Ali v R [2022] NSWCCA 199 | Case summary

Court of Criminal Appeal (NSW)|2022-08-29|Before: Beech-Jones CJ, Bellew J, Fagan J

HEADNOTE [This headnote is not to be read as part of the judgment] Following a trial in the District Court, the applicant was found guilty of 11 counts of dealing in identification information with the intention of facilitating the commission of an indictable offence, namely dishonestly obtaining a financial advantage by deception, contrary to s 192J of the Crimes Act 1900. The Crown case against the applicant was entirely circumstantial and relied, in part, on intercepted telephone conversations. 24 of those conversations were in Hindi (the Hindi calls) and were between an identified person and another person simply described as a "male voice". It was the Crown case that the "male voice" was that of the applicant. The evidence relied upon in support of that conclusion included evidence of a qualified interpreter and translator who, having translated the Hindi calls into English, gave evidence (without objection) that the "male voice" in each of the calls was that of the same person. In reaching that conclusion, the witness relied upon her familiarity with the Hindi language and took into account the tone, pitch and speed of the words that were said. The trial Judge directed the jury in respect of the dangers of identification evidence, in the course of which he told the jury that (inter alia) the translator had no training at all in voice identification and was "thus no more or less qualified" than the jury to reach a conclusion as to whether the voice of the male person was the same in each conversation. The applicant sought leave to appeal against his conviction and required an extension of time in which to do so. He relied on two grounds of appeal, namely that:

Judgment

BEECH-JONES CJ at CL: I agree with Bellew J and with the additional observations of Fagan J.
BELLEW J: Following a trial before his Honour Judge Toner SC and a jury in the District Court of New South Wales, Mohammed Ali (the applicant) was found guilty of 11 counts of dealing in identification information with the intention of facilitating the commission of an indictable offence, namely dishonestly obtaining a financial advantage by deception, contrary to s 192J of the Crimes Act 1900 (NSW). The applicant was found not guilty of an offence of possessing holograms designed for making a false document, contrary to s 256(1) of the same Act.
His Honour imposed an aggregate sentence of imprisonment of 7 years, with a non-parole period of 3 years and 6 months. That sentence expired on 24 February 2022.

THE APPLICATION FOR AN EXTENSION OF TIME

The applicant seeks leave to appeal against his convictions and requires an extension of time in which to do so. A notice of intention to appeal was filed by the applicant on 24 May 2017 and was extended a number of times until it finally expired on 15 July 2018. The present application is therefore substantially out of time. The applicant relied on his affidavit of 17 June 2021, along with an affidavit of his solicitor Hisham Karnib, of 29 August 2022, in support of the application to extend time. Both of those affidavits were read without objection.
For the reasons expressed by Fagan J [1] an extension of time should be granted.

THE CROWN CASE AT TRIAL

Given that the grounds of appeal are confined to a discrete issue, it is not necessary to set out the entirety of the evidence adduced in the Crown case at the applicant's trial. The circumstances giving rise to that issue may be shortly summarised.
The Crown alleged that the applicant, along with a number of other persons, was part of a criminal enterprise dealing in personal information in a way which resulted in the production of false forms of identification, such as drivers' licences and Medicare cards. Once produced, those forms of identification were used to open, or to attempt to open, false bank accounts.
The Crown case against the applicant was entirely circumstantial. The evidence on which the Crown relied included intercepted telephone conversations. Some of those conversations were in English. However, 24 of them were in Hindi (the Hindi calls) and were between Tanveer Hussein (Hussein) and another person described a "male person". On the Crown case, that male person was the applicant. The applicant denied that this was so.
Each of the Hindi calls was translated into English by Madhu Agarwal, an accredited interpreter and translator who was called to give evidence by the Crown. 5 of the Hindi calls were played to the jury by the Crown in the course of Ms Agarwal giving evidence. However, Ms Agarwal's evidence extended beyond the fact that she had listened to, and translated, the Hindi calls. The Crown adduced evidence from her, without objection, that the male voice in each of the Hindi calls was that of the same person. The Crown relied upon that evidence, in combination with other circumstances, to establish that the male voice speaking to Hussein in the Hindi calls was that of the applicant. The admission of this aspect of Ms Agarwal's evidence gives rise to the first ground of appeal. The failure of the Crown to play the entirety of the Hindi calls to the jury gives rise to the second.

