Nguyen v R

Background

1. In March 2012, a police investigation into the supply of illegal drugs in south-west Sydney identified a man, Thanh Hao Huynh, as a significant supplier. Warrants were obtained to monitor mobile telephone services believed to be used by Mr Huynh. In the course of that monitoring, a number of calls and texts were intercepted from two mobile services, sufficiently identified as 617 and 997, both of which involved a female voice, believed to be the same person in each case. On none of the calls did the woman identify herself by name.
2. After a meeting between two undercover officers and Mr Huynh, involving the supply of half a kilo of ice, Huynh was arrested. Shortly thereafter, Ms Nguyen was arrested after being observed travelling in the passenger seat of her car (driven by another person) and parking in Lord Street, Cabramatta. A search of the car revealed a mobile phone for the 617 number located under the front passenger seat (where she had been sitting) and a sim card for the 997 number located in her handbag. The prosecution case was that Ms Nguyen was an organiser of Mr Huynh and supplied him with drugs for on-sale by him.
3. In the course of an interview, electronically recorded, Ms Nguyen asserted that the 617 mobile phone located under the front seat belonged to a friend. Part of the prosecution case involved the identification of intercepted messages between those telephones and Mr Huynh as coming from Ms Nguyen. At her trial, a police officer, Constable Van der Hout, who had listened to the recorded conversations and Ms Nguyen's record of interview, gave evidence that the female voices on each telephone intercept were the one person, and were the person who was interviewed, namely Ms Nguyen.
4. The primary ground on which Ms Nguyen sought to appeal against her convictions was that the evidence of Constable Van der Hout purporting to identify the voices recorded by way of telephone intercept as that of Ms Nguyen was inadmissible (ground 1). She also challenged three aspects of the directions given by the trial judge to the jury, namely the directions on circumstantial evidence (ground 2), as to the effect of s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) (ground 3) and as to the significance of her not giving evidence at the trial (ground 4).
5. To the extent that Ms Nguyen requires leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) that leave should be granted with respect to ground 1. With respect to the other three grounds, no complaint was made about the directions given to the jury in the course of the judge's summing up and accordingly leave is required under the Criminal Appeal Rules, r 4. Leave should be refused in each case. (Ms Nguyen will be referred to hereafter as "the appellant".)

(a) the evidence and ruling

1. Constable Van der Hout gave evidence that he had monitored telephone communications in relation to three mobile devices associated with Mr Huynh, including one referred to as the 590 number. He said that between 12 April and 15 May 2012 a total 44,523 communications were intercepted, including voice calls, text messages and what were generically described as "mobile internet data product." [1] He estimated that he monitored 70% of the communications. He also gave evidence that there were a total of 23 voice calls between the 617 number and Mr Huynh's 590 number. There were also calls between the 997 number and Mr Huynh, but the total number of voice calls is not revealed in the evidence. [2] There were many text communications between the 617 and 590 numbers, but these were not relevant to the voice identification evidence.
2. The critical evidence of Constable Van der Hout came in two parts, namely, first in relation to the separate mobile services and, secondly, in relation to the mobile services and the record of interview. In relation to the mobile services, the constable gave evidence in the following terms: [3] "Huynh received a voice call via mobile telecommunications service …617 from a female person who did not identify herself. However, I immediately recognised the voice of the female as being the same voice of the user of mobile telecommunications service …997."
3. The second identification was in the following terms: [4] "I have reviewed the interview of the accused Nguyen, … and immediately recognised the voice of the accused as being fairly loud, with a slight Vietnamese [sic] and the same HRI, high rising inflection, as the user of mobile telecommunication service …997 and …617."
4. By way of extrapolation, Mr Van der Hout gave further evidence as to how he made the identification: [5] "'During the calls I have also matched the accused using the reference of Down West used on both 13 April 2012 … during a call to Huynh from the female using service …997 and again during an SMS from Huynh from [to?] service …617 on 15 May 2015 …. I believe that the accused Nguyen commonly refers to a familiar location as Down West. As a result of both voice identification, voice characteristics and common references I believe [the appellant] to be the user of both mobile telecommunication services …997 and …617. I estimate that in addition to the two months during which I reviewed the telecommunication intercept material, I also spent a further two weeks reviewing and replying [replaying?] certain calls as a part of the investigation. I then spent approximately five days reviewing the transcripts of the calls with the actual intercepted material to ensure their accuracy for Court.' Q. So you looked at the transcripts and listened to the voices? A. Yes. … Q. I just want you to explain what you mean by voice identification. What does that phrase mean in your evidence? A. Through listening to those calls and then listening to the ERISP and matching those voices I say that's voice identification. Q. A general identification, is that what you're saying? A. Yes. Q. And then there's voice characteristics. What do you mean by that? A. The certain way in which the accused spoke with that Vietnamese accent and her high-rising inflection. Q. And common references? A. Being Down West."
5. The identification evidence was the subject of objection and was given, in the first instance, on a voir dire. The judge ruled that the evidence was admissible and, on 11 August 2014, delivered a brief judgment on the objection. The dispositive passage in the reasons read as follows: "In the circumstances I am of the view that the officer was able to give evidence of his comparison of the voices and I then formally allowed the evidence to be given. I wish to emphasise that it was not given on the basis of any expertise but on the basis of his comparison of the voices, the voice intercepts which he had become familiar with over the period that I have referred to above."

