SUPREME COURT OF QUEENSLAND 

[1]  THE COURT: On 22 March 2007, the appellant was convicted upon the verdict of a jury of one count of arson, and one count of attempted fraud to the value of more than $5,000.  He was sentenced to an effective term of three years imprisonment, and 22 June 2008 was fixed as his parole release date.

[2] The appellant seeks to appeal against the convictions on the following grounds:

(a) that the learned trial judge erred in allowing the jury to have possession of the transcripts of Mr Le's interview with the police; and

(b) that the learned trial judge erred in failing to direct the jury that if statements made by Mr Le that he did not light the fire raised a reasonable doubt, then they should acquit.

[3] These grounds of appeal should be considered after first describing the case made at trial.

The case at trial

[4] The appellant was charged with setting fire to a restaurant known as "Chi Chi's Cuisine" within Pacific Centre at Sunnybank Hills on 22 March 2005.  He was also charged with attempted fraud on 19 April 2005 as a result of his claim to recover upon the fire insurance in respect of the shop.

[5] The appellant had purchased the business in August 2004.  At that time, a kebab business was conducted from the shop.  The appellant leased the shop from Paramount Property Pty Ltd for $2,534.05 per month although the months of October and November 2004 were to be rent free.  He renovated the premises, and began operating from them on 1 September 2004.  It operated for 10 days before closing down again for a period of five months during which further renovations were to be undertaken.

[6] On 21 March 2005 at approximately 10.30 pm, the appellant was seen at the premises for a few minutes by the cleaners.  He was seen again by the cleaners at approximate 11.30 pm.  The cleaners left the premises at approximately 12.30 am on 22 March 2005.

[7] At 12.47 am on 22 March 2005, the fire brigade received a call in relation to a fire at the shop.  When the fire brigade arrived at the premises, the shop was locked and there was no evidence of forced entry.  The shop was destroyed by the fire.

[8] Police investigations revealed that the fire originated from three areas in the kitchen, and was not caused by electrical faults.  Tests revealed petrol residue within the premises.  Expert opinion supported the thesis that the fire would have developed slowly after smouldering for some time.

[9] Police obtained a search warrant in relation to the appellant.  Documents detained pursuant to the warrant showed that the appellant had received a letter of demand in respect of unpaid rent which informed the appellant that, because of non payment of rent, the gas to the premises would be cut off on 22 March 2005.

[10]  The appellant was interviewed by police on 22 March 2005 and 29 August 2005.  In the interim, on 19 April 2005, the appellant made a claim for $50,000 upon the insurer of the premises.  In the first interview, the appellant admitted that he had the keys to the shop and that, on the evening before the fire, he took home coffee and a juice blender from the shop.  He told police that he had been intending to open the shop for business on 22 March, and that he had been at the shop the previous evening to prepare to open for business.  He denied having anything to do with lighting the fire to the shop.

[11]  In the interview of 29 August 2005, the appellant admitted that the shop had not traded during 2005, that he had no staff employed, and that he had debts relating to the establishment of the business.

[12]  The tapes of the records of interview were played to the jury during the course of the trial.  Transcripts of the records of interview were provided to the jury to assist them in following the tapes, but these were collected before the jury retired to consider its verdict.  After the jury had retired, they sent a note to the judge asking for a copy of the transcript of the tapes.  Counsel for the defence opposed this course, but the learned trial judge acceded to the jury's request.

[13]  Before the first tape was played to the jury (the conversation of 22 March), the jury were provided with transcripts.  The learned judge advised them as follows, at that stage:

"Members of the jury, you're about to hear a tape recording of a conversation said to have been between the defendant and Detective Frilingos and transcripts are going to be provided for your assistance however it is important for you to remember that it is the sounds you hear from the tape recording that constitute the evidence.  The transcript itself is not evidence.  It is merely an aid to your understanding.  It is really someone else's opinion as to what the conversation on the tape is.  It is what you hear that matters so if you hear something different from what appears in the transcript you should act on what you heard not on the transcript."[1]

The learned judge then ordered the transcripts be distributed.

