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- Unreported Judgment
The Queen v Mark Christopher John Williams QDCPR 21
DISTRICT COURT OF QUEENSLAND
R v Mark Christopher John Williams QDCPR 21
Mark Christopher John Williams
District Court at Ipswich
13 May 2019
28 February 2019
Lynch QC DCJ
CRIMINAL LAW – PROCEDURE – APPLICATION FOR EXCLUSION OF EVIDENCE AT TRIAL – Where the complainant purports to make an audio recording of the alleged offence – where the accuracy of the recording is in dispute – whether evidence sufficient to satisfy requirement as to accuracy of recording
Criminal Code Act 1899 (Qld) s 590AA
Evidence Act1977 (Qld) s 130
Butera v Director of Public Prosecutions (Vic)(1987) 164 CLR 180
Driscoll v The Queen(1977) 137 CLR 517
Goldsmith v Sandilands(2002) 190 ALR 370
Papakosmas v The Queen (1999) 196 CLR 297
R v Hasler; Ex parte A-G  1 Qd R 239
R v Swaffield (1998) 192 CLR 159
Washer v Western Australia (2007) 234 CLR 492
I A Munsie for the applicant
C W Wallis for the respondent
Fuller & White Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- Mark Christopher John Williams is charged on indictment before the District Court at Ipswich with offences of threatening violence at night and choking in a domestic setting.
- Mr Williams applies, pursuant to s 590AA of the Code, for pre-trial ruling that a recording purportedly made by the complainant at the time of the alleged offences be excluded from evidence at his trial.
- I have concluded the recording of 30 July 2018 should be admitted in evidence. It follows the application should be refused. These are my reasons.
 Exhibits 1-11 inclusive, listed below, were admitted on the hearing of the application.
Exhibit 1: Application (dated 11/7/2018)
Exhibit 2: Applicant’s outline of submissions (dated 11/7/2018)
Exhibit 3: Applicant’s supplementary outline of submissions (dated 21/2/2019)
Exhibit 4: Respondent’s outline of submissions (dated 18/7/2018)
Exhibit 5: Affidavit of Jillease Latt-Day (sworn 18/7/2018) attaching Triple 0 recording and voice recording
Exhibit 6: Affidavit of ZLB (complainant) (sworn 18/7/2018)
Exhibit 7: 2 x file notes of conference of 1/11/2017
Exhibit 8: File note of 5/12/2017
Exhibit 9: File note of 8/2/2018
Exhibit 10: File not of 23/10/2018
Exhibit 11: Affidavit of Jillease Latt-Day (sworn 17/8/2018) attaching body worn camera footage
 The applicant was in a relationship with the complainant and the two resided together.
On 2 October 2016, there was an argument between them at their residence. The offences are alleged to have occurred in the course of the argument. The complainant alleges the applicant at first advanced upon her whilst holding a chair before yelling at her from close distance. The complainant further alleges the applicant then armed himself with two knives and she ran away from him. She says the applicant chased and caught hold of her, and applied pressure to her throat with his hand. The complainant says she was able to escape and called police. The complainant claims that in the course of these events, she activated a function on her mobile phone which captured an audio recording of the incident. It is this recording which is subject of the present application.
Circumstances of recording
- The recording of events was made by the complainant via her mobile phone. This recording (part of Ex 5) is approximately 10 minutes in length and appears to be continuous. The recording captured conversation and argument between the complainant and the applicant concerning the applicant’s continued contact with his exwife and children. At times the argument was heated and each of the parties used raised voices. The recording covered the period of the alleged offences. The complainant is clearly heard telling the applicant to “put the knife down”, telling the applicant to “get off me”, and also complaining the applicant had put his hands around her throat. The noise level of the voices fluctuates, presumably due to the change in proximity to the recording device. Eventually the complainant told the applicant to leave her residence and the complainant can be heard to make a call to triple 0. The detail of that call is captured in the complainant’s recording. In the course of that call the complainant told the operator the applicant was packing his things.
