
2007-04-05
Williams and Holmes JJA and Mackenzie J, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Liu [2007] QCA 113
PARTIES: R v LIU, Wei Shan (appellant)
FILE NO/S: CA No 354 of 2006 / DC No 2049 of 2006
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Southport
DELIVERED ON: 5 April 2007
DELIVERED AT: Brisbane
HEARING DATE: 8 March 2007
JUDGES: Williams and Holmes JJA and Mackenzie J / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: 1. Appeal allowed 2. Re-trial ordered
CATCHWORDS: Criminal law – Evidence – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where the appellant was involved in cheating while playing the card game mini-baccarat at a casino – where the appellant was convicted of fraud after a trial – where at trial, pursuant to a pre-trial ruling, an expert witness was permitted to give evidence regarding the game of mini-baccarat and also the significance of hand movements made by the appellant whilst playing the game – whether the opinions went beyond the boundaries of expert evidence – whether the opinions went beyond what was permitted in the pre-trial ruling / Criminal Code Act 1899 (Qld), s 590AA / Clark v Ryan (1960) 103 CLR 486, considered / R v Griffith [1995] QCA 159 ; [1997] 2 Qd R 524, cited / R v Beattie (2001) 127 A Crim R 250, cited / R v Hanson [1995] QCA 385 ; CA No 6 of 1995, 29 August 1995, cited / R v CL Lam, Truong, Duong and VT Lam [2001] QCA 279 ; (2001) 121 A Crim R 272, applied / Shepherd v The Queen (1990) 170 CLR 573, considered / Smith v The Queen (2001) 206 CLR 650, cited
COUNSEL: P J Davis, with M J A Dight, for the appellant / R J Pointing for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent
WILLIAMS JA: The background to this appeal is fully set out in the reasons for judgment of Holmes JA which I have had the advantage of reading.
In addition to the passages from the evidence of Tootell quoted by her Honour I would add that on a number of occasions in the course of his evidence he said that something he observed on the video was “consistent with the fact that he had a card concealed under that hand.” Further, in answer to a question during evidence in chief (again with reference to what was seen on the video) he said:
“Throughout that occasion in my opinion Mr Zhao's hand actions give him the opportunity consistent with the fact that he has a card concealed under his hands and throughout that period of time again his actions are consistent with giving the opportunity and are consistent with him actually concealing cards under his hand and swapping cards with a card that he has concealed under his hand.”
I agree with Holmes JA that in the passages quoted in her reasons, and in the passage I have just referred to, the witness Tootell went beyond what was admissible expert evidence and transgressed into the province of the jury. Because of that, for the reasons given by Holmes JA and Mackenzie J, the conviction must be set aside and a new trial ordered.
But in my view it is not necessary to determine the validity of the totality of the pre-trial ruling in order to dispose of the appeal. The pre-trial ruling, which was applied by the learned trial judge, was to the effect that Tootell could give evidence as follows:
“4.3In response to the specific areas identified … Mr Tootell's evidence whereby he identifies the hand and other bodily movements of defendants (particularly Mr Zhao) that form the basis for his opinion that an extra card was available for use is admissible.
4.4 … Mr Tootell is entitled to comment that in his experience:
(i) that specific conduct is unusual;
(ii) that in his opinion there was an opportunity for a card to be swapped (introduced) and when and how this occurred;
(iii) that the hand movements of Mr Zhao provide the opportunity for card swapping and are consistent with card swapping;
(iv) that these hand movements of Mr Zhao at the relevant times are different to hand movements on other occasions;
(v) to explain, based on his understanding of the game of baccarat, how an added card would impact on the game and the chances of controlling the results of the game.”
The ruling would have permitted Tootell to give evidence that specific conduct was “unusual” (4.4(i)). Significantly a search of the evidence of Tootell discloses that he never described any conduct of Zhao as “unusual”. But, in my view, in an appropriate case it would be permissible for an expert on the game of mini-baccarat to give evidence that the conduct of a player was “unusual”. It would often be beyond the normal experience of jurors to evaluate the significance of specific conduct of a player. For that reason I would prefer to say that in certain circumstances expert evidence could be led that specific conduct was unusual; but the evidence here did not come within the ambit of that. However, in saying that I agree with the observation of Mackenzie J that in most cases it should be possible to limit the ambit of admissibility by using more precise terminology appropriate to the facts of the particular case.
