R v Anderson[2025] QCA 105

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Bond JA.
2. [2]
   BOND JA:  Shortly after 7.00 pm on 21 April 2020 the appellant unlawfully killed the deceased, Nicholas Braid, by stabbing him in the chest with a knife.  The blow punctured his aorta.  He was pronounced dead approximately half an hour later at a hospital.
3. [3]
   On 17 April 2023, at the commencement of her jury trial on the charge of murder, the appellant pleaded not guilty to the charge of murder, but guilty to the charge of manslaughter.  The prosecution did not accept that plea and the trial proceeded.  On 26 April 2023, the appellant was convicted of murder.
4. [4]
   The sole question at the trial was whether the Crown had proved beyond reasonable doubt that at the time the appellant stabbed the deceased she intended to cause his death or to cause him grievous bodily harm.  The appellant argued at trial that the prosecution had not proved that intention beyond reasonable doubt, in particular because the nature and extent of the appellant’s intoxication at the time of the killing was such that the jury could not be persuaded beyond reasonable doubt that she had formed the requisite intent.
5. [5]
   On appeal, the appellant submitted, and the respondent accepted, that “[t]he principal issue at the trial was whether because of the [a]ppellant's intoxication she formed the requisite intent at the time of inflicting the wound.”
6. [6]
   The evidence at trial sounding on the question of intent comprised:

   1. CCTV footage of the appellant covering a period shortly before the offending; the period of the offending itself; and her conduct immediately after the offending;
   2. evidence from various witnesses of the appellant’s conduct earlier on the day of the offending; shortly before the offending; and at the time she inflicted the fatal wound;
   3. a covert recording made by an undercover police officer of her interaction with the appellant at the watchhouse on the evening following the offending; and
   4. evidence of the appellant’s post-offending conduct.
7. [7]
   The prosecution did not rely on the recording made by the undercover police officer as evidence of post-offending conduct demonstrating the appellant’s consciousness of guilt of the crime of murder.  Rather that evidence, and the other evidence as to the appellant’s post-offending conduct, was relied on as evidence from which inferences might be drawn as to the state of the appellant’s intention at the time of the killing, including as to the related issue of the state of her intoxication at that time.
8. [8]
   The covert recording had been edited before tender with the co-operation of the appellant’s lawyers and the recording was admitted without objection from the appellant’s trial counsel.  Moreover, the appellant’s trial counsel relied on parts of the recording in his closing address as providing support for his argument that the nature and extent of the appellant’s intoxication was such that the jury should not be persuaded beyond reasonable doubt that she had formed the requisite intent at the time she stabbed the deceased.
9. [9]
   The appellant appeals her conviction on the sole ground:

“That the evidence of the recording between the Law Enforcement Person and the Appellant in the Southport watchhouse ought not to have been received into evidence as its content is not reliable and as a consequence resulted in a miscarriage of justice.”

10. [10]
    For reasons which follow, the appeal must be dismissed.

The broader evidentiary framework

11. [11]
    The offending occurred in a public place, namely outside the Beachcomber Resort at Surfers Paradise, on the Gold Coast.  The incident occurred in front of eyewitnesses and, as has been mentioned, there were also various pieces of CCTV footage of the appellant covering a period shortly before the offending; the offending itself; and her conduct immediately after the offending.
12. [12]
    That evidence painted a clear picture that the appellant was intoxicated at the time of the offending.  Prior to the offending itself, the appellant and others had been within a unit inside the Beachcomber Resort.  Lay evidence was to the effect that the appellant, amongst others, used drugs (methylamphetamine and GHB^[1]) and also consumed alcohol.  The appellant was also observed by a security guard at the Resort before the offending.  He gave evidence that the accused appeared to be affected by drugs and that she was not acting normally.  She was moving around, talking to herself, and behaving in a manic way.  Other lay witnesses gave similar evidence of observing the appellant and forming the view that she was obviously on drugs.
13. [13]
    The prosecution’s argument was that notwithstanding her degree of intoxication the jury should infer that she had nevertheless formed the intention to cause death or grievous bodily harm to the deceased.  The prosecution relied on what could be inferred from the event itself and from evidence of the way she behaved immediately after the incident, namely disposing of her shoes and the knife; asking a friend to dispose of her clothing; asking a friend for help; and inquiring after police presence in the aftermath of the killing.
14. [14]
    In a similar way, the prosecution also relied on inferences from what the appellant said during the covert recording.  It is to that issue to which I now turn.

