Miller v R

The Crown case

1. There were three significant evidentiary prongs to the Crown case. The first was voice identification evidence of 10 witnesses who had spoken to the perpetrator of the fraud and were asked to identify his voice from a set of eight samples. The second was handwriting identification evidence, by which the jury were provided with samples of writing, allegedly of the appellant, and asked to compare them to writing on a number of documents related to the fraud. The third was visual identification evidence whereby witnesses gave evidence that the appellant was the person depicted on CCTV images taken at the Airport Inn.

Grounds 2 and 3: the voice identification evidence

1. For the purpose of the voice identification procedure, a sample recording of the appellant's voice from a prior court hearing was obtained. The sample recording was 20 seconds long and was assembled from three separate sections of the court recording. The police also obtained recordings of seven other persons reading the transcript of what the appellant had said on the recording of his voice. The 10 witnesses to whom the appellant had spoken to in the course of engaging in the conduct subject of the various offences were then asked to listen to the eight recordings and to identify whether they recognised any recording as being that of the person to whom they had spoken over the phone. The recording of the appellant's voice was placed in a different order for each of the various witnesses.
2. Seven witnesses, being the persons specified in ground 2 of the amended notice of appeal, identified the appellant's voice as being the voice of, or similar to the voice of, the person to whom they had spoken. Three witnesses, Mr Malek, Mr Jaggard and Mr Gao, did not identify, or correctly identify, the appellant's voice.
3. As we understand the appellant's oral argument, he challenged the voice recognition evidence on three bases: (1) the evidence was not relevant: see the Evidence Act, s 55, and it ought therefore not to have been admitted; (2) the trial judge ought to have refused to admit the evidence pursuant to the Evidence Act, s 137; (3) the verdict should be set aside on the basis that it was unreasonable or could not be supported by the evidence.
4. The admissibility of the voice identification evidence of the seven witnesses who had identified the appellant's voice as that of the person to whom they had spoken had been the subject of a pre-trial ruling by Tupman DCJ. Her Honour ruled that the evidence was admissible. In making that ruling, her Honour was satisfied that there was sufficient similarity in the eight voices on the recordings, including that of the appellant.
5. Her Honour noted there was "some small distinction" between the recording of the appellant's voice and the others and that his voice was perhaps more distant than the others. Her Honour remarked, however, that "it is far from clear that that is the way it was heard" by each of the witnesses when they engaged in the voice recognition process.
6. It is apparent from the language of her Honour's judgment that the application challenged the relevance of the evidence: see the Evidence Act, s 55; and whether its probative value outweighed the risk of unfair prejudice: the Evidence Act, s 137.
7. No application was made to the trial judge pursuant to the Criminal Procedure Act 1986 (NSW), s 130A to resist the admissibility of the evidence. The arguments advanced on the appeal substantially replicated the arguments that had been made to Tupman DCJ at the pre-trial hearing. No additional arguments were advanced that the evidence was not relevant pursuant to the Evidence Act, s 55, nor could such argument have been made. The evidence was relevant, as it went directly to the jury's assessment of the probability that the appellant was the offender. The main issue relating to the voice identification evidence was therefore the claim that it should have been excluded pursuant to s 137. We deal with the 'unsafe' challenge later in these reasons.

Is leave to raise these grounds required?

1. The appellant informed the Court that he needed leave pursuant to the Criminal Appeal Rules, r 4, to raise grounds 2 and 3 of the appeal. This submission was premised upon an erroneous understanding that the appellant required leave to raise the challenge to the admissibility of the evidence pursuant to s 137, a misunderstanding that was perhaps induced by a comment made by the Crown to the appellant's counsel. As discussed above, there was a challenge to the admissibility of the voice recognition evidence that was heard and determined pre-trial. It is to be assumed that trial counsel considered that there was no basis to re-challenge the admissibility of that evidence before the trial judge: see the Criminal Procedure Act, s 130A. Certainly, no such application was made. Accordingly, leave was not required pursuant to the Criminal Appeal Rules, r 4, as the issue of the admissibility of the evidence had been made in accordance with the pre-trial procedures under the Criminal Appeal Act.

Legal principles

1. Section 137 of the Evidence Act provides that: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
2. The phrase "probative value" is defined in the Dictionary to the Evidence Act as follows: "… probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
3. The proper construction of s 137 was considered by this Court in R v Shamouil [2006] NSWCCA 112. The Court (Spigelman CJ, Simpson and Adams JJ agreeing) held that, subject to the limited circumstances referred to below, s 137 is not concerned with the credibility or reliability of the evidence sought to be adduced. Rather, the assessment of the probative value of the evidence should be approached on the assumption that the evidence would be accepted.
4. Spigelman CJ stated, at [61], the word "could" in the definition of "probative value" directed attention to "what it is open for the tribunal of fact to conclude … [and not] to what a tribunal of fact is likely to conclude". His Honour noted that this was consistent with the preponderance of authority in this Court, which was in favour of a "restrictive approach to the circumstances in which issues of reliability and creditability are to be taken into account". Any other approach would risk usurping critical aspects of the traditional role of a jury: at [64].
5. The limited circumstance in which credibility or reliability may be relevant to the assessment of probative value was where it was possible for the court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue: at [63].
6. The Court in Shamouil also dealt with the meaning of "unfair prejudice" in s 137. Spigelman CJ, at [72], stated that, for the purposes of s 137, prejudice must be "unfair", that is: "There must be a real risk that the evidence will be misused by the jury in some way and that that risk will exist notwithstanding the proper directions which it should be assumed the Court will give."
7. These principles were affirmed in R v XY [2013] NSWCCA 12. There had been a challenge in XY to the principle stated in Shamouil that, subject to the limited exception referred to above, at [48], s 137 was not concerned with the credibility or reliability of the evidence. On that question, a majority of a five judge bench (Basten JA, Hoeben CJ at CL and Simpson J) upheld the reasoning in Shamouil and did not follow the decision of the Victorian Court of Appeal in Dupas v R [2012] VSCA 328 in which Shamouil was held, at [68], to be "manifestly wrong".
8. The appellant did not go so far in this case as challenging the correctness of Shamouil. It should be noted that as between the judges in XY there were slightly divergent views as to the reach of the principle: see Basten JA at [65]; Hoeben CJ at CL at [86]-[89]; Simpson J (as her Honour then was) at [161]-[162]; Blanch J at [189]-[204]. See also Price J at [224]-[225]. However, the outcome of this case would be the same on any view. Accordingly, it is unnecessary to state any concluded view in respect of the differences in these various judgments. We would also note that the outcome would be the same if the principles from Dupas were applied to the facts of this case.
9. "Identification evidence" is defined in the Dictionary to the Evidence Act as including aural identification. It means evidence that is: "(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed, or (ii) an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or (b) a report (whether oral or in writing) of such an assertion." (emphasis added)
10. Sections 116 and 165 of the Evidence Act apply to aural identification evidence. Section 116 provides: "(1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence, and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. ..." No complaint was made as to the directions given by the trial judge to the jury, nor was it otherwise suggested that s 116 had been infringed.
11. Section 165 provides, relevantly, for warnings relating to the reliability of identification evidence to be given to the jury, on the request of a party. No request was made by the appellant or the Crown to give a warning or inform the jury of any of the matters referred to in s 165.
12. At common law, it was held that in some circumstances there was a threshold admissibility requirement for voice identification evidence that the voice heard had some distinctive feature or the witness had sufficient prior familiarity with it: R v Smith (1987) 7 NSWLR 444; R v Brownlowe (1987) 7 NSWLR 461. Any such requirements did not survive the enactment of the Evidence Act: R v Adler [2000] NSWCCA 357; 116 A Crim R 38 at [13]-[14] per Smart AJ, Heydon JA and Ireland AJ agreeing.
13. It follows that under the Evidence Act the only precondition for the admission of voice identification evidence is the requirement in s 55(1) that it be relevant. If the evidence is relevant, it is admissible unless an order is made to exclude it under ss 135, 137 or 138: R v Riscuta [2003] NSWCCA 6 at [34]. Only s 137 was relied upon by the appellant.
14. Some assistance in determining whether evidence should be rejected as unfairly prejudicial may be derived from cases of visual identification in which the accused, or a photograph of the accused, is significantly different from its comparators. In R v John [1975] Crim LR 456, the appellant was the only person in an identification parade wearing a leather jacket. While the English Court of Appeal was critical of this fact, it dismissed an appeal, holding that the witnesses based their identification on what they remembered of the appellant's face and dress really played no part in it.
15. In R v Blick [2000] NSWCCA 61; 111 A Crim R 326, a photographic identification procedure was undertaken in which a witness was shown 12 photographs including one of the accused. The photograph of the accused was the only photograph depicting a person with a goatee-style beard. The witness had given evidence that he recalled the offender as having a goatee-style beard. In addition, the photograph of the accused gave the impression of having been substantially cut down for the purpose of the identification examination. Sheller JA, with whom James and Dowd JJ agreed, held that the evidence should have been excluded pursuant to s 137. His Honour stated, at [25], that: "I do not see how it could be said that an identification obtained by such a process was of great probative value. At the same time it results in unfair prejudice to the appellant. But it was not the probative weight of the evidence which gave rise to the prejudice … The prejudice to the appellant remained high although the method of obtaining the identification evidence greatly diminished its probative value. There lay its unfairness."
16. In Alexander v The Queen [1981] HCA 17; 145 CLR 395 at 400, Gibbs CJ made a related point in relation to identification parades: "… it goes without saying that precautions must be taken to ensure that no prompting, suggestion or hint is given to the witness that any particular member of the group is the suspect."
17. Although not directly in point, these cases demonstrate that the court must have regard to all relevant circumstances in making a determination under s 137, including the conditions under which the recordings were made and the processes associated with the identification.

