R v Law
[2018] WASC 235
•2 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: R -v- LAW & ORS [2018] WASC 235
CORAM: FIANNACA J
HEARD: 30 OCTOBER, 1 & 2 NOVEMBER 2017
DELIVERED : 2 AUGUST 2018
FILE NO/S: INS 62 of 2017
BETWEEN: THE QUEEN
Prosecution
AND
KAI CHEONG LAW
First Accused
YUEN KUAN CHONG
Second Accused
CHEE SENG TANG
Third Accused
Catchwords:
Admissibility of admissions - Transcript of interviews going to the jury
Legislation:
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Criminal Procedure Act 2004 (WA)
Judiciary Act 1903 (Cth)
Result:
Application allowed
Representation:
Counsel:
| Prosecution | : | Mr R Maidment QC & Mr D Renton |
| First Accused | : | Mr J A Bougher |
| Second Accused | : | Ms S J Oliver |
| Third Accused | : | Mr P A Roth |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (Cth) |
| First Accused | : | J A Bougher |
| Second Accused | : | Sarah Oliver |
| Third Accused | : | P A Roth & Associates |
Case(s) referred to in decision(s):
Butera v Director of Public Prosecutions (1987) 164 CLR 180
Eastman v The Queen (1997) FCR 9; 158 ALR 107
Li v The Queen [2003] NSWCCA 290; (2003) 139 A Crim R 281
Ottaway v The State of Western Australia [2012] WASCA 120
R v Cassar [1999] NSWSC 436
R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405
R v Maqsud Ali [1966] 1 QB 688
R v Menzies [1982] 1 NZLR 40
R v Murray [2011] QSC 170
Williams v The Queen [1982] Tas R 266
FIANNACA J:
The accused Kai Cheong Law (Mr Law), Yuen Kuan Chong (Mr Chong) and Chee Seng Tang (Mr Tang) were charged on indictment, together with nine other accused, with the offence of importing a commercial quantity of a border controlled drug, namely methamphetamine, into Australia. There was a thirteenth accused charged with aiding or procuring the importation. The charges arose from an investigation conducted jointly by the Australian Federal Police, Australian Border Force and Western Australia Police.
Each of the accused, Messrs Law, Chong and Tang, took part in video recorded interviews, through interpreters, with officers of the investigating authorities. Mr Law took part in two interviews, on 3 May 2016 and 24 May 2016 respectively. Mr Chong also took part in two interviews, on 20 May 2016 and 24 May 2016 respectively. Mr Tang took part in one interview, on 20 May 2016. The prosecution intended to adduce evidence in respect of all of those interviews, by playing the video recordings of the interviews. Each of the recordings was edited by agreement between the prosecution and counsel for the relevant accused to remove irrelevant or otherwise inadmissible material.
The prosecution sought an order pursuant to s 110 Criminal Procedure Act 2004 (WA) (CPA) that the jury be given transcripts of the edited records of interview to assist the jury to understand and assess the evidence. Each of the three accused objected to the jury being provided with a transcript of his interview or interviews.
Before determining the application, I watched and listened to the recording of each of the interviews and checked the accuracy of the transcripts while doing so. I did so in chambers using headphones for the audio, which generally provided greater clarity than the speaker system in court.
On 1 and 2 November 2017, I ruled that the jury should be provided with the transcripts, subject to some amendments being made to one of the transcripts. At that time I gave brief reasons and said I would provide more detailed reasons in due course. These are my detailed reasons. They incorporate what I said at the time I gave my ruling.
Section 110 of the Criminal Procedure Act 2004 (WA)
The offence with which the accused were charged was under s 301.1 Criminal Code (Cth). By s 68(1) Judiciary Act 1903 (Cth), the laws of this State respecting the procedure for the trial on indictment of the accused applied.
Section 110 of the CPA provides:
(1)On the application of a party or on his or her own initiative, the judge may order that the jury be given, on any conditions the judge orders, any record (including any document in the court’s record) or thing that may assist the jury to understand the issues or the law, or to understand and assess the evidence.
(2)Such an order may be made at any time in a trial before the jury gives its verdict.
