R v Aboukhalil (No 2)

[2019] NSWDC 799

District Court

New South Wales

Medium Neutral Citation:	R v Aboukhalil (No 2) [2019] NSWDC 799
Hearing dates:	15 May 2019
Date of orders:	15 May 2019
Decision date:	15 May 2019
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	Decline to admit the transcript or sound recording of CCTV footage.
Catchwords:	CRIMINAL LAW – security device - CCTV sound recording – transcript of sound recording - apartment block – hallway – residential common area - private conversations - whether parties to conversation ought reasonably to have expected that it might be overheard
Legislation Cited:	Evidence Act 1995, s 135, s 137, s 138 International Covenant on Civil and Political Rights, item 17 Surveillance Devices Act 2007, s 4, s 7
Cases Cited:	La Trobe Capital and Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4 Masri & Masri [2017] FamCA 539 Right v Stevens [2009] WASC 102 Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133
Category:	Procedural and other rulings
Parties:	Regina Ibrahem Aboukhalil (Accused)
Representation:	Counsel: Mr C Evans (Crown) Mr T Hughes (Accused)   Solicitors: Office of Director of Public Prosecutions (Crown) Elie Rahme & Associates (Accused)
File Number(s):	2017/242685
Publication restriction:	None

Judgment

1. On the Crown case, Zachary Kennedy gave an account to police of being waved down by a man as he was driving at about 7.30pm. When Mr Kennedy stopped, two men got into the car, one in the front passenger seat and one behind that passenger. The man in the front passenger seat pointed a gun at Mr Kennedy and the man in the rear held a large knife against Mr Kennedy’s chest. As Mr Kennedy withdrew his foot from the brake, the car began to roll forward and he escaped from the car, although he was wounded by the knife in the process. Another man confronted Mr Kennedy outside the car. Mr Kennedy managed to run away. The three men and a fourth drove away in the car.

2. Four men were charged with robbery of the car with wounding, alternatively, wounding, and assault with intent to take a motor vehicle. The accused, Mr Ibrahem Aboukhalil, pleaded guilty to the alternative count of assault with intent to take a motor vehicle. The Crown has not accepted that plea. The primary issue in the trial seems to be whether the Crown can prove that the accused was involved in the common purpose of assaulting Mr Kennedy with the knife, causing the wounding.

3. The issue in this application on the voir dire is whether certain audio recordings should be admitted into evidence. The recordings were made by a CCTV security system in the hallway, adjacent to the lift doors on the floor of the apartment building where Mr Aboukhalil lived. It recorded the moving visual images and the conversations of three of the men, including Mr Aboukhalil, shortly before the incident with Mr Kennedy as well as conversations between the four men after the incident. There is no objection to the moving visual images being admitted.

4. The CCTV footage on the same evening also recorded the movements and conversation of Mr Aboukhalil and an unknown fifth person in the same lift area. By the end of the application, the Crown did not press that the sound recordings and transcript of that conversation be admitted as part of the evidence.

5. Part of the sound recordings are said to comprise the words contained in a transcript, the contents of which are disputed. Some substantial parts of the sound recordings are so indistinct as to be unable to be transcribed. A police officer’s summary of the sounds is as follows:

“12. At 7:10pm on 7th June 2017 Ibrahem Aboukhalil, Haydar Alzanati and Jason Kahla are captured on CCTV in a common area of the 21st floor of 2 Mary Street Burwood having a conversation.

At 7:11:01pm Ibrahem Aboukhalil says ‘Nah, I’ll get Matty (indistinct) I’ll be the right passenger.’

At 7:11:12pm Ibrahem Aboukhalil says ‘Once we open the doors, he’ll jump out … (indistinct) … car … (indistinct).’

13. At 8:13pm on 7th June 2017 Matthew Guirguis, Haydar Alzanati, Ibrahem Aboukhalil and Jason Kahla are captured on CCTV in a common area of the 21st floor of 2 Mary Street Burwood having a conversation.

At 8:13:48pm Jason Kahla says ‘And you know what I thought of … I said that Matty will knock the fucken … (indistinct) and then you’ll come’ *laughter*.

At 8:13:59pm Haydar Alzanati says ‘We were running up the (indistinct) and go (indistinct) that Matty!’ *makes the sound of a car speeding away*

At 8:14:30pm Haydar Alzanati says ‘Hey this full thing looked like it’s fucking gaping hey?’ to which all four accused laugh and Matthew Guirguis replies ‘It’s all right, I don’t mind cuz. Fuck bro. Straight out bro. It’s our area bro’.

At 18:14:49pm Ibrahem Aboukhalil says ‘Cause I was gonna grab (indistinct) with you. And then (indistinct) and ran off!’

At 8:14:55pm Jason Kahla says ‘Cuz, I’m telling you, we are lucky I jumped into the passenger seat’.

