R v Peter Ream
Representation: Counsel:
Crown: T McDonald SC
Nguon: D Yehia SC
Ream: TDF Hughes
Source
Original judgment source is linked above.
Catchwords
R v Peter Ream
Representation: Counsel:
Crown: T McDonald SC
Nguon: D Yehia SC
Ream: TDF Hughes
Judgment (3 paragraphs)
[1]
Solicitors:
Office of the Commonwealth Director of Public Prosecutions
Nguon: Blair Criminal Lawyers
Ream: Speirs & Associates
File Number(s): 2011/3538552011/353931
[2]
Judgment
The accused, Linna Nguon and Peter Ream, stand trial on an indictment dated 3 June 2013 on one count each of attempted possession of a commercial quantity of border controlled drugs, allegedly being cocaine and methamphetamine.
The accused were arrested on 4 November 2011, along with 2 alleged co-offenders, at a warehouse at Newton St in Wetherill Park. The alleged co-offenders are Ben Faulkner and another man identified in these proceedings only as DB.
DB pleaded guilty at an early opportunity and was sentenced by Judge Norrish QC in or about April 2013. He gave evidence on the committal and it is proposed that he will give evidence in the Crown case in the present trial.
In broad summary, the Crown case is as follows. In or about late October a quantity of drugs, being approximately 24 kgs of cocaine and 27 kgs of methamphetamine were detected by authorities concealed in a tractor grapple bucket which had been consigned to a Fafiro Keo, who the evidence suggests is an associate of Ben Faulkner, from an address in Vancouver in Canada. The drugs were seized and replaced with an alternate, benign, substance and a listening device was also installed inside the grapple bucket, which was resealed so as to conceal the fact that it had been intercepted. The grapple bucket was then released from customs and was collected by Keo in a truck which had been hired by the accused Nguon from Camden Hire on 1 November 2011. The bucket was eventually transported to the warehouse in Wetherill Park. The truck was returned to Camden Hire by the accused Nguon on 4 November.
It is alleged that during the course of the afternoon of 4 November, the 4 co-offenders were all present from time to time at the warehouse. There were some comings and goings, but all four are said to have been present at the premises for a large proportion of the relevant time. Throughout that time, the warehouse was under police surveillance. That surveillance consisted primarily of a concealed video camera, located opposite the entrance to the warehouse, and the listening device which had earlier been installed in the grapple bucket.
The principal product of the surveillance was 3 mp4 files which resulted from the simultaneous recording of the video footage from the concealed camera and the audio signal transmitted from the listening device which had been hidden within the grapple bucket. The recording was tendered on the voir dire and played in court and is exhibit VD J.
The audio quality of that recording is poor. It picks up some of the conversation of those present at the warehouse that afternoon, a great deal of which, though audible, is indecipherable. Indeed, so much of it is indecipherable that it is frequently impossible to confidently attribute a proper context to some of what is discernible. Furthermore, the audio quality and the discernibility of the recorded speech is adversely affected by a variety of other factors. First, there is a multitude of what might reasonably be described as industrial sounds which are recorded, such as hammering, banging, drilling, motors starting and running and so on. Secondly, there are recorded sounds apparently emanating from a radio or television, possibly both, playing in the background. Thirdly, there is electrical or other interference which seems at times to disturb and break up the signal being transmitted from the hidden listening device. Fourthly, the warehouse is a large open space with a lot of hard surfaces and there is a degree of consequent reverberation. Fifthly, the voices heard on the recording are more or less audible at different times and it is reasonable to infer that each individual is moving around and is at different times more or less proximate to the listening device. An additional complication in sensibly analysing the content of the recording is that it appears that the hidden listening device is picking up sounds not only from within the warehouse where it is located inside the grapple bucket, but also from adjoining units in the complex within which the warehouse was located.
Notwithstanding the poor quality of the recording and the problems with it that I have outlined, there is sufficient discernible from the recording to effectively provide some corroboration of the evidence of DB concerning who was present and what was occurring in the warehouse that afternoon. It is abundantly clear, even on only one listening, that four people are present at the warehouse that afternoon and four distinct voices are heard at different times. It is also plain that considerable co-operative effort, predominantly on the part of the 3 males, was being directed to trying to gain access to the interior of the grapple bucket.
Tara Beckett, an officer of the Australian Federal Police (AFP), was at all material times the case officer for operation Copia, which was the police investigation into activities connected with the importation of the tractor grapple bucket. It seems the case officer is the AFP officer with the principal day to day carriage of an investigation, under the supervision of a team leader. For all practical purposes, Ms Beckett was the AFP officer in charge of the investigation.
On about 18 November 2011, Ms Beckett sent the 3 mp4 files from the surveillance of the warehouse to a Mr Graham Kinraid, who is currently employed within the AFP as Team Leader, Planning, Deployment and Systems but who was, at the relevant time in the position of Team Leader, in the AFP Audio-Visual Laboratory. His role involved working with, and supervising, a team of 2 others in audio and video signal processing. That is, using their training, skill and experience, with the aid a variety of technical equipment, to make recorded material playable in a common format or to provide some analysis or enhancement to improve its quality.
The request that Ms Beckett made of Mr Kinraid was in essence a request for him to "enhance" the audio recording from the surveillance. Mr Kinraid understood that what he was being asked to do was to make a general assessment of the audio files and come up with a solution intended to improve the quality of the audio, or the "listenability" as he described it. In more precise terms, the instructions which he said he received were to enhance the audio from the device in the warehouse in order to ascertain the involvement and discussion of all parties in the warehouse, paying particular attention to the female voice.
Mr Kinraid, who has qualifications as a radio technician and an engineering certificate, and many years experience in this work in Australia and New Zealand, prepared two statements and gave additional oral evidence explaining the nature of his efforts in "enhancing" the audio recording from the surveillance. Those statements, dated 17 September 2013 and 18 March 2014 are marked Exhibits VD K and VD L respectively. After he received the mp4 files from Ms Beckett, Mr Kinraid changed their format from mp4, which is a combined audio-visual file format, to a .wav file. Files in the .wav format are much larger files, thus apparently facilitating their manipulation, which are playable on most computers and compatible with the equipment in his section's laboratory. He then transferred those files to the laboratory's digital file storage, access to which is restricted to members of his team, so that he could work on them. The work that Mr Kinraid undertook was performed in the days leading up to 22 November 2011, at which time he emailed to Ms Beckett the product of his efforts, being the 3 .wav files that constitute what has been called the enhanced audio (Ex VD M).