It was not in dispute that each of the transcripts of the electronic records of interview could be regarded as a record or a 'thing that may assist the jury… to understand and assess the evidence' for the purposes of s 110. As will appear below, while in some instances the transcript was capable of assisting with the jury's understanding of what was said during the interview, the broader basis on which the prosecution applied for the transcripts to be made available to the jury was to assist the jury to assess the evidence in respect of each particular interview in the context of a case that otherwise consisted of a large volume of circumstantial evidence, and in circumstances where the jury would be required to recall specifically what each of a large number of accused had said in their interviews with the police.
The interviews
In the interviews conducted with Mr Law and Mr Chong, the interpreter was on the telephone. In the interview with Mr Tang, the interpreter was present in the interview room.
In Mr Law's case, the quality of the recorded sound of the interpreter speaking on the telephone was, at times, poor, so that proper comprehension of what was said required very careful attention and perhaps more than one playing of particular passages. I will say more about this later.
In the case of Mr Chong and Mr Tang, the quality of the sound was fine.
In each instance, except perhaps Mr Chong's first interview, the interpreter spoke English with an accent consistent with being from China. The strength of the accent varied between interpreters. In my opinion, the accents did not create any difficulty in comprehension except in the case of the first interpreter for Mr Law on 3 May 2016 and the interpreter in his interview of 24 May 2016. However, in Mr Chong's second interview, on 24 May 2016, there is distortion in the sound from the handset that was used to communicate with the interpreter, so that the interpreter's speech was at times difficult to understand.
Of course, each of the interviews was admissible only in the case concerning the accused who was being interviewed. The jury was directed accordingly on each occasion an interview was played and in the summing up.
The trial context
The three accused were among nine of the accused on trial who took part in electronically recorded interviews and whose interviews were adduced in evidence and played to the jury. A total of 16 interviews were received into evidence.
By the time the prosecution came to adduce evidence of the interviews of the three accused, evidence had already been adduced of the interviews of two other accused, and transcripts had been provided to the jury of those interviews.
During the course of the trial, the jury was provided with a transcript of the evidence of witnesses as an aide‑memoire. The jury was informed that the transcript would be available on that basis during its deliberations. The jury was also allowed to make notes during the trial. It was apparent throughout the trial that a number of the jurors, if not all, were making notes while evidence was being given by witnesses.
The transcripts
In respect of each of the interviews of Messrs Law, Chong and Tang, a transcript was prepared for the prosecution. The transcript in each case contained a preamble that identified the accused to whom it related, the interviewing officers and the interpreter (indicating also if the interpreter participated by telephone). It also specified the date, the time of commencement and conclusion of the interview, and location of the interview.
The transcript identified the interviewer who was asking questions or making a statement when that interviewer first spoke or resumed speaking after interruption, but otherwise questions were identified with a 'Q' and consecutive numbers. The transcript then showed in each instance the answer given by the accused as interpreted in English, which of course were the words spoken by the interpreter. The answers were identified with an 'A'. If the accused spoke any words in English, those words would be attributed to the accused by name.
In the case of Mr Law, because of the poor sound quality of the recording of the interpreter speaking in the interview of 3 May 2016, the transcript showed parts of some answers as 'indistinct'. However, in relation to some of those segments, what was said could be comprehended on close listening, and it was agreed that amendments would be made to the transcript to add certain words that did not appear but which counsel for the Crown and the accused agreed could be heard and which were potentially relevant. Similarly, some errors were detected in the transcript, and it was agreed that the transcript would be corrected so that it was accurate. The transcript was amended appropriately before Mr Law's interviews were played.
In the case of Mr Chong and Mr Tang respectively, counsel agreed that the transcript for each interview was accurate.
Accordingly, there was no suggestion that the transcripts would mislead the jury as to the verbal content of the interviews.
As the jury was required to consider the case concerning each accused separately, it was necessary to determine separately in respect of each accused whether the transcript of his interview or interviews should be made available to the jury. However, that determination had to be made in the context of a trial in which the jury would be required to digest and recall the contents of 16 interviews involving nine accused.