The appellant's submissions

1. The appellant submitted that the voice identification evidence was flawed in the manner in which it was produced both as to the quantity and quality of the recording and was therefore unfair. This was apparent, on his submission, by a comparison of the circumstances in which the recording of his voice was obtained and the manner in which it was put together as compared to what occurred in the production of the voice recordings of the other persons.
2. The appellant's particular complaints were as follows: (1) The use of only one twenty second voice sample constituted significant prejudice. (2) The sample of the appellant's voice could be contrasted in significant ways with the other voice samples. In particular, use of a sample assembled from three separate segments resulted in there being unnatural pauses in the recording and two audible clicks where the segments had been joined. By contrast to the appellant's recording, there was no break in the recordings of the other seven persons reading the transcript and accordingly it did not come across in the disjointed way that the recording of the appellant's voice did. Further, the recording of the appellant's voice had been taken from a recording when he was making a statement to a judge in an open courtroom with surrounding noise, whereas the other recordings were done in a room where there was no background noise. (3) A number of the witnesses had commented upon the difficulty in identifying the voice, such that their evidence ought not to have been accepted as a positive identification that the voice was that of the person to whom they had spoken. This complaint was limited to the "disjointed cut and paste" in the recording of the appellant's voice, the background noise and the proximity of the microphone to the speakers. In this regard, the appellant complained that in the recording taken of his voice, he had been at some distance from the microphone, whereas it was apparent that the other speakers were speaking close to the microphone. He also pointed out that the other persons produced their voice samples at varying speeds. (4) There was no relevant comparability between the appellant's voice and the other voices, the only similar characteristic being that those persons were drawn from the finance industry. The consequence of the limited basis upon which the selection was made was that "the listener gravitates towards the recording which is least like the others". This argument, which was advanced in the appellant's written submission, was not relied on in oral argument, where the appellant stated that he did not assert that the choice of voices chosen for the purposes of the voice identification evidence was unfair. (5) Using witnesses' memories approximately three years after the time of the offence was highly prejudicial. (6) The conversations between the actual perpetrator of the criminal acts and the witnesses had occurred over a different medium, namely, the telephone, and that had not been replicated in the voice identification evidence. Nor had any expert evidence been called to explain the differences between sound across that medium and the sound of voices being recorded directly onto disc with the use of a microphone. (7) The fact that seven of the 10 voice identification witnesses identified the appellant's voice had the potential that the jury would treat the evidence of those witnesses as more credible simply by force of numbers. (8) The jury was not been told until the Crown's closing address that the voice of the accused was put together in three segmented pieces taken from his evidence in a civil trial. (9) The police did not clarify sufficiently whether any of the witnesses knew each other, whether they were comfortable in identifying with certainty the voice of a person with whom they had not spoken for three years, or the number of times that they had spoken to the perpetrator.
3. Notwithstanding these various submissions, the appellant's primary complaint remained that the recording of his voice was objectively differentiated from the others in that it had been produced in three segments, such that there may have been some subconscious impact on the witness' perceptions at the time that they identified his voice. The appellant submitted, therefore, that the "frailty and fragileness" of the voice identification evidence was such that it should have been excluded by the trial judge pursuant to s 137. He submitted that the evidence was not reliable and that its prejudicial nature was such that any direction that the trial judge gave could not satisfactorily negate it.

Was there any unfairness in the production of the voice identification evidence?

1. Certain of the complaints made by the appellant as to the unfairness of the manner in which the voice identification evidence was obtained are not made out, or are directly contradicted by the evidence.
2. Thus, his complaint that the surroundings in which the recordings were obtained were significantly different, his in a noisy court room and the others in quiet controlled surroundings, so as to create an obvious difference in the quality of the recording was contradicted by the evidence of Detective Schussler. Detective Schussler gave evidence that the sample voices were recorded at Parramatta Court "because the voice recording of [the appellant] took place in a courtroom".

The evidence of Mr Mircevski, Ms Candido and Ms Pireh

1. In support of his contention that the other recordings were made with the speaker being close to the microphone, the appellant placed particular reliance upon the evidence of Mr Mircevski, Ms Candido and Ms Pireh, each being witnesses who had identified the appellant's voice during the course of the voice identification process.
2. As explained below, a consideration of the evidence including the video taken of these witnesses in undertaking the voice identification process, either does not support this contention or alternatively, demonstrates that any technical differences in the recordings did not affect the identification the witnesses made of the appellant's voice.
3. It was also apparent that some of the supposed concessions made by these witnesses that the appellant contended supported this aspect of his case related to matters to which they agreed in the witness box after the recordings had been played to them in court. Such concessions, if that is how they are appropriately described did not undermine and sometimes reinforced, the voice identification evidence itself.

