Li v Regina; Regina v Li

LOWER COURT District Court JURISDICTION : LOWER COURT 99/11/0532 FILE NUMBER(S) : LOWER COURT Shadbolt DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60206/03 60510/02

IPP JA WHEALY J HOWIE J

Thursday 23 October 2003 ALAN SIU LUN LI v REGINA REGINA v ALAN SIU LUN LI FACTS The appellant had been convicted, after a trial by jury, of one count of being knowingly concerned in the importation of prohibited imports (a commercial quantity of heroin) contrary to s 233B(1)(d) of the Customs Act 1901 (Cth), and was sentenced to 12 years imprisonment with a non-parole period of 9 years. The appellant appealed against his conviction on several grounds (addressed below) and the Crown appealed against the sentence on the ground that it was manifestly inadequate.

The expert voice similarity opinion evidence which established that his voice spoke the incriminating words on tape number 6 should not have been admitted (appellant's grounds numbers 1, 2 and 3 concerning evidence presented by Mr Stephen Chan, Sergeant Tat Lee and Dr John Peter Gibbons respectively);

His Honour failed to adequately warn the jury as to the dangers inherent in voice similarity evidence (ground number 4);

Detective Watson's evidence concerning the identification of the appellant in surveillance materials should not have been admitted (ground number 5);

His Honour failed to adequately warn the jury of the dangers inherent in the visual identification evidence given by Detective Watson (ground number 6);

The trial miscarried by reason of cumulative effect of the errors referred to in grounds numbers 1 to 6 (ground number 7); and

That the verdict was unreasonable or could not be supported by evidence.

1.1. Mr Chan's evidence was correctly admitted by the trial judge. Mr Chan's evidence was not inadmissible due to being irrelevant for reason that the tapes were available to the jury and the jury could have made the comparisons for themselves, as evidence of ad hoc expertise is admissible: R v Butera (1987) 164 CLR 180; R v Leung (1999) 47 NSWLR 405. It was appropriate for the jury to hear identification evidence from a person who understood the words spoken: Simpson J in R v Leung (1999) 47 NSWLR 405 at 414.

1.2. Mr Chan's evidence was not inadmissible due to its probative value being outweighed by any danger of unfair prejudice to the defendant, nor was Mr Chan's evidence weak or tainted as alleged by the appellant. Other matters raised by the appellant against admissibility of Mr Chan's evidence were matters for the jury and/or did not carry any weight under s 137 of the Evidence Act 1995.

1.3. Issue raised by the appellant concerning questions of propriety about voice identification and an analogy between voice identification and physical identification by way of photographs or police line-ups were limited, without effect, distinguishable under s 114(1) of the Evidence Act, and not substantiated: R v Adler (2000) 116 A Crim R 38.

2.1. Arguments raised in relation to Sergeant Lee's evidence which concerned matters of weight were essentially matters for the jury, and none of these points gave rise to any substantial danger of unfair prejudice against the appellant. Further, a risk of bias is no reason not to admit the evidence of an expert: FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33; Collins Thomson v Clayton [2002] NSWSC 366; and Kirch Communications Pty Ltd v Gee Engineering Pty Ltd [2002] NSWSC 485.

3.1 Arguments raised in relation to Dr Gibbon's evidence that concerned matters of weight were essentially matters for the jury, and none of the points raised gave rise to any substantial danger of unfair prejudice against the appellant nor were they factors that would bear on the exercise of a discretionary use of s 137 of the Evidence Act.

3.2. Cross-lingual comparisons did not in this case give rise to any significant problem that would render the evidence inadmissible due to any lack of probative value.

4. Failure to warn the jury as to dangers inherent in voice similarity evidence

4.1. Shadbolt DCJ gave strong warnings to the jury in relation to the voice identification evidence which were more than adequate.

5. Visual identification evidence of Detective Jonathan Tony Watson

5.1. Detective Watson's evidence went to an issue about the presence or absence of some identifying feature other than one apparent from observing the accused on trial and was therefore admissible: Smith v The Queen (2001) 206 CLR 650.

5.2. No relevant prejudice to the appellant arose from Detective Watson's disclosure to the Court that he had undertaken surveillance of the rooms occupied by the appellant, as not only had similar evidence already been led, but such evidence is not inadmissible on discretionary grounds.

5.3. Detective Watson's evidence was not inadmissible under s 137 of the Evidence Act, and other allegations against its admissibility by the appellant were either without substance, weight, relevance or were matters for the jury.

6. Failure to warn the jury of the dangers inherent in the visual identification evidence presented by Detective Watson

6.1. Shadbolt DCJ warned the jury as required under s 165(2) of the Evidence Act on more than one occasion.

7.1. Having rejected each ground of appeal, the other two grounds asserting a miscarriage of justice necessarily fail, and no other errors or defects in the trial proceedings were found.

8.1. The Crown contended that there was a lack of contrition on the part of the appellant. The Crown also contended that the trial judge's 'starting point' in regard to the possible head sentence of 24 years was erroneous and should have been 30 years, and that R v Chan [2002] was analogous with respect to the similar weight of heroin involved.

9.1. The starting point for sentencing should not have been less than 30 years in view of the degree of criminality involved in the appellant directing the criminal enterprise.

9.2. Due to the selective and limited nature of assistance given by the appellant to the authorities that a discount of 25% in sentencing was over-generous.

3. Set aside sentences imposed by Shadbolt DCJ and in lieu thereof impose a head sentence of 15 years imprisonment with a non-parole period of 11 years 3 months. Based on commencement date of 25 August 2001 (as determined by Shadbolt DCJ) the head sentence will expire on 24 August 2016 and the non-parole period on 24 November 2012.

