R v Callaghan [2001] VSCA 209

2. At about 11.40 in the morning of 7 October 1998 an armed robbery occurred at the "Barkly Square Shopping Centre" branch of the National Australia Bank in Sydney Road, Brunswick. The robbery occurred about five minutes after a "Brinks Security" armoured van had made a "drop-off" of a large amount of cash at the bank. It is clear from the demands made to the tellers by one of the two robbers that they wanted the "drop-off". The robbery, however, was characterized by a series of blunders which not only deprived the perpetrators of their principal target, but identified the applicant as one of them. The escape from the bank of a customer who eluded the robber guarding the front door short-circuited the event. This escape, according to another customer, Alan Rodden, prompted the robber on guard at the door to exclaim to his confederate in the tellers' section words to the effect "Fuckin' hurry up, Chris - one's got away". As Rodden remarked: "I thought [the statement] was completely stupid". The robbers fled from the bank into a stolen car leaving behind them notes strewn over the bank floor and frightened staff and customers on their hands and knees. A sum of about $2,700, taken from the drawers in the tellers' section, was the sole fruit of their escapade.

5. There were features of this armed robbery which are commonly seen in many of the all too frequent armed robberies of the branches of major banks in the suburbs of Melbourne. The robbers wore dark balaclavas and hooded jackets to shield their distinguishing features from the eyes of staff and customers and from the surveillance cameras which are universally installed by the banks inside their premises. The cameras do, however, disclose matters of significance. In this case they showed the robber, who played the principal role, opening the door of the bank with his left hand, and carrying a pistol in that hand. The offenders carried short-arm weapons which, in this case, the cameras demonstrated to be a black butt-loading pistol in the hands of the robber who entered the tellers' section of the bank, and a silver "ivory handled" revolver in the hands of the robber who was meant to be guarding the front door against entry and exit. The man in the tellers' section (who the Crown alleged was Chris Callaghan) also had a white bag as a receptacle for the cash stolen. They wore gloves to prevent their identification from finger-prints. And there was, of course, the recently stolen vehicle to facilitate a trouble-free escape. The wearing of disguises necessarily meant that the case made against the applicant was a circumstantial one; but in this case it was a strong one. It led to his arrest within two hours of the robbery and his ultimate conviction.

9. The case was unusual in the sense that Brinks Security staff and police had been alerted to the prospect that a robbery of a bank or a security van was likely to occur. For some three months prior to the robbery, the police were aware of the fact that one or two men in a Mitsubishi Magna sedan, registered number DIX 357, had been following and taking an interest in the movements of the Brinks vehicles as they were making deliveries to branches of the National Australia Bank in the northern suburbs of Melbourne. This car was owned by and registered in the name of Karime Perinotto who was a friend of the applicant, and known to her as "Chris". In the latter part of 1998 she had lost her licence and she "loaned" the car to him. According to her, the applicant had the use of the car "sometimes for a few weeks at a time". As early as July 1998, a security guard delivering cash to the Coburg branch of the National Australia bank had noticed this car parked in the vicinity of the bank on successive Fridays as he made his deliveries. He noticed two men whom he believed to be associated with the car taking an "unhealthy interest" in his activities. He reported his suspicions to the police. Thereafter, on 30 September 1998, employees of Brinks Securities noticed that their vehicle was being followed by the same Magna sedan as they made "drop-offs" at various branches of the bank at Barkly Square Brunswick, Preston, Pascoe Vale and Glenroy. On the same day a member of the public, who had work experience in covert surveillance, had his suspicions aroused by the same vehicle whilst it was "reverse-parked" directly opposite the Barkly Square branch of the bank at about 11.30 in the morning. There were two men in the car watching the Brinks Security van making its drop-off to the bank. He informed Brinks Security of his observations. Although none of the witnesses making these observations was able to identify the occupants of the car, they gave descriptions of one of the occupants as a man of about 5 feet 10 inches, solid build, wearing a white singlet and with shoulder length dark hair - a description broadly fitting the applicant. At about 1 p.m. on 30 September 1998 two police officers saw the applicant, wearing a white singlet and shorts standing at the corner of Fletcher Street and Mt. Alexander Road, Essendon, looking across the road towards the Essendon branch of the National Australia Bank. They then watched as he walked to and entered the Magna sedan.

12. Although the observations, to which I have referred, alerted police to the unhealthy interest which the applicant was taking in the "drop-offs" being made by Brinks Security to various branches of the National Australia Bank, they were not to know whether the target was the van itself or one of the several branches of the bank serviced by Brinks. Nor, of course, did they have any knowledge of when or where the strike would be made. Some five minutes after the robbery on 7 October 1998 the members of the armed robbery squad were informed of its occurrence. They had been following the van. Within minutes of receiving the information, police attended the home of Ms. Perinotto and also took up a position near the home of the applicant in May Street, Preston. At about 12.20 in the afternoon of 7 October, the stolen "getaway" car - a red Holden Commodore EAN 526 - was found abandoned at the corner of Barkly Street and Sterling Street, Brunswick. The vehicle had suffered damage to its steering lock, door locks and boot lock, and on the front seat police found a pair of sun glasses which did not belong to the car's owner. Subsequent investigation revealed that the car had been stolen from a shopping centre in Maribyrnong on the preceding day, 6 October 1998. At about 12.55 in the afternoon of 7 October, about an hour after the robbery, surveillance police saw the applicant driving the Magna sedan at the intersection of Victoria Street and Brunswick Street. He was wearing blue overalls, a purple "bomber jacket" and a yellow baseball cap. He was seen to alight from the car and enter a public telephone box on the corner of the intersection. About half an hour later, police saw the Magna in a car park in Newry Street, North Fitzroy. Police observed the applicant reach into the rear door of the car and retrieve a green coloured plastic carry bag which he handed to a fair haired woman, subsequently identified as Mary Darcy, who lived in a Housing Commission flat nearby at 2 Coleman Street. Having handed the bag to Darcy, the applicant re-entered the Magna and drove away. About 10 minutes later the applicant was intercepted whilst driving the vehicle in St. Georges Road. He was arrested and taken to the police office in St. Kilda Road.

15. At about 2.05 in the afternoon, members of the armed robbery squad attended the premises of Darcy at 2 Coleman Street. Darcy informed the police that the green bag, which she had shortly before received from the applicant, was in a cupboard under the stairs. She disclaimed knowing what was in it. The bag was a green plastic bag with a "Kingcraften" label on it. Inside the bag police found another orange plastic bag with a "casual guy" label. From the orange bag they retrieved an ivory handled Colt .357 revolver. In addition, they found in the green bag a black Luger pistol wrapped in a towel. This pistol contained a magazine in the butt carrying seven live rounds of ammunition. Also in the green bag were four balaclavas, two pairs of black gloves and a plastic re-sealable bag containing five bullets. From the bank surveillance video, Senior Detective Pringle - a firearms expert - expressed the opinion that the gun held by the offender at the door of the bank was of the same type as the ivory handle revolver found in the orange bag. He could express no view as to the type of weapon held by the robber in the tellers' section of the bank. On inspection of the Magna motor vehicle driven by the applicant, the police found on the front seat a white plastic bag containing a pair of royal blue "parachute type" tracksuit pants. Maria Polizzi, who was employed by the bank at the time of the robbery as its sales and service adviser, described the robber who went into the tellers' section as wearing a "parachute material tracksuit and runners" and that the tracksuit was "like a royal blue colour, not actually navy blue, or not actually light blue". Also, in the front seat of the Magna sedan police found a green and purple "bomber jacket" containing in a pocket $750 in cash stapled into four separate bundles of notes. The cash taken from the bank had not been "stapled" at the time of the robbery. The police sent the balaclavas and gloves to the Victoria Forensic Science Centre for D.N.A. analysis. Dr. Gutowski, who carried out the tests, found bodily fluid around the mouth area of one of the black balaclavas sufficient to provide a sample for D.N.A. analysis. The sample matched the D.N.A. profile of the applicant at eight different loci indicating a 34 million to one probability that the sample fluid was that of the applicant. A sample of lesser quality taken from one of the black gloves provided results at 2 loci indicating a match with the applicant's sample to a probability of sixty to one.

