Korgbara v Regina [2007] NSWCCA 84 | Case summary

Korgbara v Regina [2007] NSWCCA 84 | Case summary | Zoe

[29]

Ozone Emeka KORGBARA v R Judgment 1 McCOLL JA: Ozone Emeka Korgbara appeals against his conviction on 27 October 2004 after a trial in the District Court at Sydney before her Honour Judge Hock and a jury. He was found guilty by the jury of one count, that between about 1 October 2000 and 28 November 2000, he was knowingly concerned in the importation into Australia of prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied, to wit, narcotic goods consisting of a quantity of cocaine, being not less than the trafficable quantity applicable to cocaine. The quantity of cocaine involved was 102.5 grams pure (176.2 grams total weight). 2 He was sentenced to nine years imprisonment to date from 13 July 2004 with a non-parole period of five years and five months to commence on the same day and expire on 12 December 2009. He also seeks leave to appeal against sentence. 3 There was no dispute at the trial that in November 2000 a box containing a collection of tools and a small circular gold-coloured object about 35 mm deep, referred to in evidence as a "bearing" was despatched through "FedEx" in San Paolo, Brazil. It was sent by a Mr Ishewete. It bore a unique identifying number "40057473861". This number was referred to in the evidence as either the tracking number or the Waybill number. That number had to be supplied to make any inquiries to FedEx about the package. The package was addressed to a "Mrs C Gladys" at a mailbox address, 226/422 Pitt Street Sydney. Throughout the period alleged in the indictment this mailbox was held by the appellant. He had leased it in September 2000, about six weeks before the parcel was mailed from Brazil. The box was processed through Memphis, Tennessee, where it was examined by authorities. The box was found to contain a quantity of cocaine. Pursuant to arrangements with Australian authorities, the parcel was brought to Australia by an Australian Federal Police Officer as part of a controlled operation pursuant to Part 1AB of the Crimes Act 1914 (Cth). Once in Australia a substitute material was placed inside the bearing and a controlled delivery sample (a small quantity of cocaine) was placed within the substitute, then the package was reassembled. 4 These core facts established the first three ingredients of the offence pursuant to s 233B: that there was an importation into Australia, that what was imported were prohibited imports, namely narcotic goods consisting of a quantity of cocaine and that the cocaine was not less than a trafficable quantity, which is 2 grams pure. 5 The only live issue at the trial was whether the appellant was "knowingly concerned" in the importation. 6 On 21 November 2000 a letter was delivered to the post box saying the parcel had arrived. The letter was collected by the appellant. The package was never collected. On 28 November 2000 the appellant was arrested in a hire car in Surry Hills. On the console between the two front seats was a folder or address book said to belong to the appellant in which was a piece of newspaper with the Waybill number of the parcel. 7 The Crown's case was circumstantial. As set out in its written submissions, it relied on the following facts and circumstances to prove the appellant's guilt.

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9 Mr Spencer, counsel for the appellant, objected to the admissibility of the Igbo calls in the absence of any expert evidence that one of the voices on the Igbo calls was the appellant's. He also complained that the defence had not had the opportunity to engage a linguistic expert to comment on the exercise the Crown proposed to ask the jury to engage in of comparing an English speaker with Igbo telephone calls (18/10/04, p43). As to the call of the appellant speaking in English to the NRMA (the "NRMA call"), counsel for the appellant sought a direction pursuant to s 136 of the Evidence Act 1995 limiting its use to evidence of provenance, namely that the appellant used the phone service on the day it was recorded. (18/10/04, p42). 10 The trial judge rejected Mr Spencer's objection and the s 136 application. She admitted the NRMA call to enable the jury to determine, by comparison, whether the appellant was also speaking in the Igbo calls. So far as the record disclosed, her Honour did not give reasons for her rulings. 11 The Crown called two witnesses, Ms Nwaeze and Mr Echebima, each a qualified interpreter of the Igbo language. Mr Echebima had translated the Igbo calls. Ms Nwaeze both translated the Igbo calls and considered Mr Echebima's translation for accuracy. They produced what they believed to be an accurate transcription of the calls. 12 When Ms Nwaeze was called the Crown tendered a folder containing the translation of the Igbo calls. A copy of the translation was apparently given to each juror for reference during her evidence. 13 During Ms Nwaeze's evidence, the Crown played the NRMA call to the jury. Each Igbo call was then played. In almost every case Ms Nwaeze confirmed that the transcript was an accurate interpretation of the Igbo call. She made some corrections in relation to the transcript of a call intercepted on 23 November at 01.02. 14 Mr Echebima also gave evidence that the transcripts were an accurate reflection of the effect of what was said on the Igbo calls, but the tapes were not played in the course of his evidence. 15 A computer was made available to the jury when it retired so it could listen to the telephone intercepts if it wished. 16 The appellant gave evidence. He admitted that the black bag found in his car was his, as too were its contents, except the black folder/diary. He said that was owned by his friend, Emmanuel, who was with him in the car when they were apprehended. However, the folder/diary contained a business card bearing the name "Ozone K Emeka", which the appellant admitted was his, on which the appellant's mobile phone number was handwritten. It also contained a Travelodge card envelope with a hotel confirmation slip in the name of "Korgbara" for 25/26 November and three photographs of the appellant. 17 He denied that any of the voices on the telephone calls was his. He nominated two other people, "Gilbert" and "Emmanuel" as among speakers whose voices he recognised. He said there were other speakers he did not know. 18 It is unnecessary to set out the appellant's other evidence. Suffice it to say he denied all the inculpatory evidence but admitted the objective circumstances upon which the Crown relied.

