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R v Cassar; R v Sleiman

R v Cassar; R v Sleiman

Case [1999] NSWSC 436 10 May 1999

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cassar; R v Sleiman

Details

AGLC: R v Cassar; R v Sleiman [1999] NSWSC 436
Case: [1999] NSWSC 436
Decision Date: 10 May 1999

CaseChat Overview and Summary

The defendants, Cassar and Sleiman, were charged with various drug-related offences. They were convicted by a jury in the County Court and subsequently appealed to the Court of Appeal. The appeal raised issues concerning the admissibility of transcripts of recorded conversations that were intercepted under warrant. The Crown's case relied heavily on these transcripts, which were provided to the jury in lieu of the original recordings due to their poor quality.

The legal issues revolved around the admissibility of the transcripts and the use to be made of them. The defendants contended that the transcripts were inadmissible because they were not produced in accordance with section 30 of the Crimes Act, which requires that recordings be played to the jury unless there are exceptional circumstances. The Crown argued that the poor quality of the original recordings justified the use of transcripts. The court also considered whether the evidence authenticating the transcripts was admissible.

The Court of Appeal held that the transcripts were inadmissible because they were not produced in accordance with the statutory requirements. The poor quality of the recordings did not constitute an exceptional circumstance that would allow for the use of transcripts. The court held that the evidence authenticating the transcripts was also inadmissible because it was hearsay and not caught by any exception to the hearsay rule. Consequently, the convictions were quashed, and a retrial ordered. The court emphasised the importance of adhering to statutory requirements and the principle that recordings should be played to the jury unless there are exceptional circumstances.

Orders