The "enhancement" which Mr Kinraid achieved involved the digital manipulation of the audio files, in particular by the application of four different filters. The idea of the application of the filters is generally to reduce some of the sounds that may be masking conversations or otherwise making it difficult to hear those conversations. The selection of appropriate filters, from a range of tools that might be used, was done by a process of analysis of the problems that Mr Kinraid discerned with the unenhanced audio files.
The first filter which was applied to the audio file is called a de-click filter. A de-click filter is a computer algorithm which analyses a digital audio file to locate clicks and remedy their deleterious effect on the quality of the audio. A click is represented by very sharp rise times in the wave form of the sound, disturbing the otherwise smooth wave form. These clicks usually denote something in the nature of electrical interference rather than a natural phenomon such as speech or music. After locating clicks, the de-click filter seemingly smooths out the wave form, replacing the sharp rise with a continuous wave. Mr Kinraid said that the filter does not diminsh or affect speech.
The second filter applied by Mr Kinraid was an adaptive filter. It can be used in a number of different ways, but in this instance was used to try and ameliorate the large amount of reverberation that was present as a result of the listening device having been located in the large open space of the warehouse. Mr Kinraid said that after sound bounces off hard surfaces like walls, ceilings and concrete floors it is eventually picked up at the microphone some little time after the sound from the direct source is picked up by the microphone. This delay or echo makes the sound very convolved and the recorded voice sounds more complex. What the filter does is to make an estimation of what might happen in the future, so by a series of coefficients it locates a repeated noise as something that needs to be reduced. In essence, it filters out the the echo, or time delay, which results from large reverbertant space. As I understand it, this has the effect of "cleaning" the sound and simulating what would be heard if the source was directed only at the microphone, without the delayed repetition of the reflected sounds. Again, Mr Kinraid said that the application of the filter should have no deleterious effect on the spoken voice.
The third filter applied was a parametric equalization filter. It is intended to lower the amplification of annoying tones at particular frequencies, so as to reduce them to background noise. The filter does not have an effect on the speech sounds per se, nor does it remove them. It is intended to facililtate the listenability of recorded speech.
The final filter Mr Kinraid applied was a compression filter. This is a tool to improve the level of quiet background sounds when there are no louder sounds present. So, where there are large workshop noises in the foreground, for example, the filter sets those loud noises to a lower level with the net effect being that the volume of quieter noises is amplified so they are easier to hear, rather than being overpowered by the very loud sounds. The consequence of the combined application of this filter and the adaptive filter is that it could create an impression that the source of a particular sound is closer to the microphone than it is in fact.
Throughout the process of applying each of the filters, Mr Kinraid adopted a checking procedure which involved listening to the recording before and after each adjustment. It was as he described it a live comparison, which he was able to do with the click of a button. If there was the desired improvement in the quality of the audio the adjustment would be maintained. If not, it would be discarded and other adjustments would be attempted.
Throughout the voir-dire the mp4 recordings that were sent to Mr Kinraid were described as the "unenhanced" audio and the product which resulted from the application of his expertise, that is the .wav files, was described as the "enhanced" audio.
Whilst the enhanced audio is considerably easier to listen to, its quality and its capacity for meaningful analysis is still affected by some of the factors outlined in paragraph 7 above.
It was put to Mr Kinraid in cross-examination that the digital manipulation of the audio which he performed could result in alterations to the speech captured on the recording. He accepted that this was possible, but regarded it as a very remote possibility and unlikely to occur.
In the period 25 January 2012 to 20 February 2012, Adam Jones, another AFP officer who had by that stage been engaged on Operation Copia for approximately 6 months, spent some time preparing a transcript of the unenhanced recording. He originally estimated that he had spent 300 hours on that task. Later in his cross-examination he conceded it could not have been any more than about 135 hours at most and that he was unable to provide any certainty as to how much time was actually devoted to the task. His statement, and the transcript which his efforts produced which is annexed to it, are exhibit VD F. At the time he prepared the transcript Mr Jones had been an AFP officer for 4 or 5 years. He had no qualifications in speech science, acoustics or linguistics and had no training or qualifications in transcription. He had, at most, limited experience in transcription. He claimed to have transcribed telephone intercept recordings on 3 prior occasions. However, he had no recollection of when he had done this, or even the names of the associated operations.
Mr Jones said he watched and listened to the unenhanced recording twice before commencing his preparation of the transcript. Over that period of nearly a month in January and February 2012, Mr Jones listened to the unenhanced recording the whole way through about 4 or 5 times. Twice before commencing the transcript, twice after completing the transcript to check it and, presumably, possibly one other time. As he was transcribing it he also listened multiple times to various discrete, but unidentified, passages which he found difficult to discern. From time to time he collaborated with Tara Beckett and possibly others as to their opinion of these difficult passages. If their opinion differed from his he said his opinion prevailed and is reflected in the transcript. Ms Beckett's recollection was that she was consulted in this way roughly ten times by Mr Jones whilst he was preparing the transcript of the unenhanced recording. He seemed less certain as to how many times it occurred.
Ms Beckett has prepared two statements for the purposes of the proceedings. The first, dated 6 June 2012 (Ex VD G), had annexed to it a transcipt of the enhanced recording signed by her on each page. In her statement she attested to the accuracy of that transcript. I will in a moment explain the process by which that transcript was prepared. Her second statement was made on Saturday 15 March 2014, two days before the trial commenced, and some considerable time after the date fixed by the Court for service of the prosecution evidence. That statement (Ex VD H) had annexed to it two documents. The first was an amended version of the June 2012 transcript which had been prepared on about 14 and 15 March 2014. The second was a document in a tabular format which had in one column a version of Mr Jones' transcript of the unenhanced recording and in a column to the right of that a version of Ms Beckett's transcript of the enhanced recording. This amalgamated document had also been produced on about 15 March 2014 and was itself an amendment to an earlier document which took essentially the same tabular format and which I was told had been produced for some purpose connected with the commital proceedings (Ex VD N). It emerged in the course of her cross-examination that the version of the transcript of the enhanced recording which appears in the amalgamated document annexed to her March statement is different both to her June 2012 transcript and to the other transcript annexed to the March 2014 statement.
Ms Beckett's first transcript was produced in the following way. At some unidentified time after she had received the enhanced recording from Mr Kinraid in November 2011 she listened to sections of the enhanced recording. Prior to that, she had also listened to portions only (again unidentified) of the unenhanced recording for some purpose connected with bail applications, as well as those portions Mr Jones had asked her to opine upon. In addition, in her capacity as officer in charge of the investigation she had read the transcript produced by Mr Jones.