18. The Crown called evidence from three members of the bank's staff and five members of the public as to the events which occurred inside the bank at the time of the robbery. The staff members were Ms. Polizzi (to whom the robbers' initial instructions were addressed), Dianne Skinner and Janice Parke. The latter two were working inside the tellers' section of the bank when the robbers entered. Each gave evidence of the demands and instructions which came from the robber who ultimately entered into the tellers' area. These demands and instructions, they said, were made in raised and authoritarian tones. They included the initial instruction of "get down on the floor and don't look up"; "let me in" (that is, to the "tellers' area" which Skinner did); "where's the `drop-off'?"; "open your `drop-off' drawer" (to Skinner); "show me where the drop-off is" (to Skinner, who pointed to the safe); "who's got the keys?". These demands were mainly directed to Skinner. They were constantly repeated. In response to the demand for the keys, Skinner pointed to another teller Hieu Tran (who was indisposed at the time of trial and did not give evidence). Tran, who was trembling, had difficulty in putting the keys into the lock of the safe. This provoked a response from the robber "I don't want to hurt you love, but if you don't hurry up ...". It was whilst Tran was fumbling with the keys that the other robber at the front door yelled out that someone had got out of the bank and to "fuckin' hurry up". It was this comment which, as I have said, put a premature end to the robbery and the robbers fled without the "drop-off" for which they had obviously come. After the robbers had gone, Polizzi ran to the front door and locked it.

21. Parke did as she was bidden and lay face down on the floor. She heard the commands made by the robber in the tellers' section but, apart from noting that the robbers were men wearing masks, she did not look at them and could not describe what they were wearing or whether they were armed. Skinner and Polizzi were able to give a general description of the robbers as men wearing black or dark balaclavas, thick set and about the same height ("about 5 feet 9 inches"). Skinner could see through the mouth area of the balaclavas that they were Caucasian. She described the man giving the orders in the tellers' section as having an "Australian accent". She thought from the tone of his voice that he was "around 40 years old" (the applicant was 38 years old). She described that man as wearing gloves and carrying a "black hand-gun" which was "like a pistol ... not a revolver", but "loaded up from what I believe is called the butt, which is the handle". Polizzi, who was outside the tellers' area and was the member of staff first approached by the robber who went into the tellers' chamber, described the gun he was carrying as a "slim dark pistol" which "did not have a revolving cylinder".

24. Of the five bank customers who gave evidence, only one (Stephen Lakey) was not present for the whole time the robbery was in progress. He was the one who came to the bank whilst the robbers were there and was able to escape the clutches of the man guarding the door. He then rang the police. All he saw was the one robber wearing a balaclava. The other four customers were on the floor outside the tellers' section of the bank, but could hear the demands being made by the robber in that section. Rodden was the customer nearest the door of the bank who heard the robber guarding that door call out "Fuckin' hurry up Chris, one has got away", or words to that effect. Joanne Grogan saw what she described as a "silver gun" in the hand of one of the robbers but little else. Vincent Alviano was only able to say that he saw two men wearing balaclavas but could not otherwise describe them, although he saw them escape in a "red Commodore". Steven Athanaskas also saw them escape in the car and actually took its registration number. He said that both robbers had "very Australian ocker accents".

27. On 19 November 1998 - some six weeks after the robbery - the witnesses Skinner, Polizzi, Parke, Grogan and Rodden were asked to attend the police complex in St. Kilda Road. Each was asked by Detective Sergeant Peterson to listen to a tape which contained voices of 10 persons (of which the voice of the applicant was Number 3) and further asked whether they could recognize any of the voices as that of the robber who had been making the demands. They were also presented with an array of 12 guns, and asked whether they could recognize any as being similar to the guns carried by the robbers. Gun number 5 was the silver colt revolver taken from the bag seized by police from Mary Darcy, and gun number 6 was the black Luger pistol found in the same bag. Peterson said that these "identification procedures" were regularly carried out "these days" when victims were not in a position to visually identify offenders. They were conducted in accordance with rules designed "to be fair" and not "to suggest a particular suspect or item". The evidence was that Skinner had picked out gun number 6 as being similar to the one pointed at her. She said that "voice No.3" was similar to the robber making the demands and had asked that that voice be replayed to her. The voice, she claimed, caused her to shiver. She said "he had a deep voice like number 3". Polizzi said, in respect of voice, that she "thought" it was voice number 3 but "was not 100% sure" and, in respect of the gun, she thought it was number 6 which was carried by the robber behind the counter. She further said "possibly number 3, but more likely number 6". Polizzi, like Skinner, claimed to have suffered a "re-action" when "voice 3" was played. She also said that she had asked for the voice to be re-played to her "because that was the voice I heard that day". The witness Parke "thought" that it was voice number 9 and said it was not "number 3". Rodden thought it was gun number 8 which was held by the robber at the door of the bank but had "only got a fleeting glimpse"; in respect of "voice" he had said "No.5 or 9, similar". Grogan said that gun number 5 was "similar" - "revolving chamber and one was silver". As to the voices, she said none was the same and that she did not think that "number 3" was the one.

30. The police conducted a record of interview with the applicant at about 6 p.m. on the evening of the robbery. That record was tendered in evidence. Relevantly, he told police that he had had sole use of the Magna sedan, DIX 357, since 1 October 1998 and had borrowed it "from Karime" for various periods over the previous four months. He said that he had left his home at 10.30 in the morning of 7 October 1998 and had driven to Reservoir to visit a female friend whose name and address he refused to disclose. He said that he left Reservoir after 20 minutes but refused to state what he did thereafter "cos. it might get meself and me mate in a bit of bother". He said "I don't want to make a comment". Thereafter, so he said, he had gone home to May Street, Preston where he had arrived between noon and 12.30 to "have a bath and a shave". Because of the "gas crisis" he had to fill the bath tub with water boiled in a kettle. Before he had had his bath, he went out again to visit his friend in "nearby Fitzroy". He said "the friend" was Mary Darcy; that he had parked his car in Newry Street but "never went to Coleman Street". He denied having the green plastic bag in his car but admitted the ownership of the jacket and cash found in the Magna. In respect of the green plastic bag bearing the label "Kingcraft", he said "I don't recall that". He said that he had last been to the Barkly Square Shopping Centre when he bought a pie and a paper "about a month ago". He then said he could not recall lending the Magna to anyone else and that, if the Magna had been seen at Barkly Square on 30 September 1998, "that could be right, but I can't recall". He further said it was "possible" that he had been at Barkly Square between 11 a.m. and 12 noon "two Wednesdays ago but he "did not think it was true" that he had reversed the car into a parking bay and was watching the National Australia Bank. He agreed that, when arrested, he had "about $800" in his jacket pocket. He said that the money was his. Some of it was his "dole" money for payment of rent, and that the notes were "stapled" because he did not want to lose them. He agreed that he was a "left-handed" writer, but was not the man in the bank surveillance video with the gun in his left hand.

