R v Lam

Supreme Court of Victoria|2005-06-10|Before: Redlich J

Voice identification - Admissions - Whether issue truly voice identification - Warning - Nature of jury direction required - Standard of proof - Whether evidence of identification, even if unsatisfactory could be used as part of the circumstantial evidence.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

"......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 prior familiarity or distinctiveness, although he may, in the exercise of his discretion, exclude it on grounds of prejudice or unfairness."[26]

10 No issue of the admissibility of voice identification evidence arises in this case. The issue concerns the identification of the voice of the accused David Nguyen by An Tran and the reliability and accuracy with which Ms Tran described the particular words alleged to have been spoken by David Nguyen as to his involvement with the offence charged. If accepted by the jury, these words constitute an admission by the accused as to his involvement with the events which occurred at the intersection of Alexandra Avenue and Chapel Street.

11 Identification evidence including aural identification evidence is often considered "unreliable evidence because human perception and recollections are prone to error."[27] Neither distinctiveness or familiarity with an accused's voice guarantee a reliable voice identification. These factors merely increase the probability that such identification is accurate and correct and more reliable than not. Similarly, the capacity of individuals to remember sights and sounds may vary enormously as do their reactions to situations which involve criminal activity which may, in turn, affect the reliability of any such identification evidence.[28]

What type of direction should accompany the voice identification evidence of An Tran?

12 A number of authorities highlight the requirement for a warning to be given to a jury which emphasises the dangers of acting on identification evidence. This requirement applies equally to voice identification as to visual identification.[29] Such directions ought to point to the dangers which are well recognised as "lurking" in any form of identification evidence.[30] In the joint judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ in R v Domican[31] the following passage highlights the requirements surrounding the giving of such a direction :

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of the guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.[32] The terms of the warning need not follow any particular formula.[33] But it must be cogent and effective.[34] It must be appropriate to the circumstances of the case.[35] Consequently, the jury must be instructed "as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case".[36] A warning in general terms is insufficient.[37] The attention of the jury "should be drawn to any weaknesses in the identification evidence".[38] Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it.[39] It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."[40]

13 Kirby J in Festa v The Queen[41] discussed the adequacy of such a warning in terms of its dependency on content, balance and weight but without the formulaic requirement of a rigid set of words. What the law requires is "that the judge bring his or her authority to bear so that the jury understand that mistakes can occur from genuine, but wrongful identification."[42] In addressing the risk that such a mistake can occur, the judge can explain to the jury how the risk is relevant in the particular case and how the jury are obliged to exercise care because it is the experience of the law that genuine, but erroneous identifications can sometimes be made by honest witnesses.[43]

14 Where identification, be it visual or aural, relates to proof of the offence alleged to have been committed, the trial judge must warn the jury of the dangers inherent in the reliability of such evidence particularly where such identification evidence is disputed. In Callaghan Winneke P discussed instructions to a jury as to the caution with which they should treat evidence of identification. These directions include the following:

• "The caution which courts are required to give in relation to visual identification 'must apply even more so as 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.....; that it is much easier to identify a voice which is familiar.........;

• 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 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."[44]

15 It is not in issue that the accused was present in the flat or that he said a number of things which An Tran claims. Nevertheless, the prosecution has conceded that some direction is appropriate. They will be directed that they should scrutinise An Tran's voice identification evidence with great care before acting upon it.[45] The jury should be careful not to confuse the conviction of the witness with her reliability. Individuals may be quite convinced about the correctness of the identification which they have made but it is for the jury to assess whether the identification is reliable.[46]

16 In the process of determining the reliability of voice identification evidence, authority dictates that the judge ought to bring to the attention of the jury any matters which may undermine the reliability of that evidence. In his written submissions Mr Gucciardo sets out a number of factors which may be relevant when directing the jury in this regard. These factors may be matters which could reasonably be regarded as challenging the reliability of the identification evidence of An Tran. They are as follows:

"(i) That An Tran had not known David Nguyen very long,[47] a few months,[48] had not seen him often, maybe twice or three times and had talked to him at a party;[49]

(ii) There was no evidence that his voice was familiar to An Tran or that there was anything distinctive in his voice;

(iii) The circumstances in the flat were a 'daunting' experience for An Tran;

(iv) The voice heard 'was not calm, he wasn't himself, it was a raised voice';[50]