(b) legal principles and statutory provisions

1. To address ground 1, it is necessary to consider the voice identification evidence on three bases. The first, being that adopted by the trial judge, made no reference to the exclusionary opinion rule, but rather treated the evidence as admissible under the general law. On that approach, it is necessary to address s 9(1) of the Evidence Act 1995 (NSW), which provides as follows: 9 Application of common law and equity (1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.
2. On the first approach, the exclusionary rule provided in s 76 of the Evidence Act is not engaged. A second approach accepts that the exclusionary rule is engaged, but that the exception for lay opinions in s 78 applies. Those sections read as follows: 76 The opinion rule (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. … 78 Exception: lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
3. The third approach, which also accepts that the exclusionary rule is engaged, relies upon the exception for opinions based on specialised knowledge found in s 79. As it could not be said that Constable Van der Hout had undergone some training or study, admissibility depended on his experience, as creating specialised knowledge of the voice of the appellant, an understanding characterised in the case law as "ad hoc expertise". Section 79 reads as follows: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. …

(c) general law principle

1. It is readily apparent that the language used by the trial judge did not reflect the language in any of the statutory provisions. That is understandable: a line of authority in this State holds that the term "opinion evidence", as used in the Evidence Act, does not refer to identification evidence, whether visual or aural. "Identification evidence" is defined in the Dictionary to the Evidence Act in the following terms: identification evidence 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.
2. There are specific provisions of the Act relating to "visual identification evidence" (s 114), "picture identification evidence" (s 115) and the need for specific directions to the jury in respect of identification evidence generally (s 116). The commonly identified problems with respect to identification evidence may also lead to exclusion under s 135 or s 137. Otherwise, the criterion for admissibility of identification evidence is relevance, as identified in s 55 of the Evidence Act.
3. These propositions were established by this Court in 2000 in R v Adler. [6] That decision was followed in Regina v Riscuta and Niga. [7]
4. This approach reflects an entirely conventional understanding of legal principle. It is, of course, true that all identification evidence is, in a generic sense, opinion evidence. [8] As noted by J D Heydon, in Fryer v Gathercole, [9] Parke B stated in the course of argument, "in the identification of a person you compare in your mind the man you have seen with the man you see at the trial". Indeed, there is a sense in which all evidence based on perceptions involves inferences drawn from such a comparative exercise. [10] To describe a person as having yellow hair draws on an assumed understanding of the meaning of the words "yellow" and "hair", and an opinion expressed on the basis of that implicit comparison.
5. When the Evidence Act came into force, there was some doubt about whether a particular view of common law principles derived from the decision of O'Brien CJ of Cr D in R v E J Smith, [11] and not widely followed in other jurisdictions, continued to operate, not by excluding identification evidence under the opinion rule, but by the imposition of preconditions to the admission of identification evidence. So much is clear from the discussion in Adler; it is also apparent from the starting point of the discussion of principle in E J Smith, where the trial judge stated: [12] "It is, I think, clear as a general proposition that an accused may be identified by his voice and by his voice alone and that evidence of such an identification is admissible."
6. The finding in Adler, reaffirmed in Riscuta and Niga, was that any preconditions to admissibility which may have been derived from E J Smith in New South Wales can no longer operate with the language of the Evidence Act. The contrary was not suggested in this Court. On that basis, the trial judge made no error in admitting the evidence of Constable Van der Hout.
7. It is important, however, to note that the proper approach to this kind of identification evidence does not depend entirely upon the definition in the Dictionary to the Evidence Act. That definition implies a combination of two factors, namely that (1) the accused was at or near the place where an act was done or the crime committed and (2) the witness was also at or near that place, so that the account given by the witness identifying the person as the defendant fulfils par (a) of the definition. Further, the fact that par (b) refers to a report of such an assertion indicates that the reference to "defendant" is not to be taken narrowly, but would refer to a suspect in a line up or to identification from a photograph. That reading is necessary to make sense of ss 114 and 115 of the Act. Further, a purposive approach to ss 114-116 (and s 165) suggests that a narrow approach should not be taken to the definition of "identification evidence", with the result that it has been held to include "recognition evidence". [13] As the Chief Justice noted in Trudgett, "the literal words of the definition can lead to absurd results. This is a frequent occurrence when a flexible common law principle is forced into a rigid verbal formulation." [14]
8. There are, as the facts of Trudgett demonstrated, limitations on what can properly be treated as identification evidence. In terms of ordinary usage, the evidence given by Constable Van der Hout in this case was identification evidence. When he heard the appellant's voice in the record of interview, he immediately connected it with the voice he had heard on the recorded telephone intercepts. This evidence is at two stages removed from that which was identified as identification evidence by the common law in E J Smith, both at trial and on appeal, [15] and R v Brownlowe. [16] In both those cases, a witness who had been present at the crime identified the voice of the offender as the voice of the accused, having heard him speak on a subsequent occasion in court. It was the important distinction between (a) hearing the offender speak and recognising the voice from previous familiarity and (b) a subsequent recognition in the absence of any previous familiarity, which was an important factor affecting reliability identified in E J Smith. [17] Both of those cases involved the accused and a witness both present at the same time and place.
9. Adler, too, may be described as a case of recognition evidence in person, the witness, based on having spoken to Mr Adler on previous occasions, said that she recognised his voice on the telephone at the time of the offending. Nevertheless, it was not correct to say that the assertion was by a person who was, literally, "present at or near" the same place as was the defendant, in the terms of the definition.
10. The question for present purposes is whether the general law concept of identification evidence can extend to recorded statements by an offender, identified pursuant to a subsequent recognition of the voice of the accused. Riscuta and Niga supports such a view. The aural recognition was given as evidence of a translator who had listened to a voice on tapes which she was translating and then, some years later, had recognised the voice as that of a person speaking in the court room, whilst she was waiting to give evidence.
11. If the general law principle as to the admissibility of identification evidence extends to such evidence, stripped of the narrow language of the definition of "identification evidence" in the Act, there is then a question as to whether the Act has otherwise provided. Thus, if the Act recognises the general principle that identification and recognition evidence are either an exception to the opinion evidence rule, or that rule does not cover such evidence, then there is a question as to whether the narrow definition of identification evidence in the Act, together with the express language of the opinion rule, have changed the general law. It is arguable that the cases which deal with such evidence by way of "ad hoc expertise" (discussed below) may reflect a belief that this is the case. However, those cases do not appear to address the question in that way.
12. By treating identification evidence as falling outside the exclusionary opinion rule, the Act does not affect the operation of that general law principle. The restriction found within the definition of "identification evidence" in the Dictionary to the Act, gives rise to no implied limitation for the purposes of s 9(1) of the Act, so that the general law principle continues to operate. Thus the general law principle continues to operate with respect to voice recognition and voice identification evidence, subject to exclusion pursuant to ss 135 and 137 and subject to necessary warnings based on unreliability (s 165).

