REGINA v. HALL & ORS [2001] NSWSC 827

1 HIS HONOUR: On Monday 17 September 2001, I determined an objection to evidence the Crown proposed to present at a trial listed to proceed that day, ruling that the tender of the evidence should be rejected at that time. I published my reasons ex tempore. The following is the revised expression of those reasons. 2 Three accused have been charged with various offences and are before me on an application for directions in respect of the trial, which it was expected, would begin last week. Due to a matter affecting my personal health it has not been possible to proceed as quickly with the matter as might otherwise have been the case. 3 During the directions hearings application was made by the three counsel for the accused for me to exclude, on a pre-trial ruling, certain evidence it was intended the Crown would tender against all. That evidence comprised lawfully made recordings of intercepted conversations said to be between the three accused. 4 All accused object to the evidence on the basis that the recordings are of insufficient clarity to enable a jury to determine what is being said in sufficient context as to allow the necessary inference to be drawn of the true meaning of what was said or who said it. 5 The indictment charges the accused William Ernest Hall with the murder of a security guard at Darling Harbour in the state of New South Wales on 2 November 1992, and robbery in company of certain property by way of cash and revolvers of Armaguard on that occasion and at that place. The co-accused are each charged with one count of accessory after the fact to each of the offences alleged against the accused Hall. 6 The Crown had intimated an intent to present a fresh indictment, intending not to proceed with the indictment on which the accused has currently been brought before the court, on the basis that the fresh indictment would be presented. 7 However, as the application to exclude the evidence has proceeded, with the Crown's consent, on a preliminary basis, I was informed by the learned Crown Prosecutor that in the event that I were to rule that the evidence he wishes to tender should not be admitted, it would be the Crown's position that it would no bill the matter on the present indictment. That is to say, that he would enter a nolle prosequi on that indictment with no intent to present a fresh indictment on the evidence presently notified. Such a nolle prosequi would be entered in relation to the condition of the evidence for the prosecution as it will stand in the absence of the challenged evidence. 8 I am shortly informed that the other evidence would simply be the evidence of various persons who saw the robbery or portions thereof and the evidence of a witness who might be able to explain the family relationships between the three accused and others. It is accepted by the Crown, and indeed it is patent from what I have said, that that evidence would leave the case in a condition such as would not be sufficient to sustain a prosecution of Hall. 9 I turn then to the evidence in respect of which the application for exclusion is made. That evidence consists, so I am told, of a number of conversations between various of the accused or all three of them, all lawfully recorded, which conversations are said, in the case of the accused Hall, to amount to implicit admissions of his involvement in some way which cannot, the Crown accepts, be precisely specified, in the robbery and hence the killing; and which, on the part of the co-accused, amount to implicit acts of assistance which comprise some but not all of the acts of assistance on which the Crown relied, but, importantly, which acts are said to disclose the knowledge on their part of the offence committed by the co-accused Hall. It is accepted that in the event that this evidence is excluded there will be insufficient evidence of Hall's crime or to show a case against him or to disclose knowledge of the offence, so as to make a case against the others, even if there were sufficient evidence to disclose an intent to assist the accused Hall to avoid justice in some unspecified way. In all three cases, the Crown accepts that the challenged material would, at the highest, considered in the context of the other evidence the Crown would tender, afford a basis for inferences of conduct said by the Crown to amount to admissions from which the inferences of guilt in each case could be drawn. 