R v Kashani-Malaki[2010] QCA 222

SUPREME COURT OF QUEENSLAND

[1] McMURDO P: The appellant, Morteza Kashani-Malaki, pleaded not guilty to one count of trafficking in dangerous drugs, heroin, methylamphetamine, cocaine and 3,4-methylenedioxymethamphetamine (MDMA) (count 1), and one count of importing prohibited imports, namely, narcotic goods consisting of a traffickable quantity of cocaine (count 2).  His trial commenced in the Brisbane Supreme Court on 10 June 2009.  The appellant, who is not a lawyer, represented himself.  Over three weeks later, the jury convicted him on count 1 but were unable to reach a verdict on count 2.

[2] He appeals against his conviction on count 1 on the following grounds. 

"1.The pre-trial hearing Judge erred by holding that there were alternative forensic methods for the Appellant to challenge the authenticity of the alleged recordings, which were relative to the assessment required, by which he held the material disclosing the identity of the ordinary hardware and associated software used in their creation and replication was such as to attract public interest immunity.

2.The pre-trial hearing Judge erred by holding that the evidence of telephone intercepts was admissible against the Appellant.

3.The trial miscarried as a result of the fact that the Defendant was not represented by Counsel, thereby depriving him of his right to a fair trial.

4.A miscarriage of justice resulted in the way in which the trial judge dealt with the note received from a juror on the morning of 2 July 2009 and in particular the judge erred:

(a)in effecting a private communication with the jury by directing the Bailiff to take the juror's note back to the jury room and say that, 'her Honour doesn't want to receive a note from an individual juror and that if there were questions for those questions to be given to the Bailiff so that we can get the jury back';

(b)in failing immediately after receiving the note in open court:

(i)  to advise the parties of the receipt of the note, its contents and the circumstances in which it was received

(ii) to invite submissions from the parties on how best to direct the jury on the matters raised by the note and

(iii) to give such directions to the jury;

(c)in allowing the jury to continue to deliberate for the rest of the day after the note was received, and to deliver a verdict, without taking the steps mentioned in paragraph (b);

5.  A miscarriage of justice resulted from an unfair imbalance in the final addresses and the summing up as a result of

(i)  the prosecutor's being allowed to address more than three times as long as the appellant had addressed and on matters that went beyond the evidence the appellant called and;

(ii) the failure of the judge to provide an adequate independent summary of the prosecution case in her summing up and her commending to the jury the prosecutor's summary in his final address."

[3] I have concluded that this appeal must be allowed on the fourth ground of appeal and that a new trial must be ordered.  These are my reasons.

Relevant aspects of the prosecution case at trial

[4] Before returning to discuss the grounds of appeal, it is helpful to know something of the evidence at trial.  The trafficking count was charged as being committed between 29 July 2003 and 13 April 2004.  During this time, the appellant resided in a unit in Hampstead Road, Highgate Hill. 

[5] The Australian Crime Commission (ACC) intercepted and recorded his telephone services and those of some of his associates.  These recordings were the lynchpin of the prosecution case which included the following. 

[6] The appellant's principal associates in the conduct of his drug trafficking were Raid Manour Slivo,[1] Saman Omer-Noori[2] and Cele Markovski[3] who each conducted individual drug businesses at a wholesale level and, in Slivo's case, also at a retail level.  The appellant's drug trafficking overlapped with the drug businesses of his associates: he was a wholesale supplier of a range of drugs to others including Omer-Noori and Slivo, and Markovski assisted the appellant in sourcing these drugs. 

[7] The prosecution case in respect of the importation (count 2) was that the appellant was a party to an importation of cocaine from Lebanon between December 2003 and late January 2004.  He partly financed the importation and assisted two other participants, Souma and Tocalo, to each bring a quantity of cocaine from Lebanon.  The charged importation was alleged to be a particular of the appellant's trafficking.  As I have noted, the jury could not agree on a verdict on count 2.

[8] The prosecution provided 25 particulars of the appellant's trafficking.[4]  A schedule related 23 of these particulars to relevant parts of the recorded intercepted phone conversations.[5]  On some occasions, the particularised activities were supported by other surveillance evidence and drug seizures.  The prosecution alleged that drugs were referred to in the intercepted conversations in code.  A police officer gave evidence that, in his experience in drug terminology; "Charlie" referred to cocaine and "Icecream" referred to methylamphetamine.  The prosecution also alleged that the appellant and Markovski used code words from their mutual interest in the building industry to refer to drugs: "Tapware" and "washers" referred to ecstacy and "Paint" referred to heroin.  When supplying drugs to Omer-Noori, the prosecution alleged that the appellant referred to the designated hiding place as "the ceiling".  The prosecution also relied on a fingerprint of the appellant which was found on piece of paper in a caustic-soda-labelled tub containing cocaine, thereby linking the appellant with the cocaine seized from Markovski (particular 24).  The final particular (particular 25) was that the appellant was found in possession of 6.586 grams of heroin, 0.483 grams of MDMA (5 pills) and about $55,000 cash.  These were found in garage 3 in the apartment building in which the appellant resided in unit 2.

