and William Christos v The Queen
[2013] VSCA 202
•6 August 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0117 | |
| WILLIAM CHRISTOS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE and COGHLAN JJA and DIXON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 August 2013 |
| DATE OF JUDGMENT | 6 August 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 202 |
| JUDGMENT APPEALED FROM | R v Christos and Tsambos (Unreported, County Court of Victoria, Judge Taft, 23 March 2011) |
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CRIMINAL LAW – Conviction – Attempt to possess commercial quantity of border controlled drug (heroin) – Transcript and recording of covertly recorded conversation between appellant and co-accused – Whether, because transcript obtained from poor quality recording, it would be highly prejudicial to appellant – Whether judge erred in directions as to use jury could make of transcript – R v Giovannone (2002) 140 A Crim R 1; Butera v Director of Public Prosecutions (Vict) (1987) 164 CLR 180; R v O’Neill [2001] VSCA 227, applied.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Ms S F Thomas | Robert Stary Lawyers |
| For the Respondent | Mr D D Gurvich | Commonwealth Director of Public Prosecutions |
NETTLE JA:
Following a nine-day trial in the County Court, on 7 April 2011, the appellant (now aged 60) was convicted of one charge of attempting to possess a commercial quantity of a border controlled drug (namely heroin) and sentenced therefor to nine years’ imprisonment with a non-parole period of six years and three months. One of his two co-accused, Peter Tsambos, was acquitted of one charge of attempting to possess a commercial quantity of a border controlled drug (heroin) and the other co-accused, Zaheen Azizi, pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled drug (heroin).
Grounds of appeal
On 23 November 2012, Tate JA granted the appellant leave to appeal against conviction on two grounds:
1)Ground 1: The trial judge erred in ruling that the recording and transcripts of the applicant and Azizi at Kennards Self-Storage be admitted into evidence.
2)Ground 3: The trial judge erred in his directions about the evidence referred to in Ground 1.
Her Honour refused leave to appeal on two other grounds and the application for leave to appeal on those grounds has not been renewed.
The Crown case at trial
The Crown case at trial was that the offending occurred between 18 February and 8 March 2009, during the course of an Australian Federal Police ('AFP') investigation into a heroin shipment from Afghanistan to Australia. As part of that case, the Crown adduced uncontradicted evidence of the following facts:
1)On 18 February 2009 the appellant attended Kennards Self-Storage in Preston and reserved a storage unit and on 28 February 2009 he enquired about a second unit.
2)On 28 February 2009 Pakistani authorities identified a consignment of 10 bundles of carpet comprised of four carpets per bundle. Upon examination, it was discovered that 'straws' containing heroin were sewn into one carpet in each bundle.
3)The consignment was addressed to the co-accused Peter Tsambos.
4)On 1 March 2009 the consignment arrived at Melbourne Airport. The AFP removed the carpets containing the heroin. The amount of pure heroin was in excess of 7 kg.
5)The AFP intercepted telephone calls between the appellant and his two co-accused at the relevant time.
6)On 4 March 2009, the appellant and Tsambos attended Melbourne Airport. They presented a bill addressed to Tsambos for 445 kg of carpets. The appellant was evidently interpreting for Tsambos. The appellant told airport staff that Tsambos was the owner of the carpets, that they were samples and that an agent would be appointed to assist in clearance of the consignment.
7)The appellant also provided details of the Kennards storage unit for delivery of the consignment.
8)On 5 March 2009, Azizi contacted the appellant by telephone and discussed the consignments and delivery arrangements. Azizi said to the appellant that the storage unit was 'your responsibility and no one is allowed to look at it except you and me'. The appellant said, 'Apart from you and me and Tony (which is a reference apparently to Tony Descars)[1] nobody knows anything'. Later that evening the appellant, Tsambos and Azizi met at a shopping centre.
[1]Tonin Dazcazh; see ROI Q 395.
9)On 6 March 2009, the consignment was delivered to Kennards. The appellant was present.
10)The appellant spoke to Azizi later that day and stated, 'Everything’s gone good'. Azizi responded, 'Now it's your responsibility'.
11)On 8 March 2009, the appellant and Azizi were seen arriving at Kennards storage. A listening device had been installed by the AFP in the unit and generated a recording of Azizi's and the appellant's conversation.
12)The recording was of poor quality with numerous inaudible passages. A transcript was prepared by a Federal Agent, Ms Grant. She was cross-examined at the committal and examined in chief on a voir dire inquiry into the admissibility of the evidence. She deposed that she had prepared the transcript by listening to the recording on headphones over a three-day period and then by listening to an enhanced recording of the conversation, at some points between 40 and 60 times, to get the transcript as accurate as possible.