[14]  After that tape was played, the learned judge ordered that the transcripts be collected by the bailiff, and ensured they did not remain with the jurors.  That step reinforced the appropriate warnings given by the learned trial judge, focusing the attention of the jury on what the jurors themselves actually heard.  Before the tape of the interview of 29 August 2005 was played to the jury, the jurors were given transcripts of that tape too, and further directed as follows:

"Members of the jury, again, I repeat the warning I gave you that those transcripts are given to you as an aid to your understanding.  The sounds you hear is what is the evidence.  The transcript is not evidence.  It is someone else's opinion of what they heard so if you hear something different from what’s on the transcript you act on what you hear."[2]

Once again, after the tape was played, the transcripts were collected from the jury by the bailiff.  This meant the jurors heard the tape recordings with the assistance of a transcript in front of them, but were not allowed to treat the transcript as the equivalent of the evidence.  They were obliged to listen to the tape recording, and endeavour to recollect its contents, as they would have been obliged to listen to the words of a live witness in the court, and endeavour to recollect that.

[15]  When the jury had retired, they sent a note to the judge which read:

"Could we please have a copy of the transcript of the tapes? 

Reason: We do not want to listen to the whole tape and would like to select parts of the tape."[3]

The provision of transcripts of the record of interview

The appellant's arguments

[16]  The first argument is that the provision of the transcripts of the appellant's records of interview operated unfairly against the appellant.  It is said that the tapes were not so long that it would have been unduly inconvenient for them to be replayed and that there were no language difficulties or deficiencies in the tape recordings which would justify giving the transcripts to the jury,[4] bearing in mind the risk that the jury would attribute to the printed record greater weight than it deserved.[5]  It is to be emphasised that no complaint is made about the learned trial judge's directions to the jury as to the use which they could properly make of the transcripts.

[17]  When the learned judge had the jurors brought into the court, following their request for the transcripts, an exchange occurred in these terms:[6]

"His Honour: Thank you, madam bailiff.

Members of the jury, if I could ask through your speaker, is it intended to play the parts of the tape that you want to select by using these transcripts?

Speaker: Yes, it is, your Honour.

His Honour: Yes. Could you achieve what you want to do by being given the transcripts in the jury box for you to find the places?

Speaker: Possibly not, you Honour.  We would need to be together to go through that.

His Honour: All right.  In the exercise of my discretion, I make available to you the transcripts of the tape-recordings, but I again emphasise as I have previously in the trial, that it is the sounds that you hear that is the evidence, because the printed word does not convey the same as the spoken words.

Speaker:  We understand that, your Honour.

His Honour: Yes, and I have to tell you that as a matter of law, it is important to bear it in mind.  Thank you.”

[18]  The learned judge's directions on the proper use of the tape recordings and the transcripts clarified the use the jurors intended to make of the transcripts, namely simply to identify the parts of the audio tapes that the jurors wanted to hear again.  There is every reason to accept that the jury used the transcript as their speaker told the learned trial judge the jury intended to, and that the jury appreciated – as they said they did – that the audio tape was the evidence, not the transcript.  The directions given could hardly have been clearer, on that point, and nor could the response by the jury spokesperson.  That makes it almost impossible to sustain the argument that the provision of the transcripts operated unfairly against Mr Le in this matter.

[19]  The appellant's arguments treat a transcript of a recorded interview with a defendant – usually put into evidence by the prosecution because of statements against interest – as the same for all relevant purposes as a transcript of oral evidence at a trial.  That assumption treats the different uses and purposes of the evidence transcribed, as irrelevant; and is wrong to that extent.  The reason for giving a transcript of recorded evidence of an interview to the jury is not the same.  Its purpose is to assist the jury in understanding what is on the tape.  The tape itself remains available to be played so that the jury can assess what it means by listening to the words as they were spoken.  Assimilating the two classes of case under the same regime obscures the differences between them.