33. The answers given by the applicant in his record of interview became particularly significant in the light of the evidence which he gave in his own defence. He swore that, since July, he had been "sharing" his house in May Street with a man called Keith Williams, who had since died. On a number of occasions over the months before the robbery he had loaned the Magna to Williams. He said that he was not present at the bank on 3 July 1998 and that, in respect of 30 September 1998, he had spent the preceding night at a friend's home in Flemington and had arranged for Williams to drive out to pick him up at the Brickmaker's Arms Hotel in that suburb. He had met Williams at the hotel in the morning of the 30th and was told that the car was parked across the road. Williams told him he had to meet someone in the bar of the hotel; but asked the applicant to "hang around" and wait for a signal confirming whether he (Williams) wanted a lift. The applicant said he waited opposite the hotel and when Williams gave him "the nod", he had gone back to the car and driven back home at about mid-day. He said that on the day of the robbery - namely 7 October 1998 - he had got out of bed at about 10 a.m. and had started boiling water in a kettle to fill the bath. It was, he said, such a slow process that he "gave up" and went down to the local Safeway Supermarket in Preston where he made some purchases and got a receipt. He produced a receipt from that Supermarket which was dated 7 October and bore the time "10.51 a.m.". He had then gone to a café opposite the Preston Fire Station where he had read a newspaper and had a cup of tea for some 20 to 25 minutes. Thereafter he bought some bread rolls from a bakery and walked home. He did not have a watch, but said that he could not have got home before 11.30 to 12 noon. He had then recommenced to boil water for his bath. Some 20 minutes later Keith Williams came through the door, told him that he had "left something in the car across the road" and asked the applicant whether he could "take care of it". Williams had then collected some items in the house and left. The applicant said he continued with what he had been doing, had made a sandwich and a cup of tea. The bath had gone cold and he went to the car and saw the green bag which he had picked up. It felt heavy and he thought it might be "scales" of a type used for measuring drugs. He said that he had noticed a couple of sets of gloves in the bag and had also noticed a white garbage bag in the front seat. He thought there was material in it, which he proposed to throw out (this was the bag containing the blue "parachute type tracksuit pants"). He decided that he would give the green bag to someone he knew in Fitzroy to "look after for a couple of days" and had driven to a telephone box in Nicholson Street to ring "2 or 3 people". The second person he called was Mary Darcy. He then went to the vicinity of her house, parked the Magna in Newry Street and walked to her place in Coleman Street. He told her that he had a bag which he wanted her to "look after for a couple of days" and she had walked with him back to the car where he gave her the bag. He was arrested shortly after leaving and taken back to the Police Complex in St. Kilda Road where he was held, mostly in hand-cuffs, for eight or nine hours. The police said to him "how do you want to play it - the hard way or the soft way?" to which he had replied: "I'll just roll with the punches". Before being taken to the Custody Centre, the police told him they were going out to get "something to eat" and would leave him in the interview room hand-cuffed. During this time a number of police officers, other than those who had interviewed him, came in and said:

"If you won't tell us who the second gun-man is, you're wearing it anyway. We've got the bag and you're fucked."

The applicant said that, without warning, the balaclava was pulled over his head "back to front" but then swivelled around. He was hit in the kidney area to make him "spit" into it. He admitted that he had lied in his police interview because he knew "he had nothing to lose" and that, if he had given them the receipt, "it would go missing". He had given the receipt on the following day to his solicitor, Charles Nikakis. He said that he had the receipt on his person during the police interview, but had concealed it in his anus (the receipt, which was marked as trial exhibit "1", was produced to this Court. It appears to be in good condition, unfolded and unsoiled. It was for the purchase of a "chicken roll, roast pork, and turkey H/BRST".) The solicitor, Nikakis, was called as a witness for the applicant. He said the applicant had given him the receipt at the "remand hearing" on 8 October 1998. He identified exhibit 1 and said that it was in the same general condition he received it. One Cheryl Walsh was also called. She said that she worked, on 7 October 1998, at the Safeway Supermarket in Murray Road, Preston and that the receipt (Exhibit "1") bore her "user number" and that she had processed the transaction. She did not know who the customer would have been.

38. As might be imagined, this defence - and, in particular, its inconsistencies with the record of interview - was roundly attacked by the prosecutor. The applicant said that his statement in the recorded interview that he had not lent the Magna to anyone "was a lie"; that he had never before told anyone that the police had "pulled the balaclava over his head". Nor had he previously told anyone about "Williams", or the fact that he had found the bag containing the blue parachute pants in the Magna. He agreed that the bank surveillance cameras showed the bandit in the tellers' section holding the gun in his left hand, and that the guns shown in the hands of the robbers were similar to those found in the green bag. He further said that he had lied in his interview about driving to Reservoir to "visit a friend". He asserted that the DNA analysis of the balaclava was the end result of the incident in the interview room; but agreed that he had made no "complaint" (when asked) about his treatment during the interview because, as he said, "I'd be pissing against the wind". He was not able to call any witness to "verify" his alibi as to his movements on the day of the robbery, or on 30 September 1998. (He had been given leave to file an "alibi notice" shortly before the trial - well after the date required by s.399A of the Crimes Act 1958.) He said that it was he who had "stapled" the money together so that he "would not lose it". He further said that he did not tell the police about "Keith Williams" because he would be regarded as a "lagger" and "a dog". He was prepared to name him at trial because he had since died in a "hit/run" accident.

41. It was the Crown case that the defence of the applicant was constructed to "weave its way through" the highly incriminating and incontrovertible circumstances which had been proved. It was put that his statements as to the role played by Williams; that he had lent the Magna to Williams and that he had been in Preston at the time when the robbery occurred were deliberate lies told out of a consciousness that the truth would implicate him. The judge gave to the jury an "Edward's direction"[1] in respect of these asserted lies.

44. Finally the Crown led evidence of telephone calls made by the applicant to various persons after he was placed in custody in the Melbourne Assessment Prison. Prisoners are entitled to make calls from a telephone in the Prison but are warned, by a recorded message, that the calls are "monitored" and that if they do not wish to further speak, they should discontinue the calls. Notwithstanding this warning, the applicant made a number of calls to Mary Darcy and one Santini in the course of which the Crown alleged he had made statements implicating him in the crimes with which he had been charged. In particular the Crown relied upon statements which he made to Darcy:

"I'll just work it out, but I might be in a little bit of bother ..."; and "I've got a funny gut feeling, but it's not over till the fat lady sings you know. Mate, if worse comes down to worse, I'll be telling ... I mean aiding and abetting, you know what I mean"; and "If I was a teller and signed up, they would have bailed me a fuckin' month ago, you know what I mean. That's how it fuckin' works but there's no way I'll do that." (He agreed that "teller" meant "informer".)

The Crown alleged that these and other statements were implied admissions to Darcy that he was implicated in the robbery but was not prepared to implicate his co-offender or co-offenders.

49. It should be noted that before the commencement of the trial, there had been discussions between counsel and the trial judge in respect of the "vetting" of the tapes of the recorded telephone calls to eliminate what was said to be "irrelevant and prejudicial material". It was agreed that certain portions of the record should be removed from the tape recording of the conversations. In the course of one of the recorded conversations with Darcy, the applicant was speculating that he had been picked up so quickly by the police because they must have had a "tracker" on the Magna car. In the course of discussing that subject, he was recorded as saying:

"They've gone to the Drug Squad or something and said `have you got him under surveillance?'; and ... they've gone, `yeah' and they might have hooked onto the ... (inaudible)."

It had been agreed that that passage should be edited out of the tape. However, by inadvertence, the passage was not omitted from the recording played to the jury. Although the jury did not have before them, at that time, a transcription of the conversations, applicant's counsel contended that the jury would have been alert to the passage and that, because they would or might infer that the applicant was under suspicion by the Drug Squad, irreparable prejudice had been occasioned which required the judge to discharge the jury. The material was introduced almost at the end of the Crown case. The trial judge declined the application for the discharge of the jury, concluding that in the circumstances there was no "high degree of necessity" to do so because:

(1) The tape recording was not easy to follow (without a transcript) because the applicant was speaking "so quickly".