[9] The prosecution also relied on certificates relating to the recorded intercepted telephone conversations tendered under s 61 Telecommunications (Interception and Access) Act 1979 (Cth) and certified warrants authorising those recordings under s 61A of that Act. 

[10] Nicholas Edmund Wolanin gave evidence that he was manager of the Electronic Product Management Centre (EPMC) at the ACC.  The EPMC was responsible for exercising the authority of telecommunications interception warrants issued by a court, recording intercepted communications and preparing them for evidentiary purposes for use in court.  Neither officers of the EPMC nor investigators who had access to that material remotely, had any facility to edit what was recorded on the ACC's telephone interceptor recording system known as RADARS.  The RADARS system was purchased from and installed by a third party and a specification was that there could be no editing of recordings on it; there was no functionality of that kind in the system. 

[11] Peter Anthony Lawson also gave evidence.  He was employed by the ACC and was formerly a member of the EPMC.  He referred to the CD containing the 206 recordings of intercepted telephone calls concerning the appellant, which was tendered at trial.  He confirmed that the warrants and evidentiary certificates under s 61 and s 61A related to the 206 recordings on the CD.  He made the CD from recordings on the RADARS system.  He did not edit those recordings when making the CD.  The recordings came from the mainframe computer but were transferred onto optical disks after about two years.

[12] It seems the prosecutor and the appellant agreed that, as Mr Wolanin and Mr Lawson resided in Sydney and had not expected to stay overnight in Brisbane, they could leave for Sydney on the understanding that they would return if the appellant subsequently wanted to cross-examine them.  The transcript indicates that the appellant did not require them for cross-examination.

The defence case at trial

[13] The appellant did not give evidence but he called eight witnesses.  His case was that the ACC was corrupt and that his former barrister, Mr Di Carlo, had been and was in a relationship with Ms Zappala, who was working for the ACC during the period of the alleged trafficking.

[14] Farrokh Golchin gave evidence that he took possession of garage 3 the Sunday before the police searched it and discovered drugs and cash.  Previously, the door to garage 3 was open and could have been accessed by anybody.  He knew nothing of the heroin found in garage 3. 

[15] Roger Bruce Lokerse gave evidence that, unknown to the appellant, he had left heroin in one of the garages in the apartment block where the appellant lived.  Lokerse was convicted of trafficking in dangerous drugs and had served his sentence.  He agreed in cross-examination that some recordings played in court appeared to be the appellant and him discussing something but he could not recall the subject matter.

[16] Tracy Eliza Thorp, a solicitor, and Lee John Driscoll, an accountant, gave evidence that they heard conversations between Mr Di Carlo and Ms Zappala in relation to evidence concerning the charges against the appellant.  Mr Driscoll also gave evidence that his analysis of the appellant's bank records and financial records did not suggest any unexplained income. 

[17] Domenico Marcello Taraborrelli and Danica Jovic gave evidence that the appellant had legitimate business dealings with Markovski, including an involvement in the audio-visual hire business AVFX, a business "Show Stoppers", and a business in locating Australian markets for Iran-produced products including tiles and brake pads. 

[18] The appellant also called expert evidence in respect of the recorded telephone intercepts on the tendered CD.  Jules Walter Sholer, an expert in digital computer files including audio files, examined a copy of the recording of the intercepted telephone calls tendered at trial.  He also examined an earlier copy of largely similar material with which he was provided.  He expressed concern about the lack of verifiable creation dates for each of the audio files in the CDs.  He noted that numbers were missing from numbered files.  The missing numbers could be the result of human error in the preparation of the copies of the CDs provided to him.  When he compared his copy of the tendered CD to the other copy of a CD of largely similar recordings, he observed that recordings of the same conversations on the different CDs were of different lengths.  If these two CD's of recorded conversations had been copied from the same master tape, they should have been the same length.  These matters gave him concern about the accuracy of the recordings and their continuity.  He was unable to have access to the ACC's RADARS equipment to further his enquiries. 

