R v Madigan

• 38 - IN THE COURT OF CRIMINAL APPEAL 2005/290

WOOD CJ at CL GROVE J HOEBEN J

Thursday 9 June 2005 Regina v Andrew Paul MADIGAN Judgment 1 WOOD CJ at CL: The Appellant stood for trial in May 2004 in the District Court together with a co-accused, Michael John Woods. They were charged with an offence of aggravated break and enter of the office of the Australian Reptile Park at Somersby on 21 January 2002 and whilst therein committing the serious indictable offence of larceny. The circumstance of aggravation was that they were in company. 2 A verdict of guilty was returned on 28 May 2004 in relation to each of them. They were remanded in custody until 25 June 2004 when the Appellant was sentenced to an overall sentence of 4 years imprisonment with a non-parole period of 2 years to date from 28 May 2004. The co-accused was sentenced to an overall sentence of 3 years with a non-parole period of 18 months also to date from 28 May 2004. 3 The Appellant now brings an appeal against that conviction, although not in relation to the sentence.

THE BREAK AND ENTER 4 Evidence led in the Prosecution case established that there was a break in at the office of the Reptile Park during the evening of 21 January 2002. There was no issue that the person or persons responsible stole a gun safe containing seven firearms. Evidence from Chubb Security, and from the officer designated to respond to the alarm system which had been installed in the office complex established that the break in occurred at about 23:00 hours. 5 It was however the Crown case that the offence was committed by the Appellant together with Michael John Woods and Joshua York. York was not placed on trial with the two accused for the reason that he had pleaded guilty to a lesser offence of breaking and entering the Park and committing the serious indictable offence of larceny. 6 The guns were never located, however the gun safe was found in some bush at the airstrip on Mangrove Road at Narara on 25 January 2002. It had been jemmied open. It was subsequently identified by staff from the Reptile Park as being of the same colour and dimensions, and with the same motif as the stolen safe, as well as bearing the pieces of sticky tape that had previously been placed on it. No fingerprints or other forensic evidence was found that implicated either accused. 7 There was evidence that the safe had weighed at least 150 kgs before it was stolen, and that its dimensions were in the order of 1.6 m x 0.9 m. 8 As later mentioned, Alison Walker, a girlfriend of the Appellant at the time, gave evidence that she had received a telephone call from him at about 23:30 that evening and had driven from his home to the old airstrip at Narara where she picked him up.

THE PROSECUTION CASE 9 The Prosecution case depended essentially upon the product of the listening device which had been installed at the Appellant's home, upon physical surveillance evidence, and upon the evidence of Alison Walker.

The Listening Device at the Appellant's home 10 Evidence was led from police that a listening device had been installed in the premises, where the Appellant and Ms Walker lived, at 7/4 Parsons Road Lisarow on 9 January 2002, pursuant to a warrant, and had remained there until 25 January 2002. A listening post was established some distance away and continuously manned by two police officers. Several officers listened (in real time) to the conversations which were intercepted. The sound that was captured by the listening device was also recorded on a "master" tape (180 minute VHS) which recorded continuously, and which was then replaced with another tape of the same type. They were numbered sequentially. Additionally, the listening post had the facility to record portions of what was picked up onto a compact disk. 11 There was no visual identification by the police who monitored the listening post, or otherwise, of any occupants of the premises, or of anyone coming or going from the premises. 12 A log was maintained at the listening post, which was completed by the police on duty with details of what they heard, and of the times that the tapes were changed. 13 This log book was tendered, unedited, as evidence of the system of surveillance adopted, and of the times and dates when certain things were done, but not as evidence of what was said or as identification of the speakers. Its admission into evidence gives rise to one ground of appeal. The admission into evidence of some of the intercepts gives rise to a separate ground of appeal, which rests upon the proposition that there was insufficient evidence of the identity of the speakers. 14 These intercepts were important to the Crown case, in so far as it was asserted that they revealed that the Appellant and Woods had discussed committing the offence, and also in so far as they provided the reason for the physical surveillance which was coordinated during the late afternoon and evening of 21 January. It is necessary to refer to these intercepts in a little detail, by reason of the voice identification issue. 15 In the first of the several intercepts of conversations on 20 January 2002, one speaker, who was said to be the Appellant, referred to himself as "Andrew", which was in fact his first name. In the second conversation at 17:00, the female speaker, who was said to be Alison Walker, addressed the other man involved as "Andrew", and raised some complaints about his conduct the previous night with another girl "Amy", including the fact that he had come back and had intercourse with her after engaging in fellatio with Amy. The male speaker referred to himself as "Madigan". 16 In the third conversation at 21:40 one male speaker who was said to be Woods, identified himself as "Woods" and said that he was at "Madsy's house" (where the listening device was located). The other male referred to the first speaker as "Woods" and addressed the female speaker as "Alison". 17 In the fourth conversation at 22:25, the female speaker who was said to be Alison Walker, at one point made reference to "Andrew". The two males who were said to be the Appellant and Woods engaged in a conversation which includes the following exchange: "MADIGAN We might have to go through the gate. Like with the wire fencing. WOODS: you know what I reckon. I reckon we should do that place that Josh… … MADIGAN: …the park. WOODS: Hey. MADIGAN: The park. WOODS: Yeah. Yeah just start off there again like we did the other night. MADIGAN: Yeah up there."

18 At about 17:15 on 21 January 2002 a conversation was intercepted by means of a listening device, in which the speakers, who on the Prosecution case, were the Appellant and Woods discussed stealing a safe. In the course thereof one of the speakers addressed the other as "Woods". The relevant portions of the conversations were as follows: "WOODS: …were gonna be tired for the next hour and a half til we've really woken up. Man we're not gonna be fucking tired til four o'clock in the morning. We're gonna be up all thieving night. MADIGAN: (Laughs) I've got one for tonight. WOODS: Oh do ya? MADIGAN: Uh huh. It's still these. They just put another one in and they had a fucking big one last time. WOODS: Where? MADIGAN: But we need to blow something up. The one I told you about last night. WOODS: Yeah. MADIGAN: The one in Wyong. WOODS: I reckon we're going up Somersby again. MADIGAN: To start it off. WOODS: Hit off up there again. We did that last. We've walked away with $500 each time. MADIGAN: … WOODS: You know what I mean fucken shit. MADIGAN: Yeah but I don't know if there's another one up there. WOODS: I do. MADIGAN: Do ya? WOODS : Yeah. You know that little cul de sac where um we went there that night. You me and Pete you bolt cutted through that fence with all them cameras and all that. Down that little street there. MADIGAN: Oh yeah. WOODS: We can just hit one of them. You hit one, I hit one and Josh hits one. All three of us hit one at once. " 19 At about 01:45 on the following morning, a further conversation was intercepted by the listening device, which on the prosecution case similarly involved the Appellant and Woods. In the course of this conversation one male speaker addressed the other as "Woods", and complained of having a "sore gut". This conversation included the following exchanges: "MADIGAN: Fuck I am sore. WOODS: It was a heavy fucking thing wasn't it? MADIGAN: Fucking oath. WOODS: … MADIGAN: I just looked at it and I knew what it was exactly… WOODS: …same time too. WOODS: And trust me… money safe it wouldn't be that easy to fucking carry out. MADIGAN: The second it moved I knew it was because…Dad's was so light. WOODS: … MADIGAN: You know. WOODS: ….none. MADIGAN: There has to be another one. You know why? No bullets. WOODS: Yeah, yeah that's it. MADIGAN: Because the bottom of the cabinet. WOODS: It's against the law to keep your bullets in the same safe as your gun. MADIGAN: Yeah but the fuckin one like my old mans got. Its got a separate like a little safe door. WOODS: Yeah. MADIGAN: I hit that twice and that busted it. Its not hard to get into that…don't make em very strong. WOODS: You sure it wasn't part of another part of our safe. MADIGAN: An. WOODS: No. MADIGAN: There's only two…sections should have seen them fucking… WOODS: You know fuckin them guns. That's it. MADIGAN: But you should see fucking two of em. They're brand new fucking graphites. WOODS: … MADIGAN: Um I think they're bolted. Bolt ones. WOODS: They've both got them in em? MADIGAN: I think so yeah."