Grounds of objection
The grounds on which the objections were made were common between the three accused, although there was some difference in emphasis. It is necessary to consider the objection by each accused separately, but given the commonality, some of the arguments can be dealt with together.
In essence, each of the accused argued that the provision of the transcript of his interview or interviews to the jury would result in unfairness to him. In respect of each accused, that argument had to be considered in the context of the case against that accused. However, at the time of the objections, the broader context was that transcripts of the interviews of six other accused had been or were to be provided to the jury, without objection, to assist them to follow what was said in those interviews and as aids to memory when the jury retired to deliberate on its verdicts.
More specifically, each of the accused argued that, if the jury was provided with a transcript of any particular interview it was considering, the jury members were likely to be distracted by reading the transcript and, therefore, fail to pay attention to the manner in which the accused answered questions. It was argued for each of the accused that his demeanour and his interaction with the interviewing officers would be significant in the jury's assessment of the accused's credibility in the interview in each instance, and the provision of a transcript to the jury would distract it from that assessment, which was crucial to the accused's case.
In Mr Chong's case, it was also argued that it would be wrong in principle, having regard to the authorities, to provide a transcript of an electronic record of interview to the jury if the interview is not lengthy and the recording is of good quality, so that the jury does not require assistance to comprehend what is said.
Relevant legal principles
Audiovisual recordings of police interviews with suspects or accused are commonly admitted as evidence of such interviews in criminal trials. In fact, in this State, evidence of any admission by a suspect is prima facie not admissible unless it is an audiovisual recording of the admission.[1]
[1] Criminal Investigation Act 2006 (WA), s 118(3).
Although the disc containing the audiovisual recording is the physical exhibit that is received in evidence, it is the sounds and visual images produced by playing the recording which constitute the evidence. The audiovisual recording proves what took place during the interview. Any transcript of such a recording is not independent evidence of what took place during the interview. If made available to a jury, it can only be an aid to the jury's comprehension of what is said in the recording and as a reference for what was said. A transcript does not describe the physical appearance or actions of an accused which might inform the jury's assessment of the accused's demeanour and, therefore, could be relevant to the jury's assessment of the accused's credibility during the interview.
The circumstances in which transcripts may be admitted to assist a jury in respect of an electronic recording of a conversation involving the accused was discussed in Butera v Director of Public Prosecutions[2] (Butera). That case was concerned with covertly recorded conversations between the accused and alleged co‑conspirators which implicated the accused; it was not about police interviews. Further, the conversations were in Punjabi. The transcripts that were tendered reflected the translations that had been made by interpreters who gave oral evidence of the translations and verified the transcript of them. The transcripts were taken into the jury room when the jury retired. By a majority decision, the High Court held that the transcripts had been properly admitted and it was appropriate for the jury to have them in the jury room.
[2] Butera v Director of Public Prosecutions (1987) 164 CLR 180.
Although the circumstances of Butera were different to the circumstances of this case, the principles discussed in that case are apt to apply in any instance where a trier of fact is required to consider the contents of an electronically recorded conversation. The rationale and relevant approach for the acceptance of a transcript of an electronic recording of a conversation were explained by Mason CJ, Brennan and Deane JJ in Butera as follows (footnotes omitted, but citations incorporated):[3]
Although evidence derived from a tape recording is not subject to some of the frailties of human testimony, it may exhibit deficiencies from which human testimony is usually free. A tape recording which is indistinct may not yield its full content to the listener on its first playing over. It may need to be played over repeatedly before the listener's ear becomes attuned to the words or other sounds recorded. This situation has led courts to receive transcripts not as evidence of the conversation or other sounds recorded but as a means of assisting in the perception and understanding of the evidence tendered by the playing over of the tape. In Williams v The Queen, Neasey J cited with approval a Canadian case Reg v MacLean and MacLean [No 1] in which a trial judge held:[4]
'... that he would not permit the transcripts to be used as evidence of the contents of the recording, but did admit them for the use of 'the trier of the facts, after being properly instructed in that regard, for the sole purpose of following the playing of the tape in court and to assist the trier of the facts in determining what is in fact recorded thereon'.'