(2) Accordingly, if the offending portion was thereafter excluded from the tape, it was unlikely that significant prejudice would follow if he gave to the jury a warning that an irrelevant and inadmissible passage had been played to them and, if they were aware of it when they came to replay the tape, they should have no regard to it, and that it would be improper for them to do so. His Honour, in so ruling, said that he had considered relevant authorities such as Crofts v. R.[2] and R. v. Su[3].

57. It was upon this evidence that the jury were satisfied of the applicant's participation in the robbery and convicted him on 8 February 2000, of the offences with which he was charged. Those offences were the theft of the "getaway" vehicle (count 1) and "armed robbery of the bank" (count 2). The applicant admitted a large number of prior convictions. The trial judge, on 14 February 2000, sentenced the applicant to 12 months' imprisonment on count 1 and six years on count 2. The total effective sentence was therefore one of six years; and his Honour ordered the applicant to serve a minimum of four years before becoming eligible for parole.

60. The application for leave to appeal against conviction was not filed with the Registrar for some months after the jury's verdict, and well beyond the time limited by the Crimes Act for serving such a notice of application . The applicant asserted that he had filed a notice within time but that it must have been mislaid. Accordingly the Registrar granted leave to extend the time for the filing of a late notice. The grounds of appeal attached to this notice are as follows:

1. That the judge was in error in failing to exclude the evidence of "voice identification".

2. That the judge's directions to the jury on the use which the jury could and could not make of the material referred to in ground 1 were inadequate.

3. That the judge was in error in failing to exclude the evidence of "gun identification".

4. That the judge's directions in respect of the evidence referred to in ground 3 were inadequate.

5. That the judge was in error in failing to discharge the jury after the prejudicial material in the recorded telephone conversations had been played to the jury.

The "voire dire" appears to have become the rule rather than the exception

69. Before turning to these grounds of appeal, it is desirable that I should say something about the course which this trial took. In recent years it has become increasingly common for lengthy inquiries to be held before the trial judge, either before or after the empanelling of the jury, during the course of which witnesses or prospective witnesses are called and cross-examined upon the request of counsel for the accused. It is a procedure adopted for the determination of questions of law or fact which are said to be necessary for the purposes of securing a fair trial of the accused. In respect of inquiries made before the empanelling of the jury, it is a procedure sanctioned by and provided for under s.391A of the Crimes Act 1958. It is a procedure which is now commonly employed in cases where the Crown has given notices of intention to call witnesses additional to those whose statements have not been provided to the accused prior to committal proceedings and who, accordingly, the accused has had no opportunity to cross-examine at those proceedings. Such inquiries are known as "Basha inquiries"[4]. In the interests of ensuring a fair trial, it is also necessary on occasions for the judge to conduct proceedings on the voire dire to determine whether potentially prejudicial evidence (usually a challenged "confession") should be excluded from the evidence to be led by the prosecution. In each case, however, it is a matter for the trial judge to determine whether it is necessary, in the interests of securing a fair trial, for such an inquiry to be held.

72. When this case first came before the judge on 17 January 2000, trial counsel for the applicant (who was not counsel who appeared before this Court) announced to the Court that he wished to challenge, upon the voire dire, a significant proportion of the evidence which the Crown proposed to lead. He identified the following evidence:

iii. the evidence of the items in the green plastic bag seized by the police from Darcy;

iv. certain parts of the applicant's record of interview;

v. certain parts of the recorded telephone calls made by the applicant from the Melbourne Assessment Prison.

The application for the exclusion of the evidence was introduced by statements made to the trial judge by the applicant's trial counsel as follows:

"I can indicate there are a couple of issues I seek to raise before this matter proceeds in front of a jury. One of those is the issue in relation to the voice identification, and it won't be a challenge to the voice identification procedure itself, but rather the admissibility of some of the purported voice identification; so it will concentrate on individual witnesses rather than challenging the whole of the issues of the use of voice identification of the type undertaken. So its specific and it will be, in that sense, appealing to your Honour's discretion and the balance of probative and prejudicial value. There is an issue in relation to a `gun line-up' ... There is also an issue in relation to the seizure of a green plastic bag containing the guns and balaclavas. ... There is then material in relation to a record of interview and material in relation to recorded telephone calls ..."

There was little in what counsel said which gave any real indication of what was to follow. What in fact ensued was a voire dire which occupied five sitting days and was of similar length to the trial before the jury. Upon the application to exclude the evidence of "voice" and "gun" identification, four civilian witnesses were cross-examined, notwithstanding that those witnesses had been cross-examined at the committal proceedings, and their relevant statements tendered. Those witnesses were Skinner, Polizzi, Rodden and Grogan. The applicant's trial counsel ultimately submitted that the evidence of Skinner and Polizzi (the two witnesses who said that they recognized "Voice No.3" - that of the applicant - as the voice similar to that of the robber behind the tellers' counter) should be excluded from the evidence on the ground that it was so speculative and lacking in quality that its probative value was exceeded by its prejudicial content. Likewise counsel submitted that the "gun identification" by Skinner, Polizzi and Grogan should be excluded on the ground that there were insufficient guns in the "array" presented to the witnesses to enable the probative weight of the evidence to outweigh its prejudicial effect. The trial judge declined to exclude the evidence, for reasons to which it will be necessary for me to return.

83. Thereafter, the trial judge was invited, again on the voire dire, to exclude the police evidence of the seizure of the green bag from Ms. Darcy, and the evidence of its contents; evidence which the trial judge correctly described as "very powerful circumstantial evidence" implicating the applicant. The applicant submitted that the evidence should be excluded on "Bunning v. Cross principles"[5] because the police had obtained entry into Darcy's house by a subterfuge, without her permission and had "man-handled" her in doing so. On this aspect of the voire dire three police officers were cross-examined for lengthy periods. Darcy was also cross-examined at length, and the applicant called Mr. and Mrs. Nash, neighbours of Darcy, who attested to the fact that they had seen Darcy "man-handled" by the police into her premises. Darcy said, contrary to a statement which she had made and signed on 7 October 1998, that the police had come into her premises without her permission even though, as she said, she would have been content for the police to have entered if they had asked. The judge declined to exclude the evidence saying that even if he accepted the evidence of all the civilian witnesses:

"On any view such civil or criminal conduct involved was so minor as to fall far short of justifying the exclusion of this very powerful chain of circumstantial evidence pointing to the accused. ... Moreover, there was no unfairness to the accused, nor was the cogency of the evidence adversely affected by any such alleged misconduct."

Not surprisingly, no argument has been addressed to this Court about the appropriateness of this discretionary exercise.

88. I have briefly referred to the course of the voire dire because it points up, once again, unsatisfactory features of the criminal trial process in this State about which the Court has, for some time, had cause to comment. In R. v. Frugniet & Anor[6], the Court noted, with obvious regret, that the last two decades had seen the emergence of "the long criminal trial" and its "boon companion, the bloated voire dire", and sought to forewarn about the prospects of legislative intervention if the criminal process could not be kept within reasonable bounds. I do not intend to suggest that this case was an example of the "long criminal trial" of the type referred to in Frugniet; nor do I intend to imply any criticism of the trial judge or counsel who were engaging in a process which has been tolerated to the point where it has become common-place. What, however, should be understood is that the voire dire, involving the calling of witnesses, is not a right to be exercised at the option of counsel for the accused for challenging the admissibility of every piece of probative evidence thought to be prejudicial to the accused. In that direction lies the substitution of trial by judge for trial by jury. As Young, C.J. said in R. v. Rowley[7]:

"Although it may not be possible to say that a voire dire will never be necessary before identification evidence is allowed to be given, it can be said that it will be very, very much rarer than in the case of confessional statements. A voire dire should only be held if it is essential for the purpose of ensuring a fair trial."

(These views were accepted and followed by Crockett, J. in R. v. Liddicoat[8]).