THE EVIDENCE OF MS AGARWAL

Ms Agarwal commenced her evidence by detailing her background and qualifications, [2] in the course of which the trial Judge enquired of the parties [3] whether Ms Agarwal's expertise was in question. Whilst counsel for the applicant (who was not senior counsel for the applicant before this Court) initially gave a somewhat equivocal response to that question, [4] she ultimately accepted that Ms Agarwal had the necessary qualifications and experience to enable her to give evidence of translating the conversations from Hindi into English. As to Ms Agarwal's evidence of the uniformity of the male voice in the Hindi calls, counsel initially put the applicant's position in the following exchange with the trial judge: [5] COUNSEL: … Can I just say, your Honour, your Honour raised something before when the jury was here and I'm happy to address your Honour now but there's no issue - the defence don't have an issue with the witness being a qualified interpreter, but how far she takes it in terms of saying - - HIS HONOUR: Yes, well, that's what I thought your problem was going to be, that you have no objection to her expertise as a person who can translate Hindi into English and English into Hindi. COUNSEL: That's right. HIS HONOUR: That's not a problem. The problem is going to be her expertise as to being able to offer an opinion. COUNSEL: Yes, that it's the same male voice.
As will become apparent, and despite the foreshadowed "problem", the entirety of Ms Agarwal's evidence was ultimately admitted without objection.
The following exchange then took place: [6] HIS HONOUR: Is the next step going to be you asking this witness, first of all, you'll establish how many hours it takes listening to all - whatever it might be - how many calls you listen to and you're going to ask her opinion as to whether one of the speakers is the same person? CROWN: That's right. HIS HONOUR: And if the answer is yes to that question, right, that's as far as you can take it, right? CROWN: Yes your Honour. HIS HONOUR: With her. CROWN: With that witness, yes. HIS HONOUR: Yes, with this witness. CROWN: That's it, your Honour. HIS HONOUR: Then you sit down. Is that right? CROWN: So what I propose to do is - - HIS HONOUR: Then you sit down. Is that right? CROWN: Yes, your Honour, but in getting to that process I would seek to play - I'm going to play five short samples. HIS HONOUR: Yes, no, I understand. CROWN: And we'll go through that's for the benefit of the jury as well. HIS HONOUR: And what's the point of doing that? CROWN: Because I've got to somehow link the Hindi speaker to the English speaker. HIS HONOUR: How do you mean? This is within the tapes you're playing. CROWN: The tapes I'm playing are only Hindi at this stage. HIS HONOUR: They're all Hindi? CROWN: No, then we get to the English ones which come in next after this witness and there are 24 Hindi calls and there are approximately 40 English calls. HIS HONOUR: Are you going to ask this witness to say that the person speaking Hindi or - sorry, a person speaking on the Hindi calls and a person speaking English in the English calls is one and the same person? CROWN: I would not be asking this witness that question, your Honour. HIS HONOUR: But are you going to ask that in all of the Hindi calls that there is a common voice throughout each of those conversations, is that right? CROWN: That's correct and that common voice or that person, that male voice the words are attributed to male voice on the transcripts. For the - - HIS HONOUR: That's as far as you can take it? CROWN: Yes, her opinion goes so far as the Hindi calls that - - HIS HONOUR: What's the point of playing the English calls? COUNSEL: So that the jury can hear the voice of the male person because they're the ones who have to be satisfied. HIS HONOUR: I know that but are you going to offer an opinion - are you going to offer up a witness who's going to analyse the English voice and purport to give an expert opinion on the English voice? CROWN: No, your Honour. What I'll be - - HIS HONOUR: You're going to ask the jury to become ad hoc experts on this document is that right? CROWN: My submission on that is that the jury are entitled to listen to the entirety of the evidence concerning the identification of the person speaking. In order to do that, they can listen to a sample of the Hindi calls. They can listen to the English calls, some of which relate to specific counts on the indictment and other calls which relate purely to voice identification because of the themes being discussed within the calls and listening to the record of interview, listening to a portion of the search warrant, as well as other circumstantial evidence that I will adduce in the Crown case concerning - - HIS HONOUR: No, I understand that but that's separate from this particular debate. Presumably what that does is you can establish other things that link up the topics of the conversations that are being recorded, is that right? CROWN: That's right, your Honour. HIS HONOUR: You say that that's a part of your circumstantial case and that the jury will then infer on that that not only is it the same person talking but it's the person, the accused? CROWN: Yes, your Honour. HIS HONOUR: That's how you link the voice with the accused through the other circumstantial case. I understand that proposition. This is a situation that the jury is going to be given what's said to be an expert opinion in relation to the voice in Hindi as being the same person, right? CROWN: Within the Hindi calls, that's correct. HIS HONOUR: Within each of the calls? CROWN: Yes. HIS HONOUR: But they're not going to be given a similar opinion in relation to the calls in English? CROWN: That's correct. HIS HONOUR: What's the difference? CROWN: What's the difference? HIS HONOUR: Well, why not? COUNSEL: Well first of all, the Crown didn't have an expert for the English calls. HIS HONOUR: Hey? COUNSEL: Part of the problem was that the Crown didn't have an expert for the English calls they were relying on the police and obviously the case law. The police can't give that evidence and that was the issue that we raised with the Crown, and that's something that we've been trying to work through in the last few weeks.
After his Honour commented that there was "such a thing as an expertise in being able to identify voices", [7] and that there were "people who were expert in this field", [8] the following further exchange took place: [9] HIS HONOUR: But you haven't qualified one? CROWN: No, your Honour. That's not part of my case at this juncture. HIS HONOUR: You're right in the statement of the law that the jury's entitled to form their own opinion. CROWN: Yes, your Honour. HIS HONOUR: But they're not entitled form their own opinion about Hindi, is that right? CROWN: This is again back to the position that has been reached following discussions. We can either play four days worth of Hindi or - - HIS HONOUR: I must tell you that this has happened in a trial, sadly, but in my opinion, doing it would tend to bring the law into disrepute frankly. CROWN: Indeed. HIS HONOUR: I wouldn't permit it. It's absurd, frankly, because it doesn't advance matters at all. Are you going to qualify this witness as to her expertise in being able to distinguish one voice from another in Hindi? CROWN: Yes, your Honour. I anticipate that she will be able to give some information upon which she has based her opinion. HIS HONOUR: What's that going to be? CROWN: Including pitch, tone, and things like that in the Hindi language. HIS HONOUR: I don't know if Hindi is like Mandarin for instance, or any of the Chinese languages where intonation and pitch form an important part of the language itself, does it? I don't know, in Hindi. Are you going to object to her qualifications to be able to offer the opinion? What's the section, it's 104(D) or something like that? 114 - - COUNSEL: That's visual identification. Could I just have a word with my friend, your Honour? HIS HONOUR: Sure. Well what's the story? Are you objecting to it? COUNSEL: No, your Honour. HIS HONOUR: What, expertise? COUNSEL: She could get the - the witness will say that she listened to the male voice and the male voice sounds the same. HIS HONOUR: I know she can say that, but that's an opinion obviously, so before she is entitled to offer that opinion she's got to be qualified as an expert to be able to offer it. COUNSEL: Yes. HIS HONOUR: And you're not going to object to that? COUNSEL: Well - - HIS HONOUR: If that's the deal, fine, because in the end the jury's going to be given a special direction, a special warning obviously in relation to this form of identification or any identification for that matter, but this in this one I'll be giving one. They'll also be given the common law direction in relation to voice identification or identification in evidence generally that they're entitled to form their own opinion or words to that effect, I forget what the direction is but to that effect. If each of you are happy to proceed on that basis there's no role for me to play. CROWN: That's certainly been my standing [sic] your Honour to this day which absolutely - - HIS HONOUR: I don't hear [counsel for the applicant] complain. COUNSEL: Beg your pardon? HIS HONOUR: I don't hear you complaining about it. COUNSEL: No. CROWN: No (emphasis added).