14. At 10.22pm on 7th June 2017 Ibrahem Aboukhalil and an unknown male are captured on CCTV in a common area of the 21st floor on 2 Mary Street Burwood having a conversation.

At 10:24:25pm Ibrahem Aboukhalil says ‘Listen, the boys don’t know that you know what we did ok?’”

6. The accused opposes the admission of the sound recordings on two interrelated bases: the illegality of the recording and the discretion in s 138 of the Evidence Act 1995, and also the discretion in ss 135 and 137 of the Evidence Act 1995.

Illegality

7. Section 138 of the Evidence Act 1995 provides in subs (1):

“(1) Evidence that was obtained:

(a)  improperly or in contravention of an Australian law, or

(b)  in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”

8. Subsection (3) provides:

“(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)  the probative value of the evidence, and

(b)  the importance of the evidence in the proceeding, and

(c)  the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d)  the gravity of the impropriety or contravention, and

(e)  whether the impropriety or contravention was deliberate or reckless, and

(f)  whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g)  whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h)  the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

9. The impropriety or illegality alleged in connection with the evidence is based on s 7 of the Surveillance Devices Act 2007. Section 7(1) provides:

“7   Prohibition on installation, use and maintenance of listening devices

(1)  A person must not knowingly install, use or cause to be used or maintain a listening device—

(a)  to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b)  to record a private conversation to which the person is a party.

…”

10. Importantly, the term “private conversation” is defined in s 4 of the Act. “Private conversation” means:

“any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only—

(a)  by themselves, or

(b)  by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.”

11. There did not seem to be any real dispute that the primary words of the definition of “private conversation” are satisfied in these recorded conversations. The recordings are of conversations between persons on a subject matter private to the parties in an empty hallway, adjacent to a lift, in the common area outside closed apartment doors.

12. These conversations, given their content, “may reasonably be taken to indicate that” the conversations were desired by one or more of the participants to be listened to only by themselves.

13. Accordingly, the issue of illegality turns on whether the exception applies. Ought parties to conversations in a hallway adjacent to a lift door and outside closed apartment doors reasonably expect that their conversations might be overheard by others?

14. In the absence of other evidence about the operation of the security device, I would infer from the recordings and the presumption of continuity that the security device records all conversations adjacent to the lifts, 24 hours every day, including conversations that can be heard by a person adjacent to the speaker but not spoken at a volume that can be heard inside an apartment on the floor when the apartment door is closed. The recording device, as best as can be inferred, seems to be located above the location where people would ordinarily wait for the lift.

15. In those circumstances, there is no basis to infer that the device only records things which might ordinarily be heard by others. If it commonly records conversations not ordinarily heard by others, there is no reason to infer that parties to such conversations would expect that the conversation might be overheard. There were two apartment doors in reasonable proximity to the lift, but the conversations are recorded irrespective of whether the apartment doors are closed or those apartments were, or were known to be, unoccupied generally or unoccupied at the relevant time, or the occupants of those apartments were asleep, or listening to music, or watching television or a computer screen, or otherwise engaged in activities that would preclude them hearing anything in the hallway.

16. The acoustic qualities of the front doors to the apartments were not in evidence. But I would not infer that normal building standards would result in doors that readily permit the transfer of all sounds from the hallway, even if some sounds from the hallway might be heard. I do not think that the theoretical and apparently extremely small possibility that someone may have an ear to one of the two proximate apartment doors shown in the visual footage, or to the unopened lift door, even at, say, 3am, so as to be able to hear what is picked up by the device immediately adjacent to the conversation, is sufficient to enable the conclusion that everybody who has a conversation in the lift area (because all conversations are inferentially recorded) ought reasonably to expect that others may overhear. Such a conclusion would be contrary to the evident purpose of s 7, to protect private conversations, including those occurring privately in a public place. If s 7 was intended only to protect conversations in a private place, like a private dwelling or a vehicle, it would have been a simple matter for s 7 to so provide. I do not think that the exception, in the context of the provision, was intended to embrace all private conversations in public places.

17. I raised with the parties the question of whether the overhearing might be constituted by the security device itself, which, on one view, might be expected to be in the common area of an apartment building. But there was no evidence of any disclosure of the sound recording function of the device and no other warning to alert parties such that they ought reasonably to expect that their conversations would be overheard or recorded.

18. The approach taken in Masri & Masri [2017] FamCA 539, especially at [45] and [55], in Right v Stevens [2009] WASC 102 at [22], and in Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [16] and [17], indicate that the circumstances in this case do not prevent private conversations being recorded, and that therefore there is a contravention of s 7 of the Surveillance Devices Act 2007. Although there was no evidence of the body corporate’s intent in installing the device, I would infer that it was to record all conversations in the lift area, since it would seem reasonable to infer that the body corporate understood the function of the device that it had arranged to be installed.