13)The Crown contended that the appellant and Tsambos were aware or believed that heroin was hidden in the carpets, and the Crown relied on the following circumstantial evidence as establishing that was so:
a)The appellant's four attendances at Kennards between 18 February and 8 March 2009.
b)The appellant's dealings with ABS Logistics and Customs, and his physical collection of the carpets.
c)The telephone intercept on 5 March 2009 wherein Azizi told the appellant that the storage unit was his responsibility, and no one was allowed to look at it except he and the appellant, as well as the telephone intercept on the same date during which the appellant told Azizi they needed to talk face-to-face and not on the telephone.
d)A 'clandestine' meeting at Coles Centro at 10 pm on 5 March 2009 between the appellant, Azizi and Tsambos.
e)An intercept of a telephone conversation of 6 March 2009 wherein Tsambos told the appellant, 'I was dying from agony'.
f)An intercept of a telephone conversation of 6 March 2009 wherein the appellant and Azizi discussed inspecting goods on the following Sunday (being the Sunday of a Labour Day long weekend), and Azizi told the appellant to make sure nobody touches it or opens it until he was there. The appellant replied that even his friend Peter (who, it may be inferred, was Peter Tsambos) did not know where it was.
g)The listening device conversation of 8 March 2009 at Kennards wherein the appellant was heard to say, amongst other things:
(i) 'These are much better than the last ones';
(ii) 'At least they are different colours';
(iii)'I can't understand how they could tell you that there is one in here that is different from the others. It doesn't make sense'; and
(iv) 'So far I haven't seen a hand-stitched one'.
h)Hand-written documents linking the appellant to Tsambos, and both men to Azizi.
i)Both the appellant and Azizi lied in their records of interview. The appellant said he did not know what was being imported, that he did not tell anyone else that the consignment had arrived, and that 'Albert'[2] did not know Tsambos.
[2]This was a name saved in the appellant’s mobile phone which matched a number belonging to Azizi.
The Defence case at trial
There was no dispute as to most of the objective facts of the matter. The defence was that there was insufficient evidence to establish beyond reasonable doubt that the appellant knew or believed that there was heroin in the carpets. Defence counsel argued that the appellant's conduct in going to Kennards, ABS Logistics and Customs, and in using his own mobile telephone, car and email, ill accorded with what one would expect of someone knowingly involved in drug trafficking; the meeting at Coles could not properly be described as 'clandestine'; the words used by the appellant did not reveal knowledge of heroin in the carpets; Azizi did not refer to drugs or to heroin when conversing with the appellant; and, in relation to the recorded conversation of 8 March 2009, the Crown had 'cherry-picked' selective phrases divorced from context which could not properly be appreciated because the quality of the recording was so poor. It followed, in counsel's submission, that the jury could not exclude as a reasonable possibility that the appellant and Tsambos were innocent victims who had been duped by Azizi and others. It was conceded that the appellant had told lies to the police in his record of interview. But it was submitted that there were any number of reasons why an innocent person may not answer questions truthfully and, consequently, that it was not open to the jury to infer that the appellant's lies were indicative of guilt.
Ground 1
Before the jury was empanelled, defence counsel applied to have the enhanced recording of 8 March 2009 conversation and the transcript of the conversation excluded on the basis that it was more prejudicial than probative. Contrary to the Crown's contention, he submitted that it was not open to infer from what could be heard of the recording that the appellant and Azizi were looking through the bundles of carpet to find specific carpets containing heroin. It followed, counsel submitted, that it was not sufficiently probative of a fact in issue to be admissible; or alternatively, if it were at all probative, its probative value was so much outweighed by its prejudicial effect that it should be excluded.
The judge ruled that the recording should be admitted. His Honour stated that the fact that parts of the conversation were not clear was not sufficient basis for exclusion and that any risk of prejudice could be sufficiently contained by appropriate direction as to the use to be made of the transcript. As his Honour put it:
The conversation lasts for about one hour and 45 minutes. A transcript has been prepared. On a voir dire Federal Agent Rosalyn Grant, the informant in this matter, gave evidence that she had prepared an initial transcript of the conversation and had prepared a revised transcript after the conversation was enhanced.
I have had the advantage of listening to a significant component of that conversation on the voir dire with the additional benefit of the transcript as an aid. It must be said that many passages of the conversation are inaudible and other sections are of poor quality. However, there are some components of the conversation in which clear words can be heard without difficulty.
The prosecution contends that the conversation reveals Mr Azizi and Mr Christos looking through the carpets in an effort to find specific carpets impregnated with heroin. In my view, there are a number of passages of clear conversation which would allow that inference to be drawn.