The basis for the voice identification of the Appellant 20 At the conclusion of the audio surveillance operation, Senior Constables Pilon and Cassar listened to the master tapes and/or CD's and prepared transcripts of the recorded conversations. They attributed the speakers variously as Michael Woods, Alison Walker and the Appellant. In doing so they had the benefit of the fact that the speakers used the names "Andrew", "Madsy", "Madigan", "Woods", "Woodsy" and "Alison", during these conversations. 21 Senior Constable Pilon said that he spent "maybe 50 hours, maybe more" listening to the CD's. He replayed some tracks up to 20 times in an attempt to make out the words. He also listened to some of the master tapes "maybe a dozen times, maybe more" as well as a tape recording of an interview with Woods. As he was doing so, he wrote down what he heard. Over the course of this exercise, he said, he became familiar with the voices. 22 He said that he was also assisted by the fact that he had met the Appellant, on more than one occasion before first listening to the recordings, having known him from 1998. He asserted that his voice was familiar, but conceded that he could not say whether he would have been able to recognise his voice on that basis alone. 23 In cross-examination he said that the log book had not suggested to him that "it was necessarily those people", adding "I didn't use the log as a guide for the transcript. I used it as a guide to the CD's". He denied that the male voices he attributed to the Appellant and Woods could have belonged to two other males who frequented the premises, but accepted that there was nothing distinctive about either of the two male voices. 24 Senior Constable Cassar said that she spent the majority of a week listening to, and transcribing the CD's, sometimes in the company of Senior Constable Pilon. As she transcribed the conversations, she played them up to 20 times to ensure that she could hear properly. After the transcripts had been prepared, she checked their accuracy against the audio record a further four or five times. 25 She said that she had spoken to the Appellant on 7 February at about 11:30 for two or three minutes while she fingerprinted him at Gosford Police Station. On the same day she said, she played back some of the CD's and recognised that the voice which she had heard when fingerprinting him was the same as the voice on the CD's. She stated that "after 7 February I was confident that I knew his voice", although she agreed in cross-examination that there was nothing particularly distinctive about it. She also said that she had conducted an ERISP with Woods on 7 February 2002. 26 She accepted that she would not have been as confident as to the Appellant being the speaker had she listened to the CD's without Senior Constable Pilon and the log book. 27 Senior Constable Crowther said that he had spoken to Woods on 26 November 2003 for about 30 minutes, on 23 December 2003 for about 10 minutes, and again on 21 January 2004 for about 15 minutes. Additionally he had viewed and listened to Wood's ERISP of 7 February 2002. He said that he had identified Wood's voice on the transcripts, with the benefit of these events. 28 Although Alison Walker gave evidence of never having referred to Wood as "Woodsy", and also said that she had not identified his voice on the tapes, she did however identify her own voice. Somewhat surprisingly, she was not asked whether she could, or could not, identify the Appellant's voice on the tapes.

The Physical Surveillance 29 In connection with an investigation which was conducted under the name "Operation Tristan", police had placed the Appellant under surveillance on 21 January. The police involved in this operation were Senior Constables Pilon and Cassar in one vehicle, Senior Constables Presland and Dodd in another vehicle, and Sergeant Carmichael and Senior Constable Marks in separate vehicles. These six officers communicated with one another using portable radios over a back channel, in conditions which did not generate radio logs. Some of these officers also carried and used mobile phones. 30 A briefing was conducted at Gosford Police Station at about 4:30 PM during which Senior Constable Pilon showed the other police a photograph of the Appellant, and advised them that his girlfriend, Alison Walker, owned a red Holden Barina Registration WTE 323.

Blue Holden Commodore Sedan 31 After the briefing, the officers in the covert vehicles positioned themselves in the vicinity of the Appellant's home. Senior Constable Marks gave evidence of seeing a blue Holden Commodore sedan turn into the driveway of these premises. A few minutes later, he said, this vehicle pulled out of the driveway and drove towards the Pacific Highway. It contained two females and two males. He notified the other officers by radio and the vehicle was followed by police to Manns Road, Gosford. Sergeant Carmichael said that he recognised the person seated in the front passenger seat to be the Appellant. The two males were seen by police to get out of the vehicle opposite a women's fitness centre and to walk across the road. One was recognised by officers Pilon, Marks and Carmichael to be the Appellant while the other was recognised by Pilon to be Michael Woods.

Red Holden Barina WTE 323 32 There was evidence from Officers Pilon, Marks and Carmichael of seeing the Appellant, shortly afterwards, driving this vehicle away from a car park in Baker Street Gosford in the vicinity of the women's fitness centre. It was followed by police. During the subsequent surveillance this vehicle was seen at various locations in East Gosford, Springfield, Woy Woy and Gosford, although at various points sight of it was lost for a short time. 33 In the course of this surveillance, Senior Constable Marks said that he saw that the Appellant was the driver, and that there were two other male passengers in the vehicle. Sergeant Carmichael also said that he saw the Appellant driving, with a male passenger, when the vehicle passed his covert vehicle at the corner of Wells Street, East Gosford, and Springfield Road, Springfield at about 18:00 while it was still light. Senior Constable Presland said that she saw the Appellant, Woods and Joshua York in this vehicle while she followed it to a hotel in Gosford. She saw her partner, Senior Constable Dodd, go inside to check that they were there. 34 This vehicle was seen by Officers Marks and Carmichael parked in the vicinity of residential premises at Donnison Street, West Gosford on two occasions. Covert vehicles were positioned nearby at about 20:30 and remained there until about 22:00.