10 For the purpose of determining this application the Crown has provided me with a facts sheet setting out the general background. That facts sheet will be marked Exhibit A. In addition I have been provided with a chronology. That chronology will be marked Exhibit B. 11 Further, the Crown has provided me with what it has described as a transcript. It is headed, "tape recorded evidence, evidence of statements of admission, statements of implied admissions, and admissions inferred from conduct". That document will be marked Exhibit C. It is probably best to be regarded as a factual submission by the Crown. That is to say a submission of what the Crown says should be extracted from what is recorded, and being those facts the Crown says a jury might properly find from listening to the compact disks on which have been recorded the conversations on which the Crown relies. 12 There have been a number of such conversations. It is common ground that those conversations were induced by a police investigative technique of releasing information to the press so that press articles, to which I was referred, would be published which would arouse at least the interest, if not the apprehension, of the accused, such as to induce them to speak about the matters now, even though those matters are almost 10 years old, and to speak in such a way such as might produce admissions of the kind I have referred to in circumstances where what was said might lawfully be recorded. 13 Further, two persons, Dorothy Clark and Wayne Clark, were taken into police custody. In the case of Wayne Clark, the application has proceeded on the basis he was taken into custody for an involvement in the very murder with which Hall is charged. Dorothy Clark was taken into custody for an involvement in assisting him after the fact. 14 Further, of the three accused themselves, Gardener was apparently taken into custody by way of the execution of some warrants for extraneous matters and whilst taken into custody was apparently spoken to by the police concerning Hall's involvement in these events. 15 It was expected the accused would learn of those arrests and that conversation and that this would also induce them to speak about the crimes in such a way as to enable lawful recording. 16 These matters set the context for what appears, so I am told, in the conversations that were recorded. Tendered to me have been CDs on which are recorded, so I am told, the conversations the content of which it is said is also set out in transcripts which have been provided to me with each CD. Those transcripts are said to contain what can be derived from the sounds on those CDs in respect of master tapes. Of those conversations I am told that two in particular are of critical significance. These are recorded on master tapes 107 and 109 I am told. Each CD will be marked: 107 - Exhibit D; 109 - Exhibit E. The corresponding transcripts will be marked Exhibits F and G respectively. 17 As the application has been argued the initial ground taken was that the recording of the crucial portions, at least, of the conversations on which the Crown relied, was of such poor quality that all that could be detected, even if anything understandable could be detected, was, when considered in context, entirely unreliable so as not to afford any sufficient foundation, in the case of Hall, for inferring admissions and in the case of the co-accused for detecting oral acts such as might constitute harbouring or assisting with the requisite state of knowledge. 18 In addition, other submissions were made as to various discretionary bases for exclusion. Indeed it was submitted that much or all of the material was irrelevant in the sense of the concept of relevance used in the Evidence Act 1995, s.55. The submission was that the material or the crucial portions of it was either completely incomprehensible or the immediate context was incomprehensible so that the inference of the true meaning of what could be heard could not be reliably drawn. It was submitted that the material could not be categorised as evidence which if accepted could rationally affect, directly or indirectly, on its own or in combination with other evidence, the assessment by the tribunal of fact of the probability of the existence of a fact in issue in the proceedings. 19 Specific submissions, however, were made as to portions of tape 107. The Crown submits that on a proper listening the following will be heard in an exchange between Gardener and Hall:- "Gardener: Mate, they want you bad... Hall: ... Pinch me on... I know they're going to do it eventually ... Gardener: Your cousin, I'm afraid to say it, must've said something to somebody in the boob, he fuckin' must've cause you do not jump out of the fuckin' woodwork after eight years and go this fuckin' heavy. Your cousin has told someone that he trusts something and there's no exchange from this if you're there, you're in, don't matter whether you fuckin' drove the car or you fuckin' didn't know it was gonna happen. Don't matter. I gotta get you somewhere mate. Fuckin' hell, you certainly can't use your own and you can't use that other one cause you haven't authenticated it yet have you? Hall: ... (Something indistinct)..."