(d) test of relevance

1. The conclusion set out above leaves one other constraint which may be derived from the general law. On one view, adopted by Wigmore, evidence should not be admitted of a comparison which can equally be undertaken by the jury, having before them the same evidence as that relied on by the witness. That principle appears to have been incorporated into the concept of relevance identified by the High Court in Smith. That is, in such circumstances, the views of the witness, assuming that he or she brings no specialised expertise to the task, are irrelevant, and may indeed be prejudicial if the witness is clothed in some apparent authority, described by the appellant as "the white coat effect".
2. That constraint should properly be acknowledged and should apply whether or not the witness is clothed in any apparent but insubstantial authority: the test should be whether what the witness has done is different in degree from that which the jury could do in undertaking the necessary comparative exercise. That constraint, however, does not apply in the present case. It was clear that Constable Van der Hout, had spent far longer in familiarising himself with the voices on the tapes than the jury could be expected to do. Nor was he clothed in any apparent expertise or authority, beyond the legitimate knowledge acquired by that exercise.
3. The factual element in that assessment may be tested by reference to the approach adopted by counsel for the accused at the trial. If the jury were in a similar position to the officer in comparing the recordings, counsel would have been in an identical position. Had there been some apparent flaw in the approach adopted by the officer, it could thus readily have been revealed by cross-examination, and, to the extent necessary, by replaying the tapes. In fact, the evidence of Constable Van der Hout was not challenged in any such fashion. (Nor was any particular direction sought from the judge in relation to those matters.)
4. While the last consideration may not have been known to the judge at the time he made a ruling on the voir dire, it is relevant to an assessment of possible miscarriage. Accepting that the general law principle, subject to the constraint based on relevance, requires an evaluative judgment, there was no error in the present case.
5. However, if the general law principle as to the admissibility of identification evidence is to continue to operate it must be because the Evidence Act does not provide otherwise, expressly or by necessary intendment. While it can be seen from the provisions discussed above that the Evidence Act makes express provision for "identification evidence" without identifying circumstances in which it is inadmissible, it remains to consider the specific provisions dealing with opinion evidence.

(e) exception for lay opinion - s 78

1. A similar result can be achieved pursuant to the second approach, by applying s 78 of the Evidence Act. That reasoning assumes that the evidence otherwise falls within the exclusionary opinion rule. It is also based on the view that the expression of opinion is relevant, in the sense of carrying probative value. The two limbs of s 78 then require, first, that the opinion (as to the identity of the speaker on the telephone intercepts) was based upon the perception of the witness "about a matter or event" and, secondly, that the statement of opinion was necessary to obtain an adequate account or understanding of the witness's perception "of the matter or event."
2. The matter or event identified by the first limb is the identity (or not) of the speaker of the two sets of recordings. The identity of the speaker on the intercepts was a critical fact in the case against the accused. With respect to the second limb, absent reliance on some form of mechanical device to compare sets of sounds, the latter limb of s 78 may readily be seen to be fulfilled. Although Constable Van der Hout gave some tolerably unsophisticated analysis of the comparison he had made, it is clear that this was not a precise analysis of the reasons for thinking that two recordings were spoken by the same person.
3. In submitting that s 78 did not operate in the present circumstances, the appellant placed weight on the decision of this Court in R v Leung. [18] She contended that the reasoning of Simpson J (who delivered the principal judgment) was the subject of agreement by the other members of the Court, being Spigelman CJ and Sperling J. That proposition was not correct: both other members of the Court expressly dissociated themselves from the analysis of Simpson J as to s 78 and reserved their positions as to the scope and effect of that provision. [19]
4. The reasoning of Simpson J turned on whether there was a "matter or event" relevant to the proceeding. [20] It was that matter or event which was perceived by the witness and on the basis of which the witness formed an opinion. Simpson J continued: [21] "Put more simply, s 78 is designed to permit evidence of opinion that would facilitate the understanding of evidence otherwise relevant and admissible. The section assumes that the matter or event as perceived by the witness is relevant to the proceeding. That is the primary evidence. The opinion evidence is admissible as incidental to an understanding of the primary evidence."
5. Applying that analysis, the primary matter or event in this case was the telephone communications between a suspect and the known supplier, Mr Huynh. The issue was whether the suspect was the accused. The evidential basis for establishing that the suspect was the accused was a comparison of the voice so recorded and the voice of the accused recorded in the course of her police interview.
6. Simpson J analysed the matter on the facts before her in the following form: [22] "Translating those observations to the present question, the relevant matter was the identity of the speakers on the DAT tapes [digital audio tapes]. Mr Fung's [the police translator's] perception of that matter did not become relevant until he had formed his opinion as to that identity. Evidence of his opinion was therefore not necessary to obtain an adequate account or understanding of his perception. It was his opinion evidence that was said to render his perception of the matter or event relevant and admissible. Without his opinion, there was no 'matter or event' perceived by him, understanding of which would be facilitated by evidence of his opinion. His opinion was the primary, not the incidental, evidence."
7. With respect, there is a different and preferable way of undertaking the analysis. It is that the matter or event which Mr Fung perceived was the suspect's voice on the audio recording. That was the primary fact, of which evidence could be given (no doubt with appropriate explanations and translations), by playing the tapes to the jury. The issue in the proceedings was whether the person speaking on the tapes was the accused. To establish that fact, it was necessary to make a comparison between the voice of the accused and the recording of the suspect. On the assumption (without which the opinion rule was not engaged) that the comparative exercise resulted in an opinion, without resort to specialised knowledge or expertise, the next question was whether to convey that opinion to the jury it was necessary to give evidence of the inference drawn from his perceptions. Because the comparative exercise could not be adequately described, that element was satisfied.
8. On that approach, s 78 was engaged. Furthermore, looked at from a practical perspective and an understanding of the general law approach to identification evidence, s 78 allows for the same leniency in relation to the admissibility of identification and recognition evidence from lay witnesses as did the general law. Alternatively, s 78 demonstrates that the Act does not provide otherwise, through the exclusionary rule with respect to opinion evidence, either expressly or by necessary intendment.

