Irani v R

Butera v DPP (Vic) (1987) 164 CLR 180 Doney v The Queen (1990) 171 CLR 207 R v Blick (2000) 111 A Crim R 326 R v Camilleri (2001) 127 A Crim R 290 R v Carusi (1997) 92 A Crim R 52 R v Leung and Wong (1999) 47 NSWLR 405 CASES CITED : R v Li (2003) 140 A Crim R 288 R v Madigan [2005] NSWCCA 170 R v Menzies [1982] 1 NZLR 40 R v Rahme [2004] NSWCCA 233 R v Riscuta and Niga [2003] NSWCCA 6 R v Shamouil [2006] NSWCCA 112 Smith v The Queen (2001) 206 CLR 650

PARTIES: Nekzad Irani - Appellant Regina - Respondent Crown

COUNSEL: Mr P Hamill SC/Mr S Corish - Appellant Mr D Frearson SC - Respondent Crown

SOLICITORS: Martin Ricci (The Law Practice) - Appellant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

IN THE COURT OF CRIMINAL APPEAL 3051/2007

McCLELLAN CJ at CL HOEBEN J HARRISON J

Thursday, 18 September 2008 Nekzad IRANI v R Judgment 1 McCLELLAN CJ at CL: I agree with Hoeben J. 2 HOEBEN J: Conviction and sentence: The appellant, Nekzad Irani, was arraigned on four counts of supplying a prohibited drug, namely cocaine. The trial before Williams DCJ commenced on 19 February 2007. A jury was empanelled on 26 February 2007. On 14 March 2007 the jury returned a verdict of guilty in relation to each count. 3 The appellant was sentenced on 7 June 2007. The sentences imposed were: Count 1 - Imprisonment with a non-parole period of 1 year and a balance of term of 1 year commencing 4 January 2007.

Count 2 - Imprisonment with a non-parole period of 1 year and a balance of term of 1 year commencing 4 January 2007.

Count 3 - Imprisonment with a non-parole period of 3 years with a balance of term of 1½ years commencing 4 July 2007.

Count 4 - Imprisonment with a non-parole period of 3 years with a balance of term of 1½ years commencing 4 July 2007.

The effective overall term was a non-parole period of 3½ years with a balance of term of 1½ years.

Ground of Appeal 4 The appellant appeals against his convictions. The single ground of appeal relied upon was: The trial judge erred in admitting the evidence of Detective Robinson in relation to voice identification of the accused.

Crown case 5 It was the Crown case that the appellant was involved in four separate supplies of cocaine to an undercover informant. The purchases occurred at a nightclub called "Lady Jane's" where the appellant worked. Before each purchase, police gave the informant the necessary funds and a listening device. The transactions were recorded. After each supply the informant gave police the cocaine he had just purchased. The Crown case consisted of the informant's direct evidence of the transactions, together with the recordings of the purchases. That evidence was corroborated by the police evidence of providing the money and receiving the cocaine almost immediately after each purchase. 6 By way of further corroboration, the Crown relied upon the evidence of Detective Robinson. Detective Robinson prepared the transcripts from the listening device recordings obtained by the informant. There were 29 recordings in all, 9 involving the appellant. 7 The evidence of Detective Robinson was that he had spent about two months listening to the recordings, playing and replaying them to prepare accurate transcripts of the relevant portions of the recordings. He also spent about four days replaying the recordings to the informant for him to confirm the accuracy of the transcripts. On a number of occasions the only persons talking and present at the time of a recorded conversation were the informant and the person Detective Robinson identified as the appellant. 8 Detective Robinson gave evidence that as a result of that lengthy process, he had become very familiar with the voices on the tapes, including the voice of the appellant. When the appellant and his co-offender, Justin Stokes, presented themselves at Surry Hills Police Station, Detective Robinson said he immediately identified their voices. He recognised the appellant's voice as the voice of the person "Nick" on the tapes. The appellant said little upon his arrival at the police station. Subsequently a forensic procedure was carried out in relation to the appellant during the course of which the appellant spoke and was overheard by Detective Robinson. The forensic procedure and the appellant's conversation were video recorded and became exhibit A1 at the trial. 9 The voices on the recordings were distinctive. The informant had a heavy Scottish accent, Mr Stokes spoke with a lisp and Mr Vincent had a softly spoken voice. The voice which Detective Robinson attributed to the appellant he described as "being that of an adult, a man in his twenties, of predominantly Australian accent but with overtones perhaps of another accent" which he described as "either Arabic or Middle Eastern".