19. It follows that this sound recording device that picks up private conversations in the lift area contravenes s 7 and is illegal. Whether that should lead to the exclusion of this evidence depends on the matters in s 138(3) of the Evidence Act 1995.

20. Before I discuss those considerations, some greater detail about the recording should be noted. The sound quality is poor. It was poorer still in its raw state, but has been enhanced so that some words can be made out. Even with the enhancement and the investigating officer listening to the recording more than 100 times, only 25% or less of the conversations can be identified and reduced to a transcript. That transcription of 25% is not undisputed and remains unclear.

21. The transcript is, as has often been noted, another person’s view of what was said, and can be disregarded by the jury if they come to a different view as to the words that were spoken. The jury could only be expected to reach a view, including perhaps the same view as the transcriber, if they listened to the recording perhaps 100 times. On one listening, I could not be confident of the accuracy of the transcript. Without the transcript, I do not think the sound recording can be helpful. Further, the circumstance that the large majority of the conversation is not transcribed, only a word here or a sentence there, raises the real possibility that those words and sentences are taken out of context and convey a meaning different to that which was intended.

22. I return to the matters in s 138(3), which specify some potentially relevant considerations.

23. First, the probative value of the evidence. In my view, the probative value of the evidence is limited because of the lack of context, because the evidence makes no reference to a gun, knife or weapon, or, in direct express terms, the wounding, and uses words that are equivocal and could refer either to the Crown’s assertion or to the admitted car theft in count 3, or to other car trips engaged in by the accused and the other men. This matter is a factor against admission of the evidence.

24. Secondly, the importance of the evidence in the proceeding. The Crown does not assert that the evidence is crucial to establish a common purpose. It is not clear that the evidence goes any further than what may be inferred from the guilty plea to count 3, as I indicated, because of the absence of any reference to a gun or knife. There is a reference to one of the men using the word “gaping” after the incident with Mr Kennedy, but I cannot see how that statement after the event, even assuming its transcription and context are correctly recorded, would be highly probative evidence that the accused knew, before or at the time of the offence, of the possibility of a knife or weapon being used.

25. Thirdly, s 138(3)(c) speaks of the nature of the relevant offence, cause of action or defence. In this case, the offence is a serious crime of violence and, all other things being equal, seems to favour the admission of the evidence as relevant evidence going to the offence.

26. The fourth item is the gravity of the impropriety or the contravention. The contravention is engaged in by the body corporate in installing the listening device. It is not properly to be regarded as a trivial contravention since it records all private conversations and, as I indicated earlier, I should infer that the body corporate knew of this feature. The ownership of property and whether or not the owner was aware of the prohibition does not create an entitlement under s 7 of the Surveillance Devices Act 2007 to record all conversations on that property.

27. The fifth item is “(e) whether the impropriety or contravention was deliberate or reckless”. For the reasons I have given, the conduct of the body corporate seems to be deliberate. I do not by that characterisation intend to suggest that the body corporate intentionally committed a breach of the Evidence Act 1995, although I would infer that the prohibition against a non-consensual recording of conversations is widely known. This is a matter which militates against admission of the material.

28. The sixth consideration is whether the impropriety or contravention was contrary to or inconsistent with the rights in the International Covenant on Civil and Political Rights. A right of privacy is recognised in item 17 of the Covenant. Whether the content of that right extends to private conversations in a non-private place is uncertain.

29. The seventh consideration is whether any other proceeding, whether or not in court, has been or is likely to be taken in relation to the impropriety or contravention. I have no evidence of past proceedings but I would not suppose that past or future proceedings would be likely.

30. The final statutory consideration is “the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law”. Obtaining the particular evidence of the sound recording might be very difficult, perhaps impossible. The device might potentially be rendered lawful through appropriate warnings that would alert persons to their conversations not being private. But such a warning may impact upon what conversations might then have been available to be recorded. It is uncertain whether this factor might work in favour of or against the admission of the evidence.

31. Generally, the application of these factors to the circumstances of this case militates against the admission of the evidence.

32. I would also take into account the capacity of the sound recording to be prejudicial, even highly prejudicial. The absence of at least some of the context of the conversations, and the possible errors, may cause the meaning of the transcription to be substantially different from what was actually said or admitted about the planning of the incident. The relevance of the prejudicial effect of the evidence is a matter expressly referred to in ss 135 and 137 of the Evidence Act 1995.

33. Further, there is no opportunity to test the evidence, at least in the Crown’s case. Those who are said to have spoken these words are not proposed to be called as witnesses so the defence cannot explore the context in which they were said. As the Full Federal Court noted in La Trobe Capital and Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4 at [67], “[t]he requirements for giving evidence about the effect of conversations are more stringent than for most other forms of evidence”.

34. For all of those reasons, I decline to admit the transcript or the sounding recording.

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Decision last updated: 10 February 2020