At various times Mr Christos can be heard stating that he and Mr Azizi have gone through three bundles of carpets without finding something they expect to be present. At 1:48:15 Mr Christos is alleged to say, 'Let's see what we've got. One, two, three…(inaudible)…in every, in every bundle…I can't understand how they could tell you that there is one in here that is different from the others. It doesn't make sense…' Somewhat later Mr Christos states at 2:05:15, '…So far I haven’t seen a hand-stitched one unless…'.
These are but two of several components of the conversation which I consider to be both relevant and highly probative of the critical fact in issue being whether Mr Christos was aware or believed that a border controlled drug was contained in the carpets.
In my view the fact that all parts of the conversation are not clear does not properly found a discretionary basis for the exclusion of the conversation. The jury will be required to given directions as to the use of the transcripts.
Counsel for the appellant contended that the judge was wrong. In her submission, the recording was of such poor quality, with over 300 inaudible passages and others which were incomplete and unintelligible, that it could not safely be relied upon as founding the inference for which the Crown contended. She emphasised that, even with the enhancement to which Federal Agent Grant had subjected the recording, she had had to listen to the recording in places between 40 and 60 times and that, as a result, had altered many passages of the original transcript in order to produce the final transcript of the enhanced recording.
Further or alternatively, counsel said, it was unrealistic to suppose that the jury would listen to the recording time after time as Ms Grant had done. Given the poor quality of the recording and its multiple inaudible passages, there was a real risk that the jury would simply substitute the transcript for the recording. The transcript, therefore, was highly prejudicial and the degree of prejudice was exacerbated by the fact that it included the conversation in Pashtu between Azizi and the unknown third person which the appellant could not have understood.
Taking each point in turn, I do not consider that the judge was wrong in holding that the fact that passages of the recording were unclear or indecipherable, did not render the recording inadmissible. As Mason P said in R v Giovannone:[3]
… the poor quality of a tape recording does not render it inadmissible per se, at least in circumstances where parts of it can be heard and deciphered. These matters will generally be matters of weight for the jury.[4] As the Crown points out, the fact that a recording is indistinct or of a poor quality has traditionally been the reason for the admission of a transcript into evidence.[5]
[3](2002) 140 A Crim R 1, [51].
[4]R v Travers (1957) 58 SR(NSW) 85, 98, 108-109.
[5]R v Dellapatrona (1993) 31 NSWLR 123, 132, Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, 187-188.
Like the judge, I have listened to the recording and, although parts of it are undoubtedly very difficult to follow and other parts of it are completely indecipherable, there are sections of it which very strongly imply that the appellant and his co-accused were searching for drugs which they expected to find in each fourth role of carpet and that they were particularly upset when it appeared that the drugs were not present. The significant parts of the transcript include the following:
At p 6 (47:36) and following:
CHRISTOS: Here's number four and we've still got this remember … (inaudible) …
AZIZI: And there is not one in each like that … (inaudible) … fucked up
CHRISTOS: Yeah … (inaudible) … do you want to leave it till then call him
AZIZI: No it's better if I check it and then call him say this is checked
CHRISTOS: Yeah
AZIZI: But he's gunna say you check the rest
CHRISTOS: Right
[…]
(49:45)
CHRISTOS: It just went there
AZIZI: This is the one. It doesn't have any
CHRISTOS: Hey, it's the only one we've found that … hasn't got that thing on it.
There are other audible and probative passages which appear at p.5 of transcript at (41:30):
CHRISTOS: For this lot but the main thing is for you to know exactly which ones it is like I said it's not very good …;
And the following (44:50):
AZIZI: Now I'm panicking like last time like I know this cunt. He … (inaudible) … and he knows where I live …
At p 13 (1:48:15), there is this:
CHRISTOS: Let's see what we've got one, two, three … (inaudible) … in every in every bundle … I can't understand how they could tell you that there is one in here that is different from the others it doesn't make sense … (inaudible) … one, that's two …
There is also the following section of the recording, transcribed at pp.16 to 18, which is particularly clear and includes this:
AZIZI: No fuck me, are you one hundred per cent sure no one's been here?
CHRISTOS: Guaranteed. Guarantee you. Since since they came from the airport and then got stacked here, nobody's been near the place. I was the only person that came here well. Peter … (inaudible) … knows and even if I did know they'd been all opened up, somebody would've gone through them. Look at the one standing there. Does it look like it's been opened?