Ms Agarwal then gave evidence that she had prepared transcripts of each of the Hindi calls, in which one of the participants had been identified as Hussein, and the other had been identified as "a male voice". [10] Having said that she listened to the Hindi calls a number of times, [11] and consistent with the position adopted by counsel for the applicant in the bolded passages of the above exchange, Ms Agarwal gave the following evidence without objection: [12] Q. As part of your work in this case, were you asked to provide your opinion regarding whether the male voice is the same male talking in each of the 24 recorded conversations with Mr Hussein, is that correct? A. Yes. Q. Are you able to please give your opinion about whether the male person talking with Mr Hussein during all the calls, is the same male on each occasion? A. Yes. Q. And what is your opinion? A. Yes, the male person is the same person throughout all the transcripts and there is difference in both the speakers' [sic] voice and his pitch and the tone, and he is speaking in Hindi. So there is a clear difference between Hussein and male voice.
At that point his Honour asked: [13] Q. So there's a clear difference between Hussein and the male voice, is that right? A. Yes, male voice is throughout the same person.
His Honour then said the following to the jury: [14] Well can I just say to you ladies and gentlemen that there is no contest in this case, apparently, as to this witness' expertise to be able to express this opinion. You will be given some directions in due course about this particular topic, but the reason I say that to you is this, is that normally a witness is not entitled to offer an opinion; all the witness can do when a witness gets in the witness box is say what he or she saw or heard or did, not offer an opinion. But somebody who is qualified as an expert is entitled to offer an opinion on a particular topic within their area of expertise. So this witness' area of expertise is not in dispute apparently and thus she is entitled to give an opinion on the topic that she's offered to you. But as I say to you in due course, I will be giving you a much more detailed direction in relation to the question of voice identification.
Counsel for the applicant took no issue with that direction.
Ms Agarwal's evidence continued, again without objection: [15] Q. When you listened to the 24 audio recordings, is it your opinion that Mr Hussein was talking to the same person in each of those 24 conversations? A. Yes. Q. And referring now to the transcripts which are your English translations of those audio recordings, is it your opinion that the words attributed to "Male voice" on each of the 24 transcripts can be attributed to that same male that was speaking to Mr Hussein during all of the 24 audio recordings, is that correct? A. Yes.
At that point his Honour asked: [16] Q. But that's simply because you translated the Hindi into English, is that right? A. Yes. Q. There's nothing particular about the characteristic of what you attribute to him which would identify him as far as you're concerned, is that right? A. Yes. Q. Is that correct? A. So like what is happening when I am listening to those - - Q. Please listen to my question and answer my question. Is it correct to say that there is nothing about what you translated the Hindi into, namely into English, which would tend to identify the male voice as being the same person - is that right? Do you understand what I am asking you? A. Can you - - Q. Well I'll say it, I'm afraid it's complex, that's probably my - well, it's almost certainly my mistake, my problem. You listened to - the conversation was in Hindi, correct? A. Yes. Q. What you've said is that the person that is nominated as the male voice is the same person throughout each of the 24 of phone calls, is that right? A. Yes. Q. As you listened to each of the phone calls, you typed up a translation of what was being said from Hindi into English, is that right? A. Yes. Q. There's nothing about what you've written in English which has any characteristics as far as you're concerned, which would identify male voices being the same person. It's from the Hindi that you make that identification, is that right? A. Yes.
Ms Agarwal's evidence continued, again without objection: [17] Q. You referred earlier in your evidence to, I believe you mentioned pitch and tone, is that correct? A. Yes. Q. And are they factors attributable to that male voice that you used to form your opinion that it was the same speaker on all 24 occasions? A. Yes, pitch, tone and accent - it was the same with the male voice and it was different with Mr Hussein. Q. Are there specific pitches or tones that [sic] specific to the Hindi language in your experience? A. Yes. Q. Could you explain, did that impact on your - or you forming that opinion at all? A. No, I don't think so, because every speaker's tone and way of talking, way of saying things, is different. But here now Mr Hussein talks a bit different, his voice is a little bit heavy question; the male voice is a little bit different. So I can make out the difference between two voices.
At that point, his Honour asked: [18] Q. Is pitch and tone a characteristic of Hindi; in other words, can the meaning of words change by the adjustment of pitch and tone? A. No. Q. Like Mandarin, for instance, you know in Mandarin pitch and tone are very important in terms of the meaning of words, but that's not the case in Hindi, is that right? A. No, not in Hindi. Sometimes the question, when the word is saying, sometimes it becomes a question, instead saying the simple thing, but we can make out with that. Q. So what you're identifying is the particular characteristics of the voice, rather than the nature of the language that is being spoken; in other words, it's not essential to the language that you adjust your pitch and tone, but a particular speaker might have a certain pitch or tone in his or her voice when speaking, is that right? A. Yes. Q. What about accent? Presumably there are a huge number of various accents, depending on where you come from in India, is that right? A. Yes. Q. So a person who comes from Kerala and speaking Hindi, will have a very different accent to a person who comes from Uttar Pradesh, is that right? A. Yes it is. Q. You can tell the difference by their accent? A. Yes. Q. Was that part of your process of identification here, that the two speakers had a different accent? A. Not much of that, like for the Punjabi speaking person or person from Kerala or person from South India - it is a little bit more that Hussein's voice is a bit heavy and he speaks a little bit more clear, and - while the male voice is a little bit softer than Mr Hussein and he speaks a little bit in continuation. And tone, Mr Hussein's voice is a little bit louder and male voice is a little bit softer.
Consistent with what the Crown had foreshadowed, 5 of the Hindi calls were then played to the jury. [19] That course was taken without objection and importantly (from the point of view of ground 2) without any application being made by counsel for the applicant that all 24 calls be played. At the end of those five calls being played, Ms Agarwal confirmed her evidence that it was the same male person speaking with Hussein in all 24 of the Hindi calls. [20]
In cross-examination, Ms Agarwal gave the following evidence: [21] Q. Ma'am, your training is in interpreting and translating. Is that correct? A. Yes. Q. You don't have or you have not completed formal training in voice recognition, have you? A. Accreditation from NAATI. Q. I beg your pardon? A. NAATI tests.
His Honour then asked: [22] Q. Yes, but that doesn't train you - that's in relation to translating and interpreting, is it not? A. Yes. Q. What's being put to you is that you have no formal qualifications in voice recognition as such. Is that right? A. Yes.
The cross-examination then continued: [23] Q. Does the Court understand from your answers to his Honour's questions earlier this morning that you say the male voice in the calls is the same male voice throughout all the Hindi calls and that's based on your qualifications as an interpreter and translator? A. No, not based on that, but as I am listening as the speaker is the Hindi language, Hindi speaking, and the tone and pace and the sound is similar in all the calls under male voice. Q. Sorry, the tone and pitch is similar in the male voice? A. Yes. Q. Is that your evidence? A. Yes. Q. Now, you listened to a number of calls? A. Yes. Q. Is that correct? A. Yes. Q. You've never met [the applicant] in person before, have you? A. No. Q. You've never heard his - or spoken to him, have you? A. No, no.
The passages set out in [23] and [25] above represent the entirety of the cross-examination of Ms Agarwal. At the conclusion of that cross-examination, His Honour asked the following: [24] Q. Over how many days did you listen to these tapes or DVDs, I should say? A. It was audios and many days. Q. Sorry? A. Many, several days I came to the office and I was listening and translating. Q. How many? A. I need to check. Q. Approximately? A. Approximately maybe 15 days. Q. And what sort of hours would you spend per day listening to these tapes - DVDs? A. All - sometimes three hours, sometimes five hours, sometime I was spending seven hours. Q. Do you speak - I don't mean to be personal about this and it's not meant it that way but do you speak Hindi at home? A. Yes.