Where the quality of the recording is such that the provision of a transcript for the use of the jury would permit them clearly to follow an indistinct recording, a transcript may be seen as an aid to listening though it is not independent evidence of the recorded conversation. As Everett J said [in Williams v The Queen [1982] Tas R 266 at 280]:
'To deny the jury the benefit of reading with their eyes the same words as they heard with their ears seems to me to put the law into an ill-fitting straitjacket.'
The basis on which a transcript may be provided to the jury was stated by Cooke J, speaking for the majority in Reg v Menzies [[1982] 1 NZLR 40]. Noting that Phipson said that the relaxing of the rules of evidence tended 'to effect economy, convenience and dispatch', his Honour said:
'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.'
[3] Butera v Director of Public Prosecutions, 187 - 188 (Mason CJ, Brennan & Deane JJ).
[4] Williams v The Queen [1982] Tas R 266.
References to a temporary ad hoc expert in R v Menzies[5] would include, in the present context, a professional transcriber who has been able to listen to a recording closely and repeatedly (if necessary) to provide an accurate transcript. The suggestion that such an expert might be called to give evidence and that the transcript be read may be appropriate in cases involving a difficult to comprehend recording of a conversation covertly recorded. It would not be apt for the purpose of effecting economy and convenience in the case of a police interview when the accuracy of the transcript is not in dispute.
[5] R v Menzies [1982] 1 NZLR 40.
In Butera, Dawson J also discussed the rationale for the admission of transcripts of electronically recorded conversations (citations omitted):[6]
Even when an original tape is produced and its contents are audible, intelligible and in English, it may be desirable to adduce secondary evidence of its contents as a matter of convenience. Instances of when this will occur are when the playing of the tape takes a long time or the conversation recorded can be understood only with difficulty. The production of a transcript in these circumstances provides a ready form of reference to the contents of the tape and avoids unnecessary playing and replaying of the tape. To admit secondary evidence in the form of a transcript in these circumstances is no more than an application of the well‑established principle that when evidence is voluminous or complex, then abstracts, schedules or charts, proved by a suitably qualified person, may be admitted in evidence as an aid to comprehension
[6] Butera v Director of Public Prosecutions, 195.
Gaudron J, who dissented in the outcome in Butera, undertook a detailed analysis of the approach of courts in various common law jurisdictions to the question of allowing juries to have transcripts of electronically recorded conversations.[7] Her Honour was of the view that, where the electronic recording is available, a transcript should not be received in evidence, because it is not the evidence. Further, unlike Dawson J, her Honour did not regard transcripts as falling within the same category as charts or tables. However, in the following passages, her Honour acknowledged that there may be circumstances in which a transcript could be made available to the jury for convenience, but emphasised the overriding need for fairness (footnotes omitted):[8]
Considerations of convenience could lead to the making available of a transcript of evidence as to the sounds entrapped on a tape recording which although inaudible when played on ordinary sound production equipment have been rendered comprehensible by the use of other equipment or repeated playing. So too with evidence as to the English meaning of a recorded conversation conducted in a foreign language, whether that evidence is given on the basis of hearing the tape recording inside or outside the court.
Considerations of convenience could also lead to the making available of a transcript of lengthy tapes, even though audible and intelligible. Considerations of convenience might also allow resort to a transcript emanating from a party, if it is clear that it is an accurate record of the evidence given. A transcript might be made available during the course of evidence, including cross-examination of the witness whose evidence it is. It might also be made available during the jury's deliberations.
But questions of convenience are not at large: 'Convenience and justice are often not on speaking terms' - per Lord Atkin in General Medical Council v Spackman. The discretion of a trial judge to make available to the jury a transcript of evidence given by a witness is a discretion which is circumscribed by conventional considerations of fairness.
[7] Butera v Director of Public Prosecutions, 205 - 211.
[8] Butera v Director of Public Prosecutions, 211.