Case for the appellant 10 The main issue at trial was whether the informant lied in naming the appellant as one of the people involved. The informant had been granted an indemnity in respect of some serious offences in return for his participation in this operation. It was accepted that the drugs had been supplied by the principal, Tony Vincent, and therefore, to that extent, the informant's evidence was accurate, but his allegations against the appellant were said to be deliberately false. The defence case was that the informant had a motive to ensure that this operation resulted in as many charges as possible and for that reason he had falsely named the appellant as the person referred to as "Nick" on the recordings. 11 The possibility of mistaken identification did not arise in relation to the informant's evidence because the informant had known the appellant for over two years before the transactions and his evidence was direct evidence of the transactions involving the appellant. The issue was fabrication, rather than identification, as between the appellant and the informant. The appellant did not give evidence. 12 The appellant objected to the admissibility of the evidence of Detective Robinson and relied upon s 137 of the Evidence Act. His Honour received evidence on the voir dire and in a judgment handed down on 22 February 2007, found that s 137 did not operate to exclude the evidence. His Honour noted that in order to obviate any unfairness, it would be necessary for a clear warning to be given to the jury as to what use they could make of that evidence.

The appellant's submissions 13 On the appeal, the basis for the appellant's challenge to the admission of the evidence of Detective Robinson was that his Honour had failed to properly apply s 137 of the Evidence Act 1995. That section provides: "137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