THE SUMMING-UP OF THE TRIAL JUDGE

The directions given by trial Judge to the jury included the following: [25] I now must give you what is called a warning; there is an important direction I must now give you concerning the evidence of Madhu Agawa [sic], in which she identified the voice of a male voice speaking in both English and Hindi as that of the same person in a series of recordings of telephone conversations. In giving you these directions, you should not think that I am giving you any indication of what I think about the reliability of the evidence. As I have told you, that is not my task; I am required to make sure that you consider everything that is relevant to your assessment of the reliability of the evidence and whether you should act upon it. That assessment is your function, not mine. Judges have an experience with the law that members of the community generally do not have. Judges know that voice identification may be unreliable and has been shown to be so in the past. Evidence that a voice has been identified by a witness as the same voice in each of the specified conversations must be approached by you with special caution before you accept it as reliable. These directions relate only to the reliability of the identification evidence given, not to the honesty of the witness. A witness may give evidence of identification honestly and sincerely believe that her evidence is correct. The evidence will usually be quite impressive and even persuasive. Even if you thought the interpreter was entirely honest in the evidence she gave - and there is no reason to suspect that she was anything other than honest, nor did [counsel for the applicant] say anything to you which would suggest that - you must still approach the task of assessing the reliability of her evidence with special caution. The identification of a voice is notoriously liable to be mistaken. So special caution is necessary before accepting voice identification evidence because of the possibility that a witness may be mistaken in their identification, limited as the identification is. The experience of the criminal courts over the years, both in Australia and overseas, has demonstrated that identification evidence of whatever kind may turn out to be mistaken. There have been some notorious cases in which witnesses have given evidence of identification which has later been demonstrated to be wrong after innocent people have been convicted. You must carefully consider the circumstances in which the interpreter heard the voice. The circumstances in which the witness heard the voice and identified it can affect the reliability of that evidence. There are a number of matters which have been specifically raised in this case that require your consideration in determining whether the evidence identifying [the applicant] can be safely - well, not identifying [the applicant], but identifying the voice as the same voice can be safely acted upon. Firstly, all that is asserted by this witness is that the voice is that of one person. Secondly, it is electronically transmitted. Thirdly, [the interpreter] has never met the person whose voice she has heard. Fourthly, she has no training at all in voice identification and is thus no more or less qualified than you. Next, what opportunity did Madhu Agawa [sic] have to hear the voice of the person? She said that she heard the CDs on a number of occasions and that she heard a number of CDs. She listened to it over and over again across a number of CDs; that was, in essence, her - and she heard it, no doubt, in studio type conditions, albeit I do not think we heard precisely where it was that she listened to it, but I think it is fair to assume that. Next, how clearly could the person hear the voice and how was the sound conveyed? Was there any chance that the voice was distorted in some way? Here there is some evidence as to the poor quality of reception in some of the phone calls. Was there anything about the voice which would have impressed itself upon the witness? In other words, was there anything distinctive about the voice which was similar or different to the voice identified as the same? Here all that is really said is that she distinguishes the voice that she identifies as "the same" from other male voices on the recordings. It may be difficult to describe a voice unless it has some peculiar characteristic and without the witness being able to provide some description that makes your task of assessing the reliability of the evidence more difficult. You are yourselves entitled to compare the voice of the "male person" as you have heard it in order to see whether that effects [sic] your assessment of the evidence of the interpreter. But bear in mind the difference that there may be between comparing a voice heard in Court with that recorded on a CD; but then again, you will have a facility available to you to be able to play these CDs in the jury room when you are considering your verdicts. You should consider the opportunity you have to compare the voices with that of the witness. You should take into account the clarity of the CDs played to the witness and that you have heard and how the recording may effect [sic] your ability to compare the voices. As I understand it, the CDs you will have will be the CDs that she had when she listened to them. You must give consideration to each of these matters. Any one of those circumstances may possibly lead to error. I do not think there is anything else I need to add to that, counsel, is there?
In answer to his Honour's query, the Crown confirmed that nothing further needed to be added to the direction which had been given.
Notwithstanding that confirmation, his Honour continued: [26] What I have done is to tell you about the need for special caution in coming to your decision about whether you accept the identification evidence but there is this need for special caution because of the potential unreliability of the evidence, and as I have told you, the reasons why that might be so. I want you to clearly understand this is so that you can make your decision about the reliability of the evidence by taking into account all the matters that are relevant to that task. I will repeat that I have not been expressing any personal views about this evidence. I have not been giving you any hints about how I think you should decide the case. My task, as I have told you, is limited to giving you legal directions that you have to comply with to ensure that the accused receives a fair trial.
When his Honour came to summarise the positions of the parties in respect of Ms Agarwal's evidence that the male voice was the same in each of the 24 Hindi calls, he first addressed the position of the Crown: [27] The Crown also accepts that the Crown cases are circumstantial and significantly depend upon you being satisfied beyond reasonable doubt that the person nominated as "male voice" in the various telephone intercept is the [the applicant]. The Crown says that the Crown's case has two foundations, each of which support that conclusion; in other words that conclusion beyond reasonable doubt that [the applicant] was the "male voice". The first is the evidence of the interpreter, she says to you. She was the person who listened, assiduously no doubt, to these tapes, both in Hindi and in English and came to the opinion which she gave to you in her evidence that it was the same voice. The Crown says to you that you would accept that evidence and accept it beyond a reasonable doubt, and on that basis alone you would accept that it was [the applicant], so you would accept it was the same voice in each instance.
In terms of the applicant's position, his Honour said the following to the jury: [28] As to the voice identification, [counsel] says to you: have a listen to the tapes, because after all the conclusion of the interpreter is that the voice is not the same voice as the other male voices on the tape. It is not a voice to the exclusion of anybody else in the world or any other Hindi speaker in the world, of which there are one or two, you might think. So the voice identification is hardly powerful at all, or carries very little weight in this case, for the simple reason that all the interpreter says is as far as she is concerned it is the same voice. [Counsel] says to you: when you listen to the tapes you will have your doubts as to whether that conclusion is reasonably open anyway, and at best all it is doing is to say it is the same voice of the male voices that have been collected in its collection of recordings, not the whole world, and certainly not as to say it must necessarily be [the applicant], as the Crown says to you, you would conclude. So she says to you: you are just as entitled as the interpreter was to listen to these recordings and ask yourself, "Am I satisfied that it is the same voice?" because the Crown says to you, you would be satisfied of that fact beyond reasonable doubt. Because as it turns out, you are just as qualified as the interpreter is to draw that conclusion, because the interpreter has no qualifications, zero qualifications, in voice identification. She may well be well qualified an interpreter and translator, but that is not the same business as voice identification. You have the same qualifications. So she says to you, listen to it. Are you satisfied beyond reasonable doubt it is the same voice? And even if you are, how can you be satisfied beyond reasonable doubt that it is necessarily [the applicant], in the context of the nature of the voice identification process, either in Hindi or in English?

