SUPREME COURT OF QUEENSLAND

1. McPHERSON JA: I have read and agree with the reasons of Chesterman J for dismissing the appeal.

2. There is nothing I wish to add to his Honour’s reasons except to make a comment on the decision in R v Bercolli & Ioannu (CCA Nos 22 and 23 of 1990). The offence charged in that case was attempting to procure a murder, which was alleged to have been committed by each of the two accused in the course of a conversation at which they and one Mangakahia were present. Mangakahia, who was the person they allegedly attempted to procure to carry out the murder, was in fact an undercover policeman who was fitted with a sound recording device which succeeded in recording some but not all of the conversation that took place.

3. The deficiencies in the recording there were critical to the case for two reasons. One was that the conversation was not (as it was here) simply a recorded statement by the accused confessing to having on some other occasion committed an offence. On the contrary, the conversation was the very act constituting the offence of procurement or attempting to procure. Expressed in the language of the common law, it was or contained the actus reus of the attempted procurement itself. In that respect, it resembled a conspiracy to procure a murder, of which the essential element of agreement must exist and be proved to exist. The jury had acquitted the two accused of just such a conspiracy committed in the course of the same conversation, but convicted them each of attempted procurement.

4. The second reason why it was critical to proof of the charge in that case that the jury be provided with a complete and intelligible recording of the conversation was that it was the conversation that was alleged to disclose the intention on the part of each accused to procure the murder. Without the requisite intention, there could be no attempt. Because the tape was both incomplete and corrupt, it would have provided only a partial impression of the intentions of each of the accused, where what was needed was a clear and complete impression that left no reasonable doubt that a specific intention to procure a murder had been formed and not departed from by the accused in that conversation. What was expected of the jury was therefore tantamount to asking them to infer the existence of the necessary intent from fragments of a written agreement without seeing the whole of it. They were denied the opportunity of hearing, or seeing in transcript, those parts of the conversation that were either not recorded or were unintelligible, and which might have qualified or refuted the impressions created by those parts that were available.

5. Somewhat similar difficulties may arise in the case of tape-recorded confessions. But this was plainly not a case of that kind. There is nothing at all to suggest that any, or any relevant, parts of the conversation about the caravan with the appellant in the club were not tape recorded. There was therefore nothing about the recorded conversation that was capable of raising a reasonable doubt in the minds of the jury that the appellant was telling the truth when he said he had set fire to it.

6. CHESTERMAN J:  After a trial conducted in the District Court at Mackay the appellant was convicted on 14 February 2001 of the arson of a caravan.  It was the property of one Lee Hooker who was romantically attached to Debahra Kelly.  The attachment began the day they met.  Before that Ms Kelly enjoyed a similar relationship with the accused, who appears to have reacted badly to the loss of her favours.  He made a nuisance of himself at times when Mr Hooker and Ms Kelly were together. 

7. Mr Hooker owned a block of beachfront land at Greenhills Beach which is, I think, between Mackay and Sarina. He lived there when not engaged in his work as a miner at Moranbah. His roster was such that he was at the mine three or four consecutive days each week. When not at work he returned to Greenhills Beach where he stayed in his caravan with Ms Kelly. When he was at Moranbah, Ms Kelly stayed with friends. 

8. The caravan was destroyed by fire on 25 November 1999 when Mr Hooker was at Moranbah.

9. Although the appellant was a prime suspect there was no evidence that he had set the caravan on fire. He was, however, indiscreet about his activities and confessed to the arson to Mr Hooker on several occasions and to a friend, David Douglas, on other occasions.

10. According to Mr Hooker he and Ms Kelly went to live with friends after his home had been destroyed. Some few days later the appellant telephoned Mr Hooker and threatened to burn down the friend’s house where he was staying. The appellant’s exact words were “and the house will be next”. Mr Hooker took the words to refer to his friend’s house.

On another occasion Mr Hooker accused the appellant of having set fire to the caravan.  The appellant’s response was “Yes, but you won’t get me for it”.  There were two other occasions on which the appellant “blatantly” told Mr Hooker he had burnt the caravan down and “plenty of other ones where he insinuated that he did”.

It appears the appellant pestered Mr Hooker with telephone calls, making about forty calls on one night. 

11. Mr Douglas was a friend of the appellant’s. He did not know Mr Hooker but knew Ms Kelly and knew of Mr Hooker. In 1999 Mr Douglas was injured in a car accident and suffered a degree of brain damage. He cannot remember who was driving the car but believes it to have been the appellant. They were the only occupants of the vehicle. He has commenced, or wishes to commence, proceedings to recover damages for his injuries but, obviously, must prove it was the appellant and not he who was the driver. Towards the end of 1999 Mr Douglas, the appellant together with Ms Kelly and her father went to the Sarina Bowls Club for a drink. Mr Douglas took with him a micro cassette tape recorder hoping that in the course of conversation the appellant might admit to having been the driver and that his admission might be recorded as evidence. Ms Kelly left the men and Mr Douglas turned on the recorder. Instead of speaking of the car accident the appellant spoke about setting fire to Mr Hooker’s caravan.

12. After a time Mr Douglas told his solicitors of the existence and contents of the tape recording. They advised him to pass it to the police, which was duly done.

13. According to Mr Douglas the appellant confessed on a number of occasions to having burnt down the caravan. The admissions were made in late November or early December 1999. On the first occasion

“ . . . he just said how he drove down there and just explained how he broke into the van and poured metho over the floor and lit it up.”

Then, or on a later occasion,

“(The appellant) just said he was going to go down and burn it down and he just said he . . . broke into it and . . . there was Christmas pudding and . . . alcohol, things like that, a heap of new clothes and he wound the hatches up, poured the . . . metho over the floor, lit it up . . .”