- A copy of the triple 0 call, as recorded by the triple 0 operator, is also in evidence on this application (also part of Ex 5). That recording, which is approximately one minute in length, is identical in detail to the call that can also be heard on the recording made by the complainant. In addition, when uniform police officers arrived at the residence, one of them recorded their interaction with the complainant via a body worn video camera (part of Ex 11). The police recording includes video footage and sound. According to the timestamp, the recording commences with the arrival of police at the complainant’s residence at 21:45 hours on 2 October 2016. The complainant immediately told the officers she recorded the incident with the applicant. About seven minutes into the police recording the complainant played to them the recording she had made of the confrontation with the applicant. The police footage shows the complainant replayed her recording from her mobile phone. The recording replayed to police can be heard in full in the police officer’s recording and the sounds are identical to the exhibit recording (Ex 5) made by the complainant. In the course of her discussion with police, the complainant said the incident occurred shortly after the applicant called her at about 9.30pm.
- A copy of the recording made by the complainant was provided to the applicant’s legal representatives. It is said the file data contained within the copy of the recording purports to show the recording was created on 19 October 2016 and modified on 3 October 2016. In a conference held between prosecution staff and the complainant on 1 November 2017 (file note of this conference is Ex 7), the complainant was apparently asked about the recording being made on 2 October 2016 and modified on 3 October 2016. The file note indicates the complainant then said “That’s when I emailed the recording to the arresting officer”. At a further conference on 5 November 2017, the complainant was asked about obtaining the original recording. The file note of that conversation (Ex 8) indicates the complainant then said the recording was never on her phone but was recorded via an application on her phone which automatically uploaded it to the “cloud”. She further stated that to email the recording to police she downloaded the recording via the application and sent it. She also advised that after doing so, the file data would indicate it was modified at the time of downloading. The complainant also said the only way to access the recording was by downloading it via the application.
- On 23 January 2018, a conference was held so that the complainant could demonstrate how the recording had been downloaded by her and sent to police. The applicant’s lawyers attended this conference. In the course of the conference the complainant downloaded the recording from Google Drive and emailed the file to the parties. This newly emailed file showed a creation date of 23 January 2018, however the creation date on Google Drive remained unchanged as 3 October 2016.
- On 18 July 2018 the complainant swore an affidavit (Ex 6) in which she claimed the recording was automatically saved to her phone and also saved to her Google Drive account when the phone automatically backed up. She described the recording was initiated by her opening the application on her phone and pressing the record button. The complainant also deposed to having deleted the recording from her phone when she returned the phone to Optus. The complainant also confirmed in the affidavit that she had used the recording application many times and found it to record accurately. She also confirmed the recording made on 2 October 2016 was accurate.
- In material provided to the applicant’s legal representatives, the complainant said she could not recall whether she had stopped the recording at any time during the events of 2 October 2916. She also indicated she had no memory of events for five weeks afterwards and had been told by her psychologist she suffered post-traumatic stress disorder.
- The applicant contends the issue for the court is whether it has been demonstrated the recording allegedly made by the complainant (Ex 5) is accurate. The applicant submits that in the present circumstances the court could not be satisfied of the accuracy of the recording and it is therefore not admissible. The applicant asserts the descriptions given by the complainant as to the way in which the recording was made, saved, and provided to police, are inconsistent and contradictory. In particular, the applicant submits the complainant initially claimed the recording was saved to the “cloud” and stored in her Google Drive account from where it was downloaded and emailed to police. At that time the complainant categorically declared the recording was not saved on her phone. It is submitted the complainant persisted with this version when asked to explain the contradictory dates on the file data and that those explanations are shown to be incorrect. It is submitted the complainant also maintained that version when she was made aware of requests seeking the original recording. The applicant submits the complainant then changed her version in the affidavit of 18 July 2018, and declared the recording had in fact been saved on her phone but that she had since then deleted it and disposed of the phone. The applicant also asserts the statements by the complainant about her memory problems further undermine any account she has given as to the accuracy of the recording, such that she cannot be regarded as reliable. The applicant submits that accordingly, the prosecution have not demonstrated the accuracy of the recording and it should be excluded from evidence on the trial.
- The respondent contends the recording (Ex 5) is relevant as real evidence of the events in question and is therefore admissible provided it is shown to be accurate. The respondent contends the accuracy of the recording is confirmed by the complainant who expressly says so, and is further demonstrated by the evidence concerning the other events. In particular, the respondent submits the recording is shown to be accurate when regard is had to the fact it includes the complainant’s phone call to triple 0, is identical to the recording of that call made by the emergency services, and is identical to the recording the complainant played to police who were responding to the triple 0 call. In those circumstances, the respondent submits, the inconsistent accounts by the complainant as to whether the recording was saved on her phone or to the cloud, and how the data records attaching to the files are made, are of no moment and might simply result from the complainant’s lack of understanding of the technical processes involved. The respondent submits that the accuracy of the recording is proved independently of the complainant’s account and the recording is therefore admissible.