(f) ad hoc expertise

1. The third approach, which was the main thrust of the submissions for the appellant, was that for the evidence to be admissible, it had to constitute expert opinion evidence. The only basis upon which that could be justified, so the submission proceeded, was if Constable Van der Hout could be characterised as an "ad hoc expert". That required discussion of a line of authority in this Court in which such evidence was, in some cases, admitted on that basis, including the 1999 judgment of this Court in R v Leung. [23] Although reference was made in Leung to E J Smith (and other pre-Evidence Act authorities) the fundamental proposition identified in E J Smith, noted above, was not addressed. Although R v Leung was referred to in passing in Adler, and perhaps because judgment in Adler was delivered immediately following the hearing, the trial being scheduled to commence the following day, the departure in point of principle was not noted. [24]
2. The result of this diversion from a straightforward principle is that a raft of jurisprudence is being created in relation to the concept of an "ad hoc expert". The latest discussion in this line is the judgment of this Court in Nasrallah v R. [25] The issue identified at the commencement of that judgment was described as "an important question as to the use of police officers as ad hoc voice identification experts in criminal trials." The analysis commenced with the judgment in Leung which was said to have been accepted in Irani v R. [26]
3. The following passage in the reasoning in Nasrallah is significant: [27] "The trial judge also cited the remarks of Wood CJ at CL to like effect in R v Madigan [2005] NSWCA 170 at [92], where his Honour said 'there are no preconditions for the admissibility of voice identification evidence, other than relevance under s 55 of the Evidence Act' (citing R v Riscuta and Niga [2003] NSWCCA 6 at [34] per Heydon JA). However, the remarks of Heydon JA in Riscuta (and the decision of R v Adler (2001) 52 NSWLR 451 cited by his Honour as the authority for that proposition) were not concerned with voice identification evidence given by an ad hoc expert. They were cases in which the identification in question was made by a person who had some prior familiarity with the voice the subject of the identification."
4. The point of distinction sought to be drawn in this passage revealed a misunderstanding of the scope of the principles established in Madigan, Riscuta and Adler. There was no reference to "ad hoc expertise" in the reasoning of Heydon JA in Riscuta (not properly dismissed as "remarks") because it was a central part of that reasoning that the opinion rule was not engaged.
5. Reference was also made in Nasrallah to the judgment of the High Court in Smith v The Queen. [28] That case does not take the matter further in terms of binding authority. The issue identified in the joint reasons of Gleeson CJ, Gaudron, Gummow and Hayne JJ was whether the fact that two police officers recognised the person in bank photographs taken during the course of a robbery as the accused was relevant to any issue before the jury. The joint reasons concluded: [29] "The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury. … Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision maker permitting substitution of the view of another for the decision-maker's own conclusion."
6. In subsequent dicta the joint reasons noted that in circumstances where such evidence of identification is relevant, questions of admissibility will then arise, which "would very likely include questions about the application of the opinion rule (s 76) and the questions presented by the general discretion to exclude evidence …". [30] This did not resolve any issue as to whether visual or aural identification evidence constituted opinion evidence for the purposes of the Evidence Act.
7. Kirby J, who wrote separately, accepted that the evidence was relevant and therefore considered its admissibility. Kirby J referred to the experience that "very great risks of wrongful conviction and miscarriages of justice can attend identification (and recognition) evidence generally" and concluded that "it is unsurprising that identification evidence of the kind offered by the two police officers has normally been classified as opinion rather than factual evidence." [31]
8. Of the authorities referred to by Kirby J in support of his conclusion, none was decided under the Evidence Act. Only one was a decision of this Court, namely R v Palmer. [32] That case involved identification evidence with respect to those accused of committing two armed robberies. Street CJ (with whom Lusher J agreed) noted the submission that the identification evidence was inadmissible on the basis that it was opinion evidence. [33] The Chief Justice merely stated that such evidence was "clearly admissible." [34] Glass JA agreed, with some further observations in relation to identification evidence: [35] "I can see no difference in point of principle between the identification evidence tendered here and the more usual kind which identifies the person observed at the scene of the crime with a person appearing in a police photograph. It is accordingly within authority and principle both opinion evidence by persons without expert qualifications and so far as it relates to past recognitions within an exception to the hearsay rule."
9. This passage was applied by Mitchell ACJ in R v Smith, [36] a second case relied on by Kirby J. [37] It is clear that, to the extent that these judges experienced in the common law were treating identification evidence as opinion evidence, it was not to be treated as such for the purpose of the exclusionary rule. This line of authority does not contradict the reasoning adopted above as to admissibility.

(g) conclusion on ground 1

1. The trial judge was right to admit the evidence, for the reasons he gave. Leave should be granted with respect to ground 1, but the appeal on this ground dismissed.