THE APPLICATION OF RULE 4.15

Because no issue was taken by trial counsel in relation to any of the matters which form the basis of either ground of appeal, leave to rely on each ground is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). In IW v R, [29] with the concurrence of Bathurst CJ and Fullerton J, I said the following regarding the operation of the predecessor to r 4.15 (which was in essentially identical terms): [168] It is convenient to note at this point that r 4 is not a mere technicality, and the Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial. However if, in a clear case, a necessary element of a fair trial according to law was overlooked, then leave should usually be granted. However, it is not possible to be prescriptive. It must, in some sense, be in the interests of justice that leave be granted; otherwise leave should be refused.

Ground 1 - The ad hoc expert voice identification evidence of Madhu Agarwal was inadmissible and caused a miscarriage of justice

Submissions of the applicant

Senior counsel for the applicant submitted that the evidence of Ms Agarwal that the male voice in each of the Hindi calls was the same, was not relevant. He submitted that Ms Agarwal was in no better position than the jury to make that determination and that in such circumstances, no issue of expert opinion evidence arose. In senior counsel's submission, the evidence of Ms Agarwal that the male voice was the same in each of the Hindi calls "failed at the section 55 stage" or, in other words, was not relevant within the meaning of s 55 of the Evidence Act 1995 (NSW) (the Act).
Senior counsel further submitted that in the absence of some specialised knowledge or expertise in voice identification, Ms Agarwal's opinion that the male voice was the same in each conversation was simply not admissible. Senior counsel emphasised that one of the conditions of the admissibility of expert opinion evidence is that such evidence be based wholly or substantially on the specialised knowledge of the expert. [30] It was submitted that Ms Agarwal's qualifications and experience as an interpreter and translator did not enable her to express the opinion that she did, and that she had not, in the course of translating the conversations, developed any "ad hoc" expertise which rendered the evidence admissible.

Submissions of the Crown

The Crown emphasised that no objection had been taken to Ms Agarwal's evidence by trial counsel, and pointed out that the applicant's case at trial was that even if the male voice was the same in each of the 24 conversations, the person speaking was not the applicant.
The Crown also pointed to the fact that Ms Agarwal had repeatedly listened to the calls in Hindi for the purposes of translating them. It was submitted that in those circumstances, and bearing in mind her familiarity with the pitch, tone and speed of the Hindi language, Ms Agarwal was properly qualified to give the evidence and, moreover, was in a substantially more advantageous position than the jury to assess whether the male voice was the same in each case.