In surveying the authorities from other jurisdictions, Gaudron J referred to the position in the United Kingdom (footnotes omitted, but citations incorporated):[9]
In the United Kingdom it would seem that a transcript is regarded as admissible even when the tape recording is also received into evidence. In Reg v Maqsud Ali [[1966] 1 QB 688 at 700] Marshall J, speaking for the Court of Criminal Appeal, referred to the receipt into evidence of both a transcript and tape recording in Reg v Howells [unreported; January 1965], likened a tape recording to a photograph and stated [[1966] 1 QB 688 at 702]:
'Having a transcript of a tape recording is, on any view, a most obvious convenience and a great aid to the jury, otherwise a recording would have to be played over and over again. Provided that a jury is guided by what they hear themselves and upon that they base their ultimate decision, we see no objection to a copy of a transcript, properly proved, being put before them.'
[9] Butera v Director of Public Prosecutions, 205.
Her Honour pointed out that R v Maqsud Ali,[10] like Butera, was concerned with documents which were translations, rather than transcripts, of conversations held in the Punjabi language. Nevertheless, in my respectful opinion, the passage quoted from R v Maqsud Ali is apt where an electronically recorded video interview is lengthy. It encapsulates the rationale and approach approved by the plurality in Butera.
[10] R v Maqsud Ali [1966] 1 QB 688.
In Butera, Mason CJ, Brennan and Deane JJ went on to identify the instruction that should be given to a jury when a transcript is made available:[11]
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 understanding 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.
[11] Butera v Director of Public Prosecutions, 188.
A number of other authorities that have applied the principles in Butera were referred to by the Crown and counsel for Tang.[12] All of them concerned covert recordings from listening devices or lawfully intercepted telephone calls, rather than police interviews. However, in R v Murray [2011] QSC 170, Atkinson J relied on Butera and the passage quoted by the plurality in that case from Williams v The Queen in deciding to allow the jury to have transcripts of the accused's records of interview with the police in that case. Her Honour took into account that the interviews were relatively lengthy and that it would 'obviously assist the jury if they have transcripts of the interviews to refer to, to assist them with their memory of what was said and their understanding'.[13] Her Honour said:[14]
The task before the jury is a difficult one and, in my view, they should be given every assistance to fully consider not only the prosecution case but, importantly, the defence case as well.
[12] Ottaway v The State of Western Australia [2012] WASCA 120; Li v The Queen [2003] NSWCCA 290; (2003) 139 A Crim R 281; R v Cassar [1999] NSWSC 436; R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405; Eastman v The Queen (1997) FCR 9; 158 ALR 107.
[13] R v Murray [2011] QSC 170 [22]. Her Honour had regard at [25] to the discussion on the subject by the Queensland Law Reform Commission in its review of jury directions: Queensland Law Reform Commission, A review of jury directions, No 66 (Vol 1, 2009) 314 ‑ 323. Her Honour said: 'It follows from that discussion that so long as appropriate directions are given, a transcript of the evidence of audio-visual recordings is of great assistance to a jury'.
[14] R v Murray [24].
In my respectful opinion, that approach encapsulates the policy underpinning s 110 of the CPA.
Consideration of the application
It is the case that ordinarily a transcript of a video record of interview would only be provided to the jury during the playing of that interview if there would appear to be some difficulty in the comprehension of what is being said during the interview. However, that is not an absolute rule, as the majority made clear in Butera.
Even if the contents of the interview are audible and readily comprehensible, it may nevertheless be of assistance to the jury to have the transcript. That will be particularly so where the evidence is voluminous, where a trial is lengthy and where it would be difficult for the jury to be able to recall all that was said during the course of an interview by a particular accused. This, in my view, was such a case, particularly as there were 13 accused and the jury had to consider the case against each of them separately. Nine of those accused took part in interviews that were played to the jury; there was a total of 16 interviews. Given the volume of evidence, including the interviews, and the length of the trial (approximately 10 weeks), I was satisfied that a juror would have difficulty keeping track of what was said, by whom, and at what stage, without the assistance of transcripts.