The use made of the recording within the broader evidentiary framework

15. [15]
    The prosecution’s opening address dealt with the covert recording in these terms:

“Now, a key piece of insight into the accused’s mind will be presented by the evidence of an undercover police officer in this case.  Her name is [Terina Katene]^[2].  She was placed in the same cell as the accused at the Southport Watch-house from 8.30 pm on the 22^nd of April.  So that is the day afterwards, a few hours after the arrest.  Now, the recorded conversations that occurred in that cell, again, as with the CCTV, not perfect.  That will be obvious from the outset.  You might not be shocked to learn that a police watch-house is not an ideal acoustic environment.  And ultimately, ladies and gentlemen, it’s a matter for your interpretation what’s said in that conversation, what you can determine from the recording, which ultimately runs approximately 35 minutes.  And it might well be that re-listening to that tape is a matter that’s useful to you in that sense.

Let me highlight, though, some aspects of the recording which are quite clear.  You’ll hear that the accused was triggered prior to the killing.  You’ll hear that it was - the killing, that is, an expression of some grievances that she held at the time.  You’ll hear a discussion in relation to the location of the blow that was struck to the deceased, some discussion of the torso having been apparently reported in relation to the killing at that point.  You’ll hear the accused express some confusion about that language about torso and referred to the location as being the chest or the lungs or the heart.  ‘I just went in and out,’ is what you’ll hear her say.  That the accused identifies a particular grievance that she had with the deceased in the moments prior, she felt like he was lying to her about her name - about his name, pardon me - in the meeting prior to the incident.  You’ll hear her say that after that issue, she tried to produce a knife that she’d brought with her in her bag, but instead, she accidentally grabbed a brush first before locating the knife, stabbing the deceased, and leaving the scene.

You’ll hear discussion in relation to the accused’s drug use in the recording.  You’ll hear her referring to an intention to plead guilty to murder in the recording, that when she went down in the lift with Mr Matthewson, that she went down to sort out a situation with the deceased.  There’s some reference to the deceased having been apparently involved in an incident at a home a few days prior, that being part of the grievance that existed in the accused’s mind prior to the killing.  You’ll hear an explanation as to what the accused, Ms Anderson, did with her clothing afterwards, consistent with the police search, that she’d attempted to have them disposed of.  And you’ll hear an expression of frustration in that regard that her mate, whom she’d entrusted to do that, failed and ultimately that material was located by the police.

And you’ll hear, too, confirmation from the accused that there was no need for anybody else to help her to dispose of the knife, that she’d attended to that herself, that the police hadn’t found it.  You’ll hear that in the recording, too.  She explains that she doesn’t usually carry a knife, preferring to use her fists, but on this particular occasion, she said that she was either going to kill someone or herself, and returned then to the point in time that she went downstairs to the foyer to meet the deceased at the Beachcomber, that she went down there to back up her mate with a knife hidden in her bag, that being the knife ultimately used in the killing.  It’ll be evident, ladies and gentlemen, in this recording from some of the times that are mentioned, that there’s been editing to remove irrelevant content from that recording, but for the 35 minutes that it runs, if you listen carefully, you’ll hear from the accused herself about her state of mind around the time of the killing.  As a result, this is important evidence.”