20 During argument the question arose of whether Mr. Gardener's bush lawyerish advice should be excluded on the basis that it was prejudicial to Hall, the Crown's contention being that Hall was guilty of the murder, if at all, by reason of the application of the doctrines of murder felony or common purpose. The Crown contended, it being unable to show he was the principal in the first degree to which the Crimes Act 1900, s.18 definition of murder felony might apply, he might nonetheless be an "accomplice with him", with the principal or be complicitous in the murder in the manner described by the High Court in Johns v. The Queen (1980) 143 CLR 108. The Crown submitted to me that if Hall was involved in the robbery, and was aware that loaded guns were to be used, that supplied a sufficient basis for his liability for murder. 21 It will readily become apparent that the passage of the transcript I have set out describes a wider basis of liability than that for which the Crown contends when Gardener says to Hall, "If you're there, you're in. Don't matter whether you fucking drove the car or you fucking didn't know it was gonna happen. Don't matter." On my view of it, the context of that passage is not adopted by Hall. 22 There is nothing that would enable that statement of Gardener's to have, in my view, any further significance, except as going to increase Hall's apprehensions, whether or not he had some involvement before the fact, after the fact, or at the fact of the robbery, even if he did not "know it was gonna happen", whatever that may mean. In that context the phrase may refer to a robbery, a robbery in company, an armed robbery, or the killing. 23 It is of interest that Gardener refers specifically to the driving of the car as one of the possibilities. The evidence with which the Crown has provided me includes a summary account of the eyewitness's statements, marked Exhibit H. Those statements refer to at least three persons being involved, one being the driver and two being the actual assailants who apparently left the car with revolvers and cold-bloodedly killed the security officer in the process of robbing the van. 24 There is, however, contained in the statements reference also to another vehicle, and it is not possible in my view, on what I have seen in the summaries, to establish beyond reasonable doubt that there were only three participants in the robbery. Thus the evidence would seem to leave open others having some involvement or role which would not necessitate such knowledge as would be required for complicity in the common purpose or felony murder and in the latter case, the foundational felony. The alternative counts in the indictment apparently attempt to accommodate this difficulty. But Hall's role, if any, remains, at the least, vague. 25 It will be apparent from what I have said that the passage to which I have referred is not a secure foundation for an inference of an admission of guilt. It might be treated as evidence of the provision of erroneous information which might produce an effect which would tend to detract from the reliability of drawing inferences of guilt based on Hall's subsequent conduct. It might make it more difficult to attribute the incriminating significance to such of his utterances or acts as are asserted to evidence a consciousness of guilt of the crime of murder or, indeed, the form of robbery charged. In my view, since the statement is not adopted it does not constitute any admission by Hall, nor in these circumstances can his subsequent conduct amount to implicit admissions by him which should be allowed into evidence against him. It is plainly prejudicial. I therefore reject that portion of the material tendered. 26 In passing, and before turning to the more general issue, I note that at the commencement of master tape 107, following the sound of dogs barking, and I think probably following the sound of a cockatoo screeching, or so I am informed the relevant noise is, is the reference to the name of a person. There is some disagreement at the bar table as to what that name was. It is recorded in the transcript as Greg James, my own name. It is common ground that I am not the person referred to. Further, it is common ground that the transcription is, at least, at this point incorrect and that what was recorded was a different name from that which appears in the transcript. The reference could only operate, were the material to be admitted, to confuse and mislead the jury. I reject that portion of the material particularly since in the context it is entirely extraneous to the subject matter of what the Crown seeks to prove in furtherance of its case on the charges. 27 I then turn to the general objection. In the case of Hall, there is a specific argument that it is not reasonably open to find that what is said to be said by him amounts to admissions or could be reliably held to be said by him. The argument relied on s.88 of the Evidence Act 1995. That section provides that:- "For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission." 