Mr Law - Quality of recordings
In Mr Law's case, I came to the view that some parts of his interviews were difficult to hear and understand. That is largely because of the poor sound quality, as the interpretation was done over the telephone and in circumstances where, in my respectful view, inadequate steps were taken to ensure that the quality of the sound was satisfactory. In the second interview there was a persistent humming in the background. The accents of the first interpreter on 3 May 2016 and the interpreter on 24 May 2016 were strong, which made it difficult to understand what they were saying in English at times. Upon careful listening, one could make out what the interpreter was saying for most of the interview in both cases, but, in light of my experience listening to the recordings of those interviews, a jury would likely need to replay certain segments to properly comprehend what was being said. As I have already indicated, I was of the view that the transcript in each case was sufficiently accurate to obviate the risk that the jury might be misled as to what was being said. To the extent that any inaccuracies or additions were identified by the court or counsel, the transcript was amended.
I was of the view that, because of the difficulty of being able to comprehend some parts of what was said in Mr Law's interviews, the jury would be assisted in respect of both interviews by having the transcript to follow what was being said.
Mr Chong - Quality of recordings
The same considerations did not apply to the first interview with Mr Chong, on 20 May 2016. However, in respect of the second interview, on 24 May 2016, there was some distortion in the sound which may have impeded the jury's capacity to follow what was said without repeated listening. Again, as the transcript was accepted as being accurate, I was of the view that the jury would be assisted in its comprehension of that interview by having the transcript to follow. I did not consider that the jury would be assisted in its comprehension of the first interview by having a transcript of that interview while it was being played.
Mr Tang - Quality of recording
In Mr Tang's case, I was satisfied that the audio quality was satisfactory. The fact that the interpreter was present in the room contributed to the better quality of sound. I did not consider that the jury would be assisted in its comprehension of what was being said by having the transcript of the interview when the interview was played.
However, in respect of all three accused, I came to the conclusion that each member of the jury should be provided with the transcript for each interview for the reasons referred to in [40] above, which I will now elaborate.
Allowing the jury to have the transcripts during deliberations
I agree with the general proposition relied on by counsel for Mr Chong that, ordinarily, where an interview is short and the sound quality is good, one would not expect the jury to have the transcript during the course of the playing of the interview or during deliberations. However, the interviews in this case were not short. Each was quite lengthy. That, in part, was due to the need for interpretation, but that in itself introduces an element of fragmentation that could make recollection of an accused's answers more difficult. Further, it was necessary to assess the desirability of the jury being provided with the transcript in the context of the whole case. In my opinion, given the very large volume of evidence that the jury had to deal with in their deliberations in respect of the case concerning each accused, and the period over which it had been heard and seen, it would have been an unreasonable burden on the jury to expect them to recall, without assistance, what was said by each accused whose interview or interviews they had watched and listened to.
Counsel for Mr Chong submitted that the jury could be provided with an index of topics with counter references in the recording to enable them to more readily find passages in which they may be interested. However, there is no obligation on a jury to watch the recording again in order to be reminded of what an accused said on a particular topic. One would expect the jury to have formed a general impression of an accused's demeanour during his interview at the time the interview was played. It may be that members of the jury wish to be reminded of the accused's demeanour; they were directed not to ignore that aspect of the interviews. However, it may be that they are simply interested in the content of what the accused said.
Ultimately, as a jury is routinely directed (and were in this case), the manner in which jurors go about their fact finding is a matter entirely for them, provided they apply the law as directed by the judge.
If jurors have taken comprehensive notes and the other jurors are content with the accuracy of those notes, they will be quite entitled to rely on those notes as an aide-mémoire of what the particular accused under consideration said. The transcripts in this case provided a written record of what was said that was accepted in each case as being accurate, or at least sufficiently accurate as to obviate any risk of the jury being misled about the contents of the interviews.
In those circumstances, I was of the view that the jury should be entitled to have the transcripts during the course of their deliberations in the event that they wished to be reminded of what was said in respect of any particular matter, rather than how it was said.
Once it is determined that jurors should be provided with transcripts of an accused's interview with the police, the obvious question that arises is why they should not have the transcript during the playing of the interviews.