At some time which she could not specify, beyond estimating around April/May 2012, Ms Beckett sent the enhanced recording to Auscript. Auscript is an independent transcription service which has a contract with the AFP and from time to time transcribes for them listening device and other recordings, such as recorded interviews. Auscript completed a transcript of the enhanced recording which they provided to Ms Beckett. It is Ex VD 5.
After receiving the Auscript transcript, Ms Beckett listened to the enhanced recording and began preparing her own version of a transcript by making amendments to the Auscript transcript with the use of word processing software. This task commenced sometime on 5 June 2012 and was completed sometime on the following day. The transcript so produced is the one annexed to Ex VD G. In the course of making the transcript she estimates she listened to the recording twice through in its entirety, but also listened two to five times to some passages that were difficult to discern. Ms Beckett was unable to estimate how many hours she was engaged in this task and she has no records recording the time spent.
Ms Beckett described her process of deduction in attributing identity in the transcript to various speakers in the following way (at p 56.38 of the transcript on 26 March 2014):
Male 1, Benjamin Faulkner, he identified himself on the tape and he spelt his name out. Male number 2 was by deduction as he had called Male 3 "Peter" and then the only female that was in the warehouse was Ms Nguon and we could identify that through the video on the day of their arrest.
At some time after completing her first transcript in June 2012, and presumably prior to the commital in May 2013, Ms Beckett produced the first amalgamated document (Ex VD N) which contained in tabular form the transcript prepared by Mr Jones in the left hand column and her transcript of the enhanced recording in the right hand column. The first column in that document contains what has been described as a time-stamp for the unenhanced recording. That is, against portions of the transcript there is recorded the time of the day at which the various asserted passages of speech occurred. There was no similar time-stamp for the transcript of the enhanced recording which appeared in the right hand column of that document.
Purportedly for the purpose of time-stamping the transcript of the enhanced recording in this amalgamated document, on 14 March 2014, the Friday before the commencement of this trial on Monday 17 March, Ms Jones commenced listening again to the enhanced recording and whilst doing so made various - though as it turns out not identical - amendments to both the transcript of the enhanced recording in the amalgamated document and the transcript which she had produced by amendment of the Auscript transcript in June 2012. Why she embarked upon the time-stamping of the amalgamated document was never explained; and seems a curious thing to have done, having regard to the fact that it has not been suggested that the Crown proposes to rely upon that document in any respect in these proceedings. In any event, that was Ms Beckett's explanation for returning to the recordings and the transcripts.
The amendments made on this occasion included the addition of some of the most hotly contested portions of the transcript. The prime example, for present purposes, is the change from "I don't know … (indistinct)… tapping" (p 6 of the transcript annexed to Ex VD G) to "Cocaine… (indistinct) tapping… Cocaine" (p 6 of the transcript annexed to Ex VD H). In addition to that change there are numerous other changes that are the subject of serious and, in my view, well founded dispute. Those changes include significant, and at least in my view having listened to the recording, erroneous, changes to the attribution of identity of various speakers.
Ms Beckett now confidently acclaims that the version of the transcript which she produced on 15 March is accurate. She attributes her confidence in the accuracy of the transcript generally, and the most recent changes she has made to it in particular, to two things primarily. The first is that when she listened to the transcript in March this year, she did it in a quieter part of the AFP's premises than the general operations area where she had apparently worked on the June 2012 transcript. The second is that in the preceding two years she has had a number of face to face meetings with Faulkner and DB and claims to have, by reason of those meetings, come to know better the characteristics of each of their voices.
Incriminating opinion evidence identifying alleged offenders and the content of their conversations on sound recordings has been admitted in a number of cases, or at least permitted to go to the jury as an "aide memoire". The opinions are sometimes those of investigating officers and have been profferred on the basis of what has become known as "ad hoc expertise". Put broadly, the contention supporting receipt of this material on one basis or another, that is, either in evidence or as an aid, has been that the so called ad-hoc expert has aquired "expertise" as to the content of the recording by repeated listening.
The Crown proposes to tender at trial both the unenhanced recordings (audio and video) and the enhanced recording (audio only). It also originally proposed to tender transcripts of those recordings.
By a Notice of Motion dated 5 March 2014, Ms Nguon objected to the tender of particular identified pages of the transcripts of the unenhanced and enhanced recordings. In that application Ms Nguon relied in particular on ss 79, 135 and 137 of the Evidence Act. In the course of the voir-dire the Crown changed its position. It now proposes that the transcripts go to the jury only as aides memoire. It proposes that the transcript of the unenhanced recording prepared by Mr Jones be provided to the jury as an aide memoire to assist them in listening to that recording. It further proposes that the transcript of the enhanced recording prepared by Ms Beckett on about 15 March 2014 (not the one in the amalgamated document, but rather the one which amends the June 2012 transcript) be provided to the jury as an aide memoire to assist them in listening to that recording.
Ms Nguon and Mr Ream both oppose the use of those transcripts as aids. Ms Nguon also applies to have the enhanced recording excluded in the exercise of the discretion pursuant to s 135 of the Evidence Act.
The Crown submits, and I don't understand it to be disputed, that the procedure of providing a jury with a transcript of a recording to use as an aide memoire when listening to the recording has the imprimatur of the High Court and other superior courts binding on me: see, in particular, Butera v DPP (Vic) (1987) 164 CLR 180, at 188; R v Cassar [1999] NSWSC 436; R v Leung (1999) 47 NSWLR 405; Li v The Queen (2003) 139 A Crim R 281.
It is also common ground, as I understand it, that whether or not that procedure is adopted in any particular case is in the discretion of the trial judge and each case must be assessed in the light of its own particular facts and circumstances.
In summary, the Crown's submissions in favour of the transcripts being provided to the jury as an aid in this case are to the following effect.
First, the tapes are long, each being approximately 2¼ hours in length.
Second, the tapes are of poor quality and need to be listened to a number of times in order adequately to make out much of the speech that is recorded.
Third, the two police officers who have produced the transcripts have had the opportunity to listen to the tapes numerous times - in the case of Mr Jones, purportedly four or five times in total, with repeated listening to some unidentified passages; and, in the case of Ms Beckett, four times in total over a period of 2 years, also with additional repeated listening to some more difficult, but also unidentified passages. In Ms Beckett's case, in respect of the March 2014 transcript, it is also submitted that she has the additonal benefit of having interviewed Faulkner and DB a number of times in the preceding couple of years. By that means, it is submitted, she has acquired some knowledge and understanding about the particular characteristics of each of their voices which assists her in attributing identity to different speakers on the recording.
