Mervyn Douglas Greaves v Noel Edward Aikman [1994] TASSC 129;

Mervyn Douglas Greaves v Noel Edward Aikman [1994] TASSC 129; - TASSC 1994 case summary — Zoe

[41]

26. My reservation relates to the fact that the applicant raised a specific objection to the witness Hearn being permitted to attempt a voice identification with the tape P10. He submitted that as that tape had "been recorded from a UHF radio using the frequency modulated signal call FM, it's an entirely different mode of transmission altogether. There can be no similarities at all between the voice that is on the tape there now and anything that comes across CB radio." He thereupon launched into something of a technical dissertation as to why there could be no proper comparison made between the voices recorded on different means of transmission. The learned magistrate's ruling is not properly recorded but he seems to have expressed the view that the matters the applicant was raising went only to the weight of the evidence and that he could cross-examine witnesses about that. He concluded "And you will have a chance later - (inaudible)". I suspect that he said the applicant could give or call evidence himself on that point. I think in the circumstances, although essentially it was a question of weight, the learned magistrate should have recognised the objection as an appeal to the exercise of his discretion to exclude the evidence at that stage. The applicant, it was common ground, was a CB operator and his conduct of the case revealed that he professed to have not inconsiderable technical expertise. He may have wished to give evidence himself on that issue without exposing himself to cross-examination on the ultimate issue before the court namely, whether he was the person broadcasting on 8 June 1990. He was entitled to do that (Wong Kam - Wing v The Queen (1980) AC 247) and the record shows that in due course he exercised the right not give evidence when the prosecution case closed. It is no answer to say that he suffered no adverse consequences because he could have given that evidence at a later stage but chose not to do so. In MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 it was held that where a confession was sought by the defence to be excluded whether because involuntary and therefore inadmissible or because procured by unfairness and therefore warranting discretionary exclusion, a voire dire should be held and the accused if unrepresented informed of his rights in respect of the voire dire (per Gibbs CJ and Wilson J at 534). If the applicant had been given such information he may have chosen to give evidence which might have persuaded the learned magistrate that the voice identification by reference to P10 was so unreliable it should not be admitted in the exercise of his discretion. That opportunity was lost by the learned magistrate treating the objection as merely going to the weight of the evidence. I think for that reason alone this conviction should not be allowed to stand, but there is a further ground which although not pressed upon me in the light of some recent observations of my brother Underwood J in the so far unreported case of Kelly v O'Sullivan 58/1994 (available on SCALE) I believe has been made out.

[47]

"It is unnecessary to recount the long line of cases in

which the statutory provisions have been interpreted. It is

sufficient to say that it is now unsatisfactory

notwithstanding that there was, as a matter of law, evidence

upon which the accused could have been convicted: Whitehorn

v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 600, 686; Chamberlain (No

(1984) 153 CLR at 532, 404, et seq., 618 et seq.). In

Chamberlain Gibbs CJ and I, after noting that it was

unnecessary to consider whether the jurisdiction exercised

by the Court of Criminal Appeal in Australia is precisely

the same as that exercised by the Court of Criminal Appeal

in England, said (1984) 153 CLR at 534: ' ... the proper

test to be applied in Australia is, as Dawson J said, to ask

whether the jury, acting reasonably, must have entertained a

sufficient doubt to have entitled the accused to an

acquittal, ie must have entertained a reasonable doubt as to

the guilt of the accused. To say that the Court of Criminal

Appeal thinks that it was unsafe or dangerous to convict, is

another way of saying that the Court of Criminal Appeal

thinks that a reasonable jury should have entertained such a

doubt. The function which the Court of Appeal performs in

making an independent assessment of the evidence is

performed for the purpose of deciding that question. The

responsibility of deciding upon the verdict, whether of

conviction or acquittal, lies with the jury and we can see

no justification, in the absence of express statutory

provisions leading to a different result, for an appellate

tribunal to usurp the function of the jury and disturb a

verdict of conviction simply because it disagrees with the

jury's conclusion. We do agree that in many cases the

distinction will be of no practical consequence; it will be

merely a matter of words. That will not generally be the

case where questions of credibility are decisive. However,

whether it matters from a practical point of view or not in

a particular case, it is not unimportant to observe the

distinction - the trial is by jury, and (absent other

sources of error) the jury's verdict should not be

interfered with unless the Court of Criminal Appeal

concludes that a reasonable jury ought to have had a

reasonable doubt.'

In performing the function which is discussed in the passage

just quoted the Court of Criminal Appeal is deciding a

question of fact. So much clearly appears from the judgment

of the Court (Dixon CJ, Fullagar and Taylor JJ) in Raspor v

The Queen [1958] HCA 30; (1958) 99 CLR 346 at 350 and Hocking v Bell

[1945] HCA 16; (1945) 71 CLR 430 at 497. When 'the court performs this

duty, it is not deciding a question of law; it is

supervising or reviewing the findings of a tribunal of

fact', to use the words of Dixon J in Darling Island

Stevedoring and Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635

at 643."

[56]

35. In my view therefore, the applicant has by ground 10 put in issue an error of fact and this court has jurisdiction to inquire into it notwithstanding that the words "unsafe and unsatisfactory" do not appear in the statute dealing with appeals from justices. Having reviewed the evidence and conscious of the authorities which emphasise the risks of proceeding to conviction on the basis of disputed evidence of identification where that represents a significant part of the proof of guilt and conscious also of the need to spell out to juries in considerable detail the dangers of convicting on such evidence, I am of the view that the learned magistrate ought to have entertained a reasonable doubt that the applicant was the person who made the transmission the subject of the charge. The voice identification of the complainants was the sole evidence implicating the applicant. Even assuming he was proved to be the speaker on the subsequently recorded tapes, as to which there was at best tenuous evidence, the identification of the voice on those tapes by Mr Hearn and Mr Clarke was fraught with danger. Neither had any familiarity with the voice of the person interrupting, the identification was made in court after a lapse of 19 months, it was conducted in the form of a leading question in each case, the length of time each had heard it on 8 June 1990 was very short and there were conflicts between the two (Mr Clarke said there were two transmissions interrupted by the offender, Mr Hearn said there were three), while one could identify the voice on P10 the other could not but purported to identify the voice on P11 while the first was not given the opportunity to hear and compare that exhibit. A further factor was that the most distinctive feature about the voice of Bruce the Goose was its exaggerated falsetto "howling and baahing". It had all the hallmarks of a disguised voice the features of which were capable of imitation by others. The learned magistrate gave himself a general warning of the dangers by adverting to some of the difficulties inherent in the identification but nonetheless the case against the applicant was such that in my opinion he ought to have entertained a reasonable doubt about the applicant's guilt and erred in fact in finding him to have been the interfering broadcaster.

At a glance

Court

Decision date

Before

Source

Judgment (63 paragraphs)

Mervyn Douglas Greaves v Noel Edward Aikman [1994] TASSC 129; (1994) 4 Tas R 196 (19 September 1994)

Parties

Legislation Cited (1)

Cases Cited (14)