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19 The trial judge directed the jury in relation to the Igbo calls that it seemed to be "common ground between the Crown and the defence that the person speaking on the phone in the intercepted phone calls nominated at [sic, this is probably "as"] the receiver in the transcripts, where this importation was being discussed, was knowingly concerned in the importation." 20 The trial judge gave the following directions to the jury on the use of the telephone call evidence: "Now members of the jury the main evidence on which the Crown relies, the main evidence on which the Crown relies is the content and identity of the speak[er] nominated as the receiver in the 17 IGBO calls. The content of those calls is not in dispute. You have the evidence of the translators, which you heard last week. You have the transcripts in English of those calls and the accused in his evidence agreed that the calls were accurately transcribed into English. It seems to be common ground that what is said in those calls relates to this importation. I only need to give you one example, I am not going to take you through the calls, you all followed the calls in English when the translator particularly Ms Nwaeze gave her evidence, you were listening in IGBO and reading the English calls at the same time. You have had those transcript[s] for some time. But by way of an example, you will recall that the call on 20 November 2002 at 22.05, during that call the weigh bill number is given, that number 40057473861, that is the FedEx tracking number or waybill number or however you like to describe it, which you will see recorded on various exhibits, starting with exhibit "B" which you received on the first day of the trial. That was the number located on the piece of newspaper in the car on 28 November 2000. As to the identity of the receiver you would be well aware that no-one has given evidence in this trial that it is the accused's voice or that it sounds like the accused's voice or is similar to the accused's voice on the IBGO (sic) calls. In this case, as judges of the facts, you as members of the jury and judges of the facts are asked to make your own comparison of the voice of the accused recorded in the call of 14 October 2002 in English, the NRMA call, there being, as you know, no dispute that it is the accused speaking in that call in English with the voices recorded on the 27 other calls. All of which are in IGBO except for the occasional word of English. You are also entitled to draw on your recollection of the accused's voice when he gave evidence before you last Thursday. There are a number of matters that I must draw to your attention in respect of the exercise which you are asked to engage in of comparing voices. These are matters which you are bound to consider when you decide whether you can reach a reliable conclusion when comparing the voices. The first matter, as you would be well aware, is that it is very difficult to describe a voice, some voices are particularly distinctive and some are not but you would be aware that descriptions are difficult to apply to voices in a way that would accurately describe them. Voice similarity, that is saying one voice is similar or the same as another voice is notoriously open to mistake. You have all no doubt had the experience of mistaking a voice when you hear it, for example, over the telephone. Even when the voices you have confused are those of people who are close to you, perhaps even members of your own family. In this case you are being asked to compare voices captured, that is intercepted over a mobile telephone system and them (sic) recorded. In that respect you would probably have the same acoustics in the intercepted call but you are also asked to compare the voice of the accused which you heard in the court room with the recording. In that sense you would need to bear in mind the different modes of recording. You have heard the accused's voice live in court but the calls are recorded and you only have recordings of the calls. So you are listening to different types of evidence of voice in that sense. The next matter is that you are being asked to compare the accused's voice listened to by you in English with the voices of the IGBO speakers in exhibit 'H' the twenty seven calls. It would be safe to assume that none of you would have had any familiarity with the IGBO language before this trial started, therefore when you [are] performing that task of voice comparison you should keep in mind that you are really comparing sounds of voices only. You do not have the benefit of comparing language and speech patterns, which you would have if the calls were all in English. For example, if the calls were all in English you may have been able to compare the way various words were pronounced or the speed that the speaker spoke at or common expressions might appear such that you could link that voice with that particular caller. The next matter is that you do not have an admitted recording of the accused's voice speaking the IGBO language with which to compare the voices on the twenty-seven CD's. By that I mean you would be well aware that the Crown alleges that it is the accused's voice recorded as the receiver on the IGBO calls, but that is an area of dispute. What I mean is, that you do not have a means of comparison, that is a recording of the accused speaking IGBO, identified by either the accused or by somebody else as being his voice, with which you could then compare the twenty seven IGBO calls. Similarly you do not have a recording of other people, who on the accused's evidence, also speak IGBO and on the accused's evidence are identified on the calls. You will recall that he nominated Emmanuel, Gilbert or other Ozones, other people named "Ozone". You do not have recordings of those people's voices to compare with the twenty-seven IGBO calls. The next matter is that the call in English, exhibit 'J' is a reasonably short recording, and as I have already said that, undisputed sample of the accused's voice is the only sample recorded in the same way as the twenty seven IGBO calls. That is, intercepted and then recorded. For those reasons it is necessary that you exercise special caution when undertaking the task that is asked of you. This warning of the need for special caution when you are comparing the voices is given in every case where such evidence is disputed. It is not given because of any particular view which I may have formed concerning the evidence in this case. My purpose in referring to those matters is only to assist you in your task by pointing them out as warranting your attention and by directing you that you are bound to give them careful consideration. The Crown says that when you listen to the calls and hear the pitch or tone or the level at which the voice speaks and the manner of speaking what the Crown Prosecutor described as 'a relaxed, laid back voice' and use your recollection of the accused's voice when you heard it last Thursday, you will conclude that is the accused's voice on the phone nominated at the receiver in the transcripts. On the other hand Mr Spencer on behalf of the accused suggested to you that it was ridiculous to ask you to perform the task of comparing English with IGBO. He used the analogy of comparing apples with oranges. He suggested to you that you are not experts linguistics [sic] and reminded you that nobody familiar with IGBO has given such evidence. You simply have not heard any evidence from the interpreters or from a linguist. He suggested to you that you have been set an impossible task. Those are the competing arguments in respect of the task of voice comparison. I should say this, members of the jury, that if you were relying on the voice comparison alone, with [sic, this was presumably "without"] using any other evidence at all, you would have to be satisfied beyond reasonable doubt, that the voice of the accused was identical to the voice of the receiver in the call where arrangements for the importation are being discussed. Ultimately you may decide that you cannot be satisfied beyond reasonable doubt by voice comparison alone, that you can positively identify that it is the accused speaking on the IGBO calls. If you come to the view that it sounds like the accused's voice then you can use that evidence, together with other evidence which I will take you to on which the Crown relies, to satisfy you beyond reasonable doubt that it is the accused's voice on the IGBO calls and thus he was knowingly concerned in the importation. On the other hand if you came to the view that the voice on the IGBO calls nominated as the receiver, or usually nominated as the receiver, didn't sound anything like the accused's voice, well then you would put the calls to one side. On the way this case has been run the Crown Case would fail and the accused would be acquitted because the other evidence standing alone would not be sufficient to satisfy you beyond reasonable doubt that the accused was knowingly concerned in the importation. Now the Crown says that the content of the calls, and he suggested four topics in particular, fifteen hundred dollars, Boris, black stuff and Brazil or Pelaise (?) stuff, that is the fourth one, the overlapping subject matter of the call leads to a conclusion that one person was a participant in all of the call[s] on the basis of subject matter alone." (emphasis added)

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(c) The trial judge erred in declining to limit the use of the English-speaking phone call to evidence of "provenance". 22 No ground of appeal complains about the trial judge's directions warning the jury about the manner in which they should approach the voice comparison exercise. However in written submissions provided after the hearing, Mr Game of Senior Counsel, who appeared for the appellant, contended the jury ought to have been given a direction in accordance with R v O'Doherty [2003] 1 Cr App R 5. Submissions 23 Mr Game submitted that the voice comparison evidence was wrongly admitted. He argued that the exercise in which the trial judge permitted the jury to engage was misconceived. In the absence of expert evidence, he contended, it was not open to the jury to compare a voice speaking Igbo with a voice speaking English. He argued it was inviting the jury to engage in an exercise of speculation in comparing the NRMA call with the Igbo calls, a language they had (presumably) never heard before, particularly in circumstances where they did not know what the speakers were saying. He accepted that his submission would be the same whether or not the foreign language was Igbo or, for example, French or Italian. 24 Mr Game also complained about the trial judge's direction that even if the jury was not satisfied beyond reasonable doubt, by voice comparison alone, that it was the appellant speaking in the Igbo telephone calls, if it was nevertheless of the view that the Igbo calls sounded like the appellant's voice, that evidence could be used as part of the circumstantial case advanced by the Crown. 25 Mr Game argued that in the absence of expert evidence of the nature of that called in Nguyen v R [2002] WASCA 181; (2002) 131 A Crim R 341 identifying the appellant as the person speaking on the Igbo calls, there was no foundation for the jury's voice comparison exercise. 26 In written submissions filed after the hearing of the appeal, in response to the Court's request that counsel review overseas authorities on the voice comparison issue, Mr Game drew the Court's attention to R v Chenia [2002] EWCA Crim 2345; [2003] 2 Cr App R 6, a decision of the Court of Appeal of England and R v O'Doherty, a decision of the Court of Appeal of Northern Ireland. 27 Mr Game submitted, relying on R v Chenia, that expert evidence was required where a case involved considering whether a voice in a test sample (such as the Igbo calls) belonged to the same person as a voice in a control sample (such as the NRMA call) or the testimony of the accused in the current proceedings. He argued that the necessity for that evidence was supported by the risk that lay evaluation of such evidence might involve a number of potential errors including what Nicholson LJ identified in R v O'Doherty (at [65]) as the "subconscious bias because the defendant is in the dock" and a failure to comprehend the process of analytical reasoning required satisfactorily to carry out a voice comparison test. He contended that in the absence of knowledge by the jurors of the relevant foreign language, the "subconscious bias" effect was likely to have a greater distorting effect. 28 The Crown submitted that the voice comparison exercise in which the trial judge permitted the jury to engage was permissible. It also submitted that the exercise in which the jury was originally asked to engage, of comparing the voice of the person identified in most of the Igbo calls as the receiver with the voice of the appellant as heard on the NRMA call, changed once the appellant chose to give evidence. Once that occurred, it contended, the jury was in an even better position as to the quantity of material available to it to undertake the voice comparison exercise. 29 The Crown also argued that the trial judge had correctly warned the jury of the limitations of the voice comparison exercise. 30 The Crown submitted that the appellant's reliance on R v Chenia was misconceived and that that case turned on the necessity for expert evidence in a voice identification case. It submitted that Chenia was inconsistent with the Australian approach in Bulejcik. It also contended that there was no basis for reliance on a "subconscious bias" effect nor any assertion that such an effect would have greater application in relation to a foreign language.