Direction on circumstantial evidence (ground 2)

1. The appellant challenged the direction on circumstantial evidence on the ground that it was "so confusing as to amount to a miscarriage of justice." In dealing with this ground, which involved matters of impression which are not easily assessed simply by reference to a transcript, the appellant conceded that no complaint was made about the direction at trial and accordingly leave was required under the Criminal Appeal Rules, r 4.
2. The passage in the summing up about which complaint was made under this ground was set out by the appellant in her written submissions and appears from the transcript of the first day of the summing at pp 13-14. It is a lengthy passage and need not be repeated here. Although the ground of appeal suggested that the complaint concerned reasoning from circumstantial evidence, that categorisation is unhelpful for two reasons.
3. The first reason is that, although some texts, including those by J F Stephen and Wigmore, [38] adopt the phrase, it is not a term of art but rather a descriptive label which operates differently depending upon its context. On one understanding, perhaps that adopted by the appellant in her submissions, it covers an inference sought to be drawn from primary facts.
4. Secondly, the focus of the passage relied upon was the obligation to be satisfied of the guilt of the accused beyond reasonable doubt. The judge referred to the need to be satisfied of a particular fact beyond reasonable doubt if it was an essential step in reasoning to guilt. The judge also referred to the need to be satisfied beyond reasonable doubt in circumstances where the primary facts provided strands which, taken together, must lead to only one conclusion. It was submitted that there was error in directing the jury that "it should consider the established facts in order to draw its conclusion; and only then to consider whether there is some alternative, reasonable explanation". That submission was inconsistent with the premise of ground 2, namely that the directions referred to circumstantial evidence. To the extent that the direction did refer to circumstantial evidence, that is inferences to be drawn from established facts, it was entirely correct for the judge to direct the jury to consider first the primary facts and then consider whether there was a reasonable explanation for those facts, that is an inference to be drawn from them, other than guilt.
5. There are passages in the transcript which may appear obscure, depending upon where the punctuation is placed. It is, however, commonplace (and no criticism of the transcription service) that punctuation is lacking or misplaced. That is one reason why the Court should be reticent about accepting submissions to the effect that a direction was confusing in circumstances where on one reading and with assumed punctuation, it was not confusing and where no request was made at the time for a further direction. As the Director also noted, the submission that "this direction was so confusing as to be unintelligible" was, perhaps, unfortunate rhetoric. On the one hand, the statement exaggerated the level of difficulty which the jury may have had with the direction. On the other hand, if it were indeed unintelligible, it is all the more surprising that no request was made for a redirection and it may, in any event, have done little harm.
6. The Director submitted that, even if there were force in the criticism of the direction given in the early part of the summing up, the following day the judge returned to the question of inferences and gave an impeccable direction less than 10 minutes before the jury was sent out to consider its verdict. [39] This direction undoubtedly clarified the manner in which the jury should deal with inferences and explained why counsel for the accused at the trial made no application for any further direction.
7. Leave to rely on this ground, pursuant to r 4, should be refused.

Failure of appellant to give evidence

1. Ground 3 stated that the judge's direction on the effect of s 29 of the Drug Misuse and Trafficking Act was erroneous, because it undermined the right of the applicant not to give evidence. Ground 4 alleged that the trial judge erred in failing to give a direction about the significance of the applicant not giving evidence. These grounds are conveniently addressed together.
2. The reference to s 29 of the Drug Misuse and Trafficking Act was a reference to the statutory presumption that possession of not less than the trafficable quantity of a prohibited drug shall be deemed to be possession for supply. The presumption will not operate if the accused proved that she had the drug in her possession "otherwise than for supply".
3. As the prosecutor explained in his closing address, [40] the issue only arose in respect of drugs found on premises at Brown Street, Ashfield. The Crown had to establish that the amount of approximately 0.5kg of methylamphetamine was in the possession of the accused; if it was, then the statutory deeming provision applied.
4. There were two factual inferences relevant to that aspect of the case. The first was that, according to the prosecution case, Mr Huynh had agreed to supply the undercover agents with 2kgs of ice. Some 1.5kgs had been delivered and their case was that the other 0.5kg was that found in the Ashfield premises. Secondly, it was relevant that the accused neither called evidence, nor gave evidence, which would suggest possession otherwise than for supply, assuming that possession had been proved. Rather, she disputed that the prosecution had proved possession beyond reasonable doubt.
5. The passage in the directions about which complaint was made in the case for the applicant on appeal, read as follows: [41] "There is one particular rule of law that comes into operation and you must apply it, however, the law says that you must consider the amount, specified quantity, and as I have indicated for counts 2 and 3, that the amount was in excess of 250 grams and there is the opportunity for an accused person to allege or to say that there was a reason that the person had that substance in their possession."
6. Immediately after that passage the judge continued: "Now in this case, the accused has not given evidence and I will give you a direction that you must apply in respect of that but you do have evidence that is before you as to what the accused said to the police firstly, at the roadside when she is arrested at 2pm on 15 May and in respect of the interview."
7. Again, there is a risk in taking one passage out of context, and in taking it in isolation from other relevant directions. In the earlier passages on the first day of the summing up, the judge distinguished carefully between counts 1, 2 and 3, which were described as involving "actual supplies", [42] and count 5, which was referred to as "the deemed supply matter." [43] When the whole of the passage, including two paragraphs preceding that complained of are read together, as they would have been heard by the jury, it is tolerably clear that the judge was speaking throughout about count 5 and the half kilogram in the flat in Ashfield. References to what had been said or indicated in respect of counts 1 and 2 and counts 2 and 3, read in context, reveal that a comparative exercise is being undertaken.
8. As the parties each acknowledged, the reference to the commercial quantity of methylamphetamine was an error, but nothing turned on that mistake.
9. Once it is accepted that, read in context, it is tolerably clear that the judge was dealing only with count 5 in that direction two further propositions follow. First, the direction, however unclear, could only apply to a count involving possession and not actual supply. Secondly, where an accused person has not given evidence, some care must be taken in explaining the legal principle with respect to deemed supply without imposing an apparent obligation on the accused to give evidence or to have some inference drawn against her. Particularly is that so where her defence was that she did not have possession of the half kilogram found in the Ashfield premises.
10. This too was a challenge to the directions in respect of which no further direction was sought at trial. It is a situation where there was almost certainly a forensic decision not to seek further directions on this matter. It is not an appropriate case in which to grant leave under r 4.

