R v Adler

COUNSEL : CV Jeffreys (solicitor) DU Arnott SOLICITORS : Jeffreys & Associates SE O'Connor CATCHWORDS : Criminal law - refusal of permanent stay - admissibility of voice identification evidence governed by Evidence Act 1995 - no threshold test LEGISLATION CITED : Evidence Act 1995 R v Smith (1984) 1 NSWLR 463 R v Brownlowe (1987) 7 NSWLR 461 R v Brotherton (1993) 29 NSWLR 95 United States v Cerone 830 Fed Rep. 2nd Series 938 (1987) R v Hentshel (1988) VR 362 CASES CITED: R v Harris (No 3) (1990) VR 310 R v Miladinovic (1992) 60 ACR 206 Bulejcik v The Queen 185 CLR 375 R v Cassar (1999) NSWSC 321 R v Colebrook (1999) NSWCCA 262 R v Leung (1998-9) 47 NSWLR 404 DECISION : Leave to appeal refused

HEYDON JA SMART AJ IRELAND AJ Wednesday 23 August 2000

1 HEYDON JA: The Court is in a position to deliver judgment now in this matter which has a degree of urgency because the trial is scheduled to commence tomorrow. I will ask Smart AJ to deliver the first judgment.

2 SMART AJ: Pursuant to s 5F of the Criminal Appeal Act 1912 George Adler seeks leave to appeal against the decision of Judge Shadbolt, following a hearing on the voir dire, to admit the evidence of Mrs Vera Antonia Konsuo that the man who telephoned her and deceived her by a series of false representations was the applicant. It was a case of aural identification. Mr Adler also seeks leave to appeal against the refusal of a permanent stay of proceedings. Once the evidence of aural identification is admitted it could not be said that the prosecution was bound to fail and accordingly that basis for a stay would not exist. The Crown has further contended that its case was not bound to fail even if the evidence under challenge was rejected although it concedes that it would face some difficulties. 3 The draft indictment contains some 12 counts charging that on various dates between 1 October 1996 and 1 November 1996 both inclusive the applicant dishonestly obtained for himself or another person a valuable thing, namely, a cheque in a specified amount drawn in favour of Cornelius Van der Heul by deception by specified representations which he knew to be false. In view of the number of representations pleaded the precise terms of counts in the indictment may require further consideration to avoid duplicity problems. 4 The Crown case is that the applicant, while an inmate at the Metropolitan Remand and Reception Centre, telephoned Mrs Konsuo, a travel agent, and represented that she should invest in shares in a company called Natfibre, that it was a secure investment in water filtration and she would receive a specified return ($4.82 for every dollar invested in counts 1 to 7). The Crown alleged that the applicant knew these representations were false, in that shares in the company Natfibre were not available to the public, the company was not involved in water filtration, that he was not authorised to sell shares in, nor secure investors for Natfibre and that he had no authority to hold out any figures indicating a return on investment to a member of the public.

5 In respect of counts 8, 9, 10, 11 and 12 the amount represented as a return to be received was $5.61 for every dollar invested and as to counts 8, 9, 10 and 12 there was a further representation that she would get a return of $128,000.

6 The judge summarised the evidence of Ms Konsuo. It appears from her evidence that she first met the applicant in 1992 or 1993 when, as a travel agent, she did some work for him. Over approximately a month and a half she transferred money for him, rearranged an airline ticket for his adult son and made travel arrangements for Mr George Adler and his family. The transfer transactions were all handled by Ms Konsuo and accomplished when he came to her office. The money transfer transactions took between eight and 20 minutes each and these occurred on three or four occasions. The occasion on which the ticket details were altered also involved him attending at the office and giving instructions and attending on a second occasion. There was conversation between Ms Konsuo and the applicant on these occasions. On another occasion when she arranged a holiday trip for the applicant and his family the applicant attended at her office for about 45 minutes during which time she made the bookings and was paid. Again there was conversation between Ms Konsuo and the applicant. 7 Ms Konsuo thought that the last time she spoke to the applicant face to face was in 1993 or possibly late 1992. She said that the applicant had a well educated outstanding male Australian voice but she had more than 100 male customers with the same voice qualities. She agreed that when the applicant spoke to her in June 1996 and raised the question of investing in Natfibre she did not go through the mental exercise of trying to identify the voice of the person that spoke to her on the telephone as that of the applicant as he had identified himself by name in the conversation as the applicant. 8 Despite persistent cross-examination she remained firm in her view that the person who spoke to her from June 1996 onwards was the applicant and that she recognised his voice. That was on reflection. 9 The judge reviewed a series of decisions as to voice identification and then considered the terms of the Evidence Act 1995 and the effect of this Act on the previous decisions. 10 The judge referred to R v Smith (1984) 1 NSWLR 463 where O'Brien CJ of CrD reviewed the law on voice identification placing considerable reliance on some United States decisions, R v Brownlowe (1987) 7 NSWLR 461 and R v Brotherton (1993) 29 NSWLR 95. The judge also referred to a series of American cases, perhaps the most significant of which is United States v Cerone 830 Federal Reports, Second Series 938 (Eighth Circuit, 1987) in which the Federal Court of Appeal said in para 17: "Any person may identify a speaker's voice if he has heard the voice at any time... Minimal familiarity is sufficient for admissibility purposes. Attacks on the accuracy of the identification go to the weight of the evidence and the issue is for the jury to decide..." 11 That case was decided after Smith and was probably not available in Australia when Brownlowe was decided. The approach in Cerone differs from the view taken of the United States decisions in Smith. The primary judge also noted that Smith's case had not been followed in Victoria, in R v Hentshel (1988) VR 362 at 369, R v Harris (No 3) (1990) VR 310 at 316- 317, nor in the Australian Capital Territory in R v Miladinovic (1992) 60 ACR 206. Smith has also not been followed in Tasmania.