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Voice identification: Australia 31 There is no case directly on point on the question of whether a jury can be permitted to engage in an exercise of comparing an accused's voice, speaking in English, with voices speaking in a foreign language to determine whether the accused is one of the speakers. There are somewhat analogous cases from which relevant principles can be drawn, most of which, the transcript reveals, were debated before the trial judge. 32 The exercise in which the jury was permitted to engage is variously described in Australia as "voice identification" or "voice comparison". In truth it is a hybrid exercise: the jury is being asked to undertake the comparative exercise to determine whether the accused's voice can be identified in some potentially incriminating evidence. What Australian courts have described as "voice identification", being evidence that a witness familiar with a speaker's voice and/or relying on its distinctive qualities as heard out of court identified the accused as the speaker, is referred to in other jurisdictions as "voice recognition", "voice identification" being used to describe identification by persons previously unfamiliar with the accused's voice: Omerod, "Sounds Familiar? - Voice Identification Evidence", [2001] Criminal Law Review 595 at 596. 33 Bulejcik v R [1995] HCA 54; (1996) 185 CLR 375 dealt with voice identification. In that case the Crown tendered a tape recording made through a transmitting device fitted to a police officer who had participated in a conversation allegedly with the accused and a police informer. The police officer gave evidence that the accused had taken part in the conversation and that his voice was one of those on a tape recording of the conversation. The recording was tendered and an edited copy made available to the jury (exibit D). The accused, who was described to the High Court as "a new Australian Yugoslav" (see 380), gave an unsworn statement which took about forty minutes to deliver. The extent of the accused's unfamiliarity with the English language does not clearly appear from the judgment although Brennan CJ described (at 383) his voice as "accented". The jury asked for the accused's unsworn statement to be replayed to them at the conclusion of the summing up. 34 On appeal the appellant argued (inter alia) the jury should not have been permitted to use his voice while making his unsworn statement to determine whether he was one of the speakers on Ex D, and that the trial judge's directions as to the dangers of this exercise were inadequate. 35 Toohey and Gaudron JJ (at 393-394) discussed R v Smith [1984] 1 NSWLR 462, which they described as the leading New South Wales authority on voice identification evidence, and the approach taken to the issue by other State courts. They then said (at 394-395): " Voice comparison The significance of these decisions lies in the use the jury were permitted to make of the accused's voice as heard by them in order to accept or reject the evidence of a witness that a voice heard at the scene of an offence was that of the accused. The present case is of course different because the jury had access to the voice itself, by means of the tape recording Ex D. The question is whether the jury might make a comparison of that voice with the voice of the accused as heard making an unsworn statement, together with the tape recording of that statement, in order to determine whether it was the appellant's voice on Ex D. Where a witness identifies a voice on the basis of having heard it before, the witness needs to have heard a sufficient amount of the accused's speech to be familiar with it because, in saying that the voice at the crime scene is that of the accused, the witness is relying on his or her memory of the accused's voice. Where a witness identifies a voice on the basis of having heard it subsequently, there should be something about the voice at the crime scene to sufficiently embed it in the witness's memory so as to enable him or her to say that it is the same as a voice which he or she heard subsequently. The greater the distance in time between when the two voices compared were heard, the greater the desirable degree of familiarity or distinctiveness. Where two voices are being heard side-by-side, as occurred in the present case, the concern is not with familiarity or distinctiveness but with whether the quality and quantity of the material is sufficient to enable a useful comparison to be made. By way of analogy, asking a jury to compare a photograph of an accused with a security camera picture of the perpetrator of a robbery involves quite different considerations from asking a witness whether the accused is the person they remember seeing at the robbery. It is in this sense that counsel for the respondent stressed that, notwithstanding that the aim is still to identify the voice on the tape, the exercise is one of voice comparison rather than identification from memory. As to the quality and quantity of the material being compared, clearly the greater the amount of material, the greater the similarity in the circumstances in which the voices were spoken or recorded and the greater the number of similar words used, the more useful the comparison. A jury would also benefit from hearing the material more than once so as to enable them to concentrate on both similarities and dissimilarities. Counsel for each side should have the opportunity to point out or emphasise particular similarities or dissimilarities to the jury. The defence may wish to call expert evidence where the jury may have difficulty in drawing a distinction between two voices of a particular nationality or dialect." (emphasis added) 36 Their Honours said (at 397) that the High Court "would be slow to depart from a trial judge's assessment that material was of sufficient quality and quantity for the jury to be permitted to make the necessary comparison". After observing that the Court would not shirk the responsibility of determining whether the jury was given sufficient warning of the difficulties involved in the voice comparison exercise, they said (at 397-398, footnotes omitted): " Domican v The Queen was concerned with visual identification. Nevertheless, the following passage from the judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ is particularly apposite: 'Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.' Where the jury is itself asked to make a comparison of voices in a situation such as this one, very careful directions are called for. It is not irrelevant that in the case of handwriting comparisons, it has been said to be unsafe to leave the matter to the jury without the guidance of an expert. It is unnecessary to go that far in the case of a voice comparison but, in our view, it is unsafe to leave that matter to the jury without very careful directions as to those considerations which would make a comparison difficult and without a strong warning as to the dangers involved in making a comparison . This was not done in the present case." (emphasis added) 37 Their Honours concluded (at 401) that there had been a miscarriage of justice and a new trial should be ordered. 38 McHugh and Gummow JJ also considered the admissibility of voice identification evidence (at 405 - 407). In their opinion it was "arguable that Smith was wrongly decided in so far as it [held] that evidence of voice identification is only admissible when the witness is very familiar with the accused's voice or when the voice of the accused is very distinctive", observing that "[v]isual identification evidence does not have to meet a similar threshold standard". While they suggested that "[f]amiliarity and distinctiveness appear to be matters of weight rather than conditions of admissibility", they said "the correctness of Smith and the cases that follow it should await a case where a decision on the point is essential". 39 However in McHugh and Gummow JJ's view (at 407) voice identification principles were not relevant to Bulejcik. Rather, the issue was whether "a recording of material that was before the Court was put to a proper use". In their Honours' view the trial had miscarried because the trial judge had permitted the jury to listen to a recording of the accused's unsworn statement, but had not required the Crown to tender it. In their view he ought to have required the Crown to reopen its case to tender the recording and give the accused an opportunity to deal with that evidence (at 408-409). Accordingly on the majority view, there having been a miscarriage of justice, a new trial was ordered. 