Further direction - silence of accused and burden of proof

1. Section 20 of the Evidence Act provides that, in a criminal proceeding, the judge may comment on a failure of the defendant to give evidence, but not in such a way as to suggest that the failure was because the defendant was, or believed that she was, guilty of the offence concerned. In this case, it was not suggested that the trial judge made any comment which offended this provision; rather, it was contended that he failed to give a direction which sufficiently reinforced the fact that the burden of proof at all stages remained with the prosecution and that the strength of the prosecution case was not augmented by the failure of the appellant to give evidence. The appellant called in aid the following passage from the joint reasons of the majority in Azzopardi v The Queen: [44] "It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt."
2. The passage in the summing up identified as deficient was in the following terms: [45] "Now there is a matter that I would like to explain to you and that is where the evidence in this case is - it has been put before you entirely by the prosecution. The direction I give you in respect of that is this, the accused has not given nor called any evidence in response to the Crown's case. There is a number of important directions of law which I must give you in relation to that fact. Although an accused person is entitled to give or call evidence in a criminal trial there is no obligation upon either he or she to do so. As I have pointed out the Crown bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence charged. What weight you give to that fact, that the accused is a person of good character is a matter completely for you but you should take that fact into accounts in the ways which I have indicated to you."
3. This passage followed on immediately after reference to the fact that the appellant had no criminal convictions, was taken to be a person of good character and entitled to have that fact taken into account in her favour on the question of whether the prosecution had proved her guilt beyond reasonable doubt. The judge had noted that the jury could reason from good character to the unlikelihood of having committed the offences charged. That appeared to be the focus of the judge's direction. However, it is also true that the warning, while reiterating the obligation of the prosecution to prove guilt beyond reasonable doubt, did not expressly state that the silence of the accused could be used either to fill gaps in the prosecution case, or give strength to some part of the prosecution evidence.
4. As Hunt AJA said in R v Wilson, [46] with the agreement of Grove and James JJ, the High Court had not purported to state a rule or requirement in Azzopardi. [47] Furthermore, an omission to give a direction of that kind would only constitute error if it could be shown to give rise to a miscarriage of justice. [48] That will always be so where no direction, or further direction, was sought at the trial. A miscarriage will arise where the accused may have lost a chance fairly open to him of being acquitted, [49] a matter which will call for an evaluative judgment in the circumstances of the individual case. No doubt it may properly be said that the failure to give a direction in terms deemed "almost always … desirable", in the language used in the joint reasons in Azzopardi, may readily give rise to that conclusion unless there was no real likelihood that the jury would misuse the silence of the accused.
5. On the other hand, the joint reasons in Azzopardi did not provide a formula for any particular comment or direction. Understandably, that would depend on the circumstances of the particular case. For example, the reference to not filling gaps might well be obscure if no assistance were given as to where such gaps might lie, by reference to the defence case. Similarly, a direction that silence would not be a "make-weight" would probably require some further direction as to the factors as to which the accused person might have peculiar knowledge and might thus be expected to respond, if there were an innocent explanation. Whether such details would assist an accused is likely to be a matter of forensic judgment in the individual case.
6. The difficulty in formulating an additional direction would have been exacerbated in the present case by two further factors, namely that some exception would need to be crafted for the practical effect of the deemed supply charge and, secondly, the fact that the jury had before them the recorded interview with the appellant, in which she had answered some questions, but selectively declined to answer others.
7. In these circumstances, unsurprisingly, no attempt was made to formulate a further direction. More importantly, it was not submitted that there were particular gaps or weaknesses in the prosecution case which might have been improperly supplemented by the failure of the appellant to provide an explanation at trial.
8. Shortly stated, the prosecution relied upon the sending and receiving of calls and texts on the 997 number and, particularly, the 617 number to demonstrate a joint criminal enterprise between the appellant and Mr Huynh. The mobile phone with the 617 sim card was found under the front passenger seat of the car in which she had been observed shortly before her arrest. The 997 sim card was found in a handbag in the boot of the car. The 997 number was recorded in the name of the appellant. The 617 number was in a false name and address.
9. Police surveillance located the appellant's car, with her inside it, at various locations consistent with the locations of intercepted calls. There were the recordings of the voices on intercepted calls and on the record of interview, which the jury had available to them and were invited to listen to, quite apart from the evidence of Constable Van der Hout.
10. This Court was not invited to listen to that material, but there is no reason to suppose that the evidence did not, if accepted, provide a powerful basis for upholding the prosecution case. Nor was there any reason why the objective evidence would not be accepted at face value. It was not in dispute that the intercepted messages were concerned with drug dealing.
11. There was further detailed surveillance evidence supporting the presence of the appellant at various locations relating to the collection and transfer of drugs.
12. All of this material was relied upon by the Director on the appeal to demonstrate that, in the event of error, there was no substantial miscarriage of justice, within the terms of the proviso to s 6(1) of the Criminal Appeal Act. The material also demonstrated no miscarriage of justice of the kind which would warrant the grant of leave with respect to r 4, in relation to the inadequacy of the direction with respect to the absence of the appellant from the witness box. In those circumstances, leave should be refused.

