Chen v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mr Chen, sought leave to appeal against a decision of a lower court. The Crown was represented by Mr B.D. Bongiorno, OC, and Mr P.G. LaCava, while Mr D. Grace appeared for the applicant.

The central legal issues before the High Court concerned the admissibility of tape recordings as evidence. Specifically, the applicant argued that the trial judge erred in admitting two tape recordings into evidence. The applicant contended that despite concessions regarding the identity of the voices on the tapes and a general statement by the applicant that a recording "seems to be the conversation I had," these concessions did not amount to an admission of the accuracy of the tapes. Furthermore, the applicant highlighted that the makers of the tapes were unavailable or unreliable, and expert evidence could not exclude the possibility of tampering, even though no evidence of tampering was found.

The High Court considered the principles governing the admission of tape recordings, referencing the decision in *Butera v The DPP*. While acknowledging that tape recordings are accepted as evidence of conversations, the Court noted that their admissibility is subject to certain conditions, including the satisfactory establishment of their provenance. The applicant's argument was that these conditions were not met in this instance, particularly given the lack of concession on accuracy and the circumstances surrounding the tape makers. The Court also considered whether the applicant's unsworn evidence at the first trial constituted a sufficient admission of accuracy.