CONSIDERATION

It is appropriate to commence consideration of this ground by setting out three relevant statutory provisions.
To begin with, s 55 of the Act is in the following terms: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Secondly, s 78 is in the following terms: 78 Exception: lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if-- (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
Section 79(1), which incorporates an exception to the opinion rule in s 76, is in the following terms: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
In support of the submission that the evidence was not relevant, senior counsel for the applicant relied on the decision of the High Court in Smith v The Queen [31] in which it was concluded that evidence of identification of the accused which had been given by a police officer was irrelevant and inadmissible. The basis of that determination was that such evidence was based on material that was not different, in any substantial way, from what was available to the jury. [32] For the reasons set out below, that is not the position in the present case.
Moreover, that it was the applicant who was speaking with Hussein in each of the 24 Hindi calls was a fact in issue within the meaning of s 55 of the Act. The evidence of Ms Agarwal that it was the same male voice speaking to Hussein on each occasion was relied upon by the Crown, in combination with other evidence, to prove that fact in issue. Viewed in that way, the evidence of Ms Agarwal was relevant. The real question whether her evidence was admissible, pursuant to s 79 of the Act, as evidence of opinion. In answering that question it is appropriate to refer to two authorities.
In R v Leung [33] an interpreter was asked firstly, to translate into English recorded conversations (recorded on what was referred to as "DAT tapes") which had been conducted in (predominately) Cantonese and Mandarin. Having done so, the interpreter provided a transcript in English in which he identified three different voices. There was no challenge to that evidence. Secondly, the interpreter was asked to listen to tape recordings of conversations between the accused and police and to compare the voices in those conversations with those on the DAT tapes. Having done so, the interpreter gave evidence that two of the three voices he had identified on the DAT tapes were those of the respective appellants.
The qualifications of the witness as an interpreter were not in issue and, as is the position in the present case, no objection was taken to the interpreter's evidence of having translated the conversations into English. However, it was argued that his evidence of voice attribution was evidence of opinion in respect of an area in which he had no specialised knowledge based on training study or experience, and was therefore not admissible. Simpson J (as her Honour then was) concluded that evidence was, in the circumstances, admissible under s 79 of the Act (and not as a lay opinion pursuant to s 78 as the trial Judge had concluded).
Her Honour's analysis commenced with a consideration of the decision of the New Zealand Court of Appeal in R v Menzies, [34] in which it was held that a police officer who had repeatedly listened to recordings had acquired expertise in deciphering what could have been substantially unintelligible to anybody who had not played those recordings to the same degree. Simpson J went on to observe that the notion of an "ad hoc" expert which had been recognised in Menzies had been endorsed by the High Court in Butera v Director of Public Prosecutions (Vic). [35]
In reaching the conclusion that s 79 of the Act was sufficiently wide to accommodate such notion and render the evidence admissible, Simpson J [36] made specific reference to the fact that the interpreter had not engaged in a simple exercise of voice comparison, but had brought to bear his expertise on the task that he had been given. This was reflected in the fact that he had taken into account matters such as the pitch and modulation of the voices, the use of language and accent, and the speed of the speech. Her Honour went on to say: [37] [44] Voice comparison is not necessarily a question for expert evidence, although it may be. If the two sets of tape-recordings in the present case had been in English, it would have been open to the Crown to have left it to the jury to make their own comparison and assessment of whether the voices on the DAT tapes (or any of them) corresponded to either of the voices on the police tapes. That course theoretically remained open but would have left the jury with a task immeasurably more difficult, given the reasonable assumption that no member of the jury understood either of the Chinese languages involved. The jury would, truly, have been comparing voices only, without the intrusion of language and speech patterns that are part of voice identification. [45] There is another aspect to the task undertaken by [the interpreter] that should be mentioned. He was not asked to compare the voices until a few days before the commencement of the trial. There was no specific evidence as to the instruction he was given, but it is an obvious inference that he would have approached his task on the assumption that the two voices on the police tapes were in fact the same as two of the voices on the DAT tapes, and that his role was to determine which voice on the police tapes corresponded to voices identified as M1, M2 or M3 on the DAT tapes. This is a quite different task to determining whether either of the voices so corresponded. If there were any real basis to doubt the assumption, the manner in which [the interpreter] was asked to perform the comparison might raise real questions of propriety. The situation is analogous to physical identification by photographs or by a police lineup, in which care must be taken not to suggest that a particular person is the suspect. However, for reasons which will appear below, I am satisfied that in this case the assumption was a valid one. It was therefore proper for [the interpreter] to approach his task on the basis that two of the voices on the DAT tapes did in fact correspond to the two voices on the police tapes, and his function was to determine which was which. [46] This means that the ad hoc expertise that he brought to bear was very much more limited than it would have been had the circumstances been different. As I have noted above, [the interpreter] had, during the course of translation of the DAT tapes, become familiar with the three voices. It was a relatively small step then to assign parts of the conversation to each of the two appellants. [47] For this limited purpose, I have come to the conclusion that [the interpreter] was brought within the category of ad hoc expert. He was familiar with the voice on the DAT tapes from his translation; he was familiar with the accents and use of language of the participants; and he was familiar with the languages in which they spoke, sufficient to enable him to bring a greater understanding to the voice comparison than a person without that language skill would have been. It was for the jury to evaluate such deficiencies as existed and to determine whether they accepted [the interpreter's] opinions. It may be assumed that those deficiencies were brought home to them with some force in counsel's addresses.
Spigelman CJ and Sperling J agreed with Simpson J, although both reserved their positions as to the scope and effect of s 78 of the Act.
A similar issue was subsequently considered by this Court in Nasrallah v R; R v Nasrallah. [38] In that case, the appellant had pleaded not guilty to a number of counts of importing a border controlled drug. The evidence relied upon by the Crown included recordings of 21 telephone calls which had been made to a freight forwarder enquiring as to the progress of the imported packages which contained the drug. The content of those conversations implicated the caller in the importation. Whilst on remand following his arrest, the appellant had made a number of telephone calls from the correctional facility in which he was held and which, according to standard procedures, were recorded. Police obtained a number of those recordings for voice comparison purposes, in circumstances where it was not disputed that the appellant was the caller.
Evidence was given by a Federal agent that he had spoken to the appellant twice, and had a lawfully recorded of one of those conversations. Over objection by trial counsel for the appellant, evidence was also given by the same Federal agent to the effect that the voice of the caller in the calls made to the freight forwarder was the voice of the appellant.
McCallum J (as her Honour then was) concluded that the evidence was wrongly admitted pursuant to s 79 of the Act. [39] In reaching that conclusion, her Honour acknowledged [40] that for the purposes of s 79, an expert witness can be a person who has acquired his or her specialised knowledge "ad hoc" or, in other words, for the very purpose of the legal proceedings in which the opinion evidence is relied upon. Having referred to the observations of Simpson J in Leung [41] , her Honour observed [42] that, in contrast with the evidence of the Federal Agent, the task undertaken by the interpreter in Leung was highly specialised and had invoked the interpreter's considerable specialised knowledge in foreign language and accent. I interpolate that on the evidence in the present case, similar observations could be made regarding the highly specialised task in which Ms Agarwal engaged, and her specialised knowledge of the Hindi language.
McCallum J then continued: [43] [41] The evidence in the present case was admitted on a different premise. The fact in issue was whether the voice on the DHL tapes was the voice of the appellant. Federal Agent Succar professed no prior familiarity with the appellant's voice and had acquired no specialised experience beyond that which the jury could itself acquire. His only familiarity with the appellant's voice was that which he acquired for the purpose of constituting himself an ad hoc expert to prove the fact in issue. He did so by listening to the very evidence the Crown intended to put before the jury. [42] As already noted, the Crown acknowledged at the pre-trial directions hearing that the comparison of the 21 disputed DHL calls and the calls from the gaol was a task the jury could ("would have to") make themselves. Indeed, it appears at that point that the Crown did not consider Federal Agent Succar to have any relevant expertise. Leaving aside his putative specialised knowledge acquired as "an Australian with a Lebanese background", his assertion of identity was founded on material no different from the material available to the jury. .
Bearing in mind these authorities, it is important to emphasise a number of aspects of Ms Agarwal's unchallenged evidence.
First, Ms Agarwal said that in preparing the transcripts of the conversations, she had listened to them a number of times, [44] over a period of approximately 15 days, [45] for between 3 and 7 hours each day. [46]
Secondly, Ms Agarwal's opinion that the male voice speaking to Hussein in the Hindi calls was the same voice in each case was formed, at least in part, because the calls were in Hindi, a language with which she was particularly familiar. There was nothing about Ms Agarwal's English translation of the calls which caused her to form her opinion that the male voice was consistently the same. [47]
Thirdly, Ms Agarwal drew on her experience and relied upon the pitch, tone and accent of the male voice in each of the Hindi calls to form her opinion, in circumstances where her evidence was that such pitches and tones are specific to the Hindi language. [48]
Ms Agarwal's evidence was not of the kind which was found to be inadmissible in Nasrallah. Rather, it was highly specialised, and akin to that of the expert in Leung who, in reaching his opinion, had taken into account the volume, the pitch and modulation of the voices, and the accent and speed of the speech.
In all of these circumstances, I am unable to accept the proposition that Ms Agarwal was in no better position than the jury to make the determination that she made. Clearly, her familiarity with the nuances of the Hindi language was part of the basis of her opinion. A lay person would be entirely unfamiliar with such matters. Her position in all of these respects may be likened to that of the expert in Leung. Ms Agarwal was a person who was familiar with the relevant language to a sufficient degree to enable her to bring a greater understanding to the task of voice comparison than a person without that skill. The fact that Ms Agarwal was not qualified or formally trained in voice recognition is not to the point.
As I have previously noted, the evidence of Ms Agarwal was admitted without any objection, and her cross-examination was, to say the least, brief. That cross-examination, such as it was, gives no indication that counsel for the appellant at trial perceived the existence of any differentiation between the voices of the male person in the Hindi calls which might have formed the basis of a challenge to Ms Agarwal's opinion. The overwhelming inference is that the absence of any objection to the evidence of Ms Agarwal was the result of a deliberate forensic decision made by trial counsel.
Moreover, and leaving aside the absence of any objection to Ms Agarwal's evidence, the applicant received the benefit of a lengthy direction from the trial Judge in relation to identification evidence. In the course of giving that direction, the trial Judge suggested a number of shortcomings in Ms Agarwal's evidence, many of which had not been elicited in cross-examination. Moreover, in the course of that direction, the jury were told (inter alia) Ms Agarwal was "no more or less qualified than you" to express an opinion as to whether the male voice was the same. For the reasons I have set out, that proposition was not correct.
There may be some doubt as to whether the identification direction which was given by the trial Judge was appropriate at all, given that on one view, Ms Agarwal did not actually identify any voice. However it is not necessary to take this issue any further, as the direction was overwhelmingly favourable to the applicant, and did not disadvantage him in any way whatsoever.
For all of these reasons, Ms Agarwal's evidence was admissible under s 79 of the Act. Leave to rely on this ground of appeal should be refused.