IN THE COURT OF CRIMINAL APPEAL 60206/03 60510/02

IPP JA WHEALY J HOWIE J

Thursday 23 October 2003 ALAN SIU LUN LI v REGINA REGINA v ALAN SIU LUN LI Judgment 1 IPP JA:

The conviction and sentence 2 Alan Siu Lun Li (the appellant) was convicted, after a trial by jury, of one count of being knowingly concerned with the importation into Australia of not less than the commercial quantity of heroin. 3 The trial judge, Shadbolt DCJ, sentenced the appellant to 12 years imprisonment with a non-parole period of 9 years. The sentences were ordered to commence on 25 August 2001. Accordingly, the head sentence expires on 24 August 2013 and the non-parole period on 24 August 2010. 4 The appellant appeals against his conviction on several grounds detailed below. The Crown appeals against the sentence on the ground that it was manifestly inadequate.

The circumstances of the offence 5 Early in 1998, police in Thailand discovered that a concealed shipment of heroin had been lodged for transport to Australia at the offices of D H L Freight Forwarders in Bangkok. The shipment involved 3,995.9 grams of gross heroin, the pure amount being 2,495.6 grams. The value of the heroin on a wholesale basis was between $410,000 and $470,000. 6 The heroin was made up of a number of blocks, embossed with the figures 999. The heroin blocks were hidden in hollowed out computer books. The computer books had been delivered to the Bangkok offices of D H L Freight Forwarders for shipment to Australia. 7 The Australian Federal Police were alerted to the proposed shipment and, with the co-operation of the Thai police, the heroin was permitted to be conveyed to Sydney. In Sydney, the police removed the heroin from the computer books and substituted it with another substance made up to look identical to the original blocks of heroin. The substitute blocks, too, had the figures 999 embossed upon them. 8 The addressee of the heroin was one Mr Lee of 86 Liverpool Road, Summer Hill. One Mr Tack Lee Pang received the heroin. Pang subsequently gave evidence against the appellant. Pang explained that the heroin had been consigned to Sydney pursuant to a scheme involving a number of people. Pang, himself, had been offered the task of courier when in Kuala Lumpur. He was given flight tickets and instructions together with the necessary visa. He left for Sydney on 31 March 1998 to await delivery of the heroin. 9 In Sydney Pang met one John Kook, who took him to the Summer Hill address. Pang moved to another hotel and then he was ordered by a note to move to the Travelodge at Camperdown. There, an advance booking had been made for him. From time to time Pang was given money that he gambled away whilst he waited to play his part. 10 Kook was Pang's controller. He met with Pang and directed Pang's movements and gave him instructions in regard to the receipt of the heroin at Summer Hill. He took delivery of the heroin from Pang. Another person said by the Crown to be involved was one Mei. A charge against Mei in relation to the heroin transaction did not proceed as it was no-billed by the Commonwealth Director of Public Prosecutions. The Crown contended that the appellant gave instructions to Kook and Mei and controlled the enterprise. 11 A neighbour at the Summer Hill premises informed Pang that he had seen plainclothes policemen in the vicinity. This disturbed Pang who telephoned Simon, the man who had given him the job in Kuala Lumpur. Simon reassured Pang and told him to get on with the job. 12 The parcel of computer books containing the substituted heroin eventually arrived in Sydney and Pang handed it over to Kook. He had been instructed to do so. Pang then left for the airport where he was arrested. 13 While employed in the enterprise, Pang was given over $5,000. Of this sum, $1,900 was for someone else. Thus, Pang received about $3,000 for himself. 14 At about the time that Pang was arrested, Kook was arrested at Mitchell Road, Alexandria. There the computer books were found. They were empty. The substituted heroin had been removed. 15 Throughout the period that Pang was in Sydney attempting to fulfil his duties as courier, the Australian Federal Police carried out various forms of surveillance. This involved visual observations, telephone intercepts and video surveillance of various persons, including Pang and the appellant. 16 The Crown contended that the appellant had played an important and supervisory role in the criminal enterprise. The Crown case in this regard was based substantially on the surveillance evidence. Important aspects of this evidence depended on the reliability of voice identification by witnesses called by the Crown and visual identification by a police witness, Detective Watson. 17 Video and audio tapes produced in consequence of the surveillance undertaken constituted powerful evidence tending to establish the appellant's guilt. 18 Words spoken by a speaker recorded on one particular tape, referred to at the trial as tape 6, indicated that the speaker knew that the heroin blocks had been substituted and was seeking to have the substituted blocks buried somewhere. The speaker indicated that he did not know who had substituted the material but he was not then prepared to blame the police. He commented on the numbers 999 embossed on each block and expressed the view that it was unlikely that the police would go to the trouble of reproducing such detail. Expert witnesses identified the speaker as the appellant. 19 Detective Watson identified the appellant as the person who delivered the envelope to Pang's room. That evidence was significant, particularly when coupled with what was said to be the appellant's voice on tape 6 indicating shortly thereafter that money had been delivered to Pang. 20 Apart from the evidence that depended on the voice and visual identification, there was other evidence, not in dispute, that linked the appellant to the offence and to the managerial role he played. 21 It was common ground that two video tapes tendered in evidence depicted the appellant in his hotel room on 21 April 1998 (video tape 5) and on 26 April 1998 (video tape 12). These video tapes included audio recordings of the appellant's voice as he spoke on the telephone during the time that his movements were being photographed. Video tape 12 recorded the appellant saying on 26 April 1998: "How much money have we paid in total? … Have paid 3,000 odd dollars? It's got to be more than that".

It was open to the jury to find that the appellant was, in this conversation, referring to the money paid to Pang. 22 Video tape 12 also recorded a statement by the appellant that: "A few days ago, when I went back then, it … failed as well, don't know what's going on, it's so … troublesome … don't if it had been … changed by somebody. Don't know now, everyone checks, everyone is checking now. …. Don't talk about it on the phone".

