[2016] HCA 14
Irani v R [2008] NSWCCA 217
Nasrallah v R
R v Nasrallah [2015] NSWCCA 188
R v Leung & Anor (1999) 47 NSWLR 405
[1999] NSWCCA 287
R v Marsh [2005] NSWCCA 331
R v Menzies [1982] 1 NZLR 40
Smith v The Queen (2001) 206 CLR 650
Source
Original judgment source is linked above.
Catchwords
[1987] HCA 58
IMM v The Queen (2016) 257 CLR 300[2016] HCA 14
Irani v R [2008] NSWCCA 217
Nasrallah v RR v Nasrallah [2015] NSWCCA 188
R v Leung & Anor (1999) 47 NSWLR 405[1999] NSWCCA 287
R v Marsh [2005] NSWCCA 331
R v Menzies [1982] 1 NZLR 40
Smith v The Queen (2001) 206 CLR 6502020/89279
Publication restriction: Nil
Judgment (5 paragraphs)
[1]
Judgment
This phase of the pre-trial proceedings pertains to an objection taken to some voice identification evidence proffered by Federal Agent Cuthbertson.
To state the background succinctly, there is a video of what is said to be a sparkler bomb exploding, said to have occurred in July 2019. Federal Agent Cuthbertson had some interactions in person with Benjamin Lucas in March 2020. It is Benjamin Lucas who objects to the voice identification of Federal Agent Cuthbertson that one of the voices heard on the video tape is able to be assigned to Benjamin Lucas.
That voice identification was made in October 2020. Federal Agent Cuthbertson indicated that, although he had no specific memory, in accordance with his usual way of working, before creating the transcript and making the assignment, he would have listened to the video repeatedly.
The other aspects of the background are that the transcript of the forensic procedure interactions, which occurred in March 2020, has been placed before me. It is noteworthy that although the first extended over about 20 minutes and the second over about an hour, throughout all of them, Benjamin Lucas was basically monosyllabic.
In other words, although there were some lengthy conversations in a sense, the role that Benjamin Lucas played in them was extremely limited.
It is also true that there were some minor verbal interactions between Federal Agent Cuthbertson and Benjamin Lucas in March 2020, before and after the transcribed forensic procedure interactions. But the agent himself described them a minor or short. As I understand it, in his "process" of voice identification, he placed very little weight on them.
As it happens, unusually, it is not disputed by the Crown that there is going to be a very large body of evidence with regard to the voice of Benjamin Lucas, placed before the jury, that was not relied upon by Federal Agent Cuthbertson. That, to be clear, is the extended recorded interviews between the police and Benjamin Lucas, in which he was far more expansive in his speaking. To repeat that: unusually the jury is going to have more material upon which it will be able to assess, whether the voice on the video is indeed to be assigned to Benjamin Lucas, than the person giving the purported voice identification.
[2]
Submissions
Counsel for Benjamin Lucas, as I understand it, has objected to the evidence on a number of bases. It was said that although the concept of an ad hoc expert does exist and has been accepted to exist before and after the commencement of the Evidence Act 1995 (NSW), it cannot be said that Federal Agent Cuthbertson falls within that category. In other words, the objection really was that the test pursuant to s 79 of the Evidence Act had not been made out.
Separately, it was said that in any event, really the evidence is irrelevant because it falls foul of the discussion of the majority in the High Court of Australia in Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50; in particular, what was said at [11].
Although really the proposition was that the evidence simply is not admissible and one need not think about the so-called discretion in s 137 of the Evidence Act, I understood that to be relied upon as needs be.
[3]
Determination
It is certainly the case that the concept of an ad hoc expert has been accepted to exist. It began forty years ago in the case of R v Menzies [1982] 1 NZLR 40. It was approved almost thirty years ago by the High Court of Australia in the case of Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58.
Even so, I think that it is important that quite recently in Nasrallah v R; R v Nasrallah [2015] NSWCCA 188, the Court of Criminal Appeal sounded a note of caution about it. I respectfully think the point is soundly made that it is important to examine precisely the degree to which an asserted ad hoc expert actually possesses expertise based upon what he or she has actually done with regard to the evidence in the trial, and what he or she actually brings to that evidence.
For example, in the case of R v Leung & Anor (1999) 47 NSWLR 405; [1999] NSWCCA 287, in which it was held that evidence was properly admitted, it is noteworthy that the assignor was an interpreter. He or she was able to explain the assignment based upon how a person spoke in a foreign language, Cantonese; whether that person spoke with an accent; furthermore, the assigner could speak about the fact that Cantonese was interspersed with a different language, Mandarin; and finally, the interpreter could give evidence and explain the speech patterns of different speakers within the Cantonese language.
