R v Hawat (No 5) [2019] NSWSC 1727

R v Hawat (No 5) [2019] NSWSC 1727

The transcripts were relevant but amounted to opinion evidence as to what was said on largely inaudible English-language recordings. The cases allowing transcripts as aids or ad hoc expertise in voice attribution did not support admitting police opinion evidence of the actual words spoken where the recording itself was inaudible. Even if such evidence could fall within s 79, it would be excluded under s 137 because its probative value was outweighed by the danger of unfair prejudice: the jury and the accused could not meaningfully test the police officer's opinion and there was a real danger the jury would accept that inaudible recordings contained the words asserted by police. The...

Jurisdiction
Australia
Judgment Date
09 December 2019
Procedural Posture
Criminal Proceeding; Murder Trial Involving Alleged Joint Criminal Enterprise or Accessory Before the Fact / Voir Dire and Procedural Ruling on Admissibility of Listening Device Recordings and Transcripts
Outcome
Application allowed in part; transcripts and police opinion evidence as to the contents of the inaudible recordings were ruled inadmissible, and LDs 1, 2, 4, 5 and 6 were inadmissible except for specified audible passages.
Legal Topics
['murder' 'joint Criminal Enterprise' 'accessory Before the Fact' 'listening Device Recordings' 'transcript Admissibility' 'opinion Evidence' 'expert Evidence' 'relevance' 'probative Value' 'unfair Prejudice' 'inaudible Recordings']
['criminal Law' 'evidence'] ['murder' 'joint Criminal Enterprise' 'accessory Before the Fact' 'listening Device Recordings' 'transcript Admissibility' 'opinion Evidence' 'expert Evidence' 'relevance' 'probative Value' 'unfair Prejudice' 'inaudible Recordings']

Case Brief

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Procedural Posture

Criminal Proceeding; Murder Trial Involving Alleged Joint Criminal Enterprise or Accessory Before the Fact / Voir Dire and Procedural Ruling on Admissibility of Listening Device Recordings and Transcripts

Legal Issues

  1. 1 ['Whether transcripts prepared by Detective Senior Constable Ede of poor-quality listening device recordings were admissible as evidence of what was said.' 'Whether Detective Senior Constable Ede could give lay or expert opinion evidence as to the contents of inaudible English-language recordings.' 'Whether the listening device recordings LD 1, 2, 4, 5 and 6 were relevant and admissible without the transcripts.' 'Whether any audible portions of the recordings were admissible.']

Ratio Decidendi

The transcripts were relevant but amounted to opinion evidence as to what was said on largely inaudible English-language recordings. The cases allowing transcripts as aids or ad hoc expertise in voice attribution did not support admitting police opinion evidence of the actual words spoken where the recording itself was inaudible. Even if such evidence could fall within s 79, it would be excluded under s 137 because its probative value was outweighed by the danger of unfair prejudice: the jury and the accused could not meaningfully test the police officer's opinion and there was a real danger the jury would accept that inaudible recordings contained the words asserted by police. The...

Court Disposition

Application allowed in part; transcripts and police opinion evidence as to the contents of the inaudible recordings were ruled inadmissible, and LDs 1, 2, 4, 5 and 6 were inadmissible except for specified audible passages.

Orders

  • ['The material contained in LDs 1, 2, 4, 5 and 6 is inadmissible, except for the audible passages referred to at [50]-[54].' 'The police opinion evidence of what was on the tapes was inadmissible.' 'LDs 4 and 5 were inadmissible.' 'The specified audible portions of LDs 1, 2 and 6 described in the reasons were...