(v) When she heard it she was on the floor and he was walking around and at times sitting;[51]

(vi) When she heard it he was somewhere behind her, he was not in front of her;

(vii) At the time when he spoke there were other people talking;

(viii) The conversations involving David Nguyen were in Vietnamese;[52] and later she said it was half in English and half in Vietnamese;[53]

(ix) At the time when he spoke there was a lot of commotion;[54] there were people walking in and out;[55] and the four or five people who came in, arrived at the time she was attending to Hung Van which was when she said David Nguyen spoke;

(x) She possibly only caught snippets of conversations;[56] and

(xii) She did not glance at him when he was talking."[57]

17 The majority stated in Domican that the judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence."[58] The principle in Domican as to the adequacy of the direction given in relation to identification evidence states that:

"......its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused."[59]

18 The first step is for a jury to consider the reliability of the identification evidence in light of the directions given as to the dangers lurking in the use of such evidence. In whatever way identification evidence is given or however it is expressed "it is for the jury to assess the probative value of the evidence in the context of the evidence as a whole."[60] It must be remembered when considering the nature of the direction called for that it is not in dispute that the accused was one of a small number of persons present in the lounge room, that it is not disputed that he was involved in conversation in An Tran's presence, that he did say some of the things attributed to him by An Tran and that a number of persons told him to keep quiet.

19 The issue of the identification of David Nguyen's voice by An Tran is separate from the issue as to whether the words which were alleged to have been spoken (and hence the meaning attributable to those words) were the words actually uttered by David Nguyen. The jury will be instructed that in order to use the evidence of admissions made by the accused David Nguyen, they would need to be satisfied beyond reasonable doubt that the admissions were in fact made by him and that they were truthful and accurate. If the jury were satisfied, having carefully scrutinised the evidence of Ms Tran that she had correctly recognised the voice of David Nguyen, then the jury would consider whether Ms Tran had accurately recalled the words uttered by him and whether those words constituted an admission as to his involvement in the offence of murder. If the jury were satisfied, beyond reasonable doubt, both as to the reliability of the recognition of David Nguyen's voice and as to the accuracy and reliability with which the words uttered by him were recalled, then the jury properly instructed would be entitled to view those words as constituting an admission by David Nguyen as to his involvement in the offence charged. It could, on that evidence alone, find David Nguyen guilty.

Use of voice identification evidence in conjunction with other circumstantial evidence- standard of proof

20 Admissions of guilt must be proved beyond reasonable doubt. Hence the jury must be satisfied beyond reasonable doubt that An Tran correctly identified David Nguyen's voice and accurately recalled the words that he used and that those words constitute an acknowledgment of the commission of the crime.

21 There is no general principle relating to voice or other identification evidence which requires that the jury be directed that unless they were satisfied beyond reasonable doubt as to the correctness of the identification that it would be dangerous to use that evidence in a process of reasoning towards guilt. This is what I understood counsel for David Nguyen to contend in oral argument. Where such evidence assumes great significance in the prosecution case, it may be appropriate to so direct the jury, but such a need would arise because of the importance of the evidence.[61]

22 In R v Bennett & Ors[62] Doyle CJ stated that:

"There is no reason to doubt that, ultimately, the jury must consider any identification evidence along with the other evidence in the case, in deciding whether they are satisfied beyond reasonable doubt that the accused is guilty......" [63]

23 His Honour posed the question whether a jury should first consider the reliability of the identification evidence in isolation. The Chief Justice said:

"If they do not, identification evidence that is unreliable might be put into the scales by the jury because it is supported by other evidence pointing to guilt. It might be said that if that happens, the purpose of the warning about identification evidence is undermined. On the other hand, it might be said that if the identification evidence is supported by other evidence pointing to guilt, it is appropriate to take that matter into account in deciding whether to act on the identification evidence."[64]

24 Although Doyle CJ did not go on to express a concluded view, Gray J in his judgment in Bennett considered a number of authorities including a passage from the judgment of Prior J in R v Coxon, in which it is stated that though the adequacy of a warning must be determined by reference to the identification evidence alone, this does not mean "that other evidence cannot be supportive of the evidence the subject of the warning."[65]