The term "probative value" is defined in the Dictionary to the Act: "Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the assistance of a fact in issue." 14 The appellant submitted that his Honour failed to carry out the balancing process required by s 137 in that he failed to properly assess the "probative value" of the evidence of Detective Robinson and balance it against the danger of unfair prejudice (R v Blick (2000) 111 A Crim R 326 at [19] - [20]). Had his Honour done so, it was submitted, he would have assessed the probative value of the evidence of Detective Robinson as slight. It was accepted by the appellant that the evidence of Detective Robinson was relevant and in accordance with the authorities, Detective Robinson was correctly characterised as an "ad hoc" expert. 15 Although his Honour only referred to the balancing exercise between probative value and unfair prejudice on the last page of his judgment, it is clear from the substance of the judgment that his Honour directed most of his attention to an assessment of the probative value of the evidence of Detective Robinson. That was why his Honour referred to the decisions of R v Leung and Wong (1999) 47 NSWLR 405, R v Camilleri (2001) 127 A Crim R 290 and R v Li (2003) 140 A Crim R 288. What his Honour sought to do was to compare the probative value of the voice recognition evidence admitted in those cases with the evidence of Detective Robinson. It would have been better for his Honour to make clear that this was what he was doing. Nevertheless, it is obvious that a balancing process did take place. 16 The appellant submitted that had his Honour approached the question of "probative value" correctly, he would have found that the evidence of Detective Robinson was "tainted" by the way in which he reached the conclusion that the appellant was the person "Nick" speaking on the tapes. The court was directed to the fact that Detective Robinson had the statements of the informant before him when he was listening to the tapes and subsequently over four days played the tapes in the presence of the informant to clarify the accuracy of his transcription. It was submitted that this had the effect of Detective Robinson being impermissibly influenced by the evidence of the informant and not really using his own judgment. 17 It was submitted that there was a further problem with the evidence. Detective Robinson was part of the investigation team which effected the arrest of the appellant. The identification of the appellant's voice when he was arrested at the police station and when the forensic procedure was being carried out, was therefore analogous to a witness making a dock identification at a trial. The submission was that when the appellant was at the police station Detective Robinson's apparent recognition of his voice was merely confirmation of the impression he had already formed based on what he had been told by the informant. 18 The difficulty with that submission is that the analogy with a dock identification is not made out. The submission fails to have regard to the concession that Detective Robinson was an ad hoc expert. After months of replaying the recordings he had gained substantial expertise in being able to identify the individual voices. That expertise enabled him (if he was accepted) to say when he heard the appellant's voice at the police station that this was one of the voices which he had heard on the recordings, ie the voice which he attributed to "Nick". Accordingly this evidence had real probative force despite the fact that in gaining that expertise he may have been influenced by the statements of the informant. 19 As was pointed out in the Crown submissions, in voice identification cases of this kind the ad hoc expert is rarely asked to do a "blind" comparison. There is inevitably a strong suggestion that at least one of the voices the ad hoc expert has been asked to listened to, will be the voice with which the expert is familiar. 20 In Leung and Wong although Simpson J identified deficiencies in the way in which the comparison of voices was undertaken, she found that the interpreter's evidence that the two voices were the same as the two voices he had heard in the recorded conversations, was correctly admitted. Leung and Wong made it clear that the evaluation of those deficiencies and the weight to be given to the evidence of identity was a matter for the jury, subject to the appropriate warnings being given by the trial judge. 21 An analysis of other voice identification cases supports that conclusion. In R v Camilleri the police officer heard the accused's voice during the execution of a search warrant. Later on the same day the officer also conducted an ERISP when the accused refused to answer any questions. On the basis of the familiarity with the accused's voice acquired that day he purported to identify the accused's voice on some listening device recordings. The fact that the police officer had such limited familiarity with the voice and the fact that he was told in advance that it was the accused' voice on the tapes which he was asked to identify, did not mean that the evidence should not have been admitted. 22 In R v Riscuta and Niga [2003] NSWCCA 6 the interpreter heard the accused's voice during 15-20 minutes of an interview in English in 1993 and more than 18 months later in 1994 on some listening device recordings in Romanian. In 2001, seven years later, the interpreter spontaneously "remembered" that the voice on the 1994 tapes was the same voice as that in the 1993 interview. This Court held that the evidence was admissible and that s 137 did not require its exclusion. The court stressed that appropriate directions were required to highlight the special caution needed in assessing such evidence. 23 In R v Li the interpreter listened to five audiotapes "for many hours over many days" where the language spoken was principally Cantonese. One year later he heard part of an ERISP and identified the accused on the ERISP as one of the voices on the tapes he had heard one year earlier. This evidence was held to have been correctly admitted. The argument that the identification was "tainted" based on Simpson J's comments in Leung and Wong, because the interpreter was comparing only one voice and must have known that the person on the ERISP was a suspect, was rejected. 