[19] Dr George Papcun gave the following evidence.  He has a PhD from the University of California in acoustic phonetics and is a forensic consultant with experience in the use of computers in storing and analysing speech.  He has given evidence in many high profile cases in the United States of America.  Dr Papcun read the transcript of the evidence given at trial by Mr Lawson and Mr Wolanin.  He noted that Mc Wolanin suggested that data is written to the mainframe computer and an optical disk at the same time, whereas Mr Lawson gave evidence that data is written to the mainframe computer only.  Mr Lawson's statements raised the possibility of an error occurring during the transfer of data. 

[20] He analysed about 30 phone calls from a CD containing 256 calls originally provided to him by the ACC.  He compared these calls to another CD provided to him later (the same as the CD tendered at trial).  Both CDs were clearly copied by the ACC for the appellant.  In some cases, recordings of the same calls on one CD were slightly different in length to the same calls on the other CD.  He considered there was a defect in the copying of the calls.  He made graphs of the sounds on the two CDs and analysed them.  He did not have access to the ACC's RADARS equipment on which the calls were recorded.  But in his view, the equipment on which they were recorded was "old technology"; it was prone to and likely to contribute to errors in the storage and transfer of files.  The discrepancies he detected from the calls he analysed made it technically possible that some of these signatures and gaps could have been introduced by somebody editing or changing the recording.

[21] Dr Papcun considered that the presence of these inconsistent electronic signatures showed that the recordings in the CD tendered at trial had been sent through different processes and not been treated uniformly as he would have expected under the ACC's RADARS system.  It was technically possible that these electronic signatures or gaps were introduced through editing.  He could not say that the recordings had been edited, but it was possible.  On the other hand, frequently, law officers were not adept at handling complex equipment and these gaps could have occurred innocently.  All he could say was that there was a possibility that the recordings had been tampered with.

[22] The appellant suggested in his address to the jury that his legitimate business dealings with Markovski may have explained why his fingerprint was found on paper goods located with drugs in Markovski's possession.

The juror's note (ground 4)

The events at trial

[23] It is sensible to first deal with ground 4 which concerns the judge's treatment of a juror's note after the jury had retired to consider their verdict.

[24] On the first day of the trial, 10 June 2009, the judge, in her opening remarks to the jury informed them:

"The speaker is your spokesperson and usually communicates with me in open Court on your behalf. That doesn't prevent the rest of you from speaking as well, and I find in trials that last a few days, the jury members, as they feel comfortable with the trial, are quite happy when they tell me they want to have a break or need time to go outside for a reason. You don't - you are not limited to the speaker speaking on your behalf."

[25] During the judge's final directions to the jury about three weeks later, her Honour stated:

"… If you find that you need further direction on the law, do not hesitate; send a written message through the bailiff. If you wish to be reminded of any parts of the evidence, let the bailiff know and make a note of what you want. When you return to the courtroom, I will provide such further assistance on the law that I can or arrange for the relevant part of the transcript to be read out to you."

[26] The jury retired to consider their verdict at 10.34 am on 29 June 2009, almost three weeks after the trial commenced.  On 1 July, the third day of jury deliberations, the judge gave a redirection which included:

"… Is there anything else I can help you with while we've dragged you into here? … And any help I can give you, just feel free to knock on the door."

[27] The jury recommenced their deliberations at 2.34 pm.  The following day,[6] the fourth day of deliberations, the judge stated to the parties in the absence of the jury:

"I have got a note from the jury:

'We are ready to offer a verdict on trafficking. We are unable to come to a unanimous verdict on importation.'[7]

So, I want you to think about that. There's one thing that I just want to convey, and for the members of the media here, I am disclosing this but it's not something that should be reported, what I am about to disclose, and you will understand when you hear what I say, all right.

This morning one of the jurors was concerned about the health of her children. They were going to see a doctor and so she asked the Bailiff could she get a text message from her husband at 11 and so the Bailiff - the Bailiff handed me a note which he said the juror gave him, and obviously the Bailiff didn't look at the note, and I looked at the note because I thought that it was going to be relating to the health of her children, but it wasn't. She raised a couple of issues about how the deliberations were going and that she wanted to get further information on a particular direction, and I was a bit concerned about that because it was a communication from one juror. So I folded the note up again, I gave it back to the Bailiff and I told the Bailiff to just take it back to the jury room and say, you know, to the jury room that her Honour doesn't want to receive a note from an individual juror and that if there were questions for those questions to be given to the Bailiff so that we can get the jury back.

We haven't had a question until we have actually got this note. I feel that probably the juror was a bit overwrought about her children. As it turned out, the Bailiff has since informed me that she did get the text message from her husband and her fears about their health were met by a positive text message from her husband. That was at 11 a.m., so that won't have affected her deliberations today, but I suspect the note was as a result of being overwrought.