The evidence of Mr Mircevski

1. During the course of the voice identification process, Mr Mircevski identified the voice on the second recording as being the most familiar. He said he was "pretty sure the other ones aren't recognisable". He asked to listen to the second recording again. Having done so, he said: "That's the most familiar. There are facets of the voice, well spoken sort of posh type accent that's … I mean I haven't heard it for two and a half years but it sounds the most familiar."
2. Mr Mircevski was asked whether he remembered the name of the person whose voice sounded most familiar. He responded: "Geoff Penrose was his alias. That's why it is so familiar because of the S's and stuff like that they were very like 'Geoff Penrose', you know sort of dragging, it's the most familiar."
3. The recording of the appellant's voice was played to Mr Mircevski during the course of his cross-examination, in respect of which Mr Mircevski gave the following evidence: "Q. Now in relation to that voice I'm going to suggest to you that you were able to detect on that a lot of background noise? A. Yes. Q. The voice also sounded quite tinny? A. Yes. Q. And it was markedly a much more distant sounding voice that that which you heard on the first tape? A. Correct. Q. It was also soft? A. Correct. Q. And it wasn't a clearly distinctive Australian accent? A. Yes. Q. And finally Mr Mircevski, the voice itself didn't conclude any word with a pronunciation of the last syllable of words where there was more than one. Now before I leave that point I wish to draw your attention to the evidence which you gave before, which was that in relation to the person he pronounced the word, last part of his words and you used the example 'Penroze', remember that? A. That's right Q. But in that particular voice you couldn't hear that, could you? A. Well, there was accentuation of the s's which was what I was alluding to. Q. Yes. On three words there was an accentuation of the s's at the beginning but there was no, I think you just agreed with me, that there was no accentuation of the last syllable of the word, using the example 'Penrose' as 'Penroze'? A. Well that could have been my pronunciation. I mean if I can explain my answer, if I'm listening to The Beatles on a CD or if I'm listening to them on the tape they are The Beatles one way or another. And that was the most familiar voice, and the voice and the characteristics of the voice. Whether it was effectively my inability to be able to describe that voice is another thing. All I can assure is that was the most familiar voice to me and reminded me of my discussions with Penrose."
4. In further cross-examination about the recording of voice 2, Mr Mircevski said that he had noticed a stopping and starting between each of the three sentences. However, he clarified his observation that that was something he had just noticed when the recording was played to him whilst giving his evidence. Mr Mircevski also said that, at the time that he was participating in the voice recognition process, his "focus was on describing the tape or trying to find a voice that was familiar to me". He said that he was looking for facets of the voice that he could recognise.

The evidence of Ms Candido

1. Ms Candido recognised the appellant's voice as soon as it was played during the voice identification process. She said that it sounded exactly like the person that she had spoken to on the phone. She also said that she did not think she would remember anything "back that far", but that it was "quite clear … very, very clear to me".
2. In cross-examination, Ms Candido agreed that the voice that she recognised as the voice of the person to whom she spoken on the phone "seemed a little bit distant". However, she responded that that was not something that she recalled listening for. She was "looking for a voice that I recognised". Ms Candido also agreed that the voice that she had identified appeared "to be presented in segments rather than in a single reading". However, she said that that was not something that she "noticed at the time … that wasn't my thought process".
3. In her statement prepared following her participation in the voice identification procedure, Ms Candido had referred to pauses "between the words and the sentences in the voice sample" as being "exactly like the same as the pauses in the speech of [the person she had spoken to on the telephone]". When asked about this in cross-examination, she said: "… the pauses were distinctive enough. It wasn't just of the pauses in the speech, it was the mannerism, it was the whole thing. I mean it was recognisable. As soon as I heard the voice, I know this voice, you know so a distinction."
4. Counsel for the appellant at trial suggested to her that it was reasonably possible that she had made a mistake. She replied, "Yeah, that is a possibility". She also acknowledged that on hearing the recordings in court, the recording of the appellant's voice had a lot of background noise on it and that she could not remember any of the other voices having background noise.

The evidence of Ms Pireh

1. Ms Pireh agreed in cross-examination that the recording of the appellant's voice played in court had breaks in it and sounded slightly tinny, and that at the previous hearing she said that the voice she identified sounded like the person to whom she had spoken on the phone, but that she could not be "a hundred percent sure". At the previous hearing, she also identified the person to whom she had been speaking as being "maybe in late 50s".
2. Ms Pireh initially said that she had not heard any strong background noise but, on the recording being replayed in court, she agreed that she heard background noise in the sample of the appellant's voice, but not in the others.

The evidence of the other voice identification witnesses

1. It is convenient to consider the evidence of all the voice identification witnesses at this point.
2. No specific complaint was directed to the evidence of the other four witnesses who identified the appellant's voice as that of the person to whom they had spoken. However, their evidence contained some of the same concessions as the evidence of Mr Mircevski, Ms Candido and Ms Pireh.

The evidence of Mr Cornforth

1. Mr Cornforth gave evidence that he had spoken on the telephone to a man identifying himself as Mr Penrose, and representing himself to be a solicitor acting for the Company, on three to six occasions.
2. The transcript of the voice identification procedure (Exh CL) records that Mr Cornforth noted that: "… the voice used [at the time of the phone conversations] was quite exaggerated, almost… it was quite an exaggerated accent but I can see a resemblance between voice seven and the voice I heard at that time."
3. Also in evidence was a witness statement of 8 July 2008 signed by Mr Cornforth in which he stated that the voice he had heard on the telephone "was distinctive in that it was the voice of a person who had some legal training or exposure to legal offices. The speech … was exaggerated". In cross-examination, Mr Cornforth agreed that when he said the person on the phone "had some legal training or exposure to legal officers", his statement had nothing to do with the sound of the voice. He agreed that, at the committal hearing, he had given evidence that "the voice [on the telephone] was exaggerated to create that impression of culture and professionalism", but said that was saying the same thing as he had said at the voice identification procedure.
4. Mr Cornforth denied the proposition that, given the number of similar conversations he had had in the five-year intervening period, there was no way he could possibly remember what a single person's voice sounded like. Mr Cornforth said that he did not recall the voice sample he identified as having a lot of background noise or giving the impression that there were three sets of voices on the track. He agreed that, when he was played the sample during Local Court proceedings and specifically asked to concentrate on that issue, he had agreed that there did appear to be two breaks in which the audio was cut and pasted. However, he said that when the tape was played in at the voice identification procedure and at the District Court proceedings in 2011, he could not discern a difference.

The evidence of Ms Mullins

1. In the voice identification procedure, Ms Mullins also chose the voice of the appellant as being most like that of the man she had spoken to on the phone, but noted that she "couldn't be sure with the length of time".
2. Ms Mullins agreed that she had described the voice on the telephone as being "authoritative", "impatient", "anxious to get the business underway" and as having "a bit of an Australian accent". She agreed that, in the two years from the time of the conversation to the time of the voice identification procedure, she would have come across people "all the time" whose voices could be described in that way.
3. In cross-examination, Ms Mullins agreed that, on the telephone, she was not actually listening so much to the quality of the voice but the types of things being said. However, she also said that: "… because of the circumstances of the shipment and I started to fear that something, there might be risk there or there might be something wrong so … that's why the, the conversation and the circumstances of the shipment in particular stood out more than any other would."
4. Ms Mullins also gave the following evidence relating to the sound quality of the recordings: "Q. Now, in listening to those tapes, and I'm going to direct your attention to tape number 6, did you notice that there was a significant amount of background noise? A. Yes. Q. And did you notice that there was not a significant amount of background noise on the others? A. Yes."