24 In R v Madigan [2005] NSWCCA 170 two police officers, who prepared transcripts of audio surveillance recordings, purported to identify the accused's voice. One officer said he spent about 50 hours listening to the recordings and identified the accused's voice based on his memory of the accused's voice from having known him some years earlier and encountering him on a couple of occasions since. The second officer said she had spent about a week listening to the recordings and identified the accused's voice when she spoke to him for 2-3 minutes while he was fingerprinted and during an ERISP interview in which he said very little. This evidence was held to be admissible. The limited opportunity to compare the voices and other reservations about this evidence went to the weight of the evidence. It was held that appropriate directions were given to assist the jury assess the weight of the evidence. 25 The submission also fails to have regard to the way in which this Court has interpreted the words "probative value" as used in s 137. Cases such as R v Carusi (1997) 92 A Crim R 52 at 66, R v Rahme [2004] NSWCCA 233 and R v Shamouil [2006] NSWCCA 112 have given a restrictive interpretation to the words. As Spigelman CJ said in Shamouil: "[60] The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach. [61] In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, "the extent to which the evidence could rationally affect the assessment …". The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to that which a tribunal of fact is likely to conclude. Evidence has "probative value", as defined, if it is capable of supporting a verdict of guilty … [64] To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in a different, but not irrelevant, context in Doney v The Queen (1990) 171 CLR 207 at 275, this is not a permissible "basis for enlarging the powers of a trial judge at the expense of the traditional jury function". In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s 137." 26 It was common ground that the warnings given by his Honour in relation to the evidence of Detective Robinson were strong and comprehensive and no complaint is made in relation to them. It follows that I am not persuaded that the s 137 balancing exercise miscarried because his Honour failed to have due regard to the "tainted" nature of the evidence of Detective Robinson when assessing its probative value. 27 His Honour's assessment of the probative value of that evidence was challenged in another respect. This challenge relied upon the decision in Smith v The Queen (2001) 206 CLR 650. While accepting that the evidence of Detective Robinson was relevant, it was submitted that this evidence had little probative value because exactly the same exercise could and should have been carried out by the jury. In that regard, the following comment by his Honour in his judgment on the voir dire was criticised: "A jury is not expected to play amateur detective by spending many unproductive hours and maybe days listening to tapes to sort out what is being said and by whom. Indeed if a jury has no opportunity at being able to compare an accused's voice with what they hear on the tape the problem is amplified. In the present case there is no ERISP in respect of any of the alleged offenders, and it would be fair to say that a jury would have great difficulty in picking up what was said by anyone, in some instances without listening to the tapes a number of times." 28 The submission is not made out. The analogy with Smith is not valid. The police officers in Smith were in no better position than the jury in identifying the accused as being the person depicted in the bank photographs. In this case Detective Robinson had spent two months repetitively playing and listening to the recordings in order to gain his ad hoc expertise. That placed him in a different position to the jury in that he had an expertise which they lacked. 29 The observation by his Honour which is criticised did no more than make that very point. His Honour was not indicating that the jury should not or could not compare the voice of the appellant, as disclosed by the videotape of the forensic procedure, with the voice on the intercept tapes. All his Honour was doing was pointing out that Detective Robinson had been able to do that which the jury would not be able to do, ie spend 2 months familiarising themselves with the voices on the intercept tapes. 30 The appellant also submitted that the s 137 balancing exercise had miscarried because his Honour had placed undue weight on the decision in Leung and Wong. It was submitted that the facts of that case were significantly different in that some of the tapes contained conversations in Cantonese which the jury would not have had expertise to interpret for themselves. In that case the interpreter, Mr Fung, was able to carry out an identification process which the jury could not. 31 This submission is not made out. His Honour appreciated that the factual scenario was different where a foreign language was involved (judgment 7.5). His Honour's reliance on this case was not so much for its factual similarity but because of the statements of principle set out therein which his Honour quoted in his judgment. The statement of principle in R v Menzies [1982] 1 NZLR 40 at 49 was quoted by his Honour. This extract, which was endorsed by the High Court in Butera v DPP (Vic) (1987) 164 CLR 180 was applied in Leung and Wong. It seems particularly apt for this case and his Honour was entitled to rely upon and apply it: "If the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape. But there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language. Or deficiencies in the recording may make it necessary to play tapes more than once to enable a better understanding, yet the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury. In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc. And we see no compelling reason why this evidence should not take the form of production of a transcript which can be admitted as an exhibit." 32 No complaint appears to be made in relation to his Honour's analysis of the "unfair prejudice" likely to arise if the evidence of Detective Robinson was admitted. The danger was that the evidence had the appearance of independent corroboration by an expert of the evidence of the informant. His Honour was well aware of that danger but concluded that it could be reduced if not eliminated by clear directions to the jury. In those circumstances, his Honour was entitled to conclude that the probative value of the evidence of Detective Robinson was not outweighed by the danger of unfair prejudice to the appellant. Accordingly, no error has been made out in his Honour's application of s 137 of the Evidence Act to this evidence. 33 I propose that the appeal be dismissed. 34 HARRISON J: I agree with Hoeben J and with the order he proposes. **********

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