AZIZI: … that he just can't see … (inaudible) … it's just … (inaudible) … can't see well if it's not there
CHRISTOS: Exactly. That's the fucking question. Hey I was expecting … (inaudible) … the last lot. I've been through everything. This lot this lot is not so heavy as the other one but ah the problem is like you said …
…
AZIZI: That's why if you reckon now they're gunna sit down and … (inaudible) … no no … (inaudible) … fuck it … (inaudible) … and I'm gunna find out who fucked up
CHRISTOS: Yeah you can barely see a … (inaudible) … but with this package now if you extend it you'll find it in three and four but somebody had … (inaudible) … maybe logically the only other person
…
CHRISTOS: Yes … (inaudible) he will say … (inaudible) … it's not big the description that they've given just not correct … (inaudible) … they're saying there's four and there are only three in each bundle. Well, where's the fourth but the last lot that's bullshit. That's bullshit that …
In my view, the judge was right to admit both the decipherable and indecipherable parts of the recording; the latter being necessary for balance.[6]
[6]R v Cornwell (2003) 57 NSWLR 82, [31]-[35]
Equally, I do not accept that there is anything in the point that, because Ms Grant had to listen to the recording many times in order to decipher some of its contents, the enhanced transcript was likely to mislead the jury. Rather, to the contrary, as Cooke J observed in Reg v Menzies[7] in a passage which the High Court expressly adopted in Butera v Director of Public Prosecutions (Vic):[8]
The problem is how best to enable a jury to assess the contents of a tape, in the light of those aims. It is a problem sui generis and not automatically
answered by settled principles. If the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape. But there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language. Or 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. And we see no compelling reason why his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused.
[7][1982] 1 NZLR 40, 49.
[8](1987) 164 CLR 180, 187-188.
In any event, I do not see how or why the jury's use of the transcript could have been productive of a miscarriage of justice.[9] It was not suggested at trial and, despite the large amount of time since trial in which to compare the recording with the transcript, it is not even now suggested that the transcript was inaccurate. It is also clear that the jury were on notice as to the care to be exercised in considering the recording and transcript.
[9]See R v O’Neill [2001] VSCA 227, [71] (O’Bryan AJA).
In those respects, the recording and transcript of the conversation are to be distinguished from the recording and transcript where were held to be inadmissible in FG v R.[10] There, a recording of raucous and confused family conversation and the transcript of the recording had been heavily edited. The deletions included a potentially critical passage which might have shown that utterances on which the Crown relied as an admission of allegations made earlier in the conversation were in truth an apology for other non-criminal misdemeanours which were also the subject of conversation. The jury were not told of the editing nor warned about its possibly misleading consequences. Nor were they directed that the accusations made against the accused were not of themselves probative of the accused's guilt. Unsurprisingly, it was held that the probative value of the edited recording was so slight compared to its prejudicial effect that the recording should have been excluded.[11]
[10][2012] VSCA 84.
[11]Ibid [27]-[32].
In contrast, in this case it is not suggested and it is not the case that the indecipherable aspects of the recording are likely to have led the jury to make any mistake about the subject matter of conversation and plainly the jury were on notice as to the inherent limitations of the recording and transcript.
Finally, as to Ground 1, I do not think there to be anything in the complaint that the judge was wrong in admitting that part of the recording which included the conversation between Azizi and a third person in Pashtu.
Only one side of that conversation was recorded, which was what Azizi said in Pashtu to the third person, and there was no exception taken to the translation of it. It was apparent from the remainder of the transcript that, immediately after the Pashtu conversation concluded, the appellant asked Azizi in English what did 'he' (meaning the third person) say. It can also be gleaned from the remainder of the transcript that Azizi answered the appellant (consistently with the content of the Pashtu conversation) that 'he' (meaning the third person) said that there should be a carpet or carpets which was or were of a different design to the others. Hence, the fact of the Pashtu conversation, as opposed to the truth of its contents, was important circumstantial evidence which informed and explained the immediately subsequent conversation between the appellant and Azizi.
The relevant aspects of that conversation between the appellant and Azizi following the Pashtu conversation were as follows:
At page 10 (1.34.00)
CHRISTOS: What's he say?
AZIZI: He's saying what do you mean … (inaudible) … I don't know man … (inaudible) …
CHRISTOS: But every one of these has a flower designs [sic]. Is he is saying there is no fucking thing without a design? It's bullshit, it can't be. As we can see every one is the same format … (inaudible) … design…
…
AZIZI: Remember the last one we got off him there was - - -
CHRISTOS: And that was a fucking - - -
AZIZI: Remember the last one we got off him there was - - -
CHRISTOS: And that was a fucking - - -
AZIZI: Yeah … (inaudible) … what the fuck ..