I don't want to disclose to you what's in the note. I don't think it's proper, because it was one juror's note that she wrote when she was brought in here today when she was concerned about the health of her children, but I just thought I should put that on the record and now that I have given you that background, I want to raise with you should I just take the verdict on the trafficking and actually formally ascertain they're unable to come to a unanimous verdict on importation, or should I say that I won't take a verdict at the moment and give them the Black direction in relation to importation and ask them if there's anything that I can help them with?

MR CASH: The Crown would offer [sic][8] the latter course, your Honour."  (my emphasis)

[28] Neither the prosecutor nor the appellant raised any objection either to the manner in which the judge had indicated that she had dealt with the individual juror's note out of court earlier that day, or as to the judge's proposed course in dealing with the jury's collective note.[9]

[29] The judge had the jury return to the court room at 3.52 pm and, after reading over their collective note,[10] gave them a direction consistent with the High Court's decision in Black v The Queen.[11]  The jury again retired to consider their verdict at 3.58 pm.  They returned at 4.05 pm and delivered their verdict, convicting the appellant of trafficking in heroin, methlyamphetamine, cocaine and MDMA, but indicating their inability to reach a verdict on count 2.

[30] The notice of appeal containing grounds 1 to 3 was filed on 30 July 2009.  The judge indicated on 3 August 2009 that she had no comments to make under r 94 Criminal Practice Rules 1999 (Qld).  When the appellant sought leave to add this ground (ground 4) to his grounds of appeal, the judge was invited to provide a further report under r 94.  The judge, in that report dated 18 February 2010, stated:

"In relation to proposed ground four, the Transcript accurately records what I disclosed about this note from the juror.  I now cannot recall the precise contents of that note because I did not copy it, but dealt with it in the manner that I disclosed in open court."

[31] My associate has listened to the State Reporting Bureau's recording of those directions set out at [26] of these reasons and has confirmed they are accurately transcribed.

Should this Court request a further report from the judge?

[32] During the hearing of this appeal, the question arose as to whether this Court should ask the learned trial judge to furnish yet another report under r 94 as to whether her Honour could be more specific as to the juror's query.  The appellant resisted any further enquiry being made of the judge.  The respondent asked for a report on the following questions:

"i)  Did the note identify the matter or direction about which the juror wanted to get further information?

ii)  If yes, what was that matter or direction?"

[33] The judge received the individual juror's note on the morning of 2 July 2009.  In her further report to the Court under r 94 dated 18 February 2010 the judge noted that she could not then recall the precise contents of that note.  It seems unpromising that her Honour's recollection will be any better in August 2010.  For that reason, this Court, by majority, has determined that it should not request the judge to provide a further report under r 94.  This ground of appeal must be determined on the information presently before this Court.

The appellant's contentions

[34] The appellant's counsel submits that the judge's out-of-court approach to the individual juror's note amounted to a fundamental irregularity in the conduct of the trial such that the appeal must be allowed and the verdict of guilty set aside.  The judge should not have addressed the juror's concerns by way of a private communication.  She should have reconvened the court and advised the parties of the contents of the note and the circumstances in which it was received.  She should then have invited submissions as to how best direct the jury on the matters raised in the note and then directed accordingly.  The appellant submits his contentions are supported by a large body of authority: R v Black & ors;[12] R v Hart;[13] R v Gorman;[14] Smith v The Queen;[15] R v Smith;[16] R v Crowe;[17] R v Fitzgerald.[18]

[35] The appellant also argues that the judge's approach was flawed by treating the communication as inappropriate because it came from one juror rather than from the jury as a whole or through the speaker.  The appellant further contends that the judge's direction as passed on to the jury through the bailiff was fundamentally wrong in that it was apt to stifle questions from individual jurors (especially the one who wrote the note) unless the questions were perceived as finding favour with the jury as a whole.  It is not surprising in view of the judge's admonition, that there was no repetition of any question in the following five or six hours before verdict from the juror who sent the note. 

[36] In any case, the appellant contends, a direction from the judge should not have been conveyed by the bailiff but should have been given in open court: Smith v The Queen.[19]  The appellant was self-represented at trial.  He was not a lawyer and could not reasonably be expected to have raised an objection to the course taken by the judge.  But the prosecution should have. 

[37] The error is so fundamental that the absence of an objection cannot avoid the appeal succeeding on this ground.  It is not an appropriate case in which to invoke
s 668E(1A) Criminal Code 1899 (Qld).