The evidence of Ms Newton

1. Ms Newton gave a statement in which she described the voice sample of the appellant, as being "very similar" to the voice of the man she had heard on the phone. She gave evidence in cross-examination that that was the best that she could recall some two and a half years after the telephone conversation.
2. In cross-examination, in the course of being replayed the samples of the various voices, Ms Newton gave the following evidence relating to the tone the voice and the sound quality of the recording of the appellant's voice: "Q. Now, you agree that the whole tone of that voice sounds different to the first two? A. Yes. Q. Sounds tinny? A. I would say it's a little bit more distant. Q. Thank you, that's what I was going to put to you; and there's a lot of background noise? A. There is a little bit of background noise, yes. Q. Sounds pretty much like a bad tape? A. Yes. Q. And you'd notice that the voice was much softer than the other two? A. Not as, yes, but still clear, still can hear it quite well-- Q. Yes-- A. You can hear the words. Q. You can hear the words quite well? A. Yes. Q. Yes, and you would have also noticed that unlike the other two, that there was lots of pauses in between them? A. I didn't notice lots of pauses, but not as robust, that's how I would have said it. … Q. … none of the voices except for voice 3 sounded distant, did it? A. That's right, yes. Q. That's not the way he sounded to you on the phone to you when he spoke to you, was it? A. I can't remember if he sounded distant that day, no."

The evidence of Ms Innes

1. Ms Innes gave evidence that, in 2005 while working for Rebel Property Group, which managed and marketed buildings including Rugby House, she received a telephone call from a man claiming to be a solicitor named Andrew and to be acting on behalf of clients who were interested in purchasing the property. She said that she refused his request to be given the Information Memorandum relating to the building and other marketing material they had, as this material was only provided to legitimate buyers acting through agents. She took his telephone number so as to have an agent call him but when she called the number it was disconnected.
2. Ms Innes agreed that the phone conversation was fairly short, and that it occurred 30-32 months prior to her statement to the police. She said she had considered the voice in the time prior to that statement, however, noting that "[i]t did come back to mind as soon as we'd heard what happened, that was way soon". She disagreed that because she had been in contact with professional people in her job on a frequent basis it would be difficult for her to say what voice it was that she had heard. She explained that most of the professional contact in her job was with solicitors whom she knew, and that she would "remember most people that make an impression and this gentleman made an impression".
3. Ms Innes described the man she heard on the telephone as "introverted … evasive in his tone and he frequently paused during the conversation". When asked in cross-examination what she meant by "introverted", she explained that she meant "somebody who's not open … they're thinking in their head what they're trying to work out … trying to read what's coming at them".
4. Ms Innes found voice samples 1 and 4 to be the voices she most recognised. The following exchange occurred between Ms Innes and the interviewing police officer during the voice identification procedure: "[Sample 4 played for a second time] Innes: Sounds like the same guy [as voice 1], just sounds like it is further away. Someone didn't get close enough with a microphone or something. … One and Four sound very very… they almost sound the same except for the fact that one was a really bad recording from a long way away and looked like it was cut and pasted together… … Innes: Number four was clearly much more poor quality recording or the distance from the microphone was greater than all the others … number four was just not such a good recording. … [Interviewer]: If you had to choose between one and four? Innes: Let me listen to them again. The difficulty is the quality difference, that's the difficulty. [Samples 1 and 4 played again] Innes: I would probably have to choose four but I wouldn't be a hundred per cent confident. I can't even remember what year it was. 2004 I guess? That's like forever."
5. In cross-examination, Ms Innes was asked about her reference to sample 4 sounding as though it was "cut and pasted together". She explained that she had heard a click between paragraphs of the sample, and that unlike all the other samples it sounded like it was not recorded in one continuous recording, although it was clearly the same voice. When asked whether it had become "fairly obvious" that the sample was the only one in which there was a click, she said that she did not listen for the click with the others. When asked about the quality of the recordings, Ms Innes said that: "1 and 4 at the time had a similar tone and style, pausing was much more similar than any of the others. Not so distinctly different. And what I was really saying is if number 4 had been of an equal quality I would have been able to give a much clearer choice"

The evidence of Mr Malek, Mr Jaggard, Mr Gao and Detective Callanan

1. Mr Malek, of the Uniting Church (NSW) Trust Association, could not positively identify any of the voices. He said that voice 3, which was not the appellant's, sounded familiar, but he could not be certain.
2. Mr Jaggard, of Jaggard's, the gold trader, selected the voice of another participant (voice 1 on the tape played to him), stating that if he had to pick one that was similar or a little bit similar it was possibly voice 1.
3. Mr Gao said that the voices sounded similar. He said that the person called Mr Fisher, to whom he spoke, "was very well spoken and there is [a] few in here that can't even read off the sheets properly". He nominated three of the voices as sounding more like the person he spoke to.
4. Detective Callanan, one of the investigating officers, telephoned the person who had identified himself as Mr Fisher to Mr Gao on the mobile number that Mr Gao gave him. The person who answered the call only spoke two to three words. Detective Callanan described that person as having a "very deep voice".

Consideration

1. As is apparent from the evidence of these witnesses, apart from Ms Innes, they made their identification of the appellant's voice without either noticing or being distracted by a clicking noise or background noise on the recording. The appellant also acknowledged that none of the witnesses were asked whether the reason they chose the recording of the appellant's voice was because of the background noise or the clicking sound where the tape had been spliced. He also acknowledged that none of the witnesses had withdrawn their evidence having had those matters pointed out to them in the course of their cross-examination and having listened to the recordings in court.
2. The appellant also acknowledged that the "concession" made by Ms Candido that it was possible that she was mistaken and by Ms Pireh that she could not be 100 per cent sure were matters of weight to be assessed by the jury having regard to the whole of the evidence. This aspect of his argument may thus be put to one side as it does not impinge upon any question of admissibility under s 137 or any other question of unfairness.
3. There was nothing in the evidence of Mr Mircevski, Ms Candido or Ms Pireh that could be described as 'frail' or 'fragile'. To the contrary, their evidence supported the Crown case in a straightforward and compelling way, notwithstanding the 'concession' of both Ms Candido and Ms Pireh which the jury was required to weigh with the other evidence. However, taken in conjunction with all of the evidence, those concessions did not undermine the strength of the Crown case. Nor, in our opinion, was there anything in their evidence that could be misused by the jury, such as to give rise to unfair prejudice in the sense required for the purposes of s 137.
4. Having watched and listened to the videos of the voice identification process, and apart from the differences in the voices themselves and the manner of the individual delivery of each participant, the only discernible difference was that in the recording of the appellant's voice, as the Court had been told, there were two clicks where the tape had apparently been spliced together. On those recordings, there were no apparent differences discernible in relation to background noise or the distance of the speaker from the microphone.
5. To the extent there may have been "tinniness" and some background noise when the recordings were played in the trial, from our observation of the video recording of the voice identification process, that did not seem to have influenced the witnesses during the voice identification process. Nor, on the observations of each of the members of this Court, were witnesses distracted by the clicking noise in the recording of the appellant's voice. Further, the difference in sound quality between the appellant's sample and the comparators were matters squarely raised in cross-examination which the jury were entitled to take into account. There was no obligation on the Crown to call expert evidence in relation to it. There was, therefore, no unfair prejudice by reason of the sound quality, and it follows that it was not unfair that it was only in the Crown's closing address that the jury were told explicitly that the recording was constructed from three separate sections.
6. The periods of time that elapsed from when the witnesses heard the appellant's voice and when they participated in the voice identification procedure were also explicitly raised during the cross-examination of a number of the voice identification witnesses and some witnesses also raised it during the course of the voice identification process. The jury were aware of the dates of the relevant events for all of the witnesses. The effect of the lapse in time was a matter for the jury to take into account to give those matters such weight as they considered appropriate. No unfair prejudice arose from it.
7. Similarly, the failure of the police to clarify certain matters with the voice identification witnesses did not give rise to any unfairness in circumstances where the appellant had an opportunity to raise that matter in cross-examination.
8. The fact that some witnesses did not identify the appellant's voice did not raise any unfair prejudice. That too was a matter for the jury to assess so as to be satisfied whether, on the whole of the evidence, including that of the other voice identification witnesses, the personal identification evidence and the handwriting evidence, they were satisfied beyond a reasonable doubt of the appellant's guilt. The same may be said for the short duration of the sample voices.
9. We would dismiss grounds 2 and 3 of the amended notice of appeal.