12 The judge also referred to the decision in Bulejcik v The Queen 185 CLR 375 and had regard to the terms of the judgments in that case. That decision did not resolve whether the principles stated in Smith and applied subsequently were correct.

13 After that review the judge considered the Evidence Act 1995. This deals specifically with identification evidence and it was upon that Act that the judge based his decision. The judge, after having regard to the terms of the definition of identification evidence in the dictionary of the Act, s 116 and s 55 held: "The foregoing indicates a clear intendment to alter the common law by making provision for the reception of voice identification without any threshold considerations whilst leaving a discretion to exclude under ss 135 and 137. In short, save for the direction under the identification section, identification evidence is to be treated as all other evidence which has been of course, the view of the Court of Appeal in Victoria and the Supreme Court in the ACT." 14 I agree with the approach taken by the judge. 15 Identification evidence in the dictionary of the Act is described as follows: "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."

16 Section 116 of the Evidence Act provides that where 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." 17 There are three sections in the Act designed specifically to deal with identification evidence. They are contained in Part 3.9 and comprise sections 114, 115 and 116. Section 114 deals with visual identification evidence, S115 deals with evidence of identification by pictures and s 116 deals with directions to the jury. Sections 114 and 115 contain threshold tests. There is no corresponding test as to voice identification evidence. Section 116 uses the phrase "identification evidence" and that picks up the definition to which I have earlier referred. The legislature envisaged that s 116 applied to directions given in respect of identification evidence as defined and that includes voice identification evidence. I also add a reference to s 165(1) which provides for a warning to be given as to identification evidence.

18 The admission of voice identification evidence is governed by s 55 (1) of the Act which makes relevant evidence admissible and requires no threshold question to be resolved.

19 Mr Jeffreys for Mr Adler referred to three decisions in this Court, namely, R v Cassar [1999] NSWSC 321 (Sperling J), R v Colebrook [1999] NSWCCA 262 and R v Leung (1998-9) 47 NSWR 404 at 410. None of these cases decided the point that has now come before this court. From Cassar it appears that the point was not argued; in Colebrook the applicant was unrepresented, the matter was not fully argued. The Court made some general observation but did not deal specifically with the point. Leung does not seem to take the matter any further. No assistance is to be gained from these cases. 20 The judge considered whether the evidence should be excluded on discretionary grounds and resolved that question in the negative. Mr Jeffreys submitted that the judge's discretion had miscarried and that in the exercise of his discretion he should have attached very considerable weight to the principles enunciated in Smith. The judge was conscious of the arguments which had been advanced and he took the view that the probative value of the evidence was high and outweighed the danger of unfair prejudice to the complainant. The evidence was prejudicial but was not unfairly so. 21 There is no sound ground for holding that the judge's discretion miscarried.