Whether a voire dire should be held is ultimately a matter for the discretion of the trial judge, to be exercised after counsel has informed him why it is necessary. It will rarely be necessary where, as here, the witnesses have already been cross-examined at the committal proceeding, no doubt with a view to exposing the weaknesses in their evidence for the purpose of laying the foundation for the submission at trial that their evidence should be excluded. To have those witnesses further called for cross-examination before the trial judge renders redundant the purpose of the committal proceeding. Although we have not been favoured with the content of the committal depositions of the witnesses called on this voire dire, it is tolerably clear from the transcript that trial counsel's submissions to exclude the "identification evidence" of Ms. Skinner, Ms. Polizzi and Ms. Grogan proceeded on the basis of the statements which they had made, amplified by what they had said at the committal proceedings. Likewise, it seems to me that the application to exclude the evidence of the seizure of the green bag and its contents - an application which was, I think, doomed to fail - could have been determined on the assumed basis that counsel's instructions were correct, namely that the police officers had entered the premises of Ms. Darcy without her permission and had "man-handled" her in the process. If such a course had been followed, civilian witnesses would have been spared the time and trauma of cross-examination and the expense of nearly five days sitting time saved. Of course, counsel for the accused is entitled to submit, in the absence of the jury, that evidence which he contends is inadmissible, whether on the grounds of unfairness, public policy or otherwise, should be excluded in the exercise of the trial judge's discretion. But, as I have been at pains to point out, the need for calling evidence on the voire dire is something which should have been fully explored with the trial judge whose function it ultimately is to determine whether such a process is necessary. As Beach, J. said in Rowley's case (supra at pp.4-5 of his Honour's judgment:

"Voire dires are time consuming and frequently result in the incurring of considerable public expenditure. In my opinion, there is no obligation upon a trial judge to conduct one unless he is satisfied a real question of voluntariness, unfairness or impropriety has arisen. ..."

In this case, as it seems to me, the trial judge was deprived of the opportunity of reaching any such state of satisfaction because of an assumption by all concerned that no discrete inquiry was needed as to whether or not it was necessary or desirable to conduct the voire dire.

Appeal Grounds 1 and 3 - Failure to exclude evidence of "Voice and Gun Identification"

98. Mr. Croucher who appeared for the applicant in this Court, submitted, in support of ground 1, that the trial judge was in error in failing to exclude the "voice identification" evidence of the witnesses Skinner and Polizzi. As I have previously said these were the two members of the bank's staff who, on 19 November 1998, were asked to listen to the composite tape recording of ten voices (including as "number 3" the voice of the applicant) and who recognized the applicant's voice as similar to that of the robber who was behind the tellers' counter. The trial judge declined to exclude the evidence, saying:

"In my view, the evidence of these witnesses can be adequately tested in cross-examination before the jury ... and the above mentioned matters of specific criticism listed by [counsel] go to reducing the weight of the evidence, and are not only able to be fully explained by counsel to the jury, but will also have to be incorporated by me in a specific warning to the jury carrying the weight of judicial authority. Bearing that in mind, the weight of this evidence could not be exceeded by any prejudice to the accused in the form of unfairness or otherwise. The failure of each witness to make positive identifications again goes to weight, but is not a basis in the circumstances for excluding the evidence, nor is the inability of the witness to articulate any very distinctive features of the voice. [His Honour referred to various authorities.] These cases establish that this factor only goes to weight, and in none of them is there a finding that the trial judge should have exercised his discretion to exclude the evidence ... . In my view, there is no such transcending unfairness or overriding prejudice to the accused involved in the admission of this evidence, and justice can be done in allowing the evidence to go to the jury accompanied by an appropriate judicial warning to the jury. In this regard, it is pertinent to note that three other witnesses to the armed robbery present in the bank failed to identify the accused's voice among the ten recordings."

102. Before this Court, it was submitted that, for the reasons which had been advanced before him by trial counsel, the judge should have excluded the evidence "because it had little probative value compared with it prejudicial effect". Alternatively it was put that this Court should "adopt an approach to admissibility of voice identification substantially in accordance with the approach of courts in New South Wales" and that "to the extent that the law in this State differs, it should be departed from".

105. As I have previously noted, trial counsel made no criticism of the procedures adopted in conducting the "voice identification" programme on 19 November 1998. The submission (adopted by counsel in this Court) was that the evidence of Skinner and Polizzi should have been excluded, because there were factors about the evidence which rendered its probative value marginal compared with its prejudicial effect. In general terms, the factors upon which counsel relied were the lack of "positiveness" in the identification; the fact that the witnesses were under stress at the time when they heard the voices; the fact that they had no prior familiarity with the voice; nor did the voice have any peculiar distinctiveness about it apart from its "deep tone"; the fact that the robber was speaking loudly at the time of the robbery and in short and sharp sentences, Further it was put that the delay in conducting the identification procedures reduced the value of those procedures; and that the fact that each of the witnesses had a "reaction" when voice "number 3" was played, and had asked for it to be re-played, was evidence which put the accused at a disadvantage because it could not be "tested by cross-examination".

108. I am far from persuaded that, in the circumstances of this case, his Honour was in error in declining to exclude the evidence of Ms. Skinner and Ms. Polizzi from the trial. In the course of his submissions to this Court, Mr. Croucher laid emphasis upon the inability of either witness to make "positive" identifications of the applicant's voice and the fact that each of them had professed to have had a "re-action" when they heard "voice number 3", which could not - as he put it - be adequately "tested" by cross-examination but which would be likely to have "irrationally impressed" the jury; a term which was used by Ormiston, J. in R. v. Harris[9] but which appears to have been coined by Brooking, J. in R. v. Haidley & Alford[10]. Mr. Croucher submitted that, in the absence of evidence that the witnesses were familiar with the voice of the applicant and in the absence of material which disclosed that voice to have some very distinctive feature about it, the judge was obliged to exclude the evidence in the exercise of a "Christie discretion"[11]. In support of these submissions Mr. Croucher relied upon, and urged this Court to follow, a line of authority in New South Wales which appears to have commenced with R. v. Smith[12], in which O'Brien, C.J. Cr.Div. said (at 477):

"[E]vidence of the voice of a person present at a crime as being the same as the voice of the accused can only amount to positive identification where the witness is very familiar with the voice before hearing it at the crime, or that the voice heard at the crime was very distinctive, which means that the witness need not have heard the voice before the crime but heard it as the voice of the accused for the first time after the crime and then noted it to have the same very distinctive features as had the voice at the crime."

The case of Smith went to the Court of Criminal Appeal[13]. Although the Court quashed the conviction on the ground of misdirection, it approved the statement of law, to which I have referred, concerning the admissibility of voice identification evidence. It has since been followed in a series of cases in New South Wales[14].

113. It should be observed that the statement of law referred to in the preceding paragraph was made in the context of a case in which the evidence of voice identification was crucial to the proof of guilt of the accused. So it was in the case of Brownlowe (supra) where Hunt, J., who gave the leading judgment in the Court of Criminal Appeal, left open the question of the admissibility of voice identification or voice similarity evidence, where that evidence was led as some evidence in a case based upon circumstantial evidence. His Honour said (at 467):

"It should be said in parenthesis that this appeal is not concerned with any question of the admissibility of such evidence as to the similarity of the voices in support of a case based simply upon circumstantial evidence. That was not the Crown case which was left to the jury in this trial."

In any event, the law applied in New South Wales as to the admissibility of voice identification or similarity evidence is not the law which has been consistently applied in this State, where questions of "familiarity" and "distinctiveness" have not been regarded as conditions precedent to admissibility, but rather as matters going to the weight of the evidence; matters which are - subject to the judge's discretion -for the jury to decide in the light of adequate directions given to them by the judge, with the authority of his office, pointing to the dangers which the law recognizes as lurking in any form of identification evidence. In R. v. Harris (No.3)[15], Ormiston, J. (in a ruling which was in fact given on 26 March 1987) referred to the cases of Smith and Brownlowe (supra) and said (at p.317):

"There is, however, a real difficulty, as a matter of the law of evidence, in ruling as inadmissible a statement by a witness that he or she identified a person or recognized a voice. If there is little reliability in the purported identification or recognition, then that goes to the weight of the evidence only, though various powers exercisable by the judge may be invoked in cases of prejudice or unfairness. Strangely, this is one area of the law where the often-praised common sense of juries seems to be distrusted, even though the judge is required to add his warning to the voice of counsel."