Ground 4: the photo identification evidence

1. The photo identification evidence consisted of witness statements made on the basis of still images taken from the CCTV footage from the Airport Hotel Inn.
2. The appellant submitted that the photo evidence was not relevant, as it did not connect him "to any action" and all it did was show a person "going through the foyer". The appellant submitted that in circumstances where the photographs were in evidence and the appellant was in court, it was a matter for the jury to make their own identification.
3. The appellant also contended that the photographs should have been ruled inadmissible pursuant to s 137 because although they had probative value, that was outweighed by the danger of prejudice to him. He said that the prejudice was that the photographs were of "such poor quality" that it was not possible to sufficiently identify the characteristics of any person in the photographs and there was, therefore, no basis for the identification of him in them. He further contended that the evidence relating to the appellant's weight loss "seed[ed] the jury with the concept that it's the weight loss and that's [the appellant] because of that reason".
4. These submissions were not an accurate reflection of the evidence. Each of the six witnesses called on this issue had known the appellant in January 2006 and gave evidence that in their opinion the person in the photographs was the appellant. They also gave evidence that the appellant had lost significant weight since that time. This was not a case where the photographic evidence before the jury was such that they were in as good a position to determine whether the person in the photograph was the person in the photograph. Rather, each of the witnesses was in a better position than the jury to recognise the appellant because his appearance at the time of trial differed in a significant way from his appearance at the time of the offence. They were able to identify the person in the photograph as the appellant at the time that the offences were committed. It followed that the witness statements were relevant: R v Smith [2001] HCA 50; 206 CLR 650 at [13]-[15]. The photo evidence itself was relevant as, if accepted, it placed the appellant in the vicinity of a computer on which part of the fraud was committed at the relevant time. The probative value of all the evidence was substantial and outweighed any prejudice caused by the poor quality of the photographs, which in any case was brought up in the trial and went primarily to the question of the weight to be given to the evidence by the jury.
5. The appellant also objected to the admissibility of the CCTV footage, that objection flowing from his objection to the admissibility of the still images. No independent argument was advanced. For the same reasons as given in respect of the still images, the appellant's objection to the CCTV footage should be rejected.
6. It follows from what we have said that we would reject ground 4 of the amended grounds of appeal.

Ground 5: failure to discharge the jury

1. Ground 5 of the appeal was in the following terms: "A miscarriage of justice occurred as a result of her Honour failing to discharge the jury in circumstances in which [the] Crown tendered a document, Exhibit BA and the appellant had inadvertently failed to object to, that made clear reference to material suggesting there was a link between prior convictions of fraud and the appellant."
2. An application was made to discharge the jury on the fourteenth day of the trial in circumstances where the Crown had tendered a five page document, marked as Exh BA. That document, which had been prepared by Mr Westwood for use by the jury, comprised a schedule of sample material, that is, various words and phrases taken from the specimen documents. It was prepared for the purposes of comparison with both the specimen documents and those documents alleged to have been prepared by the appellant as part of the fraudulent activity subject of the charges and an explanation of any variations in letter format between those documents.
3. No objection was taken to the admissibility of the document when it was placed before the jury. Mr Westwood then commenced his evidence, which he gave by reference to Exh BA. Mr Westwood referred to the letter "s" in the word "sheriff" and to the "s" in the words "my counsel, solicitor and myself", as compared to the "s" as written in the word "Australia", which the witness observed varied from one another. Reference was then made to other words. Insofar as any contained a legal reference, Mr Westwood referred to a number of words which were alleged to relate to legal proceedings or fraud, including, "witnesses"; "Dasios"; "sheriff's", "my counsel, solicitor and myself", "Michael Carol" (the appellant's solicitor); "passport"; "property"; and "police station".
4. During the course of Mr Westwood's evidence, the appellant's counsel signalled there was an urgent problem and the jury was asked to leave the court and to leave their documents in the courtroom. The Crown withdrew the tender of Exh BA, at which time the appellant made an application for the discharge of the jury.
5. The trial judge refused the application. In her judgment published on 4 September 2012, her Honour considered each of the words said to be prejudicial and explained why, either in isolation or in combination with other words there was no prejudice to the appellant. The judgment speaks for itself and it is not necessary to re-iterate here her Honour's consideration of each word or phrase about which complaint was made. It is appropriate, however, and sufficient, to refer to her consideration of those words or phrases, such as "fraud related charges" which appeared on Exh BA said to be particularly prejudicial.
6. The appellant submitted that the phrase "fraud related charges" would suggest to the jury that the appellant had convictions for fraud or had other fraud related charges pending. The same submission had been made before the trial judge. The trial judge, at 9 of her judgment, observed that there was no reason why the jury would reach such a conclusion in circumstances where the reference was to the very charge the subject of the proceedings. Her Honour considered that there was no reason for it to have even occurred to the jury that the accused might have faced or be facing other fraud related charges. Her Honour noted that this submission would have had more weight if there had been a reference to another charge such as the charge of murder.
7. Exh BA contained a reference to the names "Angelo Bilias" and "Gregory J Goold". These are names of solicitors. Her Honour doubted that the jury would recognise the names at all or that they would know they were the names of persons well known in the criminal law. Her Honour stated that she, herself, had never heard of the former. Her Honour continued: "… the very fact that [the appellant] has been charged with such fraud is a matter that a jury might reasonably expect to cause him to thereafter address correspondence to solicitors specialised in criminal law, or that he might refer to matters such as 'affidavit' and 'conviction' and 'witnesses' and 'police', 'superintendent' and 'police station' without any implication that he had been convicted of an offence."
8. There was also a reference to a person by the name of "Mr Dasios" in a phrase in the document, "Mr Dasios and other Crown witnesses to be contrived". Mr Dasios was not, and was not intended to be, a witness at the trial. Her Honour dealt with this reference at 10 of her judgment, as follows: "… it is highly unlikely that any jury in the time they had the document before them would have cross referenced such mention to the list of witnesses before them, or that they would otherwise remember the name, or if they noticed he wasn't called by the end of the trial, that they would conclude that he must have been a witness in some other proceedings."
9. Her Honour, at 10, was also of the opinion that the phrases "litigation", "Crown witnesses", "court", "cross-examination", "David McGovern QC", "counsel" and "solicitor", whilst suggestive of court proceedings, did not thereby suggest that the accused had been convicted of a criminal offence.
10. Two words which were also the subject of debate were the abbreviations or acronyms "MIN" and "VIN". These were not the subject of evidence by Mr Westwood before Exh BA was removed from the jury's possession. Her Honour's ruling was made against the possibility that the jury had observed or taken note of the words. Her Honour, at 9 of her judgment, considered that it was unlikely the jury would know what the abbreviation MIN was a reference to. We agree. Her Honour also considered that if the jury attached any meaning to VIN, had they taken notice of it, they would have believed it meant "vehicle identification number". However, her Honour observed that even if a jury member recognised it as meaning "visitor identity number", such as to conclude that the appellant was being held in gaol, bail refused, that would have been a reasonable expectation in the case where the accused was charged with a $15 million fraud.
11. When the jury returned, the trial judge told the jury that that Exh BA had been withdrawn so that it could be "put in a more convenient form".