14. As transcribed the tape recording captures the appellant saying

“The funny thing about (it) though is there’s things all around there and no (body) seen it until 8 or 9 o’clock in the morning there until .. . the bloke next door got out of bed to go to work and no caravan  no (body) seen the fire . . .That night, I had a bomb made up . . . I thought the (thing) is going to go so I . . . (left) the (thing) in the caravan so I threw a match in the . . . metho . . . burn like shit straight away . . . You’ve got no idea what it looks like . . . it looked good . . . I wound the thing up, I was too scared the flame might have, I wound up you know those things in the roof . . . and the best thing of all was the flames pouring out those things in the roof . . .”

I have in some places omitted and in others replaced words actually used by the appellant because of their coarseness. 

15. In summing up the trial judge described the tape recording as “. . . central to the Crown case against the (appellant)”. With respect to his Honour this assessment may overstate the importance of the recorded admission which, while cogent proof of the appellant’s guilt, was not the only such proof. The appellant did not give evidence. The testimony of Mr Hooker and Mr Douglas that the appellant had confessed to each of them on a number of occasions was uncontradicted. 

Perhaps because of the trial judge’s description of the tape the four grounds of appeal taken by the appellant in his Notice of Appeal all challenged the admission or use of the tape in evidence. 

16. In the end only one ground was argued, namely that the tape recording was wrongly admitted into evidence. The point taken was that the quality of the tape recording was so poor as to make the sounds unintelligible. Alternatively it was argued that the contents were so unclear and undecipherable that it was unfair to the appellant to admit the tape into evidence.

17. There were in fact two recordings admitted into evidence. The first was the micro cassette tape on which Mr Douglas actually recorded what the appellant said at the Bowls Club. This was, apparently, of very poor quality. It was extremely difficult to make sense of anything said on it. The recording was sent to the police acoustics laboratory in Brisbane where technology exists to enhance the quality of tape recordings by reducing the extent and/or volume of background noise and to produce a clearer rendition of the primary sounds. This enhancement of the recording was admitted into evidence without objection.

18. I have listened to that tape three times, once before the hearing of the appeal and twice during it.

19. Detective Lavell prepared a transcript of the tape recording having listened to it on a number of occasions. My own experience was that with repeated audience the recording did become easier to understand. By listening to the tape and at the same time reading the transcript one notices that there are some words not transcribed but that what was transcribed is accurate. The words omitted from the transcript do not alter the sense of what has been typed.

20. The jury had been provided with copies of the transcript which were before them when the tape recording was played in court. This use of the transcript was a subject of a ground of appeal. That ground was expressly withdrawn during the hearing.

21. The appellant’s first point that the tape recording was unintelligible has not been made out. While that may have been true of the original recording it is plainly wrong to describe the enhanced recording by such a term. A tape recording that is unintelligible is, obviously, inadmissible not because it is not relevant but because it is not evidence at all. Sounds that have no discernible meaning should not be put before a court.

22. The appellant’s real point was that the recording was incomplete and indistinct. The first complaint is that it does not include the whole of the conversation at the Bowls Club between the appellant and Mr Douglas. This is true but the witness explained that he activated the recorder when Ms Kelly and her father left him and the appellant alone and that he turned it off when Ms Kelly rejoined them. If something germane to the admission was said by the appellant when the tape recorder was off it could have been the subject of cross-examination or, indeed, evidence by the appellant himself. There was no suggestion in the evidence that something additional had been said that would qualify or contradict the conversation that was recorded.

23. The second complaint is that what was indistinct may in someway have affected the admission. This is really the same point. Having heard the conversation three times I am satisfied it has no substance. What is indistinct is quite brief and does not occur during the relevant admission which can be heard distinctly.

24. The appellant relied upon a decision of the Court of Criminal Appeal in The Queen v Bercolli & Ioannou (unreported, CCA Qld No 22 and 23 of 1990, 18 May 1990).  The leading judgment was given by McPherson J (as his Honour then was).   That case is dissimilar to the present.  Bercolli & Ioannou were convicted of procuring one Mangakahia to murder a fourth man.  Mangakahia was in fact a covert police officer who secretly tape recorded the conversation with the appellants which was said to be their procuration of him to commit the murder.  The conversation was lengthy and disjointed.  A substantial part of the recording was inaudible or unintelligible.  A transcript of the remainder was put before the court and was accepted as accurate.  Those parts of the conversation that were transcribed were incapable of proving that the appellants had actually moved to the point of engaging or procuring the undercover police officer to commit the act.  McPherson J said:

“If this is not correct, those ambiguities (in the evidence) fell to be resolved by the jury.  But then the deficiencies in the recording and transcription of the conversation assume decisive importance.  If, as was the case, substantial portions of recording and transcript were inaudible or unintelligible, then . . . it was not logically possible for the jury to be satisfied beyond doubt that they had all the necessary evidence on which to found a verdict of guilty.” (at 11)

25. That case was one in which the gravamen of the offence consisted of what was said in the conversation. The record of what the appellants said was too fragmentary to prove the case against them. This case is different. The appellant has made clear admissions of his commission of the arson with which he was indicted. One of those admissions is distinctly recorded on tape. The portions of the tape which are indistinct are minor and do not reasonably give rise to any doubt as to the genuineness or completeness of the appellant’s confession. To adapt what McPherson J said in Ioannau:

“The case is . . . one in which the recording and transcription were subject to only a few or apparently minor deficiencies that would not impair confident reliance on the balance . . . the unintelligible portions might safely be ignored as containing nothing tending to exculpate the appellants . . .” (at 12)

26. In my opinion the appeal should be dismissed.

27. ATKINSON J: I agree with the order proposed by and the reasons of Chesterman  J.