Clearly none of those levels of analysis would be available to a jury, which one would expect, speaking generally, to have available various second languages, but for whom their primary language would be English.
In other words, I think a sharp contrast can be drawn between this case on the facts, and the opinion evidence found to be admissible in Leung.
Similarly in Irani v R [2008] NSWCCA 217, another case in which voice identification evidence was found to have emanated from an ad hoc expert, it was clear that the assigner had listened to hundreds of hours of tapes, and spent something in the order of two months doing so. In other words, one can see immediately that it would be simply completely impracticable for the jury to be called upon to undertake the same task.
To be clear, however, the video in question - which I watched this morning - extends for no more than five minutes. The forensic procedure interactions also extend over no more than a hour and a half. To repeat, the reasonably lengthy recorded interviews will be before the jury. Of course it will be within the jury's discretion to repeatedly play all of that product as often as they like in the jury room, to the extent reasonably practicable.
It is true, as Mr Crown has said, that a line of reasoning is open to say that, well, if Federal Agent Cuthbertson was a true ad hoc expert with regard to someone else asserted to be present, that may assist in Federal Agent Cuthbertson crossing off the list, as it were, of potential assignees, and ending up with Benjamin Lucas.
But I think the danger there, as counsel for Benjamin Lucas submitted, is that there is a danger of "bootstrapping" there in terms of probative value, as follows. To the extent that Federal Agent Cuthbertson, as part of forming his opinion, relied upon the statement of another witness who asserted that a number of persons were present at the creation of the video, including Benjamin Lucas, in a sense that can be thought of as "contamination" of the asserted voice identification evidence by an asserted ad hoc expert.
In my mind, the starting point of the admissibility of any evidence is s 55 of the Evidence Act which provides the fundamental gateway: relevance. I think it is important that in Smith v The Queen, the High Court simply said that, to the extent that the police officers were in no better position than the jury to undertake a visual identification, well then their evidence was simply irrelevant: at [11] of the majority judgment.
Here, as I have said, unusually, I think that the jury would be in just as good a position to make an assessment of whose voice is whose as Federal Agent Cuthbertson. Indeed on one reading, because of the availability of the reasonably lengthy ERISPs, I think the jury would be in a better position to assess that than Federal Agent Cuthbertson.
One appreciates that there have been "carve-outs" over the past twenty years to the application of the principle in Smith v The Queen in various circumstances: for example R v Marsh [2005] NSWCCA 331. But I do not think this is such a case. In my opinion, properly analysed the evidence is irrelevant.
If I be wrong about that, turning to s 79 of the Evidence Act, and bearing in mind the differences between this case and R v Leung and Irani v R, and the note of caution sounded in Nasrallah v R, whilst I of course accept that the concept of an ad hoc expert exists in our rules of evidence, even so I do not think that the hurdles in s 79 of the Evidence Act have been passed. Yet again, I think that is because, really, Federal Agent Cuthbertson is in no better position to make this identification or express his opinion than a jury is.
If I be wrong about that as well, reflecting on s 137 of the Evidence Act, I think that the probative value of this evidence, even taking it at its highest (in accordance with what the High Court said in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14) is really quite low. I think that it is well-known that with any identification evidence there is a danger of unfair prejudice in terms of use. There are many notorious historical cases where it has been shown that wrongful identification evidence has led to gross miscarriages of justice: for the seminal case, see The Strange Story of Adolph Beck by Tim Coates (Stationery Office Books, 2001).
I accept what the Crown Prosecutor has said about the inevitable directions that I would give the jury about this evidence, pursuant to ss 116 and 165 of the Evidence Act. Even so, I do not think that they remove the prospect of prejudice entirely. In particular, I think that there is a danger here that a jury might be tempted, even unconsciously, to defer to an experienced investigator, and to feel that, despite my assessment, he is somehow in a better position than they are to make the assignment as to whose voice is whose.
[4]
Conclusion
So to be clear about it: I believe the evidence is irrelevant.
If I am wrong about that, I believe that it does not pass the hurdles in s 79 of the Evidence Act.
If I be wrong about that and it is relevant and admissible as opinion evidence, even so applying the mandatory reflection to be found in s 137 of the Evidence Act, I believe that it would be incumbent upon me to exclude it.
For those three separate reasons then, the evidence will not be permitted to be led in the trial.
[5]
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Decision last updated: 09 November 2023