16. [16]
    Counsel also made a brief opening on behalf of the appellant.  He emphasised that the trial was really about the jury’s assessment of what the appellant’s intention was at the moment that the blow was struck.  He invited the jury to focus on the evidence which might shed light on that question, referring to the lack of any rational motive for the attack and to the evidence of her use of drugs and her unusual behaviour.  He made indirect reference to the covert recording by addressing the question of “triggering” which derived from the prosecution’s reference to the content of the recording.  He said:

“My learned friend, the prosecutor, mentioned triggers you look for - in that sense, you have evidence about the background, relationship, surrounding circumstances.  Looking for triggers that might explain a motive for such an extreme impulse.  Why would someone want to kill somebody else?  This is not a case where the violence is explained by some intense longstanding animosity, significant bad feelings or a rational motive.  It’s senseless.  What the prosecutor talked about – [the appellant] being upset about his using a different name.  There’s also the objective evidence about the actions, the type of application of force, the weapon that was used, the amount of force, the type of force.  There’ll be evidence about that in this case as well to focus on.

In this case, as well, another feature of the evidence you’ll hear about is the defendant’s use of drugs about the time that this happened and her unusual behaviour after this.  Now, intoxication - I just wanted to say this to you.  It doesn’t - it’s not an excuse.  It doesn’t relieve a person of criminal responsibility and nor should it.  But it may help you, when you’re considering someone’s state of mind at a relevant time, to consider whether they were drunk or off their head on drugs, and it may offer some explanation for unusual or extreme conduct other than a rational, logical intention to take somebody’s life.  So if you think there is an intention to kill despite the intoxication, then intoxication isn’t relevant.

But it comes into play - this is an issue that comes into play as you’re assessing somebody’s intent at the time.  Consider whether it clouded her judgment at the relevant point, whether she was so intoxicated she might not have [realised] the dangerousness of her actions.”

17. [17]
    The prosecution called the undercover police officer and tendered a computer disc containing a copy of the covert recording through the police officer.  The disc became exhibit 14.  Unfortunately, the disc was not able to be played to the jury.  By agreement with counsel for the appellant and with the Court’s consent the prosecution substituted for the disc a USB flash drive containing a copy of the recording.  The USB flash drive was substituted for the disc and became exhibit 14 in the trial.
18. [18]
    The recording on the USB flash drive was the version of the covert recording which was played to the jury.  The recording was also made available to the jury during the course of their deliberations so that they could replay it as often as they wished.
19. [19]
    The undercover police officer explained to the jury that the recording had been edited to delete reference to irrelevant conversations concerning the appellant’s family, home and other topics of that nature.^[3]  She also demonstrated to the jury how the appellant had physically demonstrated to her how she had pulled out the knife and used it to strike the deceased.  The police officer stated that she could not remember which hand the appellant had used, but it was a “round arm-type motion” which was “[c]oming around from the side, as opposed the front”.  The police officer was unable to recall at which part of the conversation the physical demonstration had occurred.
20. [20]
    In the prosecution’s closing address counsel suggested that the best evidence as to the appellant’s intention was what she actually did to strike the blow on the deceased.  She produced a knife which had been concealed in her bag; and struck the deceased in the centre of his chest with the knife as he stood still on the footpath, offering no threat to her.
21. [21]
    Counsel for the prosecution also noted that the evidence of events immediately after the offending was also a relevant source of information.  He suggested that the evidence of the appellant leaving the scene; seeking assistance from others; disposing of the knife; disposing of shoes and asking a friend to dispose of the clothes all revealed the operation of a rational and functional mind which had been working towards self-preservation.
22. [22]
    As to the covert recording, the principal relevant part of the closing address was as follows:

“And I’ve made some mention so far of common sense: a recurring theme throughout the role you have to play, ladies and gentlemen, in this trial.  Another aspect of it would be that intoxication can, depending on severity, impact memory….  So whatever intoxication existed in the accused’s mind, she had a clear recollection of what occurred the following night in the recording with the undercover police officer.  That is a key aspect of that recording as a piece of evidence in this trial.  It allows you to assess the recollection that she had at that point in time; the recording beginning just after 8.30 pm that following night.

You’ll recall the consistency in the details that the accused was able to relate to the officer.  The consistency with the other evidence in the case, the knife in her bag, a blow to the chest, lungs or heart, in and out, the re-enactment which, I’ll submit to you, was consistent with what appears in the council CCTV.  That CCTV has its limitations in terms of fine detail, but consistent, I’d submit to you, with what was demonstrated to you in the witness box.  Also in that undercover police recording, narration of what was done with the property comes from the accused.  That the police found her clothes because her friend screwed up, effectively, failed to dispose of them properly, but they didn’t find the knife - again, consistent with the case that’s been presented to you independent of that recording.  Evidence of a functional recollection, a detailed recollection of what occurred, despite whatever intoxication might be present in this case.