Ground 2 - A miscarriage of justice was occasioned by the failure to play audio recordings of intercepted telephone conversations in the Hinidi [sic] language, said to involve the applicant, and upon which the Crown relied to establish the applicant's guilt

Before addressing the substance of this ground, it is necessary to make a number of preliminary observations.
Prior to the hearing before this Court, the applicant relied on a single ground of appeal. Upon the commencement of the hearing, senior counsel for the applicant made a number of submissions which fell well outside the parameters of that ground. When it became apparent that a further ground was to be relied upon, senior counsel was given the opportunity to articulate its terms in writing. As required by Practice Note SC CCA 1, a notice had been filed and signed by senior counsel for the applicant in which it was unequivocally stated that the applicant would rely only on ground 1, and the submissions which had been filed. That notice was dated 22 August 2022, approximately 7 days before the hearing of the appeal. Given what transpired, it is necessary to emphasise the importance of the Court being assisted by proper adherence to the Practice Note.
The terms of the ground as it is pleaded are apt to confuse in two particular respects. First, the ground asserts that a miscarriage of justice was occasioned by "the failure" to play audio recordings. Although not specifically stated, it became apparent during the course of argument that the failure relied upon was said to be that of the Crown.
Secondly, the ground relies on the Crown's failure "to play audio recordings of intercepted telephone conversations in the Hinidi [sic] language, said to involve the applicant". As I have already pointed out, 5 of the 24 Hindi calls were in fact played to the jury. I have therefore proceeded on the basis that a miscarriage of justice is said to have arisen as a result of the failure by the Crown to play the remaining 19 calls.
Given that the Crown was never, at any point, asked to take that a course at the trial, r 4.15 also applies to this ground of appeal.