Conclusion on ground 4

[38] The principle that communications between judge and jury material to the verdict must be in open court is well established in Australia.  It is a fundamental tenet of our system of open justice.  It follows from the principle that ordinarily a criminal trial must take place in the presence of the accused person, a principle statutorily enshrined in s 617(1) Criminal Code.[20]  See also R v Jackson and Le Gros.[21] 

[39] Not every out of court communication between judge and jury will offend this principle.  In Smith v The Queen,[22] the High Court[23] explained:

"It is fundamental law that no private communication may be made between the judge and the jury if the communication is material or may affect the jury's consideration of the case.  It might be wise for a judge to disclose any communication made by the jury, but it does not follow that a failure to reveal a communication which is not material to the jury's decision will be a breach of the principle that criminal trials must be held in public, or that such a failure will necessarily result in a miscarriage of justice."

[40] The Queensland courts have long taken this approach.  In R v Crowe,[24] for example, the Court of Criminal Appeal recognised that a judge communicating with a juror or jurors out of court was an irregularity which was curable only if, under s 668E(1A) Criminal Code, there was no possible doubt that the term of the juror's question or the response to it in out of court communications could not have affected the result of the trial.[25]

[41] Other Australian jurisdictions have taken a similar approach.  In R v Black, the Victorian Court of Appeal[26] approved Lord Lane CJ's helpful statement in R v Gorman[27] in respect of dealing with communications from a jury to the trial judge:

"First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel. …

…Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful to do so, seek the assistance of counsel.  This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.

Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures, as we have called them, then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.

We may add, before parting with the case, that the objects of these procedures, which should never be lost sight of, is this: first of all, to ensure that there is no suspicion of any private or secret communication between the court and jury, and secondly, to enable the judge to give proper and accurate assistance to the jury on any matter of law or fact which is troubling them.  If those principles are borne in mind, the judge will, one imagines be able to avoid the danger of committing any material irregularity."[28]  (my emphasis)

[42] The transcript in the present case[29] makes the following matters clear.  The judge initially thought that the note from the individual juror the subject of this appeal concerned the health of the juror's children.  But as the judge later told the parties:

"… it wasn't.  She raised a couple of issues about how the deliberations were going and that she wanted to get further information on a particular direction."

[43] The only rational inference from the judge's description of the note is that it raised issues that could be material to or affect the jury's consideration of the case.  This was so whether the juror's enquiry specified the point troubling her or whether it was a general enquiry about an unspecified "particular direction".  It was a clear case where the judge should have reconvened the court in the presence of the appellant and the prosecutor, initially in the absence of the jury.  The judge should then have read into the record that part of the note insofar as it was material or related to the jury's consideration of the case.  If it concerned information confidential to the jury room such as voting figures,[30] that part of the note should not have been disclosed in open court.  The judge should have marked the note as an exhibit for identification, and placed it on the court file.  If it contained confidential information such as voting figures, it should have been placed in a sealed envelope and marked "not to be opened without an order from a judge" before being placed on the court file.  The judge should then have invited the parties to make submissions as to the appropriate course to be taken.  Having informed the parties of her decision as to the course to take, the judge should have had the jury returned to the court room.  The judge should then have read the pertinent part of the juror's note to the jury and offered appropriate assistance on the particular direction of concern. 

[44] Instead, the judge returned the note to the bailiff, instructing the bailiff to take it to the jury room and to inform (inferentially the juror who wrote the note) "that her Honour doesn't want to receive a note from an individual juror and that if there were questions for those questions to be given to the Bailiff so that we can get the jury back".  This was an irregular and unsatisfactory way to deal with a communication from a juror involving matters which apparently could affect the jury's consideration of their verdict. 

[45] As the appellant was not legally represented, the judge should have been particularly meticulous about ensuring regularity in court procedure.  The note came after four days of jury deliberations and at a time which was likely to be critical in those deliberations, about five hours before they delivered their verdict.  First, the judge's actions in returning the note to the juror meant that it was not available for this Court to review.  Second, the parties were not informed of the precise terms of the juror's request for "further information on a particular direction" so that they did not have the opportunity to make timely submissions as to the appropriate course for the judge to take in respect of it.  Third, the communication between judge and juror through the bailiff was not done in open court and there is no record of it other than the judge's statement in court some hours later as to her instructions to the bailiff.  Fourth, the judge's direction to the juror, delivered through the bailiff, that "her Honour doesn't want to receive a note from an individual juror" may have led the juror who wrote the note, and perhaps other jurors, to apprehend that they should not ask a question of the judge directly and could only do so through their speaker.  This was so, in spite of the judge's correct statement at the commencement of the trial three weeks earlier that a juror could directly ask a question of the judge.[31]