28 The nature of the test to determine what it is reasonably open to find has not been authoritatively explained in the case law to this point. In my view, the section deals both with the identify of the person said to be making the admission and whether what is done is an admission. The Crown Prosecutor contends that evidence is admissible as an admission, ie., a previous adverse representation and must be put before a jury in the event that it is an utterance or act such that the jury might attribute it to the accused and might give it content by way of treating it as the foundation for an inference which might advance the prosecution case, ie., rationally affect a matter in issue, even if the trial judge cannot determine that it would have that content or be so attributable. It is submitted that I can only rely on my own natural senses to ascertain what was said and by whom and that the natural senses of 12 jurors may well exceed the capabilities of those of a trial judge so that if they might detect that which I cannot, the evidence should be left to them. 29 Were the test not whether "it is reasonably open" but whether "it might be possible", there would be much to be said for that submission. The section speaks of the court making a finding. That finding could only be made on the basis of what appears to the court to "be reasonably open" rather than some conjecture as to what others might perceive. A trial judge can only determine whether evidence has the capability of rationally affecting a matter in issue by application of his or her own senses. 30 I turn to consider the material. There has been played to me in court, Exhibit D - tape 107, one of the relevant CDs which I have listened to with the assistance of headphones specially provided, having been informed that the quality of the recording has been specially enhanced. It was accepted I could regard that tape as fairly reflecting the clarify of all material in the Crown case. By consent, previously I had in chambers listened to the CDs of tapes 107 and 109 with the assistance of the transcript, using a commercial CD player and speaker system. I have attempted, when I did that, to follow the transcript. Today, when listening to tape 107, I have attempted to follow the sound without the assistance of the transcript. In that regard I have questioned the Crown as to what other evidence it might seek to present which might enable the ascertainment of the content of what is contained in the CD recordings to enable one to know what was said and by whom. 31 I have been informed that it was intended to call police officers to give evidence identifying who participated in the conversation and how. Further, that those officers would seek to identify, from what is heard on the compact disks, the content of what was said by reference to the transcripts which they had produced after listening to the records of conversations. I asked the Crown whether it was intended to provide that evidence by way of expert testimony. I was told no. I asked whether any hearsay notice had been given. I was told no. I was told that the transcript was only to be used as an aide memoire, not as a statement itself of the content of the conversations. 32 I now turn to the question of whether the transcript might be used for the purpose of giving content to what the sounds on the CDs. I invited the Crown on a number of occasions to inform me of what additional evidence the Crown might call to assist on the question of ascertaining what the content might be and as to how the transcript might be used. It comes down, as I understand the Crown's position, to an inability on the Crown's part to provide the transcript as other than an aide memoire. That is, a reminder to the jurors of what they heard for themselves rather than some summary or expert evidence which would assist them to determine the content. The distinction was explained by the High Court in Butera v. DPP (1987) 164 CLR 180, a pre-Evidence Act 1995 decision. 33 The Crown did not refer in this regard to s.48(1)(c) of the Evidence Act 1995 and by limiting the potential use of the transcript appears to have disclaimed any reliance on the transcript as an independent source of content. 34 Section 48(1)(c) provides as follows:- "If the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) - tendering a document that is or purports to be a transcript of the words." 35 The better view seems to be that that provision would not in these circumstances assist the Crown to make the transcript admissible for the truth and accuracy of its content or as evidence of what was in fact said without more: Eastman v. The Queen (1997) 158 ALR 107 at 202; Regina v. Cassar & Sleiman (No. 17) [1999] NSWSC 436 at paragraph 7 (Sperling, J.). Any tender of the transcript as an independent unverifiable source of the asserted statements would almost certainly lead to rejection even if s.48(1)(c) contemplated this. It would seem from the inclusion of the section in Chapter 2 of the Act, a part which deals with modes of proof rather than in Chapter 3 which deals with the rules of admissibility of content that the section would not have this effect. I conclude the transcript is not independent of other evidence to be admitted. 36 As far as the evidence of the police officers concerning the content of the conversations is concerned, I drew the attention of all parties to the decision of the High Court in Smith v. The Queen [2001] HCA 50 concerning visual identification evidence. The Crown sought to distinguish that decision and the reasoning of the majority, as well as the reasoning of Kirby, J., on the ground that that decision was concerned with photo identification evidence and the testimony of persons who, from photographs and prior acquaintanceship, sought to make an identification of an accused person. 