22 A further matter needs to be mentioned. The Crown has contended that even if the voice identification evidence were rejected there is other evidence from which an inference could be drawn that the caller was Mr Adler and not somebody else. It relies on these matters. Some time after the last payment on 1 November 1996 there were a number of telephone calls by the applicant to Ms Konsuo. It was the same voice that she had dealt with over the telephone which induced her to part with 11 payments. In one telephone call (and there were a number), he said $15,000 had been paid into her account. It was, but the cheque was later dishonoured. In another call he said $65,000 had been paid into her account; it was, but the cheque was dishonoured. 23 On another occasion he telephoned her and said that Graham Boys of Concrete Constructions would give her some money. The Crown said that Mr Boys will give evidence that in two separate telephone calls the applicant asked him to write a cheque for Vera Konsuo firstly for or $15,000 and secondly for 65,000. Both cheques were subsequently dishonoured as the applicant did not live up to his promise to Mr Boys to transfer funds into his account to cover them. Mr Boys can identify the applicant's voice. 24 The Crown contends that on 9 January 1997 Ms Konsuo's account was actually credited with $6,815. On that day the applicant telephoned Andrew Sinclair and asked him to pay $6,815 into Vera Konsuo's account which he did. Mr Sinclair is to give evidence and he can identify the applicant's voice. 25 In March 1997 the applicant telephoned Dr Chen and asked him to pay $10,000 into Vera Konsuo's account which he did. Dr Chen is to give evidence and he can identify the applicant's voice. 26 Count 5 involves a cheque made out to cash for $5,000 which the applicant's son (Rodney) picked up from Vera Konsuo on 17 October 1996. That day $5,000 in cash was handed to Levitt & Co, solicitors, in part payment of the applicant's legal costs. 27 Count 7 involves a cheque made out to cash for $10380. This was picked up by Rodney Adler from Ms Konsuo on 25 October 1996. That day $10,000 in cash was handed to Levitt & Co in part payment of the applicant's legal costs. 28 Count 9 involves a cheque made out to cash for $13,000 which was picked up by Rodney Adler from Mrs Konsuo on 29 October 1996. That day cash in the sum of $13,000 was handed to Levitt & Co in part payment of the applicant's legal costs. 29 A Correctional Service Officer will give evidence that on 5 May 1997 he was monitoring inmates' telephone calls. On that day he listened into the applicant's telephone call and the applicant asked Joy to put him through to Vera. He talked about her getting $80,000 that day. Apparently since the submissions have been prepared it has become known that Joy will say that she cannot make such a transfer. 30 We have been told by the Crown that there is a further witness who has given or is giving a statement to the Crown to the effect that the switchboard for the relevant telephone number did have the capacity to transfer calls through to Ms Konsuo and that many calls were received from Mr George Adler. 31 Mr Jeffreys submitted that the evidence available to the Crown would not be sufficient for it to make out a case in the absence of the voice identification evidence. There is a body of evidence from which adverse inferences can be drawn. This is a case where the evidence will have to be taken before any decision can be made. 32 This second matter points up indicates the difficulty that any application for the grant of a permanent stay faces. Even if the voice identification evidence is admitted and the stay is refused, the applicant retains all his appeal rights. 33 A case has not been made out for the granting in this court of a stay of proceedings. On the materials before us the voice identification evidence would appear to be admissible, there being no threshold questions. Its weight becomes a matter for the jury. In any event the other matters on which the Crown relies would need to be investigated and led. Leave to appeal should be refused. 34 HEYDON JA: I agree with Smart AJ. 35 I wish to add this. I agree also with the reasoning of Shadbolt DCJ, subject to one correction. He said that "Of those sections which govern identification per se, namely 114, 115 and 166, only the latter section is relevant to voice identification". His reference to "166" is a typographical error for "116". To s 116 should be added s 165, which specifically refers to the giving of warnings about the reliability of various forms of evidence including voice identification. 36 The primary submission, which was put with considerable capacity by Mr Jeffreys, was that if the principles stated in the line of cases commencing with R v Smith [1984] 1 NSWLR 463 were to be removed by statute, there must be explicit mention of voice identification evidence in the part of the Act which deals with identification. There is in my judgment explicit reference by reason of the fact that ss 116 and 165 turn on the definition of identification evidence. Identification evidence is defined as meaning evidence that is an assertion by a person to the effect that a defendant was, or resembles "(visually, aurally, or otherwise)", a person who was, present, or a person at or near specified places. What is encompassed within the words "or otherwise" is unclear. They may be intended to cover such unusual cases as identification by touch or identification by the sound of a person's particular gait. 37 In view of the specific threshold requirements for the reception of visual identification in s 114 and of picture identification evidence in s 115, coupled with the absence of specific threshold requirements for the reception of other forms of identification evidence, sufficiently explicit language appears to have been employed to meet the criterion for which Mr Jeffreys contended. 38 The three cases to which he drew attention this morning can be dealt with as follows. R v Cassar [1999] NSWSC 321 did not involve any consideration of the argument which Shadbolt DCJ adopted. Indeed, according to Sperling J in paragraph [27] of his reasons for judgment, 'it was common ground" in the submissions by the Crown and the accused that the relevant test was to be found in the R v Smith line of authority. In R v Colebrook (1999) NSWCCA 262 the appellant was unrepresented and the court, on its own motion, examined whether the voice identification evidence was admissible. There was no recorded submission on the part of the Crown or the accused advancing the argument which Shadbolt DCJ accepted. In R v Leung (1999) 47 NSWLR 405, Simpson J appears to have reserved the correctness of the R v Smith line of authority. In paragraph [25] of the judgment in particular she said of it: "All these decisions concerned the pre-Evidence Act admissibility of voice identification evidence. It will be necessary to return to a consideration of these decisions. They are not, in my opinion, relevant to the question whether the evidence was rendered admissible by s 78." 39 The evidence to which she referred was the evidence of an ad hoc expert on the identification of voices on tape. 40 Some support is given to Shadbolt's DCJ's conclusion by Mr Howie QC, as he then was, in "Identification Evidence Under the Evidence Act 1995" (1996) 3 Criminal Law News 13 at 15-16. He opined that there "is nothing in the Evidence Act which limits voice identification as was done under the common law of this state." 41 For the reasons given by Smart AJ and for those additional reasons, I support the order proposed by Smart AJ. 42 IRELAND AJ: I also agree with Smart AJ and the remarks which have been made by Heydon JA. 43 HEYDON JA: The orders of the Court will be the orders as proposed by Smart AJ.

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.