And you’ll hear to that recording, if you listen to it again, the recollection of the two grievances that were operative at the time of the offence on the accused: the deceased’s perceived role in a home invasion prior to the incident, and the lie about his name immediately prior to the stabbing itself.  There’s some evidence in this case that the accused, in the aftermath, said that she didn’t mean what she did to the deceased; that she meant to scare him; that she was upset.  You might find, in my submission, that difficult to square with the evidence given to the undercover police officer, the conduct in that recording on the accused’s part and the detail of the account that appears there - as well as the CCTV of the incident itself.  So when you consider those things that she might have said to other witnesses, think about that other evidence that doesn’t change - the recording you can listen to, the CCTV you can watch.

The evidence about the brush was especially detailed, I’d submit to you.  That act in the immediate moments before the stabbing, of the accused searching for the weapon, of accidentally grasping the brush but realising the mistake, realising that that wasn’t the tool that was needed in that situation to put into effect her intention.  Her laughing about it in the recording with the undercover police officer, grabbing the knife and then inflicting the fatal blow.  Detailed.  A very detailed account despite any intoxication there might be in this case.

Also in that recording, the accused narrates the moments before she gets into the l[i]ft to go to the ground floor and that she warned against going down by an associate at that point in time.  Her response being something along these lines, that it’s good bro, I’ve got a knife in my bag.  Consistent.  Consistent with the facts of this case.  Details stored in the accused’s mind; evidence of what that mind was capable of at the time of the offence.”

23. [23]
    The various themes touched on in that passage were later summarised in this way:

“Now, don’t confuse planning, deliberation and premeditation with intent.  Intent can be brief.  Intent can be momentary.  There need not have been an intention to kill; an intention to cause grievous bodily harm proves the charge of murder as well.  There may have been intoxication in the accused’s mind at the time, but it was nonetheless a mind capable of rational thought and action, disinhibited perhaps, but rational.  Capable of self-preservation in the immediate aftermath.  Clearly capable of deliberate action at the time.  A dangerous mind aggrieved with the accused at the time of the death.  Concealing a knife and backing up her mate.  Sorting through the bag, locating the weapon.  Striking the centre of the chest...”

24. [24]
    In his closing address to the jury, counsel for the appellant suggested that the prosecution had not disproved beyond reasonable doubt an hypothesis consistent with innocence, namely that the appellant did not form an intent beyond striking out at the deceased, intending only to scare him.  Counsel made many references to the content of the covert recording.  Some references were responsive to the points which the prosecution had made and invited the jury to view the evidence in a different light.  But some references were specifically relied on to support the defence case.  Thus:

    1. Counsel submitted that what the appellant told the undercover police officer about her state of intoxication was entirely consistent with what the lay witnesses had conveyed had been apparent to them.
    2. Counsel identified particular parts of the recording which supported that conclusion in this passage:

“And then [the appellant] makes the comment:

Well, this was about Frank.

talking about the incident.  And the undercover officer not appreciating immediately what [the appellant] was talking about said:

Who’s Frank?

And [the appellant] replied:

The Frank, fantasy.  It fucked me up.

Later on she said:

I’ve been on a bender since the 5^th of March, today’s the end of April.”

3. He later returned to the same theme in this passage:

“[The appellant] does say in a couple of points in that recording as well that she was triggered.  Something triggered her.  She says quite early on in the recording:

I’m just mentally unstable at the moment.

Later on she says she can’t get bail because of the charge of murder.  This is about 10 minutes 40 seconds, she says:

That’s okay.  I want to do some time.  I need to get better.

Four minutes 55 seconds, she says - with reference to the sexual assault - she says:

I was touched when I was franked, and I ended up - like - expressing all of this the night that I did it, so everything was fucked.