Further, in my view, there could well be situations where an expert in the game of mini-baccarat could give an opinion as to where, in the course of the game, there was an opportunity for a card to be swapped or introduced; such could be justified relying on paragraph 4.4(ii) of the ruling. Such consideration may, in certain circumstances, provide a basis for the reception of expert evidence. But again that does not apply here; the evidence of Tootell went well beyond that.
It is difficult to see that the tests formulated in paragraph 4.4(iii) and 4.4(iv) could justify the reception of expert evidence. Normally a jury would be able to determine whether hand movements differed and whether hand movements were consistent with card swapping. But the question would have to be answered on the facts of each particular case. It is sufficient to say that in this case those considerations do not justify the receipt of the evidence of Tootell.
For the reasons given by Holmes JA paragraph 4.4(v) does provide a basis in this case for the receipt of expert evidence, but the evidence of Tootell went beyond what was permissible.
For those reasons in my view it is not necessary to rule finally on the ambit of admissibility of expert evidence where cheating in a card game is alleged; that could only be determined on the facts of the case in question.
But because the evidence of Tootell went well beyond the proper limits of admissibility of expert evidence in this case there has to be a retrial. I agree with the order proposed.
HOLMES JA: The appellant was one of five accused convicted of one count of fraud after a trial; a sixth accused was acquitted. The Crown case was that while playing a card game, mini-baccarat, at Jupiter’s Casino, the group had cheated in a way which involved the introduction of an extra card. As the result of a pre-trial ruling, an expert witness, Mr Tootell, was permitted to give evidence both as to the game generally and as to the significance of various hand movements made by one of the accused, Shangtao Zhao. The appellant appeals on the grounds that the ruling was wrong: it permitted Mr Tootell to give opinions beyond the boundaries of expert evidence; and in any event what he said went beyond what was permitted by the ruling. It was also said that a miscarriage of justice occurred because a police officer, in the course of his evidence, expressed the opinion that Mr Zhao had an extra card under his hand. Other grounds of appeal concerned whether the accused persons’ possession of an extra card was an indispensable intermediate fact requiring proof beyond reasonable doubt; whether there should have been a direction as to the possible misappropriation of a genuine casino card as an uncharged act; and whether certain comments on the evidence made by the learned trial judge in the course of his summing up produced unfairness. The last three grounds were not strongly pressed.
The Crown case
The Crown led evidence about the game of mini-baccarat as played at the Casino. It involved betting on one of two hands, that of the player or that of the banker. Each hand was dealt from a container called a “shoe”, which held eight decks of cards. Two cards were dealt to each of the banker and the player; depending on their face value, another card might also be dealt. The winning hand was that which was closest in value to nine. There were three possible bets: on the banker, on the player or on a tie. The person placing the highest bet on the player’s hand was entitled to take the player’s cards and turn them over, or “squeeze” them, as it was called. The Crown case was that Shangtao Zhao, by consistently placing the highest bet on the player’s hand, got the opportunity of being able to squeeze each hand. He used his fleeting possession of the cards to replace one of them with a substitute from time to time, in such a way as to ensure that in the course of 21 hands, the player hand did not win. Meanwhile, others in the group were betting on banker and did win; in total, the Crown alleged, some $765,000.
On the Crown case, members of the group had attended the Casino in the early hours of the morning of 17 May 2005 and during a session there had been able to abstract a genuine casino card, probably the two of spades. Somehow they had managed to replace it with a substitute of sufficient quality to escape detection during the Casino’s fairly rigorous procedures of checking all used cards. At around midday on the 17th they returned to the Casino and again engaged in playing mini-baccarat. On the Crown case, after a period of play, Zhao moved the spare card on to the table, concealed under his left hand. From that point on, each time a hand was played he had a spare card which he could choose to use or not use. If he were dealt a losing hand (that is, the two cards did not bear a face value close to nine), there was no need to make any substitution; but he could, if necessary, move the two cards dealt under his left hand and take the opportunity to replace one of them with the card he was already holding. To ensure that the stratagem was not detected, however, it was necessary by the end of the gambling session to ensure that a card of equal value and suit to that introduced was removed. Part of the Crown case was that such a card was found among the possessions of one of the group when they were apprehended at the airport en route back to Hong Kong.
The pre-trial ruling
Mr Tootell, the Crown’s expert witness, was described as “Assistant Manager of Surveillance” at the Casino. He explained that he had been trained in game rules and procedures as well as in using video surveillance to monitor Casino activities. He had also attended a number of training sessions and seminars on “cheating and game protection”. On 17 May 2005 he had reviewed the video footage of the mini‑baccarat game in which the accused were involved, and formed certain conclusions. (It seems to have been as a result of his conclusions that the accused were apprehended at the airport on their way back to Hong Kong.)