Fourth, the involvement of those officers in the investigation, and the knowledge they have in that connection acquired, gives them a peculiar advantage in creating a transcript and attributing meaning and identity to passages of speech. It is also submitted, correctly, that the authorities which proceed from Butera make it clear that the fact that a transcriber is involved in the investigation is not necessarily an impediment either to the admissibility of a transcript, where that is what is in issue, or to its alternative use as an aide memoire.
Fifth, the potential dangers to which the accused point in resisting the use of the transcripts as an aid can all be cured by appropriate directions. The principal dangers that are identified, so far as questions of fairness to the accused are concerned, relate to the possibility that in circumstances where the recording is of poor quality, and hence very difficult to listen to, and the transcripts are produced by experienced police officers, the jury will eschew their responsibility to listen carefully to the evidence and to draw their own conclusions about it and will accord priority to the aid over the evidence, on the not unreasonable assumption that it has the imprimatur of those experienced police officers. The sort of direction that is contemplated by the Crown is to the effect that the transcript is not evidence, but merely a guide and that they must make their own minds up about the content and context of any speech and the identity of the speakers. It is submitted that I must assume that a jury will understand the directions and act upon them.
Sixth, the fact that there are differences between the transcript produced by Mr Jones and the one most recently produced by Ms Beckett would operate to reinforce, in the minds of the jury, a direction as to the basis for provision of the transcript and the appropriate use to be made of it.
Finally, it is submitted that use of the transcripts would not invite an inordinate lengthening and complication of the trial. Indeed, the Crown submission appears to be that the use of the transcripts as an aid will achieve some efficiency and an inevitable shortening of the trial.
The Crown relies, in support of the use of the transcripts as an aid, on the proposition that Mr Jones and Ms Beckett have become qualified as "ad hoc" experts. It is submitted that the cases recognise that where a recording is of poor quality a jury may be assisted by a transcript made by someone who has listened repeatedly to the recordings.
The notion of ad hoc expertise, at least in this connection, appears to have its genesis in R v Menzies [1982] 1 NZLR 41. In that case, the debate concerned whether or not a jury should have access to a transcript of voice recordings covertly made. The NZ Court of Appeal concluded that where the quality of the recordings was so poor the provision of "expert" assistance to the jury was justified. It was held that a detective had acquired a special expertise by reason of repeated listening to the recordings. Cooke J stated, at 49:
… deficiencies in the recording may make it necessary to play tapes more than once to enable a better understanding, yet the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury. In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc.
For a period of time, the notion of ad hoc expertise remained confined to the production of transcripts from sound recordings as an intrerpretive aid for the jury: see Edmond & San Roque, Quasi-justice: Ad hoc expertise and identification evidence, (2009) 33 Crim LJ 8 at 9.
The practice of allowing juries access to transcripts of recordings as an aid received the apparent imprimatur of the High Court in Butera. This is the case upon which the Crown primarily relies in support of the use of the transcripts as an aid in this case. It has been suggested that Butera does not provide a general warrant for those who have listened repeatedly to recordings to proffer their opinions about the identity of speakers on the recording as admissible evidence: see eg Edmond & San Roque, at p 9. Nor does it provide a general warrant for the use of transcripts as an aid. Ultimately, the case concerned finding an appropriate balance between notions of convenience on the one hand and the dictates of justice on the other. Certainly one point of distinction between Butera and the present case is that it, like many of the cases which have followed it, involved the significant complication of being concerned with recordings that were substantially in a foreign language. In those circumstances the primary evidence, the recordings, is of essentially no utility to a jury and there is an inevitable need for the application of genuine expertise by translators.
In Eastman v The Queen (1997) 76 FCR 9; 158 ALR 107, the Full Court of the Federal Court considered the use that might legitimately be made of transcripts of indistinct recordings that had been digitally enhanced. The court concluded that police officers who had spent thousands of hours listening to the recordings were "qualified ad hoc in interpreting the utterances of the appellant that were audible" and so permitted the use of the transcripts as an aid for the jury: at p 112. At pp 112 - 113 the Court (Von Doussa, O'Loughlin and Cooper JJ), accepted the approach endorsed in Menzies and Butera and stated:
The evidence of the witnesses on this topic disclosed that the tape recordings upon which the Crown sought to rely are in many places indistinct, and extremely difficult to decipher… The tapes were transferred to a digital form of electronic recording, and then enhanced. Mr McQuillen and Ms Lawson listened to the tapes for thousands of hours and became qualified ad hoc in interpreting the utterances of the appellant that were audible. It was common ground between all the witnesses on this topic that the transfer of the recordings to digital form and the enhancement process did not produce artefacts. The jury, when it heard the recordings, listened to enhanced tapes rather than the original master tapes. This was done without objection, and the master tapes were tendered in evidence so that they could have been played had that been requested.
The poor quality of recording would have made it very difficult for the jury to have comprehended the recorded utterances if it had listened to the tapes unaided by the transcript prepared by Mr McQuillen. It seems to us that it would have been a largely pointless exercise to have required this, and one that would have been immediately followed by what in fact occurred, namely that the jury was informed of Mr McQuillen's interpretation of the sounds, and then the tapes were played whilst the jury had Mr McQuillen's transcript before it as an aid. The procedure followed in this case was the procedure approved in R v Miladinovic (1992) 107 FLR 241 at 248 and R v Watts [1992] 1 Qd R 214 at 222.
There is a fundamental point of distinction between the present case and the facts in Eastman. In that case the authors of the transcript had spent thousands of hours listening to the tapes. That is far from analagous to the present case which is more analagous to the circumstances in Smith v the Queen (2001) 206 CLR 650.
In Smith the majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ) made the following observations, pertinent by analogy with the present circumstances, at [11] (my emphasis):
Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury. The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision-maker permitting substitution of the view of another, for the decision-maker's own conclusion.
Certainly in Smith the High Court was talking peculiarly about visual identification and it was in the context of an issue of admissibilty rather than use of opinions as an aid. However it seems to me that what the Court there says applies a fortiori when one is considering the use of an opinion solely as an aid, unconcerned about its admissibility strictly per se. Furthermore, it seems to me that their Honours' observations are equally applicable to opinions about the content and context of speech (where the relevant language is English) as they are to questions of identification. Here the opinions of the AFP officers reflected in the transcript go to all three matters: content, context and identity.
