R v Xie (No 20) [2015] NSWSC 2131

R v Xie (No 20) [2015] NSWSC 2131

The recording, although of variable and generally poor quality, contained significant passages sufficiently audible with the assistance of the transcript to reveal the context and subjects discussed. It was open to the jury to find that the accused knew who Harry purported to be, knew Harry was aware of discussions with Witness A about Plan B and planting evidence on the candidate, and engaged with those matters in a way capable of constituting post-offence conduct showing consciousness of guilt. Section 85 did not apply because Harry was a covert police officer acting in that capacity. To the extent the recording contained admissions, they were not shown to be unreliable or unfairly...

Jurisdiction
Australia
Judgment Date
18 August 2015
Procedural Posture
Criminal Proceeding / Procedural Ruling on Admissibility of Secretly Recorded Prison Conversation Evidence
Outcome
Evidence admissible
Legal Topics
['admissibility of Covertly Recorded Conversations' 'consciousness of Guilt' 'admissions' 'reliability of Admissions' 'discretionary Exclusion of Evidence' 'unfair Prejudice']
['criminal Law' 'evidence'] ['admissibility of Covertly Recorded Conversations' 'consciousness of Guilt' 'admissions' 'reliability of Admissions' 'discretionary Exclusion of Evidence' 'unfair Prejudice']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Proceeding / Procedural Ruling on Admissibility of Secretly Recorded Prison Conversation Evidence

Legal Issues

  1. 1 ['Whether the covert recording of the conversation between Harry and the accused on 24 May 2013 was relevant notwithstanding poor audio quality and transcript limitations.' 'Whether the recorded conversation was capable of supporting an inference of consciousness of guilt and/or admissions by the accused.' 'Whether s 85 of the Evidence Act 1995 (NSW) applied to exclude any admissions made to Harry.' 'Whether any admissions should be excluded under s 90 of the Evidence Act 1995 (NSW) because use of the evidence would be unfair to the accused.' 'Whether the recording should be excluded under ss 135 or 137 of the Evidence Act 1995 (NSW) because its probative value was outweighed by unfair prejudice or other dangers.']

Ratio Decidendi

The recording, although of variable and generally poor quality, contained significant passages sufficiently audible with the assistance of the transcript to reveal the context and subjects discussed. It was open to the jury to find that the accused knew who Harry purported to be, knew Harry was aware of discussions with Witness A about Plan B and planting evidence on the candidate, and engaged with those matters in a way capable of constituting post-offence conduct showing consciousness of guilt. Section 85 did not apply because Harry was a covert police officer acting in that capacity. To the extent the recording contained admissions, they were not shown to be unreliable or unfairly...

Court Disposition

Evidence admissible

Orders

  • ["The Crown's tender of the 24 May 2013 recording and transcript was admitted."]