…
CHRISTOS: Let's see. We've got one, two, three in every, in every bundle … I can't understand how they could tell you that there is one in here that is different from the others. It doesn't make sense… (inaudible)… one, two,… (inaudible)…
…
CHRISTOS: Someone's got to have a fucking answer for it
AZIZI: Well it's got to be here, it's got to be here. Well, have you checked … (inaudible) … everywhere that there's something here … (inaudible) … Well this might turn out to be pretty bloody empty … (inaudible) … meant to be in four …
…
CHRISTOS: Well he says there are four … (inaudible) …
AZIZI: I'm checking … (inaudible) …four … inaudible) …
CHRISTOS: … (inaudible) … if he's right … (inaudible) …
As I see it, that would have enabled the jury to comprehend that the appellant and Azizi were both surprised and disappointed to find that the shipment of carpets which they inspected did not accord with what Azizi knew and the appellant believed the third person had said about one or some of the carpets being of a different design to the others. Taken in conjunction with the evidence aliunde that the heroin had been included in every fourth carpet in the shipment, and the appellant's involvement in procuring the Customs clearance of the carpets, it provided a sound circumstantial basis from which to infer that Azizi and the appellant were searching for heroin which they believed would be there. Consequently, the fact of the Pashtu conversation (as opposed to the truth of its contents) was highly probative of guilt and, since it was not suggested that the appellant understood the Pashtu conversation (as opposed to what Azizi told him about it), or that the Pashtu conversation could be relied upon for its testimonial value, there was nothing improperly prejudicial about its admission.
In the result, I reject Ground 1.
Ground 3: Directions
Turning to Ground 3, I do not accept that the judge's directions as to the use which could and could not be made of the transcript of the recording would have left the jury in any doubt. As the High Court held in Butera:
The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but so as to aid them in what conversation is recorded on the tape, and that they cannot use the transcript as a substitute for the tape if they are not satisfied that the transcript correctly sets out what they heard on the tape. In Hopes v. Her Majesty's Advocate, the evidence (set out in a transcript) of a person who listened to an indistinct tape played over out of court was held to be 'very doubtfully· competent' on the ground that it was primary evidence by an ad hoc expert of the tape's content. With respect, it seems better to acknowledge that such a transcript is merely an aid to the jury's understanding of the evidence derived from playing over the tape in court.[12]
[12]Butera v Director of Public Prosecutions (Vict) (1987) 164 CLR 180, 188 (citation omitted, emphasis added); see also R v O’Neill [2001] VSCA 227, [85] (O’Bryan AJA).
Consistently with that imperative, before any recordings were played the judge directed the jury that:
Ladies and gentlemen, before we commence with the playing of this material, there is a direction that I must give you. You’ve received transcript of telephone intercepts. The evidence is not the transcript; it is the recording. The transcript is provided as an aid.
As you would appreciate, the transcript is as good as the person who transcribed it. You must be careful not to substitute for what you hear the words on the transcript. You also must be careful not to allow the suggested words on the transcript to deflect from the original recording and what you hear.
I emphasise that it is the words that you hear, not the transcript, that is the evidence, and that the transcript is provided to you as an aid. If the transcript is in error or you hear words that are different, it is the words that you hear, not the transcript, that is the evidence.
You would well understand that a listener may get things wrong and therefore, a person who prepares transcript may make innocent mistakes or interpret words in a manner that is different from the way in which you hear them. You must always be conscious that the evidence is the recording and the words that you hear on that recording.
Then, shortly before the subject recording was first played to the jury, the judge directed them that:
The evidence is what you hear. Transcript is provided as an aide. If what you hear differs from the transcript, rely on what you hear not on the transcript. Be careful not to substitute for what you hear, the words that you read on the transcript. There is always a danger of reading transcript and then hearing the words that conform to the transcript. The transcript is an aide; the evidence is what you hear.
Finally, in the course of the charge at the conclusion of the trial, the judge gave further directions:
As I have previously instructed you, the evidence is what you hear, and if what you heard differs from any of the transcripts you have received, disregard that portion of the transcript. I remind you that you must be careful not to substitute the transcript for the words you can hear in the recorded telephone intercepts, or the listening device recording at Kennards Self Storage on 8 March 2009.
I see no reason to doubt that the jury would have abided by those directions and, apart from the deficiencies in the recording to which I have already referred, none has been suggested. Accordingly, I reject Ground 3.
Conclusion
In the result, I would dismiss the appeal.
COGHLAN JA:
I agree.
DIXON AJA:
Having also listened to the recording, I agree with Nettle JA for the reasons that he gives that the appeal should be dismissed.
NETTLE JA:
The order of the Court is that the appeal is dismissed.
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