Allowing the jury to have transcripts during the playing of the interviews
Argument that jurors would be distracted from their assessment of credibility
As I outlined earlier, the principal argument in common between the accused was that, if jurors had the transcript of an interview during the playing of the recording, they would likely be distracted from watching and listening to the interview. One of the ways in which it was submitted a juror might be distracted is that they may be tempted to read ahead and, therefore, fail to pay attention to the way in which the questions and answers unfolded in real time, which may be relevant to an assessment of the answers given by the accused. However, in the context of the directions given about the use of the transcripts, the jury was specifically directed not to read ahead. I will say more about the directions below. In my opinion, little weight could be given to the concern raised by counsel in relation to jurors reading ahead.
The more significant proposition relied on by the accused was that jurors may be focussed only on listening and following the questions and answers on the transcript, either for assistance with comprehension or to satisfy themselves of its accuracy, and may fail to have regard to the demeanour of the accused during the course of the interview, to the extent that it may be apparent from the accused's appearance and actions.
Assessment of demeanour
In my opinion, while the accused's demeanour or the manner in which he answered questions is always relevant to the jury's assessment of his responses in an interview, the jury's capacity to discern such matters and the importance of those matters in any particular case may be overestimated.
In the first place, while demeanour is relevant to the assessment of credibility, such an assessment may turn primarily on the plausibility of an account, having regard to all of the circumstances.
Secondly, as with the assessment of witnesses who give oral evidence, there are limitations to the value of demeanour in determining issues of credibility and reliability. In particular, the assessment of demeanour may be problematic when dealing with persons speaking in a foreign language and from a cultural background that may be different to that of a juror.
It was accepted by counsel for each of the accused, for instance, that the accused's intonation or inflection may be of little assistance to a jury when he is speaking in a foreign language. I would add that the various interpreters used in the 16 separate interviews adduced in the trial, differed in their use of tone. It appeared that in some cases the interpreter maintained an entirely neutral tone. In other cases, there appeared to be some attempt to reflect the tone in which the accused had answered. The intonation used by an interpreter in the latter situation may involve subjective judgment in endeavouring to convey the response and would need to be approached with caution as a basis for assessing the accused's demeanour. I directed the jury accordingly.
Similarly, the jury would need to make allowance for the possibility of cultural differences affecting the manner in which the interviewee conducts himself; for instance, in terms of physical expressions.
The overriding consideration, as was identified in Butera, is whether the use of the transcripts would result in unfairness to the accused.
None of the counsel for the three accused whose interviews were under consideration were able to identify any particular aspect of their client's interviews in which their client's demeanour would be important in the jury's assessment of his responses, including the meaning to be attributed to the responses. The submission on behalf of each of the accused was based on a general proposition that consideration of demeanour and the interaction of the accused with the officers would be important to the assessment of the accused's credibility. In my opinion, that was not a sufficient basis on which to conclude that the use of the transcript by the jury as an aid during the playing of the interview would result in unfairness to the accused.
As I have said, I gave the jury appropriate directions in respect of each of the interviews when it was played, and emphasised the need for them to pay attention to the appearance of the accused during the course of the interview.
Note-taking by the jury
The jury were entitled to take notes while the interview was being played and it would not be unreasonable to expect that jurors would take notes, given the volume of evidence that they were being asked to consider. It might be thought that the taking of notes (in particular any attempt to take a verbatim note) would likely be more intrusive upon a juror’s ability to watch the video than following what has already been transcribed, and perhaps annotating the transcript with observations about the accused's demeanour, if relevant.
Argument that the jury would place too much emphasis on the transcripts
Counsel for the accused raised another issue that is related to the demeanour issue, namely that the jury would place too much emphasis on the written word if they were to be provided with the transcript. It is not obvious to me that this adds anything to the argument that places importance on demeanour and the way in which answers were given, as the written word was accepted as being an accurate transcription of what was said in the interview in each case. Provided the jury paid adequate attention to the video when the recording was played, it would be a matter for them if they chose to focus on the verbal content of the accused's answers during deliberations, as I discussed earlier. In any event, the issue was capable of being dealt with by way of directions.
Observations of the jury
The transcript for each interview was handed to the jury immediately before the playing of that interview commenced. That served to emphasise that the purpose of the transcript was as an aid during the playing of the interview.