His Honour went on to state that he was unable to accept that "any authority binding on me requires me to rule that the present evidence is inadmissible", and that he did "not propose to follow Smith's case". His Honour's view of the law of evidence relating to the admissibility of identification evidence was not only consistent with views previously stated by the Court of Criminal Appeal in this State[16], but it is a view which has been consistently followed thereafter[17]. (In each of these cases, the Court declined to follow the law as applied in R. v. Smith and R. v. Brownlowe (supra).) The view taken by courts in this State appears to have been followed in the Australian Capital Territory[18]; and in Tasmania[19]. Although the question of "voice identification" was raised before the High Court in Bulejcik v. R.[20], the appeal was disposed of without having to determine the question whether admissibility of voice identification evidence is or should be conditional upon the distinctiveness of the speaker's voice or upon the witness's familiarity with that voice. Nevertheless it appears to me that the observations of the majority of the Court favoured the view adopted in this State, without finally deciding the matter (see Brennan, C.J. at 382-3; McHugh and Gummow, JJ. at 406-7). However as McHugh and Gummow, JJ. observed (at 407):

"the correctness of Smith and the cases that follow it should await a case where a decision on the point is essential. It is not necessary to decide its correctness in this case."

121. This review of the authorities on the question of the admissibility of voice identification evidence leads me to conclude that courts in this State should continue to follow the principles which have been established by previous decisions of the Court of Criminal Appeal; namely that there is no rule of law which obliges the trial judge to exclude such evidence in the absence of evidence of prior familiarity or distinctiveness, although he may, in the exercise of his discretion, exclude it on grounds of prejudice or unfairness. As I have already stated, I am not persuaded that the judge in this case was in error in allowing the evidence to go before the jury upon the basis which he did. The factors which were ventilated both before him and this Court were all matters which went to the weight of the evidence, rather than its admissibility, and were matters which ultimately fell to be considered by the jury in the context of appropriate instructions by the judge. In my view, there is nothing in the point - strenuously argued before this Court - that unfairness arose because the witnesses Skinner and Polizzi felt a "shiver" or otherwise had some "re-action" to "Voice No.3". It frequently occurs that witnesses will say that they "froze" when confronted with a suspect whom they identify in a parade. Such reactions, so far as I am aware, have never led to the exclusion of evidence otherwise admissible. Furthermore, it seems to me that in this case, where the evidence has been admitted in the exercise of the judge's discretion as a "strand in a cable" in a case which was wholly circumstantial, the real question which arises for this Court is whether, having regard to the whole of the evidence, including the evidence of identification and its treatment at the trial, it would be unsafe to allow the conviction to stand. This, as it seems to me, must necessarily be so because this case did not (as in Smith (supra) and Brownlowe (supra)) stand or fall on the evidence of identification alone. It was merely part of what was otherwise a strong circumstantial case and it was inextricably bound up with the other evidence which the jury had to consider[21].

124. Nor am I persuaded that the judge was in error in the exercise of his discretion not to exclude the evidence of Skinner, Polizzi and Grogan of "gun identification". It frequently happens in cases like this, when armed robbers have heavily disguised themselves, that persons present at the crime will be asked to look at items of apparel or equipment for the purposes of expressing a view whether a particular item is similar to one seen at the crime. Sometimes it is done in court (as Tadgell, J. alluded to in R. v. Theos[22]); sometimes it is done out of court at a time when the incident is fresh in the mind of the witness. Not infrequently, witnesses are shown books of photographs (e.g. of cars) and asked to say whether they can recognize any particular vehicle or other item they saw at the crime scene[23]. None of these propositions, as I understand it, were disputed either at trial or in this Court. What was put to the trial judge, and repeated in this Court, was that the "array of guns" presented to the witnesses was insufficient to enable a "fair choice" to be made by a particular witness. In essence, it was put that, having regard to the descriptions given by the witnesses of the guns which they saw at the crime scene, they were effectively being given a "choice of one". His Honour rejected this contention. He said:

"Reverting to the question of the identification of the guns, [counsel] in summary submitted that there was only one other gun resembling No.6 in the collection presented to the witnesses, and that was No.3, to which the witnesses also referred as similar. Therefore, he contended that the other hand guns shown were not sufficiently similar for the identification to have any real value. In my view this is again a jury question. The jury may accept this contention, but on the other hand, may well regard the selection of the weapon in question as quite probative, bearing in mind that neither witness had any past experience with guns. Again [counsel's] contention is really a comment upon weight and an appropriate subject of warning to the jury, but it would not be proper for me to usurp the jury's function, however marginally, by the exercise of my discretion to exclude such evidence."

Although his Honour did not refer to the witness Grogan's selection of "gun 5" as the gun wielded by the second robber (that is, the man at the door), it is clear that his ruling was applying to her evidence; and on the same basis. Indeed no complaint was made to this Court that his ruling was deficient in that regard. In my view, the exercise of the judge's discretion to admit this evidence cannot sensibly be challenged. Indeed it was not strenuously argued before us that it could. It was not suggested that the police had deliberately set out to "get an answer which they wanted". The evidence was that the "array of guns" was "set up" by their own independent expert. The fact that the witnesses, in the absence of prior familiarity with guns, were able to select so quickly the guns which they did merely heightened, as the judge said, the probative value of the evidence. I would, accordingly, reject these grounds.

The adequacy of the judge's directions on identification evidence - grounds 2 and 4

130. In the course of his directions to the jury, the judge gave what appear to me to be full instructions as to the caution with which they should treat the evidence of identification. It is, I think, unnecessary to set them out in full. Amongst other things, he directed them, with the full authority of his office, that:

* The caution which courts are required to give in relation to visual identification "must apply even more so to witnesses giving evidence of voice identification".

* They must take into account factors which, of necessity, reduce the weight of the evidence; for example that the witnesses had, never before, heard the voice of the offender behind the tellers' counter; that it is much easier to identify a voice which is familiar; that mistakes can occur even when a voice is familiar; that the tone of the voice of the offender was "much more demanding and insisting than the tone of the recorded voices including the accused"; that the event in the bank was short, and the words spoken were "short and sharp".

* There were very limited opportunities for the voice to become recognizable to the witnesses, and there "were no really distinguishing features about the voice they described"; the voice was "Australian" rather than foreign; nothing to suggest they were particularly distinctive.

* The jury must take account of the fact that the experience must have been frightening and that, whilst some people might be capable of making accurate observations under situations of strain, others might have their powers of observation and hearing quite diminished by the terror of it all.

* The lapse of time between the event and the later "identification" is important in that "the greater the time, the more opportunity for the natural fallibility of human memory to be increased".

* The jury should consider how positive the witness was; without forgetting the personality. Some witnesses can be positive but mistaken; others cautious but correct, albeit not confident.

* That some witnesses may have "better ear for sound than others".

* That the jury "should consider the evidence of personal identification" most carefully before acting on it. Where possible "you should look for some feature or features of the evidence which tend to make it reliable".

141. In the course of his directions, the judge said that there were "two witnesses in close proximity to [the offender] each of whom swore that the playing of the recording of the third voice caused an automatic reaction, and each of them chose that voice as the one most like the voice of the offender". He said that each of those witnesses had also accurately described and identified, as one of two, the pistol found in the bag. However, he said, "by contrast a number of people present in the bank at the time who were played the same voice recordings did not identify voice No.3. Some of those did identify the Colt, the other weapon."