In R v Cassar [1999] NSWSC 436, Sperling J catalogued a number of propositions said to be drawn from the combined operation of the Evidence Act and the decisions in Menzies, Butera and Eastman. Those propositions, outlined by by his Honour at [7] were as follows (the references to Eastman are to the ALR report):
(a) A document that purports to be a transcript of words recorded on a tape is admissible to prove the conversation: s48(1)(c);
(b) No oral or other evidence is necessary to validate such a transcript, it being sufficient that it purports to be a transcript of the words: s48(1)(c);
(c) Where a tape is indistinct, a transcript may be used to assist the jury in the perception and understanding of what is recorded on the tape: Butera at 187;
(d) Where a tape is indistinct, a transcript made by an "ad hoc expert", being a person qualified only by having listened to the tape many times, may be used for this purpose. That is particularly so where the tape needs to be played over repeatedly before the words uttered could be made out unaided: Menzies at 49 cited in Butera at 188;
(e) If there is doubt or disagreement whether the transcript accurately deciphers the sounds captured on the tape, the transcript should be used only as an aide-memoire. I take that to mean that the jury is to give priority to what they hear (or do not hear) on the tape, if that is not consistent with what appears in the transcript: Butera at 188;
(f) The jury may have the transcript before them when this tape is played over in court: Eastman at 200;
(g) The jury should be informed, when the transcript is tendered, as to the use which they may make of it: Eastman at 220;
(h) A transcript may be rejected or its use limited pursuant to ss 135-137.
In their very helpful paper earlier referred to, Edmond & San Roque trace the development of the concept of ad hoc expertise in the subsequent case law and, in particular, the transition from its use to assist juries in deciphering the content of audio surveillance recordings to the more contentious and problematic area of identification of voices.
That transition seems to be best reflected in NSW in the decisions of the CCA in R v Leung (1999) 47 NSWLR 405 and Li v The Queen (2003) 139 A Crim R 281.
The combined effect of the various cases to which I have referred, which in the main are self-evidently binding on me, reflects acceptance, in an appropriate case and subject to an over-riding discretion in a trial judge, of a practice of permitting the use, either by admission in evidence or provision as an aid, of a transcript of a recording to facilitate a jury's convenience in listening to recordings of dubious quality. Furthermore, the cases reflect a preparedness to allow the use of transcripts prepared by police investigating the relevant offences, as distinct from transcripts prepared independent of an investigating authority.
There is no doubt that in appropriate circumstances a transcript may be very beneficial in facilitating the task of a tribunal of fact. This will particularly be the case where the primary evidence consists of recordings of conversations in a foreign language. In that case there is an obvious necessity for the introduction of genuine expertise. That is, a "bridge between data in the form of primary evidence and a conclusion which cannot be reached without the application of expertise": Dasreef v Hawchar (2011) 243 CLR 588, per Heydon J, at [90]. The primary evidence, foreign language conversations, will be meaningless to most tribunals of fact without the admission of expert opinion evidence translating the conversations. In those cases the admission of the expert evidence can be subject to the the full rigour of the limitations on admissibility of evidence of that character which the law imposes, in particular under s 79 of the Evidence Act. The opinions will be relevant and admissible because they can sensibly be said, in those cases, to rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. The situation will generally, if not invariably, be quite different where the recorded conversations are in English. Obviously where there is no controversy about the opinions which a transcript represents then there will be no harm, and considerable convenience, in a jury having it either in evidence or as an aid to their own assessment of the underlying evidence. However, in most English language cases, particularly where there is a genuine contest about the opinions which a transcript represents, the situation is fundamentally no different to the one which the High Court addressed in Smith.
It seems to me that the superior courts will in due course have to give more detailed consideration than has so far been given to the foundation, as a matter of principle, for the notion of ad hoc expertise. There is even more crucial need for principled scrutiny of the notion where the contested conversations are exclusively in English and the relevant expertise has been gained in the course of an investigation. It may be that a consideration of the foundation of ad hoc expertise as a matter of legal principle will also, on an appropriate occasion, be usefully informed by expert evidence, for example from the field of cognitive psychology and cognate disciplines, about contextual and confirmation bias and questions of priming.
It is possible that the existence of the over-riding discretion in the trial judge will ultimately be found to provide adequate protection. However, in circumstances where it involves such a serious undermining both of the strictures on admission of opinion evidence and the rigour which ought to be observed with evidence of identification, the notion of ad hoc expertise is arguably indefensible as a matter of legal principle, particularly where English language conversations are concerned. It seems to me to have even more serious problems where the ad hoc expert has acquired the so-called expertise in the context of a police investigation.
The common law early recognised the problems, which one might characterise as contextual or confirmation bias, which arise from expression of opinion based upon the acquisition of knowledge in the course of a criminal investigation.
In 1850, the opinion of a police officer who had identified an accused as the author of a threatening letter was excluded. The investigating officer knew the accused from prior dealings but had not previously encountered his handwriting. Discussing the exclusion of this identification evidence, Maule J explained (R v Crouch (1850) 4 Cox CC 163 at 164):
Knowledge so obtained, that is to say, for such a specific purpose, and under such a bias, is not such as to make a man admissible as a quasi-expert witness. He does not come to speak to a fact, but as a witness of skill, to give his judgment upon a particular question. The only means he has had of acquiring a capability to form such judgment are not such as to make him a competent witness in that particular.
Explaining his Lordship's remarks, and endorsing the exclusionary approach which it reflects, the English Court of Criminal Appeal in R v Richard (1918) 13 Cr App R 140 said:
That case does not decide what degree of preparedness is necessary to constitute an expert, but it does decide that a person is not entitled to give such evidence if his only knowledge of the subject is that acquired in the course of the case.
The caution and prudence which those remarks represent seems to have been overtaken, at least in this country, by the development of the case law on ad hoc expertise.
It was submitted by Ms Yehia SC, for Ms Nguon, that the notion of ad hoc expertise purportedly obtained by investigating police officers is the modern day equivalent of the police verbal. I think that submission has considerable force. In Driscoll v R (1977) 137 CLR 517, Gibbs J, with whom Mason and Jacobs JJ agreed, made the following observations concerning the use of unsigned records of interview, at p 542:
The danger is that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony. Moreover the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight. For these reasons, it would appear to me that in all cases in which an unsigned record of interview is tendered the judge should give the most careful consideration to the question whether it is desirable in the interests of justice that it should be excluded.