25 In Coxon's case the trial judge directed the jury to disregard circumstantial evidence that may have been supportive of the positive identification evidence. The judgments of each member of the court in Coxon reflect the requirement that the jury is to be instructed that it must assess the identification evidence having regard to all of the shortcomings which the facts of the case identify. The trial judge's direction, bringing such matters to the jury's attention, is given upon the assumption that the jury may convict solely on the identification evidence.[66] It is then a matter for the jury to determine whether that evidence alone or coupled with other circumstantial evidence should lead to the conviction of the accused. Prior and Gray JJ considered that the jury could rely upon other circumstantial evidence to be satisfied about the correctness of the positive identification evidence.[67] Lander J took a contrary view.[68]

26 Kirby J in Festa, dealing with the admissibility of such evidence disapproved of the notion that unsatisfactory evidence of identification can be turned into positive identification by reference to circumstantial evidence unrelated to the act of identification.[69] But identification evidence once admitted may be considered as part of the entirety of the evidence in the case and in that sense becomes part of the circumstantial evidence.[70]

27 Principle and a clear line of authority dictate that a defective identification may be considered with other direct or circumstantial evidence.[71] The use of defective positive identifications was considered by Winneke P in R v Callaghan.[72] The President referred to passages from R v Burchielli[73] and Haidley & Alford v R[74] and expressed approval with the view that where a trial judge has given full and fair directions as to the dangers lurking in evidence of identification, the cumulative effect of a defective identification in conjunction with other evidence may be taken into account by the jury in determining satisfaction of guilt.[75] There are numerous examples of cases where less than satisfactory positive identification in conjunction with circumstantial evidence substantiated a conviction.[76] In Thorpe,[77] a Court comprising Starke, Crockett and O'Bryan JJ had no hesitation in concluding that other circumstantial evidence might be employed by a jury in determining whether it supported the positive evidence of identification that was open to considerable criticism. In R v Rich,[78] Brooking JA, with whom the President and Charles JA agreed, said that it was axiomatic that the jury may consider identification evidence which suffers from substantial deficiencies together with other circumstantial evidence.[79]

28 This brief analysis of authority amply demonstrates that it would be erroneous to instruct the jury that unless it was satisfied beyond reasonable doubt of the identification of the accused's voice such evidence could not be used by the jury in any way in proceeding to a conclusion of guilt. That is not to deny that where the voice identification is relied upon as an alleged admission that the accused performed the acts constituting the crime, the jury must be instructed that they must be satisfied beyond reasonable doubt that the alleged admissions were in fact made and that they were truthful and accurate.

[1] Bulejcik v R (1996) 185 CLR 375.

[2] Written submissions of Mr Gucciardo at [4].

[3] R v Dhanhoa [2003] HCA 40; (2003) 199 ALR 547; R v Deruiter [2003] VSCA 66 [40]; Ruling No 5 [2005] VSC 279 at [18-22] in respect of Hung Tu Van.

[4] Trial Transcript at 6967.

[5] Trial Transcript at 5525.

[6] Trial Transcript at 5533.

[7] Trial Transcript at 5534.

[8] Trial Transcript at 5535.

[9] Trial Transcript at 5535.

[10] Trial Transcript at 5535.

[11] Trial Transcript at 5538.

[12] Trial Transcript at 5538.

[13] Trial Transcript at 5551.

[14] Trial Transcript at 5553.

[15] Trial Transcript at 5554.

[16] Trial Transcript at 5571.

[17] Trial Transcript at 5572.

[18] Trial Transcript at 5572.

[19] Trial Transcript at 5572.

[20] Trial Transcript at 5583.

[21] Trial Transcript at 5604.

[22] R v Smith [1984] 1 NSWLR 462; R v Hentschel [1988] VicRp 46; [1988] VR 362; R v Brownlowe (1986) 7 NSWLR 461.

[23] Bourke's Criminal Law at [568.75.11]. See Footnote 22 R v Smith and R v Brownlowe and Brotherton v R (1992) 29 NSWLR 95.

[24] Footnote 22 R v Hentschel.

[25] [2001] VSCA 209; (2001) 4 VR 79.

[26] Ibid at [27].

[27] Waight, P.K. and Williams, C.R. (1998) Evidence, Law Book Company, Sydney NSW at 570.

[28] Ibid at 570.