[20]  In R v Tichowitsch,[7] it was recognised that the provision of a transcript of evidence to the jury during the course of its deliberations is a matter for the discretion of the trial judge.  That position is not challenged by the appellant.  Rather, the appellant contends that the learned trial judge erred in the exercise of his discretion in this case.  That being so, it is necessary for the appellant to demonstrate that the erroneous exercise of the trial judge's discretion has led to a miscarriage of justice in the sense that it prejudiced his prospects of an acquittal.  It is hard to see how reference by the jury to the transcript of what the appellant said in his interviews, to locate what they wanted to hear again, could have had this effect.  Tichowitsch is concerned with provision of transcripts of oral evidence which raises other issues.  The provision of a transcript of oral evidence given in the trial raises the spectrum of issues comprehensively discussed by Williams JA in that case. 

General Observations

[21]  It is possible that an accused who has given oral evidence may be disadvantaged by the jury having access to a written record of a complainant's evidence.  The jury may give greater attention and credence to the written evidence than to the oral evidence (see the discussion in Butera v DPP (Vic)[8]).  Disadvantage of this kind may even be suffered by an accused who does not give evidence, where there is a substantial body of oral evidence which tends to support the defence case.  The need to recognise the possibility of such disadvantages was discussed in Tichowitsch. The present case was not one of a defendant's oral testimony, given once in court, being set against a complainant's written evidence made available to the jury in the jury room.  (See too Driscoll v The Queen[9]).

[22]  Indeed, in this case, the recorded evidence also contained exculpatory statements by the appellant: the transcript was "a valuable aide – memoir for the jury"[10] in this regard.  There is some irony here in that the second argument for the appellant focuses upon the appellant's denials of his involvement in the fire in his interviews with the police, and argues that the directions by the learned trial judge were insufficient to alert the jury to their duty to acquit if those exculpatory statements raised a doubt as to the appellant's guilt. 

[23]  It is not suggested that there was any error in any of the transcripts, as compared with the tapes, which might have confused or misled the jury; and in considering whether the appellant's prospects of acquittal were prejudiced at all, it must be borne in mind that the case against the appellant, albeit circumstantial, was very strong.  The fire started inside his shop.  It was started by igniting petrol.  The shop was found locked after the fire.  The appellant was present in the shop shortly before the fire started and he had the keys to the shop.  The appellant had powerful financial incentives to set fire to the shop.  The evidence did not raise the possibility that some other person could have had access to the shop to start the fire.  Thus, the jury were entitled to conclude beyond reasonable doubt that the fire was deliberately lit, and that there was no candidate other than the appellant as the person who started the fire.  In these circumstances, even if (contrary to the views expressed here) the learned trial judge should have exercised his discretion to withhold the transcript of the appellant's interviews, it is not apparent that the appellant's prospects of an acquittal could have been adversely affected by reason of the jury's access to the transcripts.

[24]  It is also relevant to record that the trial judge gave directions on three occasions about the proper use of the transcripts.  The first was given prior to the first tape being played.  The second was given before the playing of the second tape.  The third was given when the transcripts were about to be given to the jury to be used in the jury room.  Since it was not a case where there was an intention, at the time the summing up was delivered, to allow the transcripts into the jury room, it is understandable that no direction was given in the summing up itself. 

[25]  The note sent by the jury to the trial judge strongly suggests that it had been appreciated by them that it was necessary to listen to the tape.  The purpose of the note was to inform the judge that the jury considered that it would facilitate identifying where parts of the tape that the jury particularly wanted to listen to were on the tape.  This accords with the common experience of judges who sit frequently in criminal trials that much of what is in a taped record of interview is not of critical importance in reaching a verdict.  Having to locate critical parts of the tape without the assistance of a transcript is apt to unduly frustrate the jury and prolong the process of reaching a verdict. 