Submissions of the applicant

Put simply, senior counsel for the applicant submitted that in circumstances where the evidence of Ms Agarwal in respect of the voices on the Hindi calls was central to the Crown case, the Crown had an obligation to play the entirety of those calls to the jury. It was submitted that the failure to do so gave rise to a miscarriage of justice.
In advancing those submissions, senior counsel expressly conceded that he had not listened to any of the calls himself. Notwithstanding that, he submitted that the Crown had an obligation to play them all to the jury at least once. That obligation, it was submitted, arose from the fact that the Hindi calls were evidence upon which the Crown relied to establish the applicant's guilt.

Submissions of the Crown

The Crown submitted that it was under no such obligation and that to have played the entirety of the Hindi calls to the jury would have been a waste of time, particularly in view of the fact that Ms Agarwal's evidence was not challenged. The Crown further submitted that taking such a course would have been an exercise lacking in utility, given that it was highly unlikely that any member of the jury would have understood the Hindi language.

Consideration

For a number of reasons this ground fails.
To begin with, the Crown made it clear in the course of a lengthy exchange with the trial judge [49] that it was proposed that a sample of the calls would be played. No objection was raised by counsel for the applicant to that course being taken and no application was made that the Crown play the entirety of the recordings. That position was entirely consistent with the fact that Ms Agarwal's evidence was not challenged.
In the circumstances, there is an overwhelming inference that counsel for the applicant formed the view that playing the entirety of the calls would have been of no forensic advantage to the applicant's case. There is no indication whatsoever that counsel perceived that there was any differentiation in the male voice in the Hindi calls which might form the basis of a challenge to Ms Agarwal's evidence, nor is there any indication that counsel had formed the view that playing all of the Hindi calls would have led to the jury perceiving any difference between the male voice in each case. Moreover, if counsel had formed the view that playing all of the recordings would go some way to undermining Ms Agarwal's evidence of uniformity of voice (even though that evidence was not challenged), it was open to counsel to play them in the defence case. She did not do so.
Further in my view, and leaving aside that there was no request to do so, the Crown was under no obligation to play the entirety of the Hindi calls. The principles which govern the Crown's responsibility to determine what witnesses are to be called in a criminal trial are well settled. [50] In my view, those principles apply to the determination of what evidence is to be called generally. They include the proposition that the decision of the Crown not to call a particular person to give evidence will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. In the circumstances of the present case, the Crown was entitled, in the absence of any challenge to the evidence of Ms Agarwal and the absence of any request to play all of the recordings, to take the view that no issue arose in respect of any of that evidence. The proposition that in those circumstances, the Crown somehow had an obligation to play 24 recordings to the jury, all of which were in a foreign language, should be firmly rejected. This is particularly so where the Crown had suggested to the trial judge that such a process would be likely to take some days. The response of the trial judge, [51] namely that doing so would "tend to bring the law into disrepute", and that it was "absurd" because it did not "advance matters at all", was entirely accurate.
In all of these circumstances, no miscarriage of justice could possibly be said to have arisen.
Leave to rely upon this ground should be refused.

Conclusion

In light of the views that I have reached regarding the two grounds of appeal, and for the additional reasons expressed by Fagan J, I propose the following orders: 1. The time for filing a Notice of Appeal is extended to 23 February 2022. 1. The appeal is dismissed.
FAGAN J: I agree with Bellew J. In view of the extent to which the applicant is out of time to appeal, as summarised at [4] above, and taking into account the lack of merit in the grounds, one available course would be to refuse an extension of time. However, it seems appropriate to dispose of the proceedings in this Court in a manner that will more clearly and appropriately reflect the finality of the criminal process concerning him. It is proposed that the time within which to appeal against conviction be extended in accordance with the application to this Court, so that the grounds of appeal may dealt with finally on their merits. The appeal should then be dismissed.

Endnotes

At [77].
Commencing at AB 733.25.
AB 736.25.d
AB 736.27.
AB 740.23 - AB 740.28.
AB 741.20 - AB 744.4.
AB 744.6 - AB 744.7.
AB 744.13 - AB 744.14.
AB 744.18 - AB 745.49.
AB 748.25 - AB 748.41.
AB 749.18 - AB 749.19.
AB 749.42 - AB 750.6.
AB 750.10 - AB 750.25.
AB 750.14 - AB 750.25.
AB 750.29 - AB 750.38.
AB 750.42 - AB 751.28.
AB 751.32 - AB 752.40.
AB 752.4 - AB 752.40.
AB 752.44 - AB 757.6.
AB 757.10 - AB 757.20.
AB 759.13 - AB 759.21.
AB 759.25 - AB 759.31.
AB 759.49 - AB 760.23.
AB 760.27 - AB 760.46.
AB 1053 - AB 1056.
AB 1056.
AB 1067.
AB 1072.
[2019] NSWCCA 311 at [168].
See generally Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29.
(2001) 206 CLR 650; [2001] HCA 50 at [10]-[12].
At [11].
(1999) 47 NSWLR 405; [1999] NSWCCA 287.
[1982] 1 NZLR 40.
(1987) 164 CLR 180; [1987] HCA 58.
At [42].
At [44] - [47].
[2015] NSWCCA 188.
At [9]; Hoeben CJ at CL and M Adams J agreeing.
At [21].
At [44] - [45]
At [30].
At [41] - [42].
AB 749.18 - AB 749.19.
AB 760.37.
AB 760.39 - AB 760.42.
AB 751.22 - AB 751.26.
AB 751.36 - AB 751.50.
Commencing at AB 741.46.
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38.
AB 744.33 - AB 744.40.

Amendments 19 September 2022 - Amendment to catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2022

Ali v R

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