40 Brennan CJ would have dismissed the appeal. He was of the view both that the trial judge's directions on the voice comparison exercise were adequate and that the playing back of the accused's unsworn statement was a matter of practice to be determined by the trial judge in the exercise of his or her discretion. In the course of his judgment, however, he made pertinent observations about the central issue, which he described as one of voice identification, rather than voice comparison. While expressed in dissent his views command great weight and have been relied upon in subsequent authorities. He said (at 381-383): "…[ T]here is no general rule that precludes a jury from taking account of an accused's voice heard at the trial when it tends to prove a fact to be found . … Recognition of a speaker by the sound of the speaker's voice is a commonplace of human experience . To recognise the voice of a particular speaker some familiarity with that speaker's voice is ordinarily needed. A person who is not familiar with the voice of a putative speaker may be able nevertheless to recognise the speaker's voice by comparison with an established example of that voice if the speaker's voice exhibits sufficiently distinct features to permit an ordinary person to identify the speaker or if the person possesses an appropriate expertise. … In the present case, no question of admissibility arises but a similar issue does arise. If it would be wrong to admit evidence of identification of the voice recorded on Ex D by a witness who has compared the voice with the appellant's voice in making his unsworn statement, it would be wrong to allow the jury to make an identification of the voice on Ex D based on that comparison. In some cases, judges have treated prior familiarity or distinctiveness as conditions of admissibility of voice identification by non-experts in the absence of other means of identification; in other cases, familiarity and distinctiveness have been treated as factors relevant to the weight of the witness' evidence but not its admissibility. Evidence of identification by voice recognition is not a distinct category of evidence, though its probative value may oftentimes be dubious and will vary according to the circumstances of each case. The test of its admissibility must be, in my opinion, one of degree. The prescription of particular conditions of admissibility is not supported by any principle of the law of evidence. Provided a reasonable jury could find, or be assisted in finding, a relevant fact upon consideration of evidence of voice identification that is admissible under the ordinary rules of evidence, there is no reason why the tender should be rejected. The evaluation of evidence on which a reasonable jury could act is a matter for the jury. It exceeds a judge's function to withhold evidence from a jury merely because, on that evidence, the judge would not reach and thinks a jury should not reach a conclusion adverse to the accused beyond reasonable doubt. However, the ordinary rules of evidence confer on a judge a discretion to exclude evidence that is unduly prejudicial, albeit the evidence is otherwise admissible. The exercise of that discretion is designed to avoid a significant risk that the evidence will be misused by the jury in a way that cannot be guarded against by an appropriate warning. As the discretion is designed to avoid the risk of a miscarriage of justice, the exercise of that discretion in practice is apt to lift the level of familiarity or distinctiveness or expertise expected of admissible evidence. Again, that is a matter of degree to be assessed in the circumstances of each case. In the present case, the voice recorded on Ex D was first identified by Detective Sergeant Wilding. A comparison with the appellant's voice at the trial was permitted to confirm or to cast doubt on Detective Sergeant Wilding's evidence and to rebut or to support the appellant's suggestion that Ex H had been fabricated. The jury heard the appellant's accented voice for forty minutes during the making of his unsworn statement and were in a position to assess for themselves whether that auditory experience equipped them to make a comparison with the voice on Ex D. To deny the jury the right to take into account probative material that they had heard with their own ears would have been to impose - or to attempt to impose - an artificial restraint on the jury's employment of their common sense. It would have been as erroneous as it would have been futile to direct the jury to ignore the voice they had heard when the accused made his unsworn statement. There was no reason why, subject to a satisfactory warning, the jury should not have had regard to the sound of the appellant's voice in determining whether the appellant's voice had been recorded on Ex D." (emphasis added) 41 In R v Leung & Anor [1999] NSWCCA 287; (1999) 47 NSWLR 405 the accused were indicted on a charge of having been knowingly concerned in the importation into Australia of not less than a commercial quantity of heroin contrary to s 233B of the Customs Act. Prior to their arrest the police obtained audio recordings of conversations between persons within the premises in which the accused were located when arrested (the "DAT tapes"). According to an interpreter called at the trial the conversations were in Cantonese and Mandarin. After the accused were arrested, one, Wong, participated in a conversation with Federal Police Officers in English. Another accused, Leung, also participated in a short conversation with a Federal Police Officer in English and subsequently in longer conversations with a Federal agent acting as an interpreter and, for Leung's part, presumably in Chinese, whether Mandarin or Cantonese does not clearly appear from the judgment. The conversations between Wong and Leung and the Federal agents were tape recorded (the "police tapes"). 42 Mr Fung, an interpreter, translated the DAT tapes into English. He gave evidence that there were three different voices on them: "M1", "M2" and "M3". He also purported to attribute the voices of M1 and M3 to the accused by comparing the DAT tapes with the police tapes. Leung did not give evidence. Wong did, although it does not appear from the judgment whether he did so in English or in Chinese, through an interpreter. Leung and Wong were convicted. 43 Both Leung and Wong appealed. One of their grounds of appeal was that the trial judge erred by ruling that the interpreter's evidence of voice identification and voice comparison was admissible. 44 Simpson J (with whom Spigelman CJ and Sperling J relevantly agreed) held that the interpreter's evidence was admissible pursuant to s 79 of the Evidence Act as he fell into the category of being an "ad hoc expert". Her Honour referred (at [42]) to the criticism, which she said had some merit, that, in relation to Wong, Mr Fung was comparing a voice speaking Cantonese on the DAT tapes with a voice speaking English on the police tapes, however she did not further consider this issue. In rejecting this ground of appeal, her Honour said: "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. " (emphasis added) 45 In Nguyen v R the Western Australian Court of Criminal Appeal (Malcolm CJ, Anderson and Steytler JJ) considered the issue of voice identification and voice comparison in the context of a complaint by the accused that the trial judge had erred in failing to give the jury appropriate directions with respect to the identification of voices on recordings of intercepted telephone calls. 46 The facts, as taken from the headnote, were that: "The appellant (a businessman with no prior convictions) was convicted of two offences in relation to the importation by mail from Hong Kong of 134.8 grams of pure heroin which arrived in a package at the Perth Mail Exchange. Later there was a controlled delivery of a substituted substance which the appellant accepted. Part of the case against him was that there had been a voice comparison by an interpreter of many calls made to and from the appellant's and another's mobile phones. Some of the calls were incriminating. The interpreter who had not spoken to the appellant identified one of the parties as 'H'. The appellant admitted that he was H in three calls only. The jury had recordings of nine calls including the three in which the appellant admitted he was H ... It was contended on appeal that the judge had failed to give the jury a special warning about voice comparison …" 47 In addition to the interpreter's evidence identifying the appellant as H, it appears (see 368) that the jury was "impliedly, if not expressly, invited to compare for themselves the admitted voice with the putative voice and to come to their own conclusion as to whether the putative voice was the same as the voice which the appellant admitted was his." 48 Anderson J (with whom Steytler J agreed) rejected the appellant's complaint that the trial judge should have warned the jury that it should not embark upon on a voice comparison exercise itself or, if it did, should only do so "with extreme care". His Honour said: "[138] I cannot accept the submission that the jury should have been warned not to embark upon a process of comparison themselves. I see no reason why the jury are not entitled to compare voice recordings in order to come to their own conclusions. Voice recognition is not, of itself, an expert process. As Brennan CJ said in Bulejcik (at 381; 470): 'Recognition of a speaker by the sound of the speaker's voice is a commonplace of human experience.' [139] It is clear that it is permissible for the jury to make their own comparison: Smith (1990) 50 A Crim R 434 at 453-454; see also Barker [2002] WASCA 127 as to how the jury may use exhibits. [140] As to whether the jury should have been given an instruction that they should be careful before concluding that the voices were the same, I do think it would have been better if some such direction had been given. The jury were listening to speakers in a foreign language and they might have been told to bear that in mind in attempting a comparison. On the other hand, it was not the Crown case that the only voice captured on the discs was that of the appellant. In such a case, the danger is that the jury will be overly influenced by the fact that both the putative voice and the accused's voice are of similar accent, when the explanation for that might simply be that it is the Vietnamese way of speaking. However, this is not such a case. In each of the six incriminating intercepts there were two voices in the Vietnamese language, so that not only did the jury have the opportunity to compare the putative voice of the appellant on the discs with his admitted voice, but also to compare and to distinguish (if they could) the admitted and putative voice of the appellant with the voice of 'Tran'. This would bring home to the jury that merely because the voices had a particular cadence, intonation or accent did not mean that the voices were those of the same speaker. …" (emphasis added)