Principles relating to the discharge of the jury

1. The principles relating to an application for the discharge of the jury and appellate review thereof were reviewed by this Court in Khazaal v R [2010] NSWCC 129 per Hall J at [265] ff. The following principles emerge from his Honour's review and from the two leading cases he cites Crofts v R [1996] HCA 22; 186 CLR 427 and Maric v R (1978) 52 ALJR 631: 1. In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440. 2. In deciding an application to discharge the jury, key considerations include: 1. the fairness of the trial: Crofts at 440; 2. the nature of the statements said to have given rise to the prejudice, including whether they were such as to "have been left vividly etched on the mind of the jury": Crofts at 441; 3. the seriousness of the occurrence in the context of the contested issues: Crofts at 440; 4. the stage at which the mishap occurs: Crofts at 440; Maric at 635; 5. the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635; 6. the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635. 1. Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635. 2. The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that "[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict", and in Crofts, at 441, the question was put similarly as whether, in the circumstances, the appellate court can "say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable". 3. Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind: "… that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript": Crofts at 440-441. 1. Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge "is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind": Crofts at 441, but rather must apply the broader test stated at (4) above.

Consideration

1. There was no error in her Honour's observations or in her approach to this matter. As her Honour correctly pointed out, the appellant's trial was in respect of fraud related matters and there was nothing to suggest that the jury would have thought that these words were a reference to some other matter. The other references said to be prejudicial, as her Honour pointed out, would have been readily understood by the jury, if they gave any thought to them other than as words on a page, as a reference to the various charges before the court.
2. Further, as is apparent from the number of pages over which Mr Westwood gave evidence by reference to Exh BA, the document was before the jury for a number of minutes only. The problem arose on 9 August 2012, the fourteenth day of the trial. In addition, the trial continued until 14 January 2013 when the jury retired to consider its verdict. The jury returned its verdicts on 17 January 2013.
3. This is a case where the appellate court can be confident that the irregularity in Exh BA being before the jury, in the circumstances to which we have referred, did not affect the verdict. Accordingly, we dismiss ground 5 of the amended notice of appeal.

Ground 6: the handwriting evidence

1. Paul Westwood, a handwriting expert called by the Crown, gave evidence that the handwriting on certain documents (the specimen documents) was the same as the handwriting on the Certificate of Title, and on documents Exh Q (relating to count 16), Exh R (relating to count 17) and Exh AA. As referred to above, the Certificate of Title was rejected by the Registrar-General on the basis that it was forged.
2. Exh Q was a direct debit request dated "9/1/06" to debit the account of the Company to pay the Uniting Church (NSW) Trust Association. The document was purported to be signed by "Mr Linz" and "Mr Bassarabie". Both those persons gave evidence and said they did not sign the document.
3. Exhibit R was an "Identification Record for a Signatory to an Account" purported to be signed by "Mr Linz". Mr Linz gave evidence that he did not sign the document. He acknowledged that the date of birth on the document was his date of birth, that he was unsure whether the passport number was correct and that he did not know anybody by the name of "Peter Michael Davis", being a name nominated on the document as an "acceptable referee". That part of the form stated that the person was a solicitor and that his address was Bridge Street, Sydney. There was no record of a Peter Michael Davis on the official records of the Law Society of New South Wales. Mr Linz had no knowledge of the address in Bridge Street, Sydney.
4. Exhibit AA was an envelope addressed to Roger Cornforth, Holman Webb Lawyers Level 17, 123 Pitt Street Sydney NSW 2000. The address was handwritten in block capital letters. Mr Cornforth was the solicitor for the Uniting Church (NSW) Trust Association.
5. There were 10 specimen documents: 1. A correctional centre intake form containing the records of the appellant including a photograph, and "Emergency Contact Details" naming the appellant's wife and daughter as contacts. The document was signed by Chad Hodges, who witnessed the appellant's signature; 2. A bail reporting sheet purportedly repeatedly signed by the appellant and signed by a large number of persons as witnesses; 3. An application for bail purportedly filled out by the appellant; 4. An envelope obtained in the execution of a search warrant at the house of the appellant's ex-wife and his daughter, addressed to the appellant's daughter and with the appellant's name and then address written on the back. This envelope contained a list of names; 5. An envelope from the same source and with the same characteristics as specimen document 4, containing draft affidavits relating to legal matters concerning the appellant; 6. An envelope from the same source and with the same characteristics as specimen document 4, containing a handwritten letter, apparently in the nature of a complaint to the Attorney-General and purportedly signed by the appellant; 7. An envelope obtained in the execution of a search warrant at Parklea Correctional Centre. The sender is nominated as the appellant and the addressee was his father. The envelope contained a letter signed in the name "Damon", and a further note requesting that the appellant's father deliver the letter in a new envelope to "Nitta at Wybenia Nursing Home"; 8. A membership application, purportedly signed by the appellant and listing his name, his then address, his date of birth, and his phone number; 9. A Guardian Mortgages Pty Limited mortgage application form filled out in the name "David Miller"; 10. A photocopy of a draft affidavit relating to legal matters concerning the appellant found in the appellant's cell during a cell search on 18 October 2007.
6. In the absence of any admission or concession by the appellant that the specimen documents were his handwriting, the Crown adduced the following evidence to prove that the specimen documents contained his handwriting. In relation to specimen document 1, Mr Hodges gave evidence that he had seen the appellant complete the form in his presence. There was also circumstantial evidence from Detective Schussler that police inquiries had revealed that the emergency contact numbers listed were those of the appellant's ex-wife and daughter.
7. Twenty-two persons gave evidence that the appellant had signed specimen document 2 in their presence, and Detective Schussler gave evidence he could have secured the attendance of approximately a further 10 witnesses.
8. The evidence supporting the Crown's contentions relating to the other specimen documents was circumstantial. The contents of the forms comprising specimen documents 1-3 and 8 relate solely to the appellant and they appeared to be signed by him. The appellant's name and return address on the envelopes comprising specimen documents 4-7 raise the inference that it was he who wrote them. The recipients of specimen documents 4-7 were members of the appellant's family, and Ms Natnitta Hudson, the apparent recipient of the letter contained in specimen document 7, gave evidence that she knew the appellant. The places where specimen documents 4-7 and 10 were found, about which evidence was led, link them to the appellant. The affidavits and the letter of complaint in specimen documents 5, 6 and 10 relate to legal matters personal to the appellant. In relation to these matters, a summary of other litigation concerning the appellant was adduced.
9. Mr Benn, executive director of Guardian Mortgages, gave evidence that he had spoken on the phone to a person named "David Miller" and that he received specimen document 9 accompanied by a PAYG certificate and certified copies of a passport and driver's licence in that name. The mortgage relating to specimen document 9 was the subject of proceedings brought by Guardian Mortgages against "David Miller", which were described in the summary of other litigation.
10. Evidence from a number of sources raised the inference that the appellant had used the name "David Miller". Detective Heatherington gave evidence that he obtained from the appellant a passport and driver licence in the name "David Miller". Certificates from the RTA to the effect that the driver's licence number related to a female with a different date of birth and that the RTA held no records of a "David Miller" with the listed date of birth. In addition, Richard Lynch gave evidence that a man he identified from a photograph as the appellant had spoken to him about property refinancing, by phone and in person, using the name "David Miller".
11. Finally, Mr Westwood gave evidence that in his opinion, apart from certain writings obviously placed on some of the documents by others, it was reasonable to conclude that one person wrote the handwriting on all the documents.
12. The specimen documents were admitted, over objection, in edited form. The nature of specimen document 1, relating to correctional facilities, and documents 2 and 3, relating to bail, was not disclosed to the jury. Elements of the affidavits forming part of specimen documents 5 and 10 and the complaint forming part of specimen document 6 relating to proceedings involving the appellant were redacted. Further, circumstantial evidence relating to the specimen documents was led in such a way as to avoid disclosing the appellant's past custodial sentences, such that, for instance, Edward Kennedy-Davidson gave evidence that he was working at a "residence" when he obtained specimen document 10 from the room occupied by "David Miller".