At the time that I came to determine this application, the jury had already been shown the interviews of two other accused, namely Mr Yang and Mr Wong, and had been provided with the transcripts of those interviews when they were played. My observations of the jury during the playing of those interviews satisfied me that all of them had been watching the video monitors for at least some of the time and a number of them had appeared to watch the video more than read the transcript. My general impression was that jurors would follow what was interpreted by looking at the transcript, but would at least glance at the video monitor when the accused was speaking in his language.
I note that counsel for Mr Law said during submissions that he had formed a different impression, and that it appeared to him that jurors were unduly focussed on the transcripts. Of course, the impressions one forms in such circumstances may depend on when one is looking at the jury and the duration of such observations. All that can be said is that, in light of my observations, I could not give any significant weight to the concerns that the jury would fail to watch the video when each of the interviews of Messrs Law, Chong and Tang came to be played.
Returning momentarily to the concern about jurors reading ahead, while the possibility cannot be discounted, there was nothing in my observations to suggest that was happening.
In summary, the accused's arguments in respect of the potential distraction that the transcripts would create were essentially speculative and necessarily based on the assumption that jurors would not follow specific directions about the way in which the transcripts could be used and the need to pay attention to the original evidence.
Advantage of having transcript before commencement of deliberations
I noted at [51] above that, if it is decided that the jury should have the transcript of a video interview as an aide-memoire during deliberations because of the unreasonable burden that otherwise would be placed on jurors in a case of this kind, then one must query why the jury should not have the transcript at the time the interview is played.
It seemed to me that it would be problematic if jurors were provided with the transcript for the first time at the end of the trial when they retired to deliberate. In such circumstances, they would not have had an opportunity to look at the transcript as the video was played to make their own assessment of the accuracy of the transcript relative to what they were hearing. For the transcript to effectively function in the manner intended, as an aide-memoire, it was important for the jury to have the transcript when the interview was played. Otherwise, there would be the risk, indeed, that jurors would substitute what was in the transcript for what they had heard, unless they watched the recordings again during deliberations to satisfy themselves of the accuracy of the transcript, which would defeat the purpose of the transcript serving as an aide-memoire. I was of the opinion that the safer course was to allow jurors to have the transcript and make any changes that they considered were necessary while the recording was being played.
Directions given to the jury
As I have indicated on a number of occasions, at the time of considering the Crown's application and the objections made by the accused, it was my intention to direct the jury in the same manner I had already done in relation to the interviews of the co-accused Mr Yang and Mr Wong. Those directions were in fact given on each occasion the jury was given the transcript for a particular interview, immediately before the recording of that interview was played. The directions were also given again at the end of the trial in my summing up.
The jury was directed that they must listen carefully to what was said in the recording and that it was their comprehension that mattered. They were directed that if their comprehension differed from what they saw in the transcript, they must ignore what was in the transcript. They were also directed that the evidence was what the accused said (through the interpreter) in the recording. They were directed that the transcript was not independent evidence of the interview, but was provided simply as a means to assist their understanding of the interview evidence, as a tool to assist them to follow what was being said, and importantly to serve later as a reference to where particular material may be found that an accused had spoken about. The jury was also directed that it was important for them to watch the interview and listen to what was being said, and not to simply read what was on the page, because it was what they saw and heard that was the evidence.
Conclusion
This was a case in which the task the jury was required to perform was a difficult one, and it was my view that they should be given every assistance to fully consider both the prosecution case and the case for each of the accused. The provision to them of transcripts of the electronically recorded interviews was one measure intended to serve that purpose.
The matters raised on behalf of Messrs Law, Chong and Tang concerning demeanour and the need to have regard to the context of the interview in each case were matters that could properly be dealt with in their counsel's addresses to the jury. There was nothing in the circumstances of any of the three accused to distinguish the approach that should be taken in respect of each of them or to warrant a different approach from that taken in respect of the other accused whose interviews were adduced. Any risk of an unfair trial was capable of being removed by appropriate directions, which were in fact given.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE FIANNACA2 AUGUST 2018
0
7
4