Blue Ford Falcon, TUF 508 35 While Senior Constables Pilon and Cassar were positioned in their covert vehicle outside the Central Coast Leagues Club, a 1970's model blue Ford Falcon, TUF 508 with a white roof, came to Senior Constable Pilon's attention. Shortly afterwards, at about 22:00 Senior Constable Pilon said that he saw this vehicle leave the Donnison Street premises with the Appellant and Woods on board as it drove towards him at the intersection of Baker Street and Georgianna Terrace. It stopped at the intersection to give way, turned right and was 3 metres away from his parked vehicle as it drove past. Senior Constable Pilon radioed the other officers to caution them as to the movements of this vehicle surveillance was continued by Officers Pilon, Marks and Carmichael. 36 The vehicle was followed from Donnison Street and back twice. Just after 22:00 Sergeant Carmichael said that he saw the Appellant at the Mobil Service Station, on the corner of the Pacific Highway and Healy Street, West Gosford, a short distance away from Donnison Street, standing at the back of the vehicle near the petrol bowsers. He could not however recall whether this had occurred on the first or second occasion that the vehicle was followed from Donnison Street. 37 On the first occasion that the Blue Ford Falcon was followed from Donnison Street, it travelled along the Pacific Highway where it turned into Debenham Road and headed west up Kariong Hill to the Somersby industrial area. Senior Constable Marks said that he followed the vehicle into Myoora Road, Somersby, where he saw it perform a u-turn adjacent to the back gates to the Australian Reptile Park. He continued past the vehicle and lost sight of it. 38 After a conversation with Senior Constable Pilon, Officer Marks drove to Kariong. The Appellant was there seen standing beside the vehicle, at the Shell Service Station, by both Senior Constable Marks and Senior Constable Presland together with Woods and York. 39 Senior Constable Marks drove past the service station in his vehicle and parked on Woy Woy Road, Kariong. A little while later, he said, he saw the blue Ford Falcon drive past him in an easterly direction along the Pacific Highway. He followed it back to Gosford where it was seen by Officers Pilon and Carmichael to be parked in the vicinity of the Donnison Street premises. 40 On the second occasion that the vehicle was followed from Donnison Street, it was seen again by officers Pilon, Marks and Cassor to travel west before returning to the same vicinity. 41 There was evidence to show that between 22:35 and 22:45 the Blue Ford Falcon was followed for a third time from Donnison Street. Senior Constable Pilon and Senior Constable Cassar said that they followed it out of Gosford and along Debenham Road, continuing underneath the freeway and through the roundabout on Wisemans Ferry Road to Somersby Falls Road. After passing through the roundabout, at the intersection of Somersby Falls Road and Pile Road, it pulled up about 200m away on the left hand side of Somersby Falls Road. 42 Officers Pilon and Cassar said that they turned right into Pile Road, and drove some way down that road before performing a u-turn, and parking their vehicle about a car's length away from the roundabout. Senior Constable Pilon estimated that the time was about 22:45. Senior Constable Cassar estimated that it was 22:50 or 22:55. Senior Constable Pilon marked the spot where they parked with a green dot on Exhibit A. They said that they remained in that position for about 45 minutes but did not see the vehicle again that night. 43 In cross-examination, Senior Constable Pilon agreed that in his duty book he had recorded losing sight of the vehicle at 11:15 PM. 44 Senior Constable Presland said that, with Senior Constable Dodd, she had also followed the Ford Falcon along Debenham Road to Somersby Falls Road at about 22:45. She described seeing its brake lights operate after it passed through the Somersby Falls Road - Pile Road intersection. She turned left onto Pile Road and waited near the intersection with Warringah Close. She saw another covert police vehicle veer off to the right. She marked the spot where she and Senior Constable Dodd had waited with a yellow dot on Exhibit A. 45 She said that a short time later the Ford Falcon drove into Pile Road and around Warringah Close, pulled up next to her vehicle for a few seconds, and then continued back up Pile Road to the roundabout and turned left onto Somersby Falls Road. This she said was at about 22:55. She said that she clearly saw the Appellant Woods and York inside the Falcon when it pulled up beside her. She lost sight of it after it turned left onto Somersby Falls Road. 46 Senior Constable Marks said that he had similarly followed the blue Ford Falcon along Debenham Road, but had lost sight of it at the top of Debenham Road. When it was put to him in cross-examination that it was 11:15 PM when he lost sight of it in Debenham Road, he agreed that it was approximately that time, but also said that he was not certain of the time. 47 Senior Constable Marks said that he had driven to the Somersby industrial area, attempting to locate the vehicle. He said that, at about 23:30, as he drove down Myoora Road, he saw the Falcon parked adjacent to the rear gates of the Australian Reptile Park which were in a cul-de-sac. He slowed down and put his headlights onto high beam as he approached. He said that he had a full view of the driver's side of the vehicle and saw three males inside, including the Appellant who was seated in the back seat. The Appellant, he said, appeared to look directly at his vehicle. He indicated that he had passed within metres of the Falcon, making a sharp right hand turn onto the road leading to the water treatment plant. He marked the spot where he passed the Falcon with a blue dot on Exhibit A. A sketch by him of the position of the vehicles was also tendered, as Exhibit S. He said that, after he turned right, he saw in his rear view mirror the Falcon pulling away from the gate area and proceeding in the direction of Somersby Falls Road. By the time that he had turned around and returned to Myoora Road, the Falcon was out of sight. 48 Sergeant Carmichael also said that he had followed the Falcon up Debenham Road, before making his way to the intersection of Wisemans Ferry Road and Howes Road, where he positioned himself, facing south, for the purpose of covering that exit. This was at about 23:00. He estimated that he remained there for about 20 - 30 minutes before seeing the blue Falcon come out of Howes Road, and drive past him before turning left onto Wisemans Ferry Road towards Mangrove Mountain. 49 He had a short conversation with Senior Constable Pilon over the radio, which the latter estimated had occurred at about 23:45. A couple of minutes later, Sergeant Carmichael turned his lights on, and drove north on Wisemans Ferry Road but did not see the Falcon again.

Broadcast of the break and enter over police radio 50 After speaking with Sergeant Carmichael, Senior Constables Pilon and Cassar switched their radio to channel 87, the open police radio channel, whilst driving along the freeway. They heard a report being broadcast about a break and enter at the Australian Reptile Park and a call for a dog to track the offenders. Other police vehicles responded as did they, after which they drove to the Australian Reptile Park. 51 In cross-examination, Senior Constable Pilon agreed that, in a letter to one of the instructing solicitors, he had advised that, "all police involved in surveillance became aware of the break and enter at approximately the same time", that is, at about 23:40 to 23:45. He also accepted that the CIDS report, a computerised record of broadcasts over channel 87, accurately reflects that his vehicle actioned the broadcast at 23:40. As a result, he said that his conversation with Sergeant Carmichael must have occurred earlier than 23:45, and that the times which he had given were estimates. 52 In cross-examination Sergeant Carmichael also acknowledged that the CIDS report reflected that Senior Constable Pilon had actioned the break and enter at about 23:40 and indicated that he must have advised Senior Constable Pilon that the vehicle had driven past him on Wisemans Ferry Road before 23:40, and that the times which he had given had similarly been estimates. 53 Senior Constable Marks said that it had been about midnight when Senior Constable Pilon had radioed him about the break and enter but conceded in cross-examination that it was possible that this had occurred at 23:40, although he maintained his belief that it was midnight. 54 Senior Constable Presland said that she had been radioed about the break and enter by Senior Constable Pilon before midnight but could not be any more precise about the time. 55 After learning of the break and enter, Senior Constable Marks and Senior Constable Presland, with Senior Constable Dodds, each attended the back of the Australian Reptile Park at about midnight and conducted a search of the area without success. 56 Senior Constables Presland and Dodd, however, said that at around midnight, together with Senior Constable Dodd, she had seen the Ford Falcon again, near the freeway interchange on Wisemans Ferry Road, although she could not see who had been in the vehicle. She agreed in cross-examination that the time of this sighting which she had recorded in her duty book was 0:30 on the following morning. She marked the spot where she saw the Ford Falcon for the last time with a white dot on Exhibit A.