144. His Honour then went on to make what was clearly a comment on counsel's submissions. (He had already told the jury that they were not bound by his comments on the evidence.) He said:

"As to the identification of these weapons, it is put that the other hand-guns presented to these witnesses were not sufficiently like the weapons described to constitute a true test. But, on the other hand ... the weapons described by these witnesses, you might think, were very accurate descriptions of the two weapons, and in that sense you might feel that ... the identification of these guns was pretty spot on by these eye witnesses, but that is a matter for you."

148. The judge concluded his directions on this topic by telling the jury that "for the reasons I have stated you should scrutinize identification evidence with great care before acting on it." (my emphasis).

151. The only exceptions taken to these directions by trial counsel were:

* That his Honour should tell the jury that some witnesses positively excluded "Voice No.3".

* That he should direct the jury that one suspect identification cannot bolster another.

His Honour said that he would deal with the first matter when he was directing the jury as to the evidence given. Counsel said that that would be adequate for his purposes. His Honour declined to re-direct in respect of the second exception saying that the question of "satisfactoriness of identification" was a matter for the jury. His Honour then completed his charge and, subject to one matter to which I shall refer, no further exception was taken to it.

157. Mr. Croucher submitted to this Court that his Honour's directions to the jury on identification were defective and that, as a result, the trial had miscarried. In summary form his submissions were as follows:

* That the judge should have told the jury that one suspect identification could not be used by them to bolster another. (Ground 2(a)).

* That the judge's direction that the identification by Skinner and Polizzi of one of the guns added to the reliability of their evidence of "voice identification" was erroneous and prejudicial. (Ground 2(e) - said to be "allied" to Ground 2(a)).

* That his Honour did not stress sufficiently to the jury that the evidence of voice identification was not in fact evidence of identification, but of similarity. (Ground 2(b) - again said to be "related to Grounds 2(a) and (e)").

* That the judge should have directed the jury that they should consider that the fact that some witnesses excluded "Voice 3" as the applicant's voice bore upon the reliability of the evidence of Skinner and Polizzi. (Ground 2(c)).

* That the judge erred in failing to tell the jury that they should place little or no weight on the evidence of the "automatic reaction" of Skinner and Polizzi to the playing of the applicant's voice and should have told them of the dangers of relying upon such evidence. (Ground 2(d)).

Only the first of these submissions related to an exception taken by counsel in respect of which his Honour had declined to re-direct. Counsel nevertheless submitted that it would have been "futile" to have taken exception to the last matter, having regard to the attitude which the judge had displayed to it during the voire dire.

166. There is no doubt that in any case where identification evidence "represents any significant part of the proof of an offence" the trial judge must warn the jury of the dangers of convicting on that evidence where its reliability is disputed[24]. There is equally no doubt that the nature of any such direction should be appropriate to the case being tried, although in that context, the direction should be effective and cogent to meet the circumstances of that case[25]. It thus follows that no particular formula, in accordance with which such directions should be given, can or should be devised. As Young, C.J. said in R. v. Haidley & Alford (supra at 230):

"It is particularly important that the judgment of courts given in "identification" cases should be read secundum subjectam materiam. They should not be read as requiring a trial judge to discuss every aspect of the problems of visual identification in every case. The trial judge's directions to the jury should only be those that are necessary for the particular case before him."

170. It is against the background of those statements of what is required of a trial judge that the directions of the very experienced trial judge in this trial - and the criticisms now made of it - must be measured. When that is done, it can be seen that those criticisms have no substance. It can be assumed that experienced trial counsel (as this one was) are well aware of the obligations of trial judges to give appropriate cautions to juries in "identification" cases, and are sensitive to the need that those cautions meet the circumstances of the particular case. As I have said, the judge's directions in this case were challenged by trial counsel in two respects; and in one of those respects the judge's further directions appear to have satisfied counsel. Although it has been contended by counsel for the applicant in this Court that the further directions did not meet the criticism which trial counsel had made, nor fulfil "to the letter" what the trial judge said he would do, it is significant that those directions must have appeared to counsel, absorbed in the atmosphere of the trial, to have been sufficient; because no further exception was taken. The thrust of trial counsel's exception was that the judge had not told the jury that witnesses other than Skinner and Polizzi had "positively excluded" the applicant's voice, but that his Honour had only told the jury that the other witnesses "could not identify" that voice. This was the exception which, on my reading of the transcript, his Honour said he would rectify when he came to summarize the evidence. It is also clear from reading the transcript of his further directions that he did accurately record for the jury what these other witnesses had said and, although counsel queried whether he had, it would seem to me that he was content to leave the matter where it rested. Furthermore, I cannot accept Mr. Croucher's submission, advanced pursuant to ground 2(e), that his Honour told the jury that the fact that Skinner and Polizzi had selected gun No.6 as the weapon similar to that carried by the robber who went behind the tellers' counter bolstered the reliability of their "voice identification" evidence. What he did say seems to me to be no more than a comment to the jury pointing up the contrast which existed between their evidence and other customers who could not be as specific, or else disagreed. I agree with the submission made by counsel for the respondent that his Honour did not give the direction which is now suggested, but that it was a direction which, if given, would not have been inappropriate.

173. The point upon which Mr. Croucher laid emphasis in this Court was that his Honour was in error in not telling the jury that two "suspect" identifications could not be used to bolster one another (grounds 2(a) and (b)) and that, if they were of the view that the "identifications" of Skinner or Polizzi were suspect they could not "cumulate" their evidence to achieve a greater degree of satisfaction beyond what could be attributed to each. It is true that the judge did not give such a direction, but I am not persuaded that such a direction was required in the circumstances of this case. This was not a case where the Crown was relying upon "positive" voice identification to prove the guilt of the accused. Rather, as I have already said, this was a case where the jury was being asked to determine whether the combined force of circumstances relied upon by the Crown excluded beyond reasonable doubt any hypothesis reasonably consistent with innocence. It was in this context that the evidence of Skinner and Polizzi of voice "similarity" (not positive identification) was put before the jury; and it would I think have been inappropriate, and confusing, to give a direction of the type for which counsel now contends. The jury's task, as they were told, was to consider all the circumstances relied upon by the Crown, in combination, and not in isolated compartments. That task involved them in considering, inter alia, the evidence of all "the bank witnesses" including those who could not make any connection between the applicant's voice as recorded and the voice of the robber behind the tellers' counter. In support of his submission to this Court, Mr. Croucher relied upon a passage in the joint judgment of Young, C.J. and McInerney, J. in R. v. Burchielli[26] where their Honours said:

"Two unsatisfactory identifications do not support one another in the same way as two primary facts may lead to the conclusion of an ultimate fact",

and further (at 620-1) that the trial judge in that case had erred in not explaining to the jury that:

"two defective identifications do not necessarily support one another."

However, these comments were of course made in the context of the case which the Court was considering. It was a case where the Crown was relying upon positive identification alone to prove guilt and where the identification of one or more witnesses was indeed "suspect" for reasons which courts had traditionally recognized. In R. v. Haidley & Alford (supra at 231-2), Young, C.J. explained that the passages in Burchielli, to which I have referred, must be read in the context of the case there being considered, including the sufficiency of the judge's directions. In particular, his Honour pointed out that those passages were qualified in the sense that they were intended to make it clear that two unsatisfactory identifications do not support each other in the same way as two primary facts may lead to the conclusion of an ultimate fact; and that two defective identifications do not necessarily support one another (his Honour's emphasis). As his Honour said, "It is not that the cumulative effect of identification is to be disregarded". His Honour went on (at 231-2):

"I have made these observations because much of the argument before us proceeded upon the basis that the mere failure of the trial judge to apply some proposition which could be extracted from a judgment in one of the cases led to the conclusion that there had been a miscarriage of justice. Yet where there is a miscarriage in an "identification" case, it is not because some rigid proposition or formula has not been applied or recited, but because there is a reasonable possibility that witnesses as to identification have been mistaken. The existence of such a possibility may be inferred from ... a failure to give a direction which is appropriate to the circumstances of a particular case ..."