It was open to the jury to find that, in making this statement, the appellant was discussing whether or not the heroin had been substituted. 23 In sentencing the appellant, Shadbolt DCJ remarked: "By the inter-relationship of voice, video and proven occurrences, the Crown case became a very strong one". 24 The appellant did not give evidence. His defence was based to a significant extent on challenges to the expert evidence concerning the voice identification and the visual identification by Detective Watson.

The appellant's grounds of appeal 25 On appeal, the appellant did not dispute that audio tape 6 (were it to be proved that he spoke the words recorded thereon) was powerful proof of his guilt. He submitted, however, that the expert evidence establishing that his voice spoke the incriminating words on tape 6 should not have been admitted. This contention is the subject of grounds 1, 2 and 3. 26 Ground 4 is to the effect that his Honour failed to adequately warn the jury as to the dangers inherent in "voice similarity evidence". 27 Detective Watson testified that he had conducted a surveillance exercise in respect of the appellant between March 1998 and May 1998. During that period Detective Watson had observed the manner in which the appellant moved and held himself while walking. Detective Watson testified that he had watched a video tape of events on 9 April 1998 outside a room in a hotel occupied by Pang. The film showed a man walking down a hallway and placing something under the doorway of Pang's room. Detective Watson identified the appellant because of the way he swung his left arm, the way he held his head to the right when he walked, his distinctive hairline, and his general appearance and manner of walking. The appellant submitted that this evidence should not have been admitted and this contention is, in effect, ground of appeal no. 5. 28 Ground of appeal no 6 is that his Honour failed adequately to warn the jury of the dangers inherent in the visual identification given by Detective Watson. 29 Two other grounds were argued by the appellant, namely, that the trial miscarried by reason of the cumulative effect of the errors referred to in the proceeding grounds and because the verdict was unreasonable or could not be supported by the evidence.

The admissibility of the voice similarity evidence of Stephen Chan 30 The Crown led the evidence of three voice identification experts. They were Mr Stephen Chan, Sergeant Tat Lee and Dr John Peter Gibbons. The appellant asserted that none of their evidence should have been admitted. As mentioned, this contention was the subject of grounds of appeal 1, 2and 3. I shall deal first with Mr Chan's testimony. 31 Mr Chan was an experienced interpreter and translator. He was accredited at the highest level with the National Accreditation Authority of Translators and Interpreters in interpreting and translating the Cantonese and Mandarin languages into English and also English into those two languages. Cantonese was his native language and he had worked as a translator and interpreter in Cantonese and Mandarin since 1984. 32 In July 1998 Mr Chan was given five audio tapes, including audio tape 6, which he transcribed. The language spoken on the tapes was principally Cantonese. Mr Chan listened to these tapes, working on them and analysing them, for many hours over many days. There was more than one voice on the five tapes and, amongst other things, Mr Chan performed the task of distinguishing one particular voice from other voices on the tapes. He referred to the speaker with that particular voice as "M1". According to Mr Chan, the voice of M1 was recorded on each of the five tapes. 33 In the course of working on the five tapes, Mr Chan translated what was recorded on them from Cantonese into English. 34 On 16 July 1999 Mr Chan listened to an audio recording comprising part of a video tape of the police record of interview with the appellant. There was no dispute that the appellant was the speaker on this tape (which became Exhibit AH at the trial). 35 Mr Chan identified the speaker on Exhibit AH (namely, the appellant) as being the speaker he identified as M1 on the five tapes he had examined a year before in July 1998. 36 Prior to making the comparison in July 1999, he listened again to the five tapes. He could not remember whether he listened to them again only once or more than once, but conceded that it might have only been once. 37 Mr Chan's evidence was admitted pursuant to s 79 of the Evidence Act 1995 which provides: "If a person has specialised knowledge on the person's training, study or experience, the opinion rule does not apply to evidence of of an opinion of that person that is wholly or substantially based on that knowledge". 38 The "opinion rule" referred to in s 79 is that contained in s 76. By the opinion rule, subject to stipulated exceptions, opinion evidence is generally declared inadmissible. 39 The Crown contended that Mr Chan had acquired sufficient knowledge of the voice of M1 to be classified an ad hoc expert in that respect. This concept was recognised in R v Butera (1987) 164 CLR 180 where Dawson J (at 195) said that where words in a tape recording are inaudible or unintelligible (or by implication not spoken in the English language), "expert evidence of its contents may be required and it has been held that an ad hoc expertise may be acquired by a witness by playing and replaying a tape so as to become more familiar with its contents than could be done by playing it only once or twice". 40 In R v Leung (1999) 47 NSWLR 405 Simpson J (with whom Spigelman CJ and Sperling J agreed on this issue) said at 412 to 413: "The notion of an 'ad hoc expert' appears to have originated in R v Menzies [[1982] 1 NZLR 40]. The ad hoc expertise in that case was the capacity to decipher tape-recordings that were substantially unintelligible to anybody who had not played them repeatedly. A transcript of tape-recordings made by a police officer who had, by listening to the tapes many times, acquired such expertise, was held to have been properly put before the jury. The following passage appears in the joint judgment of Cooke J, McMullin J, Somers J and Sir Clifford Richmond (at 49): '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 his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused. (Emphasis added.)' The idea of the ad hoc expert was endorsed by the High Court in Butera . Again, tape-recordings were involved. This time the conversations recorded were mainly in the Punjabi language, with some Thai, Malay and English. Parts of the recordings were indistinct and could only be made out after being listened to repeatedly by a person familiar with the languages. Transcripts of the translation made after that exercise had been undertaken were held to have been rightly admitted. In the course of so deciding Mason CJ, Brennan J and Deane J quoted the passage from Menzies extracted above, and accepted the concept of the ad hoc expert".