The basis for the visual identification by these officers 57 The basis for the visual identification of the Appellant was as follows:

(a) Senior Constable Pilon, the officer in charge of the ongoing investigation, said that he had relied on the knowledge which he had acquired, over its course, and on information from Alison Walker to become aware of the Appellant's appearance;

(b) Sergeant Carmichael said that he had known the Appellant for about four years prior to 21 January 2002, having met him on numerous occasions, including social occasions;

(c) Senior Constable Presland said that she had not met the Appellant before, but had seen him on previous occasions and that Senior Constable Pilon had pointed him out to her;

(d) Senior Constable Marks said that he had not met the Appellant and relied upon the photograph which had been shown to him during the briefing on the afternoon of 21 January 2002. He added that he had seen that photograph on several previous occasions over the course of the investigation. He said that he had also seen him in person and that he had been identified to him by Senior Constable Pilon and Sergeant Carmichael;

(e) Senior Constable Cassar said that she had not met the Appellant before, but had performed surveillance duties on 18 January 2002 during which Sergeant Carmichael had pointed him out to her. She added that on 21 January 2002 Senior Constable Pilon had also pointed him out to her as they performed surveillance duties together. She also relied on the photograph that Senior Constable Pilon had shown her during the briefing.

Alison Walker's Evidence 58 Alison Walker gave evidence that at the relevant time, she was in a relationship with the Appellant and was residing with him at Unit 4/7 Parsons Road Lisarow. They were the only permanent residents although Woods also stayed there from time to time. 59 On 21 January 2002, she worked from about 12:00 to 20:00 at the Fernwood Fitness Centre, Gosford. She drove to work in her Holden Barina, WTE 323, and parked it at the rear of the premises. She said that the Appellant regularly went to her workplace and borrowed this vehicle, although she could not remember whether he had done so on that day. 60 She said that at about 23:30 her mobile phone rang and the word "Andrew" appeared on the screen. This indicated that the caller was the Appellant, whose number was programmed into her mobile phone. She said that he had asked her to pick him up from the airstrip at Mangrove Road, Narara which she then did at about 23:45. He was at that time alone. They arrived home at about 0:30 on the following morning after stopping at a bakery at Wyoming. 61 In cross-examination, she accepted that the appellant's telephone records do not record a call from his mobile phone number to her mobile at 23:30 or thereabouts, and that her own telephone records similarly do not record a call at that time from her mobile phone number to his. She maintained that she did speak to him on the telephone at that time, after which she left to pick him up. She also accepted in cross-examination that she had lied, when she was initially spoken to by police on 25 January 2002, in so far as she had then said that the Appellant had been at home in bed with her this night. 62 Her evidence at the trial was supported by master tape 50 commencing at 23:33:40, which records a mobile telephone ringing which she answered, followed by the sound of the closing of a door, a car starting, a garage door closing and a car driving off. She accepted that she may have been mistaken as to whether the Appellant had used his mobile to call her. 63 Consistent with her evidence, that she picked the Appellant up from the airstrip, is the fact that, in a conversation intercepted by the listening device, at about 15:18 on 23 January 2002, she is heard to tell an unidentified person over the telephone that she "picked 'em up from the airstrip in my car". Her contributions to this conversation were captured by the device as follows: "WALKER: They want to take me in for questioning. WALKER: About what they did in my car the other night. WALKER: Yep. WALKER: Well I picked em up. WALKER: I picked em up from the airstrip in my car. This is the night. WALKER: Yep. WALKER: Yeah the night and they had been followed everywhere before that and they still went and fucking stole a safe and then I went. WALKER: No in Josh's car. WALKER: Then he rang me and told me there's no one around and to pick em up from the airstrip. WALKER: They got we got followed from the airstrip to where they went and dropped all the stuff off. WALKER: Dropped all the stuff off at some guys house and he WALKER: …he knew… he saw there was a ute that was following them and he saw it sitting there and he just didn't give a fuck WALKER: And now because the cops can't find him they've been following me for the last four days and want to charge me with being an accomplice. WALKER: Guns out of the safe yep." The case for the appellant 64 The Appellant did not give evidence at the trial but submitted that the Crown had failed to establish its case beyond reasonable doubt. 65 In substance his case depended upon the circumstances that:

(a) The premises and the safe were dusted for fingerprints yet his fingerprints were not found;

(b) It would be difficult to fit the safe into a sedan, yet Senior Constable Preslands and Marks and Sergeant Carmichael each agreed, in cross-examination, that they had not seen anything protruding from the boot of the Ford Falcon;

(c) The break and enter had occurred at 22:58 yet Senior Constable Pilon had recorded in his duty book, and Senior Constable Marks agreed in cross-examination that they had lost sight of the Ford Falcon at about 23:15 which meant that the Appellant could not have arrived at the Australian Reptile Park by the time when the break and enter occurred;

(d) The telephone call records did not support Alison Walker's evidence of receiving a call from his mobile phone at 23:30 or thereabouts, or of her calling him;

(e) The police officers who identified the Appellant's voice had a limited basis to do so;

(f) The custody management record made by Senior Constable Oades reflects that when taken into custody on 7 February 2002, the Appellant "never spoke just moved his head from side to side to indicate no to me to each question as asked";

(g) Alison Walker was initially identified as a suspect and it was put to her in an interview with police that she had delivered rifles to an address in Wyoming that night, an assertion which she denied in her evidence;

(h) Alison Walker and the Appellant were having relationship difficulties before 21 January 2002, arising from her jealousy and irritation in relation to his alleged infidelity with "Amy", a reaction which she denied;

(i) The surveillance log sheets for 21 January 2002 place the Appellant at home between 19:04 and 21:11 yet the Appellant was supposedly in the Holden Barina under surveillance until 20:30. 66 The Appellant also relied upon the evidence of Michael Woods, in the course of which he said:

(a) at about 22:00 on 21 January 2002 Alison Walker picked him up from the home of Rebecca Springfield and took him to Unit 4/7 Parsons Road, Lisarow where he retired to the spare bedroom, remaining there until he woke at about 10:00 on the following day;

(b) At no stage that night had he been in the Ford Falcon, or involved in a break and enter;

(d) He is referred to as "Michael", and not "Woods" or "Woodsy";

(e) The other male speaker was not the Appellant whom he had known for five or six years;

(f) Alison Walker confirmed, when recalled in Wood's case as an alibi witness, (even though no alibi notice was served until the 14th day of the trial) that had been with her from 22:00 at Unit 4, 7 Parsons Road Lisarow until the following morning. 67 The Crown however called evidence in reply from the police officers who had manned the listening post on 21 January 2002, to the effect that they heard the Appellant and Woods leave the premises at 17:30, return at 19:04 and then leave again at 21:11; that Alison Walker had been home alone from 21:25 until she left the premises at 23:37, returning at 1:45 on the following morning with the Appellant.