[29] R v Mackay [1985] VicRp 63; [1985] VR 623; Brotherton v R Footnote 23 at 106; Festa v R [2001] HCA 72; (2001) 208 CLR 593 at [26], [83-85], [178-179], [216] and [245-246]; R v Roberts [2000] Crim LR 183 (CA) and R v Chernia (2003) 2 Cr App R 6 at [100-101].

[30] R v Harris (No.3) [1990] VicRp 28; (1990) VR 310 per Ormiston J at 317.

[31] [1992] HCA 13; (1991-1992) 173 CLR 555.

[32] K_elleher v. The Queen_ [1974] HCA 48; (1974) 131 CLR 534 at p 551; Reg. v.Turnbull [1977] QB 224, at 228; Reg. v Burchielli [1981] VicRp 61; [1981] VR 611 at 616-619; Reg. v Bartels (1986) 44 SASR 260 at 270-271.

[33] Reg. v De-Cressac (1985) 1 NSWLR 381 at 384; Reg v Finn (1988) 34 A Crim R 425 at 435-436.

[34] Reg. v Dickson [1983] VicRp 19; [1983] 1 VR 227, at 230; Reid (Junior) v The Queen [1990] 1 AC 363, at 380.

[35] Reg. v Aziz (1982) 2 NSWLR 322 at 328; Allen v R (1984) 16 A Crim R 441 at 444-445.

[36] Smith v R (1990) 64 ALJR 588.

[37] Kelleher v The Queen Footnote 32 at 551.

[38] Ibid.

[39] Davies and Cody v The King (1937) 57 CLR 179 at 182-183.

[40] Domican Footnote 31 at 561-562_._

[41] See Footnote 29.

[42] Ibid at [173] citing R v Burchielli Footnote 32. See also R v Clune [1982] VicRp 1; [1982] VR 1 at 8; R v Dickson [1983] VicRp 19; [1983] 1 VR 227 at 230; R v Hentschel Footnote 22, and R v Domican [No.3] Footnote 31.

[43] Festa Footnote 29 at [174].

[44] Callaghan Footnote 25 at 96.

[45] Callaghan Footnote 25 at 97.

[46] Mackenzie v The Queen (1996) 190 CLR 348 at 373; R v Marshall [2000] NSWCCA 210; (2000) 113 A Crim R 190 [15]-[16].

[47] Trial Transcript 5532-5533.

[48] Trial Transcript 5552.

[49] Trial Transcript 5552.

[50] Trial Transcript 5538.

[51] Trial Transcript 5538.

[52] Trial Transcript 5537.

[53] Trial Transcript 5557.

[54] Trial Transcript 5550.

[55] Trial Transcript 5539.

[56] Trial Transcript 5555

[58] Domican Footnote 31 at 565.

[59] Domican Footnote 31 at 565.

[60] Murphy v The Queen [1994] SASC 4674; (1994) 62 SASR 121 at 128.

[61] See Ruling [2005] VSC 298.

[62] [2004] SASC 52; (2004) 144 A Crim R 215.

[63] Ibid at [80].

[64] Ibid at [80].

[65] Ibid at [115] citing R v Coxon [2002] SASC 165; (2002) 82 SASR 412 at 419.

[66] Domican Footnote 31 at 562 and 565.

[67] Coxon Footnote 65 per Prior J at [32]-[33] and per Gray J at [85-86].

[68] Coxon Footnote 65 at [62].

[69] See Footnote 29 at 643.

[70] Festa Footnote 29 per Kirby J at 642 [164].

[71] Davies & Cody v The King [1937] HCA 27; (1937) 57 CLR 170; Festa v R Footnote 29; R v Turnbull [1977] 1 QB 224 at 230.

[72] See Footnote 25 at 99.

[73] See Footnote 32 at 616.

[74] [1984] VicRp 18; [1984] VR 229 at 231-232.

[75] At 100 para [37]; Brooking JA and O'Bryan AJA agreed.

[76] Garlin (1991) 56 A Crim R 195; Thorpe (1982) 8 A Crim R 124; The Queen v Clune & Gergis Unreported 9 September 1992 per Crockett, Tadgell and Coldrey JJ - BC 9203040; Rowley (1986) 23 A Crim R 371; Clune v R (No. 2) [1996] VicRp 1; (1996) 1 VR 1 per Callaway JA at 5; R v Razzak [2004] NSWCCA 62.

[77] See Footnote 76.

[78] [2002] VSCA 17.

[79] Ibid at [78].

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Cases Cited (17)