[26]  The exchange between the trial judge and the jury speaker shows that it was understood by the speaker that it was necessary to listen to the passages of the tape the jury wished to identify more easily by reference to the transcript.  The scrupulous care the learned trial judge took to satisfy himself that the jury understood his warnings shows that there was no likelihood that the jury misused the transcripts by substituting them for the tapes themselves.

[27]  The need to go to the lengths to which the trial judge went may not be necessary in all cases.  It is not uncommon for the question whether the jury is to have transcripts of the record of interview in the jury room to be dealt with at an early stage.  It is not infrequent that counsel do not object to the jury taking the transcripts into the jury room.  In those cases where there is not an agreed position, a ruling has to be made. Without attempting to be exhaustive, ordinarily, regard would be had to any relevant matters, such as the length of the tapes, the quality of the recording, and the extent to which there are passages that are difficult to hear without replaying the passages repeatedly. For example, the transcript may be of a tape that is difficult to decipher. If a transcript includes words the transcriber heard, perhaps by the use of more sensitive equipment than is available to the jurors, provision of it may give the Crown an unfair advantage. The tape may be admissible, but it may be unfair to allow the jury to have the transcript at all.

[28]  To limit the availability of a transcript of a recorded record of interview on the ground that jurors may misuse the transcript of a recorded interview when there is the recording itself available to be played and a proper direction is given as to the use to which the transcript may be put involves two unwarranted assumptions.  The first is that the jury will not follow the directions of the trial judge.  The second is that they will not, in the electronic age, be inclined to watch at least the critical parts of the tape to remind them of what was said, or resolve any differences of recollection about how it was said. 

[29]  On the other hand, a transcript of oral evidence is merely words on a page, without any indication of how the true meaning may be influenced by how the words were spoken, nor any means of finding out.  Where that ephemeral element of oral evidence is lost, the risk that merely reading the words without necessarily retaining the memory of how they were spoken, especially in a lengthy trial, may lead to an unfair outcome, as well as creating a risk that the transcript will be given undue prominence over evidence that is not provided in transcript form. The need for careful judgment when deciding whether and, if so, how much transcript of oral evidence is given, is emphasised in Tichowitsch.

The trial judge's directions

[30]  As to the appellant's second point, the learned trial judge directed the jury about the appellant's denials of guilt in the following terms:

"The mere fact that you might - sorry, I'll rephrase that – if you accept those statements, then you would find the defendant not guilty of both charges that are before you. If you reject those statements, it does not mean that the prosecution has proved its case. It's still a matter for you whether the whole of the evidence you have heard satisfies you that all of the elements of the offence you are considering have been proved beyond reasonable doubt.

Members of the jury, each of you took an Oath or Affirmation at the beginning of the trial to conscientiously try the charges and to decide them according to the evidence. Your obligation is to deliver true and honest verdicts. It is for you to determine what are the honest verdicts on the evidence in this trial.

If after considering the evidence, and the matters to which I have referred, you are not satisfied beyond reasonable doubt that each element of the offence you are considering has been proved, then the honest verdict for that charge is one of not guilty.

But if the result of your consideration and deliberations is that you are satisfied beyond reasonable doubt that all of the elements of the offence you are considering have been proved, then the honest verdict is one of guilty."

[31]  On the appellant's behalf, it is argued that the direction given by the learned trial judge was apt to lead the jury wrongly to consider whether they accepted or rejected the appellant's denials in his statements rather than coming to a verdict taking the statements into account in conjunction with the totality of the evidence.

[32]  With all respect, and as is apparent from the passage set out above, the learned trial judge made it clear that, even if the jury were not disposed to accept the appellant's exculpatory statements as reliable, they must still take them into account in considering whether, on the totality of the evidence, they entertained a doubt as to the appellant's guilt.

Conclusion and order

[33]  The appellant was not unfairly disadvantaged by the provision of transcripts to the jury; and there was no material deficiency in the learned trial judge's direction to the jury.

[34]  The appeal should be dismissed.