It seems to me that there are obvious analagous problems with the use of opinions of police officers about the content and context of recorded conversations and the identity of the participants in those conversations. Those problems are necessarily greater where the transcripts are disputed in significant and material respects. The problems are not cured by the simple expedient of using the transcripts as an aid, rather than tendering them.
Whether it exists as a reflection of considered principle or as a result of judicial pragmatism in particular cases, for present purposes I am bound to give appropriate recognition to the existence of the concept of ad hoc expertise. Ultimately, as I earlier indicated, it exists in aid of juries' convenience. As Gaudron J observed in Butera, at p 211:
"… questions of convenience are not at large: "Convenience and justice are often not on speaking terms"…. The discretion of a trial judge to make available to the jury a transcript of evidence given by a witness is a discretion which is circumscribed by conventional considerations of fairness. Thus, without being exhaustive, there is no discretion to make available a transcript if it would tend to unduly emphasize the evidence, or to accord to it a probative value which it does not possess. …
Although her Honour was in dissent in respect of the result in that case, the force and cogency of her remarks are not diminshed by that fact. It is that potential contest between convenience and the interests of justice and the fair conduct of a trial which, in my view, underpins the discretion whether or not to allow the use of transcripts as an aid. As I have indicated, the existence of that discretion is not in issue.
Ultimately, in the exercise of the discretion, I have concluded that the transcripts should not go to the jury as an aide memoire. There are at least five principal reasons why I think that is the preferable course. Some of them are, in my view, sufficient in and of themselves to justify that conclusion. In combination the conclusion is compelling in my view.
First, I am not satisfied that the transcripts are a beneficial aid to critical listening to either of the audio recordings. In fact I think it more probable than not, indeed likely, that by reason of the form and content of the transcripts the jury would be distracted from their task of attending to the evidence by having the transcripts available as a so called aid. I have listened to each of the recordings on the voir dire, and in the course of listening to them attempted to follow them with the assistance of the respective transcripts. Such is the form and content of each of the transcripts that I found the task of listening was significantly distracted by frequently attempting to work out where in the transcript one was at any particular time. There are intermittent and irregular indications in the transcripts of how far into the recording one has progressed. In addition there are extensive periods in the recordings where there is no meaningful dialogue and all that can be heard is the industrial sounds that I earlier referred to or electronic interference or static. Some of these periods, and there are many of them, last for as much as 10 or 15 minutes. Others are of shorter duration, but are frequently recurring. As a consequence of the occurrence and duration of these periods not being recorded in the transcript, I found myself frequently scanning backwards and forwards in the transcript to work out if my reading had got out of synch with the recording and trying to determine if I had missed a passage. The consequence was inevitable distraction from concentrating on the recording. I consider that there is a very real likelihood that a jury would be similarly distracted, rather than assisted, by provision of the transcripts.
This particular difficulty with the transcripts seems to me to exacerbate the potential for the jury to give priority to the content of the transcripts, rather than the evidence itself, thus giving probative force to the opinions of the transcribers which they are not intended to have and should not have, given that the transcripts are not evidence. As a matter of human experience, I think there is a very real danger that where the quality of the recordings is as poor as it is, even in the enhanced version, and calls for careful, critical, listening to discern the content and if possible the context of any dialogue, a jury would be inevitably inclined toward reliance upon the transcript rather than their own assessment of the recording. This is precisely the vice to which Gibbs J adverted in the passage cited above from Driscoll. I think this danger is even greater where the transcripts are the product of the efforts of experienced police officers. The jury is likely to take some comfort from the trancripts having that sort of apparently authoritative imprimatur. In that event, the evidence will have been supplanted with opinions which are in substantial respects disputed, and hence argumentative, and which, in the case of an aide memoire, are not in evidence.
These particular dangers are real and, in my view, not capable of adequate, amelioration by directions. As Gleeson CJ and Gummow J observed in Gilbert v The Queen (2000) 201 CLR 414 at [13]: "The system of criminal justice as administered by appellate courts requires the assumption that as a general rule, juries understand and follow the directions they are given by trial judges. It does not involve the assumption that their decision making is unaffected by matters of possible prejudice". It is the latter part of that proposition which informs the existence of exclusionary discretions and the necessity on occasions to discharge juries. The law recognises that not every potentially prejudicial risk can be adequately overcome, so as to ensure a fair trial, by the giving of directions. In my view, the dangers to which I have adverted in respect of these transcripts are not amenable to adequate amelioration by any direction which I might be able to give. The dangers of course are amplified in the present case by the fact that it is proposed that two different transcripts be put before the jury, made by two different police officers.
The second reason I have concluded that the transcripts should not be permitted as an aid, at least not in circumstances where crucial parts of their content is so hotly contested and, in my view, contested on grounds that are reasonable and sustainable, is that I think in all the circumstances of this case the jury is in as good a position as Mr Jones and Ms Beckett to form their own conclusions about what the recordings reveal. In many respects the circumstances are analagous to those which were the subject of the High Court's consideration (in the context of visual identification opinions) in Smith.
In the present case the recordings are in English. There is no complication by intrusion of any foreign languages, which necessarily require the application of some expertise to translate.
The recordings are reasonably lenghty, at approximately 2¼ hours duration each. However, they are not inordinately or impractically lengthy. Furthermore, the crucial parts of the transcript, so far as there is a need to identify dialogue which the Crown will no doubt contend has an inculpatory character, are very short and can be readily identified by reference to a point of time in the recording. The totality of these passages would not exceed more than a few minutes in total. The practical consequence of these factors is that, with relative ease, the jury can put themselves, or in address be put, in the same position as the AFP officers who prepared the transcripts. I have already referred above to the amount of time those officers spent listening to the respective recordings. As I have already noted, this is not a case like Eastman, where the authors of the transcripts had spent thousands of hours listening to the recordings. Personally, I don't understand how the length of time listening to recordings can fairly be said to generate or reinforce expertise, rather than bias, but it remains a point of significant distinction between that case and the present.
The third reason in support of my conclusion, which is closely related to the second, is that in my assessment the authors of the transcripts are not relevantly ad hoc experts.