Ground 1 - His Honour erred by admitting into evidence the surveillance log book (Exhibit M) in its entirety. 68 The principal objection taken during the voir dire was that the log book attributed the names of the accused to the summarised versions of the conversations which were intercepted at the premises of the Appellant. The Crown Prosecutor said that the log was only being tendered for the purpose of showing the system which had been used by the police to record when, and how, particular recordings had been made. In delivering his judgment on its admissibility his Honour said: "I think the log book is admissible as evidence of the system adopted but not as evidence of anything written in it and I would restrict its use on that basis". 69 When Senior Constable Pilon gave evidence before the jury about the log book the Crown Prosecutor repeated: "I don't press the tender of the contents of the document, but the document in the sense that it does record the dates and the times and the tracks and CDs…" 70 Counsel for the Appellant responded: "Your Honour, I know there's been a ruling. From my point of view, there is no issue that there was a log book, and at times when CDs were changed and tapes were changed that's conceded. The rest of what is contained in it, though, is what I have a problem with. That's the problem." 71 Counsel for the co-accused also objected to the log book, submitting that it was "not relevant in its entirety…". When his Honour asked the Crown whether the log book was pressed given the concession of Counsel for the Appellant, the tender was maintained. 72 His Honour admitted the log book and directed the jury: "I expressly direct that it is not to be regarded as evidence of the identification of the persons said to be speaking or of anything said by them." 73 Counsel for the co-accused then requested that the log book be edited to delete everything apart from those sections recording the mechanical aspects of the interception operation. 74 When his Honour asked the Crown Prosecutor if that could be done, the response was: "Not without a lot of ink, your Honour. The track numbers relating to the CDs are sprinkled throughout the document, and that is partly the aide memoire which is required by the various witnesses to navigate through the 16 days of tapes, your Honour." 75 His Honour found that there would not be any unfair prejudice to the accused in admitting the log book for the limited purpose for which it was tendered. To that stage of the trial there had been no cross-examination of the police involved in the surveillance that questioned any aspect of the system used, and accordingly, it was asserted, no reason for allowing the document, which contained material which the jury were directed to ignore, to be placed before them. If the system were to be attacked in subsequent cross-examination then, it was accepted, it may have become appropriate for the jury to see a suitably edited version of it. 76 It is now submitted that the log book should not have been admitted either in its entirety, or in an edited form. Instead, it was argued that it could have been marked for identification and used an "aide memoire", if need be, by those officers who were called to give evidence about the recordings. 77 The trial Judge, it was asserted, fell into error in not having considered the matter in the light of s 137 of the Evidence Act 1995; and in having given insufficient attention to the risk that the jury would misuse the document by assuming that the identification of the speakers, as recorded in the log book, were correct, and/or by forming the view that the Appellant was a person of bad character. 78 In this latter regard, attention was drawn to entries where:

(a) On page 1, the Appellant is recorded as saying "I've got the stolen credit card. Your not the one that goes and gets the fuckin credit cards. I do all of the hard work." and, later, "I'll have to rort all night on my birthday… we've thrashed this area" (b) On page 2, Ms Walker is recorded as having referred to him "scamming" SIM cards in mobile phones, followed later by mention of "stealing audio gear from cars"; (c) On page 3, a conversation is recorded about "dealing drugs";

(d) On page 16, someone is recorded as saying, "you are a drug fucked idiot you ekky freak", after which Ms Walker complained that a "drug dealer in Terrigal was done over in my car"; (e) On page 22, in the context of an argument over a girl, the Appellant is recorded as saying "I could end your life right now"; (f) On page 24, Ms Walker is recorded saying to someone that they had been fighting "because he has been doing break and enters and drugs on the weekend"; (g) On page 29 there is an observation "Andrew hocked jewellery - got an ounce for that"; (h) On page 31 there is mention of "creating a diversion at Wattanobbi to get all the cops up there. Do the job at Tuggerah"; (i) On page 40, the Appellant is recorded as saying "I went rorting last night with Josh. I kicked in two doors", and "If Josh says there's two places to do over tonight with money I'll do it" and "I've got three in Umina I've got to do. There's one in Umina I'm not involving Josh in".

79 Although the log was admitted for a limited purpose, it was to some extent used by the Crown for a wider purpose during the cross-examination of Ms Walker, when she was recalled by Woods to give alibi evidence. This arose in the context of a Crown challenge to her evidence, which was dependent upon the absence of any mention in the relevant pages of the log (pages 47 to 49) of sounds consistent with her leaving the premises to pick up Woods, of her returning with him, or of speaking to him when they allegedly were back at the house.

80 Had the evidence been confined to a cross examination of her, in order to establish the contents of documents made by third parties, then the course followed would have been irregular. However, faced with a late alibi occurring after the close of the Crown case, in the course of which Ms Walker had given evidence and had not been cross-examined as to the alibi, and where the Crown was forced to call a case in reply, and in fact called the officers responsible for the logs, Sergeant Charters and Senior Constable Phillips, I do not believe that any unfairness arose in this respect.

81 When his Honour came to sum up the case to the jury he gave them an instruction in the following terms: "Exhibit M was the log book. I remind you of my direction that you are not to regard what is written in exhibit M as itself evidence of the identity of persons said to be speaking or performing some particular activity. The log book is not to be regarded as evidence of the contents of any conversation recorded. You may use it as evidence of the system adopted and as evidence of the times at which it was said that particular events occur."

82 It was not, in my view, appropriate for the log book to have been tendered. The primary evidence which the Crown was entitled to tender from the interception operation were the tapes of the conversations, and there was an obvious risk of the observations, which I have extracted, inviting the jury to resort to tendency reasoning or to infer that the Appellant was a person of bad character.

83 Either of the two courses which was proposed by the defence should, in my view, have been adopted, that is, of editing the log, or of marking it for identification, and permitting the relevant witnesses to refer to it, as necessary, in order to fix the times and dates of the conversations, or the methodology, or even to confirm that nothing had been heard on the night of 21 January that would have been consistent with Woods' alibi.

84 I am satisfied that this ground has been made good, however whether it should lead to a quashing of the conviction and an order for a new trial depends upon the question whether the proviso to s 6 of the Criminal Appeal Act 1912 should be applied. To that question I will return.

Ground 2 - His Honour erred by admitting into evidence the voice identification evidence by Senior Constable Pilon and Senior constable Cassar

85 Objection was taken, by counsel appearing for the Appellant, to evidence being given by those officers who claimed to be able to identify the speakers on the recordings captured by the listening device, principally on the ground that they were insufficiently familiar with their voices to justify his Honour's findings that they were ad hoc experts within s 79 of the Evidence Act.