Appellant's challenge to admissibility

1. By ground 6 of his notice of appeal, the appellant contended that the court erred in admitting the evidence of Mr Westwood in relation to identification of handwriting.
2. The appellant complained that the specimen documents themselves and the circumstantial evidence as to how they were brought into existence had significant prejudicial effect and that the content of the specimen documents was irrelevant. This challenge was based on the Evidence Act, ss 55 and 137.
3. The appellant also submitted that the documents used as part of the commission of the offences were sometimes pictorial and had a different structure from the specimen documents so as to make any comparison between the two sets of documents inappropriate. He contended that the use of transparencies and magnification were prejudicial and that the methodology used by the handwriting expert, Mr Westwood, and that his comparisons and opinions were extremely unreliable. Further, he relied upon the concession by Mr Westwood that if the author of the documents had attempted to disguise his handwriting, it would render any comparisons and opinions extremely unreliable.
4. In his oral argument on the appeal, the appellant's sole contention was that Mr Westwood's opinion evidence should not have been admitted because only specimen documents 1 and 2 were verified as being the handwriting of the appellant. The appellant confirmed, on questioning by the Court, that his submission in respect of ground 6 was that the evidence of a handwriting expert must never be tendered in a trial unless and until there was evidence that each of the documents used for comparison purposes can be independently shown to be the evidence of the person whose handwriting is under analysis.

Consideration

1. The appellant has cast his submission in respect of ground 6 too high. It cannot be the case that every document must be independently verified as being the handwriting of an accused person before opinion evidence may be given by an expert concerning the characteristics of the handwriting, or whether particular documents were written by the same person. Circumstantial evidence that a particular specimen document was written by the accused person is sufficient for the purposes of admissibility. It is then a matter of weight for the jury to determine whether they are satisfied that some or all of the specimen documents contain handwriting of the accused person.
2. Having regard to that aspect of the determination, it is then for the jury to undertake the comparison exercise between such of the specimen documents as they are satisfied contain the handwriting of the accused person and the documents which, relevantly in this case, are contended by the Crown to be documents written by him as part of the commission of the offences. The jury was entitled to give such weight as they saw fit to the opinion evidence of Mr Westwood.
3. There was circumstantial evidence in support of each of the contested specimen documents. As the review above indicates, the nature and extent of that evidence varied. It was a matter for the jury to determine whether to accept any particular specimen document for the purposes of comparison.
4. Ground 6 of the amended notice of appeal is rejected.

The "unsafe and/or dangerous grounds"

1. By grounds 1 and 2 of the appeal, the appellant contended that the "verdict was unsafe and/or dangerous". Ground 2 was directed to the voice identification evidence.
2. The Criminal Appeal Act, s 6(1), provides, relevantly, that an appeal against conviction is to be allowed if the court is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
3. Pursuant to s 6(1), the Court is required to determine whether it thinks that upon the whole of the evidence it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen [1994] HCA 63; 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ; MFA v The Queen [2002] HCA 53; 213 CLR 606 at [58] per McHugh, Gummow and Kirby JJ; SKA v The Queen [2001] HCA 13; 243 CLR 400 at [12] per French CJ, Gummow and Kiefel JJ. In M, at 494, their Honours noted that: "The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand." (citations omitted) See also SKA at [14].
4. For the purposes of s 6(1), the starting point is that the jury, having seen and heard the witnesses, has the primary function of determining the guilt or innocence of the accused: M at 493; MFA at [51]. However, as was stated in M by the majority, at 494: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." See also SKA at [13].
5. There were considerable difficulties with the manner in which these grounds were sought to be argued, if in fact they were argued. As indicated earlier in these reasons, the appellant did not clearly identify a challenge to the verdicts on the basis that they were unreasonable or could not be supported having regard to the evidence. Indeed, ground 1 was framed in global terms without reference to any of the 21 counts on the indictment. In oral argument, the appellant made two references to M and a single reference to ground 1. He made one reference to this ground in relation to the voice identification evidence, but did not develop any argument on that basis.
6. In relation to the former, the appellant submitted, in dealing with the voice identification evidence and his contention that it should not have been admitted pursuant to s 137, the case "also falls under M … this Court should actually assess the … evidence, and if there is a doubt experienced by this Court, it is a doubt that the jury should have also had".
7. The appellant made a further reference to M. That reference, in the context of the submission then being made was as follows: "[COUNSEL]: My submission is based on that sample, which consequently results in the witnesses giving their evidence identifying the appellant is that it is that witness - the frailty and fragileness of that evidence should have been excluded and if it wasn't excluded -- BEAZLEY P: Excluded on what basis? [COUNSEL]: Initially an application should have been brought on for s 137 and if not that, it should be excluded on the basis that it brings no probative value to the matter. And then I suppose it is, as I mentioned under … … [COUNSEL]: M v The Queen 1994. HAMILL J: By reasonable verdicts. [COUNSEL]: Correct. HAMILL J: But in assessing the reasonableness of the verdict, you don't take a particular piece of evidence or a particular part of the evidence in isolation, do you? [COUNSEL]: No, we don't. It is not to be looked at piecemeal but as a combination of a number of pieces of evidence. And it is then to move to what I would suggest is that my submission in regards to the video evidence or the photo identification, as to why that photo identification is evidence that should not have been taken. It is again fragile evidence and the witness identification was nothing more than what was already available to the jury."
8. The appellant's argument then moved to the admissibility of the video evidence, which he accepted was relevant but submitted should have been rejected under s 137. There was no further reference to M. However, in dealing with the document that was withdrawn from the jury and its replacement with Exh BH, the following exchange took place: "BEAZLEY P: Would you just tell me what ground of appeal you are now working on, please? [COUNSEL]: It is essentially the ground 1 of the appeal, which is the verdict was unsafe and dangerous in all the circumstances of the proceedings. I have overnight made an amended document which I am happy to hand up, which just points to this point that I am talking about. … BEAZLEY P: So it's a new ground? [COUNSEL]: It is a new ground."
9. The appellant's counsel then filed in court the amended notice of appeal which included the new ground 5 in relation to the discharge of the jury. That ground was argued with no further reference to ground 1 or M, and no further submission was directed to the verdicts being unreasonable or not supported by the evidence.
10. Part of the problem in identifying the appellant's complaint arose from the lack of precision in the drafting of grounds 1 and 2. Since the decision in Fleming v The Queen [1998] HCA 68; 197 CLR 250 the use of the phrase "unsafe and unsatisfactory" has lost its currency. In that case, the Court (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) said: "The fundamental point is that close attention must be paid to the language of s 6(1) of the Criminal Appeal Act. Use of the potentially confusing phrase 'unsafe and unsatisfactory' to cover the several different elements in the sub-section is liable to mislead. There is no substitute for giving attention to the precise terms in which s 6(1) is expressed."
11. The expression "unsafe and/or dangerous" (used in both grounds 1 and 2) is even more confusing, is liable to mislead and, in this appeal, made it difficult to determine precisely what arguments the appellant sought to make.
12. This is an entirely unsatisfactory state of affairs. In a trial which occurred over approximately 96 days with 5,000 pages of transcript and 120 exhibits, the Court is entitled to much greater assistance than it received in this case. However, it was apparent that the thrust of the appellant's argument was that the voice identification evidence was of no probative value and that taken with the photo identification evidence and the evidence of the handwriting expert the verdict was unreasonable. The appellant contended that the voice recognition evidence comprised a substantial portion of the evidence at trial and that taken with the visual and handwriting recognition evidence, the sheer volume of the evidence must have had an impact on the jury.
13. On the assumption that an "unsafe" ground was pressed, we consider that in the highly unusual circumstances of this case, having regard to the way in which the appeal was argued, this ground is appropriately and fully considered by reference to the evidence in respect of these three matters. We are further satisfied that it is appropriate to do so as this evidence was the central evidence upon which the Crown case was based.
14. We have read the evidence relating to these aspects of the Crown case, not limited to those pages of transcript that the appellant identified as being relevant to his grounds of appeal. The voice identification evidence was strong evidence implicating the appellant as the maker of the various telephone calls that were part of the conduct subject of the charges. This is so notwithstanding that three witnesses could not identify, or wrongly identified, a voice as that of the appellant and some witnesses were less sure than others as to whether the voice they identified was that of the person who had telephoned them.
15. The video and photographic evidence in conjunction with the evidence of the witnesses identifying the appellant as the person entering the Airport Inn Hotel was also strong, if not overwhelming evidence that the appellant was at the hotel at the time that an email was sent from the hotel's email account to Mr Gao.
16. The handwriting evidence also strongly supported the Crown case that the appellant's handwriting was on the documents used for the purposes of the fraud.
17. In our opinion, on the whole of the evidence relating to the three aspects of the evidence discussed in these reasons, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. Indeed, we consider this was a very strong case.
18. It follows that the appeal against conviction should be dismissed.