37 Here, the Crown conceded that the police officers sought to make the aural identification from listening to the tapes and some prior acquaintanceship, the extent of which was not specified, with the voices of one or more of the accused. 38 In that decision the majority held that the of identification evidence was irrelevant and inadmissible for that reason as being an attempt to avoid the restrictions on the giving of expert evidence under the Evidence Act 1995. Kirby, J. was prepared to accept the relevance and admissibility of the evidence but was of the view that such evidence would, except in the most extraordinary circumstances, be rejected in discretion. He pointed out that there is no bright line between fact and expert opinion; one merges with the other by degrees. 39 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. 40 I proceed on the basis that if I consider there is sufficient clarity in what is recorded that the jury listening to the recordings could hold that the content of what was said and the identity of the author of the statement was generally as attributed in Exhibit C, then the objection should be overruled, but that, unless the jurors were able to detect that without speculation the material should be rejected. 41 For my own part when I come to hear the material unaided by the transcript I cannot on many occasions distinguish between the voices that are recorded. Insofar as I can, in the case of Mrs. Smith I am almost entirely unable to make out the content of what she is saying. In the case of Mr. Hall, I am better able to detect the voice but I am almost unable to detect the content of the various passages. I am able to detect the voice and the content in many of the passages in which Mr. Gardener speaks. Mr. Gardener seems to speak considerably more than the others. 42 Those matters I am able to detect of what Mr. Gardener says plainly go to Mr. Gardener's concern at Mr. Hall being apprehended for some involvement in the robbery, or at least in a robbery or robberies or some criminality connected with what has been said to have been said to police by Clark when Clark was arrested, or in respect of what he, Gardener, was told by police concerning what is probably the robbery in question when he, Gardener, was apprehended. 43 As far as the position of Smith and Gardener are concerned it is at least clear as I have said that Gardener is concerned to protect Hall against apprehension for something involved in connection with what had been said to police and by police probably about the robbery. I am not however satisfied, either when I come to consider what I hear as said by Gardener, or when I come to consider the general context so that I might attempt to derive from what is heard on the tape, content, having added the effect of that context to what little I can hear, that there is material which would enable one to ascertain what role if any in the robbery, or in connection with the robbery, Gardener might think Hall performed. I am utterly unable to apprehend what might have been said by her in the case of Mrs. Smith whether one takes it in the context or not. 44 As far as Hall is concerned I am unable to ascertain what adoption there may be of what propositions Gardener may be asserting. Despite the Crown's references to Hall asserting a willingness on his part to do a deal and plead guilty to the robbery, or Hall accepting that he had knowledge from one of the robbers that "the guns were loaded up", I simply cannot hear such material as is asserted to support those assertions so as to enable me to determine that he did say what the Crown contends he did. I cannot see that a juror could find those things were said. 45 It does seem that at some points that what was going on in these conversations was a discussion concerning what Clark had said and what courses the police officers might take concerning Hall in consequence. Even to say that, though, probably involves me reading from the transcript a deal into what I can hear. 46 These observations are made, however, after listening in court, as I have described, to tape 107, Exhibit D, since it was accepted by all parties that the in court enquiry might be limited to listening to tape 107 to see if there could, with sufficient clarity, be detected in what was said some of the matters to which the Crown has referred to me in argument and in the document Exhibit C treating the admissibility of those matters as being crucial for the Crown case. 47 Whether the objection should be determined in Hall's case, by reason of the application of s.88 and the concept of relevance referred to in s.55 or whether by reason of the exercise of the discretions provided for by the Evidence Act 1995, eg., under s.135, such that the evidence might be unfairly prejudicial or be misleading or confusing; or s.137, if the probative value is outweighed by the danger of unfair prejudice - probably matters not in this case. I am particularly cognizant of the dangers presented by such poor recordings as interpreted by police officers because of the salutary example referred to in Regina v. Murrell [2001] NSWCCA 179. 