[46] True it is that neither the appellant nor the prosecutor objected to the course the judge told them she had taken in communicating with the individual juror through the bailiff.  The appellant, who is not a lawyer and was not legally represented, should not be criticised for or disadvantaged by this.  It is certainly unfortunate that the prosecutor did not encourage her Honour to deal with the matter as required by law.  Had he done so, it may be that the note could have been retrieved from the juror and the procedure I have outlined above followed.  Unfortunately, that is not the course the trial took.  Instead, a material irregularity in the conduct of the trial has resulted.  The potential materiality of the juror's question to the jury's consideration of the case means that, despite the considerable strengths of the prosecution case, s 668E(1A) cannot be applied: cf Jackson and Le Gros.[32]  It cannot be said that there is no possible doubt that the judge's communication with the juror through the bailiff could not have affected the result of the trial: see Crowe.[33] 

[47] It is regrettable that, as a result of this material irregularity, the appeal must be allowed and a retrial ordered in respect of a trial which occupied 16 court days.  If the appellant is prudent, he will ensure he is competently legally represented at his retrial.  This would allow the real issues in the case to be refined so that any retrial may well be considerably shorter.  But in any case, the cost to the community of a retrial is a modest price, and one the community is prepared to pay, for vigilantly ensuring compliance with the fundamental procedures at the centre of our criminal justice system: open justice with criminal trials ordinarily taking place in the presence of the accused person.[34]

Grounds of appeal 3 and 5

[48] As the appeal must be allowed on ground 4, it is unnecessary to deal at any length with the appellant's contention that he was deprived of a fair trial by his lack of legal representation or by the judge's refusal to adjourn the trial to allow him to obtain legal representation (ground 3).  I note, however, that this ground does not appear promising.  The appellant was given every opportunity to engage legal representation for his trial.  The trial had been listed for hearing some months before in June 2009.  In the end, the fact that he was not legally represented was of his own choosing.  For a lay person, he seemed to do a capable job of defending himself in the face of a persuasive prosecution case.  It did not seem to me that his lack of legal representation resulted in any miscarriage of justice.  If he is prudent, he will ensure he is competently legally represented at any retrial.  He was ably represented in this appeal by experienced senior and junior counsel.  He appears to have the financial means to pay for legal representation.  If he does not, he can apply for legal aid.

[49] Nor is it necessary to deal with the appellant's contention that a miscarriage of justice resulted from an imbalance in the prosecutor's final address to the jury and from the judge's summing-up (ground 5).  This ground appears no more promising than ground 3.  The judge fairly put the appellant's case to the jury.  The prosecution case was lengthy and of some complexity and the prosecutor was entitled, and indeed had a public duty, to adequately address the jury on it, especially in light of the spirited defence mounted by the appellant. 

The admissibility of the recordings and public interest immunity

[50] As it is likely there will be a retrial, it is necessary to deal with the appellant's appeal grounds 1 and 2.  These grounds challenge a pre-trial ruling preserving confidentiality in aspects of the manner of the interception and recording of the conversations between the appellant and his associates (ground 1) and the admissibility of that evidence (ground 2).

[51] On 9 July 2008, the Chief Justice (who was not the trial judge) granted the ACC's application to narrow the appellant's subpoena requesting documents relating to the interception and recording of those conversations, to those documents which could be produced without compromising the public interest.  His Honour also refused the appellant's application to quash or stay the indictment brought against him if the prosecution did not disclose documents as to the continuity, integrity or provenance of the telephone interceptions and recordings.

[52] During the hearing of this appeal, the appellant's counsel submitted that the parties, through their counsel, ought to be given access to material in the confidential affidavit of Kevin Kitson of the ACC, and the confidential submissions which were before the Chief Justice.  The respondent and the ACC were given leave to make written submissions in response which they filed on 9 April 2010.  The ACC and the respondent strongly contend that the appellant's counsel and expert witnesses should not have access to this confidential material. 

[53] Having examined the confidential affidavit and confidential public interest immunity submissions of the ACC in the application before the Chief Justice, I consider the appellant's application for his counsel and expert witnesses to view them should be refused because of public interest considerations.  My approach to view the material but to refuse to allow the appellant's counsel and expert witnesses to view the material is consistent with established authority: see the observations of Gibbs A/CJ in Sankey v Whitlam;[35] Gibbs CJ, Wilson, Brennan and Dawson JJ in Alister v The Queen;[36] Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ in The Commonwealth v Northern Land Council;[37] Gummow and Crennan JJ in Thomas v Mowbray;[38] and Crennan J in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (WA).[39]  I will, of course, consider the confidential affidavit and submissions in determining these grounds of appeal.