In respect of Mr Jones, he initially opined that he had spent some 300 hours in total preparing the transcript. In further cross-examination on that estimate, he conceded that he could not in fact have spent any more than 135 hours at most in listening to the tapes. In my assessment it is more likely than not that he spent considerably less time than that on the task and that his estimate is unreliable. He eventually claimed that he spent about four to five hours per day in the relevant period in January and February 2012 listening to the tapes and preparing the transcript. His police diary, however, does not record any of that work. As I understood his and Ms Beckett's evidence, the purpose of officers maintaining their police diary is to keep a record of the time spent on significant tasks. In the relevant period Mr Jones' diary only records work performed on an unrelated investigation which was apparently in its early stages at the time. His failure to record in his diary any time relating to work done on the transcript is irreconcilable with his estimate of the time spent on the task. By the failure to record any time in the diary, and in the absence of any other evidence supportive of his estimate, I conclude that it is more likely than not that the time devoted to the task of transcribing the unenhanced audio in the relevant period was insignificant. Had it been significant, his and Ms Beckett's evidence gives the clear impression it would have had some reflection in the diary. His explanation for the failure to record any of the time he asserts he spent on the task was unconvincing and I do not accept it. Indeed, he was far from certain in his estimate in any event. In all the circumstances, I am not satisfied that a great deal of time was devoted to the task of listening to the recording and producing the transcript. Even if Mr Jones had devoted the whole of his estimated 135 hours to task, that does not in my mind justify either the conclusion that he has acquired ad hoc expertise sufficient to accord his opinions the status of providing any benefit to the jury, or the conclusion that he is in any better position than the jury will be by the end of the evidence in the trial to form their own conclusions about the content and context of conversations on the recording and the identity of speakers.
I reach the same conclusions in respect of Ms Beckett. She has listened to the tape a maximum of four times in total and has additionally replayed, an unknown number of times, certain unidentified portions of the tape to try and discern what is recorded. She first listened to the tape twice in June 2012, the product of which was the substantially amended Auscript transcript which she annexed to her statement of 6 June 2012. She returned to the task on the eve of the commencement of the trial, in March 2014, purportedly purely to time-stamp one version of the transcript. Curiously, the version of the transcript which she time-stamped is not the one which the Crown seeks to rely upon for present purposes. In addition to time stamping that version of the transcript she also made some changes to the transcript from June 2012 which had been based upon the Auscript transcript. There is not conformity between that transcript, which is annexed to her statement of 15 March 2014, and which is the one the Crown wishes to use as an aid for the jury, and the newly time-stamped transcript.
In cross-examination, Ms Beckett defended her asserted confidence in the accuracy of her 15 March transcript with a vehemence that caused me more concern than it gave me any comfort. The version of the transcript on which the Crown seeks to rely had added to it, long after the time by which the Crown was obliged to provide materials to the accused, substantial potentially inculpatory material. I am far from satisfied that the transcript which is proferred is accurate or reliable in many significant respects. It contains words, some the subject of fierce debate, which I certainly was unable to discern on listening to the recording. It does not contain words that I clearly heard. It contains admitted errors, some of them substantial, particularly as to attribution. It is at odds with the transcript of Mr Jones in significant respects and it differs in numerous substantial respects from the version produced in June 2012.
The Crown sought to supplement the submission as to Ms Beckett's ad hoc expertise, and the likely accuracy of the latest version of the transcript, with the proposition that Ms Beckett has spent numerous hours in face to face contact and discussion with Mr Faulkner and Mr DB in the two years between June 2012 and the present. This, so it is submitted, gives her a greater capacity to recognise the voices of DB and Faulkner on the tape and so by a process of deduction to identify Ms Nguon and Mr Ream when they are speaking.
I am not satisfied that any of the circumstances relied upon justify a conclusion that Ms Beckett has ad hoc expertise such that her opinions as to content, context and identity on the tape would provide any real benefit to a jury over and above what the members of the jury would be able to determine for themselves by faithfully fulfilling their oaths and affirmations. The potential which I have outlined above for the transcripts to mislead rather than benefit a jury is exacerbated both by the numerous errors which the transcript in my assessment appears to contain, only some of which are admitted, and by the inconsistencies between the two transcripts sought to be relied upon.
In R v Hall [2001] NSWSC 827 Greg James J had occasion to draw a parallel between the High Court's decision in Smith concerning visual identification evidence, to which I have earlier referred, and opinion evidence of police concerning aural identification from lawfully obtained covert recordings. After referring to the High Court's decision in Smith, his Honour made the following observations, at [39], which are apposite in the present case:
I have a similar problem in the present matter to that with which the High Court dealt. I consider I cannot simply substitute the views of the police officers as expressed in the transcript for my own appreciation of what might have been said or who spoke. Nor can I assume that because the officers assert the transcript reflects what they heard, the transcript should be used to give that content to the sounds. They are not experts nor can I hear nor conclude that a jury could hear on the CDS what is on the transcript. In this case, to use the transcript as an aide while listening would be likely to have the effect of allowing the police officers' views to so affect what is discerned as to substitute their views of the content for what would be independently appreciated as the content. It may be that the police officers have, after many repetitions, reached the opinion that the content is as set out in the transcript. I simply have no information as to whether a jury might feasibly attempt to test or reproduce what they did to reach that result. I consider the officers' opinions are inadmissible and I would reject the use of the transcript because of the danger of its accuracy being untestable.
As I indicated earlier, the dangers to which his Honour adverts seem to me only to be amplified rather than diminished by reason of the fact that the contested opinions are sought to be introduced as an aid and not as evidence.
The fourth reason which founds my conclusion that the transcripts should not go to the jury is that reliance upon the transcripts, even as a mere aid, will have the likely result of inordinately lengthening the trial. Mr Hughes, for Mr Ream, submitted that if the transcripts were used as an aid it would be incumbent upon him and Ms Yehia SC, for Ms Ngoun, to introduce into evidence the various other transcripts that have been produced over the last two years. He submitted that exercise would be necessary to counter any possible adverse consequence for the accused arising from the essentially argumentative opinions of the AFP trancribers going before the jury in the form of aides memoire.
To my mind, if the use of the transcripts as an aid were permitted, such an enquiry into the reliability, credibility and accuracy of the AFP officers' opinions would be entirely justified so as to avoid any adverse consequences for the accused arising from the various dangers I have already identified. If the time that has been expended on the voir dire is any indication, that exercise, were it embarked upon, would be a necessarily time consuming one. It would have the consequence of substantially lengthening the trial with an issue that is for all intents and purposes collateral to a consideration of the real issues.