Simpson J was of the opinion that s 79 accommodated the idea of an ad hoc expert. 41 Mr Nicholson QC, who appeared with Mr Stanton for the appellant, submitted that the evidence of Mr Chan (and also Sergeant Lee and Dr Gibbons) was irrelevant as the tapes were available to the jury and the jury could have made the necessary comparisons for themselves. He submitted that Smith v The Queen (2001) 206 CLR 650 supported this submission. 42 Butera and Leung, however, demonstrate that evidence of ad hoc expertise is admissible. The very many hours that Mr Chan spent listening to and working on the five tapes with a view to identifying the words spoken by M1 qualified him as an ad hoc expert in the characteristics of M1's voice. 43 In any event, as the words on the five tapes were spoken in Cantonese, it was appropriate for the jury to hear identification evidence from a person who understood the words spoken. As Simpson J observed in R v Leung at 414: "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". 44 In my opinion, Mr Chan was qualified to say whether, in his opinion, the voice of the appellant, as heard in the record of interview tape, was the same voice as the voice Mr Chan had identified as M1 on the five tapes. His evidence (and that of Sergeant Lee and Dr Gibbons) was not irrelevant. 45 In submitting that the evidence of Mr Chan should not have been admitted, Mr Nicholson submitted that Mr Chan's evidence "had the following weaknesses": "[a] When performing his task of comparing the tapes, he did not think of the possibility that what was recorded on the tape was a compilation of different passages of speech from different locations. He conceded the probability of him being mistaken as to the context surrounding his interpretation (T.474). [b] He was not a voice recognition expert (T.475). [c] A year may have elapsed between the time when he was engaged in interpreting the tapes and the time when he was asked to give his opinion on the similarity issue. [d] When he listened to those tapes again one year later, he may have listened to them only once (T.477). [e] The opinion he gave was an 'ordinary man's opinion' as to the sameness of the voices on the tapes (T.477) [f] He would not say there were any special features of the voice on the record of interview tape which would enable him with certainty to say the voice was different from those of other confident male Cantonese speakers with deep tonal voices (T.477). [g] He agreed that when seeking to understand the language in a conversation it is highly desirable to have both sides of the conversation, instead of one side only as in a telephone conversation. He further agreed that because of the nature of the language, Cantonese, there are some ambiguities which can exist without both sides of the conversation being heard (T.479). [h] He also agreed that it will sometimes be almost impossible to ascertain meaning without both sides of the conversation (T.480). [i] The witness further agreed that people speaking on a telephone have a different type of speech from people speaking face to face (T.480). [j] He possessed no training, knowledge or experience in comparing voices speaking in English and those speaking in Cantonese (T.485).: 46 Mr Nicholson submitted that, on these grounds, Shadbolt DCJ should have refused to admit the evidence because "its probative value is outweighed by the danger of unfair prejudice to the defendant" (to use the words of s 137 of the Evidence Act). 47 As regards the submission in paragraph [a] above, Mr Chan did not concede the probability of him being mistaken as to the context surrounding his interpretation. He said that there was a "possibility" of him being mistaken. In any event, in my view, the "context" in which the voices were spoken, while being of significance to the interpretation of words for translation purposes, is, I would think, far less relevant than the identification of the voices speaking the words concerned. 48 As regards paragraph [b] above, Mr Chan did not have to be a voice recognition expert to become an ad hoc expert within the meaning of R v Leung. In any event, his years of practising as an interpreter and translator would have been of great assistance to him as it meant he had considerable familiarity with the language spoken and with voices speaking Cantonese and English. 49 As regards paragraph [c], the relevance of the lapse of the year was a matter for the jury, and had little bearing on a discretionary exercise under s 137 of the Evidence Act. In any event, Mr Chan refreshed his memory immediately before the final identification exercise, by listening to the five tapes again. 50 Paragraph [d] has no merit in the present context. It raises a matter for the jury, it is not a matter that would have any relevant weight under s 137. 51 As regards paragraph [e], the fact that Mr Chan gave an "ordinary man's opinion" said nothing about whether he was duly qualified as an ad hoc expert as explained in R v Leung. 52 Paragraph [f] is essentially a jury matter, it is not a matter that would have any relevant weight under s 137. 53 Paragraph [g] is also essentially a jury matter and not one that would have any relevant weight under s 137. In any event, ambiguities in the language are irrelevant to an identification of the voice. 54 As regards paragraph [h], the ascertaining of meaning in the sense referred to was of minor significance in the voice identification exercise. Again, this was essentially a jury issue. 55 I do not understand what relevance paragraph [i] has with regard to the issue of Mr Chan's ability to identify the voices to which he listened. 56 As regards paragraph [j], Mr Chan acquired expertise in the voice of M1 by listening, over and over again, to the five tapes. It was not suggested to him that he could not apply that expertise in identifying the voice on the video tape which was speaking in English. In any event, I see no reason why the cross-lingual element in the comparison that Mr Chan was required to undertake detracted significantly from his ability to express a reliable opinion. Once more, this is, essentially, a jury matter. 57 In oral argument, Mr Nicholson submitted that Mr Chan could not acquire the relevant expertise because he had only undertaken a single act of comparison, namely, that between the voices he identified as M1 on the five tapes and the voice on the video tape. In my view this submission must be rejected. Once Mr Chan acquired the necessary expertise in being able to identify the voice of M1 he was able, as an ad hoc expert, to use that expertise in determining that the voice on the video tape was also that of M1. 58 Mr Nicholson also submitted, orally, that the evidence of Mr Chan was "tainted" as he must have known that the appellant was a suspect when he compared the appellant's voice on the record of interview with the voice of M1 on the five tapes. 59 In making this submission, Mr Nicholson relied on certain remarks made by Simpson J in R v Leung. Simpson J in that case drew attention to an aspect of voice identification evidence that she said might raise "real questions of propriety". Her Honour pointed out that a situation may arise in voice identification that is analogous to physical identification by photographs or by a police line up, "in which care must be taken not to suggest that a particular person is the suspect". 60 While I accept, with respect, that the analogy is capable in certain circumstances of being apt, it has, I think, limitations. It is one thing to produce persons not fundamentally dissimilar from a suspect in a photograph book or a line up. It is another, to produce voices not dissimilar to the voice to be identified. In the present case, for example, the police had five tapes where the identity of the voices was in dispute. Mr Chan had spent considerable time on the five tapes first distinguishing and then identifying, by the use of pseudonyms, the speakers of the words recorded therein. He had to use pseudonyms as the identity of the persons concerned was then unknown. Later, the police obtained a recording of the appellant's voice. They wished to determine whether the appellant's voice was one of the voices recorded in the five tapes. In this situation, I do not see how a means of identification akin to a line up could have been contrived. 61 It is further to be noted that voice identification evidence is to be distinguished from "visual identification evidence" within the meaning of s 114(1) of the Evidence Act. That is because voice identification evidence is not "based wholly or partly on what a person saw", the quoted words being an element of "visual identification evidence" as defined. As is noted by Odgers, Uniform Evidence Law, 5th Ed at para 1.3.9660, the admission of voice identification evidence turns on judicial discretion. See also R v Adler (2000) 116 A Crim R 38. 62 As Shadbolt DCJ noted in giving judgment in the voir dire relating to the admissibility of the voice identification evidence of Mr Chan and Mr Lee: "The question then is not one which lies within ss 114 to 116 of the Evidence Act 1995 but rather within those sections dealing with opinion evidence, namely ss 76 to 80 which necessarily carry with [them] consideration[s] of discretion under ss 135, 137 and 165 and perhaps 192". 63 In my view, Shadbolt DCJ committed no error in admitting the evidence of Mr Chan.