Grounds 7 and 8: the challenges to sentence

1. Woodburne DCJ imposed an aggregate sentence in relation to the 21 convictions pursuant to the provisions of s 53A of the Crimes (Sentencing Procedure) Act. No complaint was made in relation to her Honour's approach in setting the aggregate sentence and her Honour's remarks show strict adherence to the provisions of the Act.
2. The grounds of appeal relating to sentence were in the following terms: "(7) In all the circumstances, the non-parole period was manifestly excessive and severe. (8) In the determination of the aggregate sentence and non-parole period excessive weight was placed upon the principle of specific deterrence in all the circumstances."
3. The sentence actually imposed was an aggregate term of 10 years with an aggregate non-parole period of six years. Her Honour indicated notional sentences, in relation to count 1, of 4 years and 9 months, and in relation to counts 2 to 21, of between 3 years (count 5) and 4 years 9 months (count 19).
4. The learned sentencing judge was dealing with an offender who had twice previously been sentenced to substantial terms of imprisonment for offences of a similar kind. In 2007, the appellant was convicted of obtaining an amount of money greater than $15,000 by deception and four counts of using a false instrument. In respect of each of those convictions he was sentenced to imprisonment for 4 years, with a non-parole period of 2 years, with the sentences partially accumulated. In 2009, the appellant was convicted of three counts of making a false instrument to obtain an amount of money greater than $15,000 and one count of each of using a false instrument, and obtaining an amount of money greater than $15,000 by deception. In respect of those convictions the appellant received sentences of 3 years and 4 years 6 months, partially accumulated, with a non-parole period of 3 years.
5. In view of that history, personal (or specific) deterrence had a significant role to play. Nothing in the appellant's written or oral submissions addressed the assertion in ground 8 that that too much weight was given to personal deterrence. There is nothing in her Honour's remarks on sentence to support the proposition that excessive weight was placed on that matter. The question of what "weight" is to be given to particular considerations and facts is a matter for the sentencing judge. Ground 8 is without substance.
6. The appellant submitted that her Honour was in error in determining the commencement dates of the sentence and in failing to take into account the delays in bringing the case to trial. However, a consideration of the remarks on sentence shows that her Honour gave careful consideration to the appropriate commencement date and was acutely aware of the options available to her. Her Honour concluded that to take into account pre-sentence custody in circumstances where the appellant was serving a sentence for other unrelated, albeit very similar, crimes would result in what she described as a "wholly inadequate approach". That was an approach that was open to her Honour.
7. Her Honour gave careful consideration to the delay, noting that the reasons for the delay had not been established by evidence and that she did not accept the submissions that had apparently been made to her that the appellant had rehabilitated himself during the period leading up to his current trial. In view of the appellant's stance at trial, that he was not involved in the fraudulent scheme, that finding was hardly surprising.
8. Her Honour made a finding of special circumstances justifying an adjustment of the ratio between the non-parole period and the parole period based on the accumulation of the aggregate sentence that she was to impose upon the sentences with those which the appellant was then serving. Her Honour noted that the effect of the totality of the sentencing would be that the appellant would serve 75 per cent of the total sentence in custody and that this was her intention. No error has been shown in that approach and no arguments have been addressed to it.
9. Paragraph 81 of the written submissions asserted that the sentencing judge: "… failed to take into account the special circumstance under section 44(2) of the Crimes Sentencing Procedure Act 1999 (NSW) that applied to the appellant. The special circumstance being the fact that [named police officers] were found to be withholding crucial evidence of voice recognition that was discovered after summing up by Judge Tupman in the prior trial matter. This resulted in the jury being unable to reach a verdict and a retrial."
10. This submission is misconceived. It was not further advanced or articulated in oral argument and was not a matter (assuming it was proved or accepted) which would ordinarily be considered as a special circumstance pursuant to s 44 or something that would impact on the appropriate proportion of the sentence to be served in custody.
11. The appellant also submitted that the sentence was manifestly excessive by reference to comparable cases. This Court was not referred to any comparable cases. Similarly, the trial judge noted that she had not been referred any comparable cases, "perhaps because of the nature of this particular fraud". This submission may be rejected.
12. No error has been identified in her Honour's careful and thorough remarks on sentence. The crime was a particularly serious example of fraudulent conduct. In view of the sophisticated nature of the crime, the long period over which it occurred, and the amount of money obtained by deception, the sentence imposed is an appropriate exercise of the sentencing discretion. Ground 7 should also be rejected and the application for leave to appeal against the sentence should be refused.

Conclusion

1. The Court makes the following orders: (1) Application for leave to appeal against sentence refused; (2) Appeal against conviction dismissed.

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