The Crown submits that such an exercise could not and would not be permitted because the transcripts would not be evidence, they are merely used as aids. Strictly speaking, that may be right, but this is very much a "cake and eat it too" submission in my view. On the one hand the Crown wants contested opinions of experienced police officers placed before the jury, with all the inherent danger that those opinions will be given probative force to which they are not entitled, but would deny the accused the opportunity to go behind those opinions in the way envisaged by Mr Hughes' submission. The extent to which this collateral issue would lengthen the trial would likely be sufficient in and of itself in my view to exclude the transcripts had they been tendered. This consideration has even greater force where the transcripts are only sought to be used as an aid.
This leads to the fifth reason supporting my conclusions; considerations of fairness. If the transcripts go to the jury as an aid they will carry all the dangers of unfair prejudice to the accused that I have earlier identified. That is, in particular, the danger that the contested opinions of the transcribers, which are not evidence, will subvert the evidence and distract the jury from its task of considering the actual evidence, the recordings themselves. In the circumstances of the present case, those dangers cannot be adequately diminished by a direction to the jury, for the reasons I have outlined. Accordingly, there is patent unfair prejudice to the accused if the opinions are used as an aid. That unfairness is only exacerbated or further highlighted if the Crown's submission referred to in the previous paragraph is correct and the accused are not able to go behind and test those opinions.
By contrast, there is no unfairness to the Crown if the use of the transcripts as an aid is denied. The Crown submitted that there would be unfairness to it if use of the transcripts as an aid was denied. Madam Crown made the following submission, at p 202 of the transcript:
The unfairness, your Honour, is that they sit and listen to a recording cold where you've had evidence from the officers that it's taken them a number of times to get used to the noise, the way people are speaking so they can start understanding it. So the unfairness to the Crown is if we don't have the guide or the aid, I may have to say to the jury, "Terribly sorry about this, but you are going to have to listen to this two hour 15 minute recording four times or five times so that your ears start getting used to it and you can start properly understanding what was said".
In my view that submission dramatically overstates the reality of the situation. Indeed, as submitted on behalf of Ms Nguon, the Crown submission assumes precisely that which is the danger; that is, by being given the transcript the jury will substitute the opinion of the police for the acquisition of their own opinion by however many listenings that requires. The Crown case is not diminished in any respect and there is no relevant unfairness to the Crown in denial of the use of the transcripts as an aid. It has the evidence of the recordings to rely upon. Subject only to my ruling on an objection to the tender of the enhanced recording, to which I will shortly come, the recordings can be played to the jury. The critical parts can be played and replayed, including in address and by the jury in the privacy of the jury room. As I have already indicated, the crucial passages occupy very little time and could be played and replayed to and by the jury many, many times without it being an inordinately lengthy exercise.
As I understood it, the parties were agreed that the considerations outlined at s 192(2) of the Evidence Act provide a useful guide to the appropriate considerations and parameters in the exercise of my discretion in respect of the use of the transcripts. Save for that concerning the nature of the proceeding, I think I have dealt in what I have said above with all those that are relevent in the present circumstances. This is a trial of serious criminal charges, it goes without saying that the exercise of any discretion must be circumscribed by a scrupulous attendance to ensuring a fair trial. That has informed my approach to each of the other considerations.
For all the foregoing reasons, I decline to permit the use of the transcripts as aides memoire.
As I have mentioned, Ms Nguon applies to have the evidence in the form of the enhanced recording excluded in the exercise of the discretion under s 135 of the Evidence Act. That application is supported by Mr Ream.
Put very shortly, the submissions in support of that application are as follows.
First, it is submitted that the best that can be said in favour of the enhanced recording is that it marginally improves listenability. However, it doesn't improve the clarity of words spoken, particularly by the female, and hence it does not improve the intelligibility of the recording and so adds nothing to the probative value of the unenhanced recording. The probative value of the enhanced recording, on that basis, so it is submitted, is at best slight.
Second, it is submitted that the enhanced recording is apt to be confusing or misleading because of the consequence of the combined application of the adaptive filter and the compression filter, which I referred to at paragraph 17 above. This is said to be of particular significance to the case against Ms Nguon, because her precise location within the warehouse during the afternoon of 4 November 2011 and the level of her involvement in the activities of the males and her proximity to the grapple bucket are central issues in the case.
Third, it is submitted that admission of the enhanced recording would result in undue waste of time, involving the need to listen to two recordings in circumstances where the intelligibility is only marginally, if at all, improved in the enhanced recording.
It is true to say that the enhanced audio is more "listenable" by reason of the efforts of Mr Kinraid. I think it understates the position slightly to attribute no improvement in intelligibility. Though I do think it is reasonable to say that those improvements are probably only marginal, given that whilst more conversation is discernible, there are no great advances in determining the context of most of that conversation. To that extent it might be said that the enhanced recording adds little to the probative value of the unenhanced recording when one considers their combined effect. However, even accepting that there is only limited supplementation of Crown case over and above what it gains from the unenhanced recording, the probative value of the enhanced recording is high in my view. Considered on its own, and not by reference to the combined effect of it and the unenhanced recording, its probative value is very high. It goes to a critical aspect of the Crown case.
I accept that the enhancements have the capacity to create the impression in a listener that a particular speaker is closer to the listening device than is in fact the case. This necessarily gives rise to concerns about the capacity for the jury to be confused or misled. These concerns, however, seem to me to be well capable of being addressed by the cross-examination of Mr Kinraid and, to the extent necessary or appropriate, directions from me. The question which is central to the case against Ms Nguon then becomes a matter for the jury's determination in the conventional way. I do not think the capacity for misleading or confusion is such as to outweigh the probative value. This is an instance where, whilst I accept there is some danger of confusion or of the jury being misled, it can be adequately cured so as to avoid unfair prejudice, such that as between probative value and potential prejudice the balance does not favour exclusion. Accordingly, I would not exclude the enhanced recording on this basis.
As to the potential for undue waste of time, again I do not think that the balance favours exclusion. Certainly the necessity to listen to the enhanced as well as the unenhanced recordings will add some time to the length of the trial. That additional time is not inordinate in my view. Particularly in circumstances where I have disallowed the use of the transcripts as aids, I think the jury's task will be facilitated by access to both recordings. The enhanced recording is more listenable and, apart from the capacity to create a misleading impression as to the location of a speaker, does not effect any adverse change to the recorded conversations. Where the jury may well have to listen to the recordings, or certainly parts of them, numerous times in any event, I think it is advantageous that they have access to both versions, particularly where the listenability of the enhanced version makes that task less onerous. Accordingly, I decline to exercise the discretion to exclude the enhanced recording. It may be tendered before the jury.
[3]
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Decision last updated: 06 July 2016