Sergeant Tat Lee 64 Sergeant Tat Lee was an officer in the New South Wales Police Service. His mother language was Cantonese. Sergeant Lee was educated in Hong Kong to secondary and tertiary level in the medium of both Cantonese and English. He came to Australia in 1991. He had passed an examination in translating from Cantonese to English and from English to Cantonese. He was plainly familiar with both languages. He was also familiar with Mandarin. 65 On 26 April 1998 Sergeant Lee had been present at a listening post where audio surveillance of the appellant's hotel room was being undertaken. He transcribed and translated a tape recording, known as tape 11, of what was being spoken in the room at the time in question. In November 1998 he listened to the voice recordings on two master video tapes, tapes 5 and 12. He also listened to the voice recordings on master tape 53. Tape 5 was in Mandarin and the other two tapes were in Cantonese. 66 It was not in dispute that the voice on master video tape 5 and on master video tape 12 was the voice of the appellant. This was quite apparent from the two video tapes themselves and the jury were able to identify the appellant from them. There was a dispute about the voice on master tape 53. 67 A portion of master tape 53 formed part of audio tape 6. Tape 6 had been translated and transcribed by Mr Chan. Mr Chan had identified certain words on tape 6 as having been spoken by M1. Tape 6 was the critical tape on which the Crown relied in its case against the appellant. 68 By his opinion that the voice on master video tapes 5 and 12 was the same as the voice on master tape 53, Sergeant Lee's evidence established that the voice on master tape 53 was that of the appellant. 69 As tape 6 was part of master tape 53, once it was proved that the voice on master tape 53 was that of the appellant, it followed that the voice on tape 6 was that of the appellant. 70 Mr Nicholson submitted that the following weaknesses existed in relation to the opinion evidence of Sergeant Lee. "[a] The passage of speech was quite short in the first tape recording Mandarin speech. [b] The next segment, recorded in Cantonese on a different day, was a very short passage of low key speech. [c] There was a risk of unconscious bias, by reason of him being a member of the NSW Police Service. [d] The witness had no special training in voice identification in Mandarin, Cantonese, or English. [e] The passages of speech used were quite short [f] He did as he was asked, that is, provide an opinion as to whether the recordings were of the same speaker. [g]) He had no skill above those of an ordinary human being in forming his opinion. [h] He conceded another ordinary human being might be of a different opinion (T 530)." 71 In my opinion all of the arguments raised in relation to Sergeant Lee concerned matters of weight and were essentially matters for the jury. Most of the points made are repetitive of those concerning Mr Chan, and it is not necessary to discuss them again. I would add that the shortness of the passages examined by Sergeant Lee are plainly matters of weight and would not give rise to any unfairness. The risk of bias (unconscious or otherwise) is no reason not to admit evidence of an expert: FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 (Ormiston JA, Chernov and Eames JJA concurring); Collins Thomson v Clayton [2002] NSWSC 366 per Austin J, and Kirch Communications Pty Ltd v Gee Engineering Pty Ltd [2002] NSWSC 485 per Campbell J. See also paper delivered by Heydon J entitled 'Comments on May LJ's Paper' at Supreme Court Conference, 22 August 2003. 72 In my view, none of the points raised regarding Sergeant Lee gave rise to a substantial danger of unfair prejudice to the appellant. I would dismiss the appellant's argument in relation to Sergeant Lee.