"No identification is perfect. Identification evidence varies widely in quality. Pieces of evidence of identification, even though each of fairly slight value, may be added together in the sense that regard must be had to their cumulative effect in asking whether the jury may be satisfied beyond reasonable doubt that the accused was the offender ..."

So in this case, where the judge had given full and fair directions as to the dangers which the law regards as "lurking" in evidence of identification, and where the jury were being asked to consider the whole of the evidence before them in determining satisfaction of guilt, it would in my view have been inappropriate and unnecessary to tell them that "two defective identifications cannot bolster each other". In my view, his Honour was correct in declining to do so.

184. The next deficiency in the directions, which counsel asserted in support of ground 2(d), was that the judge failed to direct the jury that they should place no weight on the evidence of Skinner and Polizzi that they had suffered a "re-action" when listening to the recording of "Voice No. 3". He went so far as to submit that the judge had directed the jury that the fact of such "re-action" added to the reliability of their evidence. Once again, my reading of his Honour's charge does not suggest to me that any such direction was given, and I am prepared to accept the submission of counsel for the respondent that no such direction was given inferentially. There is nothing, in my view, in the complaint made, a conclusion which is supported by the fact that no exception was taken in that regard. Witnesses, as I have said, frequently refer to "re-actions" which they have experienced in making visual or aural identifications. In my view, such "re-actions" are part and parcel of the identification and there is no obligation on the judge to tell the jury that they should be ignored.

187. Mr. Croucher further submitted that his Honour's directions were deficient because he gave "no separate directions" on the evidence of "gun identification", nor did he relate the directions given in relation to "voice identification" to that evidence. He further submitted that a specific warning should have been given about the "unsatisfactory nature" of the "array of guns" and the fact that the identifying witnesses were really being given a "choice of one". There is nothing in these submissions. His Honour did specifically relate the warnings which he had given about identification to the "guns". Having made certain observations about the "gun identification", his Honour concluded his directions by saying:

"But for the reasons I have stated, you should scrutinize identification evidence with great care before acting upon it."

The jury would have understood, having regard to the context of the charge, that the warnings which had previously been given relating to the dangers lurking in identification evidence, also applied to the evidence of gun identification. There was no need, in my view, for the judge to have told the jury that the "gun identification parade" was defective, or to have specifically warned them that they should take into account such a prospect. That, as I have said, was an argument of counsel of which, as I read the judge's charge, much was made during the course of counsel's address. Again no attack was, or in my view, could have been made by trial counsel of any deficiency in the charge in this respect. Trial judges are not bound to elevate every argument of counsel in respect of identification to the status of a warning to the jury that they should regard reasons behind that argument as a basis for treating the identification as suspect. To do so would not only make the judge's task unnecessarily complicated but also insult the intelligence of the jury.

192. For the reasons stated, I reject grounds 2 and 4.

196. This ground relates to the material in the recorded telephone tapes which was inadvertently played to the jury, and to which I have referred in paragraph [15] of these reasons. As I have said the judge declined to discharge the jury, upon the application of trial counsel. He did so on the basis that, in the form presented, the material was both "fleeting" and difficult to comprehend, and that any potential prejudice could be avoided by a direction given by him (without repeating the "offending passage") that if any juror became aware that some material which they had previously heard was "no longer on the tape", they were to have no regard to that material in the course of their deliberations and that "it would be improper to let yourself be influenced in any way by" it. Such directions were given, the jury being further told that neither party relied on the passage. In my view this was an appropriate way for his Honour to have dealt with the matter, at a time when the Crown case had almost concluded. The circumstances, in my view, were such as to have entitled his Honour to come to the conclusion that there was no "high degree of necessity" to discharge the jury[27]. Mr. Croucher contended that the material was "devastating" in the sense that it had the capacity to reveal to the jury prior criminal or discreditable conduct on the part of the applicant. That seems to me to be putting the matter a bit "high", having regard to the nature of the defence which the applicant put forward, involving as it did, the proposition that his flat-mate was leaving with him "drug related" items for him to "take care of". In the long run, however, I am simply not persuaded that the judge, in the circumstances, was in error in exercising the discretion in the manner he did. In the event that the jury followed his instructions - and there is no reason to suspect that they did not - it seems to me that no substantial risk of prejudice flowed to the applicant.42 For these reasons the application for leave to appeal against conviction should be dismissed.

206. I agree in the President's reasons that the application for leave to appeal against conviction should be dismissed. I too agree that the admissibility of voice identification was correctly decided by the trial judge according to the law in Victoria and adequate warnings about the evidence were given to the jury.

209. The cases in New South Wales concerning the admissibility of voice identification referred to by the President in his judgment at paragraphs [25]and [26] do not represent the law in Victoria.

[1] Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193.

[2] [1996] HCA 22; (1996) 186 C.L.R. 427 at 441.

[3] [1997] 1 V.R. 1 at 39.

[4] R. v. Basha (1989) 39 A.Crim.R. 337 at 339; see also Director of Public Prosecutions v. Denysenko [1998] 1 V.R. 312 at 316, per Brooking, J.A.

[5] cf. Bunning v. Cross [1978] HCA 22; (1978) 141 C.L.R. 54.

[6] [1999] VSCA 58; [1999] 2 V.R. 297 at 303.

[7] (unreported, Court of Criminal Appeal, 18 August 1986 at p.10).

[8] (unreported, C.C.A.(Vic) 2 April 1987 at p.4).

[9] [1990] VicRp 28; [1990] V.R. 310 at 319.

[10] [1984] VicRp 18; [1984] V.R. 229 at 253.

[11] R. v. Christie [1914] A.C. 545.

[12] [1984] 1 N.S.W.L.R. 462.

[13] R. v. Smith (1986) 7 N.S.W.L.R. 444.

[14] R. v. Brownlowe (1987) 7 N.S.W.L.R. 461, at 463-4, 466; R. v. Corke (1989) 41 A.Crim.R. 292 at 296; R. v. Brotherton (1992) 29 N.S.W.L.R. 95.

[15] [1990] VicRp 28; [1990] V.R. 310.

[16] cf. R. v. Donnini [1973] VicRp 6; [1973] V.R. 67 at 73, per Gowans, J.

[17] R. v. Hentschel [1988] VicRp 46; [1988] V.R. 362 at 364 per Murphy, J., 369 per Brooking, J.; R. v. Jones & Harris (1989) 41 A.Crim.R. 1 at 6-7.

[18] R. v. Omar (1991) 58 A.Crim.R. 139 at 146-7, per Miles, C.J.; R. v. Miladinovic (1992) 60 A.Crim.R. 206 at 210.

[19] R. v. Greaves & Aikman [1994] TASSC 129; (1994) 74 A.Crim.R. 370 at 378-9, per Cox, J.

[21] cf. R. v. Davies & Cody [1937] HCA 27; (1937) 57 C.L.R. 170 at 182-3; R. v. Alexander [1981] HCA 17; (1980) 145 C.L.R. 395 at 403, per Gibbs, C.J., at 430 per Mason, J.

[22] (1996) 89 A.Crim.R. 486 at 493.

[23] R. v. Marijancevic (1993) 70 A.Crim.R. 272 at 278.

[24] Domican v. R. [1992] HCA 13; (1992) 173 C.L.R. 555 at 561.

[26] [1981] VicRp 61; [1981] V.R. 611 at 616.

[27] R. v. Boland [1974] VicRp 100; [1974] V.R. 849 at 866-7.