- Evidence is admissible if relevant to an issue in the proceedings. Evidence is relevant “if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding”.
- The issue of the admissibility in evidence of recordings of events was considered by the High Court in Butera v Director of Public Prosecutions (Vic).2 In the majority judgment in that case (Mason CJ, Brennan and Deane JJ), the following appears.
- The fact which the prosecution sought to prove was the conversation in the hotel room as a link in the chain of proof of the conspiracy charged. The content of the conversation could be conveyed to the court only by a translation of the conversation into English. Two facts were to be proved: first, that the conversation had taken place in the circumstances and among the participants alleged by the prosecution, and second, the content of the conversation translated into English.
- The means by which the first of those facts was proved was by tendering the tape recording and, one assumes, proving the circumstances in which the recording had been made and the custody in which the recording had been kept until it was played to the court at the trial. Of course, a conversation can be proved by the oral testimony of anyone who heard it but that is not the only means by which a conversation might be proved. The courts have now accepted tape recordings as evidence of the conversations or other sounds recorded on the tape: see, among other cases, Reg. v. Maqsud Ali (1966) 1 QB 688; Papalia v. The Queen; The Queen v. Cotroni (1979) 2 SCR 256; 93 DLR (3d) 161; Williams v. The Queen (1982) Tas R 266; Walsh v. Wilcox (1976) WAR 62; United States v. Biggins  USCA5 772; (1977) 551 F 2d 64; Hurt v. State (1956) 303 P 2d 476, which canvass the conditions on which a tape recording may be admitted in evidence. It is unnecessary now to consider those conditions but it is obvious that the provenance of the tape recording must be satisfactorily established before it is played over to the jury.
- The reason why a tape recording of a conversation is admitted in evidence to prove what is recorded is simply that use of the technology of sound recording and reproduction adds "to our knowledge other data not discernible by the unaided senses, or can make more accurate and more usable the data already discernible": Wigmore, The Science of Judicial Proof, 3rd ed. (1937), par.220, p 448, cited by Neasey J. in Williams v. The Queen, at p 270. Those additions to our knowledge, as Wigmore points out (ibid., p 450) are due to the use of instruments constructed on knowledge of scientific laws. A tape recording may be used to produce a form of evidence which is different from both oral testimony and documentary evidence. The rules which govern the admission in evidence of tape recordings and the procedure to be followed by a court in ascertaining what is alleged to have been recorded on them must be moulded so as to deal with the technical and logical conditions which must be satisfied before a tape recording can furnish proof of what is recorded.
- … Prima facie, the issue whether the recorded conversation took place should be proved by playing the tape in court if it be available, not by tendering evidence, whether written or oral, of what a witness heard when the tape was played over out of court. That is the consideration which weighed with Street C.J. in Conwell v. Tapfield when he said (at p 598):
"What is the best evidence of the sounds entrapped in the record? It seems to me that there can be only one answer to this question, namely, the best evidence is the reproduction of those sounds as sounds when the record is played by appropriate sound reproducing equipment. Much of the confusion that has crept into the cases stems from the fact that normally it is the human voice that is recorded and, when reproduced, this is commonly done in writing. But if, say, the relevant evidence was a screech of tyres before a collision and that had been recorded, there would be no denying that the best method of placing this evidence before the court would be by playing the record. There is not the slightest difference in basic principle where the recorded sound is the human voice."
- That view is clearly right, and its cogency is strengthened rather than weakened by the invocation of the traditional term "best evidence". That is not to say that the tape is itself the admissible evidence of what is recorded on it. A tape is not by itself an admissible object for by itself it is incapable of proving what is recorded on it: it is admissible only because it is capable of being used to prove what is recorded on it by being played over. By using sound reproduction equipment to play over the tape, the court obtains evidence of the conversation or other sound which is to be proved; it is that evidence, aurally received, which is admissible to prove the relevant fact.