Dr John Peter Gibbons 73 Dr Gibbons had been for three years an ordinary lecturer and for 16 years a senior lecturer in linguistics at Sydney University. He was familiar with Cantonese, having lived in Hong Kong for nearly seven years. He was not familiar with the Mandarin language. 74 Dr Gibbons listened to the voice of the appellant in the taped police record of interview and used this as a base or comparison tape. Dr Gibbons noted that the appellant had a "very distinctive" voice with an exceptionally low pitch that was considerably below normal. The appellant also had another pronunciation feature that Dr Gibbons said was called "eshing" (that is where an "s" is pronounced as "sh"). 75 Dr Gibbons listened to five tapes including tape no. 6 and compared the voice on these tapes, attributed by Mr Chan to M1, with that of the appellant. In one of the tapes, tape 3, there was a lot of background noise and the tape was very short. Dr Gibbons said that in regard to this tape he would "have to tread carefully" but he thought that the speaker was the same as that on the base tape. Importantly, as regards tape 6, he said that M1 had the distinct characteristics of the appellant's voice, namely the low pitch and the eshing. He also said he heard the "general voice properties" that he associated with the voice on the base tape. He expressed the opinion that the voice attributed by Mr Chan to M1 was the voice of the appellant. 76 There was no dispute that the appellant was the relevant speaker on four of the tapes, not including tape 6, to which Dr Gibbons listened. It is therefore not in dispute that Dr Gibbons identified the appellant's voice correctly in regard to those four tapes. The material significance of Dr Gibbons' evidence was that he identified the appellant as M1 on tape 6. 77 Mr Nicholson submitted that the weaknesses associated with Dr Gibbons' evidence included the following: "[a] Whilst maintaining there was a difference between a trained ear and an untrained ear, he conceded he might be wrong and an untrained ear might be right (T.549). [b] He was unable to provide statistics in support of his contention that 'eshing' was not a common feature of male Cantonese speakers (T.552). [c] He could not comment on the proposition that 'eshing' is a most common feature amongst the male Cantonese speaking population of Sydney (T.552). [d] In relation to cross lingual comparisons, he was not an expert in either Cantonese or Mandarin (T.570). [e] He agreed Mandarin and Cantonese were tonal languages and that English was not (T.570). [f] He agreed that the pitch of a voice may vary with context - for example, when a person is screaming (T.570). [g] He had not had his ears tested recently (T.573). [h] He conceded that cross-lingual comparison was something that would have to be taken very seriously (T.612)." 78 Again, in my view, all the matters raised on behalf of the appellant were matters that went to weight. They were essentially jury questions. In my view, none of them gave rise to a danger of unfair prejudice to the appellant. 79 Mr Nicholson submitted that there were problems with cross-lingual comparison and these caused the evidence to lack probative value. I have already explained that I do not regard the cross-lingual comparison as giving rise to any significant problem. 80 Mr Nicholson submitted that Dr Gibbons' evidence was statistically confused. 81 Dr Gibbons acknowledged that he did not have statistics for figures on the percentages of eshing. He said that his evidence was based on his experience with mixing extensively with Cantonese speaking persons while in Hong Kong. It was a matter for the jury whether the absence of statistics was a material matter. I do not think it is a factor that would bear on the exercise of a discretion under s 137 of the Evidence Act. 82 Mr Nicholson submitted that Dr Gibbons' evidence was not based on scientific methodology and it involved an assertion by him, incapable of being tested. 83 Dr Gibbons said that he brought objective skills to bear on the identification of inherent voice characteristics. He regarded himself as an "auditory expert". He said that his views depended on the human ear and human judgment. He said that he was able to recognise pitch, tone, voice modulation and voice characteristics. This was his basic field of expertise. 84 I do not think it fair to say that Dr Gibbons' evidence was based solely on assertion. He did explain his opinions by reference to pitch and eshing at least and explained the features on which he focused when drawing conclusions as to similarities and differences in voices. 85 Although Dr Gibbons did not appear to apply scientific methodology in the sense of using machines or measuring (or other) equipment, and although he relied only on his experience, knowledge and hearing, that did not detract from the inherent expert quality of his evidence and I consider that his evidence was properly admitted as being expert in nature. 86 Mr Nicholson submitted that Dr Gibbons did not have adequate expertise in Cantonese or in Mandarin. 87 In the light of Dr Gibbons' experience and the methods of comparison he uses, his lack of knowledge of Cantonese and Mandarin did not prevent him from expressing opinions based on the sounds he heard. His expertise was identifying and recognising particular aspects of voice and this was based on experience over many years. 88 Mr Nicholson submitted that Dr Gibbons' testimony was unreliable as tapes given to him at one particular time had noises on them that had not been on those tapes at an earlier time and Dr Gibbons, according to Mr Nicholson, agreed that he could not exclude the possibility of the tapes having been electronically tampered with.

89 Dr Gibbons examined master tape 53 on at least two occasions. When he first listened to it he found no distortion in it. He then listened to a copy of the tape and found no distortion in it. At a later date he detected distortion in a copy of the audio tape. A tape with distortion in it was played in court. Mr Nicholson submitted that this difference in the quality of the tapes indicated that the tapes may have been tampered with. 90 Mr Alvin Castle Lawson, a witness called by the appellant, accepted that an explanation for the distortion was that the tape in question had been copied by a person using an inappropriate recording system. 91 Dr Gibbons referred to a difference in voice quality in the tapes but could not give any reliable explanation as to the source of the difference. He said: "It may have been tampered with but it may also just have been the higher quality playback equipment". 92 The problems with the distortion were not regarded as sinister at the trial. As I have said the appellant's own witness accepted that the distortion was caused by incompetence rather than anything deliberate. Dr Gibbons' reference to tampering was speculative and a throw-away line. 93 In my view, there is nothing in the point relating to any sinister manipulation of the tapes. 94 I would not uphold the appellant's submissions in regard to Dr Gibbons.