[54] In considering the application to limit the appellant's subpoena, the Chief Justice referred to paras 10 and 11 of the confidential affidavit of Mr Kitson[40] and the appropriate legal principles concerning public interest immunity (which were not in dispute).[41]  His Honour determined that:

"The affidavits of Mr Kitson warrant the conclusion that the relevant public interest in this case goes to the very heart of the activities of the major Australian agency, acting in collaboration with others, charged with the investigation of serious and organised crime.  While it is true that upholding the claim of immunity in this case will mean that the [appellant] will not have the forensic advantage of access to relevant material, it is as I have mentioned significant that there will be other cogent material before the court, the certificates and Mr Wolanin's statement, all of which may be tested in the ordinary way."[42]

[55] His Honour reached that conclusion after referring to the undertaking given by the appellant's expert witness, Dr Papcun, to maintain confidentiality and Dr Papcun's high level security clearances previously held with agencies of the government of the USA.[43]

[56] In balancing the public interest against the competing interests allowing full disclosure, the Chief Justice was entitled to take into account that the appellant was able to challenge at his criminal trial the authenticity of the recordings without having full disclosure of matters which should not be disclosed in the public interest.  This Court now knows that the appellant did so at his trial, quite effectively, through the evidence of Mr Sholer and Dr Papcun.  The Chief Justice did not place undue emphasis on this factor.  Clearly, the dominant consideration was that the public interest strongly favoured non-disclosure.  The appellant has not demonstrated any error in the Chief Justice's reasons for determining to uphold the public interest immunity privilege claim made by the ACC and supported by the prosecution.  The appellant's first ground of appeal fails.

[57] The appellant's alternative claim (ground 2) is that, if Dr Papcun's (and perhaps Mr Sholer's) evidence raised doubts as to the authenticity of the tape recordings, then it was unsafe to lead the evidence contained in the recordings before a jury, because any conclusion as to their authenticity would involve speculation.  In essence, his argument before the Chief Justice, and again in this Court, was that, despite the certificates issued under s 61 and s 61A Telecommunications (Interception and Access) Act, Dr Papcun's evidence (and perhaps Mr Sholer's) combined with the respondent's refusal to provide Dr Papcun (and perhaps Mr Sholer) with the source material to clarify their concerns, meant that there were serious issues about the continuity and provenance of the recordings.  As a result, the appellant argues, the recordings should have been excluded from the jury's consideration.

[58] The Chief Justice correctly identified that the prosecution must prove the provenance of the original recording and the accuracy of the copying process of it leading to the recordings tendered in court.[44]  His Honour then referred to Dr Papcun's report raising "substantial concerns regarding the integrity of the recordings".[45]  His Honour concluded that the tape recorded conversations were admissible and that any doubt as to their reliability and weight could be explored by the defence at trial.[46]  The reliability of the tendered recordings was a jury question.  The defence could call Dr Papcun at trial if they wished.  The mere fact that the defence had evidence challenging the reliability of the recordings did not make them inadmissible.  The recordings were probative and it was not necessary or desirable to exclude them to ensure the appellant had a fair trial.[47]

[59] As the Chief Justice identified, the lawfulness of intercepting the conversations was established by a series of warrants, certificates relating to which were tendered at the appellant's trial under s 61A.  Under s 61(4) and s 61(5), other certificates tendered at his trial were prima facie evidence of the authenticity of the recordings, and the copying of the recordings, of the intercepted conversations.  The authenticity of those recordings was further supported by the evidence of the prosecution witnesses, Mr Lawson and Mr Wolanin.  Although that evidence was challenged in the defence case at trial by Mr Sholer and Dr Papcun, as the Chief Justice recognised, it was a matter for the jury to determine whether the recorded intercepted telephone conversations were both accurate and also supported the prosecution case that the appellant was trafficking in the dangerous drugs heroin, methylamphetamine, cocaine and MDMA.  The Chief Justice did not err in finding that the recordings of the intercepted telephone calls were admissible against the appellant.  The appellant's second ground of appeal is without merit. 

ORDER:

1.Appeal allowed

2.Conviction for trafficking in dangerous drugs, heroin, methylamphetamine, cocaine and MDMA set aside.

3.A retrial is ordered.

[60] FRASER JA: I have had the advantage of reading the reasons of judgment of McMurdo P.  I agree with those reasons and the orders proposed by her Honour.

[61]  FRYBERG J:  The grounds of appeal in this case are set out in the President’s reasons for judgment.  I agree with her Honour that the first two grounds are without merit.

[62]  Ground 3 is equally without merit, for the reasons explained by the President.  The appellant had adequate opportunity to engage lawyers had he wished to do so.  His appearance unrepresented has all the hallmarks of a stunt.