11. It is desirable to add, however, that the best evidence rule is not applicable to exclude evidence derived from tapes which are mechanically or electronically copied from an original tape. Provided the provenance of the original tape, the accuracy of the copying process and the provenance of the copy tape are satisfactorily proved, there is no reason why the copy tape should not be played over in court to produce admissible evidence of the conversation or sounds originally recorded. There is no reason to apply the best evidence rule to copy tapes: Reg. v Matthews and Ford  VicRp 1; (1972) VR 3; Kajala v. Noble (1982) 75 Cr App R 149; Papalia and Cotroni, SCR, at pp 263-265; DLR, at pp 167-169.
- It follows that, if relevant to an issue in the proceedings, the sounds recorded by whatever means, or a copy recording of those sounds, will be admissible provided the original recording and the copy are proved to be accurately made.
- Section 130 of the Evidence Act 1977 (Qld) provides a discretionary power to exclude evidence, otherwise admissible, on the grounds of unfairness. In addition, common law principles recognise a discretion to exclude evidence the probative value of which is outweighed by its prejudicial effect.
- An issue in the trial will be whether the applicant did the the acts relied upon as the basis of each of the charges. Those acts are said to have occurred during the period captured by the recording made by the complainant (Ex 5). That recording captured the sounds, including the voices of the complainant and applicant, at the time the acts are alleged to have occurred. There can be no doubt, in those circumstances, that the sounds recorded are capable of affecting the jury’s assessment as to whether the applicant did the acts in question. I am therefore satisfied the recording is relevant evidence of events.
- As set out above, if relevant, the recording will be admissible provided the original or copy are proved to be accurate. Ordinarily, proof of the accuracy of an original recording of conversation can be provided by a participant in that conversation and proof of the accuracy of any copy by the person who made such a copy. In this case the effect of the complainant’s evidence is that the copy now available is an accurate copy of the original recording made by her. Objection is taken to that being sufficient proof in circumstances where the complainant has provided starkly conflicting versions as to how the recording was made, where it was saved, and how the copy was reproduced.
- Although those conflicting versions might potentially affect the reliability of the account of the complainant, I conclude they do not affect the conclusion as to the accuracy of the recording or the copy of it. In the unusual circumstances here, that the recording was made by the complainant during the relevant events is proved by the events which followed. The recording made by the complainant includes her call to triple 0, apparently at a time whilst the applicant was still present in the residence. The copy of that call produced from the emergency service provider is identical to the recording of that part of events made by the complainant. In addition, the recording made by police upon their attendance in response to the triple 0 call includes the complainant replaying to them the recording she had made. The police recording includes sound and vision of the replaying of the complainant’s recording and the detail heard of that recording matches exactly the complainant’s recording which is here produced. All of that occurred a relatively short time after the alleged offences. I conclude the recording was made as claimed by the complainant and the copy of it produced here in evidence is an accurate copy of that recording.
- The applicant did not make any submissions that the recording, if admissible, should nevertheless be excluded. I have, however, considered whether discretionary basis for exclusion exists. In light of my finding as to the apparent accuracy of the recording, and in the absence of any other circumstance affecting the reliability of the evidence, I see no unfairness to the applicant in the evidence being admitted upon his trial. The recording, if accepted by the jury as covering the period of the alleged offences, is capable of being regarded as evidence in support of the conclusion the applicant did the acts alleged. In those circumstances the evidence has potentially significant probative value and does not impermissibly prejudice the applicant.
- My conclusion is that the recording is admissible.
 The order of the court is as follows:
1. The application is refused.
 Goldsmith v Sandilands (2002) 190 ALR 370, per Gleeson CJ at ; see also Washer v Western Australia (2007) 234 CLR 492, per Gleeson CJ, Heydon & Crennan JJ at . 2 (1987) 164 CLR 180;  HCA 58.
 At 184-187; -.
 Driscoll v The Queen (1977) 137 CLR 517 at 541; R v Hasler; Ex parte A-G  1 Qd R 239; R v Swaffield (1998) 192 CLR 159 at 183, 191-192; Papakosmas v The Queen (1999) 196 CLR 297 at 325.
- Published Case Name:
The Queen v Mark Christopher John Williams
- Shortened Case Name:
The Queen v Mark Christopher John Williams
 QDCPR 21
Lynch QC DCJ
13 May 2019