At a pre-trial hearing under s 590AA of the Criminal Code Act 1899 (Qld), there was argument as to the admissibility of Mr Tootell’s evidence. The learned judge who made the ruling (who was not the trial judge) relied on R v CL Lam, Truong, Duong and VT Lam,1 a case which also involved allegations of cheating at mini‑baccarat. In Lam, this Court held that a casino employee occupying a position very similar to that of Mr Tootell was properly regarded as an expert in the rules and procedures of mini-baccarat and in video surveillance of gaming. Accordingly, he was permitted to give evidence to assist the jury to “understand the actions of players and the significance of various actions that were taking place in each of the relevant games”.2
The learned judge on the s 590AA hearing summarised what he regarded as the evidence thus admitted in Lam:
“[the expert’s] opinion of the identity of the particular cards; the value of the chips that were placed as bets; the significance of various actions that were taking place in each of the relevant games (see (Lam) para 43), for example the type of movement consistent with secreting a card, that is the subtleties of the play (see (Lam) para 79); and the attribution of particular bets to particular players (see (Lam) paras 43 and 78.) “.
Drawing on what was said in Lam, Mr Tootell as an expert was entitled, the learned judge concluded, to explain the nature of the game. But there might be “subtle movements of the hand or other conduct”, which were not in conformity with the game’s rules; which were consistent with cheating. So, he said, while the expert could not swear the issue, “the effect of subtle movements may necessitate the jury being informed of their effect in such a game”.
“4.3In response to the specific areas identified … Mr Tootell's evidence whereby he identifies the hand and other bodily movements of defendants (particularly Mr Zhao) that form the basis for his opinion that an extra card was available for use is admissible.
4.5 … Mr Tootell is entitled to comment that in his experience:
(i) that specific conduct is unusual;
(ii) that in his opinion there was an opportunity for a card to be swapped (introduced) and when and how this occurred;
(iii) that the hand movements of Mr Zhao provide the opportunity for card swapping and are consistent with card swapping;
(iv) that these hand movements of Mr Zhao at the relevant times are different to hand movements on other occasions;
(v) to explain, based on his understanding of the game of baccarat, how an added card would impact on the game and the chances of controlling the results of the game.”
The expert’s evidence
At the trial, while the jury watched the video footage of the game, Mr Tootell gave evidence explaining various aspects of it: the exchange of cash for chips, the placing of the bets, the dealing of the hands, the squeezing of the cards and which hands won. (Appropriately, the defence took no issue with the giving of any of this evidence.) Interspersed with this running explanation were exhortations to the jury to pay attention to certain hand movements by Mr Zhao. In practical terms it was desirable that the jury be alerted to the actions which the Crown said was of significance; but it would have been better if the function of pointing them out had been left to the prosecutor. What was being said was of the nature of submission, not evidence. But that was not the subject of the appellant’s complaint; rather it was that Mr Tootell, consistently with the pre-trial ruling, went further and drew conclusions from his observations on a number of occasions.
The first such set of comments related to the earlier session at the Casino at which, on the Crown case, the casino card was stolen for later use and replaced with a counterfeit:
“If we could just pause it there. Now, from the footage that you view and the observations you made of his hand movements at various times, are you able to comment on what you observed on that footage? -- Yes, in my opinion the hand actions by Mr Zhao over those three occasions, his hand actions give him the opportunity and are consistent with him having a card under his hand as he appears to slide his hand on to the table and then later on slide it off. Now, also at the end of that footage at 00.42 and 14 seconds the hand actions by Mr Zhao are again giving him the opportunity and are consistent with the fact that the card that he has under his hand he receives the two cards from the dealer and places – appears to place those cards fully concealed under his left hand before giving the cards back to the dealer. So those actions again give him the opportunity and are consistent with him actually swapping the card under his hand with one of those two cards that the dealer gave him.
The two cards that were handed back after that were a two ---? --- Were a two and a 10, so in my opinion if he did actually – if he did actually swap the card, then it would either be a two or a 10 that he has actually swapped into the game.”
He was asked to elaborate:
“You told us that in your view it provided the opportunity consistent with. On what did you base that opinion? -- Sorry, based on his hand actions that I observed and through my experience and knowledge of cheating.