[63]  As to ground 5, there is no rule in this State that where an unrepresented defendant has addressed the jury first, the prosecutor should address them for no longer than did the defendant and should deal only with the evidence led by the defendant; yet that is what the appellant submitted.  The prosecutor is entitled, indeed bound, to put the Crown case clearly and without bias.  He or she is entitled to a reasonable time to do so, including time for preparation.  The prosecutor’s final address performs an important part in the trial process.  An unrepresented accused cannot by the conduct of his or her case manipulate the form, duration or content of that address.

[64]  The complaint that the judge did not redress the balance by giving an adequate independent summary of the prosecutor’s case is misconceived.  Had the judge done so, there would doubtless now be a ground of appeal asserting that by repeating the prosecution case the judge aggravated the unfairness.  The absence of the summary advantaged the appellant; it meant that the jury did not hear the case against him a second time, from the bench.  (It is not suggested that the prosecutor said anything in particular which the judge ought to have corrected.)

[65]  The prosecutor addressed for about an hour and a half on the whole of the case.  In my judgment that did not offend against the tradition of moderation in cases of unrepresented litigants.

[66]  Ground 4 is more difficult.  The difficulty is one of fact, not one of law.  I agree with the President that the law is fairly clear.  If the note from the juror was material and might reasonably be regarded as affecting the jury’s (or the juror’s) consideration of the case, the course described by the President must be followed.[48]  Where I part company with my colleagues is their conclusion that the only rational inference from the judge’s description of the note is that it raised issues that could be material to or affect the jury’s consideration of the case.  In my judgment the Court should not make such a determination without first fully exploring the available evidence.

[67]  The proposal by the appellant to add this ground of appeal triggered a request to the judge for a further report under r 94 of the Criminal Practice Rules 1999.  No specific question was identified.  Her Honour reported, among other things, “I now cannot recall the precise contents of that note, because I did not copy it, but dealt with it in the manner that I disclosed in open court.”  That report was written on 18 February 2010, a little over seven months after the trial.  The fact that it was sought demonstrates recognition of the need for as much evidence as possible of what occurred in relation to the juror’s note.  It is unfortunate that the request for the report did not focus her Honour’s mind on what was wanted.  Essentially what was needed was some identification of the nature of the issues about “how the deliberations were going” and an indication of the nature of the “further information on a particular direction”, as described by her Honour when informing counsel of the note.  It was not to be expected that her Honour would be able to recall the precise contents of the note; her report to that effect was hardly surprising.  What was needed was as much information about the note and its context as could be gathered.

[68]  The question whether a further report should be sought was raised with counsel at the hearing of the appeal the following month.  Counsel for the appellant opposed the suggestion.  He submitted that such a request would invite speculation or reconstruction and that any revived recollection ought not to dispel an objective assessment of what the transcript shows occurred.  He submitted that whatever additional recollection might be prompted by a request could not dispel the sense that something fundamental to the jury process went wrong.

[69]  That was only a month and a half after her Honour’s report on the proposed new ground of appeal.  It is not suggested that the first report could not be looked at in relation to that ground.  I do not understand why it should be suggested that a report in early April would be any more reliable or unreliable than one in February.  In my view a specific request for further information ought then to have been made.  I reject the applicant’s submissions.

[70]  In R v Mirza; R v Connor, Lord Hope said:

“[A]llegations of juror prejudice go to the heart of the question whether the defendant has received a fair trial. To enable it to deal with them the Court of Appeal ought to be provided with as complete and accurate an account of the events of the trial as possible.”[49]

That applies with equal force to allegations of improper interaction between the judge and the jury.

[71]  A majority of the Court determined in April that no further report would be sought on the ground that it was unlikely her Honour could add anything to what she had already written.  I did not agree.  In any event I do not see that as a sufficient reason for not asking.  We must now decide the appeal without all the information which might be available from the court’s internal resources.

[72]  We do not know in what sense the juror used the word “direction”.  We do not know whether the focus of note was the juror’s perceived difficulties arising from the health of her children.  We do not know whether by its very nature the problem disappeared once the difficulties over the children were resolved.  We do not know whether the juror’s concerns related only to the second count, on which the appellant was not found guilty.  The factual basis for our decision is artificial and devoid of context.

[73]  When on appeal an appellant seeks to demonstrate an error of process in a criminal trial the evidence may be drawn from the record of the trial; but it may be supplemented by evidence from persons present about what took place.[50]  If the appellant refuses to produce the available evidence to demonstrate the flawed process, the appeal fails.  In this case the evidence is incomplete as a result of the stance taken by the appellant.  It does not persuade me to a firm conclusion that a material error which might reasonably be regarded as affecting the outcome of the case has occurred.

[74]  Consequently, I would reject ground 4.

[75]  The appeal should be dismissed.