Failure to warn the jury as to the dangers inherent in voice similarity evidence 95 Shadbolt DCJ gave strong warnings to the jury in relation to the voice identification evidence. 96 His Honour told the jury that they should treat expert evidence exactly as they treat any other evidence and should subject it to exactly the same scrutiny. 97 His Honour said to the jury: "Voice similarity, or saying one voice is similar or the same as another is notoriously open to mistake".

He gave examples of such mistakes. He said that it was "terribly difficult to describe a voice". He said that "some voices are particularly distinctive and some are not". He said that human beings were not infallible. 98 His Honour gave a particular warning in the following terms: "When you are considering the voice similarity opinion evidence in this case, you should look to see the qualities, distinctive or otherwise, that have been described by the experts. The length of time that the expert had to hear the voice, that is the amount of time and familiarity he had with the unknown voice, the length of time over which the expert had to carry the imprint of that voice in his head, the manner of comparison, and the sureness or otherwise of the opinion".

He warned of the need for corroboration, because "of the danger of voice expert evidence". 99 His Honour said to the jury: "You are quite permitted, indeed encouraged to make your own observations of the voices in those tapes to see if you would accept what opinion has been proffered". 100 He warned the jury about the deficiencies in the Crown case on the voice similarity evidence. He drew attention to the fact that "the samples are not really great in quantity". He pointed out that the record of interview was not long and much of it involved the police officers talking. He drew attention to the fact that Mr Chan had examined the tapes for translation purposes many months before. He reminded the jury that Dr Gibbons did not say that all of the tapes were identical. 101 The judge concluded by stressing that there was "a special need for caution in assessing that evidence. You should be very careful with it, and you should make, as I say, your own enquiries". 102 In my opinion these warnings were entirely adequate.

The visual identification evidence of Detective Jonathon Tony Watson 103 Mr Nicholson submitted that the evidence of Detective Watson was irrelevant and relied again on Smith v The Queen (2001) 206 CLR 650. 104 In Smith v The Queen, Gleeson CJ, Gaudron, Gummow and Hayne JJ said at para 15 (see also Kirby J at 41-47): "In other cases, the evidence of identification will be relevant because it goes to an issue about the presence or absence of some identifying feature other than one apparent from observing the accused on trial and the photograph which is said to depict the accused. … [I]f it is suggested that there is some distinctive feature revealed by the photographs (as, for example, a manner of walking) which would not be apparent to the jury in court, evidence both of that fact and the witness' conclusion of identity would not be irrelevant". 105 Detective Watson's testimony was of the very nature postulated by the High Court. 106 Detective Watson had made extensive observations of the appellant during surveillance operations between March and May 1998. From the knowledge so gained he was able to testify as to the appellant's posture and manner of walking, which were distinctive. This involved the swinging of his left arm, the holding of his head to the right and the manner of his walking generally. The jury were not able to see the appellant walking in court. Hence, Detective Watson's evidence was not irrelevant and was properly admissible. 107 Mr Nicholson also submitted that, on discretionary grounds, Detective Watson's evidence should not have been admitted as it necessarily involved the jury being informed that the appellant was under surveillance in a police investigation. 108 In my view, no relevant prejudice arose from Detective Watson disclosing that he had undertaken surveillance of the appellant between March and May 1998. This information was well known to the jury as evidence had been led that for several weeks the police had undertaken surveillance of the rooms occupied by the appellant. 109 Mr Nicholson also submitted that the evidence should have been excluded under s 137 of the Evidence Act for the following reasons: "[a] The poor quality of the video, which his Honour observed to be 'grainy and short' (at SU.12). [b] The tainted nature of the procedure, which involved the witness purporting to identify a known person and suspect. [c] The lack of basis for comparison of the appellant and the person in the video. There was no means of judging height, and the descriptions given by Watson of the person having average, medium build, was inconsistent with the slight build of the appellant. [d] The witness did not identify the person on the video as being Asian or having Asian features. He just purported to identify the appellant, who is, in fact, Asian. [e] The prejudicial effect of disclosing to the jury the evidence of prior Police surveillance of the appellant." 110 The poor quality of the video tape did not detract from the probative value of Detective Watson's evidence. Detective Watson based his identification on the characteristic body movements of the appellant as compared to those that were apparent on the video tape. 111 While Detective Watson indeed identified "a named person and suspect", he was doing so by reference to characteristics that were of an extraordinary quality. These characteristics involved a singular way of walking. These characteristics were described by Detective Watson and were available for the jury to see on the video tape. It was of course open to the appellant to contradict Detective Watson but he did not. The situation was not comparable to that which arises when a witness identifies a person by facial characteristics. Detective Watson testified that the person he saw on the video tape had the peculiar walking characteristics of the appellant. There was no way in which this evidence could have been made more reliable by some form of identification parade. In my view the criticisms made on the appellant's behalf in this regard have no substance. 112 The fact that the person on the video was not identified as being Asian or having Asian features is irrelevant. I reiterate that the identification was made on grounds relating to the physical movements of the person in the video tape. 113 I would dismiss the grounds of appeal relating to the admissibility of the evidence of Detective Watson.

The failure to warn the jury of the dangers inherent in the visual identification evidence given by Detective Watson 114 The warnings that Shadbolt DCJ was required to give the jury concerning Detective Watson's visual identification evidence were those set out in s 165(2) of the Evidence Act, namely, that that evidence might be unreliable and there was a need for caution in determining whether to accept the evidence and the weight to be given to it. His Honour was also required to inform the jury of matters that might cause the evidence to be unreliable. 115 His Honour's charge to the jury is replete with warnings of the kind described by s 165(2). In addition, his Honour on more than one occasion reminded the jury of the attacks that the appellant had made on Detective Watson's evidence. 116 In my view, there is no substance in this ground.