86 The evidence of Senior Constable Pilon, to the effect that he had spoken to the Appellant in 1999 when he had been arrested for another matter, and again in 2001 at his mother's place, was challenged upon the basis that he had made no mention of ever speaking to the Appellant in his statement, and that the first occasion on which he had made that claim was on the day prior to the trial commencing.

87 His evidence in relation to his familiarity with the Appellant's voice was contrasted with his greater familiarity with Woods' voice in so far as he had watched and listened to a video recording of an interview with him in relation to another matter, and had "…heard the way he spoke things like pitch and tone of his voice", and had also spoken with him "briefly" for some minutes "at least 6 months before January 2002". 88 By contrast, it was submitted, Senior Constable Pilon had noted in his statement that, on the day on which he had arrested and cautioned the Appellant "(he) made no reply" and did not have the benefit of a proven "source" recording of his voice. It was contended that the evidence, which he gave, was insufficient to qualify him to give the evidence, in the absence of a source recording, and of any suggestion that he had listened for or noted the pitch or modulation of the Appellant's voice, or his speed of speech or his accent.

89 Senior Constable Cassar's evidence of having spoken to the Appellant, whilst taking his fingerprints after his arrest for this matter, on 7 February 2002, was challenged upon the basis that the custody management records made by another officer had recorded that the Appellant "had not spoken a word" and "never spoke, just moved his head from side to side to indicate no to me to each question as asked". Her qualification to give evidence was similarly challenged, on appeal, upon the basis that there was no source recording which was used by her, no suggestion that she had identified any particular characteristics of the Appellant's speech, and limited opportunity of hearing him speak previously.

90 The Appellant, it is to be noted, did not give evidence during the voir dire or the trial, and the evidence of these witnesses as to having been familiar with the Appellant's voice, while challenged, went uncontradicted. Woods did however deny that his voice was captured on the tapes.

91 It was submitted that, had his Honour given consideration to s 137 of the Evidence Act, then he would have excluded the evidence upon the basis that it had a limited evidentiary value. Its value, it was argued, was outweighed by its prejudicial effect, particularly if the jury had ignored the direction which was given as to the limited use to which the log book could be placed, and used it to support the oral evidence of these witnesses. 92 I am not persuaded that this ground was made good. There are no preconditions for the admissibility of voice identification evidence, other than relevance under s 55 of the Evidence Act: R v Riscuta and Niga [2003] NSWCCA 6 at [34] per Heydon JA; and the remaining arguments, as to whether there a sufficient basis for the identification which the various witnesses made, went to weight: Riscuta and Niga at [35] and [50] per Heydon JA.

93 Moreover, his Honour expressly noted in the judgment of 10 May 2004, in which he dealt with the voice identification evidence and the log book, that he needed to decide the question which arose by reference to ss 135 and 137 of the Evidence Act, and concluded with the observation: "All of that evidence of course will need to be the subject of careful direction under s 616 (sic) of the Evidence Act as identification evidence but, in my opinion none of it is unfairly prejudicial to either accused and I see no reason why it should not be admitted. The probative value of it is of course a matter ultimately for the jury."

94 The argument that his Honour failed to give attention to s 137, or for that matter s 135, of the Evidence Act, is clearly without merit.

95 Although the evidence of the police officers, who made the identification of the Appellant's voice, was challenged, it was not contradicted by the Appellant or by Ms Walker. Woods was shown to be a witness of no credibility and any evidence which he gave in relation to the identity of the speakers can properly be discounted. 96 Accepting what the police witnesses said, there was in my view a sufficient basis for them to give the evidence in accordance with the principles discussed in Butera v The Director of Public Prosecutions (Vic)(1987) 164 CLR 180 at 195; R v Leung (1999) 47 NSWLR 405 at 412-413; Li v The Queen (2003) 139 A Crim R 281 at [40] to [42].

97 Each of these decisions recognises that ad hoc expertise can be acquired in circumstances such as those that were here present. Whether the evidence is accepted or not is very much a jury question. The present case is not one where the evidence was likely to give rise to an unfair prejudice, of the kind with which s 137 is concerned, and on any view the evidence was relevant and potentially strongly probative of the Appellant's guilt.

98 Quite apart from the police evidence there was, in any event, an overwhelming inference that the speakers sufficiently identified themselves as the Appellant, Woods and Ms Walker, since: (a) The listening device was placed in premises that were occupied by the Appellant and Ms Walker, and which were visited from time to time by Woods; (b) The names used in the conversations "Woods", "Woodsy", "Alison", "Madsy" and "Madigan" were so similar to, or synonymous with, those of the three people identified, as to make any suggestion that they were someone else risible; (c) There was no suggestion by either Ms Walker, or by Woods, of any other person with similar names, having been at the premises, at the relevant times; (d) Some of the topics of conversation attributed to them mentioned people such as May, Rebecca and Renee, with whom they were shown to have had some association.

99 Moreover, there was a clear and unambiguous direction not only as to the limited use to which the logbook could be put, but also as to the care, which needed to be given to the voice identification evidence, as follows: "Another issue in this case concerns the identification of the voices of the two accused on the surveillance tapes and discs. Again I must caution you that such evidence may be unreliable where it was constituted by police officers expressing their opinions. You should be similarly cautious in reaching your own conclusions on the material before you. Mistakes are sometimes made even in the recognition of the voices of close relatives and friends. You should bear in mind that the familiarity of the police officers and of yourselves with the voices of the two accused has been very limited. In the case of Mr Maddigan you have not heard him speak at all except when he pleaded to the charge. With Mr Woods you have the benefit of his record of interview with Senior Constable Cassar and the words said to be spoken by him on video, and his voice as you heard it in court during his evidence. But you would take into account the fact that those occasions were somewhat different from the occasions when the surveillance tapes and discs were recorded. I particularly also direct you to bear in mind the less than perfect clarity of the surveillance tapes, the fact that there may be a distinction between a live voice heard for instance in court and a recorded voice, and the fact that according to the evidence neither accused had a voice with any particularly unusual or distinctive characteristic. You should consider whether there was or is sufficient material of adequate quality to enable either the police officers or yourselves to make a worthwhile comparison. These factors may render the voice identification evidence unreliable. As with the directions I gave you in relation to visual identification, I do not suggest that I have formed any view one way or the other as to the reliability of the voice identification evidence. Again, you are not required to consider the voice identification evidence in a vacuum. You are entitled to take into account such other facts in the case which you find to be proved. They could include the fact according to the unchallenged evidence of Alison Walker that Andrew Maddigan lived with her at the relevant time in the Lisarow Unit, the fact that on his own evidence Mr Woods visited the unit on occasions and was apparently quite happy to sleep there on the night of 21 January 2002 and the various references on the tapes to Andrew, Madsy, Michael Woods and Woodsy."

100 These directions fully accorded with the provisions of s 165(1)(b) and (2) of the Evidence Act, and adequately dealt with the matters that were of relevance for a jury assessment of the weight of the evidence.