[53]

His Honour then went on to explain why, having regard to the strength of the Crown case, no reasonable jury could have come to any conclusion other than that it was the appellant, not someone else, who was speaking on his telephone to "Tran". 49 Malcolm CJ was also of the view (at 355-356) that the telephone call tapes were admissible as voice comparison evidence and that the "jury were in a position to make their own comparison assisted by Mr Nguyen's expert translation of the telephone calls and his opinion … as a result of listening to the more than 600 telephone calls." 50 Mr Game sought to distinguish Nguyen on the basis that, in that case, the jury was being asked to compare like with like. There is some force in that submission. However Nguyen is germane to the present case insofar as the Court did not consider that the jury was precluded from embarking on a voice comparison exercise in relation to material all recorded in the Vietnamese language. 51 Finally, in R v Solomon [2005] SASC 265; (2005) 92 SASR 331 (at [66]) a case involving a jury engaging in voice comparison to determine whether the accused's voice could be heard speaking English on a number of intercepted telephone calls, Doyle CJ (with whom Duggan and Sulan JJ agreed), held the jury did not require expert evidence to assist it; it was a decision the jury was entitled to make unaided, provided sufficient suitable material was available. 52 The effect of these decisions is that juries have been permitted to engage in a voice comparison exercise in relation to an accused who spoke accented English (Bulejcik) and in relation to Vietnamese calls admitted to be in the accused's voice, with other Vietnamese calls (Nguyen). In Bulejcik Toohey and Gaudron JJ contemplated that jurors might be asked to compare voices of a different nationality or dialect speaking the same language. In Nguyen Anderson J was of the view the jury could undertake its own comparison of the Vietnamese calls, apparently without the assistance of an expert, although he would have preferred the jury to have been told to bear in mind in so doing that they were listening to speakers in a foreign language. That direction, and many others about the peculiar nature of the task in which the jury was being asked to engage, was given in this case. In Leung the fact that the interpreter was comparing Wong's voice in English with voices speaking Chinese was not held to be a bar to the voice identification/comparison exercise he undertook. Moreover Simpson J entertained the theoretical possibility that the jury could have undertaken that exercise itself, although she acknowledged the difficulties posed on the assumption that no member of the jury understood Chinese. 53 None of these cases suggested that it was necessary, as opposed to permissible, to call expert evidence before the jury could undertake a voice comparison exercise and Solomon expressly rejected the proposition that an expert was required. Further, to the extent an "expert" gave evidence in Leung, he was an "ad hoc" expert i.e. "a temporary expert in the sense that by repeated listening to the tapes he ha[d] qualified himself ad hoc": R v Menzies [1982] 1 NZLR 40 at 49. 54 Further, McHugh and Gummow JJ's observations in Bulejcik suggest that they would not have set any different threshold for the admissibility of voice identification evidence than that required for visual identification evidence: see also Carracher, "Voice Identification Evidence", Australian Bar Review, vol 10 (1993) 75, cited by their Honours at footnote (77). 55 That is not to say that the evidence of experts in the field of voice analysis is inadmissible. The admissibility of such evidence was recognised in R v Gilmore [1977] 2 NSWLR 935. In that case Street CJ (with whom Lee and Ash JJ agreed) reviewed American authorities on the question whether voice analysis was a recognised field of expert study and knowledge. His Honour concluded (at 941): "This trend in America, to accept evidence such as Mr Jones came equipped to tender in a case, should, in my view, be matched in this State. The science has developed to the point where, although by no means one hundred percent accurate, it can properly and responsibly be used as an aid in the resolution of contests of identity. Cautionary observations at the conclusion of the judgment in United States v Baller (1975) 519 FED. 2d 463, at pp 466, 467 … are an adequate safeguard against regarding the whole question as passed over to the experts for final answer by them. It is clear that the question will always remain one of fact for a jury properly instructed and duly warned about the dangers that may be inherent in the evidence, and in the scientific processes involved in the particular case in hand . … This study has developed, in my view, to the point where it can, and indeed should in appropriate cases, be made available to tribunals of fact who are concerned with questions of identity of voices." (emphasis added) 56 Gilmore was followed in R v McHardie & Danielson [1983] 2 NSWLR 733 where (at 753-763) the Court of Criminal Appeal (Begg, Lee and Cantor JJ) considered the admissibility of evidence of voice identification from the same witness whose expertise had been under consideration in Gilmore. In McHardie, he had used three methods of analysis of tape recordings: aural identification, a Kay sonagraph and mathematical analysis of some features of the sound spectrograms with a view to accurate conclusions as to their significance. The complaint the Court of Criminal Appeal had to resolve (see 754) was that the method of mathematical analysis alone or in conjunction with computers had not previously been accepted in a court. After a detailed consideration of the technique involved, the Court held (at 763) that that evidence was admissible. 57 Since Gilmore was decided, however, it appears that United States judges have expressed concern that "the 'science' of voice identification might mislead the jury": see US v Smith 869 F. 2d 348 (1989); State v Free 493 So. 2d 781 (1986): Ormerod "Sounding Out Expert Voice Identification", [2002] Criminal Law Review 771, footnote 9. 58 This was noted by Ormiston J in R v Harris (No 3) [1990] VR 310. Expert evidence was given before him suggesting that the reliability of the method of analysis approved in Gilmore and McHardie & Danielson "was considered to be doubtful". On that basis, his Honour suggested (at 314) that there might be grounds for considering the persuasive authority of those decisions in Victoria. 59 R v Smith has now been overtaken by the Evidence Act 1995. Part 3.9 governs the admissibility of identification evidence. Voice identification evidence falls within Pt 3.9: see the Dictionary to the Act. Its admission is governed by s 55(1) of the Act which makes relevant evidence admissible and requires no threshold question to be resolved: R v Adler [2000] NSWCCA 357; (2000) 52 NSWLR 451 at [16] - [18] per Smart AJA (with whom Heydon JA and Ireland AJA agreed). Where it is admitted a direction should be given in accordance with s 116 and, if sought, a direction in accordance with s 165: Adler (at [35]) per Heydon JA; see also R v Riscuta; R v Niga [2003] NSWCCA 6 at [34] per Heydon JA (Hulme J and Carruthers AJ agreeing). In my view the trial judge's directions complied with s 116. No s 165 direction was sought.

[54]