What specific hand actions did you rely upon? -- The specific hand actions I relied upon were the way in which he brought his hand on to the table in the first place, his hand actions throughout that period of play until he takes his hand back, and then specifically the – at 00:42:14, I based my opinion on again the hand actions of how it appears that he has concealed the cards the dealer gave him completely under his left hand before bringing them back out and giving them back to the dealer.”
“Now, on referring to the period between 12:25:30 and 13:18:41 are you able to comment upon the actions of Mr Zhao on occasions when he squeezes the cards or turns the cards? -- Yes. Throughout that occasion in my opinion Mr Zhao’s hand actions give him the opportunity consistent with the fact that he has a card concealed under his hands and throughout that period of time again his actions are consistent with giving the opportunity and are consistent with him actually concealing cards under his hand and swapping cards with a card that he has concealed under his hand.”
……..
Mr Tootell, again I am referring to the period between 12:25:30 and 13:18:41. Are you able to comment on Mr Zhao’s head movements on occasions during that period? -- Yes, I am. Throughout that time there was a number of occasions where I have observed in the footage the head movements displayed by Mr Zhao and the hand movements at the same time, in my opinion give him the opportunity and are consistent with viewing – looking at a card under his hand.”
That matter was taken up again later:
“Before lunch when I asked you about the period between 13:18:41 and – sorry, 12:25:30 and 13:18:41 you expressed the opinion that throughout that period Mr Zhao’s hand action gave him the opportunity and was consistent with the fact of a card being concealed under his hand and throughout that period his actions were consistent and gave him the opportunity and were consistent with him actually concealing cards under his hand and swapping cards with the card that he had concealed under his hand. Can I ask you to explain to the Court on what you base that opinion ? -- I base that opinion on the videotape footage that I viewed. Now, like the video footage that we have already viewed, I have viewed that probably close to 50 times, evaluated different parts of that footage, looked at his hand actions, everything that has occurred on the table, and from that I formulated that opinion.
Okay. So what specific hand actions did you observe that were telling in your perspective ? -- Well, the main hand actions were his hand actions in regards to his left hand, the way that he actually brought that hand out on to the table and what he did with it while it was on the table until he actually took it off the table.
If you could just be more specific as to what you saw on the videotape him doing with his hand at that time? -- What I saw.
What it appeared to you that he was doing with his hand? -- okay. Well, it appeared to me that he was - had his - well, he had his hand in the position face down. Okay. As far as the use of his left hand, all the actions as far as he pulled his hand onto the table, the way he had it face down, that again is – gave him the opportunity and was consistent with the fact that he had a card concealed under that hand.
Okay. So the movements of his left hand? -- It is all the movements, that’s correct.”
Whether Mr Tootell’s evidence was wrongly admitted
Counsel for the appellant argued that the pre-trial ruling was wrong, because it went beyond anything contemplated by Lam, and that, in any event, in giving opinions based on his “experience and knowledge of cheating” Mr Tootell exceeded the bounds of the expertise recognised by the ruling.
In Lam, there was reference to two forms of relevant expertise: in the rules and procedures of mini-baccarat and in video surveillance of gaming; but the demarcation between the two was not explored to any extent. It is difficult to see that the second form of expertise could produce much in the way of relevant opinion in this context. Mr Tootell’s expertise in video surveillance might permit him to give evidence of how such footage is taken and to explain such matters as camera angles, but it could not qualify him to give evidence as to the content of the footage unless he possessed some necessary expertise in its interpretation. He did possess expertise of the first kind, in the rules and procedures of the game, on the strength of which it was permissible for him to explain what was happening in terms of the progress of the game at any given time.
However, the evidence given here went beyond that, or anything described in Lam. In Lam, the stratagem which enabled cheating occurred when the croupier, who had been bribed, carried out a “false shuffle” of the cards. The players in the know acted accordingly. It was not necessary for them to make any particular physical movements other than those ordinarily involved in the game. The purpose of the expert’s evidence was to assist the jury to “understand the actions of players and the significance of various actions which were taking place in each of the relevant games”; but that was in terms of how the game proceeded, not in some attempt at explaining the players’ individual gestures. Rather, it involved explaining the betting process, identifying the cards and the value of the chips, and attributing bets to particular players. The expert was entitled to give it as a person familiar with the “basic rules and the subtleties of play”; but it was not suggested that those subtleties extended to concealment of cards or suspicious physical movements.