Ground 3 - His Honour erred by not allowing the Appellant to call evidence from expert witness, Jennifer Robyn Elliot

102 Counsel for the co accused Woods sought to call an expert witness, Ms Elliot, to give evidence of "methodology" in relation to voice identification. Counsel for the Appellant informed the trial judge that he wished to take instructions as to whether he would ask the witness any questions. It does not appear that the issue of those instructions was ever resolved, but it is clear that the Appellant would have been able to rely upon the evidence adduced from Ms Elliot by counsel for Woods had she been called.

103 The purpose of the evidence, it was stated, was: "…to get before the jury and the Court evidence of how speaker identification is supposed to be done from the scientific point of view, so that the jury can view or consider the police or ad hoc evidence against the backdrop of how forensic speaker identification is supposed to be done to arrive at a result."

104 A copy of Ms Elliot's curriculum vitae and a paper written by her titled "Forensic Speaker Identification" was marked for identification.

105 She was not called on the voir dire to explain what her evidence might be. No report had been prepared, and the defence had not served an Expert Witness Certificate pursuant to s 177 of the Evidence Act. The Crown Prosecutor opposed the admission of the evidence, and submitted that Part 28 of the District Court Rules, and s 177 of the Evidence Act 1995 were applicable.

106 It was submitted by the Appellant, correctly in my view, that Part 28 of the District Court Rules was of no relevance since it does not apply to criminal proceedings. Similarly it was submitted, correctly, that s 177 of the Evidence Act did not apply to this situation, since it is directed to the tender of an expert's opinion in documentary form and has no application to evidence which is led viva voce.

107 It does not however follow that the defence should have been permitted to call Ms Elliot to give her expert opinion on the "methodology". All that she was able to offer was to describe an approach to voice identification that differed from the method of identification by a person who had the opportunity of listening to the tapes and having some familiarity with the voices of the speakers, either as direct evidence or as ad hoc expert evidence, which has been accepted by the courts: see R v Leung (1999) 47 NSWLR 405 where it was held that s 79 of the Evidence Act was sufficiently wide to accommodate the idea of an ad hoc expert witness, and see also R v Gao [2003] NSWCCA 390 at [23].

108 She had not undertaken any acoustic analysis herself and was not in a position to offer an opinion as to whether the speakers were the Appellant, Woods and Ms Walker. Furthermore it appears that the analysis required for the methodology, which she intended to describe, depended at least in part upon an application of Baye's theorem as to probability, which was the subject of criticism in R v GK (2001) 53 NSWLR 317.

109 The defining point for the rejection of her evidence was that it did no more than identify an alternative method of voice identification that was dependant upon acoustic analysis, without placing in issue that which was led by the Crown.

110 Without the next step of applying it to the facts of this case, it did not qualify as relevant evidence within the meaning of s 55 of the Evidence Act, that is, as evidence which, if accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings, and hence was not admissible under s 56(1) of the Act.

112 The Crown case was, in my view, exceedingly strong. The surveillance evidence established the Appellant's presence in the vicinity of the Reptile Park, at about the time of the break and enter, and Ms Walker's evidence established that he was picked up at a time, which followed the offence, from the location where the jemmied safe was found.

113 The listening device product contained conversations which pointed to the existence of a plan to commit a break and enter that night, at a location which was consistent with the Reptile Park, and which contained admissions, on the following day, which could not sensibly have related to anything other than the break and enter and theft of the Reptile Park gun safe. Of particular importance, in that regard, was the reference to the "two bolted" weapons, having regard to the evidence of the owner of the stolen firearms that they included two, but only two bolt action rifles, as well as the evidence as to the weight of the safe in the light of the Appellant's complaints of having a sore back or gut, by reason of lifting it.

114 It may be conceded that it would have been necessary for the jury, and now for us, to take into account the fact that the police did not see the safe protruding from the rear of the boot of the Falcon when it was sighted after the break and enter. There was, however, no evidence to show to what extent, if any it might have protruded from the boot. Moreover it was dark and there was no suggestion of any police vehicle having followed it from a position where the boot might have been in full view.

115 Additionally, it was necessary for the jury, and also for us, to take into account the discrepancies in the timing of the sightings as recorded by police, and the absence of call charge records to back up Ms Walker's evidence as to the call from the Appellant. They were readily explicable on the basis that the times were not recorded with complete accuracy, and that mobiles other than those registered in the names of Ms Walker and the Appellant were used, particularly having regard to the contemporary intercept record which did confirm the existence of a call followed by Ms Walker leaving the premises in her car.

116 The question whether the Appellant lost a chance of an acquittal that was fairly open to him needs to be considered in the light of the foregoing.

117 It is appropriate to take into account the direction which was given to the jury not to use the log book, save for the limited purpose explained, and not to assume inevitably, or too readily, that they disobeyed it: see the observations of Gleeson CJ in R v Lansdell [1995] NSWCCA 22 May 1995 at 28-29. Additionally, it is appropriate to take into account the adequate and clear directions which were given in relation to the visual identification evidence; and in relation to the evidence of Ms Walker, by reason of the suggestion as to her possible criminality as an accessory. They could only have served to ensure that the jury gave very careful consideration to the evidence as a whole, and they have an equal application in this Court's consideration of the Crown case.

118 Finally, there is the circumstances that the various observations in the log, of which complaint was made, are contained in a document that was 60 pages in length. Those observations were not all unequivocally related to prior criminality of the Appellant, and perhaps more importantly, would not have added greatly to the intercepts that were properly admitted. Those intercepts included admissions by the Appellant as to unrelated acts, including break and enters and stealing, which could not have been edited out, because they gave the context for the plan which unfolded during the discussion, to commit the break and enter and stealing at the Reptile Park.

119 The circumstances in which the proviso may properly be applied were considered in Festa v The Queen (2001) 208 CLR 593 where further attention was given to the test whereby the Court can dismiss an appeal, notwithstanding error "if it considers that no substantial miscarriage of justice has actually occurred."

120 McHugh J there noted (at [115] and [116] the statements of Barwick CJ in R v Storey (1978) 140 CLR 364 at 376 and in Driscoll v The Queen (1977) 137 CLR 517 at 524-525 and held (at 120) that they contained the correct principles to apply:

121 Those passages from the judgments of Barwick CJ, which were cited by McHugh J in Festa, were as follows: (a) Storey : "If error be present, whether it be by admission or rejection of evidence, or of law or fact in direction to the jury, there remains the question whether none the less the accused has really, through that error or those errors, lost a real chance of acquittal. Put another way, the question remains whether a jury of reasonable men, properly instructed and on such of the material as should properly be before them, would have failed to convict the accused: or were the errors such that if they were remove a reasonable jury might well have acquitted"; (b) Driscoll : "It is noticeable that the proviso to s 6(1) speaks in terms of "substantial miscarriage of justice". The word "substantial" in this connection denies, as it seems to me, the proposition that of necessity the existence of any of the enumerated circumstances in the sub-section amounts to a miscarriage of justice. No doubt the oft quoted passage from the reasons for judgment of Sir Wilfred Fullagar in Mraz v R (1955) 93 CLR 493 at 514; [1955] ALR 929 at 940, rightly emphasizes that it is for the Crown to satisfy the court that occasion exists for resort to the proviso: but that passage ought not to be read as saying that every departure in the course of a trial from compliance with the relevant law or rule of procedure results of necessity in a miscarriage of justice. Indeed, in my opinion, the very terms of s 6(1) and its counterparts would seem to deny that proposition. The important words, in my opinion, in the passage from the judgment of Sir Wilfred Fullagar in that decision and at that page are "may thereby have lost a chance which was fairly open to him of being acquitted". Of course, if the Court of Criminal Appeal on its review of the facts and circumstances of the case concludes that before a jury, properly directed, the appellant can be said fairly or reasonably to have had a chance of acquittal, it will not be warranted in concluding that there was no miscarriage of justice. The error or errors of the trial may then, because of that view, be regarded as having produced a substantial miscarriage of justice. It is for the court itself to be affirmatively satisfied in this respect, and for this purpose the court will consider for itself the evidence and the inferences properly available therefrom."