48 At common law this recorded material, such as I have heard, I am satisfied would not have been admitted by application of the principles in Regina v. Smith (1987) 7 NSWLR 444; Regina v. Brownlowe (1987) 7 NSWLR 461. However, those decisions predate the Evidence Act 1995 and have been the subject of much criticism in other decisions. Notably Bulejcik v. The Queen (1996) 1 CLR 315; Regina v. Henshaw (1988) VR 362. Regina v. Jones (1989) 41 A. Crim. R. 1, and other decisions referred to in note 604 to the discussion in paragraph 114.10 in Odgers, Uniform Evidence Law (4th ed.) concerning aural identification. 49 Notwithstanding what the author refers to as the attitude taken by New South Wales Courts post-Evidence Act 1995 in continuing to follow the common law authorities, I am of the view that where it speaks the Act itself must be applied. I note of course that the Act makes no specific provision for aural identification as opposed to the provision that it makes for visual identification. Nor does it make any particular provision for the admissibility of the content of sounds, although it does, as I have said, provide a mode of proof for that content by s.48(1)(c) 50 Putting aside the transcript, I am unable to conclude that jurors utilising these enhanced recordings and utilising these headphones would have capabilities so much in excess of mine that they might reliably hear such things as are set out in the transcript, and putting aside the transcript I do not consider that the jurors would be able to extract from the recordings some such statements as would amount, in Hall's case, to relevant material admissions or a foundation to infer such as might meet the tests provided by s.88 and survive the invocation of the discretionary provisions of the Evidence Act 1995 to exclude such of it as is relevant. 51 Similarly, I am of the view that in the case of Mrs Smith and in the case of Mr. Gardener the material would not meet the tests provided by the discretionary provisions so as to avoid exclusion. 52 I have phrased what I have said in the way I have since I have not treated the matter as turning on the application of the onus on the Crown. Under the different provisions the onus differs. If one is dealing with the application of s.137 there is a positive onus to refuse to admit the evidence. In applying s.135, the onus is otherwise, but in this case, on these facts, I consider that is of limited moment. 53 In my view in this case there would be a danger of unfair prejudice due to the lack of clarity of the various statements relied on in the conversations and their context. The recordings are such that one cannot tell from such of the conversations one can hear whether there is qualification, negation or adoption by some other of the participants particularly as to what might have been said by Mr. Gardener. Unaccompanied by the transcript, one would not know what it make of the material. 54 Overall, I conclude that there is an unacceptable risk in admitting this evidence since its probative value can hardly be ascertained (but it does not include explicit inculpatory statements) and there is an overwhelming danger the evidence might be confusing or misleading. The danger of undue prejudice is apparent. It is not a matter of simply leaving this all to the jury with some general instruction that unless they are satisfied beyond reasonable doubt of the case the Crown makes having regard to the whole of the evidence they should acquit. This material would require, were it to be admitted, most specific directions and it does not seem to me that those directions could answer the case and guard against the inevitable prejudice that the jury might speculate to the accused's disadvantage. It follows that even were the material tendered relevant, I would reject it by the application of s.135 or s.137. 55 I conclude that it matters not whether I assess that the material as lacking in relevance or probative effect because I cannot work out what most of it is or I consider that such probative effect as there might be is overwhelmed by the prejudicial effect of inducing impermissible speculation there is some sort of involvement of some kind in some criminality. It should be rejected. 56 I therefore rule that I am not prepared to admit the material the Crown has tendered. I appreciate the consequences that may have for the Crown case. 57 In consequence of the ruling I have made, the Crown Prosecutor will be seeking instructions to abandon the prosecution as it presently stands, accepting that there is no such evidence as would warrant it proceeding. 58 Application is however made by each of the accused for the present indictment to be stayed, except in the event that the Crown should enter a nolle prosequi. The Crown cannot resist and does not resist that application. Such a stay may be perpetual, absolute and unconditional. But it is not "no matter what". 59 In the event, as with a nolle prosequi, the Crown finds other evidence which would sustain the prosecution it will remain open to the Crown to move to set aside the stay and to proceed with a trial. Such an event however would require an application to the court to dissolve the stay. 60 In the circumstances the prosecution of each of the three accused for the offences now charged, which I have set out at the commencement of this judgment, is, except for the circumstances I have referred to, permanently stayed. ******

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