In the present case, the ruling went much further, enabling Mr Tootell to identify “specific conduct” as “unusual” and to comment on certain physical movements. In some circumstances it might be permissible for an expert to say that a player’s conduct is unusual, in the sense that it does not fall within the parameters of the game; but these were simple bodily movements by Mr Zhao. They were as visible to the jury as they were to Mr Tootell. The jury was as well placed as he to assess whether Zhao had the opportunity to conceal a card and whether at any given time he was doing so. Mr Tootell’s evidence in the passages quoted was not expert opinion evidence. It consisted of observations and interpretations which were equally available to the lay person. It constituted “an attempt to guide the jury upon matters which it was within the ordinary capacity of jurors to determine for themselves”.
Conclusion
The pre-trial ruling was wrongly made except in respect of the matter at 4.4(v), the evidence as to the effect of an additional card. It was permissible for Mr Tootell to explain how an added card could have an impact on the game; that was part of his general expertise in how the game worked. But Mr Tootell’s evidence that the hand actions of Mr Zhao were consistent with his having the opportunity of introducing or using another card was wrongly admitted. Although the learned trial judge’s directions to the jury were proper in instructing them that they must consider the contents of the surveillance tapes for themselves, it is not possible to conclude that no miscarriage of justice has occurred. The jury saw the video tape for the first time with the accompanying interpretation of Mr Tootell; one could have no confidence that it did not have an impact on their view of it.
Only two of the other grounds of appeal require some brief comment. As to the uncharged act direction, Counsel for the appellant came to the view, in the course of submissions, that since the taking of the casino card for use in the fraud was itself a part of the fraud, it was inappropriate that it be directed on as a distinct uncharged act. (In any event it is difficult to imagine, in the circumstances of this case, that a direction on misappropriation of a casino card would have assisted any of the accused.) As to the question of whether a Shepherd4 direction was required, there seems to have been some confusion between whether proof that the accused were in possession of an extra card was essential to the Crown case, which it was; and whether it was essential for the Crown to prove that a casino card said to have been found in the possession of one of the accused at the airport was the very card, which it was not. The second, accordingly, did not fall within the category of an indispensable intermediate fact requiring proof beyond reasonable doubt. The first required proof beyond reasonable doubt, not as an intermediate fact but as an ultimate inference of guilt; it was part of the very fraud which the jury was asked to find.
I would allow the appeal and order a re-trial.
MACKENZIE J: The circumstances from which this appeal arises and relevant passages of evidence are set out in the reasons of Holmes JA, supplemented in Williams JA’s reasons. I agree that, in those passages, the witness Tootell gave evidence that was not expert evidence and that the appeal should be allowed. I wish to add some additional comments in support of that conclusion and the difficulties in confining the evidence within proper bounds in cases of this kind.
With the consent of both parties, sufficient of the video footage, especially of the evidence relied on as important to the prosecution case, was viewed to allow the court to understand what the jury would have seen and whether they would have been assisted by expert evidence. That question is of some importance because the point at which an expert is in no better position than the jury to assess the evidence is critical to the scope of evidence that may be given about events recorded on a video by a person watching it ( (1960) 103 CLR 486; (2001) 206 CLR 650; [1995] QCA 385; [1997] 2 Qd R 524; (2001) 127 A Crim R 250).
R
Liu
(1960) 103 CLR 486
(1990) 170 CLR 573
(2001) 206 CLR 650
If the evidence given as an opinion is no more than an expression of an inference that the jury could draw themselves from their own observations, the evidence is not admissible as expert evidence. The reason why evidence of someone’s opinion of what is to be deduced from a video in the present kind of case is not admissible is that, if the person is represented as having familiarity with the subject matter of the opinion, it carries with it the inherent danger that the jury will be influenced by the person’s evidence in forming a conclusion which should, in principle, be theirs alone to form. Where the line is to be drawn between admissible evidence and inadmissible evidence is inherently difficult in this kind of case. It is therefore not possible to treat it as an abstract question. The answer necessarily depends on the factual matrix of the case as understood at the time the preliminary ruling is made, or at the time the evidence is to be led in the trial if, for special reason, the trial judge gives leave to reopen the ruling (s 590AA(3)).
The scope of the evidence that the witness Tootell would be permitted to give as an expert had been the subject of a s 590AA hearing in which a ruling had been given by a District Court judge who was not the trial judge. Submissions were addressed to us as to whether the evidence given went beyond the terms of the ruling, even if Mr Tootell was qualified as an expert. The other aspect of the matter was whether some categories of evidence that the ruling allowed him to give was expert evidence.