"121. The question whether a jury, acting reasonably, would inevitably have convicted an accused ultimately falls to be determined by the relevant court according to its assessment of the facts of the case. The prevalence of dissenting views in cases dealing with the application of the proviso illustrates the largely subjective nature of the inquiry, resting as it does on factors such as the error alleged, the relative strength of the prosecution and defence cases and the court's characterisation of the hypothetical jury, "acting reasonably" and properly directed. As Brennan, Dawson and Toohey JJ stated in Wilde : 'In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.' 122. But one important development has occurred since this court decided Mraz , Storey , Driscoll and Wilde . Courts of criminal appeal are now required to examine and analyse the evidence in criminal trials to a much greater extent than previously. This court has interpreted the "miscarriage of justice" ground of appeal as entitling a court of criminal appeal to examine the whole of the evidence and form its own opinion as to whether there is a reasonable doubt as to the accused's guilt. Even 30 years ago, such an approach would not have been contemplated. … 123. Although the term "miscarriage of justice" appears both as ground of appeal and as part of the criterion for determining whether a conviction should stand, the issue under each provision is different. In one, the issue is whether the jury must have had a reasonable doubt; in the other, it is whether the jury must have convicted. But that said, there is no reason why the role of a court of criminal appeal should differ in deciding these issues. In examining the evidence for the purpose of applying the proviso, the court should assume that ordinarily if it thinks that the accused must be convicted, so would a reasonable jury. Speaking generally, the court's view of the evidence should prevail except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case. In cases of circumstantial evidence, for example, the court's view of the evidence should be regarded as the view of the reasonable jury unless proof of one or more circumstances has been affected by an error relating to credibility. Even when a particular circumstance involves a credibility issue, other circumstances may be admitted or proved which are sufficient to permit the court to sustain the conviction."

123 Justice Kirby noted at [203] the exception to allowing an appeal, which has been accepted in cases involving error in relation to identification evidence or warnings, where the Court has come to the conclusion that, independently of the matter giving rise to the error, the jury must inevitably have convicted the Appellant, and which was mentioned in Domican v The Queen (1992) 173 CLR 555 at 565-566. His Honour continued at [204]:

"This reasoning is conformable with what this court has said on many occasions in cases in which legal error is shown but where the proviso is invoked on the basis that the conviction was inevitable and that, therefore, the legal error was not determinative or material. The ultimate issue in this appeal therefore becomes whether, notwithstanding the identified legal mistakes, the conviction of the appellant was inevitable."

124 Hayne J observed: "223. First, the common form provision, taken as a whole, is to be understood as rejecting demonstration of mere formal error, as distinct from substantial error, as the criterion for setting aside the judgment of the court of trial. The rejection of that approach is reflected in the provision's specification of grounds on which an appeal is to be allowed: … that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice. But it also finds important reflection in the proviso, where the addition of the epithet "substantial" to qualify "miscarriage of justice" and the use of the word "actually" in the expression "actually has occurred" may be thought to emphasise to the court of appeal that the inquiry must be directed to the substantial merits of the case, not merely matters of form.

224. Secondly, the proviso to the common form provision can be seen as accepting that a basic premise of the common law is that an accused person is entitled to a trial according to law. For that reason, alone, any departure at trial from what the law requires is a miscarriage of justice. But the proviso recognises that not every departure, at trial, from the proper application of the law warrants setting aside a conviction. 225. Thirdly, both the framing and the subsequent application of the common form criminal appeal provisions, including the proviso, have had to take account of two other considerations: that the jury is the tribunal of fact in a criminal trial and that the prosecution must prove its case beyond reasonable doubt. In recent years, some prominence has been given to cases where a court of criminal appeal, having examined for itself the evidence given at trial, has formed its own opinion as to whether there was a reasonable doubt about the accused's guilt. …What is important for present purposes is that criminal appeals must be decided giving due recognition to the facts that it is for the jury to decide what evidence is persuasive and what is not, and that the degree of persuasion that must be attained to warrant conviction is very high. 226. It follows that for a court of criminal appeal to apply the proviso the court must conclude that the evidence properly before the jury would, if the jury had been properly instructed, have inevitably required the jury, acting reasonably, to return a guilty verdict. A court of criminal appeal must approach the consideration of the proviso in any particular case paying close attention to the nature and consequences of the error that has been identified in the trial. To take but one example, in some cases it may be possible to conclude that the jury could not have reached the verdict it did, unless it accepted some evidence and rejected other evidence. In such a case, could the error that has been identified have affected those conclusions? Often enough, that question will require an affirmative answer. If, however, the answer is no, what does that say about whether there has been a substantial miscarriage of justice? 227. By contrast, if evidence has been wrongly admitted at trial it may be more difficult to detect from the jury's verdict how it dealt with particular factual issues at trial. In such a case, of which the present is an example, it is necessary to direct attention to the uncontroverted facts and consider whether, on those facts, conviction was inevitable. … 229. … use of the formula of "lost chance, fairly open, of acquittal" must not be permitted to obscure the nature of the inquiry that must be made. That is an inquiry which seeks to identify whether, on the evidence that was properly admitted at trial, a jury acting reasonably and properly directed would have inevitably convicted."

125 In my view, had the jury not seen the log, they would inevitably have convicted the Appellant upon the evidence which was tendered.

126 While the log book should not have been accepted into evidence, it did not add anything of direct relevance for the offence charged. Its proof rested upon the surveillance evidence, the product of the listening device and Mrs Walker's evidence. The Appellant did not give evidence so that his credibility was not in issue. The identification of the speakers did not depend upon the log, as there was independent evidence as to their identification from the several police officers who were called, and from the terms in which the speakers referred to one another.

127 The only remaining area of concern relates to the possibility that, contrary to the specific instruction, the jury might have used scattered passages in the log as suggesting that the Appellant was a person of bad character or had a tendency to commit break and enter offences. 128 The Crown did not rely on tendency or coincidence reasoning or place his character in issue. Even assuming that the jury disobeyed the specific jury instruction as to the limited use of the log, I am persuaded that no substantial miscarriage of justice arose from its reception into evidence. 129 I would apply the proviso and propose that the appeal be dismissed. 130 GROVE J: I agree with Wood CJ at CL. 131 HOEBEN J: I agree with Wood CJ at CL. **********

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