Conclusions

1. With respect to grounds 2, 3 and 4, leave to appeal should be refused. With respect to ground 1, leave should be granted, but the appeal dismissed.
2. R A HULME J: I have had the benefit of reading in draft the judgment of Basten JA. I am in general agreement with his Honour but have come to the view that leave to appeal should be refused in respect of all grounds.

Ground 1 - admissibility of voice identification evidence

1. The challenge to the trial judge's ruling that the voice identification evidence of Senior Constable Jacob Van Der Hout was admissible was, in this Court and the court below, primarily based on the contention that it was not relevant; the officer was in no better position than the jury to compare the voice(s) in the covertly recorded conversations with the applicant's voice as recorded in her police interview.
2. The issue was argued in this Court on the basis that the evidence was, or was not, admissible pursuant to s 79 of the Evidence Act 1995 (NSW). Both parties contended that it was not admissible under s 78 and neither suggested it was admissible under the general law. I am satisfied that the evidence was admissible under s 79. It is, accordingly, unnecessary to consider the other bases of admissibility.
3. The evidence in chief of Senior Constable Van Der Hout on the voir dire was, in large part, adduced before the trial judge by way of tender of his statement. That statement was not provided to this Court but its substance was adduced when the officer later gave evidence before the jury. I draw the following from that evidence and the more limited oral evidence on the voir dire.
4. Senior Constable Van Der Hout was one of three officers who were assigned the task of monitoring intercepted telecommunications during the investigation from 12 April to 15 May 2012. There was a total of 44,523 "mobile products" (voice calls, text messages and mobile internet data). He estimated that he monitored 70 per cent of all intercepted products.
5. In the course of carrying out this monitoring, the officer may have listened to calls a number of times; stopping, starting and restarting to listen again. He did this to ensure the accuracy of summaries he was required to prepare. He listened to the calls again after having heard the recording of the police interview. In summary, he said that "in addition to the two months during which I reviewed the telecommunication intercept material, I also spent a further two weeks reviewing and replying [sic - replaying] certain calls as a part of the investigation. I then spent approximately five days reviewing the transcripts of the calls with the actual intercepted material to ensure their accuracy for court". That was up to the date of his statement of 29 August 2013. He also listened to the calls after that date.
6. In the early phase of the investigation in some calls to/from the phone of Thanh Hao Huynh Senior Constable Van Der Hout detected conversation with a female using a phone with a number ending in 997. There was no dispute that this was the applicant's phone. It appears that there were nine such calls and Senior Constable Van Der Hout claimed to recognise the applicant's voice in seven of them; the other two were either indistinct or too short.
7. On 2 May 2012, Huynh received a call from a female who did not identify herself using a phone with a number ending in 617. When Huynh asked, "Who's this", she replied, "It's my new number". Senior Constable Van Der Hout said that when this call was intercepted he immediately recognised the voice as the same as that of the female who used the 997 phone. From 2 May to 15 May 2012 there were 23 intercepted voice calls between Huynh's phone and the 617 phone.
8. The officer claimed to have recognised the voice in the recording of the police interview immediately he heard it but he had listened to that recording "maybe at least ten" times "just like to make sure of myself".
9. The officer claimed to identify the applicant's voice by reference to a combination of three matters: the way in which the person spoke; voice characteristics; and common references. In relation to voice characteristics he referred to a loud female voice; a very distinct high rising inflection at the end of a sentence; and a habit of speaking in English with a Vietnamese accent but sometimes lapsing into Vietnamese language. By common references he meant the repeated use of the phrase "down west" (e.g. "Just come down west").

Determination

1. Two of the three bases upon which the officer made his identification of the applicant's voice were readily capable of being drawn to the jury's attention and for them to make their own assessment. But the officer relied upon the overall sound of the voice as well as the attributes he was able to articulate. The amount of time he invested in repeatedly listening to the calls and the applicant's police interview is something that would have been impractical for the jury to replicate. The evidence was relevant for this reason.
2. There is no need to deal with other more technical aspects of the applicant's argument in relation to this ground for the very reason that on no account could it be said that admission of the evidence, even if erroneous, led to a miscarriage of justice, let alone a substantial one. This is for two reasons.
3. First, the evidence of Senior Constable Van Der Hout was not the subject of any serious challenge. It was never put to him that he was mistaken. In his cross-examination before the jury counsel then appearing for the applicant certainly queried his approach. But the following rather benign question was the highest attempt to impugn his evidence: "Q. And you in terms of those calls would not entertain a proposition that it may have been [different] female voices in any of those calls? A. I believe it's the same female in all of those calls."
4. In his closing address to the jury, the applicant's counsel did not concede that it was her voice in the 617 phone calls. He repeatedly couched his submissions in terms of "If Ms Nguyen is the female speaker" and the like. But at no point was there any suggestion that the jury should doubt that it was her voice. Moreover, counsel effectively conceded that the 617 phone was in the applicant's possession on her arrest; he suggested that the jury should put aside any thought that it was "distasteful and reprehensible" that she falsely attempted to claim to the police that the phone belonged to her friend, Jenny Dang.
5. It was not the defence case at trial that the applicant was not involved in the various communications upon which the Crown relied. Rather, it was that even when those communications were taken into account the jury would not be satisfied beyond reasonable doubt that (a) she was involved in a joint criminal enterprise with Huynh to supply drugs to the undercover officers and (b) she was in possession of the drugs the subject of Count 5.
6. Secondly, aside from the evidence of Senior Constable Van Der Hout there was a powerful circumstantial case that the applicant was the female speaker in the 617 phone calls. The Crown provided a summary of only some of the strands of this case in its written submissions (CWS at [36]). The content of the conversations tied in very neatly with text messages and events observed by surveillance officers. To take merely one example, she was seen to be using a phone at the same time as the 617 phone was involved in a call.
7. During the course of oral argument in this Court it was suggested to the applicant's counsel that the circumstantial case could be taken to be overwhelming. He did not exactly agree but conceded "there certainly was some strength in the prosecution case, there's no doubt about that".
8. The admissibility of the evidence the subject of this ground was challenged at trial and so, unlike the other grounds, r 4 of the Criminal Appeal Rules does not apply. The applicant requires leave nonetheless pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Given the very peripheral importance of the issue and the overwhelming case otherwise presented against her and not now the subject of any challenge, leave to rely upon this ground should be refused.