60 In R v Hersey noted in [1998] Crim LR 281 the Court of Appeal (Swinton LJ, Harrison J and the recorder of Bristol) said: "As a matter of generality, in cases of voice identification there will undoubtedly be cases calling for the assistance of an expert and others in which the issues are within the competence of the jury. It was important there should not be a proliferation of expert evidence … it was in each case for the judge to decide if the issue was one on which the jury could be assisted by an expert." 61 In R v Chenia the appellant was convicted of offences of conspiracy to defraud and conspiracy to supply controlled drugs after two separate trials. The reported decision concerns his appeals from both convictions but the only matter relevant to the present case concerns his conviction on the drugs counts. In the drug trial the prosecution led evidence of surveillance tapes of conversations recorded at the golf club from which the drug operation was allegedly being conducted. One hundred and seventy-nine tape recordings were made, some in English and some in Gujarati. A compilation from the tapes was transferred to a compact disc to enhance sound quality, then a transcript made from the CD and put before the jury. Part of the transcript was a translation from Gujarati. The jury listened to this CD, insofar as it was in English, using headphones. The prosecution relied upon the contents of the conversations as implicating the appellant in the drugs offences: see [94]. 62 The prosecution had sought to attribute particular passages on the tapes to the appellant by relying on expert evidence from two forensic experts in phonetics, however their report was so long and served so late that this attempt was abandoned: see [95]. 63 Nevertheless it appears (see [96]) that counsel for the appellant agreed that the jury should have the transcripts and could listen to the CD. There was no agreement as to who was speaking on the tapes. At some points the transcript distinguished between "AM" (Asian male) and "EM" (English male) but at other points attributed the conversations to the appellant by name. The jury was directed (see [97]) to "use [its] judgment … to determine who was talking about what, why and with whom" on the parts of the CD recorded in English. Three police officers also gave evidence apparently purporting to identify the appellant as one of the speakers as, too, did two witnesses who knew the appellant. 64 Clarke J (who delivered the judgment of the Court) concluded from the summing up that: "98 It appears to us from those passages that the jury were being asked to consider the contents of the tapes in a number of ways. In each case they were asked to consider who was talking with whom and about what. In the first place they were asked to use their own judgment to determine those questions. Secondly they were asked to consider the evidence of the three police officers who had listened to the tapes and thirdly they were asked to consider the evidence of Mr Allcroft and Miss Bentham and indeed of the appellant himself. 99 The judge did not however give the jury any direction as to how they should approach the evidence in so far as it was relied upon as evidence as to who was speaking. Mr Spencer submits that they should have been warned of the dangers of identifying a person by his or her voice. He relies upon a number of decisions of this court to that effect. They are R. v Hersey [1998] Crim LR 281, which was decided before the trial in this case, and R. v Gummerson and Steadman [1999] Crim LR 681 and R. v Roberts [2000] Crim LR 183, which were reported in the Criminal Law Review after the trial. 100 As the notes under the heading 'Identification by Voice' in the JSB directions of August 2000 note, in the first two of those cases it was held that in cases of identification by voice the judge should direct the jury by the careful application of a suitable adapted Turnbull [(1976) 63 Cr App R 132] direction and in Roberts this Court referred to academic research indicating that voice identification was more difficult than visual identification and concluded that the warning given to the jury should be even more stringent than that given in relation to visual identification. In the present case the judge did not give the jury any warning of the dangers of identifying the speaker on the CD by voice. 101 In our judgment he should have done so, especially since, quite apart from the question whether the jury should have been directed as to how they should approach the recordings, different considerations apply to the evidence of the police officers, the evidence of Mr Allcroft and of Ms Bentham." 65 Clarke J also commented on the exercise in which the jury was permitted to engage as follows: "106 The other aspect of this part of the case about which we have some concern is whether it was appropriate to invite the jury to make their own judgment on a number of matters including who was speaking and what was being said. We question whether it was appropriate to invite the jury to identify who was speaking on the recording by comparing what they could hear on the recording either with another voice on the recording or, say, with the appellant's voice when he gave evidence in the witness box. We see no reason why they should not listen to the recording to try to identify what was said. For example if there was a dispute, as there might for example be between experts, as to whether the word spoken was 'capsule' or 'tractor', we do not see why the jury should not listen to the CD and form a view of their own, subject to appropriate directions which would depend upon the facts of the particular case. 107 Equally there is of course no reason why the jury should not compare what was said on the CD with other evidence, as for example evidence that the appellant was Ash. However, we do not think that a jury should, as it were, be asked to be their own voice expert. We have reached the conclusion that, on the particular facts of this case, where the jury were unassisted by expert evidence, they should have been warned that they should not compare one voice with another by comparing the characteristics of each because of the dangers of doing so." 66 The particular facts of the case to which Clarke J appears to have been referring in this passage were (see [104]) that the appellant and Mohammed were brothers and had voices which could have been confused with one another. The appellant's case was that, while his brother may have been involved in drugs, he was not. 67 The Court concluded (see [98], [110]) that as the trial judge did not give the jury any direction as to how they should approach the taped evidence insofar as it was relied upon as evidence as to who was speaking, nor as to the dangers of identifying who was speaking on any part of the recording, it could not be sure that the jury would have convicted the appellant if given appropriate warnings. The drug convictions were quashed. 68 I do not regard Chenia as having laid down a general rule for English courts that jurors are not permitted to engage in a voice comparison exercise unless expert evidence is called. The conclusion turned on the facts of that case. 69 There are, apparently, two "expert" techniques used to analyse voice samples, acoustic analysis and audio analysis: Ormerod, "Sounding Out Expert Voice Identification" (op cit, at 773). In R v O'Doherty the Northern Ireland Court of Appeal held that in cases involving voice identification where the prosecution called expert evidence, it could not confine it to auditory analysis, but must adduce expert evidence of acoustic analysis as well. 70 In R v O'Doherty the appellant was convicted of aggravated burglary and causing grievous bodily harm with intent. The prosecution called evidence from a police officer that he recognised the recorded voice of a male caller to ambulance control as the appellant's. It also called evidence from Mrs McClelland, an expert witness on voice identification, that it was highly probable that the appellant was that caller. In addition, the jury was invited to compare the taped call and the voice of the appellant as he gave evidence in court to determine who was speaking in the ambulance call. On appeal the Court of Appeal admitted fresh evidence from two voice identification experts, Dr Nolan and Dr French. One of the experts concluded that there were few differences between the voice of the caller to ambulance control and the voice of the appellant. Another said it was rather more probable than not that the appellant had made the call. Both those experts had carried out auditory and acoustic analysis of the call to reach their conclusion. The expert who had given evidence at the trial had not carried out a full acoustic analysis and expressed scepticism as to its value. 71 Nicholson LJ who gave the judgment of the Court set out the expert evidence in detail. It is unnecessary to repeat it. The Court concluded (at [65]) that if the jury had heard the evidence of the two experts whose opinions were admitted as fresh evidence in the Court of Appeal, the opinion of the expert who gave evidence at trial "would almost certainly have been eliminated." The Court added: "56 The decision in R v Robb (1991) 93 Cr App R 161 was to the effect that a witness who was a phonetician and carried out auditory analysis only was well qualified by academic training and practical experience to express an opinion on voice identification. Although the technique relied on by Dr Baldwin, the expert who gave evidence in that case, represented a minority view in his profession, he had reasons for preferring to use that technique and he had not, on the facts, been shown to be wrong; the appellant was not in any way unfairly prejudiced by the admission of that admissible evidence the Court of Appeal held. Mrs McClelland who gave evidence for the Crown at this trial gave her evidence based on the same technique as the expert in Robb . We do not say that her evidence was inadmissible, as presented to the Court in 1997 but it is subject to our later comments. 57 Time has moved on. According to the report of Dr Kunzel, a distinguished academic and forensic expert in voice identification, prosecutors in the rest of Europe invariably present auditory analysis (in which Mrs McClelland specialises) and quantitative acoustic analysis, including formant analysis. 58 It transpired during the course of the hearing that Mrs McClelland has been carrying out such acoustic analysis since 1997 despite her scepticism and Dr French knows of only one expert in the United Kingdom who relies solely on auditory analysis. Acoustic analysis in 1991 involved the use of expensive computers. Now it can be carried out by the use of an ordinary computer with suitable and readily available software fitted to it. 59 Despite Mrs McClelland's expression of scepticism we are satisfied, having heard Dr Nolan and Dr French and read the report of Dr Kunzel, that in the present state of scientific knowledge no prosecution should be brought in Northern Ireland in which one of the planks is voice identification given by an expert which is solely confined to auditory analysis. There should also be expert evidence of acoustic analysis such as is used by Dr Nolan, Dr French and all but a small percentage of experts in the United Kingdom and by all experts in the rest of Europe, which includes formant analysis. 60 We make three exceptions to this general statement. Where the voices of a known group are being listened to and the issue is, 'which voice has spoken which words' or where there are rare characteristics which render a speaker identifiable -- but this may beg the question -- or the issue relates to the accent or dialect of the speaker (see R v Mullan [1983] N.I.J.B. 12) acoustic analysis is not necessary. … 61 A second plank (out of four) was 'the comparisons that the jury themselves could be invited to make having heard the ambulance control tape and the voice of the appellant as he gave evidence in Court'. 62 In R v Bentum (1989) 153 J.P. 538 the Court of Appeal in England held that the jury should be allowed to hear any tape recordings for themselves, so that they may form their own judgment of the opinions on voice identification expressed by experts or others claiming to have recognised the voice. 63 In the present case the Court of Appeal held that the issue was whether the jury considered that the voice on the ambulance control tape was the voice of the appellant. Expert evidence is received when the subject is one upon which competency to form an opinion can only be acquired by a course of special study or experience and it has been accepted that expert evidence is receivable in cases of voice identification. Expert evidence is rarely, if ever, admitted in cases of visual identification. The tribunal of fact is considered to be in as good a position to assess CCTV footage or video tapes or photographs as witnesses: See R v Murphy and Maguire [1990] N.I. 306. It seems to us that if evidence of voice recognition is relied on by the prosecution, the jury should be allowed to listen to a tape-recording on which the recognition is based, assuming that the jury have heard the accused giving evidence. It also seems to us that the jury may listen to a tape-recording of the voice of the suspect in order to assist them in evaluating expert evidence and in making up their own minds as to whether the voice on the tapes is the voice of the defendant…

[55]