With regard to the focus on the terms of the pre-trial ruling and the evidence given in reliance on it, it may be observed that merely exceeding the limits of what the ruling allowed the witness to give would not inevitably require the appeal to be allowed if the evidence given was, notwithstanding the ruling, admissible as expert evidence or was so inconsequential as to lead to no substantial miscarriage of justice, if it was not. However, on any view of this matter, neither of those propositions can be of assistance to the respondent in this case.
The video evidence shows that on some occasions Mr Zhao, whose conduct was alleged to be fraudulent, and of whom the appellant was allegedly an associate, placed his hands together in a way that, according to Mr Tootell, afforded him the opportunity to swap cards and was consistent with card swapping. On other occasions, no actions of that kind were performed. The relevant passages of his evidence are reproduced in the judgments of Holmes JA and Williams JA. Mr Tootell did not draw the jury’s attention to any visual evidence that cards were actually swapped on any occasion.
A person experienced in observing a game of the relevant kind being played could explain the nature of the game to the jury, and interpret things such as how much and on what individual players were betting and other “subtleties of play” that laypersons would not be familiar with (R v CL Lam, Truong, Duong and VT Lam [2001] QCA 279; (2001) 121 A Crim R 272). If he could identify some action that was clearly outside the rules of the game and it would not be within the knowledge of jurors, he could give evidence of that fact. I should say in passing that it is doubtful whether it is helpful to employ the ambiguous notion of “unusual conduct” in describing the ambit of the expert’s evidence with regard to actions performed by a person. More precision of expression should be achievable by reference to the evidence in individual cases. With regard to the admissibility as expert evidence of description of bodily movements of an accused, the example of a person, suitably qualified as an expert in legerdemain, who could identify how a breach of the rules by substituting cards was being committed in a way not identifiable by a layperson, but observable by him from observing the accused’s actions recorded on a tape of the game, was raised during argument by way of contrast with the extent of the evidence that Mr Tootell gave.
In my view, the difficulty about admissibility of the evidence identified by Holmes JA, and in the additional passage identified by Williams JA as going beyond the limits of expert evidence is that it would have been within the capability of the jury to see, on occasions, hand movements that brought one hand in contact with the other in a way that someone might by sleight of hand introduce another card into the game. It would be within the jury’s capability to see that on many other occasions, the hand movements performed were incapable of enabling that to occur. It would also be within the capacity of the jury to decide, without evidence from someone who had also viewed the tape, whether, at times, Mr Zhao was apparently glancing down to look at cards.
One other matter of complaint by the appellant was that during the course of Mr Tootell’s evidence, while the tapes were running, the jury’s attention was drawn to certain actions being performed and certain features of the game. Sometimes, the Crown Prosecutor invited the jury to watch a portion of the tape that was about to be played by reference to the time imprinted on the tape and on some occasions Mr Tootell drew attention to what was relied on as suspicious conduct.
In a case of this kind it is essential that the jury be made aware of the nature of the evidence upon which the Crown wishes it to focus. It is the kind of case where aids such as particulars or a list of times at which matters relied on by the Crown occurred might usefully be prepared so that the jury has that information conveniently at hand. Where the case is essentially circumstantial, presumably the Crown would open its case in a way that explained the facts and circumstances from which it claimed that the inference of guilt could be drawn. As the tapes had the time of day superimposed on them, the jury could be told that the actions at certain times were those relied on and that the prosecution’s hypothesis was that cards were being substituted on those occasions when the allegedly suspicious hand actions were being performed. The jury would be invited to consider whether the accused’s movements were consistent with substitution and to draw the ultimate inference that that was what was in fact occurring.
The process in the present case, where the jury was told, as the tape was being played that a passage that the Crown relied on was about to be played, should generally not create a difficulty as long as there are no other factors that make it unfair or undesirable to do so. Usually, if an expert is required to explain the rules of the game and other matters properly within the province of an expert witness, he will ordinarily be giving that evidence at the time the recording is being played. Care should be taken to ensure that what the expert says is restricted to expert evidence and that any commentary does not go beyond appropriate limits.
In my view, since drawing the jury’s attention to incidents relied on by the prosecution, observable on the tape without the assistance of an expert witness, is really a submission, not evidence, it should ideally be the Crown Prosecutor who draws attention to those matters, which should minimise the risk of the expert inadvertently straying beyond what he may properly say, and of creating the impression that the witness is lending the benefit of his experience to the Crown’s hypothesis.
I agree that the appeal should be allowed and that a retrial should be ordered.