Grounds 2, 3 and 4

1. There were some aspects of the summing up that were, with respect, garbled. The direction about circumstantial evidence was difficult to understand but it was rectified by a later direction about the care the jury should take in drawing inferences. The directions in which reference was made to the deeming provision in s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) and those which dealt with the applicant not having given evidence were somewhat unintelligible. However, the lack of any complaint by the very experienced counsel who appeared at trial and, once again, the strength of the circumstantial case against the applicant point to them not being productive of any miscarriage, let alone a substantial miscarriage, of justice.

Order

1. I propose the following order: Leave to appeal against conviction refused.
2. SCHMIDT J: I have had the benefit of reading in draft the reasons of both Basten JA and RA Hulme J. I agree with RA Hulme J that leave to appeal should be refused on all grounds.
3. In relation to Ground 1, as to the admissibility of the voice identification evidence of Senior Constable Van der Hout, what was in issue was whether his evidence was relevant and admissible under s 79 of the Evidence Act.
4. The concept of an ad hoc expert, who can be called to give opinion evidence such as that sought to be called from the Senior Constable, has long been recognised (see R v Butera (1987) 164 CLR 180). In Regina v Leung and Wong (1999) 47 NSWLR 405; [1999] NSWCCA 287 it was held at [40] that s 79 is sufficiently wide to accommodate the idea of such an ad hoc expert.
5. RA Hulme J has explained the experience on which the Crown's case that the Senior Constable had the expertise which rendered his evidence both relevant and admissible under s 79 rested. That section provides that the opinion rule does not apply to opinion evidence which is based on a person's specialised knowledge "based on the person's training, study or experience", where the opinion "is wholly or substantially based on that knowledge".
6. All that the Senior Constable had done, in the performance of his duties, which on the Crown's case resulted in his claimed specialised knowledge and the formation of the opinions about which he gave evidence, was not, as RA Hulme J has explained, able to be replicated by the jury. In the result, I too consider that his evidence was correctly admitted, as it was both relevant to what was in issue at the trial and admissible under s 79, given the experience on which his opinions rested.
7. Otherwise I agree with RA Hulme J's reasons and with the order which his Honour proposes.

Endnotes

1. Tcpt, 30 July 2014, p 93; 441.
2. Tcpt, p 339(35).
3. Tcpt, p 442(20).
4. Tcpt, p 459(5).
5. Tcpt, pp 461(35)-462(49).
6. (2000)-(2001) 52 NSWLR 451; [2000] NSWCCA 357 (Heydon JA, Smart AJA and Ireland AJ).
7. [2003] NSWCCA 6 (Heydon JA, Hulme J and Carruthers AJ).
8. J D Heydon, Cross on Evidence (10th ed, Butterworths, 2015) at p 1046 (29095).
9. (1849) 13 Jur 542 at 542 (Ex).
10. See R v Browne and Angus (1951) 99 CCC 141 at 147 (O'Halloran JA) (BCCA).
11. [1984] 1 NSWLR 462 (E J Smith (1984)).
12. E J Smith (1984) at 466C-D.
13. R v Trudgett (2008) 70 NSWLR 696; [2008] NSWCCA 62 at [19]-[33] (Spigelman CJ, Hulme and Latham JJ agreeing).
14. Trudgett at [20].
15. R v E J Smith (1987) 7 NSWLR 444.
16. (1987) 7 NSWLR 461.
17. 7 NSWLR at 456-457 (Lee J).
18. (1999) 47 NSWLR 405; [1999] NSWCCA 287 (Spigelman CJ, Simpson and Sperling JJ).
19. Leung at [1] and [67].
20. Leung at [29].
21. Leung at [33].
22. Leung at [34].
23. See fn 18 above.
24. See Adler at [19] (Smart AJA) and [38]-[39 (Heydon JA).
25. [2015] NSWCCA 188 (McCallum J, Hoeben CJ at CL and Adams J agreeing).
26. [2008] NSWCCA 217; Nasrallah at [21].
27. Nasrallah at [23].
28. (2001) 206 CLR 650; [2001] HCA 50.
29. Smith at [11].
30. Smith at [16].
31. Smith at [56]-[57].
32. [1981] 1 NSWLR 209.
33. Palmer at pp 210C-D and 213A-B.
34. Palmer at p 213E.
35. Palmer at p 214E.
36. (1983) 33 SASR 558 at 560; see also at 562 (Zelling J) and 563 (Cox J agreeing with both).
37. See also R v Griffiths [1997] 2 Qd R 524 at 526 (Macrossan CJ, Pincus and Davies JJA).
38. Referred to by Heydon in Cross on Evidence at pp 15-17.
39. Summing up, Tcpt, 14/08/14, pp 24-26.
40. Tcpt, 12/08/14, p 2(42).
41. Summing up, 13/08/14, p 23.
42. Summing up, p 19.
43. Summing up, p 18. (Count 4, which dealt with knowingly taking part in the manufacture of methylamphetamine, had been the subject of a directed acquittal.)
44. (2001) 205 CLR 50; [2001] HCA 25 at [51] (Gaudron, Gummow, Kirby and Hayne JJ).
45. Summing up, 13/08/14, pp 27-28.
46. (2006) 62 NSWLR 362; [2005] NSWCCA 20.
47. Wilson at [19].
48. Wilson at [20].
49. Wilson at [21]. 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. Decision last updated: 02 February 2017