65 We are satisfied that if the jury is entitled to engage in this exercise in identification on which expert evidence is admissible, as we have held, there should be a specific warning given to the jurors of the dangers of relying on their own untrained ears, when they do not have the training or equipment of an auditory phonetician or the training or equipment of an acoustic phonetician, in conditions which may be far from ideal, in circumstances in which they are asked to compare the voice of one person, the defendant, with the voice on the tape, in conditions in which they may have been listening to the defendant giving his evidence and concentrating on what he was saying, not comparing it with the voice on the tape at that time and in circumstances in which they may have a subconscious bias because the defendant is in the dock. We do not seek to lay down precise guidelines as to the appropriate warning. Each case will be governed by its own set of circumstances. But the authorities to which we have referred emphasise the need to give a specific warning to the jurors themselves." (emphasis added) 72 The Court of Appeal's preference for acoustic analysis over auditory analysis has been criticised on the basis that even that evidence is "of questionable reliability": Ormerod, "Sounding Out Expert Voice Identification" (op cit, at 779). Ormerod points to American research of acoustic voice analysis which demonstrated that "the degree of accuracy, and the corresponding error rates, of [acoustic] voice identification vary widely from case to case" and (at 781) points out "[t]he technique has divided academic and judicial opinion". In US v Drones 218 F. 3d 496 (2000) the technique was described as a "dwindling science": Ormerod, (footnote 73). Ormerod observes (at 789) that the Court of Appeal paid "little attention to the potential unreliability of" acoustic analysis. 73 I have earlier noted the appellant's reliance on Chenia to submit that expert evidence was required in this case. In addition, Mr Game submitted that the necessity for expert evidence was supported by the risk that lay evaluation of such evidence might involve a number of potential errors, including what Nicholson LJ identified in R v O'Doherty (at [65]) as the "subconscious bias because the defendant is in the dock" and a failure to comprehend the process of analytical reasoning required satisfactorily to carry out a voice comparison test. He argued that in the absence of knowledge by the jurors of the relevant foreign language, the "subconscious bias" effect was likely to have a greater distorting effect.

[57]

77 Moreover, in Bulejcik, Brennan J proscribed the development of "particular conditions of admissibility" in cases of voice recognition. So too, at least inferentially did McHugh and Gummow JJ. Harris also rejected the proposition that only experts could give evidence of voice recognition. 78 Furthermore Ormerod's articles indicate there is a divergence of view in overseas jurisdictions concerning the reliability of methods of expert voice analysis. These views appear to have developed since R v Gilmore was decided, or at least did not come to the attention of that court. I would not be prepared to make any binding determination about expert evidence in voice identification cases without a substantial body of material demonstrating first, the necessity for such evidence and the circumstances for which such a rule should be prescribed and secondly, the nature of that expert evidence. 79 The test which the trial judge was required to apply to determine whether to admit the voice comparison evidence was whether "the quality and quantity of the material [was] sufficient to enable a useful comparison to be made": Bulejcik at 394-395. While the trial judge did not give reasons for admitting the NRMA call and the Igbo calls, Bulejcik was debated before her and she was clearly alive to this issue. She heard the Igbo calls and the NRMA call prior to making her final ruling and, it must be inferred, concluded that the material satisfied the Bulejcik test. 80 Like Toohey and Gaudron JJ, I would be slow to depart from her Honour's assessment that the material was of sufficient quality and quantity for the jury to be permitted to make a comparison. 81 As I have earlier noted, Mr Game did not submit in his primary written submissions, nor in oral argument, that if the telephone calls were admissible, her Honour's directions were in any way deficient. However, in his written submissions filed after the hearing of the appeal he argued that the jury should have been given the warning referred to in R v O'Doherty (at [65]). 82 As to the specific directions set out in that passage, CAR 4 applies. No such direction was sought at trial. However it is relevant to note that in her summing up the trial judge drew the jury's attention to Mr Spencer's robust submission: "… that it was ridiculous to ask you to perform the task of comparing English with Igbo. He used the analogy of comparing apples with oranges. He suggested to you that you are not experts linguistics (sic) and reminded you that nobody familiar with Igbo has given such evidence. You simply have not heard any evidence from the interpreters or from a linguist. He suggested to you that you have been set an impossible task." 83 While that was not a direction from her Honour so that it did not have "the authority of the judge's office behind" (Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 562) in the absence of a request by Mr Spencer for a specific direction, it nevertheless sufficed to draw the jury's attention (if that be necessary) to the difficulties of the exercise in which it was being asked to engage. 84 It should also be noted that in O'Doherty the Court heard detailed evidence from three experts in voice recognition who disagreed as to the necessity for acoustic analysis. While that was a technique used by many experts in the United Kingdom and, apparently, by all experts in Europe (see [59]), no basis has been laid in the present case for this Court to make any decision defining the nature of the expert evidence which, on Mr Game's submission, ought to have been led before the telephone calls were admitted. 85 As to the last part of the suggested O'Doherty direction, as far as I am aware Australian authority does not recognise a "subconscious bias because the defendant is in the dock" effect - a view the Court in O'Doherty appears to have adopted from Dr Nolan's evidence: see [14]. But even if it did, that would have to be weighed against the concern that a jury may be overawed by expert evidence "and attach greater weight to it than it is capable of bearing": R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317 at [29] per Mason P (with whom Dowd J agreed). 86 In my opinion the appeal against conviction should be dismissed.

[58]

Sentence 87 The appellant seeks leave to appeal against his sentence. 88 In her remarks on sentence, the trial judge concluded that she was satisfied beyond reasonable doubt that the appellant was not low in the hierarchy if, as she observed, "indeed there was a hierarchy in this importation". She identified the factors which supported that proposition including his involvement in telephone calls organising the importation with overseas parties, the discussion of the type of cocaine to be sent and what would be suitable for the illicit drug market in Australia and that he was the person who was to take possession of the parcel containing the cocaine as it was sent to the Sydney post box. 89 The appellant did not give evidence on sentence so her Honour relied upon the reports tendered to examine the appellant's subjective circumstances. The appellant does not contend that her Honour did not take sufficient account of those matters so I will pass over them. 90 Insofar as the consequence of the assault on the appellant when first in custody was concerned, the trial judge acknowledged that she did not know whether he would be kept in strict protection for the duration of his sentence, but took into account that that was likely. She also took into account the fact that although the appellant speaks English he would be somewhat isolated in custody because of his different cultural background. 91 Her Honour also took into account the considerable delay in the matter being finalised and the fact that the appellant had remained in custody after his arrest in late 2000 until 14 March 2001 when he was released on bail. 92 Mr Game submits that the trial judge gave insufficient weight to the fact that the appellant was raped violently shortly after first going into custody, an incident which brought on a severe psychotic reaction leading Dr Westmore to later make a provisional diagnosis of schizophrenia. The appellant was first treated in the Prison Hospital and later placed in strict custody. It was submitted he is likely to serve the remainder of his sentence in some form of protective custody. 93 Mr Game submitted that this incident should have led to a real measure of leniency. He argues that although the trial judge purported to have regard to this issue, the length of the sentence indicated that she must have given it little or possibly no weight. 94 Mr Game's second point related to what was said to be the inordinate delay between charge and trial attributable, he contended, to the fact that the prosecution was looking for an Igbo interpreter. Again, he contended, that while the trial judge purported to have regard to this delay, the length of the sentence suggested that she gave it no weight at all. 95 Mr Game also submitted that the delay had resulted in a significant prejudice to the appellant in that the Crown had argued in its sentencing submissions that the level of sentence should be higher than the low range in R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340. There the range for a head sentence for a courier was five to seven years. The Crown had contended, however, that the appellant was more than a courier and, secondly that the repeal of s 16G of the Crimes Act 1914 (Cth) meant that the sentence should be higher than those in Wong. The trial judge appeared to have accepted this submission. 96 Mr Game argued that had it not been for the Crown delay the case would have been dealt with well before 16 January 2003, the date s 16G was repealed. He argued that the situation was analogous to that dealt with by the High Court in Radenkovic v R [1990] HCA 54; (1990) 170 CLR 623 and T (1990) 47 A Crim R 29. He contended that if the Radenkovic principle was applied, then the primary judge's reliance on the R v Rivadavia [2004] NSWCCA 284; (2004) 61 NSWLR 63 line of authorities was misplaced. The appellant should have got the benefit of the lost s 16G remissions, or to put it another way, the guideline sentences in R v Wong ought still have applied to him. 97 Mr Game contended, in the alternative, that if the trial judge had had proper regard to these factors and error was not otherwise discernable, she must have taken an excessively high starting point given the ultimate sentence imposed and that the sentence was manifestly excessive. 98 The Crown submitted that the trial judge correctly sentenced the appellant on the basis that his role was not low in the hierarchy in the importation. It contended the sentence was not manifestly excessive and that the trial judge had expressly, and appropriately, taken into account the factors upon which the appellant relies. Insofar as the repeal of s 16G is concerned, the Crown notes that it had been repealed by the time the appellant came to be sentenced and it would have been inappropriate to take it into account. It distinguishes Radenkovic and T, in each of which the accused had been sentenced prior to the change in legislation and the issue was what provisions applied if the accused was to be re-sentenced after appeal. Further, the Crown notes that the s 16G point was not raised before the trial judge.

