R v Cassar; R v Sleiman

[1999] NSWSC 436

CITATION:	Regina v L Cassar; Regina v E Sleiman (Judgment No 17) [1999] NSWSC 436
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70036/98; 70216/98
HEARING DATE(S):	07/05/99
JUDGMENT DATE:	10 May 1999
PARTIES :	Regina v Leanne Cassar; Regina v Emad Sleiman
JUDGMENT OF:	Sperling J

COUNSEL :	For Crown: M L Barr For Accused Leanne Cassar: D N Stewart For Accused Emad Sleiman: K G Horler AM QC
SOLICITORS:	For Crown: F Gray (DPP NSW) For Accused Leanne Cassar: John Bettens & Co For Accused Emad Sleiman: Ross Hill & Associates
CATCHWORDS:	EVIDENCE - recorded conversations - admissibility of transcripts - use to be made of transcripts - admissibility of evidence authenticating transcripts.
ACTS CITED:	Evidence Act 1995 ss 48(1) 135-137
CASES CITED:	Butera v Director of Public Prosecutions (Vict) (1987) 164 CLR 180 Menzies [1982] 1 NZLR 40 Eastman (1997) 158 ALR 107
DECISION:	Transcripts of recorded conversations admissible. Evidence authentiating transcripts admissible.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

SPERLING J

Monday 10 May 1999

70036/98 - Regina v Leanne Cassar
70216/98 - Regina v Emad Sleiman

JUDGMENT NO. 17

HIS HONOUR:
1 In December 1997, conversations between the accused, Mr Sleiman and Ms Cassar, in their flat were recorded covertly by listening device. Conversations on the telephone between one or other of them and some other person were also covertly recorded. The Crown will tender parts of those recorded conversations, I having excluded other parts as irrelevant or in the exercise of my discretion.
2 The accused object to the tender of transcripts of the tapes.
3 Much of the conversations recorded by listening device is indistinct, particularly due to background noise. The telephone intercepts are clear.
4 Detective Acting Sergeant McNab has given evidence on the voir dire that he played over the listening device tapes many times and made the transcript of those tapes. He said he was satisfied that the transcripts were accurate. Some parts of the recorded conversations have not been transcribed, being designated “IND”, for indistinct. I take Detective Acting Sergeant McNab’s evidence to be that he was satisfied of the accuracy of the transcripts as far as they go. The Crown wishes to call that evidence at the trial. That also is opposed.
5 Section 48(1) of the Evidence Act 1995 provides as follows, so far as is relevant:
“48(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
…
(c) 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.”
The definition of “document” in the Act includes a record of information from which sounds can be reproduced.
6 Before the Evidence Act 1995, the relevant law was stated in Butera v Director of Public Prosecutions (Vict) (1987) 164 CLR 180, in the joint judgment of Mason CJ, Brennan and Deane JJ. The central concept in Butera was that, when a tape is admitted into evidence, the evidence is the sound produced when the tape is played over in Court. Restrictions as to the admissibility of transcripts of what was recorded on the tape flowed from that concept. The Crown conceded, in the present case, that, under Butera , the transcripts of the telephone intercept conversations would not have been admissible (because the recording of those conversations is distinct). Section 48(1) embodies no such restricting concept. It makes transcripts admissible according to its terms. A document that purports to be a transcript of words recorded on a tape is admissible to prove the conversations.
7 Butera (supra), Menzies [1982] 1 NZLR 40 (quoted with approval in Butera ) and the subsequent decision of the Full Court of the Federal Court in Eastman (1997) 158 ALR 107 are valuable authority for the use to which such a transcript may be put. The combined effect of s 48(1) and those cases is, so far as is presently relevant, as follows:
(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.
8 Applying these principles to the present case:
(1) Detective Acting Sergeant McNab’s evidence is admissible.
(2) The transcripts are admissible.
(3) There is no reason to reject the tender of the transcripts or to limit their use, in whole or in part, pursuant to ss 135 to 137.
(4) The jury may have a copy of the transcripts before them when the tapes are played over in court.
(5) Subject to any further submissions, the jury will be informed, when the transcripts are tendered, as to the use to which they may put the transcripts, in terms of paragraphs (c), (d) and (e) above.
(6) Counsel for the accused were invited to specify any part or parts of the transcripts which are said to be unreliable. They have not done so. If any challenge is to be made in that regard in the course of submissions to the jury, the challenge should be put to Detective Acting Sergeant McNab when he is called. (As I understand it, there is no scope for any such challenge in relation to the telephone intercepts.)
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Last Modified: 09/03/1999