So this triggering that she speaks about in hindsight is what she describes as an expression, an emotional expression, of the disordered thought processes that she was undergoing.  But you understand that she’s speaking at this point in hindsight with the awareness of sobriety, and an awareness of what brought about these consequences that she’s dealing with.  And what it really reveals is, consistent with the observation that saw [the appellant] in the moments that this unfolded, is that how scattered her thought processes were.”

4. Counsel for the appellant addressed the parts of the recording in which the appellant had referred to the fact that on the day of the incident she said she was going to either kill or murder someone or herself, suggesting that there was evidence to suggest that the entire recollection might have been imagined.  He stated in these terms:

“There’s also, more significantly, comments that she makes in the recording about whether she was going to kill someone or herself.  And there were three points that I noted in that recording where comments of that nature were made, where she said - [the appellant] said three different things.  First was at 23 minutes and five seconds.  This is when the undercover officer said:

Do you always carry - do you always like carrying a knife and that on you?

And [the appellant] said something like:

I never usually do.  I’d rather just use my fists.

And then much can’t be made out, but she goes on to say:

It’s either that I’m going to kill, or I’m just going to kill myself.

Twenty-three minutes and 44 seconds, she’s describing the same conversation with her sister.  She says:

I was even telling my sister on the phone.  She was -

and then it becomes difficult to make out, but what can be made out is her continuing and saying:

...do something really stupid right now.  I need to get out of here.  And she’s like, ‘Go to your mum’s’, or something, and I’m like, ‘I can’t fucking go home like this.’

And then at 28 minutes 50 seconds is a comment where she refers to:

‘I’ll murder someone tonight’, or something like that.  ‘Just let me go.’  And she says, ‘Just get off the phone’, and I was triggered.

So be careful about using, again, this - what is banter between cell mates, with the legal precision that the prosecution are now trying to attach to these comments.  Now, all the comments seem to refer to the same conversation [the appellant] was supposedly having with her sister.  It’s not clear if she’s talking about or trying to convey text messages or a phone call.  It’s mention on three occasions, yet she describes saying three different things.  There’s two issues with this: the first is a query whether this reveals that [the appellant] had it in her mind the end of a human life, as the prosecution are trying to suggest; or is this a - this just a colloquial, informal expression of frustration?  ‘I’ll murder someone’, ‘I’ll kill someone’, ‘I’ll hurt’ - I’ll do something stupid’.  These - this is someone describing - afterwards, I suggest to you - a thought of frustration; an honest thought about the frustration that she was experiencing in that moment.  And not, beyond a reasonable doubt, someone revealing that she had in her mind, the end of a human life.

The other query is whether there was any - ever really any such conversation.  Now, the prosecution have [the appellant]’s phone records, and you’ve got before you, admissions about contact that was made between a number of different people.  You might - it seems clear that the prosecution and police have [the appellant]’s phone and able to produce records from it.  There’s no record of any phone call with the sister.  And let’s also remember the evidence of [the security guard], that [the appellant] appeared to be talking to herself; was this even a real conversation?”

5. Counsel drew to the jury’s attention that when the undercover police officer asked the appellant “you must’ve got him [i.e. the deceased] in the right place, girl, hey?”, the appellant’s response was “I don’t really remember it either.  It [i.e. the knife] just went in and out”.  And she later told the officer “[a]nd then he dropped and I said oh fuck, and I just got out of there”.  Counsel characterised that part of the exchange as describing the appellant’s shock and realisation of what had happened and as inconsistent with the appellant having formed the requisite intent.
6. Counsel then concluded in these terms:

“Now, there may be no doubt in your mind that the defendant was clearly triggered at the critical moment, but she had no prior issue with [the deceased].  She was probably driven by surging traumatic memories, and she was heavily intoxicated.  She became upset at the perception that [the deceased] was behaving in a deceptive way, using two names.  She was fixated and she flared.  But she had a scattered state of mind in that moment.  She wasn’t thinking consequently - consequentially.  In that moment, [the appellant] didn’t form any intent beyond striking out towards [the deceased].  It was an ill-conceived, poorly thought out idea to frighten him.”