[62]

[19] Moreover, they establish that it would be inappropriate to approach the sentencing exercise upon a broad arithmetic approach that would require the pre-repeal sentencing range (which may have been influenced by sentences imposed following reliance upon the guideline in R v Wong (1999) 48 NSWLR 340, 108 A Crim R 531 before the successful appeal from that decision ( Wong v The Queen (2001) 207 CLR 584), to be adjusted by some bare arithmetic formula, let alone one that would call for its increase by the factor of 50%, in order to restore an equivalence with the pre-repeal range. [20] I am not persuaded that R v Kevenaar or either of the Dang decisions should be understood as suggesting that there should be an automatic adjustment in the order of 50%, since to do so would be to resort to the mathematical approach which was accepted, in each decision, to be inappropriate. In this regard it needs to be born in mind that the guideline judgment reflected a range, and acknowledged that, in appropriate cases, there could be a departure above or below it. [21] Judges were not unaware, during the period when s 16G was in force, that it was a somewhat beneficial provision, in that it gave an allowance for remissions which were as yet unearned, compared with the position of State offenders, who needed to earn remissions through good conduct, in those jurisdictions where a remission system existed. That was a matter properly taken into account by Judges and it does not follow that the starting points selected in the pre-repeal cases involving Federal offenders would necessarily have been the same had the section not been in force. So much was recognised by Smart AJ in R v Dujeu. [22] What the line of authority mentioned does establish, in my view, is that care needs to be taken when reference is made to individual pre-repeal decisions, or to the pre-repeal range which is disclosed in the sentencing statistics. This follows from the circumstance that those earlier sentences, and the guidelines which were proposed in R v Wong, were predicated respectively upon the basis that by reason of s 16G there had been, or would be, a discount of the kind referred to in Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370, 51 A Crim R 123, as being necessary for sentences passed in those States which lacked a remissions system. [23] That discount, as the decision in El Karhani and subsequent decisions made clear, was never regarded as involving a fixed or arbitrary ratio. Rather, it was considered to be an appropriate reference or starting point, it still being necessary to pass a sentence that properly took into account the prescribed maximum penalty, the gravity of the offence, and the objective and subjective considerations relevant to the particular offender. [24] What is now required by s 16A(1) of the Crimes Act is that a sentence be imposed that 'is of a severity appropriate in all of the circumstances of the case', including those that are identified in s 16A(2) and (3). The approach required by this section does not materially differ from that held to be appropriate in R v Maclay (1990) 19 NSWLR 112, 46 A Crim R 340, in the context of the introduction into New South Wales of the former Sentencing Act 1989 (NSW)." 107 The position was considered most recently in Clarkson v R [2007] NSWCCA 70 at [265] where Howie J (with whom Beazley JA and Sully J agreed) described the effect of the line of authority to which I have referred as being that "there is no longer any reduction of sentences because of the absence of remissions but that sentences to be imposed after the repeal of s 16G were not to increase automatically by a third". His Honour rejected a submission that the sentencing judge ought to have taken a different approach because the offences occurred before s 16G was repealed. 108 This line of authorities demonstrates that it is not open to the Court to consider applying an approach analogous to Radenkovic. It was appropriate for the Crown to contend at trial that the appellant's sentence should be higher than the low range in Wong and that the appellant should not be given the benefit of the pre-s 16G repeal sentence regime. To the extent there was delay that was taken into account by the trial judge and, as I have said, no error has been demonstrated in her consideration of that issue. 109 Finally, in my opinion the sentence is not manifestly excessive. 110 The appellant has not demonstrated any error in the sentence. Leave to appeal against the sentence should be granted, but the appeal should be dismissed. 111 GROVE J: have had the advantage of reading the judgment of McColl JA in draft form. I gratefully adopt her summary of the evidence and the course of trial as well as various references to authority. As her Honour has observed, there is no relevant authority on the question of whether a jury can be permitted to engage in an exercise of comparing the accused's voice speaking in English (in this instance comprising the content of a single intercepted telephone conversation and the giving of evidence) with voices speaking in a foreign language (in the content of some twenty seven intercepted telephone conversations) in order to identify the accused as one of the speakers in that foreign language. 112 As mine is a minority view I can record briefly my reasons for not sharing that of the majority. McColl JA has comprehensively referred to such reported cases as might be of assistance in reaching a conclusion upon the issue now for determination. It is not necessary to traverse the same material save to add an observation that there appears to be considerable persuasive force in the recapitulation of the scientific analysis which can be read in the judgment of Nicholson LJ in R v O'Doherty [2003] 1 Cr App R 5. I do not, of course, suggest that it can be utilised for the purpose of deciding the current appeal. It is nevertheless fortifying that my conclusion is not inconsistent with it. His Lordship, inter alia, recited from the statements of Dr Nolan of Cambridge University, some significant passages being: "Auditory identification of speakers known to untrained listeners, contrary to popular belief, yields high error rates even under ideal listening conditions. …….. The jury was neither in a position to apply the technique required to reach a reliable view on speaker identity, nor would they have been free of inadvertent psychological bias. It must be said at the outset that it is rarely if ever possible to achieve certainty in identification by voice. A person's voice is quite unlike a fingerprint. A fingerprint is unchanging and unique, a voice is variable, and it has not been scientifically proven how extensively features of the voice are shared among members of a population. Nonetheless a phonetician, using trained auditory skills and acoustic analysis can often make observations which can weight for and against the possibility of two recordings being from the same individual." 113 McColl JA's key conclusion is that it is not open to this Court to establish a prescriptive rule that voice comparison evidence can only be admitted where supported by expert testimony. I agree that, in accord with authority, no such restriction exists where the tribunal of fact is comparing voices in its own language, which, in the courts of New South Wales, would inevitably be English. In my view, permitting the comparison of one language with a different language without suitable material which I would contemplate as evidence of someone either possessing relevant expertise or familiar with the voice of the accused in the language used where identity is challenged (an "ad hoc" expert) is not to establish a prescriptive rule but, to the contrary, to extend the scope of what is permissible beyond recognised boundaries. 114 The general incantation of the admissibility of matters of relevance in s 55 of the Evidence Act 1995 and the inclusion of "aurally" as a species of identification evidence defined in the dictionary to that Act does not, in my opinion, establish a statutory scheme governing the admissibility of voice identification evidence without restriction. It is noteworthy that the statute expressly preserves the common law where it is itself relevantly silent: see s 9. 115 I do not agree that the conclusion of the majority can be derived by analogy from the Australian authorities. Where foreign language was involved, expert evidence (ad hoc or otherwise) was tendered. 116 In Nguyen v R [2002] WASCA 181; (2002) 131 A Crim R 341 Malcolm CJ observed (at 349): "In the present case the jury were not asked to compare the appellant's voice as they heard it in the courtroom with another voice recorded in a different context and come to their own conclusion. They were asked to accept the evidence of a person familiar, both with the Vietnamese language and by listening to some 600 telephone conversations giving him experience with voices on numerous tapes, nine of which were exhibits, who identified the voice of the person referred to as Mr Huy on the tapes as being the voice of one and the same person, namely, the appellant, whose mobile telephone was used in all of the 600 or more telephone calls which had been intercepted, nine of which were telephone conversations with Mr Tran."

Korgbara v Regina

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Judgment (66 paragraphs)

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Cases Cited (31)

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