Miscarriage of justice grounds 117 Having rejected each one of the particular grounds on which the appellant relies, the other two grounds asserting a miscarriage of justice both fail. 118 The appellant asserts that: "The preceding grounds individually reveal substantial errors and defects in the trial proceedings requiring the intervention of this court".

In my view, none of the grounds reveal errors or defects of any kind. 119 Once the challenged evidence is accepted as being admissible, the Crown case was very strong. I would dismiss the appeal against conviction.

The Crown Appeal against Sentence 120 The appellant was aged 51 years at the time of sentence. He was born in Hong Kong but was an Australian citizen. He carried on business in Hong Kong trading in kitchenware. He had two adult daughters, one in Hong Kong and one in Sydney. Members of his family lived in Sydney. Shadbolt DCJ noted: "He has a second wife who is now in the process of being deported, a matter which bears heavily upon him". 121 Shadbolt DCJ was satisfied beyond reasonable doubt that the appellant was "a person with the overall responsibility for the importation into this country and its delivery here". His Honour was satisfied beyond reasonable doubt that the appellant "was the first or principal or most responsible person in this country, in other words the boss". 122 Shadbolt DCJ noted that the appellant had been convicted in 1986 and sentenced to imprisonment for the supply of heroin. He served 14 months of a two years three months sentence. Shadbolt DCJ observed: "It is hardly a record which would permit the court to extend any leniency to him". 123 Shadbolt DCJ also noted that the appellant had given some help to the authorities. His Honour said that the appellant's help was "accurate and timely". It led to another shipment of heroin being intercepted and seized, but no arrests were made. Nevertheless, his Honour considered that the effect of the appellant's assistance was to be tempered by qualifications expressed by the police in regard to its value. 124 The learned judge also considered the question of parity. He said in this regard: "Pang pleaded guilty, assisted police and received a sentence of eight years and five years non-parole which was reduced to five years and three years non-parole by the Court of Criminal Appeal. He was regarded, quite rightly in my view, as a courier. Kook, following a plea, received twelve years with a non-parole period of eight years. This was upheld by the Court of Criminal Appeal. In this case, although there has been assistance, there has also been a trial and a lengthy pre-trial application. [The appellant] was more seriously involved than Kook, and, not only that, he also had a previous conviction for the supply of heroin. The sentence I impose will be greater than that of Kook for the above reasons". 125 His Honour pointed out that the maximum sentence under s 235 of the Customs Act 1901 (Cth) was life imprisonment without parole. He observed that "offences of this nature are viewed by both the legislature and the community as offences of the greatest gravity". 126 Shadbolt DCJ said that the importation in question involved approximately one kilogram more than the commercial quantity. For this reason he considered it should be put towards the lower end of the scale of seriousness. He said: "The method used was simple, almost time honoured one might say, and presented no novelty or singular cunning. No officials were corrupted". 127 Shadbolt DCJ concluded his remarks on sentence by saying: "The appropriate sentence for this offence could have been 24 years. I reduce that by one-third making 16. From which I take 25% for the assistance which has been rendered. The prisoner is therefore sentenced to 12 years' imprisonment. I set a non-parole period of 9 years." 128 The Crown contended that there was a complete lack of contrition on the part of the appellant. I accept that this is the case. 129 The Crown contended that in the light of all the circumstances his Honour's starting point in regard to a possible head sentence of 24 years was erroneous and should have been 30 years. The Crown submitted that the case of R v Chan [2002] NSWCCA 217 was analogous. About 3.4 kilograms of heroin was involved in R v Chan. Hodgson JA, in giving the leading judgment of the Court, said that the offender in that case was "the mastermind" and "a starting point of less than 30 years would be erroneous". 130 The Crown also submitted that his Honour also erred by allowing as much as 25% discount for assistance. The material before the learned judge, in the form of a "letter of assistance" by an officer of the Australian Federal Police, indicated that while the appellant provided information to the police that was valuable, "it has always fallen short of being such value that it has led to either narcotic seizures or the arrest of offenders". The officer expressed the opinion that, having regard to the apparent position of the appellant in the criminal hierarchy, and the information to which he would be privy, the assistance given by him "has been selective and of minimal practical value". 131 Mr Nicholson has pointed to other material indicating the extent of the assistance provided by the appellant. This material was provided in the course of an application by the appellant to Shadbolt DCJ for a permanent stay of the indictment that was eventually presented against him. 132 It is rare for a principal of a drug importation enterprise to be apprehended and convicted. Where that does occur full weight must be given to the criminality involved in being one of the directing minds of the criminal enterprise. This is the explanation for the approach of this Court in R v Chan. 133 In my view his Honour erred in failing to impose a sentence that gave proper recognition to the degree of criminality involved in the appellant directing the criminal enterprise. In my view, the starting point should not have been less than 30 years. 134 I also consider that when due regard is had to the selective and limited nature of the assistance given, a discount of 25% was over-generous. 135 Having regard to the sentences imposed upon the other offenders, and the fact that this is a Crown appeal, I consider that an appropriate head sentence would be 15 years imprisonment with a non-parole period of 11 years 3 months. 136 I would therefore uphold the appeal, set aside the sentences arrived at by his Honour and impose a head sentence of 15 years imprisonment with a non-parole period of 11 years 3 months. Accepting that the appropriate date for the commencement of the sentences would be 25 August 2001 (as determined by the learned trial judge), the head sentence will expire on 24 August 2016 and the non-parole period on 24 November 2012. I propose that orders be made in these terms. 137 WHEALY J: I agree with Ipp JA. 138 HOWIE J: I agree with the orders proposed by Ipp JA for the reasons given by his Honour. **********

Last Modified: 10/28/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.