25. [25]
    The trial judge gave the jury orthodox directions on the onus of proof; the process of drawing inferences; and the need that the prosecution must exclude beyond reasonable doubt any reasonable possibility consistent with innocence.  Her Honour directed the jury that the Crown did not allege that the appellant did anything after the alleged offending because she was guilty.  Rather that evidence was led for the purposes of an assessment of the state of her intoxication.  The evidence could not be used or relied upon to establish consciousness of guilt of murder.
26. [26]
    The trial judge gave extensive directions as to the use which could be made of the covert recording, including in particular the references made in it to killing and to murder.  No suggestion is advanced on the appeal that there was any deficiency in the directions which could be regarded as supporting the conclusion of miscarriage of justice.  It suffices presently to record that the jury were instructed that –

    1. to rely on the evidence of the covert recording, they must have been satisfied that (a) the accused did give the answers that are attributed to her and she was thereby confessing and/or making an admission against interest and (b) that they were true;
    2. Counsel’s pinpoint references to statements in the recording were “really nothing more than someone else’s opinion of what was said by the undercover police officer and the accused” and that if the jury’s view of any part of the conversation differed from what the submissions suggested, the jury’s view was to prevail;
    3. it might be necessary to consider the recording particularly carefully a number of times before acting on it;
    4. they needed to be particularly careful given the nature of the conversation that it is clear what any admission was in relation to, particularly with regards to whether the appellant understood any admission to be in respect of murder or manslaughter and the legal significance of those specific offences;
    5. that there was no independent evidence of a statement by the appellant to the police that she was going to plead guilty, and no evidence that at the time of such a statement that the appellant understood the significance of pleading guilty;
    6. if they accepted that the statements made by the accused during the covert recording were true, it was up to the jury to decide what weight they gave to them and what they proved;
    7. they were entitled to have regard to the answers given by the appellant that might indicate her lack of intent to kill or cause grievous bodily harm for the purposes of deciding whether they gave rise to a reasonable doubt as to the appellant’s guilt; and if they believed the appellant’s account, they must acquit;
    8. given the difficulties raised, they were to scrutinise the evidence very carefully to decide whether they could accept it and act upon the admission as having been made by the appellant.

Observations as to the content of the recording

27. [27]
    No transcript of the covert recording was produced either at the trial or before this Court.  It was necessary for the Court to listen to the recording itself.  The following observations may be made about what may be discerned from the recording.
28. [28]
    First, the recording was edited, as previously mentioned.
29. [29]
    Second, there were in fact two recordings.  The undercover police officer was called out of the cell for a period and the recording recommenced on her return.
30. [30]
    Third, the two recordings contained a great deal of relatively unintelligible recordings of the appellant’s side of the conversations with the undercover police officer.  The difficulty appeared to derive from the fact that the quality of the recording was poor but also because the accused tended to slur her words together, which sometimes made it difficult to work out what she was saying.
31. [31]
    Fourth, although there was much which was relatively unintelligible, there was a great deal which was intelligible.  The references made to the content of the recording in the opening and closing addresses by counsel for the prosecution and in the closing address by counsel for the appellant were all justified by the parts of the recording which were intelligible.
32. [32]
    Fifth, it follows from the foregoing, that the covert recording contained material which may have been perceived by the jury as assisting the prosecution case, generally in the way for which counsel for the prosecution contended to the jury.  But it also contained material which may have been perceived by the jury as assisting the defence case, generally in the way for which counsel for the appellant contended to the jury.

Consideration of appeal ground

33. [33]
    The appeal ground suggests that the covert recording ought not to have been received in evidence because its content was not reliable.  But the argument here was not that the evidence was not relevant or probative.  That much was accepted.  Nor was it that it had been edited in any misleading or inappropriate way.  Rather, the argument was that the quality of the recording was so poor due to the indistinct and inaudible portions of it that there was a real risk that the jury speculated about the words that were unable to be heard and attributed more weight to the recording of the conversation than it deserved.  Thus, it was said that the trial judge should have exercised the Christie discretion to exclude the recording.  Her Honour’s failure so to do was said to have “resulted in an unfair prejudice to the [a]ppellant.”
34. [34]
    Two separate reasons are sufficient to reject that argument.
35. [35]
    First, I would not make the evaluative judgment of the recording which the appellant invites.  Although it must be acknowledged that there were incomprehensible and inaudible portions of the recording, having listened to the recording, I would take the same approach to the quality of the recording as was taken by Applegarth J in R v BJM [2022] QSC 307.
36. [36]
    In BJM his Honour was dealing with an application by an accused to have evidence of a recorded conversation at the watchhouse between him and an undercover police officer excluded from his trial for attempted murder.  Amongst other things, the applicant argued that the quality of the recording was such as would justify the exercise of the fairness discretion to exclude it.
37. [37]
    Applegarth J did not accept that the probative value of the recording was outweighed by the potential for unfair prejudice.  His Honour observed (footnotes omitted):

“This is not a case like R v Bercolli & Ioannou in which a substantial portion of the recording and transcript was inaudible or unintelligible.  In that case the Court of Criminal Appeal concluded that what was not intelligible may have included statements by one or both of the appellants demonstrating that they or either of them had not finally agreed to a plan to kill.  What remained of the recording was found by the Court to be ‘insufficient to justify the conclusion that the unintelligible portions might safely be ignored as containing nothing to exculpate the appellants or either of them’.

As explained by Dowsett J in R v O'Neill, the peculiar relevance of the defective quality of the recording in R v Bercolli & Ioannou was that the conversation was itself an element of the offence.  That said, the significance of an admission made in a conversation may be affected by other parts of the conversation.  An example was given in O'Neill that a statement by an accused that she had tried to murder her husband would lose its inculpatory effect if other parts of the conversation demonstrated that she was joking or speaking in a figurative sense.  The quality of the recordings in O'Neill did not require their rejection on such a basis.  Nor does the quality of the recording in this case justify its exclusion in the exercise of the Christie discretion or on the ground that the use of the recording in evidence would be unfair to the applicant.

There is no suggestion that the occasional indistinct or inaudible word or words might cause other audible parts of the conversation to lose their inculpatory effect.

This is not a case in which there are substantial passages that are indistinct or inaudible so as to encourage the jury to speculate about what was said in those passages to the unfair prejudice of the applicant.  If requested, the jury may be told not to speculate about what was said in those occasional parts of the recording that are inaudible or indistinct.”

38. [38]
    Second, no application for exclusion was made to the trial judge by counsel for the appellant.  The poor quality of the recording would have been obvious to counsel for the appellant well before counsel for the prosecution sought its tender.  Yet counsel for the appellant neither objected to its tender, nor sought its discretionary exclusion.  Indeed, counsel co-operated in ensuring that a playable form of the recording was able to be placed before the jury.
39. [39]
    In Nudd v The Queen,^[4] Gleeson CJ observed:

“A criminal trial is conducted as adversarial litigation.  A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.  The law does not pursue that principle at all costs.  It recognises the possibility that justice may demand exceptions.  Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise.  Considerations of fairness often turn upon the choices made by counsel at a trial.  In TKWJ v The Queen, the appellant complained that evidence of his good character was not led.  This, it was said, was unfair.  In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision.  That, in the circumstances of the case, was conclusive.  It is the fairness of the process that is in question; not the wisdom of counsel.  As a general rule, counsel's decisions bind the client.  If it were otherwise, the adversarial system could not function.  The fairness of the process is to be judged in that light.  The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.”

40. [40]
    Counsel’s approach was obviously an informed forensic decision based on the judgment that advantage could be taken of those passages in the recording which permitted him to emphasise the extent of the appellant’s intoxication at the time she stabbed the deceased and the extent of disorientation which she must have been suffering at the time.  The passages added the weight of the appellant’s own subjective view of how she had been affected by her intoxication to the weight of the observational evidence of the lay witnesses.  The decision made by counsel, objectively assessed, was a rational decision.  It was one by which the appellant should be bound.  The fairness of the trial has not been put in question.

Conclusion

41. [41]
    No miscarriage of justice is demonstrated.  The appeal should be dismissed.
42. [42]
    FLANAGAN JA:  I agree with Bond JA.